LLB LAW NOTES ON LAW OF EVIDENCE

EVIDENCE ACT NOTES
Question: What do you mean by evidence? Illustrate.
Answer: Evidence includes everything that is used to determine or demonstrate the truth of an
assertion. Giving or procuring evidence is the process of using those things that are either (a)
presumed to be true, or (b) which were proved by evidence, to demonstrate an assertion’s truth.
Evidence is the currency by which one fulfills the burden of proof.
In law, the production and presentation of evidence depends first on establishing on whom
the burden of proof lays. Admissible evidence is that which a court receives and considers for the
purposes of deciding a particular case. Two primary burden-of-proof considerations exist in law.
The first is on whom the burden rests. In many, especially Western, courts, the burden of proof is
placed on the prosecution. The second consideration is the degree of certitude proof must reach,
depending on both the quantity and quality of evidence. These degrees are different for criminal
and civil cases, the former requiring evidence beyond reasonable, the latter considering only
which side has the preponderance of evidence, or whether the proposition is more likely true or
false. The decision maker, often a jury, but sometimes a judge, decides whether the burden of
proof has been fulfilled. After deciding who will carry the burden of proof, evidence is first
gathered and then presented before the court.
Evidence
The word ‘Evidence’ has been derived from the Latin word ‘evidere’ 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.
According to Sir Blackstone, ‘Evidence’ signifies that which demonstrates, makes clear or
ascertain the truth of the facts or points in issue either on one side or the other.
According to Sir Taylor, Law of Evidence means through argument to prove or disprove any
matter of fact. The truth of which is submitted to judicial investigation.
Section 3 of The Indian Evidence Act, defines evidence in the following words-
Evidence means and includes-
(1) All the statements which the court permits or requires to be made before it by witnesses, in
relation to matters of fact under enquiry; such statements are called Oral evidence;
(2) All the documents including electronic records produced for the inspection of the court;
such documents are called documentary evidence;
The definition of Evidence given in this Act is very narrow because in this evidence comes
before the court by two means only-
(1) The statement of witnesses.
(2) Documents including electronic records.

But in them those things have not been included on which a Judge or a Penal authority depends
for this position.
The Hon’ble Supreme Court of India in Sivrajbhan v. Harchandgir held “The word evidence in
connection with Law, all valid meanings, includes all except agreement which prove disprove
any fact or matter whose truthfulness is presented for Judicial Investigation. At this stage it will
be proper to keep in mind that where a party and the other party don’t get the opportunity to
cross-examine his statements to ascertain the truth then in such a condition this party’s
statement is not Evidence.”
Different Forms of Evidence
(a) Oral Evidence– Section 60 of the Indian Evidence Act, 1872 prescribed the provision of
recording oral evidence. All those statements which the court permits or expects the witnesses to
make in his presence regarding the truth of the facts are called Oral Evidence. Oral Evidence is
that evidence which the witness has personally seen or heard. Oral evidence must always be
direct or positive. Evidence is direct when it goes straight to establish the main fact in issue.
(b) Documentary Evidence– Section 3 of The Indian Evidence Act says that all those
documents which are presented in the court for inspection such documents are called
documentary evidences. In a case like this it is the documentary evidence that would show the
actual attitude of the parties and their consciousness regarding the custom is more important than
any oral evidence.
(c) Primary Evidence: Discussed Herein after.
(d) Secondary Evidence: --------do-----
(e) Real Evidence: real evidence of a fact is brought to the knowledge of the court by inspection
of a physical object and not by information derived from a witness or a document. Personal
evidence is that which is afforded by human agents, either in way of disclosure or by voluntary
sign. for example contempt of court, behavior of parties.
(f) Hearsay Evidence: hearsay evidence is very weak evidence. It is only the reported evidence
of a witness which he has not seen either heard. Sometimes it implies the sayimg of something
which a person has heard others say. In Lim Yam Yong v. Lam Choon & Co. The Hon’ble
Bombay High Court adjudged “Hearsay Evidence which ought to have been rejected as
irrelevant does not become admissible as against a party merely because his council fails to take
objection when the evidence is tendered.” So finally we can assert that Hearsay Evidence is that
evidence which the witness has neither personally seen or heard, nor has he perceived through
his senses and has come to know about it through some third person. There is no bar to receive
hearsay evidence provided it has reasonable nexus and credibility. When a piece of evidence is
such that there is no prima facie assurance of its credibility, it would be most dangerous to act
upon it. Hearsay evidence being evidence of that type has therefore, to be excluded whether or
not the case in which its use comes in for question is governed by the Evidence Act.

(g) Judicial Evidence:- Evidence received by court of justice in proof or disproof of facts before
them is called judicial evidence. The confession made by the accused in the court is also
included in judicial evidence. Statements of witnesses and documentary evidence and facts for
the examination by the court are also Judicial Evidence
(h) Non-Judicial Evidence– Any confession made by the accused outside the court in the
presence of any person or the admission of a party are called Non-Judicial Evidence, if proved in
the court in the form of Judicial Evidence.
(i) Direct Evidence– Evidence is either direct or indirect. Direct Evidence is that evidence
which is very important for the decision of the matter in issue. The main fact when it is presented
by witnesses, things and witnesses is direct, evidence whereby main facts may be proved or
established that is the evidence of person who had actually seen the crime being committed and
has described the offence. We need hardly point out that in the illustration given by us, the
evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting
guilt. The statement before the police only is called circumstantial evidence of, complicity and
not direct evidence in the strict sense.[15]
Question: What do you mean by Fact in Issue and Relevant Facts?
Answer: Facts in issue are the set of facts from which some legal right, liability or disability
arises. Such legal right or liability should be subject of enquiry upon which decision should
necessarily be arrived at. Facts in issue are the necessary constituents of any right or liability.
Their existence is asserted by one party and denied by the other party. Thus, facts in issue are
also facts in dispute. The provisions of the substantive law which are applied in a particular case
decide the facts in issue. What facts are in issue is primarily determined by the substantive law
and secondarily by the rules of pleading.
Relevant Facts: Relevancy here implies such a relationship with the facts in issue which either
convinces or tends to convince the judge as to the existence or otherwise of the facts in issue.
The facts relevant to the facts in issue are those facts which are necessary to prove or disprove a
fact in issue. A plaintiff approaches the court to get some relief. In order to succeed he has to
prove a facts upon which he is going to get the order from court in his favour.
Question: Difference between proved, disproved and Not Proved as provided under the
evidence act.
Answer: Proof does not mean proof to the rigid mathematical demonstration, because that is
impossible. It means such evidence as would induce a reasonable man to come to a conclusion”.
All that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that
the fact is so. In the ordinary affairs of life court do not require demonstrative evidence. The true
question in trials of facts is not whether it is possible that the testimony may be false but whether
there is sufficient probability of its truths.
Disproved:

The definition of disproved is converse of proved . the expression not proved indicates a state of
mind in between the two, that is, when one cannt say whether a fact is proved or disproved.
The standard of proof should be of ordinary prudence in person.
In Naval Kishore Vs. Poonam Somani AIR 1999 AP 1, Andhra Pradesh High Court held that a
fact which is proved does not necessarily mean that it is false one. The expression proved is
followed by the expression disproved and this is followed by the expression not proved. The
word disproved is akin to the word false. What is disproved is normally taken to be false thing. It
will be thus seen that a fact proved is not necessarily a fact disproved. A fact which is ‘not
proved’ may be false or true.
Question: What is the difference between the words may presume, shall presume,
conclusive proof.
Answer: Presumptions are either of law or fact. Presumptions of law are arbitrary consequences
expressly annexed by law to particular facts; and may be either conclusive, as that a child under a
certain age is incapable of committing any crime; or rebuttable, as that a person not heard of for
seven years is dead, or that a bill of exchange has been given for value. As held in the judgement
of Ammal Chandra Dutt v. IInd ADJ, (1989) 1 SCC 1 at page 7
Presumptions of fact are inferences which the mind naturally and logically draws from given
facts, irrespective of their legal effect. Not only are they always rebuttable, but the trier of fact
may refuse to make the usual or natural inference notwithstanding that there is no rebutting
evidence.
The power to presume existence fact on the basis of other facts has been provided under section
114 of Indian Evidence Act. Different types of presumption of law have been provided in section
4.
The words “may presume” leave it to the court to make or not make presumption, according to
the circumstances of the case. The word used is ‘may’ and not ‘shall’.
In this, no option is left to the court, but if is bound to take the fact as proved until evidence is
given to disprove it, and the party interested in disproving it must produce such evidence if he
can. The phrase ‘shall presume’ is to found in Sections 79, 80, 81, 83, 85, 89 and 105, 113B etc.
Whenever there is a provision to the effect “that the court shall presume a fact” the court cannot
exercise its discretion. It is compelled to take the fact as proved, i.e., it shall have to presume the
fact. But in this case the court will be at liberty to allow the opposite party to adduce evidence to
disprove the fact so presumed and if the opposite party is successful in disproving it, the court
shall not presume the fact.
When the law says that a particular kind of evidence would be conclusive, fact can be proved
either by that evidence or by some other evidence which the court permits or requires. When
such other evidence is adduced, it would be open to the court to consider whether upon that
evidence, the fact exists or not. A birth during a valid marriage is with certain exceptions is a

conclusive proof of legitimacy. The phrase ‘Conclusive proof is to found in Sections 41, 112 and
113 of the Act.
Question: “Relevancy and admissibility are not co-extensive terms.” Comment on this
Statement.
Answer: The word relevant means any two realities to which it is connected are so identified
with one another that, as stated by, the regular course of occasions, one, either taken without
anyone else present or in association with different actualities, demonstrates or renders in the
cards the past, present or future presence or on presence of the other.
An actuality in issue is known as the ‘rule truth’ or factum probandum and the applicable reality
the ‘evidentiary certainty’ or factum probans. Where immediate proof concerning a truth in issue
is not accessible, it may be demonstrated by conditional confirmation; and in such a case each
spot of fortuitous proof might be an occurrence of an “applicable” reality.
Relevant Evidence
“Relevant Evidence is evidence that makes a fact more or less likely to be true than it would be
without the evidence (looking for probative value). Relevant evidence may be excluded for
unfair prejudice, confusion, or waste of time. Relevant evidence is generally admissible and
irrelevant evidence is never admissible.
Two leading principles on relevance:
1) That nothing is to be received which is not logically probative of some matter requiring to be
proved; and
2) That everything which is thus probative should come in, unless a clear ground of policy or law
excludes it. Relevancy exists as a relation between an item of evidence and a proposition sought
to be proved.”
The Indian Evidence Act lays down, in Ss. 5-55, what facts are relevant; but the mere fact of
logical relevancy does not ensure the admissibility of a fact. Very often, public considerations of
fairness and the practical necessity for reaching speedy decisions necessarily cause the rejection
of much of the evidence which may be logically relevant.
Thus, all evidence that is admissible is relevant, but all that is relevant is not necessarily
admissible. Relevancy is the genus of which admissibility is a species. Thus, oral statements
which are hearsay may be relevant, but not being direct evidence, are not admissible.
Legal relevancy is, for the most part, based upon logical relevancy, but it is not correct to say
that all that is logically relevant is necessarily legally relevant and vice versa. Certain classes of
facts which, in ordinary life, are relied upon as logically relevant are rejected by law as legally
irrelevant. Cases of exclusion of logically relevant facts by positive rules of law are:
(i) Exclusion of oral by documentary evidence: Ss. 91-99.

(ii) Exclusion of evidence of facts by estoppel: Ss. 115-117.
(iii) Exclusion of privileged communications, such as confidential communications with a legal
adviser, communication during marriage, official communications, etc.: Ss. 121-130”
Admissibility:
Admissibility means that the facts which are relevant are only admissible by the Court.
According to section 136 of the Indian Evidence Act, 1872, however, the final discretion on the
admissibility of evidence lies with the judge.
“The essential ingredients of the above section are:
1. It is the judge who decides the questions of relevancy and admissibility.
2. When a party proposes to adduce evidence of any fact, the judge may ask the party to
clarify ‘in what manner’ the fact would be relevant.
• The judge would ‘admit’ the particular adduced fact only if he is satisfied with the
answer of the party that it is, indeed, relevant under one or the other provisions of S. 6 to
55. Thus the consideration of relevancy comes first and of admissibility later and the
judge will admit the fact only if it is relevant.”
In the recent case of Ram Bihari Yadav v. State of Bihar, the Supreme Court observed that
“More often the expressions ‘relevancy and admissibility’ are used as synonyms but their legal
implications are distinct and different from for more often than not facts which are relevant are
not admissible; so also facts which are admissible may not be relevant, for example questions
permitted to put in cross examination to test the veracity or impeach the credit of witnesses,
though not relevant are admissible. The probative value of the evidence is the weight to be given
to it which has to be judged having regards to the fact and circumstances of each case.”
Question: Explain the concept of Res Gestae.
Answer: The Latin term res gestae literally translates to mean “things done.” Res gestae is used
to refer to a declaration that is made at an event that proves the event happened because the
words were uttered upon witnessing the event.
Doctrine of Res Gestae
The doctrine of Res gestae is a term used to describe what is called the “start-to-end” period of a
felony. Res gestae was once considered an exception to the hearsay rule. This is because it
concerns a declaration that is uttered so closely to the occurrence of an event that it can be used
to prove that the event actually happened.
Further, because a statement made under the doctrine of res gestae is made naturally and
spontaneously, there is little room for misunderstanding or misinterpretation by anyone who
hears it. Therefore, if a witness were to testify and repeat such a statement to the court, that

statement could then be used as evidence. Courts thus believe such statements to be thoroughly
reliable.
Doctrine of Res gestae statements can fall into one of three categories:
▪ Words or phrases that either wholly or partially explain a physical act
▪ Exclamations that are so spontaneous that they prevent anyone from successfully lying to
the contrary
▪ Statements that prove an individual’s state of mind
Such a statement would be considered admissible evidence because the manager made the
declaration at the exact moment that the young man dashed out of the store. This leaves little
room for Ellen, or any other eyewitness for that matter, to have misunderstood the manager’s
meaning or intention.
The theft that had occurred was made all the more clear by the manager’s declaration, which
proved that a theft actually happened. Else, an eyewitness could have assumed that the man was
rushing out of the store for any number of reasons that had nothing to do with committing a
crime.
Question: What do you mean by admission? What are its kinds? when it is admissible in
evidence? Who can make admission?
Ans: Admission, defined under section 17 of The Indian Evidence Act, 1872 the definition
states that evidence can either be oral, documentary or be contained in electronic form (inserted
by Information Technology Act, 2000). Its relevancy is depended on whether if, it satisfies the
conditions mentioned in sections 18 to 23 of The Indian Evidence Act, 1872. Surprisingly, in
common parlance, ‘confession’ is used to refer to adverse statements made by a competent party
but it comes under the purview of admission. Admission is a broader term and includes
confessional statements. Confession is nowhere defined in the act but the conditions for its
relevancy are given in sections 24 to 30.
Admissions are statements that attach a liability, as inferred from the facts in issue or relevant
facts, to the party who made such statements; the statement, denouncing any right, should be
conclusive and clear, there should not be any doubt or ambiguity. This was held by the Supreme
Court in Chikham Koteswara Rao v C Subbarao (AIR 1981 SC 1542). They are only prima
facie proof and not conclusive proof.
Admissions can be either formal or informal. The former also called judicial admission is made
during the proceedings, while the latter is made during the normal course of life. Judicial
admissions are admissible under Section 58 of the act and are substantive. They are a waiver of
proof, that is, no further proof is needed to prove them unless the court asks the same. The
Supreme Court in Nagindas Ramdas v Dalpatram Ichharam (1974 1 SCC 242) explained the
effect of it, stating that if admissions are true and clear, they are the best proof of the facts

admitted. Through informal or casual admission, the act brings in every written or oral statement
regarding the facts of the case (by the party), under admission.
Section 18, 19 & 20
These sections lay down the list of persons whose admission will be relevant. Section 18 lays
down the rules for parties to the suit and sections19 & 20 lay down rules regarding relevancy for
third parties. They are:
1. PARTIES TO THE SUIT: All statements made by parties to the suit that makes an
inference as to a relevant fact or fact in issue is relevant. In case of defendants, a
defendant’s admission does not bind his co-defendants as, then, the plaintiff would defeat
the case of all defendants through the mouth of one. In case of the plaintiff, since they all
share some common interest, the admission of one plaintiff is bound on co-plaintiffs
(Kashmira Singh v State of MP AIR 1952 SC 159).
2. AGENTS OF PARTIES: As the law of agency dictates, anything done by an agent, in
the normal course of business, is deemed to have been done by the principal himself (qui
facit per alium, facit per se). Hence, if an agent is impliedly or expressly been asked to
make an adverse statement, the same shall be relevant. A lawyer does not come under
this section.
3. STATEMENTS IN REPRESENTATIVE CHARACTER: A person who sues or is
sued in a representative character. These refer to people such as trustees, administrators,
executors, etc. Nothing said in their personal capacity is taken as admission but if said in
the representative capacity, it counts as an admission.
4. STATEMENT OF THIRD PARTIES: These include:
• Persons having proprietary or pecuniary interest in subject matter, provided, their
statements are in the character of their interest.
• A predecessor-in-title, that is, from whom the parties have derived their interest in the
subject-matter of the suit. This is applicable only if the parties to the suit continue holding
their title. The previous owner of the title to the property can make admissions regarding
the property and not the parties or the new owner.
Section 21
This section is regarding the proof of admissions. It states that, since an admission is
evidence against the party who has made it; it cannot be proved by the party but has to be
proved against the party. It is better explained by Crompton J in R v Petcherini (1855 7
Cox CC 70): If a man makes a declaration accompanying an act it is evidence, but
declarations made two or three days, or a week, previous to the transaction in question
cannot be evidence, otherwise it would be easy for a man to lay grounds for escaping the
consequences of this wrongful acts by making such declarations.

It can, though, be proved in favour of the party, if, the party who made the statement,
originally, died. This comes under Section-32 of the Indian Evidence Act and the
statement is proved by the representatives of the original party. When the statement
relates to a bodily feeling or state of mind, the person making the admission can prove it,
too. The state of mind in question should be proved with an appropriate conduct, since, a
person in pain would act differently than a person faking it. Certain other relevant
statements can also be proved by the party making it, such as, when the statement is itself
a fact in issue or if it is a part of res gestae.
Question: What do you mean by confession? What are its kinds? When is confession
made by an accused inadmissible in Evidence? Discuss.
Answer: Confession is nowhere defined under the act and it occurs under the heading
‘admission.’ The definition of ‘admission’ under Section 17, hence, becomes applicable
for Confessions. In terms of the act, a relevant statement made in a civil case is an
admission and an admission made in a criminal case is a confession.
In Palvinder Kaur v State of Punjab (1953 SCR 94) the Supreme Court upheld the
decision of the Privy council in Pakala Narayan Swami v Emperor (AIR 1939 PC
47) and cited two points: confession must either admit the guilt in terms or admit
substantially all the facts and secondly, a mixed up statement, containing confessional
statements which will lead to acquittal is no confession. The court cannot remove the
exculpatory part out of a statement and deliver a decision on the basis of the inculpatory
part of the statement.
A confession, like admission, can be judicial or extra-judicial. In Sahoo v State of UP
(AIR 1966 SC 40), the accused was talking to himself and made the confession of killing
his own daughter which was overheard by the witness. This was held to be confession
relevant in evidence.
Section 24
This section makes those confessions irrelevant which are:
• A result of inducement, threat or promise;
• Inducement, etc be made from a person in authority;
• It should relate to a charge in question; and
• It should hold out some worldly benefit or advantage.
The law considers confessions, which are not made freely, as false. A government official is
considered to be a person in authority as they are deemed to be capable of influencing the
course of prosecution (R v Middleton, 1974 QB 191 CA). The benefit promised should be
reasonable and make the accused believe that he would gain an advantage from it and an evil
which the accused is threatened with should be of a temporal nature.

Confession to Police
Section 25 to 30 talks about confessions to police.
1. SECTION 25: It provides that no confession made to a police officer shall be provable
or relevant. This is to protect the accused who might be tortured to extract out a false
confession. If a person is confessing in front of someone else, it will not be irrelevant just
because of the presence of a policeman around. This section only applies to confessional
statements, orally or in FIR; other admissions can be taken as evidence to prove facts or
facts in issue.
2. SECTION 26: This section is similar to the preceding one and states that no confession
of a person, in police custody, is provable. It applies the same context that a false
confession could be extracted out through fear or torture. It not only applies to
confessions to a policeman but to any other person. Police custody does not only mean
within the four walls of a police station, but it could also mean police control in a home, a
car or a public place. The only exception to this rule is that if the confession is made by
the person in presence of a Magistrate, it will be admissible.
3. SECTION 27: If a statement leads to a discovery of a fact related to the crime, it
becomes admissible, even if it was extorted out of the accused. This acts as an exception
to Section 26. To certify the genuineness of the recoveries, they should be made in
presence of witnesses. In Mohan Lal v Ajit Singh (AIR 1978 SC 1183), the accused, on
arrest, indicated where he had kept the stolen goods and the same were found within six
days. The court held that his liability can be inferred from the statement and was held
liable for murder and robbery. A statement made cannot be used against other co-
accused, as was held in Satish Chandra Seal v Emperor (AIR 1943 Cal 137).
4. SECTION 28: If the inducement, threat or promise, as defined in section 24 is removed,
a confession afterwards, becomes relevant. Here, the confession is free and voluntary.
5. SECTION 29: Unlike admissions, where a ‘without prejudice’ statement is inadmissible,
a confession that is made by a promise of secrecy is admissible. The law is only
concerned with the confession being free and voluntary, hence, even if deception or fraud
is being employed or the person is inebriated or if he is made to answer questions, he was
not supposed to, the confession made through all these methods is admissible. In R v
Maqsud Ali (1966 1 QB 688), two accused were left alone in a room where they thought
they were all alone but secret tape recorders had been implanted in the room. The
confessions thus, recorded were held to be relevant.
Question: Can a confession of an accused be used against a Co-accused? What is the
evidentiary value of such a confession?
Ans: Yes, a confession of an accused be used against a Co-accused. Section 30 of the
evidence act talks about the confession by a co- accused. This section comes into play
when more than one person is jointly accused of the same offence. Here, if one of the co-

accused makes a confession regarding himself and some other such persons, the court
will take that confession into account against the accused and his co-accused.
In Kashmira Singh v State of MP (AIR 1952 SC159), a person named Gurbachan,
along with 3 others was accused of the murder of a child. Through his confession, the
prosecution was able to give shape to the story and he, with Kashmira Singh was held
liable and sentenced to death. Kashmira was acquitted by the Supreme Court on an
appeal as uncorroborated confession was not deemed enough to deprive a person of the
right to life.
Question: What are the differences between Admission & Confession?
Answer: As the definition of admission is also applicable to that of confession and
confession comes under the topic of ‘admission,’ it can be inferred that admission is a
broader term and it covers confessions. Hence, all confessions are admissions but not all
admissions are confessions.
Confessions, usually, refer to admissions made in a criminal case whereas an admission
is a relevant statement made in a civil case. As was held in cases Pakala Narayan
Swami v Emperor and Palvinder Kaur v State of Punjab (cited above), that a
confession must go further and admit the guilt in terms or substantially the facts from
which guilt follows, and not merely acknowledge a fact suggesting an inference as to a
fact in issue or a relevant fact.
An admission can either be in favour or against the interest of the party making it
(Section 21 & 32), whereas a confession is always against the interest of the party making
it.
An admission can be made anywhere, even in police custody, or in front of a person in
authority or whether it was a result of inducement, whereas the conditions for relevancy
of confessions are different and would not be applicable in such cases.
A confession is binding on the co-accused, whereas this is not the case in admissions. An
admission can be made by a third party, too but confession proceeds from a person who
has committed the crime. Lastly, admission is not a conclusive proof but a confession is
taken to be a satisfactory proof of guilt of the accused.
Question: Circumstantial Evidence
Answer: Circumstantial evidence is direct evidence of a fact from which a person may
reasonably infer the existence or nonexistence of another fact. A person's guilt of a charged
crime may be proven by circumstantial evidence, if that evidence, while not directly
establishing guilt, gives rise to an inference of guilt beyond a reasonable doubt.
Circumstantial evidence is evidence of circumstances which can be relied upon not as
proving a fact directly but instead as pointing to its existence. Circumstantial evidence
is based largely on inference and uses inductive reasoning.

Example of Circumstantial Evidence:
X is suing his wife, Y, for a divorce, claiming she is having an affair with Z. Z's
fingerprints are found on a book in X and Y's bedroom. A judge may infer that Z was in the
bedroom. The fingerprints are circumstantial evidence of Z's presence in the bedroom.
Circumstantial evidence is more complex. A witness did not see the stabbing. The witness
did see the defendant go into the house carrying a knife. The witness heard a scream inside
the house and saw the defendant run out, not carrying the knife. The victim is later found
inside with a knife in her back. A reasonable inference is that the defendant stabbed the
victim. Whether that fact is true will determine if the defendant is guilty.
It is a popular misconception that circumstantial evidence carries less weight or
importance than direct evidence. This is only partly true. While direct evidence is generally
seen as more powerful, most successful prosecutions rely greatly on circumstantial
evidence. Circumstantial evidence often has an advantage over direct evidence because it is
more difficult to suppress or fabricate.
The law draws no distinction between circumstantial evidence and direct evidence in terms
of weight or importance. Either type of evidence may be enough to establish guilt beyond a
reasonable doubt, depending on the facts of the case as the jury finds them to be.
Human agency may be faulty in expressing picturization of actual incident but the
circumstances cannot fail. Therefore, many a times, it is aptly said that “men may tell
lies, but circumstances do not”.
Sharad v. State of Maharashtra (AIR 1984 SC 1622)
1) The circumstances from which the conclusion of guilt is to be drawn should be fully
established.
2) The facts so established should be consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be explainable on any other hypothesis except
that the accused is guilty.
3) The circumstances should be of a conclusive nature and tendency unerringly pointing
towards the guilt of the accused.
4) They should exclude every possible hypothesis except the one to be proved, and
5) There must be a chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show that in all
human probability the act must have been done by the accused.

These five golden principles, constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
Shanti Devi vs. State of Rajasthan [CRIMINAL APPEAL NO. 954 OF 2005].
“The principles can be set out as under:
(i) The circumstances from which an interference of guilt is sought to be proved must be
conjointly or firmly established.
(ii) The circumstances should be of a definite tendency unerringly pointing towards the
guilt of the accused.
(iii) The circumstances taken cumulatively must form a chain so complete that there is no
escape from the conclusion that with an all human probability, the crime was committed
by the accused or none else.
(iv)The circumstances should be incapable of explanation on any reasonable hypothesis,
same that of the guilt of the accused.”
Last Seen theory:
In State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:- It is
not necessary to multiply with authorities. The principle is well settled. The provisions of
Section 106 of the Evidence Act itself are unambiguous and categoric in laying down
that when any fact is especially within the knowledge of a person, the burden of
proving that fact is upon him. Thus, if a person is last seen with the deceased, he must
offer an explanation as to how and when he parted company. He must furnish an
explanation which appears to the court to be probable and satisfactory. If he does so he
must be held to have discharged his burden. If he fails to offer an explanation on the basis
of facts within his special knowledge, he fails to discharge the burden cast upon him by
Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the
accused fails to offer a reasonable explanation in discharge of the burden placed on
him, that itself provides an additional link in the chain of circumstances proved
against him. Section 106 does not shift the burden of proof in a criminal trial, which is
always upon the prosecution. It lays down the rule that when the accused does not throw
any light upon facts which are specially within his knowledge and which could not
support any theory or hypothesis compatible with his innocence, the court can consider
his failure to adduce any explanation, as an additional link which completes the chain.
Question: What is Dying Declaration? How it is proved? What is the principle on
which dying declaration are admitted in evidence?
Answer: Dying declaration is testimony that would normally be barred as hearsay but
may in common law nonetheless be admitted as evidence in criminal law trials because it

constituted the last words of a dying person is the declaration made by the person who is
in expectation of death.
Basis of admission of dying declaration:
1. Doctrine of Necessity
2. Nemo Moriturus Preasumitur Mentire
(A man will not meet his maker with a lie in his mouth)
First part of the Dying declaration is related to the direct statement whereas second part is
related to the circumstances of the transaction resulting into the death.
The second part of Section 32(1) is related to a transaction which ultimately resulted into
the death. There is some point of time when the transaction of death may have
commenced and thereafter there may have been a sequence of events which ultimately
resulted into the lat act of the causation of death. The deceased should have made the
declaration regarding any of these circumstances i.e any of these events which may have
happened after the transaction may have commenced. The commencement of transaction
should have proximity with the causation of the death.
Evidentiary value of Dying Declaration:
1. Dying Declaration is the Substantive piece of evidence therefore it is admissible as a
relevant fact.
2. Dying Declaration is the strong piece of evidence and even the properly recorded Dying
Declaration can be the sole basis of conviction. However, oral dying declaration is not the
sole basis of conviction.
Dying Declaration in order to be a sole basis of conviction should pass through the
following tests:
1. Declaration should have been made to the JM/EM.
2. It should be recorded in the same language in which the statement was made by the
declarant.
3. Certificate of the doctor’s for the fitness of the declarant is necessary.
4. Declaration should be in question answer form.
5. There should have been some witness to the fact.
6. The declaration must be coherent.
7. The declaration should be complete and signed.
Question: Is oral evidence admitted to explain the contents of documents? If so under
what circumstances?
Answer: As per the section 22 admissions to the contents of a document are not relevant,
unless and until the party proposing to prove them shows that he is entitled to give

secondary evidence of the contents of such document under the rules herein contained, or
unless the genuiness of a documents produced in question.
Section 22 lays down that the contents of the documents can be proved by the documents
itself and not by oral evidence. The contents of a document capable of being produced must
be proved by the instrument and not by parole evidence.
Under the provisions of the Evidence Act the contents of the documents are proved either by
primary evidence or by secondary evidence. According to Section 64, the document must be
proved by primary evidence, i.e., by producing the document itself. In absence of primary
evidence it can be proved by secondary evidence under section 65. Section 22, accordingly,
states that oral evidence as to the contents of a document will be relevant only when the
secondary evidence of the document can be given under this section. When acceptable
materials are avoidable through witnesses, their depositions cannot be rejected merely on the
ground that the complaints given by P.W. 4 and P.W. 21 were not marked and muchalka
obtained from both parties were not produced. The contents of the documents like certified
copy, Xerox or photocopy, attested or duplicate copies can be produced to support oral
evidence.
In case the document is registered then except in the case of a will it is not necessary to call
an attesting witness, unless the execution has been specifically denied by the person by
whom it purports to have been executed. Where the original contract is available to ascertain
the quantum of damages there is no question of letting in secondary evidence.
Question: Concept of Relevancy Of Judgements under the Indian Evidence Act.
Answer: Section 40 to Section 44 of the Indian Evidence Act, 1872 lay down the provisions
relating to judgements of Court of Justice, when relevant. Section 40 deals with the previous
judgements to bar a suit or trial. Section 41 deals with the relevancy of certain judgements
in probate etc. jurisdiction. Section 42 deals with relevancy and effect of judgements orders
or decrees other than those mentioned in Section 41. Section 43 relates to judgements etc.
Other than those mentioned in Sections 40 to 42, when relevant. Section 44 speaks about
fraud or collusion in obtaining judgement or incompetence of Court, may be proved.
The object of the provision of this chapter is to avoid multiplicity of the suit and to save
precious time of the Court. There should be end of litigation in the interest of justice S.11 of
C.P.C deals with Doctrine of res Judicata which signifies that when a matter of fact has been
finally and conclusively resolved by a competent court. the same matter cannot be re-
litigated once again.
2) Kinds of Judgements : Judgements are classified into two types:
i. Judgement in Rem
ii. Judgement in Personam

Judgements affecting the legal status of some subject matters, persons or things are called
'Judgments in rem' .e.g. Divorce Court Judgment, grant of probate or administration etc. Such
judgments are conclusive evidence against all the persons whether parties to it or not.
Judgements in personam are all the ordinary judgments not affecting the status of any
subject matter, any person or anything. In such judgments, the rights of the parties to the suit
or proceedings are determined.
Under section 40 to 44, a Judgement is not relevant to prove that the plaintiff has filed a false
case. ( Hassan Abdullah vs. State of Gujarat, AIR 1962 Guj214: 1962(2) Cr.LJ 55)
Section 40 permits evidence of the previous judgement, order or decree which by law
prevents any Court from taking cognizance Of a Suit or holding a trial, when the question
arises whether such Court oath to take cognizance of such suit to hold such trial.
Question: Who is an Expert? When is the opinion of an expert relevant?
Answer: As per the general Principle only evidence relating to the facts can be adduced by a
witness not opinion. Court has only the power to form an opinion upon ant testimony or the
documents produced by the parties. However, under exceptional matters, when courts does
not have the expertise upon certain fields, it has the power to called an expert to give an
opinion.
Section 45-51 of the Indian Evidence Act deals with the various aspects of expert opinion.
Expert opinion is the testimony which the witness gives before the court of law. In a normal
course only those witnesses are allowed to give testimony who is the witness of fact as per
section 60 of the Indian Evidence Act.
According to Lord Russell any person who is a Peritus i.e especially skilled upon a question
of art or science can give his opinion about the fact which may be relevant or fact in issue in
that particular case.
The circumstances of expert opinion arises when court itself has to form an opinion upon
such fact and the court is not an expert in that field. The opinion of a especially skilled
person will be relevant and admissible in the case.
Question: Discuss the law regarding opinion as to handwriting of a person?
Answer: The issue relating to evidence of a handwriting expert has been expounded by the
Courts in plethora of judgments. In the case of State of Maharashtra v. Sukhdeo Singh, the
Apex Court opined that before a Court can act on the opinion evidence of a handwriting
expert two things must be proved beyond any manner of doubt, namely,
(i) the genuineness of the specimen/admitted handwriting of the concerned accused and
(ii) the handwriting expert is a competent, reliable and dependable witness whose evidence
inspires confidence.

Question: What do you mean by character? Discuss the Relevancy of Characters of
Parties in legal proceedings?
Answer: Character evidence plays an important role in almost all jurisdictions. The character
of persons has been used in order to determine guilt for centuries. Over the years the law has
evolved and the applicability of character evidence to civil and criminal cases has become
limited. The character sought to be proved, may be of the parties to the proceedings, the
witnesses or even third parties. Through this paper, the researcher seeks to study the Indian
as well as the English position on the law of character evidence in civil cases.
The character of a person is a summary of his past actions whether good or bad. English Law
does not have a single, well defined technical meaning for character, it is however
understood to include both disposition as well as reputation. Similarly the Indian Evidence
Act, under the explanation to Section 55 makes a feeble attempt to explain the meaning of
character; it merely states that the word ‘character’ includes both disposition as well as
reputation. However disposition and reputation are not the same thing. Disposition of a
person is what he actually is, it means a person’s entire character or “the sum of inherited and
acquired ethical traits which gives a man his individuality," sometimes character may also
mean a single trait such as honesty, chastity etc.
Reputation on the other hand is the community opinion as to what a person is supposed to be.
It should be noted that in law, reputation is the chief means of proving a person’s character.
Evidence of the general reputation of a person affords the basis for an inference as to the
actual character. However the words character and reputation are used synonymously.
Circumstances Under Which Character Evidence May Be Adduced:
In both English law as well as Indian law, the evidence of a person’s character may be
offered under two circumstances, firstly to prove its existence as one of the facts in the case,
that is character as a fact in issue and secondly to prove its existence as circumstantial
evidence in order to prove another fact therein. In the first case, the character of the person is
the disputed fact and it is the existence of such character which has to be proved by evidence,
while in the second case character is offered and used as evidence, as the basis to infer some
other facts in the case.
The Distinction Between Character Evidence in Civil and Criminal Cases
When the character of a person is the fact in issue, proof of general character may be
received in both civil and criminal cases, however when the character is not a fact in issue,
but is instead used as circumstantial evidence to prove other material issues, then it is
allowed only in criminal cases, and under certain circumstances in civil law.

This is true of both English law as well as Indian law, Section 52 of the Indian Evidence Act
makes it clear that evidence of character to prove conduct imputed is irrelevant unless it
appears from the facts to be otherwise relevant. Thus the test for admissibility is relevance.
Character Evidence When Admissible-
Thus we can see that character evidence in civil cases is admissible when, the character of
the party or third party is a fact in issue, the character of the party or third party becomes
relevant from the facts of the case, that is when it is needed as circumstantial evidence to
prove another fact in issue. The character of a witness is in question.
When Character Becomes Relevant
When character of a person is not a fact in issue, it may still be a relevant fact and as per
section 52 of the Indian Evidence Act, it would be admissible. Various English cases have
also held that character evidence would be admissible if it could be shown that it was
relevant.
In suits for damages for example, though character may not be a fact in issue it is still a
relevant fact that may be considered in order to mitigate the extent of damages. Therefore, in
suits for damages against defamation, breach of promise to marry, seduction, adultery etc.
evidence of character is admissible in both English law as well as Indian law.
Section 55 of the Indian Evidence Act, specifically states that if the character of a person is to
affect the amount of damages he should receive then evidence of character becomes relevant.
While evidence of bad character of the plaintiff may be given in order to mitigate the extent
of damages, evidence of good character may not be given in order to increase the extent of
liability.
Question: “No fact of which the court will take judicial notice need be proved.”
Critically examine this statement and state the facts which the court must take judicial
notice.”
Answer: The expression judicial notice means recognition of facts without formal proof as a
matter of expediency and no one has ever questioned the need and wisdom of accepting the
existence of matters which are unquestionably within public knowledge. No Court therefore
insists on formal proof, by evidence, of notorious facts of history, past or present. The date of
poll, the passing away of a man of eminence and events that have rocked the nation need no
proof and are judicially noticed.
Judicial notice, in such matters, takes the place of proof and is of equal force. In fact, as a
means of establishing notorious and widely known facts it is supe- rior to formal means of
proof.

In Onkar Nath vs. Delhi administration AIR 1977 SC 1108 the Supreme court held that the
court can take judicial notice of the factthat an all India Strike was imminent on a particular
day, and that it actually took place from the certain day.
Question: Discuss the kinds of Presumption?
Answer: Presumptions of Fact and presumption of law
Presumption of fact:
1. Adiscretion, more or less extensive as to drawing the inference, is vested in the court.
2. Presumption of fact are not rules of law.
3. Presumptions of fact may or may not be drawn.
4. There is no such division in the case of presumption of fact.
Conclusive presumption are inferences which the law makes so peremptorily that will not
allow them to be overturned by any contrary proof, however strong.
Reuttable Presumptions: are rules defining the nature and the amount of the evidence
which is sufficient to establish a prima facie case and to throw the burden of proof upon
the other party and if no opposing evidence is offered the court is bound to come to a
conclusion in favour of the presumption.
Mixed presumption or presumption of law and fact lie in between the above two and
consist of mainly of certain presumptive inferences which attract the observation of the
court.
Question: Explain fully with the illustration that “Oral evidence must in all cases be
direct”
Answer: Evidence may be classified into Oral Evidence and Documentary Evidence, a
fact may be proved either by oral evidence of fact or by documentary evidence, if any.
This means there are two methods of proving a fact. One is by producing witnesses of
fact, which are called oral evidence and the other by producing the document which
records the fact in question and this is called documentary evidence.
Section 59 and 60 of the Indian Evidence Act, 1872 provides the provisions
relating to oral evidence Section 59 provides for proof of Facts by oral evidence, Section
60 says that oral evidence must direct in other words hearsay evidence no evidence.
Meaning of Oral Evidence:
The term Oral signifies by word of mouth. 'Oral Evidence' literally means “The evidence,
which is confined to words spoken by mouth".

It is a fact to the knowledge of the court by the statement of a witness qualified to speak
on the point. However a witness, who is unable to speak, is permitted and considered as
competent to give evidence in any matter which, he can make it intelligible. Verbal
Statements includes signs and gestures. A deaf may testify by signs or by writing Oral
evidence, if worthy of credit, is sufficient without documentary evidence to prove a fact
or title.
Section.3 of the Indian Evidence Act defines oral evidence, the first Part of the Evidence
which defines Evidence deals with ’Oral evidence'. It says - “All Statements which the
court permits or requires to be made before it, by witnesses in relation to matter of fact
under enquiry, such statements are called Oral Evidence."
The evidence of witnesses in general is given orally, and this Means Oral Evidence.
Therefore Oral Evidence includes the statement of witnesses before the court which the
Court either permits or requires them to make. The statement may made by witnesses
capable of making it. A witness who can speak may communicate his knowledge of the
fact to the court by signs or by writing and it will be treated as oral evidence
Proof of Facts by oral Evidence (Section.59):
Section 59 says that, “All facts, except the contents of documents, may be proved by oral
evidence. (The words or electronic records inserted by IT Act 2000)
Importance of Oral Evidence:
This Section lay down that, where written documents exist, they shall be produced as
being the best evidence of their own contents and no oral evidence can be adduced to
prove as to what is wrong in the document.
While receiving oral evidence great Care must be exercised. The Court must sift the
evidence, separate grain from chaff and accept what it finds to be true and reject the rest.
The real test for accepting or rejecting the evidence is:
A) How consistent the story is with itself.
B) How it stands the taste of cross examination; and
C) How far it fits in with the rest of the evidence and the circumstances of the
case.
Question: Explain Estoppel? How does it apply?
Answer: According to the doctrine of estoppel there are certain facts which the parties are
prohibited from proving, Estoppel is a principle of law by which a person is held bound
by the representation made by him or arising out of his conduct. Estoppel has been dealt
in sections 115 to 117 of the Indian evidence act. Estoppel defined under section 115 of
Evidence Act:

“When one person has, by his declaration or by his act, intentionally caused or permitted
another person to believe a thing to be true and to act upon such belief neither he nor his
representative shall be allowed, in any suit or proceeding between himself and such
person or his representative, to deny the truth of that thing”
In a case, a judge, who has showed high age in his certificates right from the beginning of
his career, sought to deny it by showing actual municipal birth records, so as to retire at a
later age. Here he can’t do the judge is estopped. In another case, the wife was of
Buddhist faith and the husband a Muslim. She sought a divorce under Buddhist law. Held
that she was estopped from denying her earlier committal to Islamic law.
Doctrine of estoppel has gained a new dimension in recent years with the recognition of
an equitable doctrine of promissory estoppel both by English and Indian courts.
According to it, if a promise is made in the expectation that it should be acted upon in the
future, and it was in fact acted upon, the party making the promise will not be allowed to
back out of it. The development of such a principle was easy in Britain and USA, where
estoppel is a rule of equity (common law), but in India, it is a rule of law, and terms of
sec 115 must be strictly complied with.
Difference between promissory estoppel and estoppel
The concept of promissory estoppel differs from the concept of estoppel as continued in
Section 115 in that representation in the latter is to an existing fact, while the former
relates to a representation of future intention. But it has been accepted by the Supreme
Court as “advancing the cause of justice. Though such promise (future) is not supported
in point of law by any ‘consideration’( the basis of contract), but only by the party’s
conduct; however, if promise is made in circumstances involving legal rights and
obligations it is only proper that the parties should be enforced to do what they promised.
In Cases, where the government is one of the parties, the court will balance the harm to
the public interest by compelling the government to fulfil its promise and not to allow the
government to back out of it to see government does not act arbitrarily.
The doctrine has been variously described as “equitable estoppel”, “quasi estoppel” and
“new estoppel. The Doctrine is not really based on the principle of estoppel, but it is a
doctrine evolved by equity in order to prevent injustice where a promise made by a
person knowing that it would be acted on, it is inequitable to allow the party making the
promise to go back upon it. The Doctrine of promissory estoppel need not, therefore, be
confined to the limitations of estoppel in the strict sense of word.
In that case, there was news in the papers that the State of U.P. would grant exemptions
from sales tax for 3 years to new industrial units. The Petitioner wanted to set up a
Vanaspati Plant. He applied to the director of industries and the chief secretary, and both
confirmed the availability of the exemption. The petitioner contended that the
government should be estopped from going back upon the declared exemption. The

Supreme Court allowed the petition, holding that the government was bound by its
declared intention. The court also held that detriment is not necessary to create an
estoppel against the State. What is necessary is only that the promise should have altered
his positions in reliance on the promise.
A mere promise to make a gift will not create an estoppel. It would require a clear and
unequivocal promise to import the doctrine into a matter. A leading institution intimated
the sanction of a loan with a remark that it did not constitute a commitment on the part of
the institution. Held, that there was no promise to found the doctrine of promissory
estoppel.
The Supreme Court has laid down that it is well settled that there cannot be any estoppel
against the Government in the exercise of its sovereign, legislative and executive
functions. Where a local development authority announced a housing scheme and
accepted applications under it, subsequently finding that the scheme was in violation of
the Master Plan cancelled it. It was held that to be free to do so without any shackles of
promissory estoppel.
The Doctrine of estoppel has been allowed to be invoked against a University. In Univ. of
Madras v. Sundara Shetti (1965) MLJ 25, the university was estopped from claiming
that a student had not actually passed, but that his mark sheet contained a mistake. The
respondent was declared successful in SSLC exams, got certificates and admitted in
college. While in the senior class, he received a notice that his name was not on the list of
SSLC holders. Thus, his name was removed from the college rolls. It was held that it
was a case of legal or equitable estoppel which satisfies him his right. Moreover, there
was no mala fide on the part of the respondent. The fact of a miscalculation of marks was
within the special knowledge of the university and was not known to any other person.
Question: What is the Difference between Primary and Secondary Evidence
Answer: Before understanding the concept of primary and secondary evidence in Indian
law, it is essential to understand as to why there exists a need for such a distinction.
The Indian Evidence Act has created this distinction through its provisions in Chapter V
of the Act, specifically for documentary (and now electronic documentary) evidence. It is
a traditionally principle of common law that oral evidence (that is direct) may be
employed to prove all forms of facts
Documentary evidence alone has been excluded from being adduced by oral evidence in
Section 59, and all other facts may be proved by oral evidence. The reason for the
creation of such a distinction is the Hearsay Rule, Simply explained, the hearsay rule
bars the “use of out of court statements to prove a fact from being admitted as evidence
because of the inability of the opposing party to cross-examine the maker of the
statement.

One of the landmark cases that laid down this principle in common law countries
worldwide was that of R v. Sharp, where it was described as ‘
“Any assertion other than one made by a person while giving oral evidence in the
proceedings is inadmissible as evidence of any fact or opinion asserted”
The reason hearsay evidence is not recognized in common law is the fact that it is
impossible to determine the accuracy and veracity of such evidence, which is usually
done by way of cross-examination. Because the person who made the statement in
question is not present in the trial proceedings, it is impossible to cross-examine him, and
therefore such evidence is excluded from consideration. The hearsay rule in itself is
complex and layered.
The reason oral evidence cannot be used to adduce documentary facts, is because it
would violate this aforementioned rule. Since a particular document is absent, the
veracity and accuracy of the oral evidence regarding the same cannot be verified using
the document, and thus, is hearsay evidence. Therefore, the Indian Evidence Act provides
for the use of primary and secondary evidence to adduce documentary facts and
electronic records.
Question: Distinction between Primary and Secondary Evidence?
Answer: Primary evidence under the Indian Evidence Act, is what is deemed to be
highest form of evidence, in terms of accuracy and value. With regard to documents and
electronic data, primary evidence Chapter V, The Indian Evidence Act, 1872.
Evidence of the contents of a particular document is the document itself. It is governed
by:
Section 62 of the Evidence Act, which dictates the nuances of the same. Secondary
evidence, in contrast, is what is presented in the absence of primary evidences, thus the
name.
Section 63 defines and governs secondary evidences in Indian Law. It is an inferior
quality of evidence as compared to the former. However, it an essential means
of reconciling the hearsay rule with the often occurring impossibility of securing primary
evidences, for there may exist several situations where the original document or
electronic record cannot be produced before court. Section 65 further clarifies such
situations, where secondary evidence be used instead of primary evidence due to the non-
availability of the latter.
Question: What is the difference between Private and Public Documents?
Answer: Public Document Section 74 of the Evidence Act defines and Private
Documents Section 75 of the Evidence Act.
1. The following documents are All other Documents are Private

public documents —
(1) Documents forming the acts, or
records of the acts—
(i)of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative,
judicial and executive, of any part of
India or of the Commonwealth, or of a
foreign country;
(2) Public records kept in any state of
Private documents.
Documents.
2. Public documents are kept in the
custody some special authority.
Private documents are kept in the custody
of some private persons.
3. It is prepared by a Public Servant. It is created / prepared out of an agreement
between the parties concerned
4. Certified copies of the Public
documents may be issued to a
person requiring them.
Certified copies of Private documents can
be issued.
5. Certified copies of Public
Document can be received in
evidence without proof.
Certified copies of Private document
cannot be taken in evidence without proof
of the origal document.
Question: What do you mean by term burden of proof?
Answer: Chapter VII, S.101 to S.114 of Indian Evidence Act deals with the provisions of
"burden of Proof".
The word 'burden of proof' has not been defined in Evidence Act. It is a fundamental
principle of criminal jurisprudence that guilt of accused is to be proved by the
prosecution, and an accused should be presumed to be innocent.
The expression burden of proof is explained in S.101 of Indian Evidence Act as,
Meaning of 'Burden of Proof' : In short, The burden of proof means the obligation to
prove a fact. Every party has to establish fact which go in his favour or against his
opponent and this is the burden of proof. Evidence Act lays down some principle of
burden of proof of general nature.
Principles of Burden of Proof :
Theoretically, the basis is divided into two parts –
i) The concept of onus probandi

ii) Factum probans
Thus together how to prove facts and who shall prove or who shall prove and to what
extent? Burden of proof is constant. Onus shifts. It consists and means that what is to be
proved is fixed .e.g . Burden is constant and who shall prove that is to be decided.
This liabilities and responsibilities to prove the fact is known as onus (burden) which shifts
from shoulder of one party to the shoulder of another party. Burden of proof is always
constant because it has reference to ingredients and concepts while onus shifted from
shoulder to shoulder.
The rule of burden of proof in civil and criminal cases is of different nature. In civil
proceedings the party who alleges certain things must prove his case, but proving beyond
doubt is not necessary. In criminal cases however the guilt of the accused is to be proved
beyond reasonable doubts otherwise the accused gets benefits of doubt. Cardinal
(Important) rules as to burden of proof - Section 101, 102 and S.103 of the Indian Evidence
Act, Provides three types of cardinal rules as burden of proof.
Supreme Court in Jarnail Sen vs State of Punjab A I R 1996 SC 755 that in Criminal
Case, the burden of proving of the guilt of the accused beyond all reasonable doubt always
lies upon prosecution, and therefore if it is fails to adduce the satisfactory evidence to
discharge the burden, it cannot fall back upon evidence adduced by the accused person in
support of their defence to rest its solely thereupon.
Section 102 Evidence Act: This section tries to locate the party on home burden of lies.
the burden of proof lies upon the party whose case would fail. if no evidence is given on
either side.
In Triro vs Dev raj A I R 1993 J&K 14 . in this case when there was a delay in filing the
suit, the defendant had taken a plea of limitation period. the plaintiff was in position to
know the cause of delay the burden of proving that the case was within prescribed limit
was on the plaintiff.
S.103.Burden of proof as to particular fact
The principle of section 103 is that whenever a party wishes is the court to believe and act
upon the existence of the fact, burden lies upon him to prove that fact .If party wishes ti the
Court to believe that his opponent has admitted a fact burden lies upon him to prove that
the fact of admission.
Particular Cases with reference of burden of proof
This principles are called rule of Convenience of burden of proof which are covered under
section 104 to S. 113 and section 113a and 114a.
S.104.Burden of proving fact to be proved to make evidence admissible

Section 104 provide, the proof of fact on which evidence become admissible. where the
admissibility depends upon the proof of burden of another fact the party who wants to
prove it will have to prove the fact on which admissibility depends.
S.105.Burden of proving that case of accused comes within exceptions
Section 105 thus provides that, if the accused claims that each case comes within any of the
recognized exception the burden of proving that lies on him.
S.106.Burden of proving fact specially within knowledge
Eshwarai vs Karnataka 1994 SC. In this case held that where a man and woman were
found hiding under the bed in a bedroom of the person who was lying dead of injuries the
of proof lies upon them to explain their presence and also the circumstances in which the
deceased met his death.
S.107.Burden of proving death of person known to have been alive within thirty years.
When the question is whether a man is alive or dead, and it is shown that he was alive
within thirty years, the burden of proving that he is dead is on the person who affirms it.
S.108.Burden of proving that person is alive who has not been heard of for seven
years.
Provided that when the question is whether a man is alive or dead, and it is proved that he
has not been heard of for seven years by those who would naturally have heard of him if he
had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
S.109.Burden of proof as to relationship in the case of partners, landlord and tenant,
principal and agent
When the question is whether persons are partners, landlord and tenant, or principal and
agent, and it has been shown that they have been acting as such, the burden of proving that
they do not stand, or have ceased to stand to each other in those relationships respectively,
is on the person who affirms it.
S.110.Burden of proof as to ownership
When the question is, whether any person is owner of anything of which he is shown to be
in possession, the burden of proving that he is not the owner is on the person who affirms
that he is not the owner
S.111.Proof of good faith in transactions where one party is in relation of active
confidence.
Where there is a question as to the good faith of a transaction between parties, one of
whom stands to the other in a position of active confidence, the burden of proving the good
faith of the transaction is on the party who is in a position of active confidence.

Illustrations
(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the
client. The burden of proving the good faith of the transaction is on the attorney.
(b) The good faith of a sale by a son just come of age to a father is in question in a suit
brought by the son. The burden of proving the good faith of the transaction is on the father
4 ) Presumption as to Burden of Proof
S111A (Amendment 1984). Presumption as to certain offenses.- (1) Where a person is
accused of having committed any offense specified in sub-section (2), in-
(a) any area declared to be disturbed area under any enactment, for the time being in force,
making provision for the suppression of disorder and restoration and maintenance of public
order; or
(b) any area in which there has been, over a period of more than one month, extensive
disturbance of the public peace,
and it is shown that such person had been at a place in such area at a time when firearms or
explosives were used at or from that place to attack or resist the members of any armed
forces or the forces charged with the maintenance of public order acting in the discharge of
their duties, it shall be presumed, unless the contrary is shown, that such person had
committed such offense.
(2) The offenses referred to in sub-section (1) are the following, namely -
(a) an offense under section 121, section 121-A, section 122 or Section 123 of the Indian
Penal Code (45 of 1860);
(b) criminal conspiracy or attempt to commit, or abatement of, an offence under section
122 or section 123 of the Indian Penal Code (45 of 1860).
S.112. Birth during marriage, conclusive proof of legitimacy
The fact that any person was born during the continuance of a valid marriage between his
mother and any man, or within two hundred and eighty days after its dissolution, the
mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that
man, unless it can be shown that the parties to the marriage had no access to each other at
any time when he could have been begotten
In Smt. Dukhtar vs Mohd.Farooq Air 1987 SC.1049.
Short Notes : S.113.Proof of cession of territory.
A notification in the Official Gazette that any portion of British territory has1before the
commencement of Part III of the Government of India Act,1935, (26 Geo. 5 Ch. 2) been

caddied to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession
of such territory took place at the date mentioned in such notification.
Short Notes S.113A.Presumption as to abatement of suicide by a married women.
113A (Amendment 1983). Presumption as to abetment of suicide by a married woman.-
When the question is whether the commission of suicide by a women had been abetted by
her husband or any relative of her husband and it is shown that she had committed suicide
within a period of seven years from the date of her marriage and that her husband or such
relative of her husband has subjected her to cruelty, the court may presume, having regard
to all the other circumstances of the case, that such suicide had been abetted by her husband
or by such relative of her husband.
Explanation
For the purposes of this section, “cruelty” shall have the same meaning as in section 498-A
of the Indian Penal Code (45 of 1860).
Short Notes S. 113B. Presumption as to dowry death
S.113B. Presumption as to dowry death.- When the question is whether a person has
committed the dowry death of a women and it is shown that soon before her death such
woman had been subjected by such person to cruelty or harassment for, or in connection
with, any demand for dowry; the court shall presume that such person had caused the
dowry death.
Explanation
For the purposes of this section, “dowry death” shall have the same meaning as in section
304B of the Indian Penal Code (45 of 1860
Question: Court may presume existence of certain facts, Explain and Illustrates?
Answer: The Court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events, human conduct and
public and private business, in their relation to the facts of the particular case. The
presumption herein referred to as the presumption of fact and as per the definition given
under section 4 of the evidence act in these cases court is not bound to presume anything
which is there under this section.
In Nawab Khan vs State 1990 cr l j. 1179, it was held by the court the moment the
prosecutrix with whom sexual intercourse is committed, disposes before the court that she
did not give the consent to sexual intercourse. Then the court shall presume that there was
no consent. in such a case if the accused claimed that there was consent then he has to
prove that the prosecutrix consented to the sexual intercourse.
Question: Oral evidence cannot be substituted for the written evidence, of any contract
which the parties have put into writing”. Explain and illustrates.

Answer: It will be noticed that Ss. 91 and 92 in effect supplement each other. Section 91
would be frustrated without the aid of S. 92, and S. 92 would be inoperative without the aid
of S. 91. Since S. 92 excludes the admission of oral evidence for the purpose of
contradicting, varying, adding to or subtracting from the terms of the document properly
proved under S. 91, it may be said that it makes the proof of the document conclusive of its
contents. Like S. 91, S. 92 also can be said to be based on the best evidence rule.
Section 91 applies to all documents, whether they purport to dispose of rights or not,
whereas S. 92 applies to documents which can be described as dispositive. S. 91 applies to
documents which are both bilateral and unilateral, unlike S. 92, the application of which is
confined only to bilateral documents.
THE BEST EVIDENCE RULE:
The Best Evidence rule,often called a “cardinal principle"of the Indian Evidence Act
requires proving by introducing an original document, and when the best possible evidence
is not adduced, it throws suspicion on the case and decreases the reliability of belief on any
other evidence that may be produced. Best evidence in case of documentary evidence is the
original copy of the document and oral evidence requires the witness to state as evidence
only something perceived by that person directly.
However, there have been several views against the Best Evidence Rule, stating the need
for a Secondary Evidence Rule allowing secondary evidence admissible to prove the
contents of a document. The claim is that the Best Evidence Rule is unnecessary in a
situation of broad pre-trial discovery due to swift technological developments in electronic
communications, because the object of the rule was to guard a party from any kind of fraud
and prevent misinterpretation of documents, which is highly possible due to pre-trial
discoveries.
The concept of Best Evidence can be seen as being embedded in the Indian Evidence Act,
1872 and as per Section 91, the original document is given prime importance as an element
of Best Evidence.
The subject under Section 91 is of principle because instruments are attributed a high level
of reliability when compared to parol evidence, and also a matter of policy because it
would not be correct if parties’ rights are affected by “loose collateral evidence". The
fundamental principle involved here is that any evidence wrongfully affecting interests of a
party is not to be entertained by the court of law in the interests of justice. However, there
are two exceptions provided under Section 91, in cases of public officers to be appointed in
writing and the officer has acted in that manner, then the writing may not be proved,as well
as in the case of wills where if admitted to probate in India can be proved using the probate
only.

This section applies when the entire contract is in writing and no oral evidence is accepted
pertaining to the written agreement as such. However, if only a part of the contract exists in
writing, then nothing prevents oral evidence being passed in case of the unwritten elements
of the contract. Also, if there has been absolutely no contract between the parties, then oral
evidence would be the best evidence available. Thus, in a transition from a no-contract
scenario to a situation with a contract, there is a co-ordinated shift towards documents
acting as the best evidence.
SECTION 92, INDIAN EVIDENCE ACT, 1872:
Section 92 extends to stating that oral evidence is not admissible to contradict or vary terms
of a contract which is strictly required by law to be in a written form. Section 92 deals with
the ‘Exclusion of evidence or oral agreement’ and states that when the terms of any
contract, grant or nature of property or any matter in the form of a document have been
proved as per Section 91, no statement about a subsequent oral contract should be admitted
to contradict or vary the document. When a contract has been reduced to writing, then the
written document would be most accurate proof representing the intention of the parties,
but there are certain conditions mentioned as exceptions in the form of provisos to Section
92.
Proviso (1) deals with a fact to be proved, which would nullify a document due to fraud,
intimidation, no due execution, illegality, incapacity of party, absence of consideration, or a
mistake in fact or law. Thus, this proviso deals with the agreements whose legality has been
impeached. For instance, a person cannot repudiate the onus of a lease contract and then
claim benefits out of the same. It is a submission that the rationale behind this exception is
the fact that when the contract is seen as fundamental to the transaction and the rights of the
parties depend on it, there ought to be room for the possibility of it being invalid and the
source of such a statement being in the form of oral evidence after the document has been
written, it ought to be admitted as valid evidence in the court of law.
In Angamuthu v R.Radhakrishnan, the plaintiff and defendants contracted for sale
of property, but the defendants began trying to alienate the property. So the plaintiff prayed
that he cannot file the suit for specific performance, while the defendant stated that there is
no privity of contract and disputed the genuineness of documents. He stated that under
Section 92, there is no scope to permit contradictions. The appellant contended that the
whole evidence was to demonstrate that despite documents, the parties had a different
contract altogether and it was never intended to be made. By virtue of Section 91, the terms
of the document should be read without referring to any other oral evidence and the
agreement was to be considered on its face value as to whether it was intended to be acted
upon. Section 92(1) states that it was alright for a party to contend through oral evidence
that the contract was not intended to be acted upon, but cannot merely seek to contradict
terms of the contract. Therefore, under Section 92, oral evidence would be valid only if the
contract is contradicted and not if the parties contend had a wholly different contract.

Proviso (2) speaks of the presence of oral agreements on issues which the document is
silent, in consistent with its terms which can be proved. It is under this proviso that oral
evidence is admissible with respect to issues which the document does not specifically
state, but the evidence adduced cannot be inconsistent with the written agreement. For
example, if a promissory note is silent with regard to the interest to be paid, an oral
statement giving evidence about the payment of evidence cannot be admissible in a court of
law.
Proviso (3) is concerned with the existence of a separate oral agreement with a condition
precedent with respect to the relationship between the parties through the contract. A
condition precedent is where, without the happening of a certain event, no obligation arises.
For example, if two persons agree that a contract is initiated only when a third party
approves, any party can prove the condition precedent and that he has not approved. Thus
only oral evidence to show that there was such condition precedent is allowed and nothing
else to vary the contract or its other terms.
Proviso (4) deals with the presence of a separate oral agreement with a condition precedent
relating to an obligation created by the contract, which can be proved unless the contract
has been required by law to be in writing or is registered. The original contract when
written or registered, the only method of proving amendment of the actual contract is by
like formality and not by adducing oral evidence.
Proviso (5) states of any custom or usage using which matters not mentioned in the contract
can be proved when the evidence, only if consistent with the contract, is adduced. In other
words, evidence giving explanation or adding an incident can be permitted only when it
does not data inconsistent with the written contract. For example, if by general usage, credit
for a month has been given to the buyer, such custom can be used to prove that the buyer is
rightfully entitled to the credit.
Proviso (6) states that any fact showing the manner of relation of language of the written
contract and the facts of the case can be proved. The defectiveness of a document, latent
ambiguity and making distinct the intention of the executant necessitate the allowing of
oral evidence by also looking at circumstantial considerations.
Question: What are the Privileged Communication? Under what Circumstances the
privilege can be claimed?
Answer: The privilege of a witness means the right of a witness to withhold evidence to
disclose certain matters. There are certain circumstances in which certain persons are not
compelled to testify (to give evidence). The right is based on the convenience and public
policy. Section 122 to Section 132 of Indian Evidence Act 1872 provide for privileged
Communications. Various Privileges of Witnesses under the Indian Evidence Act:

i) Judges and Magistrates : According to Section 121 of Indian Evidence Act 1872,
No Judge or Magistrate shall, except upon the special order of some Court of which he is
subordinate, be compelled to answer any questions as to his own conduct in Court as such
Judge or Magistrate, or as to any thing which came to his knowledge in Court as such
Judge or Magistrate but he may be examined as to other matters which occurred in his
presence whilst he was so acting.
ii) Communications during marriage : According to Section 122 of the said Act, No
person who is or has been married, shall be compelled to disclose any communication
made to him during marriage by any person to whom he is or has been married; nor shall
he be permitted to disclose any such communication, unless the person who made it, or his
representative in interest, consents, except in suits between married persons, or proceedings
in which one married person is prosecuted for any crime committed against the other.
iii) Evidence as to affairs of State
Section 123 of Indian Evidence Act says that "No one shall be permitted to give any
evidence derived from unpublished official records relating to any affairs of State, except
with the permission of the officer at the head of the department concerned, who shall give
or withhold such permission as he thinks fit".
iv) Official Communications
According to Section 124 of the said Act "No public officer shall be compelled to
disclose communications made to him in official confidence, when he considers that the
public interests would suffer by the disclosure.
v) Information as to commission of offences
Section 125 of Indian Evidence Act says that "No Magistrate or Police officer shall be
compelled to say whence he got any information as to the commission of any offence,
and no Revenue officer shall be compelled to say whence he got any information as to the
commission of any offence against the public revenue. Explanation “Revenue officer” in
this section means an officer employed in or about the business of any branch of the
public revenue".
vi) Professional Communication:
According to Section 126 of Indian Evidence Act 1872, No barrister, attorney, pleader or
vakil shall at any time be permitted, unless with his client’s express consent, to disclose
any communication made to him in the course and for the purpose of his employment as
such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the
contents or condition of any document with which he has become acquainted in the

course and for the purpose of his professional employment, or to disclose any advice
given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure —
(1) Any such communication made in furtherance of any illegal purpose;
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his
employment as such, showing that any crime or fraud has been committed since the
commencement of his employment. It is immaterial whether the attention of such
barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of
his client.
Question: Examination of Witnesses.
Answer: Part III , Chapter X, Section 135 to Section 166 of The Indian Evidence Act
Deals with the Provisions of Examination of witnesses.
Order of Production and Examination of Witness (Section 135)
The order in which witness are produced and examined shall be regulated by the law and
practice for the time being relating to civil and criminal procedure respectively, and in the
absence of any such law, by the discretion of the Court.
2) Judge to decide as to admissibility of evidence (Section 136)
When either party proposes to give evidence of any fact, the Judge may ask the party
proposing to give the evidence in what manner the alleged fact, if proved, would be
relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved,
would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof
of some other fact, such last-mentioned fact must be proved before evidence is given of
the fact first mentioned, unless the party undertakes to give proof of such fact and the
Court is satisfied with such undertaking.
If the relevancy of the alleged fact depends upon another alleged fact being first proved,
the Judge may, in his discretion, either permit evidence of the first fact to be given before
the second fact is proved or acquire evidence to be given of the second fact before
evidence is given of the first fact.
Illustrations
(a) It is proposed to prove a statement about a relevant fact by a person alleged to
be dead, which statement is relevant under section 32. The fact that the person is dead
must be proved by the person proposing to prove the statement, before evidence is given
of the statement.

(b) It is proposed to prove, by a copy, the contents of a document said to be lost. The fact
that the original is lost must be proved by the person proposing to produce the copy,
before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been stolen. It is
proposed to prove that he denied the possession of the property. The relevancy of the
denial depends on the identity of the property. The Court may, in its discretion, either
require the property to be identified before the denial of the possession is proved, or
permit the denial of the possession to be proved before the property is identified.
(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a
fact in issue. There are several intermediate facts (B, C and D) which must be shown to
exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The
Court may either permit A to be proved before B, C or D is proved, or may require proof
of B, C and D before permitting proof of A.
3) Examination of Witness: Stages in Examination of Witness (Section 137)
There are three Stages of Examination of Witness,
i)Examination-in-chief
The examination of a witness, by the party who calls him, shall be called his
examination-in-chief.
ii)Cross-examination
The examination of a witness by the adverse party shall be called his cross-examination.
iii)Re-examination
The examination of a witness, subsequent to the cross-examination by the party who
called him, shall be called his re-examination.
4) Leading Questions (Section 141 to Section 143):
Meaning:
The expression "Leading Questions" literally means a question which itself
suggest answer. As expected by the person asked the same, any questions which leads to
answer, or a question which is pregnant with the answer.
Definition:
Section 141 of the Indian Evidence Act 1872 defines 'Leading Questions' as, “Any
questions suggesting the answer which the person putting it wishes or expects to receive
is called a leading question."
Bentham:
Bentham defines leading questions as," A question is a leading one, when it

indicates to the witness the real or supposed fact which the examiner expects and desires
to have confirmed by the answer.
Examples
a) Is your name so and so?
b) Do you reside in such and such a place?
c) Are you not in service of such and such person?
d) Have you not lived with him for so many years?
e) Did you see him enter X's office and take a file?
It is clear that under this form every sort of information may be conveyed to the witness in
disguise. It may be used to prepare him to give the desired answers to the questions about to be
put to him; the examiner, while he pretends ignorance and is asking for information is, in reality,
giving instead of receiving it.
When leading Questions must not be asked (Section 142) :
Leading questions must not, if objected to by the adverse party, be asked in an examination-in-
chief, or in re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are introductory or
undisputed or which have, in its opinion, been already sufficiently proved.
When Leading Questions may be asked?
According to Section 143 of Indian Evidence Act 1872 Leading questions may be asked
in Cross-examination.
Examination as to matter in Writing (Section 144) :
Evidence as to matters in writing Any witness may be asked whilst under examination, whether
any contract, grant or other disposition of property as to which he is giving evidence, was not
contained in a document, and if he says that it was, or if he is about to make any statement as to
the contents of any document, which, in the opinion of the Court, ought to be produced, the
adverse party may object to such evidence being given until such document is produced, or until
facts have been proved which entitle the party who called the witness to give secondary evidence
of it.
Explanation
A witness may give oral evidence of statements made by other persons about the contents of
documents if such statements are in themselves relevant facts.

Illustration
The question is, whether A assaulted B. C deposes that he heard A, say to D – “B wrote a letter
accusing me of theft, and I will be revenged on him. “This statement is relevant as showing A’s
motive for the assault, and evidence may be given of it, though no other evidence is given about
the letter.
Cross-examination as to previous statements in writing (Section 145): A witness may be
cross-examined as to previous statements made by him in writing or reduced into writing and
relevant to matter in question, without such writing being shown to him, or being proved; but if it
is intended to contradict him by the writing, his attention must, before the writing can be proved,
be called to those parts of it which are to be used for the purpose of contradicting him.
Questions lawful in cross-examination (Section 146):When a witness is cross-examined, he
may, in addition to the questions hereinbefore referred to, be asked any questions which tend —
(1) To test his veracity,
(2) To discover who he is and what is his position in life, or
(3) To shake his credit, by injuring his character, although the answer to such questions might
tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to
expose him to a penalty or forfeiture.
Provided that in a prosecution for an offence under section 376, section 376A, section 376B,
section 376C, section 376D or section 376E of the Indian Penal Code (45 of 1860) or for attempt
to commit any such offence, where the question of consent is an issue, it shall not be permissible
to adduce evidence or to put questions in the cross-examination of the victim as to the general
immoral character, or previous sexual experience, of such victim with any person for proving
such consent or the quality of consent.
When witness to be compelled to answer (Section 147) :
If any such question relates to a matter relevant to the suit or proceeding, the provisions of
Section 132 shall apply thereto.
Court to decide when question shall be asked and when witness compelled to answer
(Section 148)
If any such question relates to matter not relevant to the suit or proceeding, except in so far it
affects the credit of the witness by injuring his character, the Court shall decide whether or not
the witness shall be compelled to answer it and may, if it thinks fit, warn the witness that he is
not obliged to answer it.
In exercising its discretion the Court shall have regard to the following considerations;

(1) Such questions are proper if they are of such nature that the truth of the imputation conveyed
by them would seriously affect the opinion of the Court as to the credibility of the witness on the
matter to which he testifies.
(2) Such questions are proper if they are of such nature that he truth of the imputation conveyed
by them would seriously affect the opinion of the Court as to the credibility of the witness on the
matter to which he testifies.
(3) Such questions are improper if there is a great disproportion between the importance of the
imputations made against the witness’s character and the importance of his evidence.
(4) The court may if it sees fit, draw from the witness’s refusal to answer, the in ference that the
answer if given would be unfavorable.
Question not to be asked without reasonable grounds (Section 149)
No such question as is referred to in Section 148 ought to be asked, unless the person asking it
has reasonable grounds for thinking that the imputation which it conveys is well-founded.
Illustrations
(a) A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a
reasonable ground for asking the witness whether he is a dakait.
(b) A pleader is informed by a person in court that an important witness is a dakait. The
informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This
is a reasonable ground for asking the witness whether he is a dakait.
(c) A witness, of whom nothing whatever is known, being questioned as to his mode of life and
means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if
he is a dakait.
(d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and
means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if
he is a dakait.
Procedure of Court in case of question being asked without reasonable grounds (Section
150)
If the court is of opinion that any such question asked was without reasonable grounds, it may, if
it was asked by any barrister, pleader, vakil or attorney report the circumstances of the case to
the High court or other authority to which barrister, pleader, vakil or attorney is subject in the
exercise of his profession.
Indecent and scandalous questions (Section 151)

The Court may forbid any question or inquiries which it regards as indecent or scandalous,
although such questions or inquiries may have some bearing on the questions before the Court
unless they relate to fact in issue or to matters necessary to be known in order to determine
whether or not the facts in issue existed.
Question intended to insult or annoy (Section 152)
The Court shall forbid any question which appears to it to be intended to insult or annoy, or
which, though proper in itself, appears to the Court needlessly offensive in form.
Exclusion of evidence to contradict answer to questions testing veracity (Section 153 )
When a witness has been asked and has answered any question which is relevant to the inquiry
only in so far as it tends to shake his credit by injuring his character, no evidence shall be given
to contradict him, but if he answers falsely, he may afterwards be charged with giving false
evidence.
Exception (1)If a witness is asked whether he has been previously convicted of any crime and
denies it, evidence may be given of his previous conviction.
Exception (2) If a witness is asked any question tending to impeach his impartiality, and answers
it by denying the facts suggested, he may be contradicted.
Illustrations
(a) A claim against an underwriter is resisted on the ground of fraud. The claimant is asked
whether, in a former transaction, he had not made a fraudulent claim. He denies it. Evidence is
offered to show that he did make such a claim. The evidence is inadmissible.
(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies
it. Evidence is offered to show that he was dismissed for dishonesty. The evidence is not
admissible.
(c) A affirms that on a certain day he saw B at Lahore. A is asked whether he himself was not on
that day at Calcutta. He denies it. Evidence is offered to show that A was on that day at Calcutta.
The evidence is admissible, not as contradicting A on a fact which affects his credit, but as
contradicting the alleged fact that B was seen on the day in question in Lahore. In each of these
cases the witness might, if his denial was false, be charged with giving false evidence.
(d) A is asked whether his family has not had a blood feud with the family of B against whom he
gives evidence. He denies it. He may be contradicted on the ground that the question tends to
impeach his impartiality.
Question by party of his own witness (Section 154)

LLB LAW NOTES ON LAW OF EVIDENCE

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