LAW OF EVIDENCE 1

2 VIJAY LAW SERIES

1829–1894
Sir James Fitzjames Stephen
Founding Father of The Indian Evidence Act
Judge of the High Court, Kensington, London
Queen’s Counsel, Legal member of the Council of India
LAW OF EVIDENCE 3

Index
Index........................................... i-iii
Short Notes Index...................... iv-v
List of Cases...............................vi-viii
Table of Sections........................ ix-xix
Essay Questions and Answers... 1-207
Short Notes Index...................... 208-209
Short Notes.................................210-220
Glossary...................................... 221-223
Important Questions.................. 224
Model Question Paper................225
Reference Books........................226

1.1 Definition of Evidence ........................................................... 01

1.2 Kinds of Evidence ................................................................ 03
1.3 Fact and Facts in Issue .......................................................... 06
1.4 Proved, Disproved and Not Proved ....................................... 08
1.5 Salient Features of the Indian Evidence Act, 1872 ................... 11
1.6 Presumptions: May Presume, Shall Presume, Conclusive Proof... 14
2.1 Relevancy of Facts ............................................................... 19
2.2 Res-Gestae .......................................................................... 22
2.3 Motive, Preparation and Previous or Subsequent Conduct ....... 27
2.4 Identification Parade ............................................................. 31
2.5 Alibi/Facts not Otherwise Relevant become Relevant .............. 35
2.6 Admissions .......................................................................... 38
2.7 Confessions.......................................................................... 43
2.8 Dying Declaration ................................................................. 50
2.9 Expert Opinion ..................................................................... 56
2.10 Character Evidence/Relevency of Character ........................... 60
4 VIJAY LAW SERIES

3.1 Facts which Need not be Proved ........................................... 64

4.1 Kinds of Evidence/Oral Evidence ........................................... 67
4.2 Hearsay Evidence ................................................................. 71
5.1 Documentary Evidence/Best Evidence Rule ............................ 74
5.2 Primary Evidence .................................................................. 77
5.3 Secondary Evidence ............................................................. 79
5.4 Public Document .................................................................. 83
5.5 Presumptions as to Documents .............................................. 86
5.6 Ancient Document ................................................................ 89
5.7 Exclusion of Oral Evidence .................................................... 92
5.8 Patent and Latent Documents ................................................ 96
5.9 Circumstantial Evidence or Collateral or Indirect Evidence ..... 100
6.1 Burden of Proof/Onus Probandi ......................................... 103
6.2 Burden of Proof of Life and Death ....................................... 108
6.3 Legitimacy of a Child/Presumption of Legitimacy of a Child .... 110
6.4 Presumptions as to Abetment of Suicide by Married Woman .. 112
6.5 Presumptions under Section 114 and 114A ........................... 115
7.1 Estoppel/Doctrine of Estoppel ............................................ 118
7.2 Promissory Estoppel .......................................................... 124
7.3 Competency of Witnesses/Examination of Witness ................. 126
8.1 Privileged Communications .................................................. 131
8.2 Accomplice ........................................................................ 136
9.1 Order of Examination of Witness .......................................... 141
9.2 Leading Question................................................................ 144
9.3 Hostile Witness/Adverse Witness/Unfavourable Witness......... 147
10.1 Impeaching the Credit of Witness ......................................... 150
10.2 Corroborative Evidence ...................................................... 153
10.3 Refreshing Memory ............................................................ 156
10.4 Production of Documents .................................................... 159
10.5 Judge’s Power to put Questions ........................................... 162
10.6 Improper Admission and Rejection of Evidence..................... 165
LAW OF EVIDENCE 5

Confessions
Sections 24-30

C
onfession is acknowledging a wrongdoing or crime. Confes
sion is a voluntary statement made by an accused or a person
charged with a crime in which he acknowledges that he is guilty of
committing that crime. Confession can be made by only the person charged
with crime. It is a substantive piece of evidence. The term confession is
applied only to criminal cases. The statement may be made in Court in the
course of legal proceedings, or it may be made outside of Court to any
person, either an official or a nonofficial. Confessional is self-harming state-
ment. The confession of an accused cannot be used against co-accused.
Sections 24-30 deal with confessions.
The following statements are confessions;
a I killed my wife with knife
b I gave a death blow during fight
c I kidnapped the girl and raped her
d I took out my gun and shot the victim
The following statements are not confessions;
a I saw my wife stained with blood
b I received injuries in attempting to save the victim
c I was present at the place where rape took place
d I tried to save ‘B’ but could not
Essentials of confession
1. It must be made only by accused or a person charged with a crime
2. It must be a voluntary statement
3. It confession must affect the confessor
4. It must be to a Magistrate or another person
5. It must contain a statement admitting the guilty
6 VIJAY LAW SERIES

6. It must be a voluntary acknowledgment of the guilt

7. It must be a statement either oral or documentary
8. It must be definite and certain
Who can make confession?
According to Section 24 the confession must be made only by the ac-
cused or a person charged with a crime.
Classification of confessions
Confessions can be broadly classified into two categories. They are;
a. Judicial confessions
Judicial confessions are those made before a Magistrate or in Court in
the due course of legal proceedings; when made freely by the party with a
full and perfect knowledge of their nature and consequences, they are suf-
ficient to found a conviction. These confessions are such as are authorized
by a statute, as to take a preliminary examination in writing; or they are by
putting in the plea of guilty to an indictment.
b. Extra-Judicial confessions
Extra judicial confessions are those which are made by the party else-
where than before a Magistrate or in open Court. Extra-judicial confession
is an informal statement made the parties outside the course of judicial
proceeding. These confessions do not appear on the record of the case.
Confession must be definite and certain
A confession to be admissible, it is necessary that it must be in clear and
definite terms and it should point out at the guilt of the accused.
Pakala Narayanaswami v. Emperor, AIR (26) 1999 PC 47, it has
been held that a confession in order to be admissible under the Evi-
dence Act must either in terms, admit the offence, or at any rate sub-
stantially all the facts which constitute the offence. An admission of a
gravely incriminating fact, even a conclusively incriminating fact, is not
of itself a confession, e. g., an admission that the accused is the owner
of and was in recent possession of the knife which caused the death is
not enough.
Confession must be voluntary and true
The confession is really a very valuable piece of evidence. If the person
charged with an offence admits the guilt, certainly he can be convicted on
that basis. Before a confession can be a basis of conviction the Courts
LAW OF EVIDENCE 7

have to come to the conclusion that a) the confession was made voluntarily,
b) that it is consistent and true. Thus a confession which is inconsistent and
untrue will not be enough for conviction of a person making the confession.
A confession cannot be used against an accused person unless the Court is
satisfied that it was voluntary and true.
Evidentiary value of confession
Confessions may be divided into two classes i.e. judicial and extra-
judicial. It is a general rule that a person may be convicted on the basis of
his confession made in a judicial proceeding. There is no doubt regarding
the fact that a conviction can safely be based on a confession made by the
accused but incidents say that people try to make false confessions to im-
plicate themselves in the commission of crimes for various reasons. The
Courts also have to be very cautious regarding admitting such false or some-
times involuntary statements, else, an innocent person can be convicted
and the real culprit will still remain free in the society.
Confession to Police Officer
According to Section 25 no confession made to police officer shall be
proved as against a person accused of any offence. A confession to the
police cannot be used for corroborate also. The rationale behind this Sec-
tion is that such a confession would not be voluntary. The police would
resort to means such as torture to make the accused confess. The basis of
their investigation would become the confession because of which many
other important evidences would be sidelined. If a confession before the
police was considered to be valid then the fundamental rights would also
be violated. The Constitution of India under Article 20(3) protects the
accused against self incrimination. Thus, the accused cannot be compelled
to accept his guilt.
Retracted Confession
Retraction means withdrawal of statement. Retracted confession means
taking back of a previous statement relating to the admission of guilt. In
retracted confession an accused person admits his guilt before the trial
begins, but he repudiates at the trial. Section 164 Criminal Procedure
Code lays down certain precautionary rules to be followed by the Magis-
trate recording a confession so as to ensure the voluntariness of the confes-
sion and the accused being placed in a situation free from threat or influ-
ence of the police.
Evaluation
8 VIJAY LAW SERIES

1. Define ‘Confession’. What are its essentials? Give few examples of the state
ments which amount to confessions,which do not amount to confessions.
2. State briefly the rules regarding the admissibility of confessions?
3. Who can make confession? Explain the classification of confessions. Examine
the validity of the extra-Judicial confessions?
4. Confession must be voluntary and true-Explain
5. Examine the value of Judicial Confession and the extra-judicial Confession
Problem and Solution
‘A’ an accused wrote a letter containing ‘My dear Darogaji, I have myself commit-
ted the murder of my wife. Nobody else perpetrated this crime. I would appear
myself after 20 or 25 days and then will state everything. One day the law will
extend it’s hand and will get me arrested. I would surrender myself’’. The letter
contained a confession and was addressed to the Sub-Inspector. ‘A’ wrote the letter
with the intention that it should be received by the Sub-Inspector. ‘A’ kept the
letter near the dead body and left the house after locking it. The lock was broken
open and the letter was recovered by the Sub-Inspector. Decide admissibility of the
statement.
Issue Whether the statement addressed to police officer by way of a letter
is valid?
Rule Section 25 Confession to police-officer not to be proved.
Application According to Section 25 of the Indian Evidence Act, no confession
made to a police-officer shall be proved as against a person accused
of any offence. However a confessional letter written to a police of
ficer and sent to him by post, messenger or otherwise is not outside
the ban of Section 25 because the police officer ignorant of the letter
at the moment when it was being written.
Sita Ram v. State of Uttar Pradesh AIR 1966 SC 1906, the Court held
that it the statement in the letter was not a confession to the police
officer because the police officer was not near when the letter was
written or know that it was being written. Therefore it was admissible
piece of evidence.
Raja Ram Jaiswal v. State of Bihar AIR 1964 SC 828, it has been held
that an excise officer is a police officer because he has been conferred
with powers of investigation and submitting a charge sheet.
Reference Cases: Queen Empress v. Babulal (1884) 6 All. 509, R v.
Bipin Behari 2 Cal WL 71,74, Raja Ram v. State of Bihar AIR 1964 SC
828, Rajan Johnsonbhai Christy v. State of Gujarat 1997 Cri LJ 2702
Conclusion In the instant case the statement contained in the letter of ‘A’ is
admissible because the police officer ignorant of the letter at the
moment when it was being written. It is sufficient in establishing the
guilt of ‘A’.
LAW OF EVIDENCE
Shortnotes Index
Accessory after the fact.................... 169
Accessory before the fact.................169
Accomplice Evidence.........................169
Act or omission ..................................169
Admissibility of res gestate ................23
Admission ...........................................169
Adverse Witness................................169
Alibi......................................................169
Ancient Document .............................170
Approver..............................................170
Best Evidence Rule.............................170
Burden of proof...................................170
Certified copies of Public Docs...........170
Character as affecting damages........170
Character evidence.............................170
Child witness.......................................170
Circumstantial Evidence ....................171
Collateral Evidence.............................100
Communication during marriage.......131
Competency of Witnesses.................126
Competent witness.............................126
Conclusive evidence..........................171
Conclusive proof ................................171
Conduct................................................171
Confession ..........................................171
Confession to police ..........................171
Corroborative Evidence .....................172
Decoy witness ....................................139
Derivative evidence..............................12
Direct evidence .....................................73
Disproved............................................172
Doctrine of Estoppel..........................118
Documentary evidence......................172
Dumb witness .....................................172
Dying Declaration...............................172
Electronic evidence ............................172
Equitable estoppels............................124
9
Estoppel...............................................173
Estoppel by deed................................173
Estoppel by matter of pais................173
Estoppel by matter of record ............173
Evidence...............................................173
Evidentiary value of confession.......173
Examination of witnesses...................174
Exclusion of witnesses.......................141
Expectation of death...........................174
Expert Opinion ....................................174
Extra-Judicial confessions.................174
Fact.......................................................174
Facts in issue ......................................174
Factum probandum ...........................175
FIR as dying declaration....................175
Form of dying declaration ...................52
Grounds of opinion ..............................58
Hearsay evidence ...............................175
Hearsay Rule.........................................71
Hostile Witness...................................175
Identification Parade ..........................175
Impeaching..........................................175
Improper Admission...........................165
Incomplete dying declaration .............52
Indirect Evidence................................100
Inferior evidence.................................176
Informal admissions .............................39
Irrebuttable presumption of law .......176
Judgment on admissions ...................176
Judicial confessions...........................176
Latent ambiguity................................. 176
Leading Question............................... 176
Legitimacy ...........................................176
Lex Fori............................................... 177
Material evidence..................................177
May presume............................................14
Mixed presumption.............................177
10
Shortnotes
A
ccessory after the fact: A per
son who intentionally helps a
guilty party to avoid arrest, trial,
or conviction is called Accessory after
the fact. The accessory after the fact
provides aid after the crime is already
committed. For example A receiving af-
ter committing crime, assisting B in or-
der to escape from punishment, rescu-
ing B or opposing from arrest etc.,
Accessory before the fact: A person who
is not present at the scene of the crime,
but does solicit or command the princi-
pal in the first degree to commit the crime
is called Accessory before the fact. He
who counsels, incites, connives at, en-
courages or procures the commission of
the crime come under this category. For
example A encourages, incites B to com-
mit crime.
Accomplice Evidence: Accomplice means
guilty partner or partner in crime. He is a
person who helps another in committing
a crime. An accomplice is a person who
actively participates in the commission
of a crime, even though they take no part
in the actual criminal offense. Accord-
ing to Section 133 an accomplice shall be
a competent witness against an accused
person and a conviction is not illegal
merely because it proceeds upon the un-
corroborated testimony of an accomplice.
The accomplice may have known that the
crime was going to happen and not taken
any steps to prevent it, or may have en-
gaged in other activities which were de-
signed to make the crime easier to commit
or less likely to be detected.
VIJAY LAW SERIES
Act or omission: Res gestae by act or
omission is also possible. For example
A is accused of waging war against the
Government of India by taking part in an
armed insurrection in which property is
destroyed, troops are attacked and goals
are broken open. The occurrence of
these facts is relevant as forming part of
the general transaction, through A may
not have been present at all of them.
Admission is a voluntary acknowledg-
ment of a fact. It is a statement acknowl-
edging the truth of something. Accord-
ing to Section 17 of Indian Evidence Act
an admission is a statement, oral or docu-
mentary, or contained in electronic form,
which suggests any inference as to any
fact in issue or relevant fact. Admission
can be made by any of person. It is a
substantive piece of evidence. The term
admission is usually applied to civil trans-
actions and to those statements of fact in
criminal cases, which do not amount to
acknowledgments of guilt or which do not
suggest the inference of guilt. Sections
17-23 deal with admissions.
Alibi: Alibi is a Latin word and it means
elsewhere or another place. Alibi is a
claim or piece of evidence that one was
elsewhere when an alleged act took
place. It is a defence and an excuse.
According to Tomlins’ Law Dictionary
the term alibi is used to express that de-
fence 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 the
time.
LAW OF EVIDENCE 11

Table of Cases
Abdul Shakur v. Kotwaleshwar Prasad AIR 1958 All 54 .................................... 61
Abrar v. State of Uttar Pradesh, AIR 2011 SC 354 ............................................. 54
Aftab Ahmad Anasari v. State of Uttaranchal, AIR 2010 SC 773 ....................... 48
Afzauddin Ansary v. State (1997) 2 Crimes 53 Cal ............................................. 75
Alagupandi @ Alagupandian v. State of Tamil Nadu, AIR 2012 SC 2405 ........... 28
Amit Singh Bhikamsingh Thakur v. State AIR 2007 SC 676 .............................. 33
Anil Sharma v. State of Jharkhand AIR 2004 SC 2294 ....................................... 69
Appu v. State AIR 1971 Mad 194 ..................................................................... 29
Ashabai and Another v. State of Maharastra, 2013 SCC 224 ............................ 54
Ashok Leyland Ltd. v. State AIR 2004 SC 2836 ................................................ 17
Atbir v. Govt of N.C.T of Delhi, AIR 2010 SC 3477 ........................................... 52
Bai Hira Devi v. Official Assignee of Bombay AIR 1958 SC 448 ..................... 75,93
Bhabani Prasad Jena v. Convener Secretary, OSCW AIR 2010 SC 2851 ............ 111
Bhagwan Singh v. State of M.P. 2003 Cri.L.J. 1262 .......................................... 154
Bhagwan S.L.B.Lal v. State AIR 1965 SC 682 .................................................... 62
Bhakshi v. State AIR 1979 SC 569 .................................................................... 148
Bharat v. State of U.P. 1972 SCC (Cri) 198 ......................................................... 45
Bipin Kumar Mondal v. State of West Bengal, AIR 2010 SC 3638 ..................... 28
Bishna v. State of West Bengal AIR 2006 SC 302 ......................................... 24
C.G. Lloyd v. Emperor AIR 1933 Cal 136 ........................................................... 165
C.M. Sharma v. State of A.P., AIR 2011 SC 608 ................................................ 138
Chairman & MD V.S.P. v. Goparaju S.P.H. Babu 2008 (5 )SCC 569 ..................... 66
Chamanlal v. State of Punjab AIR 1970 SC 7572 ............................................... 133
Chandulal Asharam Travadi v. Bai Kashi AIR 1939 Bom 59 ............................... 90
Chhotey Badri Prasad v. State of U.P 2006 CriLJ 711 ....................................... 164
Collector, District Gwalior v. Cine Exhibitors P. Ltd , AIR 2012 1239 ................. 124
Darshan Singh v. State of Punjab another, AIR 2010 SC 1212 .......................... 07
Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341) ................... 127
Dayal Singh and Others v. State of Uttaranchal, AIR 2012 SC 3046 ................... 57
Dharma v. The State 1966 CriLJ 441 ................................................................. 158
Dudh Nath Pandey v. The State of U.P AIR 1981 SC 911 ................................... 36
Emperor v. Moti Ram AIR 1936 Bom. ................................................................ 30
Gagan Kanojia & Another v. State of Punjab (2006) 13 SCC 516) ..................... 127
Gentela Vijayavardhan Rao v. State of APAIR 1996 SC 2791 .............................. 24
George v. State of Kerala (2002) 4 SCC 475 ...................................................... 16
Girish Yadav & Others v. State of MP AIR 1996 SC 3098 ................................... 73
Gita Mishra v. Utkal University AIR 1971 Ori 276 ............................................. 122
Govindaraju @ Govinda v. State by Sriramapuram P.S AIR 2012 SC 1292 ......... 142
Govt. of AP v. Karsichinna Venkata Reddy AIR 1994 SC 591 ............................. 77
Grasim Industries Limited v. Agarwal Steel, (2010) 1 SCC 83 ............................ 78
Gurjinder Singh v. State of Punjab, AIR 2011 SC 972 ........................................ 48
Hormusji K. Bhabha v. Nana Appa AIR 1934 Bom. 299 ..................................... 134
12
Glossary
Abandoned: neglected
Abduction: kidnap by force
Abets: encourage, assist
Abridged: shorten, reduced
Absconder: avoider of a legal process
Absurd: meaningless
Abuse: neglect, misuse
Accomplice: partner in crime
Accusation: charge, blame
Accused: person charged
Acquainted: familiar
Acquittal: release, freeing
Adaptation: adjustment
Adduced: proof to support
Adjective Law: rules of practice
Adjourn: postpone
Adjudication: settlement
Admonition: scolding, warning
Adolescents: teenagers
Adulteration: ruining
Affray: fighting in public
Aggrieved: sufferer, wounded
Alimony: maintenance, grant
Alleging: claiming
Amendment: alteration, change
Annul: cancel
Anonymous: nameless, unknown
Antecedents: past history
Anticipatory bail: Pre-arrest Bail
Appeal: complaint to a superior Court
Apprehending arrest: expecting arrest
Apprehension: fear, worry
Arbitrary: illogical
Arrest: taking a person into custody
Assaulted: beaten
Attachment: seizing property
Autrefois acquit: previously acquitted
Autrefois convict: previously convicted
Bail: release from legal custody
Barred: banned, excluded
VIJAY LAW SERIES
Beggary: state of being a beggar
Broken homes: destroyed residence
Bruises: damage
Case Diary:police diary
CD: case diary
Charge: to accuse
Charge-sheet: final report of charges
Chronological: year wise in order
Circumspection: caution, care
Circumstantial evidence: indirect proof
Citation: quote, reference
Cognizable Offence: serious crime
Cognizance: to take notice of judicially
Commutation: reduction of punishment
Compliance: fulfillment
Complied with: obeyed with
Complying: obeying
Compounding: compromising
Concur: agree
Concurrently: at the same time
Condition precedent: pre-condition
Conferred: granted
Confession: admission of guilt
Confiscation: taking away
Conformity: compliance
Consistent: in harmony
Consonance: simultaneous harmony
Conspicuous: eye-catching
Conspiracy: plan, plot
Contending: challenging
Contradiction: disagreement
Contravention: breaking
Conventions: meetings
Conviction: guilty judgment
Corroboration: support
Counterfeit: fake, bogus
Criminality: criminal practice
Criminologist: scientist of crimes
Cross-examination: traverse questioning
Culpable: guilty
LAW OF EVIDENCE 13

Reference Books
Allen Practical Guide to Evidence, London: Routledge and
Cavendish.
Avtar Singh Principles of the Law of Evidence, Central Law
Agency, New Delhi.
Batuk Lal The Law of Evidence, Central Law Agency, Allahabad
Chaturvedi G.S Field’s Commentary on Law of Evidence, Delhi Law
House.
Joga Rao S.V Evidence: Cases and Materials, LexisNexis Butterworths,
New Delhi,
Krishnamachari.V Law of Evidence, S.Gogia & Company, Hyderabad
Malek H.M ed., Phipson On Evidence, London: Sweet and Maxwell.
Monir M Principles and Digest of the Law of Evidence, Allahabad:
University Book Agency.
Murphy P Murphy on Evidence Oxford: Oxford University Press
Myneni S.R Law of Evidence, S.P.Gogia, Hyderabad
Ratanlal and Dhirajlal The Law of Evidence, LexisNexis Butterworths Wadhwa
Nagpur.
Sarkar and Manohar Sarkar on Evidence , Wadha & Co., Nagpur
Vepa P. Sarathi Law of Evidence Sarkar Sarkar Law of Evidence
LexisNexis Butterworths, New Delhi
Singh Principles of the Law of Evidence, Allahabad: Central
Law Publications.
Tandon M.P Indian Evidence Act, 2002
Tapper Cross and Tapper on Evidence, London: Butterworths
Vepa P. Saradhi Law of Evidence 4th Edn. Eastern Book Co., Lucknow,
Wigmore J. H Evidence in Trials at Common Law, Vol.-IA, (New Delhi:
olter’s Kluwer (India) Pvt. Ltd. Woodroffe J. and S.A. Ali,
Law of Evidence, Allahabad: Law Book Co, Pvt. Ltd.