LAW EVIDENCE NOTES.doc

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LAW EVIDENCE NOTES

Q. "Evidence may be given of facts in issue and relevant facts." Explain.To ensure that a judicial process does not linger on for too long, courts cannot waste their time onthings that are not important for the case. While there can be many things for which evidence canbe given but evidence that does not bear on the case at hand, has no use for the court. This isthe concept behind Section 5 of Indian Evidence Act, 1872, which says that in any suit orproceeding, evidence may be given of the existence or non-existence of every fact in issue and ofsuch other facts as are hereinafter declared to be relevant, and of no others. A person is notallowed to bring forward any evidence to prove or disprove a fact that is neither a fact in issue ora fact that is relevant to the facts in issue. This statement refers to two kinds of facts - facts inissue and relevant facts. Let us see what they both mean -

Facts in IssueSection 3 defines facts in issue. According to this section, a fact in issue is a fact that directly orindirectly in connection with other facts, determines the existence, non-existence, nature, orextent of any right or liability that is asserted or denied in any suit or proceeding. In other words,facts in contention in a case are facts in issue. For example, A is accused of murder or B. In thiscase, the following are facts in issue -

1. A caused B's death.2. A had intention to kill B.3. A was insane.4. A received grave and sudden provocation from B.

All the above are facts in issue because they are in contention and they determine the liability ofA. Their truth increases or decreases the probability that A murdered B. Prosecution will have toestablish the facts that prove that A murdered B before A can be convicted. At the same time, theprosecution also has to disprove that any of the exceptions do not apply to A. A fact in issue isalso known by its latin term - factum probandum, which means fact to be proved.

A fact will be considered as fact in issue only if the fact is such that by itself or in connection toother facts it is crucial to the question of a right or liability. To be a fact in issue, a fact must satisfy

two requirements - the fact must be in dispute between the parties and the fact must touch thequestion of right or liability. The extent of rights and liabilities of parties depend on the ingredientsof an offence. In criminal matters, the allegations in the charge sheet constitute the facts in issue,while in a civil case, it depends on the provisions of the substantive law.

Relevant Facts(Q. What do you understand by relevancy of facts?)The word relevancy as such is not defined in Indian Evidence Act, 1872, however, the meaning ofthe word is quite clear. The word "relevancy" means the property of a thing that makes itconnected to the matter at hand. A thing is relevant to other when it has a relation to the otherthing that tells something appropriate about the other thing. Relevancy of a Fact means that thefact has a significant relation to another fact that is under consideration. When two facts have a

direct relation, they are relevant to each other. For relevancy it is necessary that if we take onefact, the other will be relevant only if there is a certain type of relation between them, which ispertinent in the given circumstances.

A relevant fact is also known by its latin term - factum probans, which means a fact that proves.Thus, if facts-in-issue are the facts to be proved or disproved in a trial, relevant facts are the factsthat help prove or disprove facts-in-issue. A fact is relevant if belief in that fact helps theconclusion of the existence or non-existence of another.


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Section 3 specifies that a Relevant fact is a fact is relevant to another when it is connected to theother in any of the ways referred to in the provisions contained in the act. Sections 6 to 55contains provisions that define the relationships that make a fact legally relevant or not relevant toanother. The relationship makes one fact more probable or improbable because of the other. Forexample, Fact A is that a person was given certain medication and he died. Fact B is that theperson was suffering from TB. Here, fact B is relevant to fact A because it throws light on thepossible causes of his death. Fact B makes is probable that he might have died because of TBinstead of the given medication.

In DPP vs Kilbourne, 1973, Lord Simon of Glaisdale has said, "Evidence is relevant if it is logicallyprobative or disprobative of some matter which requires proof. A relevant evidence is evidencethat makes the matter which requires proof more or less probable."

As is evident from Section 5 stated above, only those facts that are related to the facts in issuethrough relationships defined in Section 6 to 55 are legally relevant and evidence can be givenonly for those facts in a trial. It must be noted, however, that a relevant fact may not necessarilybe admissible.

Section 11 would be important to mention here. As per Section 11, in certain situations facts nototherwise relevant become relevant. This happens if they are inconsistent with any fact in issue

or relevant fact or if by themselves or in connection with other facts they make the existence ornon-existence of any fact in issue or relevant fact highly probable or improbable. For example, (a)The question is whether A committed a crime at Calcutta on a certain day - The fact that, on thatday, A was at Lahore is relevant. (b) The question is, whether A committed a crime. Thecircumstances are such that the crime must have been committed either by A, B, C or D. Everyfact which shows that the crime could have been committed by no one else and that it was notcommitted by either B, C or D is relevant. As is shown by these illustrations, an alibi is a verycommon example of an irrelevant fact becoming relevant.

Q. Explain the doctrine of Res Gestae. Do you agree with the view that this doctrine is not onlyuseless but is also harmful? / When does relevancy of facts form part of the same transaction?

Doctrine of Res Gestae

In a nutshell, Res Gestae means facts forming part of a transaction. This includes things doneand things said in the course of a transaction. Acts and declarations accompanying a transactionare treated as Res Gestae and are admissible in evidence. As discussed above, a Court isinterested only in such evidence that is bearing on a fact in issue or a relevant fact. This isimportant in limiting the scope of the trial to facts that are indeed important for the case so that

justice can be done swiftly.

However, in narrowing the scope of things that can be brought before the court, injustice shouldnot be done. The things that are reasonably connected to the facts in issue are usually veryimportant for a case and such facts must be allowed to be brought before the court whether theyfall into any of the sections that categorize the facts as relevant or not. This concept is espousedby Section 6. It says:

Section 6. Relevancy of facts forming part of same transaction - Facts which, though not in issueare so connected with a fact in issue as to form part of the same transaction, are relevant,whether they occurred at the same time and place or at different times and places.

What it means is that a fact in issue does not happen in isolation. It always has a factual storybehind it. A fact in issue lies in a pool of other facts that gives birth to it. This section makes allsuch facts relevant. The important thing to understand here is the meaning of the term"transaction". To be eligible under this section the fact must have occurred in the sametransaction in which the fact in issue occurred. "Occurring in the same transaction" is a wide termthat includes several kinds of things such as things that happened at the vicinity of the facts in


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issue, things that were done by the accused right after or before the facts in issue, things thatlead to facts in issue, and so on. The following illustrations explain the kind of facts that arecontemplated under this section:

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or theby-standers at the beating, or so shortly before or after is as to from part of the transaction, is arelevant fact.

(b) A is accused of waging war against the Government of India by taking part in an armedinsurrection in which property is destroyed, troops are attacked and goals are broken open. Theoccurrence of these facts is relevant, as forming part of the general transaction, though A may nothave been present at all of them.

(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between theparties relating to the subject out of which the libel arose, and forming part of the correspondencein which it is contained, are relevant facts, though they do not contain the libel itself.

(d) The question is whether certain goods ordered from B were delivered to A. the goods were

delivered to several intermediate persons successively. Each delivery is a relevant fact.

The principle that is highlighted by the above illustrations is that whenever "transaction" such as acontract or a crime, is a fact in issue, then evidence can be given of every fact which forms part ofthe same transaction. According to Stephen, a transaction is a group of facts so connectedtogether as to be referred to by a single name, as a crime, a contract, a wrong, or any othersubject of inquiry which may be in issue. Although Section 6 does not use the words Res Gestae,the concept behind this section is often referred to by this term. This pool of facts in which facts inissue happened is the "Res Gestae" of the facts in issue. Res Gestae is the surroundingcircumstances of the event to be proved.

Res Gestae and Hearsay EvidenceRes Gestae also refers to secondhand statements considered trustworthy for the purpose of

admission as evidence in a lawsuit when repeated by a witness because they were madespontaneously and concurrently with an event. Under the hearsay rule (Section 60 - Oralevidence must be direct), a court normally refuses to admit as evidence statements that a witnesssays he or she heard another person say. Traditionally, two reasons have made hearsayinadmissible: unfairness and possible inaccuracy. Allowing a witness to repeat hearsay does notprovide the accused with an opportunity to question the speaker of the original statement, and thewitness may have misunderstood or misinterpreted the statement. Thus, in a trial, counsel canobject to a witness's testimony as hearsay. The doctrine of Res Gestae is one of the manyexceptions to this rule. Since certain statements are made naturally, spontaneously, and withoutdeliberation during the course of an event, they carry a high degree of credibility and leave littleroom for misunderstanding or misinterpretation. The doctrine held that such statements are moretrustworthy than other secondhand statements and therefore should be admissible as evidence.

To be admissible, the statements must relate, explain, or characterize an event or transaction.They must be natural statements growing out of the event, as opposed to a narrative of a past,completed affair. Additionally, the statements must be spontaneous, evoked by the event itself,and not the result of premeditation. Finally, the original speaker must have participated in thetransaction or witnessed the event in question. Thus, for example, a witness might testify thatduring a bank robbery, she or he heard another person shout, "That person is robbing the bank!"and the statement could be admitted as an exception to the ban on hearsay. Illustration (a) aboveis an example of such statement.


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Usefulness of Res GestaeAs per Phillip's Treatise on Evidence, the reason why the term Res Gestae has been avoidedfrom Section 6 is because this doctrine has been productive of confusion. There can benumerous facts that surround the facts in issue. They can all be somehow linked with the sametransaction. There is no clearcut rule that can demarcate a transaction. So it is entirely left to theexperience and intuition of the Judges to determine whether a particular fact can be included inRes Gestae or not. This is evident from the following two cases. In the case of R vs Foster 1843,accused was charged with manslaughter in killing a person by driving over him. A witness sawthe vehicle driven fast but did not see the accident. Immediately after, on hearing the victimgroan, he went up to him and asked him what happened. The deceased then made a statementas to the cause of the injury. The court held that what the deceased said at the instant, as to thecause of the accident is clearly admissible.

As a contrast, in the case of R vs Beddingfield 1879, a woman, with her throat cut, camesuddenly out of a room, in which she had been injured. Shortly before she died, she said, "Ohdear Aunt, see what Beddingfield has done to me." This statement was not accepted as ResGestae. According to CJ Cockburn, anything uttered while the crime was being done would beadmissible but here, what she said was said after the crime was all over.

Thus, it can be seen that the doctrine of Res Gestae does not produce same results in verysimilar situations. This certainly causes confusion in the minds of novice lawyers and judges. My

belief is that this principle should be applied when common sense dictates so. Like any otherprinciple, this principle is also not a precise instrument to measure relevancy. It is only a guidethat can help decide whether a fact is sufficiently relevant to a fact in issue. The final decisionrests with the Judge, who should decide depending on the peculiarities of the case.

I do not agree that this doctrine is harmful for the simple reason that this doctrine is not a rigidrule of law. It should be applied only when suitable.

Q. What facts are relevant under Indian Evidence Act?

Sections 6 to 55 of Indian Evidence Act describe the facts that are deemed relevant. These areas follows - [TrOcMI ConODC SABADOJOC]

Section 6 - Relevancy of facts forming part of same transaction - Facts which, though not inissue, are so connected with a fact in issue as to form part of the same transaction, are relevant,whether they occurred at the same time and place or at different times and places. For example -(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or theby-standers at the beating, or so shortly before or after it as to form part of the transaction, is arelevant fact.Section 7 - Facts which are the occasion, cause or effect of facts in issue - Facts which are theoccasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or whichconstitute the state of things under which they happened, which afforded an opportunity for theiroccurrence or transaction, are relevant.For example - a) The question is, whether A robbed B. The facts that, shortly before the robbery,

B went to a fair with money in his possession, and that he showed it or mentioned the fact that hehad it, to third persons, are relevant.Section 8 - Motive, preparation and previous or subsequent conduct - Any fact is relevant whichshows or constitutes a motive or preparation for any fact in issue or relevant fact -For example - (a) A is tried for the murder of B - The facts that A murdered C, that B knew that Ahad murdered C, and that B had tried to extort money from A by threatening to make hisknowledge public, are relevant -


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Section 9 - Facts necessary to explain or introduce relevant facts - Facts necessary to explain orintroduce a fact in issue or relevant fact, or which support or rebut an inference suggested by afact in issue or relevant fact, or which establish the identity of any thing or person whose identityis relevant, or fix the time or place at which any fact in issue or relevant fact happened, or whichshow the relation of parties by whom any such fact was transacted, are relevant in so far as theyare necessary for that purpose -For example, (a) The question is, whether a given document is the will of A - The state of A'sproperty and of his family at the date of the alleged will may be relevant facts -Section 10 - Things said or done by conspirator in reference to common design - Where there isreasonable round to believe that two or more persons have conspired together to commit anoffence or an actionable wrong, anything said, done or written by any one of such persons inreference to their common intention, after the time when such intention was first entertained byany one of them, is a relevant fact as against each of the persons believed to be so conspiring, aswell for the purpose of proving the existence of the conspiracy as for the purpose of showing thatany such person was a party to it -Section 11 - When facts not otherwise relevant become relevant - Facts not otherwise relevantare relevant - (1) if they are inconsistent with any fact in issue or relevant fact; (2) if bythemselves or in connection with other facts they make the existence or non-existence of any fact

in issue or relevant fact highly probable or improbable -For example, (a) The question is whether A committed a crime at Calcutta on a certain day -

The fact that, on that day, A was at Lahore is relevant -Section 12 - In suits for damages, facts tending to enable Court to determine amount are relevant- In suits in which damages are claimed, any fact which will enable the Court to determine theamount of damages which ought to be awarded, is relevant -Section 13 - Facts relevant when right or custom is in question - Where the question is as to theexistence of any right or custom, the following facts are relevant:-(a) any transaction by which the right or custom in question was created, claimed, modified,recognized, asserted or denied, or which was inconsistent with its existence:(b) particular instances in which the right or custom was claimed, recognized or exercised, or in

which its exercise was disputed, asserted or departed from -For example - The question is whether A has a right to a fishery - A deed conferring the fisheryon A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A'sfather, irreconcilable with the mortgage, particular instances in which A's father exercised theright, or in which the exercise of the right was stopped by A's neighbors, are relevant facts -Section 14 - Facts showing existence of state of mind, or of body, of bodily feeling - Factsshowing the existence of any state of mind, such as intention, knowledge, good faith, negligence,rashness, ill-will or good-will towards any particular person, or showing the existence of any stateof body or bodily feeling, are relevant, when the existence of any such state of mind or body orbodily feeling, is in issue or relevant -For example, (a) A is accused of receiving stolen goods knowing them to be stolen - It is proved

that he was in possession of a particular stolen article - The fact that, at the same time, he was in

possession of manyother stolen articles is relevant, as tending to show that he knew each and all of the articles ofwhich he was in possession to be stolen -Section 15 - Facts bearing on question whether act was accidental or intentional - When there isa question whether an act was accidental or intentional, or done with a particular knowledge orintention, the fact that such act formed part of a series of similar occurrences, in each of whichthe person doing the act was concerned, is relevant -


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For example, (a) A is accused of burning down his house in order to obtain money for which it isinsured - The facts that A lived in several houses successively each of which he insured, in eachof which a fire occurred, and after each ofwhich fires A received payment from a different insurance office, are relevant, as tending to showthat the fires were not accidental -Section 16 - Existence of course of business when relevant - When there is a question whether aparticular act was done, the existence of any course of business, according to which it naturallywould have been done, is a relevant fact -For example, (a) The question is, whether a particular letter was dispatched - The facts that it wasthe ordinary course of business for all letters put in a certain place to be carried to the post, andthat particular letter was put in that place are relevant -Sections 17 to 31 - Admission of facts by particular persons is relevant.Sections 32 and 33 - Statements by persons who cannot be called witness in specifiedcircumstances are with definite conditions are relevant.

Sections 34 to 38 - Statements made in an extra ordinary circumstance, any statement made onany law which is inserted in some books, is relevant.

Sections 40-44 - Judgments of courts are relevant in certain situations.

Sections 45-51 - Opinion of third person is relevant in certain situations.

Sections 52-55 - Character of a person is relevant in certain situations.

Q. Are those facts also relevant which are the occasion, cause, or effect of facts in issue?Yes, facts because of which facts in issue take birth, or facts which take birth because of facts isissue are also considered relevant fact. Evidence can be given for the set of circumstances underwhich the principle facts occurred. As per Section 7 - Facts which are the occasion, cause oreffect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state ofthings under which they happened, which afforded an opportunity for their occurrence or

transaction, are relevant.Illustrations -

(a) The question is, whether A robbed B. The facts that, shortly before the robbery, B went to afair with money in his possession, and that he showed it or mentioned the fact that he had it, tothird persons, are relevant.

(b) The question is, whether A murdered B. Marks on the ground, produced by a struggle ator near the place where the murder was committed, are relevant facts.

(c) The question is, whether A poisoned B. The state of B's health before the symptomsascribed to poison, and habits of B, known to A, which afforded an opportunity for theadministration of poison, are relevant facts.

This section include following types of facts -1. Occasion - Occasion means the circumstances in which an event occurred. Evidence of such

circumstance is eligible to given. For example, in the case of R vs Richardson, where a personwas charged with the rape and murder of a girl, the fact that the girl was alone in her cottage atthe time of her murder is relevant because it provided the occasion in which the crime happened.

2. Cause - Facts that form the cause of facts in issue are relevant. For example, A is charged ofcriminal misappropriation of funds from a bank. The fact that A was hugely in debt at the time ofcommitting the crime is a relevant fact because it indicates a possible cause of the commission ofthe crime. This is similar to motive as given in Section 8. However this may not always be thecase. For example, in the case of Indian Airlines vs Madhuri Chaudhury AIR 1965, the report of


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an Inquiry Commission relating to an air crash was held relevant under Section 7 as establishingthe cause of the accident.

3. Effects - Every act causes some effect that leads to some other happening. These effects notonly record the happening of the main act but also throws light upon the nature of the act. Forexample, where a person is poisoned, the symptoms produced are effects of the fact in issue andso are relevant.

4. Opportunity - Circumstances which provide an opportunity for the happening of a fact in issueare relevant. For example, a break from the daily routine of a person may be the opportunity thatis used the person to commit the crime. For example, in R vs Richardson, the fact thatRichardson left his fellow workers at about the time of murder under the pretense of going to asmith's shop is relevant because it provided an opportunity for the fact in issue, namely her rapeand murder, to happen.

5. State of Things - Facts which constitute the state of things under which or in the background ofwhich the principle facts happened are relevant. For example, in the fact ore Rattan vs Reginum,

AIR 1971, a person shot his wife and his plea was that it was an accident. The fact that he wasunhappy with his wife and was having an affair with another woman, was held to be a relevantfact.

Q. "Any fact is relevant which shows or constitutes a motive or preparation and conduct of anyfact in issue or relevant fact". Explain.This statement is taken from Section 8 of Indian Evidence Act, which is as follows -Section 8 - Motive, preparation and previous or subsequent conduct - Any fact is relevant whichshows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct ofany party, or of any agent to any party, to any suit or proceeding, in reference to such suit orproceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of anyperson an offence against whom is the subject of any proceeding, is relevant, if such conductinfluences or is influenced by any fact in issue or relevant fact, and whether it was previous orsubsequent thereto.

Explanation 1 - The word "conduct" in this section does not include statements, unless those

statements accompany and explain acts other than statements; but this explanation is not toaffect the relevancy of statements under any other section of this Act.Explanation 2 - When the conduct of any person is relevant, any statement made to him or in hispresence and hearing, which affects such conduct, is relevant.

Illustrations(a) A is tried for the murder of B. The facts that A murdered C, that B knew that A had murderedC, and that B had tried to extort money from A by threatening to make his knowledge public, arerelevant.(b) A sues B upon a bond for the payment of money. B denies the making of the bond. The factthat, at the time when the bond was alleged to be made, B required money for a particularpurpose, is relevant.(c) A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison

similar to that which was administered to B, is relevant.(d) The question is, whether a certain document is the will of A. The facts that, not long before thedate of the alleged will, A made inquiry into matters to which the provisions of the alleged willrelate, that he consulted vakils in reference to making the will, and that he caused drafts of otherwills to be prepared of which he did not approve, are relevant.(e) A is accused of a crime. The facts that, either before or at the time of, or after the allegedcrime, A provided evidence which would tend to give to the facts of the case an appearancefavorable to himself, or that he destroyed or concealed evidence, or prevented the presence orprocured the absence of persons who might have been witnesses, or suborned persons to givefalse evidence respecting it, are relevant.


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(f) The question is, whether A robbed B. The facts that, after B was robbed, C said in A'spresence- "the police are coming to look for the man who robbed B," and that immediatelyafterwards A ran away, are relevant.(g) The question is, whether A owes B rupees 10,000. The facts that A asked C to lend himmoney, and that D said to C in A's presence and hearing- "I advise you not to trust A, for he owesB 10,000 rupees," and that A went away without making any answer, are relevant facts.(h) The question is, whether A committed a crime. The fact that A absconded after receiving aletter warning him that inquiry was being made for the criminal, and the contents of the letter, arerelevant.(i) A is accused of a crime. The facts that, after the commission of the alleged crime, heabsconded, or was in possession of property or the proceeds of property acquired by the crime,or attempted to conceal things which were or might have been used in committing it, are relevant.(j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, shemade a complaint relating to the crime, the circumstances under which, and the terms in which,the complaint was made, are relevant. The fact that, without making a complaint, she said thatshe had been ravished is not relevant as conduct under this section, though it may be relevant asa dying declaration under section 32, clause (1), or as corroborative evidence under section 157.(k) The question is, whether A was robbed. The fact that, soon after the alleged robbery, he madea complaint relating to the offence, the circumstances under which, and the terms in which, thecomplaint was made, are relevant. The fact that he said he had been robbed without making any

complaint, is not relevant, as conduct under this section, though it may be relevant as a dyingdeclaration under section 32, clause (1), or as corroborative evidence under section 157.

This section provides for the relevancy of three principal facts which are very important inconnection with any case, namely, Motive, Preparation, and Conduct.

Motive - Motive is the power that impels one to do an act. It is a kind of inducement for doing theact. Motive by itself is not a crime but is helpful in establishing guilt. Evidence of motive helps thecourt connect the accused with the deed and is so very relevant. For example, on the murder ofan old widow, the fact that the accused was to inherit her wealth was held as relevant as itshowed that the accused had the motive to kill her. In another case, a woman who a goodswimmer had drown and the fact that the accused, her husband, was having an affair withanother woman was held relevant as it explained the motive behind the murder.

Preparation - The acts of preparation for a crime are relevant. Preparation by itself is not a crime(except in certain offenses such as waging a war against Govt. of India) but the facts that showthe preparation tie the preparer to the actual crime and so are relevant. For example, act ofpurchasing a poison shows the preparation of the murder by administering poison.

Conduct - The state of mind of a person is often reflected in his conduct and so conduct of aperson is a relevant fact. This section makes the conduct of any party to a civil suite or theiragents relevant. In a criminal case, the conduct of the accused before, while, or after doing theact is deemed relevant. However, two conditions must be fulfilled for the conduct to be relevant -

1. The conduct must be in reference to the facts in issue or the facts related to them.2. The conduct is such as influences or is influenced by the facts in issue or relevant facts.

Q. When do facts not otherwise relevant become relevant?A fact, which does not have any such relation as defined in Section 6 to 55 to the fact in issue is

not a relevant fact and ordinarily evidence cannot be given for such a fact. However, when anirrelevant fact is such that it makes the existence or non-existence of a fact in issue highlyprobable or improbable, it becomes very important for the case because it helps the court todetermine the truth. Such a fact ought to be brought before the court. This is the conceptembodied in Section 11. It says the following : Section 11 - Facts not otherwise relevant, arerelevant. (1) if they are inconsistent with any fact in issue or relevant fact; (2) if, by themselves


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or in connection with other facts they make the existence or non-existence of any fact in issue orrelevant fact highly probable or improbable.

Illustrations (a) The question is, whether A committed a crime at Calcutta on a certain day.The fact that, on that day, A was at Lahore, is relevant.The fact that, near the time when the crime was committed, A was at a distance from the place

where it was committed, which would render it highly improbable, though not impossible, that hecommitted it, is relevant.

(b) The question is, whether A committed a crime.The circumstances are such that the crime must have been committed either by A, B, C or D.

Every fact which shows that the crime could have been committed by no one else and that it wasnot committed by either B, C or D is relevant.

As given in illustrations above, an alibi is a very common example of an irrelevant fact becomingrelevant. Indeed, if a person is proved to be not at the location of the crime at the time of thecrime, he cannot have committed the crime. However, the burden of proof is on the accused andstrict evidence is required to establish such pleas For example, in case of Mithilesh Upadhyayavs State of Bihar, 1997, the accused stated that he was in the hospital at the time of crime but didnot give any supporting documents. His plea was not accepted.It must be noted that this section is quite wide in its scope. It does not place any restriction uponthe range of facts that can be admitted as showing inconsistencies or probabilities. Any fact thatmakes the existence of a fact in issue highly probable or improbable is covered. JAMES

FITZAMES STEPHEN, the author on Indian Evidence Act in his book Introduction To The IndianEvidence Act, observed that the facts relevant under S. 11 would, in most cases, be relevantunder other sections. The object of drawing the act in this manner was that the general ground onwhich facts are relevant might be stated in so many and popular forms as possible, so that if afact is relevant its relevancy may be easily ascertained.

However, many facts can be connected to facts in issue or relevant facts through a long chain ofratiocination but that will unnecessarily complicate the trial and will be detrimental to speedy

justice. Thus, to limit the the facts which are covered in this section, we need to understand whichfacts are not relevant. Irrelevant facts are the facts that come under the rules of exclusion, namely- facts that come under hearsay and facts that come under the principle - a transaction betweentwo parties ought not be operate to the disadvantage of the third. Example of facts under hearsayis, "Mr. X said that Mr. Y is corrupt" or "Everybody says a certain officer is corrupt." This fact is

hearsay and is legally irrelevant. Examples of second type of facts include - statements madebehind the back of a person against whom they are sought to be used as evidence, similarunconnected transactions, and opinion of third parties. Rule in section 11 makes such factsrelevant if they are inconsistent with the facts in issue or make their existence or non existencehighly probable. Thus, the only criteria for giving evidence of fact under section 11 is that it shouldmake the existence of a fact in issue highly probable or improbable. In Ram Kumar Panday vsState of MP, 1975, it was held that important omissions would be relevant under this rule.

Q. How far is character relevant and admissible in evidence in civil and criminal cases?

A character of a person is a very vague and subjective aspect. It is at best imprecise and at worstdangerous to draw an inference about the liability of a person from his character. Therefore, the

general rule is that character of a person is not relevant for establishing guilt. However, there arecertain exceptional situations where character of a person is important for the case. Provisionsregarding the relevancy of character are specified in Sections 52, 53, 54, and 55. There aredifferent rules about relevancy of character in civil and criminal cases.

Relevancy in Civil Cases

Section 52 lays down a general principle for civil suits that the evidence of a party's charactercannot be given to show that the conduct attributed to the party is probable or improbable. Thismeans that a defendant cannot show his good character as evidence to prove that his would not


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have said defamatory things about the plaintiff and similarly the plaintiff cannot show previousbad character of the defendant as evidence to prove that the defendant must have saiddefamatory things about the plaintiff. This principle was laid down in a very old case of AttorneyGeneral vs Bowman, 1771. In this case a man was tried for a penal action, and not for a criminalprosecution, for carrying false weights and offering to corrupt an officer. He called a witness totestify that he was a man of good character and conduct. This was not admitted by the court.Further, as held in Hollington vs Hewthorn & Co ltd, 1943, which is also known as rule inHollington vs Hewthron, previous criminal conviction cannot be given to show the bad characterof a person in a civil suit. In this case, an action was brought against the defendant for damagescaused by the defendant's negligent driving of a motor car. The defendant had also beenprosecuted for the same accident and convicted. The plaintiff sought to give evidence of thisconviction in proof of the fact that he was guilty of careless driving. However, the evidence wasnot accepted as admission on the ground that conviction by a criminal court is at best an opinionof that court that the defendant was guilty and such opinion is not admissible.

Exceptions -1. When character appears from other relevant evidence - Second part of Section 52 providesthat if a fact is otherwise relevant to the case then the conclusion about a party's character maybe drawn from such fact. An otherwise relevant fact cannot be excluded from evidence merely

because it incidentally throws light upon a party's character. For example, a journalist is describedas an exploiter and he sues for damages for defamation and the defendant takes the defense thatwhatever the defendant has said is true. Now, the defendant will have to give evidence to provethe exploitation which the plaintiff has been practicing. Such evidence will also bring to light thereal character of the plaintiff and the court can take note of this.

2. When character itself is in issue - Section 54 says that previous bad character is not relevant,except in reply. However, Explanation 1 to this section specifies that this rule does not applywhen character itself is a fact in issue. For example, in a divorce case on the ground of cruelty,the cruel character of the defendant is a fact in issue and evidence can be given in support of thatprevious bad character.

3. Determination of damages - Section 55 allows the character of the plaintiff to be considered

as relevant for determining the amount of damages that he ought to receive. An early Englishcase on this aspect is of Scott vs Sampson, 1882. In this case a journalist was suing thedefendant for libel. The defendant tried to show the character of the plaintiff but the trial judgerefused to admit it. Upon appeal for retrial, J Cave, held that the evidence should have beenallowed to be admitted. He remarked that if the plaintiff claims an injury to his reputation, the juryshould know whether he is a man of reputation or not before awarding any damages. If evidenceabout the character of the plaintiff is not allowed then there will be no difference between anhonorable person and a cheat. A virtuous woman will be kept at the same level with a prostitute.To enable a jury to estimate the quantum of injury sustained, the knowledge of party's characteris relevant.

Relevancy in Criminal Cases

Section 53 lays down the general principle that in criminal proceedings the fact that the personaccused is of a good character is relevant and Section 54 lays down that the fact that theaccused is of a bad character is irrelevant in criminal proceedings. Thus, every accused is at aliberty to show that he is a person of good character. As J Cockburn has observed, the fact that aman has unblemished reputation leads to a presumption that he is incapable of committing thecrime for which he is being tried. On the other hand, the prosecution cannot submit evidence toshow bad character of the accused. However, as per Section 54, if a person gives evidence of hisgood character then the opposite party is allowed to give evidence of his bad character as a


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reply. Opposite party cannot give evidence of bad character in its original case. It can do so onlyas a reply.

Exceptions -1. Evidence for bad character can be given by the prosecution but only as a reply to the evidenceof good character.2. When character itself is in issue, evidence of bad character may be given.3. When a fact is otherwise relevant, it can be submitted even if incidentally reveals the characterof the accused.4. The prosecution is allowed to cite a previous conviction as evidence of bad character of theaccused. Regarding this provision, Lord Denning has observed in the case of Goody vs OldhamPress Ltd, 1967, that previous convictions are a class in itself. They are the raw material uponwhich bad reputation is built up. They have taken place in an open court and are of publicknowledge. They are very different from previous misconducts that are not tried in a court andwhich therefore might lead to dispute. But previous convictions offer not possibility of suchdisputes and so are relevant and admissible.

Q. What facts need not be proved?

Generally, if a fact is alleged by any party to a suit or criminal case, that party has to provide proofof the truthfulness of that fact to the court. However, Indian Evidence Act allows the court toaccept certain kinds of facts without any necessity to be proven by any party. These kinds of factsare specified in Section 56, 57, 58, and 114. The provisions in these sections are as follows -

Section 56 - Facts judicially noticeable need not be proved - No fact of which the Court will takejudicial notice need be proved. This means that if the court is bound to take notice of a particularfact, the parties do not have the burden of proving that fact. It is part of the judicial function toknow that fact. For example, the court is bound to know the various laws and customs of thecountry. A party does not need to provide any proof when stating any law. Facts for which a courtwill take judicial notice are specified in Section 57. These include Laws in force in India, Public

Acts of Parliament, Local, and person acts declared by it to be judicially noticed, Articles of War

for Indian armed forces, the rule of the road, land, or sea, that vehicles in India must keep to theleft of a road etc, the territories under the dominion of Govt. of India. In all these case, the courtmay resort appropriate books or documents of reference for its aid. Also, the matters enumeratedin this section are not exhaustive. The section merely provides that the court must take judicialnotices of the facts enumerated in this section. It does not prohibit the court from takings judicialnotice of any other facts. To understand this point, we need to look at the meaning of judicialnotice -

Meaning of "Taking Judicial Notice" - It means recognition of something as existing or as beingtrue without having any proof. Judicial notice is based upon reasons of convenience andexpediency. Certain things are so commonly known that any ordinary person is aware of it and itis a waste of time to seek any proof for such things. For example, it is a commonly known factthat certain parts of MP, Bihar, and AP are naxalite affected or that J&K is a terror striken area. A

court does not need to spend time in looking for its proof. Thus, judicial notice is the cognizancetaken by the court itself of certain matter which are so notorious or clearly established that theevidence of their existence is unnecessary. For example, in the case of Managing Committee ofRaja Sidheshwar High School vs State of Bihar, AIR 1993, the court took judicial notice of the factthat education in the state was virtually crumbled. In another case, court took judicial notice of thefact that several blind persons have acquired great academic distinction. If the court is calledupon by a person to take judicial notice of a fact, it may refuse to do so unless and until suchperson produces any such book or document as it may consider necessary to enable it to do so.The basic requirement for taking judicial notice is that the fact has to be of a class that is sogenerally as to give rise to the presumption that all persons are aware of it. However, a judge


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cannot bring his personal knowledge into judicial notice if that knowledge is not public knowledge.Just because a judge knows something does not make it a thing of common knowledge.J Chandrachud observed that a court does not operate in ivory tower. It can take cognizance offacts that are happening all around it. Shutting judicial eye to the existence of such facts andmatters is in a sense an insult to common sense and would reduce the judicial process to ameaningless and wasteful trial. No court therefore need to insist upon a formal proof of notoriousfacts such as date of polls, passing away of an eminent person, or events that have rocked thenation.

Section 58 - Facts admitted need not be proved - No fact need be proved in any proceedingwhich the parties thereto or their agents agree to admit at the hearing, or which, before thehearing, they agree to admit by any writing under their hands, orwhich by any rule of pleading in force at the time they are deemed to have admitted by theirpleadings. Provided that the Court may, in its discretion, require the facts admitted to be provedotherwise than by such admissions.

This basically means that if a fact has been admitted by a party, the other party need not provideproof of that fact. For example, admissions made in written statements, or things said before andaccepted to be said in the trial need not be proved. in averments made in a petition that havenot been controverted by the respondent carry the weight of a fact admitted.

However, an admission may not necessarily constitute conclusive evidence of the fact admitted.Therefore, this section allows the court to ask for some other proof of the admitted fact. This is adiscretionary power of the court.

Section 114 - Court may presume existence of certain facts - The Court may presume theexistence of any fact which it thinks likely to have happened, regard being had to the commoncourse of natural events, human conduct and public and private business, in their relation to thefacts of the particular case. For example, a person may be presumed to be dead if hiswhereabouts are not known for seven years. Such facts need not be proven.

Q. Discuss the law regarding competency of a witness? (Sections 118-121) Can a wife be acompetent witness against her husband? (Section 120)

The modern judicial system is based on evidence. The knowledge of how an event happened isarrived at by the court through witnesses. As BENTHAM said, "Witnesses are the eyes and earsof justice." The court gives its finding based on the evidence given by witnesses. It is important,therefore, to understand who can and cannot be a competent witness. Section 118 of IndianEvidence Act, 1872, contains the provisions for determining a competent witness.

Section 118. Who may testify? - All persons shall be competent to testify unless the Courtconsiders that they are prevented from understanding the question put to them, or from givingrational answer to those questions, by tender years, extreme old age, disease, whether of bodyand mind, or any other cause of the same kind.

Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy fromunderstanding the question put to him and giving rational answers to him.

As is evident from Section 118, in general, nobody is barred from being a witness as long as he isable to understand the questions that are put to him as well as is able to give rational replies tothose questions. There may be several reasons because of which a person may not be able tocomprehend the questions and/or is unable to reply coherently. This section does not attempt todefine all such reasons but gives examples of such reasons such as young age (in case of achild), mental illness, or extreme old age. It is up to the court to determine whether a person isable to understand the questions or give rational answers. Thus, competency is a rule, whileincompetency is an exception. Even a lunatic is considered a competent witness if his lunacydoes not prevent him from understanding the questions and giving rational answers.


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Child WitnessA young child, if he is able to understand the questions and is able to reply rationally, is acompetent witness even if he is of a tender age. For example, in the case of Jai Singh vs State,1973, Cr LJ, a seven year old girl who was the victim of attempted rape was produced as awitness and her testimony was held valid.It has been held in several early cases that a child under the age of seven years can be acompetent witness if, upon the strict examination of the court, the child is found to understand thenature and consequences of an oath. For example, in Queen vs Seva Bhogta, 1874, a ten yearold girl, who was the only eye witness of a murder was made a witness. She appeared to beintelligent and was able to answer questions frankly and without any hesitation. However, shewas not able to understand the meaning of oath. It was held that her unsworn evidence wasadmissible in the given circumstances. The same was observed in Rameshwar Kalyan Singh vsState of Rajasthan AIR 1952, where the accused was charged with the offence of rape of a girl of8 years of age. It was held that ommission of oath only affects the credibility of the witness andnot competency of the witness. The question of competency is determined by section 118, andthe only ground that is given for incompetency is the inability to comprehend the questions orinability to give rational answers.

The supreme court however has emphasised the need for carefully evaulating the testimony of a

child. Adequate corroboration of his testimony must be looked from other evidence.

Dumb WitnessSection 119 - A witness who is unable to speak may give his evidence in any other manner inwhich he can make it intelligible, as by writing or by signs; but such writing must be written andthe signs made in open Court. Evidence so given shall be deemed to be oral evidence.

Competency of a wife as a witness against her husbandAs per Section 120, in all civil proceedings the parties to the suit, and the husband or wife of anyparty to the suit, shall be competent witnesses. Further, in criminal proceedings against anyperson, the husband or wife of such person, respectively, shall be a competent witness.Thus it is pretty clear that the spouse of a person can be a competent witness against thatperson. For example, in the case of Shyam Singh vs Shaiwalini Ghosh, AIR 1947, Calcutta HC

held that Husband and wife are both competent witness against each other in civil and criminalcases. They are competenet witness to prove that there has been no conjugation between themduring marriage.

Although not mentioned in the act, it has been held in several cases that provisions of this sectionare subject to Section 122, which makes the communication between a husband and wifeprivileged.

Competency of AccusedAs per Section 315 of Cr P C, an accused is a competent witness. He can given evidence on hisbehalf, but if he does not, no comment can be made against the accused or adverse inference bedrawn against him.

Competency of an Accomplice

Accomplice - An accomplice is a person who has taken part, whether big or small, in thecommission of an offence. Accomplice includes principles as well as abettors.Not an Accomplice - person under threat commits the crime, person who merely witnesses thecrime, detectives, paid informers, and trap witnesses

Generally, a small offender is pardoned so as to produce him as a witness against the biggeroffender. However, evidence by an accomplice is not really very reliable because - 1) he is likelyto swear falsely in order to shift blame, 2) as a participator in a crime, he is a criminal and is likelyimmoral, and so may disregard the sanctity of oath, and 3) since he gives evidence in promise ofa pardon, he will obviously be favorable to prosecution.


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Even so, an accomplice is allowed to give evidence. As per Section 133, he is a competentwitness against the accused and a conviction based on his evidence is not illegal merely becausehis evidence has not been corroborated. At the same time, Section 114 (b) contains a provisionthat allows the Court to presume that an accomplice is unworthy of credit, unless he iscorroborated in material particular. The idea is that since such a witness is not very reliable, hisstatements should be or verified by some independent witness. This is interpreted as a rule ofcaution to avoid mindless usage of evidence of accomplice for producing a conviction.

Since every case is different, it is not possible to precisely specify a formula for determiningwhether corroborative evidence is required or not. So some guiding principles were propoundedin the case of R vs Baskerville, 1916. According to this procedure -1. It is not necessary that there should be an independent confirmation of every detail of the crimerelated by the accomplice. It is sufficient if there is a confirmation as to a material circumstance ofthe crime.2. There must at least be confirmation of some particulars which show that the accusedcommitted the crime.3. The corroboration must be an independent testimony. i.e one accomplice cannot corroborateother.4. The corroboration need not be by direct evidence. It may be through circumstantial evidence.

This rule has been confirmed by the Supreme Court in Rameshwar vs State of Rajasthan, 1952.

Accomplice and Co-accusedThe confession of a co-accused (S. 30) is not treated in the same way as the testimony of anaccomplice because -1. The testimony of an accomplice is taken on oath and is subjected to cross examination and sois of a higher probative value.2. The confession of a co-accused can hardly be called substantive evidence as it is not evidencewithin the definition of S. 3. It must be taken into consideration along with other evidence in thecase and it cannot alone form the basis of a conviction. While the testimony of an accomplicealone may be sufficient for conviction.

Q. What do you understand by Admission?

General Concept of Admission -In general, Admission is a voluntary acknowledgment of a fact. Importance is given to thoseadmissions that goes against the interests of the person making the admission. For example,when A says to B that he stole money from C, A makes an admission of the fact that A stolemoney from C.This fact is detrimental to the interests of A. The concept behind this is that nobodywould accept or acknowledge a fact that goes against their interest unless it is indeed true.Unless A indeed stole money from C, it is not normal for A to say that he stole money from C.Therefore, an admission becomes an important piece of evidence against a person. On the otherhand, anybody can make assertions in favor of themselves. They can be true or false. Forexample, A can keep on saying that a certain house belongs to himself, but that does not mean it

is necessarily true. Therefore, such assertions do not have much evidentiary value.

Admission as per Indian Evidence Act -Section 17 of Indian Evidence Act defines Admission as thus - An admission is a statement, oralor documentary, or contained in electronic form, which suggests any inference as to any fact inissue or relevant fact, and which is made by any of the persons and under the circumstanceshereinafter mentioned.


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As per this definition, any statement, which suggests any inference about any fact in issue orrelevant fact, and which is made by persons under certain circumstances, is an admission. Thesecircumstances are mentioned in Section 18 to 20 as follows -

Section 18 - Admission by party to proceeding or his agent; by suitor in representative character;by party interested in subject-matter; by person from whom interest derived - Statements madeby a party to the proceeding, or by an agent to any such party, whom the Court regards, underthe circumstances of the case, as expressly or impliedly authorized by him to made them, areadmissions.By suitor in representative character - Statements made by parties to suits suing or sued in arepresentative character, are not admissions, unless they were made while the party makingthem held that character.

Statements made by -(1) by party interested in subject matter; persons who have any proprietary or pecuniary interestin the subject-matter of the proceeding and who make the statement in their character of personsso interested; or(2) by person from whom interest derived; persons from whom the parties to the suit have derivedtheir interest in the subject-matter of the suit, are admissions, if they are made during thecontinuance of the interest of the persons making the statements.

According to this section, statements made a persons who are directly or indirectly a party to asuit are admissions. Thus, statements of an agent of a party to the suits are also admissions.Statements made by persons who are suing or being sued in a representative character areadmissions, only if those statements were made by the party while being in that representativecharacter. Similarly, statements made by persons who have a pecuniary interest in the subjectmatter of the proceeding and statements made by persons from whom such interest is derived bythe parties in suit, are also admissions if they are made while the maker had such an interest. Forexample, A bought a piece of land from B. Statements made by B at the time when B was theowner of the land are admissions against A.

Section 19 - Admissions by persons whose position must be proved as against party to suit-Statements made by persons whose position or liability it is necessary to prove as against any

party to the suit, are admissions, if such statements would be relevant as against such persons inrelation to such position or liability in a suit brought by or against the made if they are made whilstthe person making them occupies such position or is subject of such liability.

Illustration -A undertakes to collect rent for B.B sues A for not collecting rent due from C to B.

A denies that rent was due from C to B.A statement by C that he owned B rent is an admission, and is a relevant fact as against A, if Adenies that C did owe rent to B.

Section 20 - Admission by persons expressly referred to by party to suit - Statements made bypersons to whom a party to the suit has expressly referred for information in reference to a matter

in dispute are admissions.Illustration -The question is, whether a horse sold by A to B is sound A says to B "Go and ask C. C knows allabout it" C's statement is an admission.

To be considered an admission, it is not necessary for a statement to give a directacknowledgment of liability. It is sufficient even if the statement suggests an inference about theliability. For example, A is charged with murder of B by giving poison. The statement by A that hepurchased a bottle of poison is admission because it suggests the inference that he might havemurdered B using that poison, even though it does not clearly acknowledge the fact that A


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murdered B. In the case of Chekham Koteshwara Rao vs C Subbarao, AIR 1981, SC held thatbefore the right of a party can be taken to be defeated on the basis of an alleged admission byhim, the implication of the statement must be clear and conclusive. There should not be anydoubt or ambiguity.Further, it held that it is necessary to read all of his statements together. Thus,stray elements elicited in cross examination cannot be taken as admission.

Q. Discuss the law regarding proof of admissions against persons making them and by or onbehalf of them. "Admission cannot be proved by or on behalf of any person who makes it". Arethere any exceptions? Discuss.

It is important to note that Indian Evidence Act does not require that an admission be ofstatements that are against the interests of the maker. All that is necessary is that the statementshould suggest some inference as to a fact in issue or relevant to the issue, even if the inferenceis in the interest of the maker of the statement. Self serving prior statements are also admissions.For example, A person can say to B that he did not steal money from C. This is a self servingstatement and is a valid admission. Does this mean that a person can make self servingstatements and escape from his liability? The answer is no because such self serving admissionsare governed by the provisions of Section 21, which says the following -

Section 21 - Proof of admissions against persons making them, and by or on their behalf -

Admissions are relevant and may be proved as against the person who makes them, or hisrepresentative in interest; but they cannot be proved by or on behalf of the person who makesthem or by his representative in interest, except in the following cases -(1) An admission may be proved by or on behalf of the person making it, when it is of such anature that, if the person making it were dead, it would be relevant as between third personsunder section 32.(2) An admission may be proved by or on behalf of the person making it, when it consists of astatement of the existence of any state of mind or body, relevant or in issue, made at or aboutthe time when such state of mind or body existed, and is accompanied by conduct rendering itsfalsehood improbable.(3) An admission may be proved by or on behalf of the person making it, if it is relevantotherwise than as an admission.

Illustrations

(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it isgenuine, B that it is forged. A may prove a statement by B that the deed is genuine, and B mayprove a statement by A that deed is forged; but A cannot prove a statement by himself thatthe deed is genuine, nor can B prove a statement by himself that the deed is forged.(b) A, the captain of a ship, is tried for casting her away. Evidence is given to show that theship was taken out of her proper course. A produces a book kept by him in the ordinarycourse of his business showing observations alleged to have been taken by him from day today, and indicating that the ship was not taken out of her proper course. A may prove thesestatements, because they would be admissible between third parties, if he were dead, undersection 32, clause (2).(c) A is accused of a crime committed by him at Calcutta. He produces a letter written by

himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day. Thestatement in the date of the letter is admissible, because,if A were dead, it would be admissible under section 32, clause (2).(d) A is accused of receiving stolen goods knowing them to be stolen. He offers to prove thathe refused to sell them below their value. A may prove these statements, though they areadmissions, because they are explanatory of conduct influenced by facts in issue.(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to becounterfeit. He offers to prove that he asked a skillful person to examine the coin as he doubtedwhether it was counterfeit or not, and that that


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person did examine it and told him it was genuine. A may prove these facts for the reasonsstated in the last preceding illustration.

From the above illustrations it is clear that the general rule is that a person is not allowed to provehis own admissions. Otherwise, as observed in R vs Hardy, 1794, every man, if he were indifficulty, or in view of one, might make declarations to suit his own case and then lodge them inproof of his case. This principle, however, is subject to some important exceptions, which allow aperson to prove his own statements. These are as follows -

Exception 1 - When the statement should have been relevant as dying declaration or as that of adeceased person under Section 32. Section 32 deals with the statement of persons who havedied or who otherwise cannot come before the court. The statement of any such person can beproved in any case or proceeding to which it is relevant whether it operates in favor of or againstthe person making the statement. In circumstances stated in Section 32 such a statement can beproved by the maker himself if he is still alive. In the situation described in Illustration (b), in acase between the shipowner and the insurance company, the contents of the log bookmaintained by the captain would have been relevant evidence if the captain were dead underSection 32. Therefore, the captain is allowed to prove the contents of the log book even in thecase involving him and the shipowners.

Exception 2 - Statements as to bodily feeling or mind - It enables a person to prove hisstatements about his state of mind or body if such state of mind or body is a fact in issue or isrelevant fact and if the statement was made at the time when such state of mind or body existedand further if the statement is accompanied with his conduct that makes the falsehood of thestatements improbable. In Illustration (d), the statements of A that show that he refused to sellthem below their value, are self serving admissions. However, it is acceptable because theyreflect A's state of mind and were associated with a conduct of refusing to sell that makes theirfalsehood improbably.

Exception 3 - The last exception allows a person to prove his own statement when it is otherwiserelevant under any of the provisions relating to relevancy. There are many cases in which astatement is relevant not because it is an admission but because it establishes the existence ornon-existence of a relevant fact or a fact in issue. In all such cases a party can prove his own

statements. These cases are covered by the following sections -

Section 6 - When a statement is made relevant by the doctrine of res gestae i.e. due to part ofthe same transaction. For example, immediately after a road accident, if the victim has made astatement to the rescuer about the cause of the accident, he can prove that statement because itis part of the same transaction.

Section 8 - A statement may be proved by or on behalf of the person make it under Section 8 if itaccompanies or explains acts other than statements or if it influences the conduct of a personwhose conduct is relevant. For example, where A says to B, "You have not paid my money back",and B walks away in silence, A may prove his own statement because it has influenced theconduct of a person whose conduct is relevant.

Section 14 - When the statement explains his state of mid or body or bodily feeling when anysuch thing is relevant or is in issue, it can be proved by himself. For example, where the questionis whether a person has been guilty of cruelty towards his wife, he may prove his statementsmade shortly before or after the alleged cruelty which explain his love and affection for and hisfeeling towards his wife.

Q. What do you understand by Confession? How does confession differ from admission? Statethe law relating to confessions. What is Judicial and Extra-Judicial confession? Under whatcircumstances is it relevant and when can it not be proved? State the extent, relevancy, and


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admissibility of a confession as evidence. How far can the statements of the accused madebefore the police be used against him?

General Concept of Confession -The term confession is not defined anywhere in Indian Evidence Act. But it is thought that an

Admission in case of a criminal matter is Confession. The same was stated by STEPHEN in hisdigest that that a confession is an admission made at anytime by a person charged with a crime,stating or suggesting the inference that he committed the crime. However, Privy Council, in caseof Pakala Narayan Swami vs Emperor AIR 1939, did not accept this definition. In this case Lord

ATKIN observed that no statement that contains self exculpatory matter can amount to aconfession. Further, a confession must either admit in terms of the offence or at any ratesubstantially all the facts which constitute the offence. An offence of a gravely incriminating fact,is not in itself a confession. For example, an admission that the accused is the over of and was inrecent possession of the knife or revolver which caused death with no explanation of any otherman's possession, is not a confession even though it strongly suggests that the accused hascommitted the murder.

The decision by Privy Council in Pakala Narayan Swami case was approved by SC in the case ofPalvinder Kaur vs State of Punjab, AIR 1952. In this case, Palvinder was on trial for murder of herhusband along with another, who all the time remained absconding. In her statement to the court,

her husband was hobbyist photographer and used to keep handy photo developing materialwhich is quick poison. On this occasion, he was ill and she brought him some medicine and themedicine was kept near the liquid developer and by mistake swallowed the liquid and died. Shegot afraid and with the help of the absconder, she dumped the body in the well. The statement,thus, partially admitted guilt and partially showed innocence. Here, the lower courts sorted out theexculpatory part and convicted her on the inculpatory part. However, SC rejected this approachand held that the rule regarding confession and admission is that they must either be accepted orrejected as whole.

Difference between Confession and AdmissionThis brings us to the main difference between admission and confession. An admission is astatement that may or may not be a conclusive evidence of a fact in issue or relevant fact but tobe a confession, the admission must conclusively prove the guilt of the maker of the admission.

For example, in the case of Veera Ibrahim vs State of Maharashtra, AIR 1976, a person beingprosecuted under Customs Act told the customs officer that he did not know that the goodsloaded in his truck were contraband nor were they loaded with his permission. SC held that thestatement was not a confession but it did amount to admission of an incriminating fact that thetruck was loaded with contraband material.

Thus, a statement which may not amount to confession may still be relevant as admission. Onlya voluntary and direct acknowledgment of guilt is confession, but when a confession fall short ofactual admission of guilt, it may nevertheless be used as evidence under Section 21.

Regarding admission that contains multiple sentences, Justice Thomas, of SC stated the law inthe case of Lokeman Shah vs State of WB, AIR 2001 as follows -The test of discerning whether a statement recorded by a judicial magistrate under Section 164 of

CrPC, is confessional or not is not to determine it by dissecting the statement into differentsentences and then to pick out some as not inculpative.The statement must be read as a wholeand then only the court should decide whether it contains admissions of his inculpatoryinvolvement in the offence. If the result of that test is positive the the statement is confessionalotherwise not.

Classification of ConfessionsA confession may occur in any form. It may be made to the court itself, or to anybody outside thecourt. In this manner, a confession may be divided into two categories - Judicial Confession andExtra-judicial Confession.


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Judicial Confession - A judicial confession is a confession that is made in front of a magistrate orin a court. It may be made in the course of a judicial proceeding.Extra - Judicial Confession - An extra-judicial confession is a confession that is made by theparty elsewhere than before a magistrate or in a court. It is admissible in evidence under Section21 and it is proved by the witnesses who had heard the speaker's words constituting theconfession.

A confession ma even consist of conversation with oneself. For example, in case of Sahoo vsState of UP, AIR 1966, an accused who was charged with murder of his daughter in law withwhom he was always quarreling was seen on the day of the murder going out of the home sayingwords to the effect, "I have finished her and with her the daily quarrels.". The statement was heldto be a valid confession because it is not necessary for the relevance of a confession that itshould communicate to some other person.

Relevancy of Confessions -Confessions when Not Relevant

A confession becomes irrelevant and thus, inadmissible, in situations described in the Sections24, 25, and 26.1. Section 24 - Confession caused by inducement, threat, or promise from a person in authority -

Confession made by an accused is irrelevant in a criminal proceeding if the making of theconfession appears to the court to have been caused by inducement, threat, or promise, made byany person in authority and that in the view of the court such inducement, threat, or promise givesreasonable ground to the person that by making the confession he would gain any advantage oravoid any evil of a temporary nature in reference to the proceedings against him.The following conditions are necessary to attract the provisions of this section -

1. The confession must have been made because of inducement, threat, or promise - Aconfession should be free and voluntary. If it flows from fear or hope, it is inadmissible. Indeciding whether a particular confession is because of threat, inducement, or promise, thequestion has to be considered from the point of view of the accused as to how the inducement,threat or promise would operate in his mind. For example, where the accused was told by themagistrate, "tell me where the things are and I will be favorable to you", it was held to be

inadmissible.2. The inducement, threat, or promise, must be made by a person in authority - A person in

authority is not merely a police officer or a magistrate but every such person who can reasonablyhold a sway over the investigation or trial. Thus, government officials such as a senior militaryofficer, police constable, warden, clerk of the court, all have been held to be a person in authority.Even private persons such as the wife of the employer was also held to be a person in authority.

3. It should relate to the charge in question - This requirement is specifically stated in thesection, which says that the inducement must have "reference to the charge against the accusedperson". Thus, in the case of Empress vs Mohan Lal, 1881, the confession by a person who wasthreatened to be removed from his caste for life, was held to be relevant because the threat didnot have anything to do with the charge. The position in English law is not same. In fact, J

ATKINSON has said that this rule is illogical and unreasonable. For example, a daughter isaccused of shoplifting and later on her mother is also accused of the same offence. Now, if the

mother is induced to confess by saying that if she confesses to the charge, proceedings againsther daughter will be dropped, this will most like lead to an untrue confession. Yet, it would bevalid under this section.

4. It should hold out some material, worldly, or temporal benefit or advantage - The inducementshould be about some tangible benefit. For example, a reference to spiritual benefit such as,taking an accused to a temple to confess does not fall in this category but a promise to reducethe sentence would fall under it.

It is necessary that all the conditions must exist cumulatively. Further, this section merely requiresthat if it "appears to the court" that the confession was improperly obtained, it becomes


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inadmissible i.e. if the circumstances create a probability in the mind of the court that theconfession is improperly obtained, it may hold it inadmissible.

2. Confessions to Police - It is presumed that police holds a position of great influence over theactions of the the accused and so there is a high probability that confessions obtained by thepolice are tainted with threat, or inducement. Further, it is important to prevent the practice ofoppression or torture by the police to extract the confession. This principle is espoused bySections 25 and 26, which are as follows -Section 25 - Confession to police-officer not to be proved - No confession made to a police-officer shall be proved as against a person accused of any offence. This section is verybroadly word. It strictly disallows any confession made to the police officer as inadmissible nomatter what the circumstances. In the case of Raja Ram vs State of Bihar, AIR 1964, SC heldthat the term police-officer is not be be interpreted strictly but must be given a morecomprehensive and popular meaning. However, these words are also not to be construed in sowide sense as to include a person on whom only some powers exercised by the police areconferred. The test for determining whether such a person is a police officer, is whether thepowers are such as would tend to facilitate the obtaining of confession by him from a suspect.Thus, a chowkidar, police patel, a village headman, an excise officer, are all considered to bepolice officer.Section 26 - Confession by accused while in custody of police not to be proved against him - No

confession made by any person whilst he is in the custody of a police-officer, unless it be madein the immediate presence of a Magistrate, shall be proved as against such person. This sectionfurther tries to ensure that the confession is not extracted due to the influence of the police. Anyconfession made while the maker is in custody of the police is invalid unless it is made in theimmediate presence of a magistrate. The presence of a magistrate is, by a legal fiction, regardedas equivalent to removal of police influence and the statement is therefore considered to be freefrom police influence.Mere absence of the police officer from a room where confession is taken does not terminate hiscustody of the accused. The word custody does not just mean formal custody but includes suchstate of affairs in which the accused can be said to have come into the hands of a police officer orcan be said to have been under some sort of surveillance or restriction.

Section 27 provides another exception when a confession made to the police is admissible. This

is when a confession leads to the discovery of a fact connected with the crime. The discoveryassures that the confession is true and reliable even if it was extorted. In order to ensure thegenuineness of recoveries, it has become a practice to effect the recoveries in the presence ofwitnesses.

Constitutionality of Section 27 - Indian Evidence Act was written before the Constitution of Indiaand Article 20(3) of the constitution says that no person shall be compelled to be a witnessagainst himself. This article seemingly made Section 27 unconstitutional. SC considered thisissue in the case of Nisa Sree vs State of Orissa AIR 1954, and held that it is not violative of

Article 20(3). A confession may or may not lead to the discovery of an increminating fact. If thediscovered fact is non incriminatory, there is no issue and if it is self-incriminatory, it is admissibleif the information is given by the accused without any threat.

Confessions when Relevant -The following three types of confession are relevant and admissible -

1. Section 27 - Confession leading to a discovery - Explained above.

2. Section 28 - Confessions made after removal of threat - If the confession is obtained after theimpression caused by threat, inducement, or promise is removed in the opinion of the court, thenthe confession is admissible.


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3. Section 29 - Confession made under promise, deception,etc. - If a confession is otherwiserelevant, it does not become irrelevant merely because it was made -(a) under a promise of secrecy or(b) in consequences of a deception practiced on the accused person for the purpose of obtainingit or(c) while the accused was drunk or(d) while answering the questions he need not have answered or(e) when the accused was not warned that he was not bound to make such confession and thatevidence of it might be given against him.

The basis of this section is that any breach of confidence or of good faith or practice of anyartifice does not invalidate a confession. However, a confession obtained by mere trickery doesnot carry much weight. For example, in one case, an accused was told that somebody saw himdoing the crime and because of this the accused made a confession. The court held theconfession as inadmissible. In Rex vs Shaw, A was accused of a murder and B, a fellow prisoner,asked him about how he did he do the murder. A said, "Will you be upon your oath not to mentionwhat I tell you?", to which B promised on his oath that he will not tell anybody. A then made astatement. It was held that it was not such an inducement that would render the confessioninadmissible.

The five circumstances mentioned in the section are not exhaustive.

Q. Discuss the law regarding competency of a witness? (Sections 118-121) Can a wife be acompetent witness against her husband? (Section 120)The modern judicial system is based on evidence. The knowledge of how an event happened isarrived at by the court through witnesses. As BENTHAM said, "Witnesses are the eyes and earsof justice." The court gives its finding based on the evidence given by witnesses. It is important,therefore, to understand who can and cannot be a competent witness. Section 118 of IndianEvidence Act, 1872, contains the provisions for determining a competent witness.

Section 118. Who may testify? - All persons shall be competent to testify unless the Court

considers that they are prevented from understanding the question put to them, or from givingrational answer to those questions, by tender years, extreme old age, disease, whether of bodyand mind, or any other cause of the same kind.

Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy fromunderstanding the question put to him and giving rational answers to him.

As is evident from Section 118, in general, nobody is barred from being a witness as long as he isable to understand the questions that are put to him as well as is able to give rational replies tothose questions. There may be several reasons because of which a person may not be able tocomprehend the questions and/or is unable to reply coherently. This section does not attempt todefine all such reasons but gives examples of such reasons such as young age (in case of achild), mental illness, or extreme old age. It is up to the court to determine whether a person is

able to understand the questions or give rational answers. Thus, competency is a rule, whileincompetency is an exception. Even a lunatic is considered a competent witness if his lunacydoes not prevent him from understanding the questions and giving rational answers.

Child WitnessA young child, if he is able to understand the questions and is able to reply rationally, is acompetent witness even if he is of a tender age. For example, in the case of Jai Singh vs State,1973, Cr LJ, a seven year old girl who was the victim of attempted rape was produced as awitness and her testimony was held valid.


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It has been held in several early cases that a child under the age of seven years can be acompetent witness if, upon the strict examination of the court, the child is found to understand thenature and consequences of an oath. For example, in Queen vs Seva Bhogta, 1874, a ten yearold girl, who was the only eye witness of a murder was made a witness. She appeared to beintelligent and was able to answer questions frankly and without any hesitation. However, shewas not able to understand the meaning of oath. It was held that her unsworn evidence wasadmissible in the given circumstances. The same was observed in Rameshwar Kalyan Singh vsState of Rajasthan AIR 1952, where the accused was charged with the offence of rape of a girl of8 years of age. It was held that ommission of oath only affects the credibility of the witness andnot competency of the witness. The question of competency is determined by section 118, andthe only ground that is given for incompetency is the inability to comprehend the questions orinability to give rational answers.

The supreme court however has emphasised the need for carefully evaulating the testimony of achild. Adequate corroboration of his testimony must be looked from other evidence.

Dumb WitnessSection 119 - A witness who is unable to speak may give his evidence in any other manner inwhich he can make it intelligible, as by writing or by signs; but such writing must be written andthe signs made in open Court. Evidence so given shall be deemed to be oral evidence.

Competency of a wife as a witness against her husbandAs per Section 120, in all civil proceedings the parties to the suit, and the husband or wife of anyparty to the suit, shall be competent witnesses. Further, in criminal proceedings against anyperson, the husband or wife of such person, respectively, shall be a competent witness.Thus it is pretty clear that the spouse of a person can be a competent witness against thatperson. For example, in the case of Shyam Singh vs Shaiwalini Ghosh, AIR 1947, Calcutta HCheld that Husband and wife are both competent witness against each other in civil and criminalcases. They are competenet witness to prove that there has been no conjugation between themduring marriage.

Although not mentioned in the act, it has been held in several cases that provisions of this sectionare subject to Section 122, which makes the communication between a husband and wifeprivileged.

Competency of AccusedAs per Section 315 of Cr P C, an accused is a competent witness. He can given evidence on hisbehalf, but if he does not, no comment can be made against the accused or adverse inference bedrawn against him.

Competency of an AccompliceAccomplice - An accomplice is a person who has taken part, whether big or small, in thecommission of an offence. Accomplice includes principles as well as abettors.Not an Accomplice - person under threat commits the crime, person who merely witnesses thecrime, detectives, paid informers, and trap witnesses

Generally, a small offender is pardoned so as to produce him as a witness against the bigger

offender. However, evidence by an accomplice is not really very reliable because - 1) he is likelyto swear falsely in order to shift blame, 2) as a participator in a crime, he is a criminal and is likelyimmoral, and so may disregard the sanctity of oath, and 3) since he gives evidence in promise ofa pardon, he will obviously be favorable to prosecution.

Even so, an accomplice is allowed to give evidence. As per Section 133, he is a competentwitness against the accused and a conviction based on his evidence is not illegal merely becausehis evidence has not been corroborated. At the same time, Section 114 (b) contains a provisionthat allows the Court to presume that an accomplice is unworthy of credit, unless he iscorroborated in material particular. The idea is that since such a witness is not very reliable, his


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statements should be or verified by some independent witness. This is interpreted as a rule ofcaution to avoid mindless usage of evidence of accomplice for producing a conviction.

Since every case is different, it is not possible to precisely specify a formula for determiningwhether corroborative evidence

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