LAW OF EVIDENCE

UNIT-I

 Introduction: Distinction between substantive and procedural law-

 Salient features of the Indian Evidence Act, 1861. – No Notes

PART – I - RELEVANCY OF FACTS

CHAPTER I – PRELIMINARY - SECTION 3 – INTERPRETATION CLAUSE

 Facts , Facts in issue and Relevant facts
 Evidence - Circumstantial and direct evidence
 Presumptions – Section 4 – No Notes
 proved, disproved, not proved
 Witness
 Appreciation of evidence.
Chapter II - Relevancy of Facts- (Section 5 -55)
RELEVANCY OF FACTS – Section 5 -16
 Facts connected with facts in issue-
 Doctrine of Res gestae- Sections 6
 Facts which are the occasion, cause or effect of facts in issue Section 7,
 Motive, preparation and previous or subsequent conduct – Sec 8
 Facts necessary to explain or introduce relevant facts – Section 9
 Evidence of Common Intention-Section10
 Relevancy or otherwise irrelevant facts – Section 11
 Facts to prove right or custom - Section13
 Facts concerning state of mind/state of body or bodily feelings-Sec14
 Facts bearing on question whether act was accidental or intentional– Sec15
ADMISSION – Section 17 - 31
 Relevancy and admissibility of admissions (Section 17-23)
 privileged admissions- Section 23
 evidentiary value of admissions (Sections 31).
 Introduction To Evidence Act
Introduction
 After having enacted Indian Penal Code in 1860, civil as well as Criminal Procedure
Code, colonial rulers enacted the Law of Evidence in 1872.
 The Act deals with the law evidence applicable to both Civil and Criminal Procedure
Code.
 It extends to whole of India, including the Union territories of Jammu and Kashmir
 The Indian Evidence Act was drafted by Sir James Fitzjames Stephen, the
Distinguished Jurist and Legislator.
 Came into force on 1 September 1872, after the Evidence Bill having been passed by
the British legislature on 15 March 1872
 In brief, the Act consists of 167 sections divided into 3 Parts and 11 Chapters.

Scheme of the Evidence Act The plan of the Act is perfectly simple The Act is divided into
three main parts:
(i) What to Prove - Relevancy of Facts
(ii) How to Prove - Proof,
(iii) Whom to Prove - Production and Effect of Evidence

Part I - Relevancy of Facts

Part I - Relevancy of Facts of the Indian Evidence Act is concerned with defining what facts
may be given in evidence in order to prove the fact in issue. - Chapter II
The Evidence Act specifies five instances of connection which may exist between the
evidential fact and the fact to be proved, in order to make the former relevant. This leads to
the following classification of relevant facts:
1. Facts connected with the fact to be proved - Sections 6-16
2. Statements about the fact to be proved - Sections 17-39
3. Decisions about the fact to be proved - Sections 40-44
4. Opinions about the fact to be proved - Sections 45-51
5. Character of the persons who are concerned with the fact to be proved -Sections 52-55
The fact to be proved may be a fact in issue or another relevant fact.
PART II :- Proof
Part II of the Indian Evidence Act deals with the mode of proof. It consists of four chapters.
It deals mainly with:
i. Chapter III - Facts which need not be proved (sections 56 to 58)
ii. Chapter IV - Oral Evidence (sections 59 to 60)
iii. Chapter V - Documentary Evidence (sections 61 to 65B, 67A to 73A);
1. Public Documents (sections 74 to 78);
2. Presumptions a to Documents (sections 79 to 90A)
iv. Chapter VI -Exclusion of Oral or Documentary Evidence. (sec 91 to 100)

PART III - Production and Effect of Evidence.

PART III of the Indian Evidence Act deals with the subject of ‘Production of Evidence’, This
Part contains 3 chapters sections 101 to 167. The general questions considered in this Part
may be Sted as follows:-

i. Chapter VII - Burden of proof - Whose duty is it to prove a particular fact?

– Section 101-114A
ii. Chapter VIII - Estoppel - When may a party be precluded from proving a
particular fact? - Section 115-117
iii. Chapter IX, X & XI – Witness - What are the rules relating to the examination of
witness?
a. Who is competent to testify? (Competency) Sec 118 - 134
i. What matters may not be testified to at all? (Privilege)
b. How are witnesses to be examined? Sec – 135 -166
i. How may the credit of witnesses be impeached or confirmed?
c. What is the effect of improper admission or rejection of evidence? Sec 167
Distinction between procedural law and substantive law

Laws can be divided into two groups:

 Substantive law, and
 Adjective or procedural law.
 The Substantive Law is the law that confers powers and rights or imposes duties and
liabilities on persons whereas
 the Procedural Law deals with the procedure by which those rights, duties and liabilities
are enforced in a Court of law.
 The Civil Procedure Code (CPC), Criminal Procedure Code (CrPC) and Evidence
Act, are examples of procedural laws and
o the first two codes lay down what court is to be approached for civil or criminal
cases, respectively, the jurisdiction of the Courts etc and
o the Evidence Act provides for the methodology by which the cases have to be
conducted in the matter of production of relevant oral, documentary and
material evidence and the examination of witnesses etc.
 The Indian Constitution and the Indian Penal Code (IPC) are examples of Substantive
Laws.
 Thus, while Section 302 of IPC provides for death sentence as one of the punishments
for the offence of murder, it is Section 354, Clause (5) of CrPC which prescribes the
procedure for the execution of the death sentence i.e., that the convict shall be hanged
by the neck till he is dead.

Substantive laws

 Substantive laws define the rights and responsibilities in civil law and crimes and
punishments in criminal law.
 Substantive laws are codified in legislated statutes or may be practised or modified
through precedent, especially in the common law system.
 The function of substantive law is to define, create or confer substantive legal rights or
legal status or to impose and define the nature and extent of legal duties
Nature of substantive laws

Substantive laws deal with those areas of law which establish the rights and obligations of the
individuals and what individuals may or may not do.

 These laws have independent power to decide any case.

 Substantive laws dictate the legal context of any crime such as how the case will be
handled and what specific punishments to be given for any crime.
 Statutory laws or precedents in the common law system are substantive laws.
 Substantive laws deal with the legal relationship between individuals or the legal
relationship between an individual and the State.
 Substantive laws define and determine both the rights and obligations of the citizens to
be protected by law and the crimes or wrongs and also their remedies.
 Substantive laws determine the subject matter of litigation pertaining to the
administration of justice.

Procedural laws
 Procedural laws prescribe procedure for the enforcement of rights and liabilities.
 The efficacy of substantive laws, to a large extent, depends upon the quality of
procedural laws.
 Unless the procedure is simple, expeditious and inexpensive, substantive laws, however
good are bound to fail in achieving their object and reaching the goal.

Nature of procedural laws

 Procedural laws lay down the ways and means substantive laws can be enforced.
 They do not carry any independent powers to decide any case.
 These laws are enforced by the Acts of Parliament or implemented by the government.
 A procedural law should always follow substantive law.

Procedural Law And Substantive Law

Procedural law is thus an adjunct or an accessory to substantive law. The two branches are
complementary to each other and interdependent, and the interplay between them often
conceals what is substantive law and what is procedural law. It is procedural law which puts
life into substantive law by providing a remedy and implements the well-known maxim ubi jus
ibi remedium.

Instances of substantive law

 The Indian Contract Act, 1872
 The Transfer of Property Act, 1882
 The Industrial Disputes Act, 1947
 The Indian Penal Code 1860

Instances of procedural law

 The Indian Evidence Act, 1872
 The Limitation Act, 1963
 The Code of Civil Procedure, 1908
 The Code of Criminal Procedure 1973
BASIS FOR
SUBSTANTIVE LAW PROCEDURAL LAW
COMPARISON
Procedural law is a law that
Substantive Law is the law that states the
specifies the practice, procedure
Meaning rights and obligations of the parties
and machinery for the imposition
concerned.
of rights and duties.
Governs How people should behave? How legal case flows?
Fixation of rights and duties of the Ways and means for imposing
Concerned with
citizens. substantive law.
Applicable to legal and non-legal
Context Applicable to legal context only
context.
Governance By act of parliament. By statutory law.
Rights of parties and punishment for Initiation and prosecution of civil
Defines
wrong doer. and criminal lawsuits.
Related to Matters outside the court Matters inside the court
 THE INDIAN EVIDENCE ACT, 1872

Preamble :- WHEREAS it is expedient to consolidate, define and amend the law of Evidence;
It is hereby enacted as follows: —
PART I
RELEVANCY OF FACTS
CHAPTER I. - PRELIMINARY
1. Short title, extended and commencement –This Act may be called the Indian Evidence
Act, 1872.
Extent - It extends to the whole of India and applies to all judicial proceedings in or before
any Court, including Courts-martial, other than Courts-martial convened under the Army Act
, the Naval Discipline Act , the Indian Navy (Discipline) Act, 1934 , the Air Force Act, but
not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator;
Commencement of Act.–And it shall come into force on the first day of September, 1872.

THE BHARATIYA SAKSHYA BILL, 2023

to consolidate and to provide for general rules and principles of evidence for fair trial.
BE it enacted by Parliament in the Seventy-fourth Year of the Republic of India as follows:—
PART I
CHAPTER I - PRELIMINARY
Section 1 : Short title, application and commencement:-
(1) This Act may be called the Bharatiya Sakshya Adhiniyam, 2023.
(2) It applies to all judicial proceedings in or before any Court, including Courts-martial, but
not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator.
(3) It shall come into force on such date as the Central Government may, by notification in
the Official Gazette, appoint. –1st June 2024
 APPLICABILITY OF EVIDENCE ACT

The Indian Evidence Act, 1872, applies to all judicial proceedings and it has no application
in
1.Departmental Proceedings
The rules of evidence are also not applicable to the disciplinary proceedings. Departmental
Proceedings’ against employees in disciplinary matters, disciplinary proceedings under Article
311 of Constitution of India for the dismissal, reduction in rank etc of the civil servants of the
Central and State Governments are not judicial proceedings.

2.Proceedings before Labour Court or Industrial Tribunal under the Industrial Disputes Act,
1947,
Shankar Chakravarthi v. Britannia Biscuits ,” the Supreme Court held: The Labour
Court or Tribunal has to decide the lis between the parties on the evidence adduced before
it. While it may not be hide bound by the rules prescribed in the Evidence Act it is nonetheless
a quasi-judicial Tribunal proceeding to adjudicate upon a lis between the parties arrayed
before it and must decide the matter on the evidence produced by the parties before it. It
would not be open to it to decide the lis on any extraneous consideration. Justice, equity and
good conscience will inform its adjudication.

3.Commissions of Enquiry
Dr. Subramanian Swamy v. Arun Shourie The Commission has the powers of civil court for
the limited purpose as set out in that Section. It is also treated as a civil court for the purposes
of Section 5(4). The proceedings before the Commission are deemed to be judicial
proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code, but the
Commission appointed under the Commission of Enquiry 1952 Act in our view is not a Court
and making the inquiry of determination of facts by the Commission is not of judicial
character.”

Section 87 (2) of Representation of People Act of 1951 On the other hand, some of the
proceedings relating to election offences etc under the Representation of People Act of 1951
are of a quasi-criminal nature,’ and the provisions of the Evidence Act are made applicable to
the proceedings under the Act and they are considered as judicial proceedings.

Arbitration Proceedings
Section 1 of the Evidence Act clearly provides that the Act does not apply to “proceedings
before an arbitrator”
 Section 10 of the Industrial Disputes Act, 1947 - empowers the appropriate
government to intervene in an industrial dispute by referring it to a conciliation officer
or a board for resolution
 Section 19(1) of the Arbitration and Conciliation Act of 1996 - private arbitrations -
provides that the arbitral tribunal constituted under the Act “shall not be bound by the
Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.”
 Section 19(2) the parties are free to agree on the procedure to be followed by the
tribunal and, failing that agreement, the tribunal under clause (3) may conduct the
proceedings in the manner it considers appropriate.
 Section 19(4) : the power of the arbitral tribunal under sub-section (3) includes the
power to determine the admissibility, relevance, materiality and weight of any
evidence.”
 It is significant that the Act gives total autonomy to the parties in this respect and does
not even require that the procedure agreed to by the parties or laid down by the
arbitrator shall comprise the principles of natural justice.
 Section 89 (1)of the CPC provides for settlement of disputes by arbitration by
reference by the Court, clause 2(a) provides that these arbitration proceedings shall be
deemed to be proceedings under the Arbitration and Conciliation Act of 1996. In the
light of what has been stated above, arbitration proceedings under Section 89 of CPC
also are not governed by the Evidence Act.
Courts Martial
Section 1 of the Act states that the Act shall apply to Court-martial, other than Courts-martial
convened under
 The Army Act
 The Naval Discipline Act
  The Indian Navy (Discipline) Act, 1934
 The Air Force Act .
The four enactments referred to are the Acts of the United Kingdom and the Courts Martial
set up under those Acts are not governed by the Act.

However, these Acts have their Indian counterparts in Army Act, 1950, the Air Force Act,
1950 and the Navy Act, 1957 which were enacted by the Indian Parliament after the
independence, and the Evidence Act applies to the Courts Martial set up under those Acts,
subject to their other provisions.
 Section 133 of the Army Act, 1950,
 Section 130 of the Navy Act, 1950, and
 Section 132 of Air Force Act, 1950
 provide identically that: “The Indian Evidence Act, 1872, (1 of 1872) shall, subject to
the provisions of this Act, apply to all proceedings before a court-martial.”
 As the three enactments contain detailed provisions regarding evidence and procedure,
to that extent the application of the Evidence Act will be restricted.

Affidavits
Section 1 of Evidence Act expressly excludes the affidavits from its purview and provides that
the act does not extend to “affidavit presented in any court”
An affidavit is a sworn statement made by a person as to the truth of the facts within his
knowledge mentioned therein.
 Order 29 of Civil Procedure Code
 Section 297 etc of Criminal Procedure Code
regulate the operation of affidavits.
However, it may be used as evidence
1.Order 18 Rule 4 of CPC that in every case examination in chief shall be given affidavit and
that cross examination and re-examination shall be by oral evidence recorded by the Court or
the Commissioner appointed for the purpose.
2.Section 296 of CrPC- Evidence of formal character on affidavit.
(1) The evidence of any person whose evidence is of a formal character may be given by
affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or
other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the
accused, summon and examine any such person as to the facts contained in his affidavit.

3.Order IX of The Supreme Court Rules of 2013

1. The Court may at any time, for sufficient reason, order that any particular fact or facts
may be proved by affidavit, or that the affidavit of any witness may be read at the
hearing, on such conditions as the Court thinks reasonable:
2. Provided that where it appears to the Court that either party bona fide desires the
production of a witness for cross-examination and that such witness can be produced,
an order shall not be made authorising the evidence of such witness to be given by
affidavit.

Rita Pandit Vs Atul Pandit

Under Section 3 of the Evidence Act oral evidence is defined as statements made by witnesses
in a court of law and as affidavits are not statements made by witnesses in a court of law, the
affidavits were held to be not evidence.

LEX FORI
The applicability of the law of evidence is Lex fori, that is, law of the country or place where
the cause of action arises and where the remedy is sought to be enforced, and where the Court
conducts the proceedings. In cases where the evidence is to be taken in one country to assist
the proceedings which are being held in another country, the Courts generally appoint
commission to record the evidence.

Though law of evidence is held to be a consolidatory enactment, it does not contain the whole
of the rules of evidence. There are several statutes which supplant the omissions in the
Evidence Act, 1872 and supplement its provisions. Some of these are:-
 Bankers Books Evidence Act, 1891 (Act 18 of 1891);
 The Civil Procedure Code, 1908 (Order 26- commissioner)
 The Code of Criminal Procedure, 1973 (Sections 291 and 292)
 The Registration Act, 1908 (Sections 49 and 50)
 The Limitation Act, 1963 (Sections 19 and 20)
 The Transfer of Property Act, 1882 (Sections 59 and 123)
 The Stamp Act, 1899 (Section 35)
 The Indian Succession Act, 1925 (Section 63)
 The Divorce Act, 1889 (Sections 12 and 14) etc.
 Facts - Facts in issue and relevant facts
Section 3
Fact :- Fact means and includes –
(1) anything, 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 sense, or is or was at a specified time
conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation is a fact.
Fact :-
Fact’ may be defined as:
Clause 1 :- Any thing, state of things, relation of things, that can be sensed (external fact).
For instance –

 When certain things are placed in a certain way/pattern, it is a fact.

 When a person sees or hears something, it is a fact.

 The words spoken by a person, is a fact.

Clause 2 :- Any mental condition of which any person is conscious (internal fact).
For instance–

 The opinion of a person.

 The intentions of a person.
 A person acting in good faith/fraudulently.
 The deliberate choice of a person’s words.
 Feeling a certain sensation at a certain time.
 A person’s reputation.
Clause (1) of the above definition refers to “things” which are capable of being perceived by
human senses like sound, touch, vision, taste and smell. It refers also to “state” of things and
“relation” of things.’
From Illustration

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
 it is clear that certain objects are in a certain place relates to the “state” of things and
 that they are “arranged” in a certain “order” refers to the “relation” of things.
 The “thing” refers not only to “objects”

 Sound – If evidence refers to fact which could be heard –

 Vision - If evidence refers to fact which could be seen – Seeing hitting from back
 Taste - If evidence refers to fact which could be taste – Liquor taste
 Smell - If evidence refers to fact which could be perceived – gas Smell
 Touch - If evidence refers to fact which could be feel

Classification of Facts
Facts

Physical Psychological Positive Negative

(Internal) (External)

Physical and Psychological—External and Internal

Clause (1) - is said to refer to physical facts whereas
Clause (2) - refers to psychological facts

While Clause (1) of Section 3 refers to “things” that can be “perceived by senses”, Clause (2)
refers to “mental condition” of which any person is “conscious”.” This could include other
conditions like fear, anger, hatred, ill-will, knowledge etc. some of which are mentioned in
Sections 14 and 15 of the Act.
 Physical facts are sometimes called as external facts and psychological facts are called
as internal facts.
 While material objects, sounds, smells etc. can be felt by others, psychological facts like
intention, ill will, hatred etc can only be felt by the person who is entertaining those
feelings and not by others unless those internal feelings are manifested through
expressions or actions by that person.

Positive and Negative

Facts are also classified as positive and negative facts. Presence or existence of a fact is a
positive fact and its absence or non-existence is a negative fact. It is easier to prove the
existence of a fact than its non-existence. For instance, for proving that,
person “A” exists, he has to be produced in a Court of law but to prove that he does not exist,
one has to survey the entire population. As under Section 106, it is easier prove that A has
purchased a train ticket than that he has not.

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 his trial the following facts may be in issue:
That A caused B's death;
That A intended to cause &’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.

Facts in issue—Defined.—“
 “Facts in issue” are facts out of which some right, liability, or disability, involved in the
inquiry, necessarily arises, and upon which, accordingly, decision must be arrived at.
 Matters which are affirmed by one party to a suit and denied by the other may be
denominated facts in issue
 what facts are in issue in particular cases, is a question to be determined by the
substantive law or in some cases by that branch of the law of procedure which regulates
the law of pleadings, civil or criminal.

Criminal cases. — As regards criminal cases, the charge constitutes and includes “facts in issue”
- Chapter XVII of the Code of Criminal Procedure, 1973.
Civil cases.— As regards civil cases, “facts in issue” are determined by the process of framing
issues. Order XIV, rules 1-7, Code of Civil Procedure.

Relevant Fact
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.(Section 6 -
55)
Relevant fact.—The word “relevant” means that any two facts to which it is applied are so
related to each other that, according to the common course of events, one, either taken by
itself or in connection with other facts, proves or renders probable the past, present or future
existence or non-existence of the other.
The word “relevant” is used in the Act with two distinct meanings:
a) as admissible
b) as connected
Example - Proof of drunkenness — Blood or urine test is not a must for Prove the charge of
drunkenness. Drunkenness is a question of fact and smelling of alcohol, unsteady gait, dilation
of pupils, incoherent speech would all be relevant consideration.
The difference between facts in issue and relevant facts
Facts in Issue Relevant Facts

Facts in issue are the main facts that are in Relevant facts are the facts that have a
dispute or controversy between the parties, logical connection or relation with the
and that determine the outcome of the case. facts in issue, and that help to prove or
They are also called “principal facts” or disprove them. They are also called
“factum probandum”. “evidentiary facts” or “factum probandi”.

Relevant facts are non-significant and

Facts in issue are significant and material for immaterial in themselves, but they
the legal question or issue at hand. become important when they support or
weaken the case of either party.

Relevant facts are part of the law of

Facts in issue are the basis of the law of evidence, as they specify the conditions
evidence, as they define what kind of and circumstances under which certain
evidence can be given in a court of law. facts are deemed to be relevant or
irrelevant.

Relevant facts are the foundation of the

Facts in issue are affirmed by one party but inferences or conclusions drawn from
denied by the other party, and they need to the evidence, and they need to be
be proved or disproved by evidence. logically connected or related to the facts
in issue.
 Evidence-Circumstantial and direct evidence

Section 3 :- 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) all documents including electronic records produced for the inspection of the Court;
such documents are called documentary evidence.

Meaning of Evidence :-
 The word “evidence”, considered in relation to law, includes all the legal means,
exclusive of mere argument, which tend to prove or disprove any matter of fact, the
truth of which is submitted to judicial investigation.
 “Evidence” has been defined to be any matter of fact, the effect, tendency, or design
of which is to produce in the mind a persuasion, affirmative or dis-affirmative, of the
existence of some other matter of fact.
 “‘Evidence” means the testimony, whether oral, documentary or real which may be
legally received in order to prove or disprove some fact in dispute.

Section 3 -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
o oral and
o documentary.
 Oral evidence :—The oral evidence means statement made by a witness before a court
in relation to matter of fact under inquiry. Thus the oral evidence is the evidence that
is given before the Court.
 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
.
 By the Information Technology Act, 2000, all the electronic records produced for the
inspection of the Court are included in the document and therefore they are also
documentary evidence. .

Hardeep Singh Vs State of Punjab

This definition has been described by the Supreme Court as exhaustive.' The definition is
exhaustive in the sense that every kind of evidence can be ultimately reduced to the category
of either oral evidence or documentary evidence.”

English Law
According to Stephen the word “evidence” is used in three senses:
1. words uttered, and things exhibited in Court,
2. facts proved by those words or things, which are regarded as ground word of inference
as to other facts not so proved, and
3. relevancy of a particular fact to matter under inquiry.

Indian Law
Under the Indian Evidence Act the term evidence has a more definite meaning viz., the first
one. Evidence thus signifies only the instruments by means of which relevant facts are brought
before the Court. Evidence is generally divided into three categories:
1. oral or personal,
2. documentary, and
3. material or real.
But the Act only recognizes the first two categories. Real or material evidence is supplied by
material objects for inspection of the Court e.g., weapon of offence or stolen property.

In State of Maharashtra Vs Dr. Praful B Desai : the Supreme Court has held that under
section 3 of the Evidence Act, besides oral and documentary evidence, electronic record can
also be admitted as evidence. The Court further that evidence ruled in criminal matters could
be by way of electronic records, which would also include video-conferencing. Hence “what
is not evidence”:
1. a confession or the statement of one accused under section 342, CrPC.
2. demenour of witnesses - section 361 CrPC, Order 18 -rule 12, CPC
3. Local investigation or inspection- O 26, O 18 - CPC; sections 293, 539B, CrPC
4. Facts judicially noticeable without proof - sections 56, 57 of Act
5. Material objects section 60 of Act
In Ramdas v Seate of Maharashtra it has been held that the factual statements which find place
in the first information report but are not deposed to by the informant or any other witness
cannot be treated as evidence in the case.

Evidence of Examination-in-Chief, Cross-examination and re-examination : The “evidence”

as defined by the Indian Evidence Act is not to examination-in-chief, cross examination or re-
examination of a witness under section 137. Evidence means and include, all statements which
the court permits or requires to make before it in relation to matters of fact under enquiry.”
Once examination-in chief is conducted, the statement becomes part of the record.

Types of Evidence
Evidence can be categorised into
 Oral and Documentary evidence
 Primary and Secondary Evidence
 Original and hearsay evidence
 Presumptive or Circumstantial Evidence

Oral and Documentary evidence

Oral evidence :—The oral evidence means statement made by a witness before a court in
relation to matter of fact under inquiry. Thus the oral evidence is the evidence that is given
before the Court.
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 .

Primary and Secondary :- It may be oral or documentary.

Primary oral evidence is the evidence of what a witness has personally seen or heard or
gathered by his senses. It is called direct evidence as opposed to hearsay (section 60) As a rule
hearsay evidence is not admissible, but there are some exceptional cases of hear evidence
which are admissible. Such exceptional cases of hearsay evidence are examples secondary oral
evidence or indirect evidence (E.g sections 32, 33).

Primary documentary evidence is the evidence of the original document, (section 62), while
secondary documentary evidence is the evidence of copies etc. of document, which are
admissible under certain circumstances. (section 63 and 65).

The Best Evidence or the original evidence means primary evidence. The Best
Evidence Rule excludes secondary evidence.

Original and Hearsay or Direct and indirect

Original or Direct :- The word “direct” evidence is used in two senses
 as opposed to “hearsay evidence and
 as opposed to circumstantial evidence.

In the first sense, direct evidence is the evidence of a fact actually perceived by a witness with
his own senses or an opinion held by him, while hearsay evidence is e.g., what someone else
had told the witness to have seen or heard by him. In section 60 the word “direct” is used
in contradistinction with “hearsay” evidence.

Indirect or hearsay .—English text-writers divide evidence into

1. direct or positive evidence and
2. indirect or circumstantial evidence.

In this sense direct evidence is that which goes expressly to the very point in question and
proves it, if believed, without aid from inference or deductive reasoning.
e.g., eye-witness to a murder is direct evidence.

Circumstantial evidence does not prove the point in question directly, but establishes it only
by inference.
E.g, - if there is no eye-witness to a murder the fact that
 A had the motive to murder B
 A was seen running away with a blood-stained knife from Bs room
 B was found dead immediately after Bs cries were heard
would be circumstantial evidence as against A,

G Parshwanath v State of Karnataka.

The evidence tendered in a court of law may be either direct or circumstantial. Evidence is
said to be direct if it consists of an eye-witness on account of the facts in issue in a criminal
case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one
can, by process of intuitive reasoning, infer about the existence of facts in issue or factum
probandum;

Proof of Circumstantial Evidence

Circumstantial evidence means the evidence of circumstances and is sometimes referred to
presumptive evidence:
Eg :- A is charged with the murder of B. At the trial a witness C, on behalf of the prosecution,
gives evidence that he saw A running away from the murder place, with blood stained knife in
his hand, evidence given by C will be called circumstantial evidence.

In G Parshwanath v State of Karnataka it is stated that in dealing with circumstantial evidence

there is always a danger that conjecture or suspicion lingering on mind may take place of
proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the
Court has to be watchful and ensure that conjectures and suspicions do not take place of legal
proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency
may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail.
Therefore, many a times it is aptly said that “men may tell lies, but circumstances do not”.

 In regard to proof of primary facts, the court has to judge the evidence and decide
whether that evidence proves a particular fact is proved, the question whether that fact
leads to an inference of guilt of the accused person should be considered.
 In deciding the sufficiency of the circumstantial evidence for the purpose of conviction,
the court has to consider the total cumulative effect of all the proved facts, each one of
which reinforces the conclusion of guilt and if the combined effect of all these facts
taken together is conclusive in establishing the guilt of the accused, the conviction would
be justified even though it may be that one or more of these facts by itself or themselves
is/are not decisive.

Essentials of Circumstantial Evidence :

State Vs Shankar Prasad
Four things are essential to prove guilt by circumstantial evidence:
1. That the circumstances from which guilt is established must be fully proved;
2. That all the facts must be consistent with the hypothesis of guilt of accused;
3. That the circumstances must be of a conclusive nature and tendency;
4. That the circumstances should, to a moral certainty, actually exclude every hypothesis
except the one proposed to be proved.

In Bodh Raj v State of Jammu and Kashmir the Supreme Court held that circumstantial
evidence can be the sole basis for a conviction provided the conditions precedent before
Conviction on circumstantial evidence are fully established. The conditions are:

1. The circumstances from which the conclusion of guilt is to be drawn should

be established. The circumstances concerned “must” or “should” and not “may” be
established.
2. The facts so established should be consistent with the hypothesis of the guilt of the
accused,
3. Circumstances should be of a conclusive nature and tendency.
 4. They should exclude every possible hypothesis except the one to be proved.
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.

Hari obula Reddi Vs State of Andra Pradesh

Proof of motive and opportunity are regarded as two of the crucial tests of circumstantial
evidence. It has been held by the court that when there is no eye-witness to the occurrence
and the prosecution evidence comprises only circumstantial evidence, the motive and the
conduct of the accused are not only relevant but are of paramount importance in order to
establish his guilt. It is well settled that interested evidence is not necessarily unreliable
evidence.
Value of Circumstantial Evidence
Ordinarily circumstantial evidence cannot be regarded as satisfactory as direct evidence.
Therefore, such evidence must be used with caution. Incriminating facts and circumstances
must be incompatible with innocence of accused or guilt of any other person. Circumstances
from which an inference as to guilt of accused is drawn have to be proved beyond
reasonable doubt and have to be shown to be closely connected with principal fact sought to
be inferred from those circumstance.

Corroborative evidence – Section 156 and 157

Corroborative evidence must be taken along with substantive evidence. When evidence is
given of the fact in issue or of a relevant fact, that is called substantive evidence. There are,
however, several statements, oral and documentary, w ich are not substantive evidence. They
are not admissible by themselves, but become admissible to corroborate or support,
substantive evidence already given. Corroboration can be received even through
circumstantial evidence and not necessarily by direct evidence. Evidence to corroborate
substantive evidence is permitted under Section 156 and 157.
 proved, disproved, not proved

“Proved” - A fact is said t to be proved when, after considering the matters before it, the Court
either believes it to exist, or considers its non-existence so 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.

Introduction :
 A court after considering the evidence adduced before it and hearing arguments, comes
first to a conclusion as to the existence or non-existence of the various facts asserted or
denied by the parties and, after finding all the facts, applies the rule of law.
 If all the facts stated in the rule of law are found to exist, the right or liability which
would follow according to the rule of law is decreed or ordered by the court.
 When a court finds that facts exist, the facts are said to have been proved; if the court
finds they do not exist, they are said to be disproved.

Proof – Proved
The word “proof” seems properly to mean anything which serves, immediately or mediately,
to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of
matters of fact are generally our senses, the testimony of witnesses, documents and the like.
Mathematical Science alone admits of absolute proof. Hence, proof does not mean proof to
rigid mathematical demonstration, because that is impossible; it must mean evidence Would
induce a reasonable man to come to a conclusion. The proof of fact does not depend upon
the accuracy of statements, but upon the probability of it having existed.
 Hence, the definition of proof speaks of probability.
  Had judicial proof meant absolute proof, it would have excluded circumstantial
evidence.
prudent man ought
State Vs Shakar Prasad
The Judge should act like a prudent man has to use his own judgment and experience ang
cannot be bound by any rule except his own judicial discretion.'” The cumulative effect of the
circumstances established by evidence and the nature of these circumstances have to be taken
into consideration, and then it is to be judged whether, having regard to the ordinary course
of human conduct, it is safe to presume that the offence was committed by the accused.

Standard of Proof
The standard of proof evidently is preponderance of probabilities. Inference of
preponderance of probabilities can be drawn not only from the materials on record but also
by reference to the circumstances upon which the defendant relies.

Disproved :
The definition of “disproved” is merely a converse proposition of the definition of “proved”,

Fact ‘not Proved — Disapproved

The Supreme Court has observed that a fact which is not proved does not necessarily mean
it is a false one. Section 3 of the Evidence Act gives definitions of various words and
expressions. The expression “proved” is followed by the definition of “disapproved”. A fact
is said to be “not proved” when it is neither proved nor disapproved. The word “disapproved”
is normally said to be a false thing. It will thus be seen that a fact not proved is not necessarily
a fact disproved. A fact which is not proved may be true or may be false. A doubt lingers about
its truth. Merely because it is not proved, one may not jump to the conclusion that it is
disproved. A fact is disproved normally by the person who claims that an alleged fact is not
true. For disproving a fact the burden is always on the person who alleges that the fact is not
true.
Not Proved
It indicates a state of mind between two states of minds (proved and disproved), when one is
unable to decide how the matter precisely stands.

Difference between evidence in civil and criminal proceedings

Rules of evidence are in general the same in civil and criminal proceedings, and bind. alike
State and citizen, prosecutor and accused, plaintiff and defendant, counsel and client. There
are, however, some exceptions,
 e.g.
 the doctrine of estoppel applies to civil proceedings only
 the provisions relating to confessions (Sections 24-30), character of persons appearing
before courts (Sections 53, 54), and incompetence of parties witnesses (Section 120),
are peculiar to criminal proceedings.

Standard of Proof
In a civil case, a Judge of fact must find for the party in whose favour there is, preponderance
of proof, though the evidence is not entirely free from doubt.
In , criminal case no weight of preponderant evidence is sufficient, short of that which excludes
all reasonable doubt. Unbiased moral conviction is no sufficient foundation for a verdict of
guilty unless it is based on substantial facts leading to no other reasonable conclusion than that
of guilt.
Circumstantial evidence
In a criminal trial the degree of probability of guilt has got to be very much higher almost
amounting to a certainty—than in a civil proceeding, and, if there is the slightest reasonable or
probable chance of innocence of an accused, the benefit of it must be given to him.
In cases dependent on circumstantial evidence, the incriminating facts must be incompatible
with the innocence of the accused and incapable of explanation on any other reasonable
hypothesis than that of his guilt Circumstantial evidence not furnishing conclusive evidence
against an accused, though forming a ground for grave suspicion against him, cannot sustain a
conviction
The onus of proof
 in criminal cases never shifts to the accused, and they are under no obligation to prove
their innocence or adduce evidence in their defence or make any statement.” There
are certain exceptions like Posco cases.
 In a civil case, it is the duty of the parties to place their case before the court as they
think best, whereas in a criminal case it is the duty of the court to bring all relevant
evidence on the record and to see that justice is done.”’

Admissibility of evidence
The rules regulating the admissibility of evidence are, in general, the same in civil as in criminal
proceedings. When dealing with the serious question of the guilt or innocence of persons
charged with crime, the following general rules have been suggested for the guidance of
Tribunals:

1. The onus of proving everything essential to the establishment of the charge against the
accused lies on the prosecutor.
2. The evidence must be such as to exclude, to a moral certainty, every reasonable doubt
of the guilt of the accused.
3. In matters of doubt it is safer to acquit than to condemn, since it is better that several
guilty persons should escape than that one innocent person should suffer.
4. There must be clear and unequivocal proof of the corpus delicti (substance of the
offence).
5. The hypothesis of delinquency should be consistent with all the facts proved.”

In Chako v Joseph, the court has held that whether the proceedings be civil or criminal, the
definition of the expression “proved” in section 3 must apply with equal force. The earlier
decisions only administer a rule of caution that in a criminal case a higher degree of probability
must be insisted before disputed questions of facts are held to be proved. Hence in a criminal
trial persuasion of guilt must amount to such a moral certainty as convinces the minds of the
tribunal as reasonable men beyond all reasonable doubt.
In Razik Ram v Jaswant Singh Chouhan :- the court held that there is no difference between
the general rules of evidence in civil and criminal cases, and the definition of “proved” in
section 3 of the Evidence Act does not draw a distinction between civil and criminal cases.
Nor does this definition insist on perfect proof because absolute certainty amounting to
demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring
proof prescribed by the definition is that of a person of prudence and practical good sense.

Section -5 : 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.

Introduction :-
Section 5 of the Evidence Act deals with the right to produce evidence in any suit or
proceedings, relating to the existence or non-existence of every fact in issue, and also to prove
such other facts which may be declared relevant to the fact in issue, by virtue of the provisions
contained in Section 5 to 55. This section restricts the investigation made by Courts within the
hounds prescribed by general convenience.

Evidence of facts in issue and relevant facts only :-

 Section 3 says that one is relevant to another when the one is connected with the other
in any of the ways referred to in this chapter.
 Relevancy is thus fully explained in sections 6 to 11.
  These Sections enumerate specifically the different instances of the connection
between cause and effect which occur most frequently in judicial proceedings.
 They are design, worded very widely, and in such a way as to overlap each other. The
object of this Chapter is to point out in what cases collateral facts are relevan,

Object : The object of this section is to restrict the investigation made by courts within the
bounds prescribed by general convenience.

Principle :-- Of no fact can evidence be given unless it be either a fact in issue or one declared
relevant under the following sections. Thus evidence of all collateral facts, which are incapable
of affording any reasonable presumption as to the principal matters in dispute, is excluded to
save public time.

Balaji Gunthu Dhule Vs State of Maharashtra :-

Where the entire evidence of eyewitnesses was not accepted by the High Cour, it was held by
Supreme Court that the accused cannot be convicted for an offence under section 302 IPC
merely on the basis of the post-mortem report. The post-mortem report should be in
corroboration with the evidence of eyewitnesses and cannot be an evidence sufficient to reach
the conclusion for convicting the accused.’

Facts ... declared to be relevant :- The relevant facts are all those facts which are in the eye of
the law so connected with or related to the facts in issue that they render the latter probable
or improbable.
And of no others :-
 The section excludes everything which is not covered by the purview of some other
section which follows in the Statute.
 There must be a specific provision before facts can be treated as relevant and facts must
also be proved as laid down in the Act.
 Anyone who wants to give evidence on a particular fact must show that it is admissible
under someone or other of the following sections.
  The words “and of no others” impliedly impose a duty on the court to exclude evidence
of irrelevant facts, irrespective of objections by the parties.
 In criminal proceedings this duty is expressly imposed by the Code of Criminal
Procedure, section 298 - Previous conviction or acquittal how proved).
 In civil proceedings, see the Code of Civil Procedure, 1908, O XIII, rule 3. - Rejection
of irrelevant or inadmissible documents.
Explanation.—The Explanation appended to the section prohibits a party from claiming any
relief upon facts or documents not stated or referred to by him in his pleadings. Illustration
(b) elucidates the meaning of the Explanation.

Janak Dulari Devi Vs Kapildeo Rai

When what is pleaded is not proved, or what is stated in the evidence is contrary to the
pleadings, the dictum that no amount of evidence, howsoever cogent, can be relied upon if it
is contrary to the pleadings, would apply.

Section 57 Admissibility of evidence——The court is to decide the question of admissibility of

evidence. It should be decided as it arises and should not be reserved until judgment in the
case is given. The moment a witness commences giving evidence which is inadmissible, he
should be stopped by the court. A party objecting to a question must do so as soon as it is
stated and before the answer is given. When an irrelevant document is tendered an objection
should be made at that rime. If it is not taken in time, it is considered to be waived.

Chimnaji Govind Gidbole Vs Dinakar Govind Gidbole :-

Where no objection is taken in the court of first instance to the reception of a document in
evidence, it is not within the province of the appellate court to raise or recognise it in appeal.

Nathubhai Vs Chhotubhai
The Gujarat High Court has held that an objection that a piece of evidence which was
considered by the trial judge was irrelevant can be taken for the first time in appeal. If the
evidence is irrelevant the consent of parties cannot make it relevant.’
Magraj Patodia Vs R.K Brila
The fact that a document was procured by improper or even illegal means will not be a bar to
its admissibility if it is relevant and its genuineness proved. But while examining the proof
given as to its genuineness the circumstances under which it came to be produced into court
have to be taken into consideration.

Conclusion :-- This section excludes everything not covered by the purview of some other
succeeding section. The last four words of the section “and of no others ” preclude a party
from proving any facts not in issue or not declared relevant by any of the remaining sections
of this Chapter. To establish the relevancy of any fact, it must be shown that it is a fact in issue
or fact such as is declared to be relevant. Evidence is to be confined strictly to the issue.

Section 6: Relevancy of facts forming part of same transaction

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.

Introduction : -
Under the definition of the word “ Relevant” in Section 3 – one fact said to be relevant to
another when one is connected with the other in any of the way 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 described in Sections 6 to 55 which deal with relevant facts. Facts not
themselves in issue may affect the probability of the existence of facts Issue and be used as the
foundation of inferences respecting them: such facts described in the Act as relevant facts,
Facts relevant to the issue have been arranged in the following manner: which are

i. Things Connected with the fact in issue as part of the same transaction, occasion, cause,
effect, motive, conduct - Sections 6 to 16
ii. Things said viz., admissions, confessions -Sections 17 to 31
iii. Statements by persons who cannot be called as witnesses - Sections 32- 33
iv. Statements under special circumstances -Sections 34 and 35
 v. Decisions in other cases - Sections 40 to 44
vi. Opinions about fact in issue - Sections 45 to 51
vii. Character and reputation of parties concerned - Sections 52 to 55

Doctrine of Res Gestae.

res gestae – is a Latin word which means a fact, a transaction, an event, things done: the subject
matter. The expression Res-gestae means as including everything that may be fairly considered
and incident of the evet under discussion.

Section 6 admits those facts the admissibility of which comes under the technical expression
res gestae i.e. the things done including words spoken in the course of a transaction, but such
facts must "form part of the same transaction".

 If facts form part of the transaction which is the subject of enquiry, manifestly evidence
of them ought not to be excluded.
 The question is whether they do form part or are too remote to be considered really
part of the transaction before the court.
 A transaction is a group of facts so connected together as to be referred to by a single
legal name, as a crime, a contract, a wrong or any other subject of inquiry which may
be in issue.
 Roughly, a transaction may be described as any physical act, or a series of connected
physical acts, together with the words accompanying such act or acts.
 Every fact which is part of the same transaction as the fact in issue is deemed to be
relevant to the fact in issue although it may not be actually in issue, and although if it
were not part of the same transaction it might be excluded as hearsay.
 Some times the acts done at different places and times may form part of the same
transaction. Thus, a transaction consists both of the physical acts and the words
accompanying such physical acts, whether spoken by the person doing such acts, by the
person to whom they were done or any other person or persons. Such words are
admissible in evidence as parts of a transaction
Nasir Din Vs Crown
Illustrations
a. A is accused of the murder of B by beating him. Whatever was said or done by A or
B or the by-standers at the beating, or so shortly before or after it as to form part of
the transaction, is a relevant
The expression standers used in illustration (a) means the persons who are present at the time
of the occurrence and not those who gather on the spot after the occurrence. The remarks
made by persons other than the eye-witnesses could only he hearsay because they must have
picked up the news from others.

Scope and Ambit of Section 6

 The purpose of incorporating section 6 in the Act is to complete the missing links in
the chain of evidence of the solitary witness.
 It is an exception to the general rule where under the hearsay evidence becomes
admissible.
 But for bringing such hearsay evidence within the provisions of section 6, what is
required to be established is that
o it must be almost coexistent with the acts and
o there should not be an interval which would allow fabrication.
 The statements sought to be admitted, therefore, as forming part of res gestae, mut have
been made contemporaneously with the acts or immediately thereafter.

Javed Akam v State of Chhattisgarh, the Supreme Court has held that the section 6 of the
Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible.
The test for applying the rule of res gestae is that the statement should be spontaneous and
should form part of the same transaction ruling out any possibility of concoction.

Parts of the same Transaction

 Where the transaction consists of different acts, in order that the chain of such acts may
constitute the same transaction they must be connected together by proximity of time,
proximity or unity of place, continuity of action and community of purpose or design.
  Where several offences form one transaction the one is evidence to show the character
of other.
 Thus, when robbery and murder form one transaction, possession of stolen property
which is presumptive evidence of robbery would be presumptive evidence of murder
as well.

Statements Admissible as Part of the Transaction

Two requisites are necessary for reception of statements as part of same transaction, viz,
 statements must be made during the transaction and
 they must be spontaneous so as to exclude the possibility of being fabricated. First
Information Report under section 154, of the Cr. P.C. may be admissible as part of res
gestae
 Acts and declarations accompanying the transaction or the facts in issue are treated as
res geszse and admitted in evidence. 25

Statements under Section 6 are Admitted as Original Evidence

They are not hearsay because "in such cases it is the act which creates the hearsay and not the
hearsay the act". It is submitted that these statements are substantive evidence, ie, evidence of
the truth of the matter stated. Such statements may be also admissible under sections 157 or
155 to corroborate or contradict the testimony of the matter.

A statement of a person who had come to the spot of murder after the occurrence to the effect
that the persons present there were saying that the accused had killed the deceased without
indicating that they had actually witnessed the murder, is only hearsay and cannot be
admissible under section 6.

The following conditions have to be fulfilled in order to make statements admissible under
Section 6 of the Indian Evidence Act, 1872.
i. The statement must explain, elucidate or characterise the incident in some manner.
ii. The statement must be spontaneous or contemporaneous, but not a mere narrative of
a completed past event.
 iii. The statement must be a statement of fact but not a statement of opinion.
iv. The statement must have been made either by a participant in the transaction or by a
person who has himself witnessed the transaction; and
v. The statement made by the bystander would be relevant only if it is shown that he was
present at the time of the happening of the event and witnessed the same.

Gajjan Singh Vs State of Haryana

Where rape was committed on a married woman and the prosecutor immediately narrated
the entire occurrence to the mother-in-law evidence was admissible under section 6 of the
Evidence Act.

Facts forming part of same transaction:-

Chain Mahto Vs Emperor
Statements of bystanders witnessing a transaction are relevant if they are made while the
transaction is in progress or so shortly before or after it as to form part of the same transaction.
Where A was tried for the murder of B by shooting him, the facts that the person, then in the
room, saw a man with gun in his hand pass a window opening into the room where B was shot
and thereupon exclaimed "there's Butcher” (a name by which A was known) where held
relevant.
Bhairon Singh Vs State of MP
A husband, his e the murder of his wife. She cried out for help as soon as she was pushed
into the mom. Her children who were playing outside in the verandah exclaimed at the same
me that their mother was being killed. The exclamations of children were receive through the
evidence of persons who heard them.

Rutten Vs Regina the caller a woman giving her address in distress and requested the
telephone operator to connect the police but call could not be 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 a
whatever she said was held to be res gestae.
In R v. Fowkes, was charged with the murder of 'X' by shooting him through a window ‘A' and
‘B' were sitting in the room with 'X', when a face appeared at the window and the fatal shot
was fired. Both 'A' and ‘B' were allowed to depose that immediately before the shot was fired,
'A' shouted "There's F". This has been admitted under ‘res gestae’.

In Uttam Singh v. State of M.P the child witness was steeping with the deceased father at the
relevant time of incident and was awakened by the sound of the fatal blow of the axe on the
neck of the deceased. Seeing it, the child shouted to his mother for help by naming the
accused as assailant. On hearing the sound the mother and sisters of the child and other
witnesses gathered at spot. it has been held that the evidence is admissible as a part of the
same transaction as res gestae as such shout being natural and probable in the facts of the
case.

In Rabindra Nath Moorthy Naidu v. State of West Bengal , Rabindra Nath Moorthy Naidu
stabbed Paresh Pramanik and escaped. Some people collected there and the victim narrated
about the incident and about the accused. It has been held that the evidence pe admitted as
part of res gestae as the victim has spoken while the knife was still stuck on his back to people
collected at the scene is a continuity of his conduct which is continuity of the incident itself.

Facts not so connected as to form part of same transaction

R. v. Bedingfied :- a woman with a throat cut came out of the room sudden y 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.

R Vs Christie :- there was an indecent assault ‘upon a young boy. Soon after the incident the
boy made certain statements to his mother narrating the offence and the man was assaulted
him. Lord Atkinson has held that the evidence of the statement was inadmissible because the
statement made by the boy was so separated by time and circumstances from the actual
commission of the crime
Vasa Chandra Sekar Vs Ponna Satyanarayana
In a case involving murder by a man of his wife and daughter, evidence was offered to show
that the wife's father received a phone call from the father of the accused that his son had
caused the deaths in question. This was held to be not relevant under section 6 because there
was nothing to show that the communication had taken place soon after the crime as the form
a part of the same transaction."

Bhairon Singh Vs State of MP

The prosecution of the husband was for torture of his wife for non-fulfilment of his demand.
The witnesses testified to what the deceased told them about torture and harassment. The
court said such deposition had no connection with any of the circumstances of the transaction
which resulted in her death. Their evidence was also not admissible under section 32.

In Gulam v. R, 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.
Section 7 :- Facts which are the occasion, cause or effect of
facts in issue

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.

Introduction :-
Section 6 dealt with facts which formed part of the same transaction. Section 7 embraces a
larger area and provides for the admission of several classes of facts, which though not possibly
forming part of the transaction are yet connected with it in particular modes and are hence
relevant, when the transaction itself is under inquiry. These five modes of connection are:

i. The facts as being occasion of the fact in issue or of relevant fact.

ii. The facts as being cause of the fact in issue or of relevant fact
iii. Facts as being their effect.
iv. Facts as giving opportunity for their occurrence.
v. Facts as constituting the state or things under which they happeneg,

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.
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 net that some living being
was cut into pieces or at least severely injured there.

Occasion, and opportunity. The elements are so connected together that it would be
convenient to take them together,
J 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) J 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, 2024
(iv) J asked K to come on the 19th May ;
(v) K came and stayed with J on the 19th 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.

Opportunity for their Occurrence

No deed can be done without an opportunity. Exclusive opportunity need not be show® The
proof of opportunity negatives a number of hypothesis and reduces the number of persons
who might have possibly committed the crime to a limited number. However, mere
opportunity is not enough. There can be no crime without opportunity, but there is a wide
gulf to be bridged over by evidence between opportunity and commission.

Cause and Effect

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
Sidik Sumar Vs Emperor - 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
Chandra Gopal Vs state - 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.
Nirmala Vs Ashu Ram -Tape Recorded Statement
Tape recorded statement being a recorded fact regarding a relevant conversation is admissible
under this section.”
Vikram Singh v State of Punjab
If an electronic record is used as primary evidence the same is admissible in evidence, without
compliance with the conditions in section 65B. The tape recorded conversation was not
secondary evidence which required certificate under section 65B, since it was the original
cassette by which ransom call was tape-recorded. The conversation recorded by the
complainant contains ransom calls was relevant under section 7.
Manish Dixit Vs State of Rajasthan - Circumstantial Evidence of Bloodstains
Bloodstain was noted by the Forensic Science Laboratory on the motorcycle seized by the
police pursuant to the information received from A-1 (Sharad Dhakar) during his
interrogation. The said bloodstain was found to be of “O” group (The blood group of the
deceased was also “O”). This circumstance though established by the prosecution is not
decisive enough to point to the involvement of that accused in the murder of the deceased. If
there were other circumstances, apart from recovery of some jewellery belonging to the
deceased from the possession of this accused, perhaps the aforesaid circumstance relating to
the bloodstain found on the motorcycle would have lent support to an inference against him.
 Section 8 - Motive, preparation and previous or subsequent
conduct
Section 8 :- Motive, preparation and previous or subsequent conduct.—Any fact is relevant
which shows or constitutes a motive or preparation for any fact in issue 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.

Principle :- Under this section the motive which induces a party to do an act, or the preparation
which he makes in its commission, will be taken into account. Evidence of motive or
preparation becomes important when a case depends upon circumstantial evidence only.

 Section 8 is wider than section 7 in its application. Under this section motive,
preparation and conduct are declared to be relevant facts.
 Motive - There is hardly any action without a motive and it is said that an action without
a motive would be an effect without a cause. Often it is important to find out whether
the accused had any interest or motive in committing the offence. Hence, motive is
relevant.
  Preparation is also relevant. Premeditated action must necessarily be preceded not only
by impelling motives but also by appropriate preparation. Preparation is an instance of
previous conduct of the party which influences the facts in issue or relevant facts.
 Evidence of motive or preparation assumes significance when a case depends upon
circumstantial evidence only.
 Conduct previous or subsequent of either of the party or his agent is also relevant,
under this section.

Motive :- Motive is that which moves a man to do a particular act. There can be no action
without a motive, which must exist for every voluntary act.
 Motive in the correct sense is the emotion supposed to have led to the act. It is often
proved by the conduct of a person.
 The ordinary feelings, passions and propensities under which parties act, are facts
known by observation and experience; and they are so uniform in their operation that
a conclusion may be safely drawn that, if a party acts in a particular manner, he does
so under the influence of a particular motive’.
 Previous threats, previous altercations, or previous litigations between parties are
admitted to show motive.
Illustrations (a) And (b) refer to Motive
(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.
 Illustration (a) refers to a motive of a crime.
 Illustration (b) refers to motive in a civil matter

State of Punjab Vs Sucha Singh

The mere existence of motive is by itself not an incriminating circumstance. Motive,
 however strong, cannot take place of proof. The motive for commission of an offence is
of particular importance only in cases of purely circumstantial evidence for, in such cases,
motive itself would be a circumstance which the court would have to consider. However,
absence of motive is not sufficient to disregard circumstantial evidence.

Preparation :- Preparation consists in devising or arranging the means or measures necessary

for the commission of a crime. Preparations on the part of the accused
 to accomplish the crime charged, or
 to prevent its discovery, or
 to aid his escape, or
 to avert suspicion from himself
are relevant on the question of his guilt.

Illustrations (c) And (d) refer to preparation.

(c) A is tried for the murder of B by poison. The fact that, before the death of B, A procured
poison similar to that which was administered to B, is relevant.

(d) The question is, whether a certain document is the will of A. The facts that, not long
before, the date of the alleged will, A made inquiry into matters to which the provisions of the
alleged will relate; that he consulted vakils in reference to making the will, and that he caused
drafts of other wills to be prepared, of which he did not approve, are relevant.
 Illustration (c) refers to a preparation of a crime.
 Illustration (d) refers to preparation in a civil matter.

Premeditated crime must necessarily be preceded by appropriate preparation. The common

instances are of possession of poison or lethal weapons, etc., without reasonable excuse.
Intention, preparation and attempt to do an offence are the three stages preceding the
commission of a crime.
Mere preparation is not punishable under the Penal Code except under certain special
circumstances
  Sections 122 (collecting arms etc.) with the intention of waging war against Government
of India
 Section 26 (committing depredation, destroying territories of power at peace with the
Government of India
 Sections 233-235 and 257, IPC making or selling or being in possession of instruments
for counterfeiting of coins or Government stamps;
 Sections 242, 243, 254 and 266, IPC possession of counterfeit coins, Government
stamps, false weigh, or measures;
 Section 344, IPC making preparation to commit dacoity are punishable.!

Conduct of any party :- The conduct of any party or his agent in reference, whether previous
or subsequent must have reference to the suit or proceeding or to facts in issue or facts relevant
to the suit or proceeding and must influence or be influenced by facts in issue or relevant facts.
Conduct made relevant by section 8 is conduct which is directly and immediately influenced
by a fact in issue or relevant fact.

 The production of article, by an accused person is relevant as evidence of conduct.

 Statements accompanying or explaining conduct are also relevant as part of the conduct
itself.
 Conversation, over telephone for settling details for passing bribe-money was recorded
by secret instruments.
This was held to be evidence of conduct.
Under section 8(2) the following facts are relevant in a criminal inquiry:
a) Accused’s conduct shortly before or after the commission of offence which
influenced or was influenced by his commission;
b) Statements made by him which accompany and explain such conduct; and
c) Statement made to him or in his presence and hearing which affects his conduct.

Illustration
(d) The question is, whether a certain document is the will of A. The facts that, not long
before, the date of the alleged will, A made inquiry into matters to which the provisions of the
alleged will relate; that he consulted vakils in reference to making the will, and that he caused
drafts of other wills to be prepared, of which he did not approve, are relevant.

(e) A is accused of a crime. The facts that, either before, or at the time of, or after the alleged
crime, A provided evidence which would tend to give to the facts of the case an appearance
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.

 Illustration (d) shows previous conduct;

 Illustration (e) is an example of previous and subsequent conduct of accused

Explanation 1 :- Conduct accompanying or explaining statements:- Under section 8 conduct

of a party is relevant. According to the first explanation the word conduct does not include
statements unless those statements accompany and explain acts other than statements. Mere
statements as distinguished from acts do not constitute conduct. Conduct may include
statements as well as acts.

Queen Empress Vs Abdullah :-

Statements accompanying facts are part of the res gestae just as are the acts themselves. They
are known as verbal acts. There may be a case in which a person whose conduct is in dispute
mixes up together action and statement. For instance a person is seen running down a street
in a wounded condition calling out the name of the assailant and the circumstances under
which injuries were inflicted. Here what the person says and what he does may be proved as
a whole.

Explanation 2 - Statements Affecting Conduct

The conduct must be such as has a close nexus with a fact in issue or a relevant fact.
 The conduct of the accused in this case pointing out to the police the place of hiding
the weapon of offence or articles connected with it was held to be a relevant conduct
whether it was contemporaneous with the event or otherwise.’
  The exhumation of the dead body from the place of burial as pointed out by the
accused was held be a relevant conduct even if it was not covered by section 27 because
no statemen, was recorded.
 The name and address of the shop had become known to the police from the packets
of seized articles; this fact was pointed out by the accused; it was nor relevant under
section 27.

Hadu Vs State :- Silence Amounting to Conduct

In some cases silence or keeping quiet may amount to conduct. An accused has a right to
remain silent if he wishes. Hence no presumption of guilt arises by reason of the silence of
the accused. Thus, the maxim qui faci consentire (silence gives consent) must be applied very
cautiously.

Manish Dixit Vs State of Rajasthan :-

Concatenation (a series of interconnected things)of Full Chain
The Supreme Court has observed that absconding by itself need not necessarily lead to an
inference of culpable mind against the absconder. The disappearance of A-2 from the locality
was contemporaneous with the apprehension of A-1. Even after resorting to legal measures to
trace out A-2 he remained underground until he was caught unawares.
 Section 9 - Facts necessary to explain or introduce relevant
facts

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.

Principle
Section 7 deals with the admissibility of facts which are the occasion, cause or effect of facts
in issue. Section 9, on the other hand, is concerned with the admissibility of facts which are
necessary to explain a fact in issue or relevant fact. The section deals with that kind of evidence
which if considered separately and distinct from other evidence would be irrelevant; but if it
is taken into consideration in connection with some other facts, proved in the case it explains
and throws light upon them.
The section makes relevant facts:
a. which are necessary to explain or introduce a fact in issue or relevant fact; or
b. which support or rebut an inference suggested by a fact in issue or relevant fact; or
c. which establish the identity of a person or a thing whose identity is relevant;
d. which fix the time or place at which any fact in issue or relevant fact has occurred; or
e. which show the relations of the parties by whom any fact in issue or relevant fact was
transacted, in ‘so far as they are necessary for that purpose.
This section makes admissible facts which are necessary to explain or introduce relevant facts,
such as place, name, date, identity of parties, circumstances and relations of the parties. Thus,
evidence of other offences committed by the accused is admitted in order to establish his
identity or to corroborate the testimony of a witness in a material particular. Identity can also
be established by technical evidence like medical report

Introductory or Explanatory 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.

Before questioning a witness, as to the main fact, it is generally desirable and some time
Necessary to question him about some preliminary facts. Such preliminary facts may have no
bearing on the facts in issue; but since they lead to the main fact they are made admissible
under this section so as to make the main fact more easily comprehensible
(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 fact 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.

 Illustrations (a) and (b) are examples of introductory fact.

 Illustrations (d) and (e) indicate that explanatory statements

are admitted under this section irrespective of the fact whether the person against whom it is
made heard it or was present when it was made.
Facts which Support or Rebut an Inference Suggested by a Fact in Issue or Relevant Fact
This part of the section is merely a paraphrase of section 11. Sections 9 and 11 read with
section 21 amply justify the Court In admitting all previous statements made by the accused
which had bearing upon his guilt, subject to sections 25 and 26 and provided they are Not
self-serving. These sections are not controlled by the Criminal Procedure Code. They ate
corroborative evidence under section 157.

 Market rate and rental value of neighboring lands are admissible to determine the value
of the land that is being acquired.

Facts Establishing Identity of thing or Person

Questions as to the identity may arise in two ways:
1. a person’s identity with an ascertained person as in the well-known Bhowal Sanyasi
case, or
2. his identity as the doer of a particular act,
a. E.g., murder in a criminal trial or
b. executing a will in a civil proceeding

As per section 9 of the Evidence Act, facts which establish the identity of an accused
are relevant. Identification parade belongs to investigation stage and if adequate precautions
are ensured, the evidence with regard to the test identification parade may be used by the
court for the purpose of corroboration. The purpose of test identification is to test and
strengthen trustworthiness of the substantive evidence of a witness in court. It is for this reason
that test identification parade is held under the supervision of a Magistrate to eliminate any
suspicion or unfairness and to reduce the chances of testimonial error as the Magistrate is
expected to take all possible precautions.

Identity of any thing —A superimposed photograph of the deceased of the skeleton of a human
body was held admissible by the Supreme Court to prove the fact that the skeleton was that
of the deceased.

Varun Chaudhary Vs State of Rajasthan :- Identity of Motor Vehicle.—In order to prove that
the recovered motor cycle was used in the offence, the prosecution has to show that the tyre
marks found the place of offence were that of the recovered motor cycle. For that purpose
the tyre marks have to be lifted from the place and compared with the marks of the recovered
motor cycle.

Identity of Accused: Test Identification (TT) Parade.—One of the methods of establishing the
identity of the accused is “test identification parade”. Its evidence is received under this
section. The idea of the parade is to test the veracity of witness on the question of his capability
to identify, from among several persons made to stand in a queue, an unknown person whom
the witness had seen at the time of the occurrence.” It is only an aid to investigation. The
practice is not borne out

Identity of Person to Establish Parentage

In the case of Nirmaljit Kaur v State of Punjab , the dispute between the parties related to the
identity of the child. According to the petitioner the child was not his, whereas the respondent
contended that the child was his daughter. After hearing both the parties court directed that
the issue should be resolved scientifically, and DNA test will be better for the same.
Identification by Photograph
Lakshmi Rai Shetty Vs State of Tamil Nadu It has been held by the Supreme Court that in
certain circumstances identification of the accused through photograph can serve the same
purpose as a test identification parade. The Apex Court recognised this possibility by looking
at the practices of Interpol and other crime detecting agencies for identification of criminals
engaged in drug trafficking, narcotics and other international crimes. In such cases it is a
common practice to resort to identification through photographs.

Test Identification Parades of Suspects

 The identification tests do not constitute substantive evidence.
 They are primarily meant for the purpose of helping the investigating agency with an
assurance that their progress with investigation into the offence is proceeding on the
right lines.
 The identification can only be used as corroborative of the statement in court.
 The necessity for holding an identification parade can arise only when the accused are
not previously known to the witnesses.
 The whole idea of a test identification parade is that witnesses who claim to have seen
the culprits at the time of occurrence are to identify them from the midst of other
persons without any aid or any other source, The test is done to check upon their
veracity.
 In other words, the main object of holding an identification parade, during the
investigation stage, is to test the memory of the witnesses based upon first impression
and also to enable the prosecution to decide whether all or any of them could be cited
as eye-witnesses of the crime.
 It is desirable that a test identification parade should be conducted as soon as possible
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.”
State of Uttar Pradesh Vs Sukhipal Singh
Whether test identification parade is necessary or not would depend on the facy circumstances
of each case, The purpose of test identification parade is to test the veracity of the witness and
his capacity to identify the unknown persons whom the witness must have seen only once.

Vijay v State of Madhya Pradesh, The apex court has observed that the test identification
parade is not a substantive piece of evidence, yet it may be used for the purpose of
corroboration, for believing that a person bought before the court is the real person involved
in the commission of the crime. However, the test identification parade, even if held, Cannot
be considered in all the cases as trustworthy evidence on which the conviction of the can be
sustained.

Kanta Prasad Vs Delhi Administration

Where an accused is not previously known to the identifying witnesses as in case of dacoity,
identification parades are generally held. If the accused is already known to the witness
identification by the witness is a farce. The absence of Test Identification Parade will vitiate
the case of the prosecution where the accused and witness were known to each other. Failure
to hold identification parade does not make the identification in court inadmissible yet the
omission considerably affects the weight to be attached to such identification.

Anukush Maruti Shinde Vs State of Maharashtra

TI parades are not primarily meant for the court. They are meant for investigation purposes.
The object of conducting TI parade is two-fold. First is to enable the witness 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 suspect is the real person whom witnesses had seen in connection with the said
occurrence.

State of Maharashtra v Syed Umar Sayed Abbas :- the incident of firing occurred jn the
circumstances wherein much time was not available for the eye-witnesses to clearly see the
accused. In such a situation, it was of much more importance that the Test Identification
Parades were to be conducted without any delay. The first Test Identification Parade was held
after about 1 month of the incident. The second Test Identification Parade was conducted
after more than a year of the incident. Even if it is taken into account that the accused was
arrested after a year and within one month thereafter the test Identification Parade was
conducted, still ix is highly doubtful whether the eye-witnesses could have remembered the
faces of the accused after such a long period. Though the incident took place in broad daylight,
the time for which the eyewitnesses Could see the accused was not sufficient for them to
observe the distinguishing features of the accused, especially because there was a commotion
created after the firing and everyone was running to shelter themselves from the firing. The
testimonies of the witnesses suffer various infirmities and contradictions and the Test
Identification Parade was not conducted properly and was delayed. Therefore, the accused
person is being given the benefit of doubt as their identity had not been clearly established by
the prosecution.
 Section10 - Evidence of Common Intention

SECTION 10: Things said or done by conspirator in reference to common design. —Where
there is reasonable round to believe that two of 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 thar any such person was a party to it.

Introduction :-
This section refers to things said or done by conspirators in reference to the common design.
To attract the applicability of this section, the court must have reasonable ground to believe
that two or more persons had conspired together for committing an offence, and then the
evidence of action or statement made by one of the accused could be used as evidence against
the other

Section 10 makes the following facts relevant in proof of conspiracy:

(1) there is a reasonable ground to believe that:
(a) two or more persons have
(b) conspired together to commit an offence or an actionable wrong (2) anything
said, done or written by any one of such persons
(3) in reference to their common intention,
(4) after the time when such intention was first entertained by any one of them
(5) is relevant:
(a) as against each of the persons believed to be so conspiring,
(b) for the purpose of proving the existence of the conspiracy and
(c) for the purpose of showing that any such person was a party to it.
S Srul Raj Vs State of Tamil Nadu
However, where prosecution fails to substantiate the allegation of conspiracy against an
accused, that accused cannot be called a co-conspirator so as to attract the provisions of section
10 of the Evidence Act, for the purposes of roping in the other accused persons.

Reasonable ground to believe :- Kehar Singh Vs State Delhi Admn The fact that the accused
and the person who shot dead the deceased were together at a social gathering sometime
before the shooting and having isolated themselves at the house top, were seen talking and
avoided questions as to what they were talking about, was held by the Supreme Court to be
sufficient to create a reason to believe that they might be conspiring about something. The
accused was accordingly sentenced to death along with those who actually caused death though
he was no where there at the place of shooting.'*

Common intention [Effect when common intention ceases|—These words signify a common
intention existing at the time when the thing was said, done or written by one of them. Things
said, done or written while the conspiracy was on foot are relevant as evidence of the common
intention, once reasonable ground has been shown to believe in its existence.
Mohd.Ajmal Amir Kasab Vs State of Maharashtra
In the Bombay terror attack case, the appellant was apprehended while he was on a killing
spree in execution of the objects of the conspiracy. The transcripts of the phone conversation
of the other terrorists, who were associates of the appellant and their foreign collaborators,
related to a time when the speakers were not only free by were actively involved in trying to
fulfil the objects of their conspiracy. Therefore, it was held by Supreme Court that the
transcripts were by no means any confessional statements made under arrest and they were
fully covered by the provisions of section 10 of the Indian Evidence Act for the purposes of
proving the factum of conspiracy amongst them."

Confession :- A confession by a conspirator made to a Magistrate after arrest disclosing the

existence of a conspiracy, its objects and the names of its members, is not admissible under
this section against the co-conspirators jointly tried with him, but only under section 30. When
a person accused along with others voluntarily comes into the witness-box and deposes as a
witness for defence: he is in the same position as an ordinary witness, and is, therefore, subject
to cross- examination.

Tribhuvan Nath Vs State of Maharashtra

Once his evidence as a witness for the defence is on record and it speaks of a communication
between one conspirator and the other during the existence of the conspiracy and relates to
its implementation, it becomes relevant.
Agreement but not direct meeting necessary :- Barindra Kumar Ghose Vs Emperor :-Though
to establish the charge of conspiracy there must be agreement, there need not be proof of
direct meeting or combination, nor need the parties be brought into each other's presence;
the agreement may be inferred from circumstances raising a presumption of a common
concerted plan to carry out the unlawful design. So again it is not necessary that all should
have joined in the scheme from the first; those who come in at a later stage are equally guilty,
provided the agreement be proved.

State of TamilNadu Vs Nalini

From the evidence of conspiracy to assassinate the Prime Minister of India, Mr Rajiv Gandhi,
the court said that it could not be inferred that the conspirators intended to disrupt the
sovereignty of India.
State of Maharastra Vs Damu Gopinath Shinde - Where four accused persons were alleged
to have conspired together to commit offences of abduction and murder of children, a
confession by one of them in respect of what the other accused persons did in reference to
their common intention was admissible as evidence as much against the confessing accused
as against the others.
 Section 11. When facts not otherwise relevant become relevant.
Section 11. When facts not otherwise relevant become relevant – Facts not otherwise relevant
are relevant–
1. if they are inconsistent with any fact in issue or relevant fact;
2. if by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable.

Introduction:-
Section 11 of the Evidence Act lays down that facts which are not relevant under any of the
Sections 6 to 10 and Sections 12 to 55 in the chapter on ‘Relevancy of Facts’ are relevant
under this section.

The purpose and object of a criminal trial is to prove or disprove a particular charge by
evidence and therefore, any fact which either disproves or tends to disprove the alleged charge,
is relevant

Section 11 makes the facts not otherwise relevant as relevant if:

1. They are inconsistent with fact in issue or relevant facts; or
2. Which makes the existence of fact in issue or relevant fact highly probable or
improbable.
The tests adopted by the section are
(1) inconsistency and
(2) high probability or improbability.
The following are the typical examples of facts that are relevant under this section.
1. Alibi or the plea that the accused could not have committed the crime because he was
elsewhere. (Illustration (a))
2. on-access (ability to enter) in cases of questions of paternity where the man says that he
could not have been the father either because he was impotent or he was at a different
place at the time the child was conceived.
3. Self-inflicted harm i.e., the plea that, for instance, the alleged victim of murder, in fact,
committed suicide.
 4. The third person was guilty and not the accused.
5. The man supposed to have been murdered by the accused is alive.

Inconsistent with any fact in issue —Plea of Alibi:- The usual theory of essential inconsistency
is that a certain fact cannot co-exist with the doing of the act in question, and, therefore, that
if that fact is true of a person of whom the act is alleged, it is impossible that he should have
done the act. Thus the fact of presence
elsewhere is essentially inconsistent with the presence at the place and time alleged, and
therefore with personal participation in the act (theory of alibi).

Plea of Alibi
The word ‘alibi”, a Latin expression means and implies in common acceptation “elsewhere”:
it is a defence based on the physical impossibility of participation in a crime by an accused in
placing the latter in a location other than the scene of crime at the relevant time, shortly put,
the presence of the accused elsewhere when an offence was committed.

Dudh Nath Pandey v State of Uttar Pradesh The Supreme Court stated that the plea of alibi
postulates, the physical impossibility of the presence of the accused at the scene of offence by
reason of his presence at another place. The plea can therefore succeed only if it is shown
that the accused was so far away at the relevant time that he could not be present at the place
where the crime was committed.

Subhash Chand v State of Rajasthan, it was observed that literal meaning of alibi is
“elsewhere”. In law this term is used to express that defence in a criminal prosecution, where
the party-accused, in order to prove that he could not have committed the crime charged
against him, offers evidence that he was in a different place at that time. The plea taken should
be capable of meaning that having regard to the time and place when and where he is alleged
to have committed the offence, he could not have been present.
Darshan Singh v State of Punjab :- The plea of alibi is not one of the General exceptions
contained in Chapter IV of IPC. It is a rule of evidence recognized under section 11 of the
Evidence Act. However, plea of alibi taken by the defence is required to be proved only after
Sakharam vs. State of M.P
The Supreme Court held that the failure of the accused to substantiate the plea of alibi does
not ipso facto create a presumption against him

In Vijay Pal vs. Delhi (NCT ) :- the Apex Court stated that the plea of alibi can succeed only
when it is shown that the accused was so far away at the relevant time that he could not be
present at the place where the crime was committed. The burden of proving this fact is rather
heavy and the accused should be able to establish this plea with absolute certainty, leaving no
room for any doubt about the plea.

Highly probable or improbable:-

The word ‘highly probable’ means more than the normal standard of probability. These
words point out that the connection between the facts in issue and the collateral facts sought
to be proved must be so mediate as to render the co-existence of the two highly probable.
 Whether a fact is to be admitted under this clause or not depends upon the weight to
be given to such evidence.

Non-Access of Husband to Show Illegitimacy of Child

Since the legitimacy of the child essentially 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. The provisions of Section 11 are attracted to prove legitimacy or
otherwise in such cases.

Instance of Probability:
 Where the accused was charged for possession of arms and for conspiracy to commit
a dacoity, the fact that one of the accused was seen showing a revolver to another with
whom he was alleged to be conspiring is relevant under section 11.
 Where the question was whether a certain lease was intended to be perpetual, the fact
that a number of other leases granted at about the same time, under similar
 circumstances were intended to be perpetual was held admissible under this section to
show that the lease in dispute was also perpetual.’

State of Haryana v Shakuntala the trial court had examined the possibility that the distance
between the factory and place of occurrence, which was nearly 5 kilometres or so, the
possibility of the accused going to the factory after the occurrence could not be ruled out.

Kantilal Vs Shanti Devi

In a suit for recovery of possession of a plot and declaration of title, the defendant denied the
existence of the plot. The sale deed of the adjacent plot acknowledged the existence of the
plot and the plaintiff's possession over it. This was held to be admissible in evidence under
sections 11 and 13(a)
 Section 12: - In suits for damages, facts tending to
enable Court to determine amount are relevant

Section 12: - In suits for damages, facts tending to enable Court to determine amount are
relevant. – In suits in which damages are claimed, any fact which will enable the Court to
determine the amount of damages which ought to be awarded, is relevant.

Section 12 makes those facts relevant which help a Civil Court to determine the quantum of
damages in the cases of Torts or Contracts.
Legally, “damage” is to be distinguished from “damages”.
 In Civil Law, while “damage” connotes an injury suffered by an individual because of
the wrongful actions of another,
 “damages” is the monetary compensation that the former is awarded by the Court to
be paid by the latter for the injury caused by him.

The purpose of awarding the damages is to compensate a person for the injury suffered in
such a manner that he is put back approximately in a position in which he was before the
injury was caused to him.
 Factors such as the age of the victim,
 the nature and extent of the injury,
 medical expenses,
 loss of earnings and
 physical and mental agony
are relevant in the quantification of damages by the Court.

For instance: where the defamatory statement concerned contains an imputation of bad
character of a woman and truth is pleaded in defence, defence to the effect that the woman
herself made statements to this effect to a m=number of persons is relevant
Shaikh Gafoor Vs State of Maharashtra
Where the plaintiff failed to adduce the best available evidence and this caused difficulty in
assessing damages, this was held to be no ground for refusing the damages or fixing nominal
damages. It is for the court to determine the quantum of damages.

Section 13. Facts relevant when right or custom is in question

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

Introduction :
 Section 13 of the Evidence Act lays down that where the question as to existence of a
certain right or custom involved any transaction by which such right or custom is
created, modified, recognized, ascertained, or denied or which was inconsistent with its
existence, may be proved.
 Where a right or custom is pleaded by one party and denied by another, the onus of
proving its existence lies on the party who pleads its existence.
 The provision contained in this section is generally invoked in deciding the rights of
parties or existence or non-existence of a custom involved in a civil or criminal
proceeding.

Principle :- This section states the facts that are relevant when any right or custom is in
question, and for the purposes mentioned therein.
 Sub-section (a) makes transactions relevant
 Sub-section (b) makes particular instances relevant.

All transactions and instances which have Some connection, however, remote, with a right or
custom are not admissible. Only those transactions and instances as mentioned in clauses (a)
and (b) are relevant.
Section Applies to All Kinds of Rights and Customs
Section 13 deals with proof of right and custom.

Right has been defined by John Salmond as a legally protected and recognized interest. The
term “right” under Section 13 includes the whole gamut of legal rights—
 tangible (movable and immovable) and intangible (goodwill, intellectual Property
rights),
 public and private, proprietary (ownership) and possessory (tenancy rights, etc.
 It includes rights on one’s own property (like ownership) as well as right regarding
other’s property (like right of way over and right to fish in someone’s pond
(‘easementary rights’).
Customs and Usage
This section applies to all kinds of customs ancient or otherwise. Custom must be ancient, but
usage may be of a comparatively recent origin. Usage is a fact while custom is law. There can
be usage without custom but not custom without usage. Usage is inductive, based on consent
of persons in a locality, while custom is deductive making established local usage a law.

Customs are also of three kinds.

1. Public (section 32(4) :- Public custom is nowhere defined in the Act. It is any custom
which is a matter of public
2. General (section 48) :- General custom is defined to include customs common to any
considerable class of persons (section 48), e.g. Custom of a religion or caste.
3. Private, e.g., family customs.:- Private custom includes family custom and usages.
4. Special—confined to a particular trade or mercantile activity.
 In royal or zamindari families, the right of primogeniture (firstborn) may be
prevalent by which the firstborn among the siblings only will get the crown or
property.
 Similarly, temple customs may vary depending on whether the temple is a
Vaishnavite or Shaivite one, and so on.
5. Regional—
  Under the Hindu Marriage Act of 1955 marrying children of one’s paternal aunt
or maternal uncle is prohibited but the Act protects the contrary custom
prevalent in South India.
 In some districts the custom of pre-emption may be in vogue by which any
person intending to sell his property must first offer it to his near relatives or
neighbours at market value.

Essentials of Valid Custom

Custom to be recognizable by courts must be:—
1. ancient,
2. continuous and uniform.
3. reasonable
4. certain,
5. compulsory and not optional
6. peaceable, and
7. not immoral.
The burden of proving a custom lies on the party setting it up.

Proof of Custom
Sri Krishna Datt Vs Ahmadi Bibi
To prove a custom (1) the evidence should be such as to prove the uniformity and continuity
of the usage and the conviction of those following it that they were acting in accordance with
law, and this conviction must be inferred from the evidence. Oral evidence of witnesses who
depose to having heard of the custom from their deceased ancestors is admissible.
Mumtaz Begum Vs S Aman -ul-lah Khan :-
As to the legal position regarding the proof of a custom it is well-settled that a custom must be
ancient, invariable, certain, and continuous.

Modes of Proving Custom

 A general custom may be proved by the opinion of living persons who would be likely
to know its existence (section 48).
  A public custom may be proved by opinion of such persons or by the opinion of
persons who cannot be produced as witnesses, if such opinion is contained in a
statement made before any controversy as to such custom arose [section 32(4)}.
 A custom whether public, general or private may be proved or disproved by statements
of deceased persons contained in any deed, will, or other document {section 32(7)]
 Judgments relating to custom of a public nature are admissible under section 42,

Transaction
A transaction is a business or dealing which is carried on or transacted between two or more
Persons, It is something which had been concluded between persons by a cross or
reciprocal action, and in its largest sense it means that which is done.
Claimed
‘The word “claimed” denotes a demand or assertion. It indicates that the right is asserted to
the knowledge and the presence of the person whose right would be affected by the
establishment of the claim.

Recognised
Judicial recognition of a custom is relevant under this section as an instance of the custom
being recognised. But a judicial decision is far from having the same importance as a clear cur
instance of custom, recognised by the parties themselves.

Assertion
‘The word “assertion” indicates some act or deed which may or may not follow a statement.
It also includes a verbal statement not amounting to and not accompanied by any act if the
statement amounts to a claim. The language of section 13 is very wide and covers the assertion
of right in a previous suit where it was in dispute. It is not necessary that right should have
been asserted successfully, mere assertion thereof is sufficient to make it relevant.

Hanutmal Asaram Mandha Vs Nathu Venkoba

In matrimonial case if the wife is beaten inside the house by husband the wife cannot produce
independent corroborative evidence which may consist of members of the family of the
husband or neighbours.'
Relevancy of Judgments
 Statements made in previous litigation bind only the parties and the person making the
statement and not a person who is not a party to that litigation."*

Srinivas Krishnarao Kango Vs Narayan Devji Kango, The Supreme Court of India held that
a judgment in a previous suit for maintenance in which the quantum of maintenance awarded
was to depend on the extent of joint family property and was to be a charge on that property,
is to be admissible in a subsequent suit for partition of the joint family property to prove the
extent of such property.

Section 14. Facts showing existence of state of mind, or of body of

bodily feeling

Section 14. Facts showing existence of state of mind, or of body of bodily feeling.––Facts
showing the existence of any state of mind such as intention, knowledge, good faith,
negligence, rashness, ill-will or good-will towards any particular person, or showing the
existence of any state of body or bodily feeling, are relevant, when the existence of any such
state of mind or body or bodily feeling is in issue or relevant.

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 conviction of such person shall also be a relevant fact.
Introduction :-
Section 14 is one of the important sections that deals with physical and mental facts relating
to a person. The section deals with facts relating to three aspects, viz.,
a) State of mind;
b) State of body; and
c) State of bodily feeling

Section 14 also declares that facts which show the existence of any state of mind, namely,
 intention, knowledge, negligence, rashness, goodwill or ill-will, good faith or bodily
feeling,
are relevant when such state of mind or bodily feeling is fact-in-issue or relevant.

The section contains sixteen illustrations to explain the purpose and scope of the provisions
of this section. In some offences such as malicious prosecution, fraud, deceit, forgery,
defamation, rash driving, negligence etc., the existence of state of mind such as intention,
knowledge, good faith or bodily feeling need to be inferred to decide the guilt or innocence
of the accused.

 Illustrations (e), (i) and (j) has explained the factum of mens rea or intention
 Illustrations (a) to (d) deal with knowledge;
 Illustration (f), (g) and (h) with good faith;
 Illustrations (k), (1) and (m) with mental or bodily feelings and
 Illustration (n) deals with negligence.
Facts are either physical or psychological.
 A physical fact is anything, state of things, or relation of things, capable of being
perceived by the senses.
 A psychological fact is any mental condition of which a person is conscious.
 Thus, state of body is a physical fact, while state of mind or state of bodily feeling is a
psychological fact. Facts showing state of mind viz., intention, knowledge, good faith,
negligence, rashness, ill will or good will etc., are relevant
Intention
 Intention is a state of mind. A man is taken to intend the natural and probable
consequences of his act.
 To ascertain what a person’s intention was, the court is entitled to take into
consideration events both previous and subsequent to the relevant date.
 As direct evidence of intention is difficult, circumstantial evidence must therefore be
resorted to in proof of intention.
 The best circumstantial proof of the intention of the person in doing an act is the nature
of the act, his conduct and the circumstances surrounding the act.
In Ram Narayan v State of Punjab," it was held that though the burden of proof as to the
dishonest intention with which a document was forged as used by the accused lies on
prosecution, it is not necessary that it must be proved by affirmative evidence. If the
prosecution proves the fact that the accused had Prepared a false document and had
withdrawn money on its strength, the burden as to proof of intention must be taken to have
been discharged, because the natural inference from such conduct is that the accused was
actuated by dishonest intention.

Appu Vs State
The probative force, both of preparation and of previous attempts, manifestly rests on the
presumption that an intention to commit the offence was framed in the mind of the accused
which persisted until power and opportunity were found to carry it into execution. Such
evidence will be admissible both under sections 8 and 14 of the Evidence Act.

Sahara India Real Estate Corporation Vs Securities and Exchange Board

A person's inner intentions are to be read and understood from his acts and omissions, law
judges not what is in his mind but what he has said or written or done. The Latin meaning,
“external action reveals inner secrets” applies.?

Knowledge
The explanation of any admission or conduct on the part of a party, must if the party is alive
and capable of giving evidence must come from him and the Court would not imagine an
explanation which a party himself has not chosen to give

Notice
A person is said to have notice of a fact when he actually knows that fact, or when, but for
wilful abstention from inquiries or search, which he ought to have made or but for his gross.
negligence, he ought to have known it. Notice may be actual or constructive. An imputed
notice as distinguished from a constructive notice is notice through agent.

Conscious Possession
Prithvi Singh Vs State of Bombay
The question of knowledge is linked with the question of conscious possession. In a case
where the accused is charged for possession of a prohibited article, if the facts established are
of such a nature that they do not entirely exclude the possibility of that article being in his
luggage without his knowledge it was held that the conviction on the basis of possession cannot
be sustained.

Ashok Dubey Vs State of Madhaya Pradesh

Motive is a matter which can be determined from the appellant's character and conduct.
Evidence of character, conduct and state of mind is admissible under sections 8, 14 and 63 of
the Evidence Act.

Negligence and Rashness

R Vs Whitehead
The evidence to show that in a particular case the accused was negligent or rash would
admissible, but evidence which tends merely to show that he is habitually so, will not be
admissible. Where the accused is charged for rash driving, evidence of other instances of sash
driving by accused is not admissible. Where a surgeon was charged for negligence in a
particular operation, evidence to show that he had been negligent or skillful in other similar
operations was held inadmissible.”
Matrimonial Proceedings
G Venkatanarayana Vs Kurupati Laxmi Devi
The Evidence Act does not exclude examination of mental or bodily state of a person. The
court hearing a matrimonial proceeding has the jurisdiction to appoint a commission Doctor
for examining the party to know and report whether he or she was able to consummate the
marriage.

Ill-will or Good-will
It is nothing but bad faith and good faith. A thing is said to be done in good faith, where it is
done honestly, whether it is done negligently or not (Section 3, General Clauses Act). The
presumptions in law against misconduct generally presume good faith in human transactions
and therefore, generally the burden of proving bad faith is on the party alleging it.

Explanation 1 :- The evidence relating to the state of mind of a person must show that the
state of mind exists not only generally but in reference to the particular matter in question.
 Evidence of general disposition, habit or tendencies, is inadmissible.
 Anything having a distinct and immediate reference to the particular matter is
admissible.
 See illustrations (a) and (b). The purport of this explanation is found in Illustrations (n),
(o), (p).
For example, where a person is being tried for the offence of receiving stolen property
knowing that it is stolen property, the fact that at the time he was in possession of many other
stolen properties will be relevant.

Explanation II of the section clearly states that where the previous commission of an offence
is relevant, the previous conviction of such person should also be a relevant fact.
 Sections 310, 311, S11, 25 of CrPC, deals with evidence of bad character of accused.
(section 54).
  This explanation states that where the previous commission of an act is relevant, say for
enhanced punishment, the previous conviction of the person should also be a relevant
fact.
Illustrations (e) and (f) to Section 43.

The Supreme Court in Sunil Bharti Mittal vs. Central Bureau Investigation (CB1 ), held that
in a case where a company is the accused person and the group of persons i.e. Board of
Directors represents only the directing mind and will of the company, their state of mind is
the state of mind of the company and therefore, on these premises, act of the company is
attributed to the directors.
 Relevancy and admissibility of admissions
(Section 17-23)
Introduction
An admission is the best evidence against the party making it, and though it is not a conclusive
proof, it shifts the burden on the maker on the principle that what a party himself admits to
be true may be reasonably presumed to be true until the presumption is rebutted. For
instance,
 a tax-payer assessee cannot resile from the admission made by him in his tax-return.
 Statements in proceedings in a civil suit are admissions against the party making them.

The Indian Evidence Act, 1872, Sections 17 to 23 contain provisions relating to admission
which are applicable to both, civil as well as criminal cases.

 Section 17 refers to the provisions that follow it for identifying the persons by whom
and the circumstances in which the admissions can be made.
 Sections 18,deal with persons whose statements are considered as admissions and
 Section 19 and 20 refers to admission of third party
 Sections 21, 22 and 23 prescribe the conditions in which the admissions can be proved.
 Section 31 refers the evidentiary value of Admission

Section 17. Admission defined :- An admission is a statement oral or documentary or

contained in electronic form, which suggests any inference as to any fact in issue or relevant
fact, and which is made by any of the persons, and under the circumstances, hereinafter
mentioned.
The ingredients of Section 17 are:
1. An admission is a statement, oral or documentary
2. which suggests any inference as to any fact in issue or relevant fact and
3. which is made
a. by any of the persons, and
b. under the circumstances hereinafter mentioned.
Form of Admissions
 Admissions are receivable which are contained in letters, previous pleadings,
depositions, petitions, deeds, account books even if not regularly kept, horoscopes, first
information reports etc.
 Even statements in cancelled, invalid instruments or unstamped documents are
receivable.
 Statements made in a document which is inadmissible for want of proper attestation or
registration may be admitted as admissions.

Effect of Admissions
 Admissions are not conclusive proof of matters admitted, but they may operate as
estoppel ie, the person cannot be permitted to deny it (sec 31).
 A party's admission must be presumed To be true until the contrary is shown.”
 Admissions founded on hearsay or consisting of merely of declarant’s opinion or belief
are receivable in evidence but their weight is slight.
 As compared with a confession it is a weak type of proof.

Ujali Padhani Vs Rushi

Under the Indian law, an admission made by a party in a plaint signed and verified by him
may be used as evidence against him in other suits. However, this admission cannot be
regarded as conclusive and it is open to the party to show that it is not true.
Rakesh Wadhawan Vs Jagdamba Industrial Corp
Admission is only a piece of evidence and can be explained. It does not conclusively bind a
party unless it amounts to an estoppel. Value of an admission has to be determined by keeping
in view the circumstances in which it was made and to whom.
 WHO CAN MAKE ADMISSIONS

Section 18. Admission by party to proceeding or his agent :- Statement made by a party to the
proceeding, or by an agent to any such party whom the Court regards, under the circumstances
of the case, as expressly or impliedly authorized by him to made them, are admissions.

By suitor in representative character Statements made by parties to suits- suing or sued in a

representative character, are not admissions, unless, they were made while the party making
them held that character.

Statements made by
(1) 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) 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.

Under Section 18 the following persons can make admissions:

1. a party to the proceeding, or
2. by an agent authorized by such party,
3. parties to suits suing or sued in a representative character;
4. 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
5. persons from whom the parties to the suit have derived their interest in the subject-
matter of the suit.

Party to Proceeding
  Under the Evidence Act admissions can be made by “party to the proceeding” and the
proceeding can be of civil or criminal in nature.
 Hence, plaintiff and defendant in a civil case, and the prosecution and the accused in a
criminal proceeding can make binding admissions.
 A complainant in the case of non-cognizable offence like adultery (Section 497 of IPC)
or defamation (Section 500 of IPC) or a prosecutrix in a rape case is also in the position
of a party to the criminal proceeding and can make admissions.
Santon Vs Percival
An admission can be proved as against the party making them and not as against others.
Important exceptions are
a. under Section 10 anything said by one conspirator can be proved as against
himself and also as against other co-conspirators;
b. a confession (being an admission of guilt) made by a co-accused can be proved
s against the other co-accused if the conditions of Section 30 are satisfied; and
c. admissions made by persons with joint or derivative interest can be used as
against each other under Section 18.
Kashmira Singh Vs Madhya Pradesh
The Evidence Act is not clear as to whether an admission of a co-plaintiff or co-defendant can
be used against other plaintiffs or defendants. As a matter of principle and policy, an
admission made by a person should not be permitted to be used against his co-plaintiffs or
co-defendants except to the extent of his interest in the subject matter of the suit. Otherwise,
a co-defendant or co-plaintiff can collude with the adverse party and make an admission
favourable to that adverse party.
Agent of a Party

It is a well established principle of agency applicable under the law of contracts, the law of
torts and the criminal law that the principal is bound by the admissions made by his agent. To
bind the principal by his admissions, the agent must be regarded by the Court to have had
express or implied authority to act on behalf of the principal.
  Members of a partnership are bound to each other as principals and agents and the
admission made by one can be proved as against the other.
 Apart from persons who may be employed as agents, the parties’ attorneys and
advocates are also treated as their agents and they can bind their clients by admissions
in civil cases.
Govindji Jhaver Vs Chhotalal Velsi
Admissions made by an advocate bind the client on questions of fact but not of law. However,
in criminal cases admissions made by the advocate do not relieve the prosecution of its burden
to prove the case beyond reasonable doubt.

Persons with representative character - include trustees, executor and administrator of a will.

Persons with proprietary or pecuniary interest include co-owners or joint owners of property
and co-defendants in a civil suit. The persons must be having joint and not common interest
in the subject matter of the suit.

Meejan Mathar Vs Alimudden

When several persons are jointly interested in the subject-matter of the suit, an admission of
any of these persons is receivable not only against himself but also against the other defendant,
whether they be all jointly suing or sued, provide that the admission relates to the subject
matter of the dispute, and be made by the declarant in his character of a person jointly
interested with the party against whom the evidence is tendered.

Persons from whom the parties to the suit have derived their interest in the subject-matter of
the suit :- Statements made either by parties interested or by persons from whom the parties
to the suit have derived their interest are admissions only if they are made during the
continuance of the interest of the persons making the statement.
 The admissions of a former owner of property after he has ceased to have any interest
in it are not evidence against the party in possession
  Where the deceased father of the plaintiff admitted that the defendant was his second
legally wedded wife and her children were his legitimate children, the admission was
binding on the plaintiff.

This clause indicates that there ought to be a privity, i.e, mutual or successive relationship to
the same right of property. Persons with derivative interest are of three kinds:
1. by privity in law :- Eg. the relationship between the executor or administrator of a will
and the legatees and heirs
2. by privity in blood :- Eg. relationship between a person and his descendants and
ascendants; and co-parceners.
3. by privity in estate :- that is relationship established by a contract or deed. E.g. transferor
and transferee of property.

 Thus, admissions made by the executor or administrator of a will or testament will bind
the persons named in the will as legatees and heirs.
 Similarly, an admission made by the father, for instance, that his house was under a
mortgage will bind the son as his successor.
 An admission made by the vendor of a plot of land that it was subject to a right of
easement will bind the vendee.

Conditions
Where Section 18 provides for the proof of admissions made by persons other than the
parties, the section provides for certain built-in safeguards. Thus,
 the agents must be authorized expressly or by implication, and
 persons with representative characters or with joint interest or with derivative interest
must have made the admissions while they were holding such character.
 ADMISSION BY THIRD PARTIES

Sections 19 and 20 deal with admissions made by persons who do not have any direct
connection with the matter in dispute or, in other words, persons who may be called third
parties. The two sections are exceptions to the general tule that admissions by strangers to the
suit or “occasional admissions” are not admissible in evidence. However, an admission to be
relevant under these sections, it should fulfil the conditions laid down in Sections 17 and 21.

Section 19 :- Admissions by persons whose position must be proved as against party go 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.

Section 19—This section forms an exception to the rule that statements made by strangers to
a proceeding are not admissible as against the parties.

 The liability of a person who is one of the parties to a suit depends upon the liability of
a stranger to the suit, then an admission by the stranger in respect of his liability amounts
co an admission on the part of that person.

Shivalingam Vs Sakthivel
Where a landlord died and the tenant questioned the title of the lady living with him saying
that she was not the wife of the deceased landlord, a thirty three year old registered deed was
produced which showed the landlord’s admission about the lady to be his wife, it was held
that the right of the lady was conclusively proved by the admission.
Laxmi Bai Vs A Chandravati
Execution of a will cannot be doubted merely because of delay in applying for letter ‘of
administration which was satisfactorily explained, more so when due execution of the will was
admitted by preferential heirs to the estate of the testatrix against their own interest.
Condition :- The statements referred to in this section become admissible only provided that
they satisfy the requirements of section 17 as regards their nature and section 21 or any of the
following sections as regards their liability.

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.

Section 20 :- This section forms another exception to the rule that admissions by strangers to
suit are not relevant. Under it the admissions of a third person are also receivable iv evidence
against, and have frequently been held to be in fact binding upon, the party who has expressly
referred another to him for information in regard to an uncertain or disputed matter.

Sloman Vs Herne :-
If a reference is made over a disputed matter to a third person not in the nature of a
submission to arbitration, but rather as an aid to the settlement of the differences existing
between the parties and that enable the parties themselves to effect a settlement on the
information, in such cases the party is bound by the declaration of the person referred to in
the same manner and to the same extent as ut was made by himself.

Daniel Vs Pitt
Where the defendant said, “If C will say that he did deliver the goods, I will pay for them,” it
was held that C’s statement was admissible and the defendant was bound by it.

Ram Sahai Vs Jai Prakash

Where in a suit for eviction, one of the tenants on the basis of power of attorney from other
tenants, admitted in his statement before the court the liability as regards the arrears of rent,
such a statement would bind the tenants as their own admission within the meaning of Section
20 of Evidence Act.
 CONDITIONS FOR PROOF OF ADMISSIONS
Section 21 is an important provision which lays down the conditions and circumstances in
which an admission can be proved. The section says:

Section 21. Proof of admissions against persons making them, and by or on their behalf.—
Admissions are relevant and may be proved as against the person who makes them, or his
representative in interest; but they cannot be proved by or on behalf of the person who makes
them or by his representative in interest, except in the following cases:

(1) An admission may be proved by or on behalf of the person making it, when it is of such a
nature that, if the person making it were dead. 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.

Section 21 (1) lays down the basic principle that “admissions are relevant and may be proved
as against the person who makes them, or his representative in interest; but they cannot be
proved by or on behalf of the person who makes them or by his representative in interest.”
 In other words, self-harming admissions can be proved by a party but not self-serving
admissions.
 The rationale of Section 21 has been mentioned above under the classification of
admissions into self-serving and self-harming admissions.

As against the person who makes them :- The rule as regards statements made by a person is
that they may be proved only when they are against him; otherwise a party may manufacture
any amount of evidence in his own favour. Where the statements are against the interest of
the person making them there is a natural presumption of truth, and they may be proved

Musammat Bashiran Vs Mohammad Hasain

An admission by a plaintiff of her marriage with a person made before there was any dispute
about such marriage may be proved by or on behalf of her under clause (1) of this section
read with section 32.

Akal Sahu Vs King - emperor

A receipt is nothing but an admission by the party making it that he has received the amount
specified in the document. It is an admission against his own interest and he is of course
bound by it, and so are those who claim through or under him.

Representative in interest :- This expression will include those are privies in blood, law or
estate. The purchaser at an ordinary execution sale is in privy with, and is the representative-
in-interest of the judgment-debtor so as to bound by the latter's admission.

Exceptions
Admissions cannot be proved by, or on behalf of, the person who makes them, because a
person will always naturally make statements that are favourable to him. Thus the opinion of
a person as to the valuation of his property which is under acquisition is not relevant. Section
21 mentions three exceptions to the above principle and under these exceptions self-serving
admissions can be proved by the person making them.

Exception (1) :- Statements of deceased person relevant in dispute between third parties. :-
This exception enables a person to prove his own statement where the circumstances are such
that if he were dead, the statement would have been relevant in a dispute between third parties.

The illustration (b) says: A, the captain of the ship is tried for casting the ship away
that is, allowing it to drift away from its course or route. A wants to adduce in evidence the
logbook maintained by himself wherein the details of the cruise and course followed by the
ship are recorded in the ordinary course of business for the purpose of proving that he did
not cast the ship away.
 As the logbook is maintained by the captain himself, the entries therein are self-serving
statements and would have been barred under the opening part of Section 21.
 But as the entries in the logbook, are made in the ordinary course of business, they
would have been relevant under Section 32 (2) between third parties if the captain were
dead, not found etc.
 Sectio, 21 makes an exception in this case for the reason that the statement in the
logboo; though a self-serving one, might be true as it satisfies the two safeguards of
Section 32(2) that are:
o (a) the entry was made in the ordinary course of business; and
o (b) the book was kept in the ordinary course of business.

Exception (2) - Explanation of state of mind or body or mental or bodily feeling

The second exception relates to:
 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.

Section 14 declares that “facts... showing the existence of any state of body or bodily feeling,
are relevant.” Thus, while Section 14 deals with “facts”, Section 21, exception relates to
“statements” showing the state of mind etc., and Section 21 also applies the safeguard of
Section 8 that a mere statement is not relevant unless it is accompanied by conduct, with the
additional condition that the statement should be coexistent with the feeling and such as to
render the falsehood of the statement “improbable”.

Exception (3) - Facts otherwise relevant : The third exception says that a self-serving admission
may be proved by its maker “if it is relevant otherwise than as an admission.”
 This Exception lays down that facts which are relevant under sections 6 to 13 will not
be rendered inadmissible because they may be proved on behalf of the person making
them.
Dilipsinh Mohansinh Vs S J Mansha
A person who sought exemption from the application of the Urban Land Ceiling Act of his
land was not taken thereby to have admitted that the Act was applicable to his land, the
application of the Act to a given situation being a question of law.
Ammini Vs State of Kerala
Where an injured accused person was examined by a doctor and in the course of such
examination he explained the cause of his injuries, it was held by the Supreme Court that the
statement was not an admission and was a relevant evidence under section 3 otherwise than
as an admission. He could prove his own statement.

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 genuineness of a
document produced is in question.

Section 22 :- The contents of a document which is capable of being produced must be proved
by the instrument itself and not by oral evidence.

 Oral admissions as to contents of a document are excluded under this section. They
are, however, admissible when the party is entitled to give secondary evidence of the
contents of such document under sections 65 and 66.
 Such admissions are also admissible when the genuineness of the document produced
is in question.
Patel Prabudas Vs Heirs of Patel Babubhai
As to the validity of a gift deed, one of the donors stated that he was minor at the time of its
execution. But in the gift deed itself he admitted his age to be 22. This admission was
contained in the registered deed. This was held to be binding on him unless he could show
any vitiating circumstance like fraud, coercion, etc.

Section 22A - 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 22A- The purpose of this section is to provide for the circumstances in which an oral
admission could be proved as to the contents of an electronic record.
 The section disallows the evidence of oral admission x to the contents of an electronic
record.
 It then talks of an exceptional situation, which is that when the genuineness of the
electronic record produced before the court is itself in question.
 The section says that oral admissions as to the contents of an electronic record may be
proved in evidence when the genuineness of the record has been questioned.

Section 23 :- Admissions 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 section126.
Section 23 :-
The section provides that in civil cases an admission is not relevant when it is made
1. upon an express condition that evidence of it is not to be given, or
2. under circumstances from which the Court can infer that the parties agreed together
that evidence of it should not be given.
The section applies to civil as well as criminal cases.

If there is a dispute between parties and they have gone to a Court for adjudication, often they
enter into negotiations by themselves or through a mediator/conciliator to seek an amicable
“out of Court” settlement. During these negotiations both the parties try to be flexible and
make proposals to each other expressing readiness to settle for something less than what they
claimed in the Court.
Illustration
Suppose the claim is for compensation of 10 lakhs for injuries suffered due to the negligence
of the other party. In the Court the other party may totally deny that he was negligent but
during negotiations he might admit to his negligence if the claimant settles for, say, 5 lakhs.
The claimant might also propose, as a part of bargain that he will settle for a compensation of
7 lakhs. If the negotiations ultimately fail, neither of the parties Shall be allowed to prove in
the Court the various admissions they might have made as a part of negotiations.

Ram murti Devi Vs Reoti Saran

In civil cases no admission is relevant if it is made in the circumstances from which the court
can infer that the parties agreed together that the evidence of it should not be given.

Explanation :- Professional communications made by a client to his legal advisor are generally
protected from disclosure (Section 126). But a legal adviser can be compelled by the Court to
give evidence of any communication made in furtherance of any illegal purpose or to any facts
observed by the legal adviser showing that any crime, fraud has been committed since the
commencement of his employment (Section 126).
Distinction between Admissibility and Relevancy of evidence.

Relevancy Admissibility
Admissibility is not based on logic but on
Relevancy is based on logic and probability
strict rules of law

The rules of relevancy are mentioned under

The rule of admissibility is mentioned under
sections 5 to 55 of the Indian evidence act
section 136 of the Indian evidence act 1872.
1872.

The rule of admissibility means that the court

The rules of relevancy declare what is
can permit the evidence to be given of a fact
relevant is to be proved.
only if it is relevant.

Relevancy is basically a cause. It is mainly an effect.

The court has the power to apply discretion The discretion cannot be applied by the court
in relevancy. in admissibility.

The facts which are relevant are not The facts which are admissible are necessarily
necessarily admissible. relevant.
 Previous year questions
UNIT -1
10 Marks
1. Define Evidence. Discuss different kinds of evidence. +1
2. What is evidence ? Explain the importance of circumstantial evidence.
3. What is evidence ? Explain in detail the different kinds of evidence. ln which cases
evidence need not be proved ?
4. Explain the meaning of evidence and state the principles regarding reception of
circumstantial evidence.
5. "The accused can be convicted on the basis of circumstantial evidence" Analyse with
the help of decided cases.
6. 'Men may lie but circumstances will not lie' - Comment with relevant cases.
7. Define Evidence. "The rules of evidence are in general, same in civil and criminal cases"
- Explain.
8. Explain "May presume", "Shall presume" and "Conclusive proof'. – Section 4
9. With the help of illustrations explain 'may presume', 'shall presume' and 'conclusive
proof'- Section 4
10. Define 'Fact'. " Facts in issue" and "Relevant fact'. Distinguish among 'May presume',
'Shall presume' and "conclusive proof" with suitable illustrations Section 3 & 4
11. Define Evidence" Distinguish between relevancy and Admissibility of Evidence.

Section 6

12. Facts connected with fact in issue so as to form part of same transactions are relevant" -
Discuss with reference to Res gestae.
13. Explain the doctrine of 'Res-gestae' with the help of decided cases. +1
14. Explain the relevancy of facts forming part of the same transaction +1 +1+1

Section 8

15. Explain the relevancy of facts showing motive, preparation and conduct – - +1
16. "Motive only is not substantive evidence" - ln light of the statement, discuss in detail the
concept of motive, preparation and subsequent conduct with suitable illustrations and
case laws.
 17. Explain the relevancy of facts showing the existence of state of mind and state of body-
Section 14.
18. When plea of alibi can be raised ? Discuss in brief the doctrine of Res gestae with
suitable illustrations and judicial decisions. – Section 11 and 6
19. Explain the relevancy of introductory and explanatory facts. Section 9

6 Marks
1. Res gestae +1 – Section 6
2. Identification parade. – Section 9
3. Write a note on Test identification parade. – Section 9
4. Alibi +1- Section 11
5. Write a note on distinction between Admissibility and Relevancy of evidence.
6. x is hit by a speedy vehicle and is severely injured. Y has deposed that he saw the speedy
vehicle but not the accident and X has explained him about the accident. ls this
statement relevant
7. 'A' is accused of Killing 'B'. Prosecution has adduced evidence of marks on ground
produced by fight between A, and B, prior to the incident. ls it relevant?
8. 'A' is accused of 'B's murder by beating him. At the time of incident there was an
exchange of words between A and B. ls this fact relevant?
9. The question is whether Ravi committed a crime at Calcutta. On the same day, Ravi
was at Lahor. ls this fact relevant?
10. The question is whether S was the legitimate son of 'F' ? ls the fact 'S' was always treated
as such by the members of the family relevant
11. The question is whether 'A' was a legitimate son of 'B'. Does the fact that, 'A' was always
treated as such by the members of the family relevant ? +1
12. 'A' is tried for the murder of 'B' by poison. Before the death of B, A procured poison
similar to that which was administered to B. Explain the relevancy of this fact.
13. A is accused of a crime. It is shown that soon after the crime he is absconding his place
– ls this fact relevant?
14. 'A' has filed suit against' B' for the recovery of loan. 'B' denies the loan. 'A' wants to
prove his statement made to 'C' wherein he stated that he lent loan to 'B'. Can he do so