Indian Evidence Act Notes PDF

Indian Evidence Act (Semester VII) 0  UNIT 1: LAW OF EVIDENCE 1.1: History and Development Background of the Indian Evidence Act 1. In the ancient period, there has been elaborate discussion of the rules of evidence in Sanskrit books. However, not much in...

Indian Evidence Act (Semester VII) 0  UNIT 1: LAW OF EVIDENCE 1.1: History and Development Background of the Indian Evidence Act 1. In the ancient period, there has been elaborate discussion of the rules of evidence in Sanskrit books. However, not much information is available in the Muslim period in respect of the Law of Evidence. 2. In 1726, the rules of evidence prevailing in England under Common law and statute law were introduced in India. 3. During 1835-1855 at least 11 enactments in this area of law were dealt with. In 1868, a draft prepared by Sir Henry Sommer Maine which was found unsuitable for the country. 4. Sir James Stephen in 1872 prepared the Bill for the Act as in present day, who was entrusted with the same work in 1871. 5. Most States had already adopted this Act before even the Constitution came into force. The Law of Evidence which came into force in 1872 continues to be applicable to this day with least changes being made in the past. 1.2 Object and Scope of Study AND 1.4 Appreciation of Evidence Relevance and Function of the Law of Evidence 1. In the process of delivering justice, Courts not only have to go into the facts of the case but also ascertain the truthfulness of such assertions made by the parties. To ascertain these facts, the Law of Evidence plays an important role, being the procedural law in this aspect 2. It is this procedural law that provides in itself how fats are to be proved and when the same will be regarded as relevant by the Court in the administration of justice. 3. It helps judges in deciding the rights and liabilities of the parties arising out of the facts presented to him for further application of the relevant laws. 4. Thus, the law of evidence lays down the principles and rules according to which the facts of a case may be proved or disproved in the Court of Law. 5. It helps the Courts in preventing the wastage of time upon irrelevant issues. 6. In the case of Ram Jas v. Surendra Nath, it was held that, the law of evidence does not affect the substantive rights of the parties but facilitates the course of justice. It lays down rules of guidance for the Courts. It is procedural in nature, proving how a fact can be proved Preamble, Short Title and Commencement 1. This Act comes into force on September 1, 1872. 2. Section 1 of the Act states that this Act is applicable to the whole of India except J&K. 1  3. It 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 or the Air Force Act. 4. A judicial proceeding is one wherein the object of it is to determine a jural relation between one person and another or a group of persons or a person and the community in general. A judge without such object in mind does not act judicially. Further, Section 2 (i) of the CrPC, a state that a judicial proceeding is one in which evidence is or may be taken legally on oath. EX: an execution proceeding, a proceeding under Chapter IX of the CrPC etc. 5. A non-judicial proceeding is an enquiry about the matters of facts where there is no discretion to be exercised and no judgment to be formed, but something to be done in a certain event, a duty. It is said to be administrative in nature. EX: an enquiry by a Collector under the Land Acquisition Act, a contempt proceeding, a departmental enquiry held for police officers, etc. 6. This act applies only to native Courts martial and proceedings before the Indian marine Act. 7. Further this Act does not apply to affidavits presented to any Court or Officer, nor to judicial proceeding before an arbitrator. 8. The Act does not apply to affidavits; however affidavits are used as a mode of proof. The courts may take into consideration all facts alleged in the affidavit if not controverted in the counter-affidavit. Provisions for affidavits are in both the CPC and CrPC. 9. An arbitrator is not bound by the strict rules of evidence as the object behind an arbitrational proceeding is to avoid the elaborate procedure of a regular trial. Further, not acting in accordance with the rules of evidence cannot be brought as a cause of action against the arbitral award as given by him. An arbitrator is expected to follow the rules of natural justice only. 10. Lex Fori: this phrase means the place of the action. It was held by the House of Lords, “the law of evidence is lex fori which governs the courts; whether a witness is competent or not, whether a certain evidence proves a fact or not, is to be determined by the law where the cause of action arises, where the remedy is enforced and where the court sits to enforce it.” Thus, when evidence is taken in one country for a suit or action in another country, the law applicable to the recording of evidence would be the law prevailing in the country where the proceeding is going on. Scope of the Evidence Act 1. The Act is a complete code in itself repealing all those rules of evidence except those as explicitly mentioned in the proviso to Section 2. There are many statues which supplement the Evidence Act. Some of them are as follows: i. Bankers Book Evidence Act 2  ii. CPC iii. CrPC iv. TOPA v. Divorce Act vi. Stamp Act vii. Succession Act viii. Commercial Documents Evidence Act, etc 2. The Act, deals particularly with the subject of evidence and its admissibility. It is a special law. Hence, no rule as stated in the Act is affected by any other statute unless otherwise specifically mentioned. 3. Evidence excluded by the Act is inadmissible and should not be admitted merely because it may be essential in the ascertainment of truth. 4. Parties cannot contract themselves out of the provisions of the Act. 5. If evidence is tendered, Courts are to check whether such evidence is admissible under the Act. 1.3: Evidence and Proof S. No. Basis of Evidence Proof Distinction 1. Meaning All the legal means Anything which exclusive of the serves to convince mere arguments the mind of the court which tend to prove regarding any truths or disprove a fact. or propositions to come to a certain conclusion. 2. Nature It is the medium of It is the effect or proof. result. 3. Relationship It is the foundation It is what is of proof. constructed on basis of evidence. 4. Necessity Without the Without evidence foundation of there cannot be various facts or proof. It is only the evidence, there basis of proof can a cannot be proof. case is decided by a Court. 5. Kinds There are various There is only one kinds of evidence. collective proof and HORN SSC: Hearsay, there are no various Oral, Real, Non- kinds of proof. Judicial, Secondary, Substative, Conclusive 6. Mathematical E1+ E2 +... E4 +E5 =Proof Analogy 7. Examples In case of murder, Collection of all the knife, weapons, these evidences clothes, finger prints becomes proof when etc. such evidence leads 3  us to the murderer. 8. Scope It is the material Proof is the over which the establishment of foundation of truth is facts in issue by based proper legal means to the satisfaction of the Court. 9. Conclusion Once the evidence comes before the Court and stands the test of legal scrutiny, then it becomes proof. 4  UNIT 2: TYPES AND FORMS OF EVIDENCE 1. Evidence may be defined as: i. Facts which are legally admissible and legal means are used to prove such facts. – Nokes ii. The testimony, whether oral, documentary or real, which may be legally received in order to prove or disprove some fact in issue.- Phipson iii. The evidence received by Courts of justice in proof or disproof of the facts, the question of its existence comes before the court. – Best iv. Section 3 of the Act- given later. 2. As per the changing circumstances and requirements in every case certain type of evidence may be proved or disproved in order to establish a fact. The court may or may not accept such kind of evidence. 3. There are various kinds of evidence. (11 pairs) Direct Evidence and Indirect or Circumstantial Evidence 1. Direct Evidence or Positive Evidence is the testimony of any evidence of a fact actually proved by the witness by his own opinion or senses about the existence or non existence about a fact in issue or relevant fact. It is the evidence about the real point in controversy. Examples: A kills B with a knife. C deposes that he saw A with the murder weapon and stabbing B. 2. It must be noted that small discrepancies or irrelevant details if left out in the witnesses’ statement shall not corrode the credibility of the witness and will not in any way rejection of the witness statement by the Court. 3. Circumstantial Evidence is that which tends to establish the fact in issue by proving another fact. In proving other relevant facts, the cause and effect of the fact in issue may be proved that may lead to a conclusion. It is direct evidence indirectly applied. Thus, the facts from which the existence of facts in issue must be proved should be done by way of direct evidence. For example, if it is alleged that A killed B with a knife and C deposes that he saw A walk out of the room where C was killed with the knife, or with a splatter of blood on his clothes, the same would be circumstantial evidence. 4. Such kind of evidence is to be resorted to only in case no direct evidence is available. 5. In the case of Sharad B. Sharda v. MH, the SC held that circumstances must lead to guilt of the accused and exclude the innocence of the accused. Further, the cumulative effect of the circumstances must be such that it should establish that the accused and only the accused must have committed the crime. 6. The Supreme Court in the case of Birdichand Sarda v. State of Maharashtra, laid down the 5 Golden Principles of Circumstantial Evidence: 5  i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. ii. The facts so established must be consistent only with the hypothesis of the guilt of the accused i.e. it should only explain the hypothesis of the guilt of the accused. iii. The circumstances should be of a conclusive nature. iv. They should exclude every possibility of any other hypothesis than the one to be proved. v. There must be a claim of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all possibility that the act must have been done by the accused. 7. In the case of Caestanco Fernandez v. Union Territory of Goa, a test was laid down for the acceptance of circumstantial evidence which is as follows: if 2 inferences are possible at the same time, one about the innocence and the other the guilt of the accused, the evidence indicating towards the innocence of the accused shall be used. 8. When a case squarely rests on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. 9. It is a well settled principle now that if at all a case rests primarily or wholly on circumstantial evidence, the links in the chain of events must be proved completely. Real Evidence/ Material Evidence and Personal Evidence 1. Real Evidence is that which is brought to the knowledge of the Court by inspection of an object and not by way of a witness or a document produced. 2. Personal Evidence is that which is afforded by a human agent by voluntary signs. Original Evidence and Hearsay or Unoriginal Evidence 1. Original Evidence is that which a witness reports himself to have heard or seen by way of his own senses. 2. Unoriginal or Hearsay Evidence is that which a witness is merely reporting what he himself saw or heard but through the medium of a third person. Such kind of evidence is not admissible at all. Primary and Secondary Evidence 1. Primary evidence is when a document is produced before the court for inspection or proof of an admission of the contents by the parties. 2. Secondary evidence is inferior which itself indicates that the existence of a fact is taken from the original source. Oral and Documentary Evidence 6 1. Oral Evidence is that which is brought to the knowledge of the Court by verbal statements of the witness, qualified to speak on point under enquiry. [S. 59 & S. 60] 2. Documentary evidence is that evidence of a fact brought to the knowledge of the Court by inspection of any document produced. A documents means any matter expressed or described upon any substance by means of letters or figures intended to be used. [S. 61- S. 90] 7 Judicial Evidence and Non- Judicial Evidence 1. Judicial Evidence is that which is received by the Court of justice in proof or disproof of facts. Therefore, it is natural evidence modified by certain rules. 2. Non Judicial Evidence is that which is given in proceedings before an officer not in a judicial capacity but in an administrative capacity [S. 164] Positive and Negative Evidence Positive Evidence is that which tends to prove the existence of a fact whereas, by negative evidence the non-existence of a fact is proved. Therefore the latter is not good evidence. Substantive and Non- Substantive Evidence Substantive evidence is that evidence on which reliance can be placed. It relates to the rights and duties of the parties. Non substantive evidence on the other hand corroborates to increase the credibility of or contradicts in order to discredit the substantive piece of evidence. Pre-appointed and Casual Evidence 1. Pre-appointed evidence is also called Pre-Constituted evidence which is procured in anticipation of its use. Hence it may be voluntary or prescribed by law. 2. Casual evidence is the evidence which is not pre-constituted and depends on the circumstances of the case. Prima Facie Evidence and Conclusive Evidence 1. Prima facie evidence is accepted as reliable as it establishes or proves a fact in the absence of any contradictory evidence. 2. Conclusive evidence is the use of facts involving the application of the rule of law. (S. 41) Decree of a competent court is conclusive evidence. Scientific Evidence and Digital Evidence Scientific evidence the use of scientific basis from the point of view of cogency, weight or effect of the evidence. It is based on the fact that science confirms the facts stated. Digital evidence is the rule of modern concepts or electronic concepts in establishing or proving a part of facts in issue which is relied on by the Courts depending on the facts and circumstances of the case. 8  UNIT 3: INDIAN EVIDENCE ACT 3.1 Schematic Arrangement 3.1.1: Interpretation Clause 1. COURT: includes all Judges and magistrates and all persons legally authorised to take evidence other than arbitrators. 2. Court has been defined for the purpose of this Act only and cannot be extended beyond its limited scope. The definition is thus not exhaustive but explicitly excludes arbitrators. Therefore, by virtue of this definition, in a jury trial, both the jury and the Judge will be regarded as Court. 3. It was held in the case of State of MP v. Anshuman Shukla that the authorities constituted under the M.P Madhyastham Adhikaran Adhiniyam, though named as Arbitral Tribunals were courts as they were empowered to take evidence and examine witnesses. 4. FACT: As defined means and includes anything that can be perceived by ones senses and any mental condition of which any person is conscious. 5. A fact need not be a tangible or visible object; it may be statements, feelings, opinions or a state of mind. EX: A man heard or saw something; a man said certain words, a man having a certain reputation, having a certain intention, etc. are all facts. 6. Facts may be divided into the following kind: (1) External and Internal Facts; and (2) Positive and Negative Facts. 1. External Fact Internal Fact It is considered to have It is considered to have its seat in its seat in some animate an animate being and by virtue of or inanimate being, not the same quality being considered by virtue of it being animate. EX: a certain opinion, an considered as animate intention. It is a subject of but what it has in consciousness, good faith etc. common with the inanimate being. EX: horse, man etc. It is a perception of the five senses 2. Positive Fact Negative Fact The existence of certain The non existence of certain things things is a positive fact is a negative fact. 7. Matter of Fact and Matter in law: Matter of fact is anything which is the subject of testimony which can be proved by way of evidence; matter of law is the general law of land of which the court will take judicial notice. It does not have to be proved by evidence. 9 8. Relevant: one fact is said to be relevant to another when one is connected with the other in any way as referred to in sections 5 to 55. It must be connected to the facts in issue or other relevant facts. A fact not connected as in the sections mentioned, is not relevant. All relevant facts are admissible. 9. Relevant has 2 meanings, in one sense it means connected and in another it refers to admissibility. 10. According to Stephen, relevancy means connection of events as in a cause and effect relationship. A relevant fact is a fact that has a certain degree of probative force. 11. Facts in Issue: it means and includes any fact from which, either by itself or in connection with other facts, the existence or non-existence, nature or extent of rights, liability or disability, asserted or denied in any suit or proceeding. 12. Facts in issue are those facts which are alleged by one party and denied by another in the pleading in a civil case (i.e. the issues framed under CPC) ; or alleged by the prosecution and denied by the accused in a criminal case (i.e. the Charges under Chapter XVII of the CrPC). 13. When a case is before the Court, two types of facts play an important role in determining whether or not the alleged offence has been committed, they are facts in issue and relevant facts. Facts in issue + Relevant Facts = Proof 14. The evidence in a particular case is confined to the facts of the case before any court. The Court must ascertain the area of controversy between the parties and the facts which are in dispute are the facts in issue. It is on basis of the evidence that is brought before the court on the facts of a case that fact in issue is decided giving some right or liability to a party. 15. Facts in issue may be proved either by direct evidence or circumstantial evidence. For example, in a road accident or rape cases, the courts have to depend on circumstantial evidence where direct evidence is unavailable. 16. Relevant facts are facts which themselves are not in issue but may help in proving facts in issue. They act as foundations from which inferences are drawn in respect of the facts in issue. For example, if witnesses depose they saw or an incident or heard the gun in a killing, the facts would be treated as relevant and therefore admissible. 17. Thus, facts in issue and relevant facts go hand in hand and on this basis a Court shall pass its judgment. 10 DISTINCTION BETWEEN FACTS IN ISSUE AND RELEVANT FACTS Sl. Basis of Facts in Issue Relevant Facts No. Distinction 1. Nature of Fact It is the relevant fact It is the evidentiary fact arising out of and is also known as issues/charges framed the ‘Factum Probandi’ by the Court in a suit or proceeding. It is also called ‘Factum Probandom’. 2. Relation with In a case, a fact in It is a fact so connected Substantive issue is a question of with the facts to prove Law law which will be or disprove facts in determined by the issue. substantive or procedural law regulating the pleadings 3. Judicial Value They are facts out of It is not necessary which some legal ingredient of a right or a rights, liability/ liability. It merely disability can arise renders probability to and upon which the the existence or non- court formulates its existence of the right or opinion liability. 4. Essentiality These are facts which These facts are not in are matters which are issue themselves but in dispute affirmed by are very essential in one party and denied deciding the dispute. by the other party. 5. Examples A is accused of As regards this murdering B on S.B. allegation, A sets a plea Road, the facts in of an alibi that at the issue will be: time of the occurrence i. Whether A caused of the crime he was in B’s death; and Pashaan. It will depend ii. Whether A intended on other facts such as to cause B’s death whether he was at another place and if he was at such place at the time of commission of the crime. 6. Cases In this case, a fact in The relevant facts would Babri- issue was whether or be whether such Masjid/Ayodhya not it was the land mosque had been Case where Lord Ram was constructed at all, born or where the whether the Mosque was erected? architectural evidence showed the same and what stands at such site in the present day. 11 18. Document: In general parlance, a document is any matter written upon a paper in some language. However, as per Section 3, it means any matter expressed or described upon any substance, paper, stone or anything by means of letter or marks. It includes ‘milkman’s score’; ‘exchequer’s tallies’ a ring or banner with an inscription, a musical composition, a savage tattooed with words intelligible to himself. It also includes letters or marks imprinted on trees. With technological advancement a video recording, a tape recording, electronic mails are all considered to be documents. 19. Evidence: The word evidence is derived from the Latin word evedei meaning evident, clear, apparent or straight. Thus under S. 3 of the Act, Evidence includes 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. It also includes all kinds of documents (i.e. electronic records also) produced for inspection before the Court. 20. The following cannot be construed as evidence before the Court: i. Statement before the police ii. Comments before the court under S. 313 of the CrPC as not under the oath. iii. Any statement made in the presence of a police officer under section 25 shall not be recorded as evidence as not under oath. iv. Statements made by the accused cannot be considered as evidence as the section clearly provides that only the statement of witnesses shall be regarded as evidence. For an accused to be allowed to give evidence before the court, he needs to make an application to the Court and be under an oath. However, this is rarely done as the accused will have to face a cross-examination if he wishes to testify. 21. Instruments of Evidence: i. Oral evidence as stated by the witnesses ii. Documents iii. Real Evidence or A Topic Evidence: where the Judge himself perceives in the course of the trial on the basis of demeanour of the witnesses, visiting the site at which the offence was committed, in respect of the injuries etc. iv. Video recordings, etc. 22. In the case of N. Jayarman v. State of TN & Harischandra v. State of Delhi it was held that the maxim ‘falsus in uno falsus in omnibus’ which means that if a thing is false in respect of one, it must be taken as false in respect of all, shall not occupy the status of law in India and it is the duty of the Court to make a difference between each element of fact produced before it. It is however considered to be a rule of caution. (Kulwinder Singh v. State of Punjab). 12 DIFFERENCE BETWEEN PROVED, DISPROVED AND NOT PROVED S. Basis of Proved Disproved Not Proved No. Distinction 1. Nature It is a positive It is a negative It is in term which term and is the between the court converse of proved and takes into proved i.e. it is disproved consideration not to the depending on to come to a satisfaction of the facts and certain the Court. It is circumstances conclusion to akin to being of the case. its satisfaction false. 2. Judgment by When a fact is When a certain Chances of Court proved, the fact is disproved providing Court gives no further further the judgment question arises evidence to in favour of about its further prove such a the person proof. fact is who proves possible. the facts on basis of some oral or documentary evidence. 3. Illustration: The Court The Court A takes the A is accused believes this checks the same plea of taking of murdering circumstantial with the a medical test B on F.C. evidence and hospital, which but does not Road. acquits A. has no records produce any A states that of such patient. evidence to at the time The alibi is substantiate of the disproved the same. commission Thus, the of the statement of offence he the accused is was taking a still not medical test proved but at Ratna may be Hospital and proved in due provided course. medical reports. 3.1.2: Probability Test: Presumptions 1. The law of evidence provides that a court can take into consideration facts even without calling for proof i.e. they may presume some facts. 2. In the law of evidence presumption means an inference, affirmative or negative, of the existence of some fact, drawn by judicial tribunal, by a 13  process of possible reasoning from some matter of fact which is judicially noticed or admitted or established by legal evidence to the satisfaction of the court. 3. The inferences or presumptions drawn are based on the wide experience or the existence of some nexus between the facts. 4. Presumptions may be drawn from the course of nature, the course of human affairs, from the usage in society and transaction in business. For example, from the fact that a letter has been posted, a presumption may be made that it reached the addressee OR A owns a watch which is stolen and B has possession of the same watch. It may be presumed that either B stole it or received it from a thief knowing it to be stolen. 5. Presumption is of 3 kinds: (1) Presumption of fact or natural presumption; (2) presumption of law (Irrebuttable or rebuttable); (3) Mixed presumptions or presumptions of fact and law. 6. Presumptions of fact are inferences which are drawn naturally from the observation of the course of nature and the constitution of the human mind. EX: Certified copies of foreign documents or maps; books, maps or documents of public usage when published the court shall presume that the person who published did the same. 7. Presumptions of law are of 2 kinds: (1) Irrebuttable or Conclusive; and (2) Rebuttable. i. Irrebuttable Presumptions: They are those legal rules which are not overcome by any evidence that the fact is otherwise. This kind of presumption of law is conclusive. EX: In a criminal case, a child below the age of 7 years shall be presumed to be innocent. No evidence to prove he was guilty shall be allowed before the court. ii. Rebuttable Presumptions: They are certain legal rules which require a certain amount of evidence to support the allegation. Such presumptions may be rebutted by evidence of facts to the contrary. Such presumptions are conclusive in absence of such evidence. EX: a man is presumed to be innocent until he is proven guilty; a child when born in legal wedlock shall be presumed to be legitimate. 8. Mixed Presumptions: of law and fact are chiefly confined to English law of real property and the same is not provided for in Indian law. 9. May Presume: Whenever the court may presume a fact, the Court may take notice of the fact without taking proof or may call upon a party to prove the fact. The Court has discretion to presume a fact or not to presume it. EX: A document which is 30 years old is produced from proper custody, the court may presume that the document was signed and written by the person who purported the document. 10. Shall Presume: The court cannot exercise its discretion when the words of a provision have the words “shall presume”. The Court in such a case will be compelled to take a fact as proved. The Court will be at a 14  liberty to allow the party to adduce evidence to disprove the fact so presumed if the party is successful in doing so. 11. Conclusive Proof: When a fact is a conclusive proof of another fact, the court has no discretion at all. It cannot call upon the party to prove nor call the opposing party to disprove the fact. EX: when the court in one case concludes that A is the wife of B and in another case it is questioned as to whether A and C are married. It shall be considered to be conclusive proof from the earlier case that A is married to B. DISTINCTION BETWEEN PRESUMPTION OF FACT AND PRESUMPTION OF LAW S. No. Presumption of Fact Presumption of Law 1. It is based on logic, human It is based on provisions of law experience and laws of nature 2. It is always rebuttable and It is conclusive unless rebutted goes away when explained or as provided under the rule rebutted with positive proof. giving rise to presumption. 3. Its position is uncertain and It is uniform and certain. transitory 4. The court can ignore such Courts cannot ignore such presumption however strong it presumption. might be. 5. It is derived from the laws of It is derived from established nature, prevalent customs and judicial norms and has become human experience a part of legal rules. 6. The Court can exercise its The court is bound to draw discretion while drawing such such presumption and it is presumption. mandatory. 7. Examples: when a person is Example: whatever has been missing for 7 yearshe is told to the telegraph office is presumed to be dead, a child told to the receiver; certified below the age of 7 years is copies of foreign documents presumed to be innocent and are presumed to be right. cannot be proven to be guilty. 3.2: Sections 5-16 1. Section 5 i. It declares that in a suit or proceeding evidence may be given of the existence or non-existence of (1) facts in issue, and (2) of such other facts as are declared to be relevant in S. 6- 55 and of no others. ii. Thus, it explicitly excludes all that which is not mentioned in Ss. 6 to 55. A party trying to adduce evidence has to show that such evidence adduced is relevant under any of the sections as mentioned. All evidence excluded by the Act shall be inadmissible even if it helps in the ascertainment of truth. iii. The Court must thus come to a conclusion by confining and considering itself strictly to the provisions of the Act and come to the conclusion of 15  the relevancy of a fact on basis of the Act and not by way of common sense or otherwise. iv. A court cannot on the basis of public policy exclude evidence relevant under the Act. v. Relevancy is a question of law to be decided by the Judge and shall be decided when raised and not when the judgment is being given. If there is a doubt with regard to the relevancy, the Court must declare in favour of the relevancy rather than irrelevancy. vi. Evidence that is partly relevant and partly irrelevant, if inseparable shall be declared as wholly inadmissible. If separable on the other hand, the relevant evidence can be separated from the irrelevant evidence, then only the relevant evidence shall be admissible. vii. If the evidence is irrelevant and admitted it can be objected to at any stage even in the highest appellate court. However, if the evidence is relevant and the proof is improper and the evidence is admitted, no objection can be raised. viii. The question of relevancy being a question of law may be raised at any stage, however the question of proof being a question of procedure can be waived. ix. In case of a document, if it is admitted as an exhibit, no objection can be raised. Any objection shall be raised before the marking of a document as an exhibit. Thus a document cannot be de-exhibited at a later stage on the ground that it is not legally proved. x. In the explanation to S. 5 it is clearly stated that a person has the right to present evidence in a Court of law if that evidence is relevant under S. 6- S. 55; however, if some provision of the CPC disentitles a person to give evidence with respect to a particular fact, he will not be entitled as of right to adduce evidence in that court. For example, a document which has not been submitted to the Court at the time of filing of the suit cannot be brought before the Court at any later stage. DISTINCTION BETWEEN ADMISSIBILITY AND RELEVANCY S. NO. ADMISSIBILITY RELEVANCY 1. It is not based on logic but It is based on logic and strict rules of law probability 2. The rules of admissibility are The rules for relevancy are described after S. 56 of the Act described in Ss. 6 to 55. 3. The rules of admissibility are The rules of relevancy to declare whether certain declares what is relevant. type of relevant evidence is to be admissible or not. 4. Admissibility is means and of Rules of relevancy are where modes for admissibility of evidence is admissible. relevant evidence. 5. The facts which are admissible The facts which are relevant are necessarily relevant. are not necessarily admissible. 16 2. Section 6: Principle of Res Gestae i. It states that the facts which are so connected with the facts in issue that they form a part of the same transaction are relevant facts. Ss. 6-9 lay down the various ways by which the facts are connected to principal facts thereby making them relevant. Hearsay evidence under this section shall be relevant if it forms a part of the same transaction. Thus res gestae is an exception to the rule of hearsay evidence not being admissible. (Gentala Rao v. State of AP) ii. Same transaction has not been defined anywhere in the act but Stephens states that a transaction is a group of facts, connected together to be referred to by a single legal name whose subject of enquiry is an issue. iii. The test to determine whether a fact forms a part of the same transaction depends on whether they are related to each other in point of purpose, cause and effect, as probable or subsidiary acts to constitute one continuous action. iv. To ascertain whether a series of acts are parts of the same transaction, it is essential to see whether they are linked together in such a way to form a continuous whole. v. This section is based on the principle of res gestae. vi. The latin word ‘res’ means thing and ‘res gestae’ means things done, transaction or essential circumstance surrounding the subject. vii. This has been used in 2 senses. In the restricted sense it means world’s happenings out of which the right or liability in question arises. Thus it should be so connected to the transaction to form a part of such transaction. In the wider sense, it covers all the probative facts by which res gestae are reproduced where the direct evidence or perception by the Court is unattainable. viii. Example: A is accused for the murder of B by hitting him with a club. Therefore whatever was done or said by A or B or by a by- stander during the beating or shortly before or after such act will form a part of the same transaction and is therefore a relevant fact. ix. Thus, it is to be noted that all action on part of the wrong doer after his actions have ceased and some time has elapsed do not form a part of res gestae. x. On the other hand, whatever may be said from the inception of the offence to the consummation and whatever said in continuance of the transaction by the accused form a part of the principle transaction and may be given as evidence as part of res gestae. xi. Therefore it is necessary that the evidence must be of immediate casual relation to the acts done and should not be broken by any voluntary evidence that a witness manufactures himself. xii. When the transaction consists of a series of physical acts, in order that the chain must constitute the same transaction, they must be connected by proximity of time, proximity of place, continuity of action etc. 17  xiii. No uniformity exists in the length of time over which the transaction. The act or transaction may be completed within a moment of time or over days, weeks or even months depending from case to case. For example, in a oral contract, the transaction may cover only a few minutes or may take weeks or months in case of negotiations on the terms of the contract. xiv. No limitation can be set on the boundaries within which the transaction can take place. Sudden shooting or stabbing may occur in one room, however, rebellion may cover the entire breadth of the country. xv. Words spoken by the person doing the act, the person to whom they were done or the by standers plays an important role in forming a part of the same transaction. They are admitted on the basis of them being closely connected to the principle act, not being fabricated and not being a mere narration of the incident. xvi. If a statement is made in answer to a question after a lapse of time, it shall not amount to res gestae. xvii. When a girl was raped and made a statement to her mother after the rape and when the culprit had gone away and the girl comes home from the scene of occurrence, it shall not be treated as admissible under section 6. xviii. FIR shall be treated as res gestae if the person witnesses the crime, he makes a cry of such crime being committed to the people in vicinity and then goes to the police to file an FIR. The fact that some time has elapsed from the occurrence of the crime is immaterial. xix. Case: Mahendra Pal v. State The place of murder was occupied by a number of people other than the deceased and the eye-witness. These other people were informed by the eye witness of the crime. The statements of such people were held to be admissible. xx. A assaults B, C and D shout that ‘A is assaulting B’. The fact that C and D were shouting the same is admissible. 3. Section 7 i. Facts which are connected to the facts in issue or relevant facts in the following modes shall be relevant under this section : a) The facts as being the occasion or cause of the facts in issue or relevant facts. b) The facts as being its effects, immediate or otherwise c) Facts as giving opportunity for its occurrence d) Facts as constituting the state of things under which the act has occurred ii. Section 7 is wider in scope than Section 6 as section 6 deals with relevant facts whereas Section 7 provides for various classes of facts which become relevant. However, both these sections go hand in hand. 18 iii. Cause or occasion of facts: when the evidence relates to a set of circumstances which constitute the cause or occasion or happening of certain facts is shall be considered relevant. For example, A was killed by B. A refused to have sex with B on his offer. A was alone at home at the time of her murder (being the occasion) and her refusal on B’s offer being the cause. iv. Effect: An effect is the ultimate result of an act being done. It not only keeps the records of the acts being done but also provides records for the nature of acts so done. For example, tape recorded evidence may be provided to prove a bribe. v. Cause and Effect: These two elements go hand in hand. For example, A was killed by B. A refused to have sex with B on his offer. A was alone at home at the time of her murder (being the occasion) and her refusal on B’s offer being the cause. The effect being A was killed. vi. Opportunity: The chance given to someone to commit an offence or carry out an act or omission. For examples, a woman was alone in her house when she was raped is admissible to show that it afforded opportunity to the person committing rape. vii. State of things under which the incident took place: the surrounding circumstances under which a certain act took place, for instance the health of the deceased, the relationship of the parties, etc. For example, A killed his wife B. Their relationship was not cordial and they constantly fought. Moreover, she was having an extra-marital affair. These are the state of things which constitute relevant facts under this section. viii. Tape Recorded Events a. By the amendment of 2000, a tape recorded statement can also be regarded as a document and may be used as evidence. b. Tape recorded evidence is considered to be res gestae under Ss 6 & 7 of the Act. c. In the cases of: Pratap Singh v. State of Punjab, the plaintiff was the Chief Minister and had accepted a bribe. The same was proved by way of tape recorded evidence and was accepted by the courts. d. R.M. Malkani v. State of Maharashtra and C.R. Mehta v. State of Maharashtra, certain criteria were laid down for tape recordings to be accepted as evidence. They are:  Identification of voices.  The conversation must be relevant to matter in issue.  Accuracy of the tape recording.  Possibility of tampering with the tape recording should be ruled out. The tape should thus be sealed immediately and be opened only before the court. e. This type of evidence may be used for contradiction, corroboration or acceptance. 19  f. This evidence is to be accepted with great caution and should be corroborated with other evidence. 4. Section 8 i. It deals with the relevancy of motive, preparation and conduct. ii. It lays down that (a) a fact which constitutes or shows a motive for any fact in issue or relevant fact is relevant; (b) a fact which constitutes or shows preparation for any fact in issue or relevant fact is relevant; (c) previous or subsequent conduct of any party or of any agent to any party in a suit or proceeding, in reference to such suit or proceeding or in reference to any facts in issue or relevant facts, are relevant provided such conduct influences or influences the fact in issue or relevant facts; (d) previous or subsequent conduct of any person an offence against whom is the subject of suit or proceeding, is relevant provided such conduct influences or influences the fact in issue or relevant facts; (e) statements accompanying and explaining facts- explanation 1; (f) statements made in the presence and hearing of any person whose conduct is relevant provided the statement affects such conduct- explanation 2. iii. Motive: A motive is an emotion or desire which is the stimulus which causes or leads to such acts. If such motive is brought before the Court, and there is no direct evidence of the same, it has to be inferred by the court. Further, if such motive is proved, its adequacy shall be decided upon by the Court (there is no standard rule for adequacy). Absence of proving motive completely by the prosecution will lead to the accused not being convicted. For example, in the case of State of MP v. D. Kumar, Munnibai was killed. Kumar was the tenant of the house of Munnibai’s father-in-law who had an evil eye on her. Munnibai told her mother-in-law who told her husband. The father in law asked Kumar to vacate the house. This was taken as motive for the murder. iv. Preparation: evidence tending to show that the accused made preparation to commit a crime is always admissible. Preparation only evidences a design or plan to commit an act. Preparation is a admissible as it proves that the person has an intention to commit the crime on the availability of an opportunity for its execution. Preparation along with attempt is regarded as a crime. For example, A and B were accused of killing C, a guest at their hotel. The night of the murder, the maids and the guard were sent away so that no one would witness the murder. The next day she was asked not to clean their room. This is relevant to show the preparation of the crime. v. Conduct: Conduct is an important ingredient as regards the guilt of the state of mind which is reflected in one’s conduct. Conduct becomes wrongful when the element of mens rea becomes very strong. Thus conduct is admissible when it directly influences the facts in issue or relevant facts or in relation to a suit or proceeding. For example, the conduct of an accused who is a conspirator but dead shall not be 20  admissible. Previous attempt to commit a crime shall be admissible. Absconding just after the occurrence of evidence against him shall be admissible. vi. Statements of a party to a proceeding accompanying and explaining the acts shall be relevant only if explains the conduct of the parties. Further, such statement must amount to a complaint to be considered as admissible or relevant. Such a complaint must be voluntary and not an answer to a question. vii. Statements affecting the conduct of a party to a proceeding shall be relevant. These statements should be put before a court in the presence of the party. For example, A kills B. C shouts stating that the police is coming to arrest the murderer. A absconds. This would make C’s statement relevant. 5. Section 9 i. Section 9 provides the facts necessary to explain or introduce the relevant facts. Accordingly, the following facts are relevant (SIR TIRE): a. Facts which support an inference suggested by a fact in issue or relevant fact. b. Facts which are necessary to introduce the fact in issue or relevant fact c. Facts which rebut an inference suggested by fact in issue or relevant fact. d. Facts which fix the time or place at which the fact in issue or relevant fact happened e. Facts which establish identity of anything or person whose identity is relevant f. Facts which show the relation of parties by whom any such fact in issue or relevant fact was transacted g. Facts which are very necessary to explain fact in issue or relevant fact. ii. Facts supporting inference: these are the facts which are neither relevant as fact in issue nor relevant fact as they only support an inference. For example, after murdering B, A was seen running away from the village. Absconding supports the inference that A might have committed the murder. iii. Introductory Facts: The facts which are introductory of a fact in issue or relevant fact are of great importance in understanding the real nature of the transaction. For example, C sues D for a libel imputing disgraceful conduct to C. D affirms that the alleged matter is libellous but true. Thus, the relation between the parties when the libel was published is a relevant introductory fact. iv. Rebutting Facts: When some facts contradict the fact in issue or relevant fact they become relevant. For example, A is alleged of murdering B. A is seen to be driving away from the scene of the crime. 21  However, at the time of commission of the crime he was in a business meeting with some clients (alibi). Thus, the alibi’s statement will be a relevant fact. v. Time and place: Facts which fix the time and place of the occurrence are relevant. This becomes very important when the accused pleads alibi. For example, A is alleged of murdering B. A is seen to be driving away from the scene of the crime. However, at the time of commission of the crime he was in a business meeting with some clients (alibi). Thus, the time and place becomes a relevant fact. vi. Relation Facts: Facts showing the relationship of the parties becomes relevant. vii. Explanatory Facts: there are many pieces of evidence which have no meaning at all if considered separately but gain importance when so connected with other facts. Such facts provide an explanation for the fact in issue or relevant fact. For example, A is tried for a riot and is proved to have marched at the head of the mob. The cries of the mob are relevant as explanatory of the nature of the riot. viii. Identity of Things: when an identity of a thing is in question, every fact which is helpful in identifying the same shall be relevant. For example, in a case where the was a murder and robbery, the house lady was called to identify the articles of the deceased and other belongings; Identification of the deceased was done by way of the clothes and shoes he was wearing (Har Dayal v. UP) ix. Identity of Persons: Test Identification Parade under Section 9:Principle a. Identification of a person in certain cases becomes very necessary to prove fact in issue or relevant fact. Thus the test identification parade (TIP) is important. b. The Supreme Court in Ramanathan v. TN, stated that one of the methods of establishing the identity of the accused is TIP. Further, the test enables the investigating officer to ascertain whether the witness has really seen the accused at the time of commission of the crime and also the capacity of the witness in identifying the accused. Thus, TIP enables a witness to identify the culprit before the Magistrate. c. Prior to 2005, there was no provision for TIP in law. It was by way of amendment that the same was included under Section 54A of the CrPC. d. TIP helps the investigating authority and the accused. e. Justice and fair play can be assured to both the accused and the prosecution. f. Jarapala Deepala v. State of AP, the TIP does not constitute substantive evidence but only corroborate any statements in court. Further, an accused on bail cannot be excused from being subject to such test. x. Identity of Persons: Test Identification Parade under Section 9: Procedure 22  a. The investigating authority should send a requisition to the concerned Magistrate for conducting TIP of the accused person who is in jail or has been granted bail. b. TIP is conducted by Executive Magistrates or Sub Divisional Magistrates. c. The magistrate then informs the jail authorities to make necessary arrangements regarding the date, time and day. d. The Magistrate selects 2 persons who have no relation with the accused or the witness called “Punch Witnesses” e. Magistrate then selects dummy persons having similar appearances to that of the accused. For every accused there should be 5 dummy persons. f. The Magistrate then ensures that the accused and the witnesses sit in separate rooms and also makes sure that the witnesses cannot meet the accused before conducting the test. g. The magistrate must also see to that the no third person or police officer is in the room. h. The magistrate also takes the precaution to ask the accused questions to give him an opportunity. i. If there is a distinguishing mark on any one of the persons, a bandage or some other means should be used to cover it and the same should be done for all. j. As soon as the witness identifies the accused, he must be asked as to why he identified the said accused. k. The entire process should be recorded by the Magistrate in the IP memorandum along with time spent etc. l. Objections, if any, by the accused are to be recorded. m. After completion of the process, the Magistrate has to obtain the signature of the Punch Witnesses on the memorandum along with his own signature, the day, date and time. n. The magistrate hands over the memorandum to the investigating authority to carry on further investigation. xi. Identity of Persons: Test Identification Parade under Section 9: Challenges a. Police are present through the process. b. Witnesses are shown the accused before the TIP c. TIP is carried out by unauthorised persons d. Mental conditions of the witnesses at the time of commission of the crime was not proper, e. Light conditions were bad f. There was a delay on part of the authority in conducting the test. This would result in doubt in the minds of the witnesses. xii. A single testimony along with delay in conducting TIP will not be sufficient ground to convict an accused. xiii. If there is considerable delay in conducting the TIP and furthermore, the test was not conducted properly, the accused shall be given the benefit of doubt. (Govinda v. State of Maharashtra) 23 xiv. The purpose of TIP is to check the memory of the witnesses and also to benefit the prosecution in deciding who shall be considered as an eye witness. (Heera and anr. V. State of Rajasthan) xv. Photo Identification: There is no stable provision for identification of a person by way of a photograph by the witness. However, the same is done by the investigating officer at times. Photograph of the suspect is not shown by the investigating officer to the witnesses before the actual identification process. The same is required to be recorded when the suspect is available for a video recording. The photograph is not to be considered as accepted evidence. Further, identification of an accused after considerable amount of time has elapsed will not be permissible. 6. Section 10 i. Section 10 deals with the admissibility of evidence in a conspiracy case and is based on the theory of implied agency i.e. every conspirator is an agent of this association in carrying out the objects of the conspiracy. ii. Conspiracy as defined under Section 120 A of the IPC states that, “When 2 or more persons agree to do or cause to be done, an illegal act or an act which is not illegal but illegal by its means, is said to be a conspiracy. Provided that no agreement other than an agreement to commit an offence shall amount to criminal conspiracy. iii. Section 10 states that if there is reason to believe that 2 or more persons conspired together to commit an offence, then anything (a) said, (b) done or (c) written by any of these persons in pursuance of their common intention, is to be considered as a relevant fact against each other to prove the purpose of conspiracy. iv. It was held in the case of Joginder Saraswati v. State of TN, that the first condition to apply S. 10 is establishing the fact that a conspiracy existed. v. To establish a conspiracy the following need to be established: a. There must be an agreement between 2 or more persons who are alleged to conspire; b. The agreement should be to do or cause an illegal act or an act which is not illegal but pursued by illegal means. vi. If the said condition is fulfilled, then anything said, done or written by any of these persons in pursuance of their common intention, is to be considered as a relevant fact against each other to prove the purpose of conspiracy. vii. If anything said, done or written by any of these persons after the intention was formed by any of them viii. It would also be relevant against another if anything was said, done or written if it was after he left the conspiracy ix. Further, such evidence can only be used against a conspirator and not in his favour. 24 x. Therefore anything said, done or written before the common intention was established or after the conspiracy was over is irrelevant under this section. For example, the Lamington Roads Case, one of the persons attached to the crime was interrogated and he admitted to how the crime was committed. However, this was not treated as a conspiracy as the conspiracy had already taken place. xi. Conspiracy under English Law and Indian Law: a. English law prohibits common object, Indian law prohibits common intention. b. In English law, if the person leaves the conspiracy, he will not be held liable whereas it is not the case in Indian law. 25  xii. CASE: Bhadri rai Case. Facts: Bhadri was caught by the police for the possession of stolen ornaments in his house. While being arrested he offered a bribe to the inspector. The inspector took him to the police station. His friend Rajni also offered money to the inspector on reaching the station to stop further proceedings. Held: the Court held that when both the accused had approached the inspector to bribe him, they conspired to bribe the police. The statement of their bribe showed a common intention and hence was relevant against both. 7. Section 11: i. This section deals with facts which are otherwise irrelevant becoming relevant if: a. They are inconsistent with the facts in issue and relevant facts b. They make the facts in issue and relevant facts highly probable or improbable. ii. For example, the question as to whether A committed a murder at Cal on a certain day is a fact in issue; the fact that he was in Lahore on the same day (relevant fact and the fact that around the time when the crime was committed he was a distant place would render it highly improbable to commit the murder. iii. Under section 32 of the act, a statement made by a dead man is inadmissible, however, it what he says is immaterial but it is material that he said it, may be admissible under Section 11 of the Act. iv. Under i (a) the proof of the existence of some fact becomes relevant as it disproves the fact in issue. There are 5 classes of cases that are considered: plea of alibi, non access of husband to show legitimacy of issue; survival of the deceased; commission of the crime by a third person and lastly self-infliction of harm. v. The plea of alibi: The plea of alibi is when a person is charged with an offence at a certain place; however he pleads that he was not at the location of the crime. It thus becomes relevant for him to prove that he was not at the place of the commission of the crime as is connected with the fact in issue which is the commission of the crime. However, at the same time it is necessary for the prosecution to continue proving the case at hand. For example A is alleged to have murdered B at Pune. A was at Bombay at the same time. A being at Bombay becomes relevant. vi. Non access of a husband to show legitimacy of an issue: if for example A has a baby C 6 months after her marriage, B her husband believes that the child is illegitimate. It would be relevant for him to prove that he had no access to his wife before the wedding. vii. Survival of the deceased: If A is accused of murdering B on 10 October 2010, and A deposes that he saw B on the 31st of October. Such information would be relevant. 26 viii. Commission of a crime by a third person: A is charged with the murder of B. However A can prove that C murdered B, because the fact that C murdered B is brought forth now becomes relevant. ix. Self infliction of harm: A is charged with the murder of B. A can prove that B committed suicide which resulted in his death. Evidence of the same can be brought by way of S. 11 x. Under i (b) facts are relevant only because only if they are proved either they become highly probable or improbable regarding the existence or non-existence of the fact in issue or other relevant facts. For example, A is charged with forgery. It is tried to prove that he was in possession of other forged documents. Such evidence will be admissible. xi. This sub clause deals with both the affirmation and negation of the fact in issue or relevant facts. xii. If the facts are of little importance they will not be admissible under this section. For example, mala fide intention in commission of a previous crime cannot be used to prove mala fide intention in the present conviction. Furthermore, they should be of a probability more than the standard probability. 8. Section 12 i. This section deals with the determination of damages when a suit for damages is claimed by the party to suit. In such a suit, facts which are evidence tending to determine i.e. increase or decrease, the damages is admissible. ii. The court can determine the amount of damages in an action based on the tort committed or the contract entered into. iii. Section 55 of this Act lays down certain conditions under which evidence of character may be given in civil cases to affect the amount of damages. iv. Section 73 of the Indian Contract Act, states the rules governing damages in respect of a contract. v. For example, in a suit for libel the defamatory statements made before or after the commencement of the suit can affect the amount of damages. vi. Damages are of 2 types: General Damages (which are a result of the wrong complained of) and Special damages. vii. Other kinds of damages are: a. Nominal damages: which are given in order to recognise the rights vested in a person. b. Contemptuous damages: damages given when even the plaintiff is wrong. c. Aggravated or Exemplary damages: damages given on the degree of the damage caused to the person. d. Prospective damages: the trouble that would be faced in the future will be taken into consideration which accounting for damages. 27  viii. Sheikh Gaffur v. State of Maharashtra: in this case, the plaintiff had a field of crops which were damaged. Compensation was awarded taking into consideration the loss of profits in case of good crops (prospective damages) ix. A photographer in a marriage was absent. Exemplary damages were awarded taking into consideration the feelings of the bride and bridegroom x. Factors to be taken into consideration while awarding damages: a. Attendance expenses b. Interest thereon c. Earning capacity of the person aggrieved d. Loss of consortium xi. JUSTICE DIPLOX FORMULA: A low interest rate is used due to the conversion of future earnings to the present value. This formula was used in the case of GM of RTC, Trivandrum v. Meenakshi Thomas. 9. Section 13 i. When there is a question with regard 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 may be proved. b. The particular instances in which the right or custom was claimed, recognised, exercised or in which the existence was disputed, asserted or departed from, may be proved. ii. A custom is a particular rule which has existed from time immemorial and has obtained the force of law in a particular locality. iii. For a custom to be valid in India it must have 4 essential attributes: (1) it must be immemorial; (2) it must be reasonable; (3) it must have continued without interruption from its inception; (4) it must be certain in respect of its nature. iv. Further, it must be both compulsory and optional, it must be certain and constant; it must not be forbidden by law and lastly it must not be against the morality or public opinion. v. Kinds of Customs: a. Private Custom: is that custom which governs a particular family such as the custom of an estate b. General Custom: those customs which are common to any considerable class of persons (Section 48). They are: Local Customs (deshachar i.e. Persons in the region of Bhuj, Kutch, Gujarat etc. are originally Mohammedan but they follow the Hindu religion in waqf property); Caste or Class Custom (it governs persons belonging to a particular caste or class for example, Gujarati’s condemn eating non-vegetarian); and Trade customs. 28  c. Public Customs: there is no exact definition of such kind of custom and there is no difference between general custom and such type of custom. vi. Usages are habitual in nature and this may not be practiced from time immemorial. vii. Right as defined by the Courts is said to include all types of rights: rights of ownership, easementary rights; public rights, private rights and corporeal and incorporeal rights. viii. A custom is a mixed question of law and fact. First certain facts need to be proved to further prove the existence of certain customs which may be inferred from the facts proved. ix. A custom may be proved in the following ways: a. By opinion of person who are likely to know of their existence and having special knowledge thereof. b. By statements of persons who are dead or whose attendance cannot be procured without unreasonable delay or expenses, provided they were made prior to any controversy taking place and were made by persons who would have been likely to have been aware of the existence of such a custom c. By any transaction by which the custom in question was claimed, created, modified, asserted, denied or which was inconsistent with its existence d. By particular instances by which a custom was claimed, recognised, exercised or knowledge of its existence was disputed, asserted or departed from. x. Judgments, orders and decrees are relevant to prove a custom but they cannot be considered to be conclusive proof of the same. But when a custom has been brought to the notice of the court and is judicially recognised, the same will obtain the force of law over time. 10. Section 14: i. Facts which show the state of mind, such as, the intention, knowledge, negligence, ill-will, good faith, rashness or bodily feelings are relevant when such state of mind or bodily feeling is in issue or relevant. ii. The state of mind of a person or accused can be proven in the following way: a. It may be proved by way of a statement by the person whose mental condition is in dispute (which is unreliable in most cases). b. The mental and physical conditions of the person may be proved by the evidence of other person who is well aware of the mental conditions or bodily feelings by conduct or correspondence. (physical and psychological facts) c. By way of evidence of all simultaneous manifestations of the given condition, by conduct, conversation or correspondence as part of the res gestae. 29  d. By way of any collateral evidence to prove the state of mind of the person in question. e. By way of similar acts done in the past the state of mind may be proved which is admissible however the similar acts to prove the facts in issue or relevant fact is inadmissible. f. Both previous and subsequent events are admissible to prove the state of mind. However, previous events are of importance as they show the influences on the state of mind in the investigation at present. g. Mens rea required to be proved in certain circumstances as stipulated by the IPC may be proved by way of circumstantial evidence. h. Any fact that proves guilty knowledge may be proved and will be relevant. i. Statement by an accomplice may be admissible only if it is used to corroborate direct or indirect evidence connecting the accused with the crime. iii. Examples: receiving stolen goods knowing them to be stolen; fraudulently delivering them to another person; dishonest misappropriation of property; shooting a person with intent to kill him. iv. A is charged with sending threatening letters to B. The letters sent by A may be proved as showing the intention in the letters. v. Explanation 1: the relevant state of mind should be shown not to exist generally but with respect to the fact in issue and relevant facts. vi. Explanation 2: in the trial of the accused where the previous commission of an offence is relevant, the previous convictions of the accused person shall also be relevant. vii. For example, A is tried for the murder for intentionally shooting B. In this case intention would be material. If A shot B accidently, some minor offence would be said to have been committed. The fact that on other occasions as well, A tried shooting at B and kill him thereby would prove murder. If A was in a habit of shooting people will not prove his intention to kill B. He must have shot others intentionally, however shooting B may have been accidental. 11. Section 15: i. It lays down the rule of admissibility of evidence in cases where the question is whether a particular act was done accidentally, intentionally or with knowledge. ii. It is necessary that all the acts form a part of a series of similar occurrences because if the act was not accidental, it must have been done intentionally or with knowledge. iii. Section 15 states that of the question is whether an act was done intentionally or accidentally and there is a series of similar 30  occurrences or events and the same person is involved it shall be relevant. iv. For example, A is accused of burning down in house in order to obtain the money for which it is insured. The fact that A lived in several houses successively, each of which caught fire thereby resulting in A receiving the insured sum is relevant because it shows that the fires were not accidental and was done intentionally. v. Similar facts under this section are admissible only if it is shown that (1) it is shown that the acts are of the same specific kind; and (2) they formed a part of a series of occurrences in each of which the person committing the act was concerned. vi. One single instance cannot constitute a series of similar occurrences and so will not be admissible. vii. The acts tendered as evidence should have been done proximately to the time of the act in question. 12. Section 16: i. Section 16 lays down that whenever there is an act in question, whether the particular act was done when the existence of any course of business is natural to produce a certain result, the mere proof of the existence of such course of business will give a presumption that the result was produced. ii. For example, a question as to whether a letter reached B is posed. The fact that it was posted in due course of the business and was not returned by the Dead Letter Office is relevant. iii. This section does not compel a court to presume and does not declare the same as inevitable but permits the court to make an assumption if necessary. iv. Course of business means any professional or mercantile transaction of a business. It is done by a private person or by public officials. Therefore it is generally presumed that the conduct of people in official and commercial matters is uniform. v. Thus the natural course of business in a certain transaction is relevant and may be admissible under section 16. 3.3: Admissions: 1. Ss. 17 to 31 deal with admissions and confessions. Confession is a kind of admission. 2. Section 17 defines admissions as , “An admission is a statement which: i. Suggests an inference to a fact in issue or relevant fact ii. Is oral or documentary or contained in electronic form iii. Is made by any person under certain circumstances.” 3. Principles of Admissions: i. A person by way of admission, admits his liability because the statement results in the inference of such liability 31  ii. It is the last piece of evidence against the person making it. It is however, open to the person making the admission to show why the admission should not be acted upon. iii. If the person voluntarily admits something before the judicial or quasi-judicial authority and such statement is not retracted before being acted upon by the other party, then it acts as an estoppels on the person making it. iv. Admissions are grouped under 2 heads: (1) Civil Cases [ss. 17- 23 & S. 31]; and (2) Criminal Cases (recorded as confessions) [ss. 24- 30] 4. Thus in civil and criminal matters where admissions are recorded, they are in the form of judicial and extra-judicial admissions. 5. In judicial admissions, the formal admission is addressed to the court and is a part of the proceeding. It is made on record in file of the court. 6. Evidentiary Value of Admissions: i. The SC observed in the case of Banarai Das v. Kashi Ram, that admissions are a very weak kind of evidence and the court may reject them if they are untrue. ii. Further in the case Rakesh Wadhwar v. J.I. corporation, the SC held that admissions are not conclusive proof of the matter admitted unless they operate as estoppels. Therefore the value of evidence depends on the circumstances under which they are made and also by whom it is made. iii. If one party in a suit proves that the other party has admitted his case then the work of the court becomes easier. But in a certain case, admissions may be used in discrediting the parties’ statements. Thus the evidentiary value of admissions is based on the circumstances in which they are made. 7. Sections 18, 19 and 20 list the classes of people who may be allowed to make admissions in the course of the proceedings. Proceedings under these sections can be both civil and criminal in nature. 8. These sections list the following people whose statements as admissions shall be relevant when given: i. Parties to the proceedings (s. 18) ii. Agents authorised by the parties (s. 18) iii. Persons occupying representative character (s. 18) iv. Persons having pecuniary interest(s. 18 (1) v. Persons from whom parties derived interest(s. 18 (2)) vi. Persons whose position is in issue or relevant to the issue (s. 19) vii. Persons expressly referred to by the parties in a particular suit (s. 20) 9. Admission by parties to proceedings: Parties include not only those who appear on record but also the persons who are interested in the subject matter of the suit. Hence they are considered as real parties. 10. Depending upon the circumstances, the statements made by the parties interested and persons from whom they derive interest are admissible if they are made during the continuance of the interest of the person making the statements. 32 11. It is also observed that statements made agents are admissible against the principal according to the law of agency because the agent has express or implied authority to make certain statements. In short, the agency must be proved before the admissions of the agent (Kedar Nath v. State of WB) 12. When a party sues or is sued in a representative capacity, for example, as a trustee, executor or the like, the representative is different from the ordinary capacity and only admissions made in the former capacity shall be admissible. Further, such statements are not admissible in a suit against him in his latter capacity. 13. Section 18 (1) speaks about the admissions made by the persons who are jointly interested in the suit. Such joint interest needs to be proved independently from the admissions made. Such joint interest may be of proprietary or pecuniary nature. Only when such case of joint interest which is prima facie is proved will the statement of admissions be relevant. For example, certain good were consigned for carriage, thus both the consignor and consignee have an interest in the goods and therefore a joint interest. 14. Section 18 (2) speaks about the admissions for the person from whom the interest is derived but the statements made should be made to be in continuance of the same transaction. 15. Thus, section 18 considers only 2 important things, namely, the admissions by the agent and the admissions by the persons interested. 16. Section 19 takes into consideration the statements made by persons whose position or liability is necessary to prove as against any party to the suit as admission. For example, A undertakes to collect rents for B. B sues A for not collecting rent from C. Under these circumstances, a statement by C stating that he owed B rent is an admission and may be relevant fact that can be used against A. 17. Section 20 is another exception to the general rule. When a party refers to a third person for some information to have some opinion on the matter in dispute, the statements by such 3rd person are receivable as admissions against the person referring. Thus depending upon the facts and circumstances, the person referred in the suit and admissions recorded are relevant under this section. For example, C’s statement in the previous example. 18. Section 21 states that admissions are relevant and may be proved as against the person or his representatives, but they cannot be proved on behalf of the person making it or his representative interest except in the following cases: i. When the statement is of such a nature as to be relevant as a dying declaration u/s 32. ii. When it consists of a statement of the existence of a bodily feeling or state of mind u/s 14 of the Act and is also recorded as an admission. iii. If the statement is relevant otherwise than as an admission 33  19. The admissions of law are not contemplated under this chapter, only the admissions of fact may be questioned. 20. Section 22 of the Act states that oral admissions as to the contents of a document are not relevant. The contents of the document are proved by itself and not by means of oral evidence. There are 2 exceptions to this rule: i. When a person is entitled to give secondary evidence of the contents of some documents he will be entitled to rely on oral admissions; and ii. U/s 65 secondary evidence of the contents of a document can be given when the original is lost or destroyed or when it is in the possession of the opposite party and so on. 21. Oral evidence of admission may also be given in respect of a document when the genuineness of the document is disputed. 22. Section 23 deals with admissions in civil cases. For the purpose of compromise, negotiations may take place out of the court between the parties. During the process of negotiation, parties make many statements. If such statements are allowed to be proved in the court, then it will be impossible for parties to negotiate and reach a compromise. Further, these statements will not be admissible as evidence. 23. Essential conditions for protection under S. 23 to be made applicable are: i. There must be a civil dispute in question ii. Negotiations should have taken place between the parties iii. Negotiation should have taken place out of the court iv. There must be an express condition from which the court can infer that the parties had entered into negotiations. 24. An admission should be used as a whole and not in part. An admission made by a person cannot be split up and part of it may not be used against him. If there is some other evidence which disproves a part of the admission, the other part must be relied upon. 25. Under the explanation under S. 23, the legal advisor of the party will not be prevented from giving evidence of any communication made in furtherance of any illegal purpose or any fact showing that crime or fraud has been committed since his employment. Confession (If question comes in the paper mention all sections) Sections 24 to 27 deal with Confessions. There are 2 broad heads under which confessions may be studied. They are as follows: Confessions Theory Procedure (Part I and II) Theory: 34 1. Generally speaking, an admission by an accused in a criminal case, admitting his guilt is known as a confession. (Sahu v. UP) 2. Stephen in his Digest of Law of Evidence, defined evidence as “an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime.” 3. Thus according to Section 24 for a statement to amount to a confession, the following conditions need to be fulfilled: i. The statement made is a confession ii. Such confession is made by the accused iii. He states that he committed the crime that he has been charged with iv. He makes a statement which he does not clearly admit his guilt, yet an inference may be drawn that he may have committed the crime. 4. Section 24 states that a confession in a criminal proceeding is considered irrelevant if it appears to the Court that such statement has been caused by: inducement, promise or threat from a person in authority by supposing that he would gain an advantage or avoid any evil in reference to the proceedings against him. 5. Confessions play an important role in criminal proceedings; however the confessions should be made voluntarily and free from any pressure to be accepted by the Court. (Francis Stanley v. Narcotics Bureau) 6. It is under the following conditions that a statement will be considered not to be voluntary: i. If the confessions are a result of a threat, promise or inducement ii. If the same have been proceeded from a person in authority. iii. Confessions relates to the charge in question. 7. For example, the accused sustains an injury. He was examined by a doctor before whom he stated the cause of the injuries. It was held not to be a confession and thus not hit by the provisions of the act. 8. A confessional statement not retracted by the accused even at the later stage of the trial in his examination u/s 313 of the CrPC (Power to examine the accused) can be fully relied upon. 9. The murmuring of the accused all alone to himself that he committed the crime for which he has been tried was held to be a confession in the case of Sahu v State of UP. 10. The principle underlying this section is that no one will voluntarily make any statement which is against his interest unless it is true. 11. The inducement, threat or promise may be express or implied or depending on the circumstances of the case. Further it need not be made by the person in authority directly. Such kind of confession which is induced, in threat or out of promise shall not be considered as evidence. 12. If the confession is made by the accused before a person in authority on oath such confession shall be considered as non-voluntary. Giving an oath would be considered as a concealed threat. 13. Such involuntary nature does not need positive proof, as long as this is apparent to the court. The Judge may conduct an inquiry into such confession made if it is challenged by the defence as being of involuntary 35  nature. Sometimes the involuntary nature of confessions may be seen by the Judge on the face of it without any direct proof. 14. The accused has a right and the court has a duty to exclude confessions made by way of inducement, etc. suo moto. However, there is not burden of proof on the prosecution to prove that such statement of confession was done voluntarily. 15. The inducement etc. should be in respect of the charge against the accused and done in order to help him escape such charge, avoid some evil or gain some advantage. 16. In the case of Ram Din v. Emperor, it was held that restricting the definition of person in authority under section 24 to police officers or the magistrate would be restrictive and hence will include one who by virtue of his position wields some kind of influence over the accused. For example, master of the accused, zamindar of the accused, etc. 17. Section 24 applies even when the person makes a confession is not an accused at the time, but after such confession being made becomes an accused. 18. The confession made is a very valuable piece of evidence and hence should not be made under some influence. Thus it is very necessary that such confession is made voluntarily, it is consistent and true. If such confession is wrong with respect to its material particulars, the confession may be considered to be false. 19. If such confession is true, voluntary and genuine without reasonable doubt, it shall be legal and have sufficient proof of guilt under ordinary circumstances. 20. The statement of confession shall be taken as a whole and not be considered in part. However, there are 2 exceptions to this rule: i. One part of such confession is inculpatory if there is evidence to prove its correctness, and ii. The part that is exculpatory is inherently impossible and thus rejected; the inculpatory part shall be admitted. 21. Kinds of Confession: Judicial and Extra-Judicial Confession 22. Judicial Confessions: i. Confessions which can be made to the court itself or to a Magistrate in the due course of judicial proceedings under section 164 of the CrPC ii. It can be recorded during investigation i.e. before the commencement of preliminary enquiry of the trial. iii. For example, A is accused to have killed B. He may before the trial begins confess guilt before some Magistrate who may record in accordance with the procedure OR A confesses his guilt at the trial before a Sessions Judge will be said to be judicial confessions. 36  iv. Value of Judicial Confessions: a. There is no hesitation to base conviction on judicial confessions. b. However, in the absence of corpus delicti (body of crime) a confession alone cannot suffice to justify conviction. (State v. Balchand) c. Conviction can be solely based on confessions if it is proved that such confession was voluntary and true. General corroboration to such confession may be needed at times. 23. Extra-Judicial Confessions i. They are confessions made elsewhere other than before a magistrate or judge. It can be made to any person or body of persons and need not be to a definite individual. It could even be in the form of a prayer. ii. Confessions to a private person will be extra-judicial. iii. Further it should be made freely and without any guilt. iv. It is not necessary for the witness to speak the exact same words, but there cannot be a vital or material difference. v. Communication of an extra-judicial confession is not a requisite.