Section 17

Three components.
 Statement either oral, documentary or electronic
 Any inference as to any fact in issue or relevant fact
 By persons & under circumstances hereinafter mentioned

The phrase “suggests any inference” means that admissions themselves are not
conclusive proof; S 31 says that admissions may act as an estoppel. Admissions need
not always be self-incriminatory (self-harming) but may also be self-exculpatory
(self-serving). That is, the inference need not be negative. It may make an inference
which is in favour of the person making the admission.

Nageshwar Rao’s book: S 17’s wording does not mention the inference made to be
either self-harming or self-serving necessarily i.e. it may be either of the two.

Gestures can be used as evidence under Ss. 8 and 14, not S. 17. Eg: at the scene of a
crime, if a person enquires about who committed the murder, and another raises his
hand. However, such evidence would not come under the ambit of S. 17, as an
admission.

In England, admissions is used for civil cases, whereas confessions is used for
criminal cases. In India, we have separate provisions for confessions, but this
difference is not very pronounced.

S 58 and S 17 – difference between formal admissions [eg: in the written complaint]

and admissions [eg: email between 2 people]

Ernest Cockle: admissions made at the trial/during judicial proceedings are formal
admissions; this is what S 58 refers to.

Eg: admissions in the account books of A and B-

 A and B made entries with respect to the borrowing of money; both the
entries give the inference that A is guilty; this instance shows self-
incriminatory admission on the part of A.
 Only B made an entry; whereas A made one which was contrary to B’s; this
instance shows self-exculpatory admission.
Supreme Court – both kinds of admissions are acceptable.

Conditions for Admissibility of Admissions

 Admissions of which evidence is sought to be given must relate to the subject
matter in issue. Fact in issue or relevant fact.
 Generally, admissions must be self-incriminatory.
 They must be made by persons and under circumstances mentioned under Ss.
18-20.

Bharat Singh v. Bhagirathi

In a suit for title wrt a property, on the basis of the existence of a joint family, the
women contended that the husband was not a part of the joint family at the time of his
death, but separate. She had however admitted in certain documents about the
existence of the joint family, but she was not confronted with those documents when
she was in the witness box. The Supreme Court held:

"Admissions have to be clear if they are to be used against the person making them.
They are substantive evidence by themselves in view of Sections 17 and 21 of the
Evidence Act, though they are not conclusive proof of the matter admitted. The
admissions duly proved are admissible evidence irrespective of whether the
party making them appeared in the witness-box or not and whether the party
when appearing as witness was confronted with those statements in case the
party made a statement contrary to those admissions. The purpose of
contradicting the witness under Section 145 of the Evidence Act is very much
different from the purpose of proving the admission. Admission is substantive
evidence of the fact admitted while statement used to contradict a witness does not
become evidence and merely serves the purpose of throwing doubt on the veracity of
the witness. The weight that is to be attached to admission made by party is a matter
different from its use as admissible evidence.”

S 145 – If a document is relevant by itself this procedure need not be followed,

though in practice, in fairness to a witness, advocates cross-examining a witness
follow this procedure.
Chittaranjan Das v. State of West Bengal
S 155(4) [when a man is prosecuted for rape, it may be shown that the prosecutrix has
a immoral character as defence]; CD was accused of raping a girl below 16 years of
age, roughly 3 times; in 2003, S 155(4) was repealed, so this is no longer relevant.
Then the accused was charged with the offence of rape on a minor girl below 16 years
on three occasions. The victim has made an earlier statement before the Magistrate
that some other person relations with her and that she had sexual relations with others
also. The statement was brought on record under Section 145 of the Evidence Act. On
the question of the weight to be attached to it, the Supreme Court said:

"The girl admitted in her cross-examination that her statement had been recorded on a
previous occasion by the Magistrate, but when the contents of the statement were put
to her, she said she did not remember whether she had made those statements or not.
Now, it
 is clear that when a previous statement is put a witness in examination
under Section 145 of the Indian Evidence Act, its primary purpose is to contradict the
witness by reference to the evidence he gives at the trial, and so, the previous
statement on which the defense relied may help the defense to contend that the girl
was not a straightforward witness, but the said previous statement cannot be treated as
substantive evidence at the trial."

Basant Singh v. Janaki Devi

Section 17 makes no distinction between an admission made in a pleading and other
admissions. All admissions made in a plaint in another case are admissible. These
statements may or may not be accepted by the court. Further, these do not serve as
conclusive proof.

Section 18
These are statements made to third parties and not to the court. Thus, they are called
informal admissions and need to be proved. Section 58 talks about formal admissions.
These are statements made to the court and need not be proved. The court has the
discretion to accept such admissions as proved or to ask for them to be proved. They
can be made orally during the course of the proceedings or can be agreed upon in
writing.
Statements made by the agent on behalf of the party is usually the case for companies
and governments.

Persons who may make admissions under S. 18.

1. Parties to the suit or proceedings.

2. Agents of parties; their statements will be admissions on behalf of the principal if

the agent has been expressly or impliedly authorised by the principal to make such
statements.
Eg: legal counsels have implied authority to make such admissions, even without
consulting the client before making each statement. Statements by legal counsel are
generally binding on the principal, provided it is made with respect to the subject
matter of the suit.

3. Suitor in representative character, provided that the person makes the statement
while holding the representative character.
Eg: a VC who makes a statement, saying that mass-copying took place in a test in a
university will be an admission on behalf of the university. But not, if the person
makes this statement after he no longer holds the post.

4. Persons having proprietary or pecuniary interest in the subject matter.

Eg: one partner’s statement would be an admission with respect to all partners, but
not if he makes such statement after he no longer holds the position of partner, since
he would no longer have a proprietary or pecuniary interest in the subject matter.

5. Person from whom interest has been derived.

Eg: if A mortgages his property to C, and subsequently sells that property to B, a
statement by A recognising such a mortgage would be an admission as against B,
since B derived the interest from A.

Section 19 – Admissions by a people, whose position must be proved as against

party to suit.
185th Law Commission Report: Eg: C lends money to A and B jointly; A and B
default; C sues A; A contends that suit cannot be filed against him separately, but
must be filed against B as well as they were lent money jointly; B admitted that they
were jointly liable i.e. B is making a self-incriminatory admission.
Section 20 – Admissions made by person expressly referred to by party to suit

Section 21 – Proof of admissions against persons making them, and by or on

their behalf
Eg: Deed – whether genuine (A affirms) or forged (B affirms)? They are saying
whatever would serve their interests. They have the option to prove that the other one
has said a statement confirming and affirming their stance previously or subsequently.
Therefore, A can use B’s diary as proof for the fact that he has made a statement
affirming the deed’s genuine nature. However, A cannot use his own diary statement
confirming the genuine nature of the deed.

1. Admissions may be proved as against the person who makes them or his
representative in interest
2. They cannot be proved by or on behalf of the person who makes them or by
his representative in interest
3. Exceptions to 2^:
i. When the admission is of such a nature that, if the person making it
were dead, it would be relevant as between third persons under S 32
(2) which talks about cases in which statement of relevant fact made in
the course of business by person who is dead or cannot be found.

Eg: ship losing its way in the sea and the captain abandons it; the captain’s
logbook [self serving] may be used by the captain to prove that he was
innocent and did not purposely cause the ship to move out of its own track.
If this captain was dead, and the shipping company refused to pay and
pending arrears etc., then the statement of the captain in his logbook would
be relevant under S 32 (2)

ii. When it consists of a statement of the existence of any state of mind or

body, relevant or in issue, made at or about the time when such state of
mind or body existed, and is accompanied by conduct rendering its
falsehood improbable. [Similar to S 8 (conduct) and 14 (fact) but
different as this pertains to a statement that is made – S 14, ill. (a) & S
21, ill. (d)] – Statements explanatory of conduct influence by facts in
issue
iii. If it is relevant otherwise than as an admission.
 Eg: People are engaged in a conspiracy and they had a meeting; one
person in this meeting was forced to attend out of fear; this person makes a
statement to a 3rd person, who would eventually become a defence witness,
of his desire to not be a part of the conspiracy. This statement is relevant.

Section 22 – Oral admissions with respect to contents of documents become

relevant

Section 22A – Oral admissions with respect to contents of electronic records

become relevant
S 59: proof of facts by oral evidence

All facts, except the [contents of documents or electronic records], may be proved by
oral evidence.

Confession [not defined in act, hence we refer to Stephens] definition by Stephen –

an admission made by the person charged with a crime, at any time stating or
suggesting the inference that a person committed the crime.

Thipson: criticized the definition and said “at any time” is ambiguous

Nageshwar Rao: defends Stephens’ definition: “at any time” only referred to
subsequent conduct; it only refers to time after commission of the crime

Eg: Y says “I killed X by stabbing him with a knife” – stating he committed the act

Eg: Y says “I went to X’s house with a knife to kill him” – inchoate statement which
suggests an inference

Pakala Narayana Swami v. King Emperor: The appellant was charged with the
offence of murder. The body of the deceased, which was cut, was recovered from a
trunk in a railway compartment on March 23, 1937. One of the items of evidence
against him adduced by the prosecution was a: statement by the deceased to his wife
March 20, 1937 that he received a letter asking him to go to the house of the accused
for receiving money due to him and that he was so going. "No statement that contains
self-exculpatory matter can amount to confession, if the exculpatory statement is of
some fact which if denied would negative the offence alleged to be confessed.
Moreover, a confession must either admit in terms the offence, or at any rate
substantially all the facts, which constitute the offence.

Atkin: 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 or revolver which caused a
death with no explanation of any other man's possession. Stephen's Digest of the Law
of Evidence defines a confession as an admission made at any time by a person
charged with crime stating or suggesting the inference that he committed that crime.
The definition is not contained in the Evidence Act, 1872; and in that Act it would not
be consistent with the natural 'use of language to construe confession as a statement
by an accused 'suggesting the inference that he committed' the crime.'" Indian
Evidence Act does not define "confession". For a long time, the Courts in India
adopted the definition of "confession" given in Article 22 of Stephen's Digest of the
Law of Evidence. According to that definition a confession is an admission made at
any time by a person charged with crime, stating or suggesting the inference that he
committed that crime. This definition was discarded by the Judicial Committee in
Pakala v. Emperor Lord Atkin observed: "... no statement that contains self
exculpatory matter can amount to confession, · if the exculpatory statement is of some
fact which if true would negative the offence alleged to be confessed, Moreover, a
confession must either admit in terms the or at any rate substantially all the facts
which constitute the offence. An admission of a gravely incriminating fact even a is
not of a confession an that the accused is the owner of and was in recent possession of
the knife or revolver which caused a death with no explanation of any other man's
possession".

Section 24

Is generally read with preceding sections; generally given to police/any person in

authority; generally involuntary (1) by inducing them by saying they wont take action
against them or giving them money (2) by threat of violence and it need not be real;
often leads to fake confessions; psychologically, the accused feels he is avoiding
temporal/real problems through it.

Section 25
Confessions to police officer cannot be proved.
Section 26
Confessions, while under police custody, unless made in the immediate presence of a
magistrate, cannot be proved. S. 164 provides for confessions and statements to
magistrates. S. 164(2), CrPC requires the magistrate to ensure that the confessions is
made voluntarily. This is a judicial confession.

However, a confession may be made to a third party as well. That is an extra-judicial

confession. Article 20(3) enshrines the FR against self-incrimination. Since
confessions under police custody could be involuntary, they could be in violation of
Article 20(3).

The explanation to S. 26 is no longer relevant.

Section 27
This works as a proviso/exception to Ss. 24, 25 and 26.

This allows recovery of material evidence with the help of statements made to police
officers.

Is a confession always made to some other person? A confession need not always be
made to another person, with the intention that it be communicated. Stephen doesn’t
mention in his definition that a confession be made to some person. For example, if a
person makes an entry in his personal diary, suggesting an inference regarding an
offence, it is admissible.

A 20(3) – no one shall be compelled to be a witness against himself; S 27 is often

though of as violative of Article 20(3), but it is not.

UK and Wales definition is the newest one: Any statement only or partly adverse.

Does a confession always require to be communicated to someone? No. It need not be

made to another with the intention.

Stephen’s definition of confession does not include the fact that a confession is made
to any person. Eg: account books can be used as confessional statements;

Soliloquy, is an act of talking to one’s self. After committing a crime, if the person
talks to himself about such crime i.e. not intended to be heard, yet admissible as a
confession.

Sahu v. State of Uttar Pradesh

He allegedly killed daughter-in-law Sundarpatti after illicit relations with her – a

witness saw him afterwards and overheard him muttering to himself that he had
finished Sundarpatti and thereby also the daily quarrels. The accused contended that
something he said to himself couldn’t be a confession. However, in the SC, Justice
Subbarao said that communication is not necessary to constitute confession. A
statement whether communicating or not, confessing guilt is admissible as a
confession.

Differences between admissions and confessions:

1. All confessions are special kinds of admissions; but all admissions are not
confessions.
2. While confessions can be retracted, admissions can act as estoppels under
Section 31 i.e. are not conclusive proof.
3. Confessions can be used by the accused in their own favour. Madiah v. State:
the accused filed an FIR by himself saying he killed his wife, after finding her
in a compromising position. The admission is not admissible as it was made to
a police, but he may use the statement to show he committed the act under
grave and sudden provocation.

A judicial confession is made to a judge/during trial. Extra-judicial confessions can be

made to anyone. Police confessions are extra-judicial, which are generally not
admissible.

Under S 26 a confession need not necessarily be made to a police officer; anyone in

police custody, not just the officer.

Madiah v. State
Dude found his wife in a compromising position and committed murder. He then filed
the FIR on his own and gave a confession. This statement was made to the police and
thus, was not admissible. But he could’ve proved it to suggest murder under grave
and sudden provocation.
Miranda v. State of Arizona

Miranda was arrested from his home and taken to the police station. After
identification of the person who had been kidnapped and raped, he was taken for
interrogation wherein he denied it. Later, in a written confession he admitted the
above crimes. The 4th, 5th and 6th amendments are against self-incrimination: talks
about the right to remain silent, anything you say can and will be used against you,
attorney rights, will be provided if you cannot afford one etc. It was contested in the
Supreme Court at the US, that Miranda was not informed of his right to a legal
counsel under the 6th Amendment. Earl Warren: found Miranda’s confession
inadmissible, as the right to silence is available in interrogations also.

Some of the elements of this case have been included in the CrPC [such as presence
of attorney during interrogation, but not at all times like in the US] – DK Basu v.
State of West Bengal talks about this too.

SECTION 27 – begins as a proviso; to which provisions? If it acts as a proviso only to S

26, then it applies only to example 2.

Eg: A phone call by Y saying X killed Z and the weapon is hidden at such and such
place. Admissible under Section 25.

Eg: X after killing Z is arrested and tells them where the weapon is. Admissible under
Section 26.

State of UP v. Deoman Upadhyay

In this case the respondent was convicted by the trial court on the charge of murder.
The' court found that there was an altercation and quarrel between the respondent and
the deceased, that the respondent borrowed a gandasa, that next morning he was seen
hurrying towards a tank and taking a bath, that he absconded thereafter, that the dead
body was found on that very plorning, that when he was arrested 2 days later, he
offered to produce the gandasa to the police, that he took them to the tank and that he
fetched the gandasa from out of the water. In the High Court, it was contended that
his statement to the police was inadmissible because Section 27 was void and ultra
vires in that it was violative of Article 14 of the Constitution, since it discriminated
between persons in police custody and those not in, such custody. The High Court
accepted the contention and finding the rest of the evidence insufficient acquitted the
accused. In appeal to the' Supreme Court, the majority of the Judges convicted the
accused. They held:

"If Section 27 renders information admissible on the ground that the discovery of a
fact pursuant to a statement made 'by a person in custody is a guarantee of the truth of
the statement made by him, and the Legislature has chosen to make on that ground an
exception to the rule Prohibiting proof of such statement, that rule is not to be deemed
unconstitutional, because of the probability of abnormal instances to which the
Legislature might have, but has not, extended the rule. The principle of admitting
evidence of statements made by person giving information leading to the discovery of
facts, which may be used in evidence against him, is manifestly reasonable. The fact
that the principle is restricted to persons in custody will not by itself be a ground for
holding that there is an attempted hostile discrimination because the rule of
admissibility of evidence is not extended to a possible, but an uncommon or abnormal
class of cases."

The dissenting opinion, however, points out: "The proviso introduced by Act VIII of
1869 was in pari materia with the provisions of Section 27 of the Evidence Act with
the difference that in the earlier section the phrase 'a person accused of any offence
and the phrase 'in the custody of police officer' were connected by the disjunctive 'or'.
The result was that no discrimination was made between a, person in custody or out
of custody making a confession to a police officer. Section 150 of the Code before
amendment also, though it was couched in different terms, was similar in effect. It
follows that, at any rate till the year 1872, the intention of the Legislature was to
provide for all confessions made by persons to the police whether in custody of the
police or not. Can it be said that in 1872 the Legislature excluded confessions or
admissions made by a not in custody of a police officer from the operation of Section
27 of the Evidence Act on the ground that such cases would be rare? The omission
appears to be rather by accident than by design. In the circumstances it is not right to
speculate and hold that the Legislature consciously excluded from the operation of
Section 27 of the Act accused not in custody on the ground that they were a few in
number. The only solution is for the Legislature to amend the section suitably and not
for this' Court to discover some imaginary ground and sustain the classification."

Aghnoo Nagesia v. State of Bihar

Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections
24, 25 and 26. It provides that when any fact is deposed to as discovered in
consequence of information received from a person accused of any offence, in the
custody of a police officer, so much of such information, as relates distinctly to the
fact thereby discovered, be proved. Section 162 of the Code of Criminal Procedure
forbids the use of any statement made by any person to a police officer in the course
of an investigation for any purpose at any enquiry or trial in respect of the offence
under investigation save as mentioned in the proviso and in cases falling under sub-
section (2) and it specifically provides that, nothing in it shall be deemed to affect the
provisions of Section 27 of the Evidence Act. Thus, except as provided by Section 27
of the Evidence Act a confession by an accused to a police officer is absolutely
protected under Section 25 of the Evidence Act, and if it is made in the course of
investigation, it is also protected by Section 162 of the Code of Criminal Procedure,
and a confession to any other person made by him while in the custody of a by
Section 26, unless it is made in the immediate presence of a Magistrate.

So even if a statement is made to a person in authority under Section 24, which leads
to a discovery of a fact, it would be hit by Section 27.

Pulukuri Kottaya v. King Emperor

In this case the accused were charged with murder. Some of them made statements to
the police, when arrested, that the "spear with which I stabbed I hid in a particular
place". As a result of the statements the spears were recovered. The High Court
convicted the accused, admitting in evidence, the portion of the statement "with which
I stabbed". The Privy Council held:

"Section 27, which is not artistically worded, provides an exception to the prohibition
imposed by the preceding section, and enables certain statements made by a person in
police custody to be proved. The condition necessary to bring the section into
operation is that the discovery of a fact in consequence of information received from a
person accused of any offence in the custody of a police officer must be deposed to
and thereupon so much of the information as relates distinctly to the fact thereby
discovered may be proved.

John – It is fallacious to treat the fact ‘discovered’ within the section as equivalent to
the object produced; the fact discovered embraces the from which the object is
produced and the knowledge of the as to this, and the information given must relate
distinctly to this fact. Information as to past user, or the past history, of the object
produced is not related to its discovery in the setting in which it is discovered.
Information supplied, by a person in custody that “I will produce a knife concealed in
the roof of my does not lead to the discovery of a knife; knives were discovered many
years ago. It leads to the discovery of the fact that a knife is concealed in the house of
the informant to his knowledge, and if the knife is proved to have been used in the
commission of the offence, the fact discovered is very relevant. But if to the statement
the words were added 'with which I stabbed A', these words are inadmissible since
they do not relate to the discovery of the knife in the house of the informant.

Mustkeen @ Sirajuddin v. State of Rajasthan

Thereafter, the burden lies on the prosecution to prove the link between the weapon
and the offence committed and the person committing the offence. The Section
merely makes the statement admissible, does not create an opinion on such statement.
The statement is not enough to convict anyone. There must be some other proof to
establish the link.

Section 28

Confession made after removal of impression caused by inducement, threat or

promise; it is an explanation to Section 24; when Section 24 is no longer applicable,
this will apply.

When does a threat/promise/inducement lose its meaning?

When (1) the person making the threat is no longer in the position of authority over
another person through a supervening event/(2) there is a lapse of time/(3) superior
authority cautioning the accused preventing the person from carrying out his threat.

R. v. Hewett
A female maid was accused of stealing money from her mistress; on Monday, her
mistress promised her no action would be taken if she admits to stealing the money
and she would forgive her; on Tuesday she appeared before the Magistrate and was
let off due to lack of evidence; on Wednesday, the Police SP in front of the mistress
told her she was not bound to give any statement but she could if she wanted to and
whatever she said would be heard by the mistress, but he did not tell her it could be
used as evidence against her; she made a full confession which was used against her
in Court, under the impression that her mistress’ earlier promise would operate.

Section 29

Confession otherwise relevant does not become irrelevant due to promise of secrecy
etc.

(1) Promise of secrecy:

(2) Deception:

Emperor v. Md. Baksh

The accused made a confession to a medical officer of a military contingent after the
officer told him that he already had prior knowledge about the offence; it was
admissible in Court.

Sting operations: they practice a form of deception, which leads to gaining of

knowledge – admissible.

(2) Drunk accused:

In vino veritas est – the truth is in wine; not followed in India.

In India, it is immaterial whether at the time of confession the person is drunk

voluntarily, or involuntarily. His drunkenness does not prevent the confession from
being relevant. Simply because one was intoxicated, the confession is not
inadmissible; however there is no presumption as to truth or falsity.

(3) Made in answer to questions which he need not have answered:

Leading question i.e. one that you cannot get out of, as it suggests the answer
automatically. The adverse party can object to such questions. However, if these
questions are answered, the answers can be used against the person as confessions
under Section 29. Asked in cross-examination. S 141

(4) Section 164(2) of CrPC – the Magistrate is supposed to tell the accused about the
confession being voluntarily; if this is not followed is the confession inadmissible.

Section 463 of CrPC – non-compliance of Section 164, if doesn’t injure the accused
on the merits, is admissible i.e. accused should not have been injured adversely by
such non-compliance; the types of non-compliance of Section 164 (2): (i) the
Magistrate might have administered the warnings to the accused, but failed to record
the warnings prior to the confessions (ii) the Magistrate may not have administered
the warnings; in the first instance, there is no injury to the accused to it can be used,
however, for the second instance the confession cannot be admitted.

Dagdu v. State of Maharashtra [Balamani v. State of Orissa; In re Karunathami;

Nazir Ahmed v. King Emperor]

Supreme Court held, not complying with S 164(2) of the CrPC does not render the
confession inadmissible. However, the evidentiary value of a confession recorded in
the wrong manner will go down greatly. With respect to this case, the circumstances
were such that no reliance could be placed on the confession. As long as such
confessions have not contravened Sections 24-28 of the IEA, the confessions are
admissible.

Kehar Singh v. State

SC restored the position to Section 463 i.e. must be compliance, and if there is non-
compliance, it must be curable. Dagdu was overruled by this case. The A confession
is admissible only when made in compliance with S. 164. If any irregularities in
recording such a statement exist, then the statement would be admissible only if
they’re curable under S. 463.

Shivappa v. State of Karnataka SC: full and adequate compliance not merely in form
but in essence, with the provisions of Section 164 of CrPC, and the rules framed by
HC is imperative and its non-compliance goes to the root of the Magistrate’s
jurisdiction to record the confession and renders the confession unworthy of credence.

Ravindra Kumar Pal @ Dara Singh v. Republic of India: reiterated the case of
Shivappa v. State of Karnataka. The Australian missionary murder case. The SC
reiterated that the provisions of S. 164 CrPC must be complied with, not just in form
but in essence.

Section 30

It is an exception to the traditional idea that a confession is admissible against the

person who made it and committed the offence. This section refers to confession by
one on behalf of another, jointly being tried for the same offence i.e. confessions by
co-accused are admissible but not proved beyond reasonable doubt. When more
persons than one are tried together for an offence, a confession made by one of them
which affects himself and the other(s) may be considered by the court. The court may
consider this confession not just against his own self but also against the other(s).

This is not to say that such a statement would necessarily be admissible and be held to
be proof beyond reasonable doubt. Confessions, traditionally, are made by an accused
with respect to his own self. Without S. 30, a confession made by a co-accused would
not be admissible against an accused even when jointly being tried for an offence.

It is imperative that this confession be made with respect to the same offence and
when the co-accused are being jointly tried. Illustration (b): If A is being tried for
murder of C, and he makes a statement to the effect that he, along with B murdered C,
such a confession would not be admissible against B under this provision.

Sections 306 & 307 of CrPC talk about tender of pardon to an accomplice/approver
[of the prosecution case]. Section 30 of IEA becomes particularly relevant in cases of
approvers. Eg: Thugee case.

‘Offence’ includes the abetment or attempt to commit an offence.

Nageswara Rao mentions in R. v. Amrita Govinda: A, B and C were being tried

jointly for murder (by A), abetment of murder (by B) and concealing of evidence (by
C) respectively. In this case, C’s confession is not admissible against A and B. This is
because ‘offence’ under Section 30, includes the crime + the abetment and attempt to
commit that crime. C’s offence is different from A and B’s although part of the same
transaction.

Deputy Legal Remembrancer v. Karna Baistobi: They were being tried jointly for
selling and buying of a minor girl for prostitution. However, since they are being tried
under different offences, the confession of one is not admissible as against the other,
under Section 30.

The confession under Section 30 cannot be the sole ground for conviction.

Kashmira Singh v. State of Himachal Pradesh: 2 people were charged with murder
of Ramesh. One of them confessed to committing the murder. The entire case was
based upon confessions and witnesses. Circumstantial evidence was not sufficient
either. This case held that Section 30 confessions should not be the foundation for an
entire case, as by way of the Section they merely become admissible and nothing
more.

Bhuboni Sahu v. King Emperor: The Court may consider the confession, but it need
not amount to proof. It must be weighed with other evidence also.

State v. Nalini: Section 30 merely permits the Court to take the confession into
consideration and nothing more. Reiterates Bhuboni Sahu’s case.

69th Law Commission Report: Section 30 should be repealed.

185th Law Commission Report: barely any such confessions and there is an extremely
restricted interpretation given to the Section by Courts, hence repeal is not necessary.

Miranda v. State of Arizona: Miranda was arrested from his home and taken to the
police station. After identification of the person who had been kidnapped and raped,
he was taken for interrogation wherein he denied it. Later, in a written confession he
admitted the above crimes. The 4th, 5th and 6th amendments are against self-
incrimination: talks about the right to remain silent, anything you say can and will be
used against you, attorney rights, will be provided if you cannot afford one etc. It was
contested in the Supreme Court at the US, that Miranda was not informed of his right
to a legal counsel under the 6th Amendment. Earl Warren: found Miranda’s
confession inadmissible, as the right to silence is available in interrogations also.
Section 179 of IPC: refusal to answer a public servant who is authorized to question;
criticisms: sometimes a confession not admissible against the person making it, but is
admissible for a co-accused i.e. A. 20(3) allows for compelling a person to be a
witness against someone else.

Section 32

There can be written or verbal statements under this Section.

This Section provides the cases in which the statement of a relevant fact is a relevant
fact by itself.

The person must fall in one of the following categories.

 Dead.
By virtue of application of Ss. 104 and 136, if a statement is sought to be
made under S. 32(1), first it must be proved that the person is dead.
 Cannot be found.
It must be shown that reasonable efforts were made to find the person.
 Incapable of giving evidence.
S. 118 explains who may be considered fit to testify. The witness must be able
to both comprehend the question and give rational answers in return.
 Procuring attendance would require an unreasonable expense or delay.
This is a discretionary power of the court. However, the court is advised to
make use of this provision only sparingly.

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.

Ratan Gond v. State of Bihar

The accused was told he would be paid Rs.80 for bringing the head of a dead girl. The
accused killed the deceased, a girl aged 9 years. Her 5-year-old sister said this to the
mother and to some other people. A few months later, the sister also died. Relying on
the statements of the sister as dying declarations, the accused was convicted. The SC
overturned this decision stating that these did not fall under the category of dying
declarations because the statements of the sister did not relate to her own death, but to
the death of her sister.

Sharda v. State of Rajasthan

A girl had suffered multiple burn injuries. She made three dying declarations – to the
doctor, the sub-inspector of police and the executive magistrate. She said that she was
injured when the gas stove burst, in her first two statements. But in the statement
before the EM, she said her mother-in-law poured kerosene on her and set her on fire.
She was convicted. Later the SC overturned this in light of contradictory dying
declarations. Earlier, it had been held that when multiple dying declarations are made,
generally the one provided first in time must be relied upon. However, this is only a
general and not a hard-and-fast rule.

Gehani v. State of Maharashtra

The first dying declaration is usually preferred because in the interval time, other
people may prompt the dying person to change their statements.

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.

(2) Cannot be found

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

(3) 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.

(4) 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

Medical Evidence
Obtaining a medical certificate (to the effect that the person is mentally and physically
fit to provide a statement) when the dying declaration is being taken is desirable. But
this not necessary in all situations, since obtaining a medical certificate in each
situation is not practically possible. It depends on a case to case basis.

The need for a medical certificate comes from the fact that a dying declaration is
usually made by a person who has been seriously, fatally injured, putting him under
immense psychological and physical stress.

Further, a medical certificate need not be relied upon as a rule, without any
divergence. In some situations, ocular evidence is more reliable than medical
evidence. The medical evidence could be biased or inaccurate.

Recording of Dying Declarations

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 113(a) – presumption in case of death of women within 7 years of marriage; if

she mentions her husband or a relative in her dying declaration, the court will
presume that the suicide was abetted by such person.

Doctor’s statements as to mental fitness of a witness are relevant. However,

sometimes the doctor just comments on whether the person is conscious or not.

Nanhauram v. State of Madhya Pradesh: doctor’s evidence

To whom can a dying declaration be made? Can it be made to a police officer?

Section 32(1) the person to whom it is to be made is not mentioned or specified.
Therefore, it may be made to anyone.

Is it required that the statement be reduced to writing? No, as it doesn’t result in a

completely accurate memory of the statement. However, this may be the case for
verbally made ones too. It depends on the time available to write it down.

Section 162(2) of CrPC – statements made in police custody – makes and exception
for dying declarations; since a person who is dead cannot be called as a witness, their
statements made to the police can be used in the cross-examination etc. It is an
exception to Section 162(1).
Munnuraja v. State of Madhya Pradesh: SC observed that the practice of the
investigating officer himself recording the declaration by the victim; no need to
suggest that such dying declarations are unreliable as the IO took it – allowed if the
time and facility didn’t allow for better method of recording of statements i.e. under
grave circumstances; such practice by IO is supposed to be discouraged as they may
be in the interest of the police; it would be more reliable if better methods to record
such declaration

Kushal Rao v. State of Bombay: guidelines to understand the evidentiary values of

dying declarations – (1) A statement made by a dying person as to the cause of death
has been accorded by the Legislature a special sanctity which should, on first
principles, be respected (2) unless there are clear circumstances brought out in the
evidence to show that the person making the statement was not in expectation of
death, not that that circumstance would affect the admissibility of the statement, but
only its weight. (3) It may also be shown by evidence that a dying declaration is not
reliable because it was not made at the earliest opportunity, and, thus, there was a
reasonable ground to believe its having been put into the mouth of the dying man,
when his power of resistance against telling a falsehood was ebbing away; (4) or
because the statement has not been properly recorded, for example, the statement bad
been recorded as a result of prompting by some interested parties or was in answer to
leading questions put by the recording officer, or, by the person purporting to
reproduce that statement. (5) It is substantive evidence and the weight that is to be
attributed to it is a question of fact. Though it is specie of hearsay it is an exception to
the general inadmissibility. These may be some of the circumstances, which can be
said to detract from the value of a dying declaration.

Ram Nath Madhoprasad v. State of Madhya Pradesh: It is settled law that it is not
safe to convict an accused person merely on the evidence furnished by a dying
declaration without further corroboration because such a statement is not made on
oath and is not subject to cross-examination and because the maker of it might be
mentally and physically in a state of confusion and might well be drawing upon his
imagination while he was making the declaration. It is in this light that the different
dying declarations made by the deceased and sought to be proved in the case have to
be considered.
The above 2 cases are contradictory in nature. Each case must be observed on its own
facts.

In order to test the reliability of a dying declaration, the Court must keep in mind the
circumstances that determine capacity of the man to remember the fact had not been
impaired and whether the statement was consistent throughout, and whether the
conditions were conducive to understanding the facts [such as enough light to see who
it was]

Section 33

Evidence given by a witness –

1. In a judicial proceeding
2. Before any person authoritized to take it
3. Is relevant for proving the truth of the facts
4. In the same judicial proceeding (later stage)
5. In a subsequent judicial proceeding
6. Provided that same parties/representatives

Section 33 IEA and Section 326 CRPC

Even if the adverse party does not cross examine the witness – its enough under 299.
Section 33 requires cross examination, 299 does not. What happens when judges who
have examined a witness get transferred? The section that is operative in such cases is
Section 33.
Section 34

Section 46(b) and Section 53(A) CRPC

Dactylography – science of fingerprints

Graphology – handwriting analysis

GSR i.e. gun shot residue test

Locard’s principle of exchange – every touch leaves a trace

Section 45

Section 136 para 1 [admissibility decided] read with Section 45 [expert opinion] and
S 34 of the Indian Evidence Act.

 Section 327(2) CRPC - Testimony of rape victim can’t be in open court

 Proviso to this allows some persons whose presence is necessary to attend the
proceedings
  Even in absence of Section 155(4), victim is asked a lot of difficult questions.
So in camera proceedings alone does not make the whole thing easier on the
victim
 There may be false prosecutions as well
 In one case, victim was asked to lie down and show the position in which she
was raped – that’s messed up, should not be allowed

Section 46

Sergei Skripal’s case

Showed symptoms of novichok poisoning – under S 46 symptoms exhibited by other

persons poisoned using novichok are relevant

Section 47

The expert need not be a specially skilled person doing this exclusively. Eg: when the
handwriting of a student is being examined and the Court is to form an opinion about
it, the parent/teacher of such student may be called and their opinion may be taken.

Frye v. U.S.

The court of appeals held – in order to be admissible a scientific theory underpinning

an expert witnesses evidence, “must be sufficiently established” to have gained
general acceptance in the particular field in which it belongs. Issue was wrt subjecting
the accused to a systolic BP test to check for change in BP. It was required that expert
testimony of a person doing such test be allowed but the request was denied.

Daubert v. Merril Dow Pharmaceuticals

US federal rules of evidence [amended in 2000 and 2011] which deals with opinions
and testimonies adopted the Dauber test [2002] – Rule 702: opinion of expert
witnesses.

An expert may testify if –

1. The testimony is based on sufficient facts and data

2. If it is a product of reliable principles and tenets
3. If the witness has applied the principles and methods reliably to the facts of
the case
Judge acts as a gatekeeper and determines which of the testimonies passes the test of
Rule 702. This is the same as the below Indian statutory provisions.

Allegation was that Defendant’s medicines were causing birth defects – general
acceptance of expert opinion was called for – Court held: “expert opinion should be
one of the standards and not the only one standard”

Federal Standard – General Acceptance Rule:

1. Has the technique been tested?

2. Subject to peer review and publication?
3. Error rate?
4. Whether research was conducted independent of litigation?
5. Widespread acceptance in scientist community?
6. Judge is the gatekeeper – must apply his mind to evidence of expert’s opinion

Witnesses:

1. Ordinary – court forms an opinion on the basis of the facts asserted by the
witness and not his opinion – facts asserted by them are relevant facts – they
may state only the facts and not their effects
2. Expert – court forms an opinion on the basis of such witness’ opinion – their
opinions are the relevant facts – may state facts, opinions and effect of such
opinion

Section 112 IEA – presumption of legitimacy when a child is born during the
subsistence of a marriage or within 280 days from the dissolution of the marriage. S.
103 places burden of proof on whoever wants to prove otherwise

Can anyone be compelled to take a paternity test? – Yes, because the mere adverse
inference that is drawn from silence is not enough to confirm paternity, that’s
not certain enough.

Eg: Rohit Shekhar Sharma v. Narayan Dutt Tiwari

Tomaso Bruno v. State of U.P.

1. the courts are not absolutely guided by the report of the experts, especially if
such reports are perfunctory and unsustainable.
 2. The purpose of an expert opinion is primarily to assist the court in arriving in a
final conclusion but such report is not a conclusive one. The court is expected
to analyze the report, read it in conjunction with the other evidence on record
and form its final opinion as to whether such a report is worthy of reliance or
not

Romesh Chandra Jaiswal v. Regency Hospitals

the matter is outside the knowledge and experience of the lay person…The scientific
question involved is assumed to be not within the court‟s knowledge. Thus, cases
where the science involved, is highly specialized and perhaps even esoteric, the
central rule of expert cannot be disputed. The other requirements of the admissibility
of expert evidence are; (i) That the expert must be within a recognized field of
expertise (ii)That the [this case +Tomaso Bruno case] evidence must be based on
reliable principles and (iii) that the expert must be qualified in that discipline”

Madan Gopal Kakkar v. Dubey

Medical witness as expert – evidence given by him is of an advisory character – this

helps the court in forming evidence – once accepted it is no more the opinion of the
medical witness but of the Court – thus, the court determines how much reliance be
placed on such evidence.

Prem Sagar v. State NCT Delhi

Same as Tomaso Bruno.

Goutam Kundu v. State of West Bengal – DNA evidence and paternity testing [page
18 of the Law Comission report last para]

The Supreme Court observed: (1) that courts in India cannot order blood test as a
matter of course; (2) wherever applications are made for such prayers in order to have
roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a
strong prima facie case in that the husband must establish non-access in order to
dispel the presumption arising under Section 112 of the Evidence Act. (4) The court
must carefully examine as to what would be the consequence of ordering the blood
test; whether it will have the effect of branding a child as a bastard and the mother as
an unchaste woman. (5) No one can be compelled to give sample of blood for analysis.
Kanti Devi v. Poshi Ram - the Court dealt with the issue of determining the paternity
of a child and held: The result of a genuine DNA test is said to be scientifically
accurate. But even that is not enough to escape from the conclusiveness of Section
112 of the Act, e.g. if a husband and wife were living together during the time of
conception but the DNA test revealed that the child was not born to the husband, the
conclusiveness in law would remain unrebuttable

Nandlal Basudev Badwaik v. Lata Nandlal Badwaik - the Court held that depending
on the facts and circumstances of the case, it would be permissible for the Court to
direct the DNA examination to determine the veracity of the allegation(s) made in a
case. If the direction to hold such a test can be avoided, it should so be avoided. The
reason is that the legitimacy of the child should not be put to peril.

Selvi v. State of Karnataka – there were no guidelines for narco analysis, court said –
if you do these tests without the consent of the person concerned, this would violate
art. 20.

Pages 12, 13 [State of Bombay v. Kathi Kalu Oghat], 25 and 26 and 27 of the Law
Commission Report (271st) on expert evidence.

What happens when the expert witnesses give contradictory opinions?

The court will form its own opinion; the amount of discrepancy also has to be seen.

Munshi Prasad v. State of Bihar

Nagappa v. State of Karnataka

Conflict: whether injuries were ante-mortem or post-mortem? Doctor claimed it was
ante-mortem but has no idea as to how they were inflicted.

Rigor Mortis – body stiffens after death

Livor Mortis – blood reaches organs clothes to the ground due to gravity

Algor Mortis – body becomes cold

Putrefaction – decomposition of the body with changes in environment

Tanviben Pankaj Kumar Divetia v. State of Gujarat

Opinion of doctor regarding time of death was contradictory.

S 114 illustration (h) – not compelled to answer the question whether you are the
father of a particular person, but if you don’t answer an adverse inference will be
drawn against you.

DNA tests are used -

1. To prove guilt in cases of rape

2. Used to identify when body has been mutilated
3. To prove non-access and rebut the presumption of paternity

IMPORTANT SECTIONS

S 118 – who may testify

S 121 – judges and magistrates cannot be compelled to answer about their own
conduct in court

S 125 – confidential informants are kept confidential

S 127 – apply S 126 wrt professional communications to interpreters etc.

S 133 –accomplice definition

S 135 – order of production and examination of witnesses – regulated by law and

practice relating to the procedure or the discretion of the Court

S 136 – judge decides admissibility of evidence

S 137 – examination in chief, cross, and re-examination

EIC – when the party calls a witness and examines that witness

Cross – adverse party examines the witness

After this re examination may or may not happen

After re exam also there can be cross examination

Section 138 must be contrasted with Section 135 – order of examinations i.e. 1st EIC,
then cross and then re examination.

Section 141 – leading questions

Section 143 – leading questions may be asked during cross examination

Electronic Evidence

State v. Navjot Sadhu @ Afsal Guru: CDRs are created when the Govt intercepts
communication i.e. tapping. This is done with authorization under the Telegraphs Act.
After a call is intercepted, the details are transcribed and this transcript must be
verified and certified. In December 2001 – attack on the Parliament – there was a
firing which lead to the deaths of terrorists and civilians – it was found that there was
a conspiracy to allow the terrorists into the Parliament – in the Trial Court judgment,
it was found that Afsal Guru and SAR Geelani had a phone conversation in Kashmiri
with a lot of code words such as “baraat”, date of the marriage, no. of guests etc.
Therefore, there was a transcript against Geelani, which was through lawful
interception, but there was a procedural infirmity wrt the certification of the transcript
under S 65B of IEA. Recently, Afsal was hung. In this case, Geelani was factually
guilty but legally innocent and therefore was acquitted.

Anvar P.V. v. Basheer: They reiterated when an electronic record by way of

secondary evidence shall not be admitted in evidence unless the requirements of S
65B are satisfied. Thus, in the case of CD, VCD, chip etc. the same shall be
accompanied by a certificate as required under Section 65B(4) obtained at the time of
taking the document without which the secondary evidence wrt that electronic record
is inadmissible.
Shafi Mohammed v. State of Himachal Pradesh: a party not in possession of the
electronic device but is producing a record of electronic evidence need not produce a
certificate under S 65B(4) – this does not overrule Anvar v. Basheer case, although
before this there was mandatory certification.

Evidence produced through CDRs is less reliable than transcripts of such calls. The
CDRs contain date, time, numbers, duration of calls etc.

Controversy: If the party not in possession of the electronic device, as per the above
case, the Govt is never in possession of the electronic devices under consideration.
Therefore, the Govt would not require certification. Thus, at this point of time if the
Geelani case were to be decided, he would have been convicted, as Govt does not
require certification. This means that the veracity of the evidence may not always be
foolproof.

Eg: Bodhisattva is accused of possessing and consuming cannabis; he then reveals

during interrogation that he buys drugs from Mark Calloway @ The Undertaker. They
are both now accused of buying and selling drugs. There is a CDR between the two,
which was transcribed, which may not require certification – they talk about scoring
weed; this happens a few days before the raid; if this conversation was over
WhatsApp, and B’s phone was seized and this conversation was present, this would
fall under electronic evidence with certificate. If they used some other method for this
conversation recovery with respect to interception, then there would be no need for
certification.

Criminal Law Amendment ordinance amending S 376 IPC

Now a women who is a victim of rape cannot be cross examined and asked questions
testing her character – S 146 proviso [for offences under S 376, not permissible to
adduce evidence/put questions in cross-examination of victim wrt general immoral
character/previous sexual experience etc.] – S 155(4) [general immoral character of
prosecutrix may be shown in rape cases – removed in 2003] r/w 114A [presumption
of absence of consent]