LAW OF EVIDENCE NOTES

 S 6: Res gestae doctrine – R. v. Andrews; relevancy of facts forming part of same

transactions – facts not in issue which are connected w fact-in-issue becomes relevant such that
they are both part of the same transaction – same time and place (temporal and geographical
locations) – Stephen’s definition: transaction is defined as a group of facts so connected
together as to be referred to by a single legal name as a crime, a contract, a wrong or any other
subject of enquiry which may be in issue; the basic thing is the nexus between a fact in issue
and a fact becoming relevant under S 6 – form of nexus can be of cause and effect, occurrence
at the same time i.e. contemporary and spontaneous – hue and cry doctrine or excited utterance,
occurrence at the same place [time and place are often connected] or common purpose and
design [even when place and time are different]
 Example would be the beating scenario, if A beats B then words uttered by A, B or the
bystanders would also qualify as a part of the same transaction even though these facts are not
in issue or consideration.
 The question that arises then are when do we know that these facts are part of the same
transaction
S 60 permits oral evidence which is direct – S 6 is an exception to that – 2 things relevant: (1)
spontaneity (2) [near] contemporaneity [need not be exact] – illustration (a) – rationale behind
admitting hearsay evidence under this section Eg.: A is charged w beating B w an object and A
was heard shouting “aaj toh B ko marunga” – after or before? And B is saying “bachao” – and
bystanders are saying “A B ko mat maaro” – excited utterances – a witness claims to have heard
all these things – inference of murder of B by A – this is allowed by S 6;
Why is hearsay evidence not admissable: 2 levels of uncertainty (1) declarant or eye witness
who is accepted by S 60 – may be lying, subjective, mistaken, obervational sensitivity restriced
(2) hearsay witness – same at this level who cannot be cross-examined; basis for permitting this
evidence as per Wigmore: people in an agitated state were unlikely to lie because they lack
sufficient time in which to fabricate
1. R. v. Bedingfield: Henry Bedingfield slit the throat of Eliza Rudd and his own thereafter –
she died but he lived – she went out of the room in a hurry before her death and told a
 bypasser “see aunty what Harry has done to me” – this statement was held inadmissable
as the transaction was said to be over as soon as the throat was slit – this was overruled
1. R. v. Andrews:
2. Ratten v. The Queen: clarity on res gestae doctrine – Regina v. Oshea: utterances an hour
after is also admissable
3. Gentela Vijay Vardhan Rao v. State of A.P.: para 13 – para 15
4. Krishna Kumar Malik v. State of Haryana: para 20 – para 26 – para 33, 34, 35
5. Dhal Singh Dewangan v. State of Chhatisgarh: para 23, 24, 25, 26, 27 and 28 – 5 principles
(panchsheel of proof) of Sharad Birdichand Sarda case: para 40, 43

Circumstantial evidence:

1. Ashish Batham v. State of M.P.: para 8, 9, 15

 S 7: opportunity to do something is a time when a particular situation makes it
possible to do or achieve something (chance) – a suitable occasion provides an opportunity to
do something; in S 6 there is an insistence on the facts being part of the same transaction but
S 7 doesn’t insist on this – S 7 probabalises the fact in issue – no crime without opportunity
but there is a difference between opportunity and commission which must be proved by
evidence – Last Seen Theory cases: mere opportunity does not imply commission; immediate
or otherwise – how remote can we admit the causes? Logical relevance of the causes – an
obvious connection must be there – cause of death: R.v Sally – para 18-26
 69th Law Commission Report
Bribery cases:
1. Yusuf Ali v. State of Maharashtra – person bribed from Municipal Corp. of Bombay – as
soon as bribe was offered and accepted over the phone and the bribe was received, he was
caught red-handed – the dialogue over the phone is res gestae – relevant and admissible
under S 6 – part of same transaction – eye witness of bribe was corroborated by telephonic
tape
2. R.M. Malkani case – coroner of bombay – was supposed to give a favourable report with
respect to another doctor in the case of death – only attempt to bribe – no real bribe –
contempaneous dialogue was there and recorded
 Section 8: motive, preparation and conduct – previous and subsequent conduct are
relevant; circumstantial evidence is important under the idea of motive – motive is not enough
to prove crime – a person’s intention is his decision to do or not to do a particular act while
his motive is his reason for framing that decision;
1. Malkiat Singh v. State of Punjab talks of the difference between preparation and attempt:
the preparation consists in devising or arranging the means or measures necessary for the
commission of the offence while on the other hand an attempt to commit the offence is a
direct movement towards commission after preparations are made; conduct is the
expression in outward behaviour of the quality or condition (internal) operating to produce
these effects; the explanation given to a fact relevant under S 8 is relevant under S 9;
silence may amount to admission as it is considered to be conduct under certain
circumstances –
2. In the matter of the petition of Surat Dhobini: a lady injured the victim and immediately
after that, at the site of the incident, it was stated that the accused had inflicted the injuries
and she did not contradict – she was held guilty – nature of case is important to attach
weight to silence– absence of immediate denial does not necessarily mean guilty; in
corruption cases, subsequent conduct is important – often as a defence to bribes caught
in the moment, they say it was merely a loan that was being returned –subsequent conduct
is relevant as then it asks, why are you agitated
3. State of Madras v. A Vaidyanathan: money bribe received and then raid by police and
subsequent conduct reveals a lot and is material
4. Arun Kumar Banerjee v. State: Sadhna murder case – para 28;
5. Agnhoo Nagesia case: S 25, 26 and 27 become relevant wrt confession to police being
inadmissable – then the question of custody arises – S 27 Kottaya case – confession is
defined in Pakala Narayanaswami case
 S 9:
1. Surendra Kohli case: Children of the lower strata went missing – one girl escaped – skeletal
remains were found – DNA was used to match to parents and identify
2. Patangi Balakrishnan case: murder of a politician in a guest house – shot – Naxal
movement – person was caught – blood sample was taken for DNA sampling
3. Tsar Nicholas II case: killed – after fall of USSR, they wanted a ceremony – found certain
remains; potential error rates are used as defence against prosecution; explanatory facts are
also relevant – even explanation to conduct subsequent – illustration (f) – silence of the
leader becomes relevant
4. 69th Law Commission Report: para 7.107-7.110
5. Tomaso Bruner’s case
 S 54A of CrPC is relevant to TI parade – prior to 2005 it was conducted by the judicial
magistrate – now the executive magistrate as per court orders may conduct it – police
 manual discusses this – right of the accused persons are kept in mind – is failure to conduct
this fatal to the prosecution’s case? No – Kunjumon alia Unni v. State of Kerala – para 15-
20.
 Corpus Delicti’s absence: (body of the offence or facts which constitute the offence) in
murder cases, it deals with dead bodies i.e. absence of dead bodies
i. Ram Ghulam Chaudhury v. State of Bihar – 11-13 people attacked and assaulted the
victim – then after murder they took the body away – blood stained earth, lungi and
lathi – eye witnesses – S 302 – no evidence of death in absence of body – corpus delicti
need not be found for this – there must be direct/circumstantial evidence establishing
the death and the accused – S 106: burden on the accused as they only had the
knowledge of the location of the body
ii. Prithi v. State of Haryana – para 14, 19
iii. Rishi Pal v. State of Uttarakhand – para 11
 S 11: when facts not otherwise relevant become relevant – facts which are not otherwise
relevant under hearsay or which are res inter alios acta alteri nocere non debet i.e. a transaction
between 2 parties ought not to operate to the disadvantage of the third; S 11 includes; merely
because plea of alibi has been broken, does not establish case of the prosection beyond
reasonable doubt – nor does weakness of alibi
1. Bhuboni Sahu v. The Queen
2. Satbir v. State of Haryana – S 11(2)
3. 185th Law Commission Report p 64-73

Plea of alibi – was rejected in Rajesh Kumar v. Dharamvir; accepted in Jayantibhai

Bhenkarbhai v. State of Gujrat: para 1-23

 S 14: illustrations a, b, c and d are on knowledge; illustration e is on ill will; illustrations

f, g and h are on good faith; illustrations i and j are on intention; illustration k is on cruelty;
illustrations l & m are on state of body; illustration n is on negligence; illustrations o and p are
on explanation 1;
1. 69th Law Commission Report – paras 8.98-8.114, 8.166 each act and becomes more and
more probable
2. R. v. Sims – paras 8.123-8.133.
 S 15:
1. George Joseph Smith case - p 236: 2 other women were also reported dead similarly,
subsequent to Bessy’s death
2. Makin v. AG of New South Wales
3. Emperor v. Harjivan Valji

SECTION 32

There can be written or verbal statements under this Section.

Chandra Shekhar v. King: a person’s throat was half-slit and he could only make gestures; these
gestures were held to be verbal statements under Section 32 by the Privy Council; it was a case
from Sri Lanka wherein they relied on Section 119 of Seylon Evidence Act, which is pari materia
with the IEA; Section 119 – if you give your evidence in open Court, but are unable to speak – in
writing or in signs, such evidence is oral evidence; however, this same section in the Indian Act,
the entire thing was a part of the Section, other than the words “open Court”.

Queen v. Abdullah: The accused was charged with the murder of a prostitute [Dulari] by cutting
her throat with a razor. When she was taken to the police station and shortly before her death
various persons as to the circumstances questioned her in which the injury had been inflicted on
her, but she was unable to speak. She was however, conscious and able to make signs. Evidence
was offered by the prosecution to prove the questions put to her and the signs she made in answer.
Objection was taken on behalf of the accused that under Section 32 only written or verbal (or oral)
statements made by a deceased as to the cause of his or her death were admissible and that the
signs were not verbal within the meaning of the section. Here, the question was a leading question
“did Abdullah injure you?”

It was held that the questions and the signs taken together might be regarded as verbal statements
made by a person as to the cause of death within the meaning of Section 32 of the Evidence Act
and therefore, admissible. The signs could not be proved as conduct under Section 8 and its second
Explanation as taken alone and without reference to the questions leading to them there was
nothing to connect with the cause of death. The conduct made relevant by Section 8 is conduct,
which is directly, and immediately influence by a fact in. issue or relevant fact and it does not
include actions resulting from some intermediate cause such as questions or suggestions by, other
persons. But Mr. Justice Mahmoud held:

"The word 'conduct' in Section 8 does not mean only such conduct as is directly and immediately,
influenced by a fact in issue or relevant fact signs were the conduct of a person 'an offence against
whom was the subject of any proceeding' and were relevant under Section 8.

There remains the whether the questions put to her were admissible, and whether she 'can be
considered to have adopted the statements which they implied. Now Explanation 2 to Section 8
provides that: the conduct of any person is relevant any statement made to him or in his presence
and hearing which affect such conduct, is relevant.' I confess that I am quite unable to hold that
for when you must read 'before'. If you read the section as I do, the law stands thus...The conduct
of the person an offence whom is being investigated is relevant. The question whether it is
intelligible or not arise afterwards and the only way of ascertaining its meaning is to admit what
Explanation 2 says may be admitted, namely, statements made to, or in the presence and hearing
of, the person and which affect his conduct. Taking the questions word for word can only do this
so as to explain the meaning of the conduct, which they affected. Finally if Section 8 with the
Explanations contained in it were not sufficient to justify the view, which I take of the question,
referred to the Full Bench. I should have relied on the provisions of Section 9 in order to allow an
explanation of the meaning of the signs."

Emperor v. Sadhucharan Das: In this case, everyone was present around the victim who could
not speak. Thereafter, the victim was asked an open-ended question of “who injured you?” which
he then answered via gestures. Then, the gestures were accepted as verbal statements under Section
32(1), and no differentiation was made between the open-ended and leading questions.

Emperor v. Motiram: Section 119 of Seylon Evidence Act, which is pari materia with the IEA;
Section 119 – if you give your evidence in open Court, but are unable to speak – in writing or in
signs; such evidence is oral evidence; when this was introduced into the Indian Act, the entire thing
was a part of the Section, other than the words “open Court”; J. Broomfield: this has no direct
relevance – Section 32 is about statements made by people who cant come to Court; however
Section 119 may be considered to be implying the intention of the drafters to include gestures as
oral statements but there is nothing that suggests it is only with respect to leading questions and
does not talk about leading questions. Therefore, all answers to questions whether leading or not,
are admissible under Section 32. This is because leading questions cannot be asked in the
examination-in-chief but only in the cross-examination.

4 categories of people:

(1) Dead
 Section 136 para 2 – it must be proven that the person, whose dying declaration statement
is being used, is dead [Illustration (a) to Section 136]. Section 104 puts the burden of
proving the death of such person on the person bringing the dying declaration to Court.

(1) Cannot be found

In spite of diligent and reasonable searches, the person cannot be located.

(2) Incapable of giving evidence

Due to mental or physical health issues; Section 118 – witness must be able to comprehend
the question and thereafter provide rational answers to the question.

(3) A person whose attendance cannot be procured by the Court without unreasonable delay and
expense.

It is a discretionary power of the Court, but this should be used sparingly.

Section 158 – impeaching the credibility of the witness by either corroborating or contradicting it.

The Common Law systems assume that statements made in such cases are true as they have the
most powerful considerations behind them:

In periculo mortis – in danger of death

In articulo mortis – at the time of death

It is not necessary that he is actually dying or in fear of dying but that he eventually dies and the
reason is the one he spoke of and not any intervening cause

Nemo moriturus praesumuntur mentori – roughly translates to a dying man never speaks false
words

R. v. Woodcock – J. Eyre: The general principle in which this species of evidence is admitted is
that they are declarations made in extremity, when the party is at the point of death and every hope
of the world is gone; when every motive to falsehood is silences and the mind is induced by the
most powerful considerations to speak the truth; a situation so solemn and so awful is considered
by the law as creating an obligation equal to that which is imposed by a positive oath administered
in a Court of Justice.

Lakshman v. State of Maharashtra – The Supreme Court observed the situation in which a man is
on the deathbed is so solemn and serene, is the reason is law to accept the veracity of his statement.
It is for this reason the requirements of oath and cross-examination are dispensed with.

Sharda v. State of Rajasthan – contradictory dying declarations

State of Punjab v. Chatinder Pal Singh – a girl of 16.5 yrs was raped in a hotel and then committed
suicide; she made a dying declaration to the police officer who recorded it post medical certificate
as to fitness; same was done by sub-divisional magistrate; the two dying declarations were
inconsistent; yet the SC didn’t acquit the accused on the grounds of suicide and not rape, but the
fact that the DDs were inconsistent.

Issues: (1) Whether the statements made by the victim are DDs under S 32(1)? (2) Is it provable
against the accused?

If it can be shown that the accused either killed her or was the cause of the circumstances that led
to her death, a nexus can be drawn between the two issues.
Section 6 – Facts which are not in issue but which are connected with the fact in issue will be
part of the same transaction
Yusufaa ali v. State of maharashtra – Case of bribery. Trap laid, issue was regarding the
admissibility of recordings in court. Conversation between them will form part of res gestae
and hence will be relevant.
Ratsn Singh v. State of HP –
Gentela vijayavardhan rao v. State of AP – If there is an interference in the facts in issue,
however slight could cause fabrication and hence would not be admissible under section 6.
R. v. Andrews – 2 people endered M’s house and injured him and stole his goods. After 2
months M died and the two were charged with murder. The question was whether the statement
of M was admissible.
Section 7 – Facts after or before the incident in issue which show occasion or opportunity or
cause related to the fact in issue will be part of the same transaction.
Section 8 - : motive, preparation and conduct – previous and subsequent conduct are relevant;
circumstantial evidence is important under the idea of motive – motive is not enough to prove
crime – a person’s intention is his decision to do or not to do a particular act while his motive
is his reason for framing that decision;
Complaint is more relevant than statement. Silence may be regarded as conduct and/or
admission of guilt.
In R. v. Bedingfield, it appeared that the victim, with her throat cut, came out of the room in
which she had left the prisoner and said “See what harry has done to me” right before she died.
In R. v. Lillyman the accused was charged with an attempt to rape and kindred offences. The
prosecution sought to give in evidence a complaint made by the girl to her mistress, in the
absence of the accused but shortly after the commission of the acts charged, It was held that
the particulars of such complaint may, so far as they relate to the charge against the prisoner,
be given as an evidence on part of the prosecution as an evidence of the consistency of the
conduct of the prosecutrix with the story told by her in the witness box and negativing consent
on her part.
Section 9 – Facts relevant or necessary to introduce a fact in issue or corroborate with the
inference drawn of a fact in issue will be part of the transaction.
Illustration – A committed murder is inference. The fact that he absconded would be part of
the same transaction as it corroborates with the inference drawn of the fact in issue.
Facts that support or rebut a fact in issue. Substantive evidence snd primary evidence.
Identification proceedings are part of section 9.
Dana Yadav v. State of Bihar – The purpose of identification is to enable witness to satisfy
themselves as to who was seen by them during the commission of the crime. Identification
should not be relied upon if the name of the accused is not mentioned in the FIR, nor the
complaint.
R v. Crippen – It had to be established by the prosecution that the mutilated remains of a dead
body found under the flooring of house occupied by Crippen was of Mrs. Crippen. The
prosecution did this by identifying a piece of skin found which had a mark which was the same
as a mark Mrs Crippen had of a surgical operation.
Section 11 – when facts not otherwise relevant become relevant – facts which are not otherwise
relevant under hearsay or which are res inter alios acta alteri nocere non debet i.e. a transaction
between 2 parties ought not to operate to the disadvantage of the third
Section 14 – Facts showing the existence of state of mind such as intention, knowledge, good
faith, negligence, ill-will or showing the existence of any state of mind or body or bodily feeling
are relevant when existence of such a feeling in issue are relevant.
To prove other person’s state of mind, only evidence available will be circumstantial evidence.
Knowledge or intention.
Section 15 – When there is a question, whether an act was accidental or intentional or done
with a particular knowledge or intention, the fact that such act formed part of a series of similar
occurrences in each of which the person doing the act is concerned is relevant.
A is accused of burning down his house in order to get insurance. The fact that A lived in
several houses successively, each of which caught fire after which A received payments would
be relevan, showing that the fires were not incidental.
Makin v. Attorney general – If there are situations wherein a particular act has been committed
on 2-3 other people in the same way then that forms as a part of system and it would be a valid
enough evidence. Convicted for the murder of a baby, more babies found to be dead in similar
manner.
DPP v. P – Guy rapes both his daughters, the charge for first daughter is proved and so the
evidence for first daughter can be used to prove rape of second daughter. Sexual harassment.
R v. George Joseph Smith – He murders 4 women he married and all those women were found
to be dead in a similar fashin in the bath tub. And because the person was convicted in the first
case then the evidence for that can be used as an inference.