Law of Evidence (LLB-303)

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
SEMESTER: FIFTH
BBALLB III A+B+C & BALLB III A+B+C
NAME OF THE SUBJECT: LAW OF EVIDENCE
UNIT-1
TOPIC: EVIDENCE & ITS RELATIONSHIP WITH SUBSTANTIVE &
PROCEDURAL LAWS
FACULTY NAME: Ms. Ridam Aggarwal
(Assistant Professor)

Meaning of Evidence
Evidence’ is derived from the Latin term.
“Evidence” which means – “to show clearly, to
make plainly certain, to ascertain, to prove”
Taylor says – (functional description of court
process) “The word ‘evidence’ includes all
legal means, exclusive of mere arguments,
which tend to prove or disprove any matter of
fact, the truth of which is submitted to judicial
investigation.”

Definitions
• Classical exposition of Bentham – “Any matter of fact, the effect
or tendency of which is to produce in the mind a persuasion,
affirmative or disaffirmive of the existence of some other matter
of fact.” (comprehends both physical and psychological facts)
• Evidence may bear two meanings or refer to –
i) MEANS – that tend to create a belief in the mind of judge; and
ii) FINAL BELIEF – actually created in his mind, known as
PROOF.
• PROOF IS THE END AND EVIDENCE IS THE MEANS TO
PROOF. In the Indian Evidence Act,1872, the word ‘Evidence’ is
used in the sense of “Means”.

Extent & Application of Indian
Evidence Act
• Sec-1 The Indian Evidence Act,1872 came into force on 1st. September,
1872.
• It applies to the whole of India and also J&K.
• It applies to all JUDICIAL PROCEEDINGS in or before a court, including
court martials under the Army Act,1950, The Navy Act, 1957 and the Air
Force Act, 1950. Not applicable to –
i) proceedings under The Army Act, The Naval Discipline Act, 1934 and
the Air Force Act passed by the British Parliament.
ii) Affidavits
iii) Arbitration proceedings.
• The provisions of this Act are not applicable to Departmental Inquiries /
Domestic Inquiries/Commissions of Inquiries / Administrative Tribunals.
• Refer to Court – Judicial Proceedings – Taking of evidence on oath.

Evidence and its Relationship with the
Substantive and Procedural Laws
Sir James Stephen defines Law of Evidence as-
“The Law of Evidence is that part of the law of
procedure, which with a view to ascertain individual
rights & liabilities in individual cases, it decides
• What facts may or may not be proved in such case
• What sort of evidence must be given to a fact which
may be proved and
• By whom and in what manner the evidence must be
given by which any fact is proved.”

Substantive and Procedural Laws Cont.
Law of Evidence deals with modes of Leading
Evidence as well as regulating that evidence of
which fact can be given in court. The main
object of the law of evidence is to assist the
court in judging what facts are relevant to
ascertain the truth and to avoid the confusion
and how such relevant facts will be proved in
courts by lawfully leading the evidence.

Substantive and Procedural Laws Cont.
Laws may be divided into “Substantive” And
“Procedural”.
• The laws which defines rights, duties &
liabilities are called “Substantive Laws”. For
example, IPC.
• The laws which prescribes the mode or
procedure by which application of substantive
laws is regulated are called “Procedural
Laws”.Chanderprabhu Jain College of Higher Studies & School of Law

Conclusion
Law of Evidence is a Procedural Law.
Evidence Act does not define rights &
liabilities under the law but only prescribe the
mode by which rights or liabilities of parties is
curtained. Therefore, it is a Procedural Law
which helps in the implementation of
Substantive Law.

TOPIC: DEFINITIONS GIVEN UNDER INDIAN
EVIDENCE ACT

Fact
• FACT means and includes –
• i) Any thing, state of things or relation of things
capable of being perceived by the senses called as
Physical Facts.
• ii) Any mental condition of which any person is
conscious called as Psychological facts.
• Fact may be divided into –
i) Fact in issue (FACTUM PROBANDUM) and
ii) Relevant Fact (FACTUMPROBANS) or
Evidentiary Fact

Fact
• ‘Fact’ means an existing thing.
• Physical & Psychological Facts – A horse, a man
are physical facts.
• Psychological Facts – The sensation or
recollection of which man is conscious, his
desires, his intentions in doing a particular act etc.
• Positive Facts – Existence of certain state of
things
• Negative Facts – Non existence of it.

Fact in Issue
A is a cashier in a factory. It is his duty to bring money
from bank & distribute it to the laborers. A case under
Sec. 409, IPC of Criminal Breach of Trust has been
filed against him. The case against him is that he
brought Rs. 25,000 from the bank & misappropriated
Rs. 13,000 out of it. A says in his defense that he
brought the case from the bank and as he was to go on
leave that day, he, according to the direction of the
Manager of the Company, hander over Rs. 25,000 to B,
Assistant Cashier.

Relevant Fact
• It is a subjective concept.
• One fact is said to be relevant to other when it
is connected with the other in such a manner as
provided in the sections of relevancy in the act,
ie., S.6 to 55.
• A fact cannot be relevant in isolation. It has to
be in connection with the other. It cannot exist
alone.

Relevant Fact – Examples
• Mere watch is not a fact but a watch in possession
of a person is a relevant fact.
• “A & B had a quarrel and next day, B was found
dead” – In this case, the quarrel between A & B is
a relevant fact u/s 8 of the act as it constitutes the
Motive of killing of B by A.
• In Arushi Murder Case, the fact that her vagina
was cleaned with water is a relevant fact that
either she was sexually active or she was raped.

Evidence Proved
• A fact is said to be proved when, after considering
the matters before it, the Court either believes it to
exist, or considers its existence so probable that a
prudent man ought, under the circumstances of
the particular case, to act upon the supposition
that it exists.
• Eg: A was found in possession of the murder
weapon. In this case , a prudent man ought to act
upon the supposition that exists.

Evidence Disproved
• A fact is said to be disproved when, after
considering the matters before it, the Court either
believes that it does not exist, or considers its non-
existence so probable that a prudent man ought,
under the circumstances ofthe particular case, to act
upon the supposition that it does not exist.
• Eg: A had an argument with B. Later, B was found
dead. Here, A was able to prove that he was not at
the place of murder as he proved he was out of
India. Here, this fact has been disproved.

Not Proved
• A fact is said not to be proved when it is neither
proved nor disproved.
• Here, the fact is in between, ie., the status of the
fact is not decided. It has not been categorized
between proved or disproved. It is yet to be
divided in a particular category.
• Eg: There were fingerprints on the murder
weapon but it has still not been established to
whom does those fingerprints belong. Here, it is
in the category of Not Proved.

Evidence
The word “Evidence” has been derived from the
Latin word, ‘evidence’ which implies to show
distinctly to make clear to view or sight, to
discover clearly, to make plainly certain, to
certain, to ascertain, to prove.

Oral Evidence
• All statements which the Court permits or
requires to be made before it by witness, in
relation to matters of act under inquiry; such
statements are called Oral Evidence.
• Oral Evidence is that evidence which the
victim has personally seen or heard.

Documentary Evidence
• All documents produced for the inspection of
the Court; such documents are called
Documentary Evidence.
• It has to be in a written form.
• It can be any kind of document which is
relevant to the matter in question in the court
of law.

Proved
• Sec. 3 – Proved – A fact is said to be proved
when, after considering the matter before it,
the court either believes it to exist, or considers
its existence so probable that a prudent man
ought, under the circumstances of the
particular case, to act upon the supposition that
it exists.

Proved
• Proof – It must mean such evidence as would
induce a reasonable man to come to the
conclusion – Bhano V. Babu Singh, 1998 Cr.
LJ 4768(Raj), Facts must be proved by the best
evidence available.
• Proof beyond reasonable doubt does not mean
perfect proof, which may sound artificial.

Proved
• Letters of a married woman to her father
apprehending danger.
• Mass killing by Mob – Overt Act –
Participation in Crime.
• Medical opinion about husband conduct
towards wife dying burns.
• He tried to hold her by his hands & prevented
her from going out of room.

TOPIC: THEORY OF RELEVANCY & PLEA OF ALIBI

Logical Relevancy
• ‘Logical Relevancy’ means a logical
connection between the two facts.
• For eg: In Santosh Singh case, the fact that the
helmet had a visor in the morning & it was
missing in the evening & the fact that pieces of
visor were found on the spot & apparently the
victim had been hit with a heavy object show a
logical connection with the causation of death.

Legal Relevancy
• When a logically relevant fact can be
recognized as legally relevant, it is called
‘Legal Relevancy’.
• The Indian Evidence Act in various sections
such as S.6 to 55 identifies various logical
relevant facts & puts them under these
sections.

Nexus between Logical Relevancy
& Legal Relevancy
• Every legally relevant fact in the act is also
logically relevant but theoretically, it can be
said that every logically relevant fact may not
be legally relevant.
• Only those logical facts which are covered
under Section 6 to 55 can be called Legally
Relevant.

Admissibility
• S. 165 (Proviso 1) - Judge's power to put questions or
order production
• S. 5 - Evidence may be given of facts in issue and
relevant facts.
• S. 155 - Impeaching credit of witness.
• S. 136 - Judge to decide as to a,dmissibility of
evidence.
• S. 104 - Burden of proving fact to be proved to make
evidence-' admissible.

Reliability
• Reliability of Evidences is a process where it is seen
if an evidence given to prove a relevant fact is
sufficient to the satisfaction of the court.
• There is no mechanism given as such to prove it but
various other provisions assist in this such as
– Cross Examination
– Confession
– Contradiction
– Re-examination
– Examination-in-chief

Alibi
• The plea of absence of a person, charged with an
offence, from the place of occurrence at the time of
the commission of the offence is called ‘Plea of
Alibi’.
• Rajinder Singh V. State of U.P. [AIR 2007 SC 2791]
– No finding of plea of alibi can be recorded by the
High Court for the first time in a position
– S. 161, Cr.P.C. – statement recorded –
inadmissible.

Case Law
Binay Kumar & Others V. State of Bihar
(AIR 1997 SC 321)
• It was held by Supreme Court that it is basic law
in the criminal case in which the accused is
alleged to have inflicted physical injury to
another person. The burden of proof is on
prosecution to prove that the accused was
present at the scene and has anticipated in the
crime.

TOPIC: DOCTRINE OF RES GESTAE

Meaning
• The term 'Res' is a Latin word which means "thing" and the
expression "Res Gestae" literally which means “the thing done, a
subject matter, a transaction or essential circumstances
surrounding the subject".
• In the law of evidence, it means things done including words
spoken, forming part of the same transaction.
• There is a fact story behind every case before the court of law. In
(fact story) contains certain acts, omissions or statements, which
are not in issue but are capable of throwing some light on the
nature of the transaction revealing its true quality and character.
• Such acts, omissions, or statements from part of the same
transaction in issue and are allowed to be proved.

Definition of Res Gestae
Halsbury defines 'Res gaste' as "Facts which
form part of the res gestae and are
consequently provable as facts relevant to the
issue ; include acts , declarations and incidents
which themselves constitute or accompany and
explain the facts or transaction in issue.

Section 6
• S. 6 embodies the rule of Admission of Evidence know as Res gestae.
This phrase means simply a transaction, thing done, subject matter Res
gestae of any case properly consist of that portion of actual happening of
the world out of the rights or liability, complained or asserted in the
proceeding, necessarily, arise
• This phrase has been used in two senses.
a) In the restricted senses it means world's happening out of which the right or
liability in question arises. In restricted meaning Res gestae imports the
conception of action by some person producing the effects for which the
liability is sought to be enforced an action.
b) In the wider sense it covers all the probative facts by which res gestae are
reproduced to the tribunal where the Direct Evidence of witness or
perception by the Court are unattainable.

Section 7
Facts which are the occasion, cause or effect
of facts in issue
Facts which are the occasion, cause, or effect,
immediately or otherwise, of relevant facts, or
facts in issue, or which constitute the state of
things under which they happened, or which
afforded an opportunity for their occurrence or
transaction, are relevant.

Section 8
Motive, preparation and previous or subsequent conduct
• Any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact.
• The conduct of any party, or of any agent to any party, to
any suit or proceeding, in reference to such suit or
proceeding, or in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence
against whom is subject of any proceeding, is relevant, if
such conduct influences or is influenced by any fact ins
issue or relevant fact, and whether it was previous or
subsequent thereto.

Section 8 Cont.
• Explanation 1- The work "conduct" in this section does not
include statements, unless those statements accompany and
explain acts other than statements, but this explanation is
not to affect the relevancy of statements under any other
section of this Act.
• Explanation 2— When the conduct of any person is
relevant, any statement made to him or in his presence and
hearing, which affects such conduct is relevant.

Case Laws
• Supreme Court in Punjabrao v. D P Meshram, AIR 1965 SC
1179, held that the Evidence of the conversion of a member of
Scheduled Caste to Buddhism may be Corroborated by the Evidence
of his conduct subsequent to his conversion. In Pershadi v. State ,
AIR 1957 SC 211, held that in a case of murder soon after the
murder the accused who had earlier held out of a threat to the victim
told the father of the victim that he had a hand in this appearance of
the accused, is Admissible u/s. 6 of the Indian Evidence Act.
• Supreme Court in Chander Kala v. Ram Kishan, AIR SC
1268, held that when the complainant narrated the incident to
the relative of the deceased and he deposed to that effect in
Court, such Evidence is Admissible in Evidence.

Case Laws Cont.
• In state of Andhra Pradesh v. Panna Satyanarayan, AIR
2000 SC 2138 , held that when the accused murdered his
wife and daughter, the statement by the father of the
deceased wife that father of the accused told him on
telephone that his son has killed the deceased. Absence of a
finding as to whatever information given by accused's father
to the deceased's father that the accused had killed the
deceased was either of the time of commission of the crime
or immediately thereafter. So as to form the part of the same
transaction, the statement cannot be considered as relevant
u/s. 6.

TOPIC: TEST IDENTIFICATION PARADE -
TIP

Test Identification Parade
• The identification of an accused either in test
identification parade or in Court is not a sine
qua non in every case if from the
circumstances the quilt is otherwise
established.
• Many a times crimes are committed under the
cover of darkness when non is able to identify
the accused.

Test Identification Parade
• Mulla v. State of UP (2010) 3 SCC 508
“The identification parades are not primarily meant for
the court. They are meant for investigation purposes.”
• There are two purposes namely,:
– Enable Witnesses to satisfy themselves that the
accused whom they suspect is really the one who
was seen by them in connection with the
commission of crime.
– Investigation Authority – Suspect is a real person.

Case Law
Rajesh Govind Jagesha v. State of Maharashtra
AIR 2000 SC 160: 2000 Cr LJ 380 (SC)
– If the Test Identification Parade regarding
accused was not conducted properly and
suffered from unexplained delay, he is
entitled to benefit of doubt.

Case Law
Mullagiri Vajiram v. State of Andhra Pradesh
AIR 1993 SC 1243
When conviction was based on evidence of an
eye witness and not on identification parade, it
cannot be set aside on the ground that
identification was not reliable.

Case Law
Raj Nath v. State of Uttar Pradesh
1988 Cr. LJ 422: AIR 1988 SC 345
– If there is unexplained and unreasonable
delay in putting up the accused persons for
a test identification, the delay by itself
detracts from the credibility of the test.

TOPIC: CONSPIRACY

Role of Conspirator
Section 10 : Things said or done by conspirator in reference to
common design
Where there is reasonable ground to believe that two or more
persons have conspired together to commit an offence or an
actionable wrong, anything said, done or written by any one of
such persons in reference to their common intention, after the
time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons believed
to be so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that
any such person was a party to it.

Section 11
Section 11 - When facts not otherwise relevant become
relevant
Facts not otherwise relevant are relevant-
(1) If they are inconsistent with any fact is issue or relevant
fact;
(2) If by themselves or in connection with other facts they
make the existence or non-existence of any fact in issue or
relevant fact highly probable or improbable

Illustration – Section 11
The question is, whether A committed a crime at
Calcutta on a certain day.
– The fact that, on that day, A was at Lahore is
relevant.
– The fact that, near the time when the crime was
committed, A was at a distance from the place
where it was committed. Which would render it
highly improbable, though not impossible, that he
committed it, is relevant.

Case Law
State of Maharashtra v. Damu Gopinath Shinde
AIR 2000 SC 1671
– There was no doubt that there was reasonable
ground to believe that four of the accused
conspirators had conspired to commit the offence
of abduction and murder of children involved in
the case.
– Accused had spoken to each other in reference to
common intention.

Case Law
Bhagwandas v. State of Maharashtra
AIR 1974 SC 878
–Anything written by a conspirator will not
be admissible against him or others if it is
not done in reference to the common
intention of the conspiracy.

UNIT-2
ADMISSIONS

Introduction
• Admission plays a very important part in judicial proceedings. If one party to a suit
or any other proceeding proves that the other party has admitted his case, the work
of the court becomes easier.
• An Admission may be proved by or on behalf of the person making it under certain
exceptional circumstances. The Evidence Act, Sections 17 to 23 deals with the
Admissions.
• The expression 'Admission' means "Voluntarily acknowledgment of the existence or
truth of a particular fact". But In the Evidence Act, the term 'Admission' has not
been used in this wider sense. It deals with admissions by statements only oral or
written or contained in an electronic form. Admission plays a very important role in
judicial proceedings. If one party to the suit or any other proceeding proves that the
other party has admitted his case, the work of court becomes easier. An Admission
must be clear, precise and not vague or ambiguous.

Definition of Admission
• According to 17 of Indian Evidence Act, "An admission is a statement, oral or
documentary or [contained in electronic form (Amendment w.e.f. 17/10/2000)]
which suggests any inference as to any fact in issue or relevant fact, and which is
made by any of the persons and under the circumstances hereinafter mentioned.”
• There are three parts of the definition:
•
1)It defines term "admission“
2) It says that an admission will be relevant only if it is made by any of the person
specified in the Act.
3) "Admission" is Relevant only in the circumstances mentioned in the Act.

Features of Admission
To constitute admission, the following characteristics are to be present as per definition
stated above.
1) It may be oral or documentary
2) It is a statement to suggest any inference to any fact in issue or relevant fact.
3)It must be made by any person prescribed under the Act; and
4) It must be made under the circumstance prescribed under the Act.

Features of Admission Cont.
The admission must be clear and unambiguous. The admission is admissible because of the
following reasons:
a) Admission as a waiver of proof;
b) Admission as a statement against interest;
c) Admission as evidence of contradictory statement;
d) Admission as evidence of truth.
Admission is the best substantive evidence that an opposite party can rely upon.

Nature of Admissions
The statements made by parties during judicial proceeding are 'self regarding
statements'. The self regarding statements may be classified under two heads -
i)Self-serving statements; and
ii)Self-harming statements.
i) Self-serving Statements - Self-serving statements are those, which serve,
promote or advance the interest of the person making it. Hence they are not
allowed to be proved. They enable to create evidence for themselves.
ii) Self-harming - Self-harming statements are those which harm or prejudice
or injure the interest of the person making it. These self-harming statements
all technically known as “Admissions" and are allowed to be proved.

Who can make Admission?
(S. 18 to 20)
An Admission is relevant if it is made by:
1) A party to the proceeding;
2) An agent authorized by such party.
3) A party suing or being sued in a representative character making admission while
holding such character.
4) A person who has a proprietary or pecuniary interest in the subject matter of the suit
during the continuance of such interest.

Who can make Admission?
(S. 18 to 20) Cont.
5) A person from whom the parties to the suit have derived their interest in the subject
matter of the suit during the continuance of such interest. (Section 18)
6) A person whose position it is necessary to prove in a suit, if such statements would
be relevant in a suit brought by against himself (Section 19.)
7) A person to whom a party to the suit has expressly referred for information in
reference to a matter in Dispute (Section 20.)

Proof of admission against persons making them, and by or
on their behalf (Section 21)
Admissions are relevant and may be proved as against the person who makes them, or
his representative in interest; but they can not be proved by or on behalf of the person
who makes them or by his representative in interest, except in the following cases.
(1) An admission may be proved by or on behalf of the person making it, when it is of
such a nature that, if the person making it were dead it would be relevant as between
the third person under section 32.

Proof of admission against persons making them, and by or
on their behalf (Section 21) Cont.
• (2) An admission may be proved by or on behalf of the person making it, when it
consists of a statement of the existence of any state of mind or body, relevant or in
issue, made at or about the time when such state of mind or body existed, and is
accompanied by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it if it is relevant
otherwise than as an admission.

Illustrations
(a) The question between A and B is, whether a certain deed is or is not forged. A
affirms that it is genuine, B that it is forged.
A may prove a statement by B that the deed is genuine, and B may prove a statement
by A that the deed is forged; but A cannot prove a statement by himself that the deed is
genuine nor con B Prove a statement by himself that the deed is Forged.
(b) 'A' the captain of a ship, is tried for casting her away.
Evidence is given to show that the ship was taken out of her proper course. A produces
a book kept by him in the ordinary course of his business showing observations alleged
to have been taken by him from day to day, and indicating that the ship was not taken
out of her proper course. A may prove these statement, because they would be
admissible between third parties, if he were dead under Section 32, Clause (2).

Illustrations Cont.
C) A is accused of a crime committed by him at Calcutta.
He produces a letter written by him and dated at Lahore on that day, and bearing the
Lahore post-mark of that day. The statement in the date of the letter is admissible,
because if A were dead it would be admissible under Section 32, Clause (2).
(d) A is accused of receiving stolen goods knowing them to be stolen.
He officers to prove that he refused to sell them below their value.
A may prove these statements though they are admissions, because they are
explanatory of conduct influenced by facts in issue.
(e) A is accused of fraudulently having in his possession counterfeit coin which he
knew to be counterfeit. He offers to prove that he asked a skillful person to examine the
coins as he doubted whether it was counterfeit or not, and that person did examine it
and told him it was genuine.
A may prove these facts for the reasons stated in the last proceeding illustration

When oral admission as to contents of documents are relevant
(Section 22)
Oral admissions as to the contents of a document are not relevant unless and until the
party proposing them shows that he is entitled to give secondary evidence of the
contents of such document under the rules hereinafter contained, or unless the
genuineness of a document produced is in question.

When oral admissions as to contents of electronic records are
relevant Section (22A)
When oral admissions as to contents of electronic records are relevant.—Oral
admissions as to the contents of electronic records are not relevant, unless the
genuineness of the electronic record produced is in question. [Inserted by the
Information Technology Act, 2000, w.e.f. 17-10-2000.]

Case Law
A Ramaiah V. State of A.P. (1997 SC 496)
In this case, Supreme Court held that the statement in FIR furnished by one of the
accused cannot be used against another accused unless its makers offered himself as a
witness in the trial. It has very limited use of it as evidence under Section 21 of the Act
against its maker alone unless the admission does not amount confession.

CONFESSIONS

Introduction
• The word “confession” appears for the first time in Section 24 of the Indian
Evidence Act. This section comes under the heading of Admission so it is clear that
the confessions are merely one species of admission. Confession is not defined in
the Act. Mr. Justice Stephen in his Digest of the law of Evidence defines confession
as “confession is an admission made at any time by a person charged with a crime
stating or suggesting the inference that he committed that crime.”
• In Pakala Narayan Swami v Emperor (AIR 1939 PC 47)
Lord Atkin observed “ A confession must either admit in terms the offence or at any
rate substantially all the facts which constitute the offence. An admission of a gravely
incriminating fact, even a conclusively incriminating fact is not in itself a confession”.

Types of Confessions
A confession may occur in many forms. When it is made to the court itself then it will
be called judicial confession and when it is made to anybody outside the court, in that
case it will be called extra-judicial confession. It may even consist of conversation to
oneself, which may be produced in evidence if overheard by another. For example, in
Sahoo v. State of U.P. the accused who was charged with the murder of his daughter-in-
law with whom he was always quarreling was seen on the day of the murder going out
of the house, saying words to the effect : “I have finished her and with her the daily
quarrels.” The statement was held to be a confession relevant in evidence, for it is not
necessary for the relevancy of a confession that it should be communicated to some
other person.

Types of Confessions Cont.
• Judicial confession- Are those which are made before a magistrate or in court in the
due course of legal proceedings. A judicial confession has been defined to mean
“plea of guilty on arrangement (made before a court) if made freely by a person in a
fit state of mind.
• Extra-judicial confessions- Are those which are made by the accused elsewhere
than before a magistrate or in court. It is not necessary that the statements should
have been addressed to any definite individual. It may have taken place in the form
of a prayer. It may be a confession to a private person. An extra-judicial confession
has been defined to mean “ a free and voluntary confession of guilt by a person
accused of a crime in the course of conversation with persons other than judge or
magistrate seized of the charge against himself. A man after the commission of a
crime may write a letter to his relation or friend expressing his sorrow over the
matter. This may amount to confession. Extra-judicial confession can be accepted
and can be the basis of a conviction if it passes the test of credibility.

S.24 - Confession caused by inducement, threat or promise,
when irrelevant in criminal proceeding
To attract the prohibition enacted in Section 24 the following facts must be established:
•That the statement in question is a confession,
•That such confession has been made by the accused,
•That it has been made to a person in authority,
•That the confession has been obtained by reason of any inducement, threat or promise,
proceeding from a person in authority,
•Such inducement, threat or promise must have reference to the charge against the accused,
and
•The inducement, threat or promise must in the opinion of the court be sufficient to give the
accused ground, which would appear to him reasonable, for supporting that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference to the
proceedings against him.

Evidentiary Value of Confession
Value of Judicial Confession-
• A case where there is no proof of corpus delicti must be distinguished from another
where that is proved. In the absence of the corpus delicti a confession alone may
not suffice to justify conviction.
• The settled law is that a conviction can be based on confession only if it is proved
to be voluntary and true. If corroboration is needed it is enough that the general
trend of the confession is substantiated by some evidence which would tally with
the contents of the confession. General corroboration is enough.

Evidentiary Value of Confession Cont.
Value of extra-judicial confession-
Extra-judicial confessions are not usually considered with favour but that does not
mean that such a confession coming from a person who has no reason to state falsely
and to whom it is made in the circumstances which support his statement should not be
believed.
Extra-judicial confessions have to received with great caution and care and when the
foundation of the conviction is the confession alleged to have been made by the
accused there are three things which the prosecution must establish. First, that a
confession was made, secondly, that evidence of it can be given that is to say that it was
voluntary and thirdly that it is true. Such a confession must be proved by an
independent or satisfactory evidence.

Section 25 – Confession to Police officer-not to be proved
No confession made to a police officer shall be proved as against a person accused of
any offence.
Reasons for exclusion of confession to police- another variety of confessions that are
under the evidence act regarded as involuntary are those made to a personnel. Section
25 expressly declares that such confessions shall not be proved.
If confessions to police were allowed to be proved in evidence, the police would torture
the accused and thus force him to confess to a crime which he might not have a
committed. A confession so obtained would naturally be unreliable. It would not would
be voluntary. Such a confession will be irrelevant whatever may be its form, direct,
express, implied or inferred from conduct. The reasons for which this policy was
adopted when the act was passed in 1872 are probably still valid.

Case Laws on Section 25
In Dagdu v. State of Maharashtra, A.I.R. 1977 S.C. 1579
Supreme court noted:
The archaic attempt to secure confessions by hook or by crook seems to be the be-all
and end-all of the police investigation. The police should remember that confession
may not always be a short-cut to solution. Instead of trying to “start” from a confession
they should strive to “arrive” at it. Else, when they are busy on their short-route to
success, good evidence may disappear due to inattention to real clues. Once a
confession is obtained, there is often flagging of zeal for a full and through
investigation with a view to establish the case de hors the confession, later, being
inadmissible for one reason or other, the case fondles in the court.

Case Laws on Section 25 Cont.
• In R v. Murugan Ramasay, (1964) 64 C.N.L.R. 265 (P.C.)
Police authority itself, however, carefully controlled, carries a menace to those brought
suddenly under its shadow and the law recognises and provides against the danger of
such persons making incriminating confessions with the intention of placating authority
and without regard to the truth of what they are saying.

S. 26 - Confession by accused while in custody of Police not to
be proved against him
• Section 26 provides that a confession which is made in custody of a police officer
cannot be proved against him. Unless it is made before a magistrate.
• The word custody is used here in wide sense. A policeman may lay his hand on a
person, hand-cuff him or tie his waist with a rope and may take him with him.
Again a police officer may not even touch a person but may keep such a control
over him that the person so controlled cannot go any way he likes. His movement is
in the control of the police officer. A police officer comes to A and asks him to
follow to the police station as he is wanted in connection with a dacoity case. A
follows him. He is in custody of the police officer.

Case Law on Section 26
• In Kishore Chand v. State of Himachal Pradesh, the extra judicial confession
was made to Pradhan who was accompanied by Police (enquiry) Officer. The only
interference which could be drawn from the circumstance of the case, is that the
confession was made at the time when the accused was in the custody of police and
it could not be proved against the accused. It could not be believed that, when a
police officer has seen the accused with deceased at last occasion, he will not take
the accused in the custody.
In the case it is evident that the Police Officer has created a scene and to avoid Section
25 and 26, the Police Officer has left the accused in the custody of village head man
(pradhan).

Case Law on Section 26 Cont.
• The Police Officer in this case has no difficulty to take the accused to the Judicial
Magistrate and to take extra-judicial confession under section 164 of Cr.P.C which
has got more probable value and it gives an opportunity to make the required
warning, that this confession will be used against the accused and after this warning
he records the confession. Under section 26, no confession made by an accused to
any person while in custody of a police officer shall be proved against him.

S. 27 - How much of information received from accused,
maybe proved
• Provided 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, whether it amounts to a
confession or not, as relates distinctly to the fact thereby discovered, may
be proved.
• Principle- this section of the act is founded on the principle that if the
confession of the accused is supported by the discovery of a fact then it
may be presumed to be true and not to have been extracted. It comes into
operation only-
• If and when certain facts are deposed to as discovered in consequence of
information received from an accused person in police custody, and
• If the information relates distinctly to the fact discovered.

S. 27 - How much of information received from accused,
maybe proved Cont.
This section is based on the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the information was true
and accordingly can be safely allowed to be given in evidence. But clearly the extent of
the information admissible must depend on the exact nature of the fact discovered to
which such information is required to relate.
In Pandu Rang Kallu Patil v. State of Maharashtra, it was held by Supreme Court
that section 27 of evidence act was enacted as proviso to. The provisions of sections of
Section 25 and 26, which imposed a complete ban on admissibility of any confession
made by accused either to police or at any one while in police custody. Nonetheless the
ban would be lifted if the statement is distinctly related to discovery of facts. The object
of making provision in section 27 was to permit a certain portion of statement made by
an accused to Police Officer admissible in evidence whether or not such statement is
confessional or non confessional

S. 28 - Confession made after removal of impression caused
by inducement, threat or promise, relevant
If such a confession as is referred to in section 24 is made after the impression caused
by any such inducement, threat or promise has, in the opinion of the court, been fully
removed, it is relevant.
Confession After Removal Of Threat Or Promise- under section 24 we have seen that if
the opinion of a court a confession seems to have been caused by any inducement,
threat or promise having reference to the charge and proceeding from a person in
authority, it is irrelevant and cannot be proved even against a person making the
confession,
Section 28 provides that if there is inducement, threat or promise given to the accused
in order to obtain confession of guilt from him but the confession is made after the
impression caused by any such inducement, threat or promise has, in the opinion of the
court been fully removed, the confession will be relevant becomes pre and voluntary.

S. 29 - Confession otherwise relevant not to become irrelevant
because of promise of secrecy
In such a confession is otherwise relevant, it does not become irrelevant merely
because it was made under a promise of secrecy, or in consequence of deception
practiced on the accused person for the purpose of obtaining it, or when he was drunk,
or because it was made in answer to question which he need not have answered,
whatever may have been the form of those questions, because he was not warned that
he was not bound to make such confession, and that evidence if it might be given
against him.

S. 30 - Consideration of proved confession affecting person
making it and others jointly under trial for same offence
When more persons than one are being tried jointly for the same offence and a
confession made by one such persons affecting himself and some other such persons is
proved, the court may take into consideration such confession as against such other
person as well as against the person who makes such confession.
Principle Underlying: when more persons than one are jointly tried for the same
offence, the confession made by one of them, if admissible in evidence, should be taken
into consideration against all the accused, and not against the person who alone made
it. It appears to be very strange that the confession of one person is to be taken into
consideration against another. Where the confession of one accused is proved at the
trial, the other accused persons have no other opportunity to cross examine him. It is
opposed to the principle of jurisprudence to use a statement against a person without
giving him the opportunity to cross examine the person making the statement. This
section is an exception to the rule that the confession of one person is entirely
admissible against the oth

Case Law on Section 30
In Kashmira Singh v. State of MP , the accused Kashmira who was an Assistant Food
Procurement Inspector, his services along with the another food inspector were
terminated on a report of the food officer when they were getting the rice polished in a
rice mill. Kashmira was heard twice saying that he would teach a lesson to the food
officer. After a few months the son of the food officer was found missing and his body
was found in a well. Kashmira, Gurudayal brother of Kashmira, Prithipal son of
Gurudayal and one Gurubachan, a rickshaw puller in this case were tried of conspiracy
and killing the child. The prosecution story was that Prirthipal led the child, when he
was playing near the Gurudwara, for some distance and then the child was taken on the
cycle by Kashmira to a house where he was murdered. According to the judgment of
the SC Guruibachan was not a rickshaw puller by profession and the rickshaw was
hired only for that night for the disposal of the body of the deceased.

Case Law on Section 30 Cont.
Hence, before the confession of one accused may be taken into consideration against
others, it has to be shown that:
1) The person confessing and the others are being tried jointly.
2) They are being tried for the same offence.
3) The confession is affecting the person confessing and the other

DYING DECLARATION

Introduction
• Dying Declaration is of the utmost importance and the evidence as to it should be
exact and full as possible. The general rule is, 'hearsay evidence is no evidence and
is not admissible in evidence.' Section 32 and 33 of the Evidence Act are among the
Exceptions, as such dying Declaration is an exception to this general rule.

Statement made by a person who cannot be called as Witness
Section 32 - Cases in which statement of relevant fact by person who is dead or cannot
be found etc is relevant:
Statements, written or verbal, of relevant facts made by a person who is dead, or cannot
be found, or who has become incapable of giving evidence, or whose attendance cannot
be produced without an amount of delay or expense which under the circumstances of
the case appears to the court unreasonable, are themselves relevant facts in the
following cases.

When it relates to cause of death
When the statement is made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in which cases the cause of
that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the
time when they made, under expectation of death, and whatever may be the nature of
the proceeding in which the cause of his death comes into question.
Following are the classes of person who cannot be called as witness under section 32
and their statements allowed to be proved in their absence.
1)Person who is dead:
2) Person who cannot be found
3) Who has become incapable of giving evidence: or
4) Whose attendance cannot be produced without unreasonable delay or expense?

Meaning and Definition
"A dying declaration is a declaration written or verbal made by a person, as to the cause
of his death or as to any of the circumstances of the transaction, which resulted in his
death"
Illustration
B has been attacked by A. If B, shortly before death makes a declaration holding A,
responsible for his injuries, it is called "Dying Declaration'.

Section 32(1)
Section 32(1) of The Indian Evidence Act defines Dying declaration as " a statement
verbal or written made by a person who is dead or cannot be found, who has become
incapable of giving evidence or whose attendance cannot be procured without an
amount of delay or expense, which under the circumstance of the case, appears to the
court unreasonable, are themselves relevant facts in the following cases:
a) When it relates to cause of death
b) When it is made in course of business; or
c) Against the interest of maker; or
d) Gives opinion as to public right or custom or matters of general interest; or
e) Relates to existence of relationship; or
f) When it is made in will or deed relating to the family affairs; or
g) In document relating to transaction mentioned in section 13(a);
h) When it is made by several persons and expresses feeling relevant to matter in
question

Section 32(1) explained further
• Before such statements are admitted in evidence, it must be proved that who made
the statement is dead and gone and therefore cannot appear before the court unless
this fact is proved, the statement is not admissible.
• When the statement is admitted under any of the clause of this section, it is
substantive evidence and has to be considered along with other evidence.
• Dying declaration is an exception to the general rules as to relevancy of fact.
• The relevancy of fact provides that the statement made by witness in connection of
fact or fact in issue are relevant but under Section 32 a statement made under
certain circumstances become relevant , even though person is not called as a
witness before the court. Dying declaration in fact is a surviving declaration.
Declarant died and statement survives. It is declaration of a dead person.

Conditions
There are certain conditions in the section which are as follows:
• It must be a statement, written or verbal
• The person making statement must have died.
• The statement relate to the cause of his death or the circumstances of the transaction
which related in his death and not the cause of the death of someone else.
• The cause of the person's death must be in question.
• The person making statement must be in a fit condition to make the statement.
• The statement must be competent
• Declaration must be competent

Reasons For admissibility of Dying Declaration
Dying declaration is admissible for the following two reasons:
• As the Victim is sole Eye Witness, Exclusion of his evidence defeats the ends of
justice.
• Declaration made by a person under exception of death is presumed to be true.

Merits of Dying Declaration
• There is heavy conscience –
The law presume that there is a possibility of true statement as to the cause of his death.
It has moral and religious aspect behind it because a person who is on the bed of death,
about to die generally speaks true, so as to attain spiritual benefits in other world. This
is relative element, which changes from person to person, personality and mentality
person making Dying Declaration. So a person who is about to die, tells the truth and
truth only is a half truth as in case of harden criminals. So it is the
personality, circumstances and the character of the person making Dying Declaration
that decides the relevancy of Dying Declaration.
• There is no reason to implicate wrong person:
The person making Dying Declaration and mentioning in the name of the person
responsible who has caused injuries to him which are likely to result in his death,
generally will not implicate in a wrong person who is not at all responsible for such
injuries.

Merits of Dying Declaration Cont.
• There is no reason why he will avoid the name of the person who is responsible
for his death and his worst enemy in his life.
It is more logical and realistic concept because person who is on the bed of Death will
not implicate the name of wrong person for the cause of his death, but he will not allow
his enemy to go unpunished who is responsible for his death.

Demerits of Dying Declaration
• There is no oath administered:
When a person is called as witness in the Court he has to make a statement on oath.
This is to have his inner conscience say truth and truth only. Law presume and expect
person to state the truth. This is the theoretical aspect as it may be correct theoretically
but not practically.
• There is no cross-examination of such person making Dying Declaration:
The need of cross-examination is to judge the credibility of the witness. It is the right of
Defence Council. Questions are put to the witnesses to extract the truth in case of
Dying Declaration other party or defence council have no opportunity of cross-
examination of the witness who is dead.

Demerits of Dying Declaration Cont.
• Witness is not present before the Court:
Behaviour, manner of answering the question of witness before the Court is a vital
aspect in law because it gives opportunity to the judges to judge the character,
personality of the witness this element is absent in dying declaration and hence it is not
accepted as a rule

Evidentiary Value of Dying Declaration
The evidentiary value of dying declaration will vary according to the circumstances of
a particular case in which it is made.
Dying Declaration is evidence but it is a weak piece of evidence. It is to be
corroborated by other evidence for example other facts and evidence supporting Dying
Declaration.
It gives guidance to the Court, the has to accept the Dying Declaration as a suspicious
statement, it is duty of the judge to consider the valuation of Dying Declaration.

Evidentiary Value of Dying Declaration Cont.
Such valuation of Dying Declaration depends upon many things as under
1) State of mind of declarant.
2) State of the body of declarant.
3) To whom the Declaration/Statement is made.
4) Who recorded the statement?
5) Whether the statement is recorded in the same language and in a same word of the
declarant. Even though Dying Declaration is said to be of weak piece of evidence it is
relevant in the Indian Evidence Act, because it is the best available evidence as to the
cause of his death after his death.

PRESUMPTIONS

Meaning
• Presumption generally means a process of ascertaining few facts on the basis of
possibility or it is the consequence of some acts in general which strengthen the
possibility and when such possibility has great substantiate value then generally
facts can be ascertained.
• A presumption in law means inferences which are concluded by the court with
respect to the existence of certain facts. The inferences can either be affirmative or
negative drawn from circumstance by using a process of best probable reasoning of
such circumstances.
• The basic rule of presumption is when one fact of the case or circumstances are
considered as primary facts and if they are proving the other facts related to it, then
the facts can be presumed as if they are proved until disproved.
• Section 114 of Indian Evidence Act specifically deals with the concept that ‘the
court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of (a) natural events, (b) human
conduct, and (c) public and private business, in their relation to the facts of the
particular case’.

Classification of Presumption
• Presumption of Fact or Natural Presumption
• Presumption of law or Artificial Presumption
– Rebuttable
– Irrebuttable or Conclusive
• Mixed Presumptions (Presumption of Fact and law both)

Presumption of Fact or Natural Presumption :
• Sections 86 - 88, 90,, 113A and 114 lay down the provisions relating to
Presumption of Fact or Natural Presumptions as stated below. these principles are
generally rebuttable.
• Section 86.Presumption as to certified copies of foreign judicial records
• Section 87.Presumption as to Books, Maps and Charts
• Section 88.Presumption as to Telegraphic Messages
• Section 90.Presumption as to documents thirty years old
• Section 113A.Presumption as to abatement of suicide by a married women
• Section 113B.Presumption as to dowry death

Presumption of law or Artificial Presumption
• Presumptions of law or artificial presumptions are inferences or propositions
established by law.
• Presumptions of law are of two kinds :
a) Rebuttable
b) Irrebuttable or Conclusive

Rebuttable Presumptions of law
• These kinds of presumptions arise when presumptions of law are certain legal rules,
defining the amount of evidence requisite to Support a particular allegation, which
facts being proved, may be either explained away or rebutted by evidence to the
contrary but are conclusive in absence of such evidence. For example, A man is
presumed innocent until he is proved guilty. A child is born in a legal wedlock shall
be presumed legitimate and one who questions his legitimacy must disprove it.

Examples of Rebuttable Presumption
• Section 107.Burden of proving death of person known to have been alive within
thirty years.
• Section 108.Burden of proving that person is alive who has not been heard of for
seven years.
• Section 102.On whom burden of proof lies.

Irrebuttable or Conclusive Presumption
• These Presumptions are those legal rules which are not outcome of any evidence
that the fact is otherwise. Section 82 of Indian Penal Code is the well-known
instance of an irrebuttable presumption of law which provides that nothing is an
offense which is done by a child under 7 year of age. Section 115, 116 and Section
117 of the Indian Evidence Act 1872 deals with the rule Estoppel which are the
examples of irrebuttable presumptions.

Examples of Irrebuttable Presumption
• Section 115. Estoppel
• Section 116. Estoppel of tenant and of license of person in possession
• Section 117. Estoppel of acceptor of bill of exchange, bailee or licensee

Mixed Presumptions (Presumption of Fact and law both)
• Mixed presumptions of law and Fact are mainly confined to the English law of real
property so it is not necessary to presume subject here. The Indian Evidence Act has
made some provisions for the presumptions of fact and the presumptions of law. In
certain sections of the Evidence Act, it has been provided that the court may
presume certain facts. In some other sections, The court shall presume a fact has
been used. There are certain sections in which it is said that a certain fact is
conclusive proof of a certain another fact. Section 4 of the Evidence Act controls
these sections and gives a direction to courts as to how proceed under those sections
of the evidence act.

EXPERT EVIDENCE

Introduction
• Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of
opinion of third persons, which is commonly called in our day to day practice as
expert’s opinion. These provisions are exceptional in nature to the general rule that
evidence is to be given of the facts only which are within the knowledge of a
witness. The exception is based on the principle that the court can’t form opinion on
the matters, which are technically complicated and professionally sophisticated,
without assistance of the persons who have acquired special knowledge and skill on
those matters. Conditions for admitting an expert opinion are following:-
a)That the dispute can’t be resolved without expert opinion and
b)That the witness expressing the opinion is really an expert.

Who Is An Expert?
The definition of an expert may be referred from the provision of Sec.45 of Indian
Evidence Act that an ‘Expert’ means a person who has special knowledge, skill or
experience in any of the following----
1) foreign law,
2) science
3) art
4) handwriting or
5) finger impression
and such knowledge has been gathered by him—
a) by practice,
b) observation or
c) proper studies.
For example, medical officer, chemical analyst, explosive expert, ballistic expert,
fingerprint expert etc.

Duties Of An Expert
• According to Sec.45, the definition of an expert is confined only to the five subjects
or fields as mentioned above. But practically there are some more subjects or fields
on which court may seek opinion an expert.
• An expert witness is one who has devoted time and study to a special branch of
learning and thus he is specially skilled on those points on which he is asked to
state his opinion. His evidence on such points is admissible to enable the court to
come to a satisfactory conclusion.
• Duty of the expert:-
a) An expert is not a witness of fact.
b)His evidence is of advisory character.
c) An expert deposes and does not decide.
d) An expert witness is to furnish the judge necessary scientific criteria for testing
the accuracy of the conclusion so as to enable the judge to form his independent
judgment by application of the criteria to the facts proved by the evidence

Value of Expert Evidence
• The Expert evidence has two aspects –
• a) Data evidence (it can’t be rejected if it is inconsistent to oral evidence)
• b) Opinion evidence [it is only an inference drawn from the data and it would not
get precedence over the direct eye-witness testimony unless the inconsistency
between the two is so great as to falsify the oral evidence-
Arshad v. State of A.P. (1996 CrLJ 2893 (para34) (AP))
• Expert evidence is opinion evidence and it can’t take the place of substantive
evidence. It is a rule of procedure that expert evidence must be corroborated either
by clear direct evidence or by circumstantial evidence.It is not safe to rely upon this
type of evidence without seeking independent and reliable corroboration - S.Gopal
Reddy v. State of A.P. (AIR 1996 SC2184 (Para27))

Difference Between Evidence Of An Expert And Evidence Of
An Ordinary Witness

Sec.45 - Relevancy of opinion of experts
• Provision
If the court has to form an opinion upon-
a) Foreign law,
b) Science,
c) Art,
d) Identity of handwriting or
e) Finger impression
the opinion of the persons who are specially skilled in the above subject or fields are
relevant.
The expert opinion is only corroborative evidence. It must not be the sole basis for
conclusive proof.
The expert witness must be subjected to cross-examination in the court. Mere
submission of opinion by an expert through any certificate or any other document is not
sufficient.

Sec.45 - Relevancy of opinion of experts
1) Question arises whether A, at the time of committing the offence, was incapable to
know the nature of his act or that he was doing what was wrong or contrary to law
because of unsoundness of mind. The opinion of the experts upon the points are
relevant---
a) Whether the symptom exhibited by A commonly show unsoundness of mind and
b) Whether such unsoundness of mind usually renders the person incapable to know
the nature of his act or to know what he does is wrong or contrary to law.
2) The question is whether a certain document was written by A. Another document is
produced which is proved or admitted to have been written by A. Opinion of experts on
the question whether the two documents were written by the same person or by
different persons, are relevant.

Relevant Expert Evidence
• Foreign law:-
Foreign law can be proved –
a) by the evidence of a person specially skilled in it and
b) by direct reference to the books printed or published under the authority of the
foreign government.
• Fingerprint expert:-
Expert opinion on fingerprints has the same value as the opinion of any other expert.
The court will not take opinion of fingerprint expert as conclusive proof but must
examine his evidence in the light of surrounding circumstances in order to satisfy itself
about the guilt of the accused in a criminal case.
• Ballistic expert:-
A ballistic expert may trace a bullet or cartridge to a particular weapon from which it
was discharged. Forensic ballistics may also furnish opinion about the distance from
which a shot was fired and the time when the weapon was last used.

Science or art:-
The Science or art includes all subjects on which a course of special study or
experience is necessary to the formation of an opinion. “Science” or “art” is not limited
to higher science or fine art, but it has its original sense of handicraft, trade, profession
and skill in work which has been carried beyond the sphere of the common pursuits of
life into that of the artistic and scientific action.
The following matters are included in the ‘science’ and art and the expert opinion of
these matters are relevant:-
Medical opinion:-
The value of Medical evidence is only corroborative. A doctor acquires special
knowledge of medicine and surgery and as such he is an expert. Opinions of a medical
officer, physician or surgeon may be admitted in evidence to show-
a) Physical condition of the a person,
b) Age of a person
c) Cause of death of a person
d) Nature and effect of the disease or injuries on body or mind
e) Manner or instrument by which such injuries was caused
f) Time at which the injury or wounds have been caused.

• Mani Ram v. State of U.P. 1994 Supp (2) SCC 289,292; 1994 SCC (Cri) 1242
When there is a conflict between the medical evidence and ocular evidence, oral
evidence of an eye witness has to get primacy as medical evidence is basically
opinionative. Where the direct evidence is not supported by the expert evidence, the
evidence is wanting in the most material part of the prosecution case and therefore,
it would be difficult to convict the accused on the basis of such evidence. If the
evidence of the prosecution witnesses is totally inconsistent with medical evidence,
it is the most fundamental defect in the prosecution case and unless this
inconsistency is reasonably explained, it is sufficient to discredit the evidence as
well as the entire case –
• Piara Singh v. State of Punjab AIR 1977 SC 2274 - Where the opinion of one
medical witness is contradicted by another and both experts are equally competent
to form an opinion, the court will accept the opinion of that expert which supports
the direct evidence in the case.

Handwriting:-
Like other expert opinion, the opinion of handwriting expert is advisory in nature. The
expert can compare disputed handwriting with the admitted handwriting and give his
opinion whether one person is the author of both the handwriting.
The court shall exercise great care and caution at the time of determining the
genuineness of handwriting. A handwriting expert can certify only probability and
100% certainty. On the question of the handwriting of a person, the opinion of a
handwriting expert is relevant, but it is not conclusive and handwriting of a person can
be proved by other means also.

The following are the different modes of proving handwriting:
i) A person who wrote the document can prove it. (Sec.47)
ii) A person who saw someone writing or signing a document can prove it (Sec.47)
iii) A person who is acquainted with the handwriting by receiving the documents
purported to have been written by the party in reply to his communication or in
ordinary course of business, can prove the documents (Sec.47)
iv) The court can form opinion by comparing disputed handwriting with the admitted
handwriting (S.73)
v) The person against whom the document is tendered can admit the handwriting.
(Sec.21)
vi) The expert can compare disputed handwriting with admitted handwriting and
thereby prove or disprove whether the documents were written by the same or different
persons. (Sec.45)

Evidence of tracking dogs:-
Trained dogs are used for detection of crime. The trainer of tracking dogs can give
evidence about the behaviour of the dog. The evidence of the tracker dog is also
relevant under section 45.
In Abdul Razak V. State of Maharashtra (AIR 1970 SC 283) question arises before
the Supreme Court whether the evidence of dog tracking is admissible in evidence and
if so, whether this evidence will be treated at par with the evidence of scientific experts.
In this case, Pune Express was derailed near Miraj Railway Station on 10th Oct.,1966.
Sabotage was suspected. The removal of fishplates was found to be the cause of
derailment and accident. The police dog was brought into service, taken to the scene of
crime. After smelling the articles near the affected joint, the dog ran towards
embankment where one fishplate was lying, then the dog smelt it and went to a nearby
shanty and pounced upon the accused who was a gang man at Miraj Railway station.

The Supreme Court held that evidence of the trainer of tracking dog is relevant and
admissible in evidence, but the evidence can’t be treated at par with the evidence of
scientific experts analysing blood or chemicals. The reactions of blood and chemicals
can’t be equated with the behaviour of dog which is an intelligent animal with many
thought processes similar to the thought processes of human beings. Whenever thought
process is involved there is risk of error and deception. The law is made clear by the
Supreme Court by enunciating the principle that the evidence of dog tracking is
admissible, but not ordinarily of much weight and not at par with the evidence of
scientific experts.
Apart from the above fields, there are chemical analyst, explosive experts, mechanical
experts, interpreter, patent expert, hair expert etc. whose opinion is admissible in
evidence.

• Expert opinion becomes admissible only when the expert is examined as a witness
in the court. The report of an expert is not admissible unless the expert gives
reasons for forming the opinion and his evidence is tested by cross-examination by
the adverse party. But in order to curtail the delay and expenses involved in
securing assistance of experts, the law has dispensed with examination of some
scientific experts.
• For example, Sec.293 Cr.P.C. provides a list of some Govt. Scientific Experts as
following:-
a) Any Chemical Examiner / Asstt. Chemical examiner to the Govt.
b) The Chief Controller of explosives
c) The Director of Fingerprint Bureau
d) The Director of Haffkein Institute, Bombay
e) The Director, Dy. Director or Asstt. Director of Central and State Forensic
Science Laboratory.
f) The Serologist to the Govt.
g) Any other Govt. Scientific Experts specified by notification of the Central
Govt.

Law of Evidence (LLB-303)

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Law of Evidence (LLB-303)