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Paper Code: LL.B. 305 Paper: Law of Evidence
I. Introduction and Relevancy a. Evidence and its relationship with the substantive and procedural laws b. Definitions – Facts, facts in issue, relevant, evidence proved, disproved, not proved, oral and documentary evidence (sec. 3) c. Relevancy and admissibility d. Doctrine of res gestae (Sec. 6,7,8,9) e. Conspiracy (Sec. 10)
II. Statement – Admissions / Confessions and Dying Declarations a. Admissions (secs. 17-23) b. Confessions (secs. 24-30) c. Dying Declarations (sec. 32)
III. Method of proof of facts b. Presumptions (secs. 4, 41, 79-90, 105, 107, 108, 112, 113A, 114 and 114A) c. Oral and documentary evidence (secs. 59-78) d. Rules relating to Burden of proof (secs. 101-105) e. Facts prohibited from proving
- Estoppel (secs. 115-117)
- Privileged Communications (secs. 122-129)
IV. Presumptions regarding discharge of burden of proof a. Evidence by accomplice (sec. 133 with 114 (b)) b. Judicial notice (sec. 114) c. Dowry Death (sec. 113 B) d. Certain Offences (sec. 111 A)
UNIT-I
INTRODUCTION AND RELEVANCY
A. DEFINITIONS
a) Facts:
Factsmeans anything or state of things or relations of thing which can be perceived by senses (see, touch, taste, hear, and smell). Particular ‘state of mind’ is also a fact. Examples of facts:
- Knife which is used for murder is a fact (things)
- The blood of the victim on the sport or over the knife is facts (relation with the things i.e. knife)
- Presence of victim and accused at the sport immediately before occurrence is also fact (state of things)
- In case of murder through poisoning, pre-poisoning state condition of body and after poisoning condition of body of the victim is fact (State of things & relation of things) etc.
b) Facts in issue
It is defined under section 3 of IEA, which simply means those facts which can established right, duty, liabilities or obligations.
The expression “facts in issue” means and includes—any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation.—Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.
- Character of parties
d. Evidence proved, disproved and not proved: A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be disproved when, after considering the matters before it, the Court believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said not to be proved when it is neither proved nor disproved. “Proved”: The English author, Cunn, gives the analogy of a merchant who receives information that the rate of exchange will vary, or a General who gets information about the movement of the enemy. The success of either will depend on his judging soundly when he ought to act on the assumption that what he hears is true, or when prudence bids him to assume it to be false. If he waits for absolute certainty, he would never be able to act at all. Similarly, all that a judge needs to look for is such a high degree of probability that a prudent man, in any other similar transaction, would act on the assumption that such a thing was true. “Matters before It”: The expression “matters before it” includes matters which do not fall within the definition of the term “evidence” (in S. 3 of the Act), as for instance, a fact orally admitted in Court or the result of a local investigation under the Civil Procedure Code. Therefore, in determining what is “evidence” other than evidence within the phraseology of the Act, the definition of ‘evidence’ must be read with that of ‘proved’. It would appear, therefore, that the Legislature intentionally refrained from using the word ‘evidence’ in this definition, but used instead the expression ‘matters before it’. For instance, a fact may be orally admitted in Court. Such an admission would not come within the definition of the term ‘evidence’ as given in this Act. Yet, it is a matter which the Court before whom the admission was made, would have to take into consideration, in order to determine whether the particular fact was proved or not. Similarly, the result of a local investigation under the Civil Procedure Code must be taken into consideration by the Court, though it is not ‘evidence’ within the definition given by the Act.
‘Legal Proof’ and ‘Moral Conviction’: ‘Legal proof is to be distinguished from ‘moral conviction’. Legal proof is neither more nor less than what is indicated by the definition of the word ‘proved’ in S. 3. Whatever may be the moral certainty in a case, unless it is legally proved to such an extent as would amount to legal proof, a judicial decision cannot be arrived at. So also, however morally convinced a judge may feel as to the truth of a particular fact, unless there is a legal proof of its existence, he cannot take it as proved.
e. Relevance and admissibility:
In civil proceedings in the common-law countries, evidence is both ascertained and simultaneously restricted by the assertions of the parties. If the allegations of one party are not disputed or contested by the other, or if the allegations are even admitted, then no proof is required. Proof would, in fact, be irrelevant. Evidence offered to prove assertions that are neither at issue nor probative of the matter at issue would also be irrelevant. The only evidence that is, therefore, relevant, is evidence that to some degree advances the inquiry and has a probative value for the decision. While continental European judges, in ordering the hearing of evidence or in deciding on evidence, indicate the facts to be proved and thereby strictly eliminate irrelevant facts, Anglo-American judges first give the parties an opportunity to furnish any evidence that they deem suitable. If, during the hearing of witnesses, irrelevant questions are put, they are rejected after the adversary has objected to them.
It has been said that relevance depends on logical considerations and that admissibility depends on the law. In contrast to civil law, the common law has developed a large number of rules governing the admissibility of evidence. Relevant evidence is not admissible, for example, if the witnesses are excluded from testifying because of incompetency, or if they are protected by privileges against self-incrimination, or in instances in which they would have to divulge confidential or professional communications that have a privileged status or government secrets, or, again, when the evidence is excluded by the rules against hearsay.
In criminal cases in civil-law countries, relevance relates to such questions that are so far removed from the case that they have no evidence value at all. Admissions and confessions do
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact.
(b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in 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.
Facts which are occasion, cause or effect of facts in issue (Section 7):
These facts are those which provide either occasion or cause or create effect over ‘facts in issue’. For example in murder case, ‘presence’ of accused and victim at the place of occurrence at same time or accused ‘having gun’, at given time, or ‘altercation between’ accused and victim are the facts proving occasion, and thus they are relevant in this section. ‘Firing’ of bullet is cause of death, so ‘firing’ as such is a relevant fact; ‘firing of bullet’ may have effect of causing death or serious injuries, here injuries or death is effect of ‘firing of bullet’, so such injuries are relevant facts.
Illustrations
(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 he had it, to third persons, are relevant.
(b) The question is, whether A murdered B.
Marks on the ground, produced by a struggle at or 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 symptoms ascribed to poison and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts.
Facts suggesting Motive, preparation and previous or subsequent conduct (Section 8):
Facts suggesting motive (say example previous fighting, property dispute, love affair, family dispute, business rivalry etc.) or preparation (say example just before the murder accused purchased a gun or bullets, or took training for shooting, or in case of forgery, he purchase few stamp papers to forged a sale deed etc) or conduct, whether previous or subsequent of the parties are also relevant (examples of previous conducts like, previous attempts, any fights; example of subsequent conduct such as being missing from house after committing murder, suspicious act of hiding himself or certain goods used for the offence etc.)
It is important to note that conducts of parties as well as their agents both are relevant in any suit or proceeding.
Illustrations
(a) A is tried for the murder of B.
The facts that, A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.
(g) The question is, whether A owes B rupees 10,000.
The fact that, A asked C to lend him money, an that D said to C in A’s presence and hearing “Advice you The Orient Tavern to trust A, for he owes B 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 facts that, A absconded after receiving a litter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.
(i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded 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, she made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made, are relevant.
The facts that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.
f) CONSPIRACY:
Section 10 of Indian evidence act:
Things said or done by conspirator in reference to common design.—Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their
common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. Things said or done by conspirator in reference to common design.—Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it." Illustration Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the 1[Government of India]. The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it. Comments tc "Comments" Existence of conspiracy If prima facie evidence of existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all; JayendraSaraswatiSwamigal v. State of Tamil Nadu, AIR 2005 SC 716. Object Section 10 has been deliberately enacted in order to make acts and statements of a co-conspirator admissible against the whole body of conspirators, because of the nature of crime; BadriRai v. State of Bihar, AIR 1958 SC 953. Significance of “common intention” The words “common intention” signify a common intention existing at the time when the thing was said, done or written by the one of them. It had noting to do with carrying the conspiracy into effect; Mirza Akbar v. Emperor, AIR 1940 PC 176.
- Another example would be where ‘A’ is accused of a crime committed by him at Calcutta. He produces a letter written by him, and dated at Lahore on that day, and bearing the Lahore post-mark of that day. Generally this letter will not be admissible as it is written by him only; however, this will be admissible because if A were dead it would be admissible under Section 32, Clause (2).
- An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
- A is accused of receiving stolen goods knowing them to be stolen. He officers to prove that he refused to sell them below their value. A may prove these statements though they are admissions, because they are explanatory of conduct influenced by facts in issue.
- An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.
- A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit. He offers to prove that he asked a skilful person to examine the coins as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine. A may prove these facts because they are explanatory of conduct that he has no intention to possess any counterfeit coins and this is very must suggested by the fact the he as asked some one to examine the coin.
Who can make Admissions? (Section 18, 19 & 20 IEA)
Admissions can be made by:
a. Parties to the case
b. Authorised agents of parties, whether expressly authorised or authorised impliedly
c. In a Representation suit, the person who is representing others
- ‘A’ files a representation suit against government against torts of Nuisance. An admission made by A, would be binding all interested parties, if the statement was made when A was holding representative character.
d. Persons having any proprietary or pecuniary interest in the subject-matter of the proceeding
- A, a partner in a firm with B, files suit for possession of property against Z. B, makes an statement that A is fighting a wrong claim against B, would be relevant as he has pecuniary interest in the property and still making such comment.
e. Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, and where statement was made during the continuance of such interest of the persons making the statements
- A files suit for recovery of 20, 000/- Rs against B, claiming that the house which he purchased from C was under mortgage with said amount in his name. A want to prove a statement given by C, which was made when house was owned by C, that house is under a mortgage for 20,000/- Rs, with A. Since, the statement was given when C was having possession of the house, this would be good piece of admission as he made statement against his own interest and now B is deriving his interest from the same house.
f. Statements made by persons whose position or liability it is necessary to prove as against any party to the suit
- 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 A denies that C did owe rent to B.
g. Admission by persons expressly referred to by party to suit
- The question is, whether a horse sold by A to B is sound A says to B “Go and ask CC knows all about it” C’s statement is an admission.
- A, an accused was threaten by a priest as to spiritual consequences, unless he confess, and accordingly accused makes confession, here only few elements of section 24 are there and not all, so this confession is admissible.
- The best example of cases where all elements mentioned in section 24 is present is when a police officer arrest any accused. It because of this reason that any confession made to a police officer is inadmissible by section 25 of IEA.
- Only coercive confessions are made inadmissible. However, if the accused want to confess voluntarily, then code of criminal procedure prescribes such procedure in section 164(3), and a Magistrate, when satisfied that accused is making confession voluntarily, he may record the same, and that is often used as substantial piece of evidence against the accused. If the confession is made through this process, it is called as judicial confession. Any confession made otherwise to any other person, such as friend, stranger etc. is called as Extra Judicial Confession. An extra judicial confession is legal and valid.
- It is difficult to rely upon the extra judicial confession as the exact words or even the words as nearly as possible have not been reproduced. Such statement cannot be said to be voluntary so the extra judicial confession has to be excluded from the purview of consideration for bring home the charge; C.K. Raveendran v. State of Kerala, AIR 2000 SC
Exception to Rules of Confession—
- The first exception to rule of confession is provided in section 27 of IEA. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information , whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. For example if accused says that “I killed B, and I can show you the place where I have buried the knife”…in this statement, police, if discover the ‘knife’ then the fact that it was discovered at the instance of accused may be proved.
- The condition necessary to bring the section 27 into operation is that the discovery of a fact in a consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as
relates distinctly to the fact thereby discovered may be proved; PulukuriKottaya v. Emperor, AIR 1947 PC 119.
- If such a confession as is referred to in Section 24 is made after the impression caused by any inducement, threat or promise has, in the opinion of the Court been fully removed it is relevant.
- Section 29 provides that Confession otherwise relevant not to become irrelevant because of promise of secretary etc. Say for example B asked A, an accused of murder to make confession to him and he (B) promises that he will not disclose it to any one. Since, it is extra judicial confession which is admissible, it will not be held inadmissible only because there was a promise of its secrecy.
- Section 30 of IEA provides that when a confession is given by one accused, and the same was proved, it can be used against the co-accused if he is tried together in the same case during the joint trial. However, as per Illustration (b) of Section 114 of IEA, such confession should not be relied until the same is proved with material corroboration. Why corroboration is important in this case? Let’s examine. A committed murder of B with the help and conspiracy of X, Y and Z. all four were put on joint trial. During trial, X became approver and made confession. Now, since, he is also a co-accused, as per law, i.e. section 30 r/w 133 (Section 133 defines that accomplice/approver is a good witness) his statement is good evidence against all others accused. Rule of logic suggest that if X can ditch his closest friend like A, Y and Z, he must be very shrewd person and, what is guarantee that he will tell truth now. So, illustration (b) of section 114 provides rule of logic or rule of prudence that such testimony should not be relied on until corroborated in material particular i.e. through other evidence.
Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said – “B and I murdered C”. the court may consider the effect of this confession as against B.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) Or is made in course of business – When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods securities or property of any kind; or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him.
(3) Or against interest of maker – When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true it would expose him or would have exposed him to criminal prosecution or to a suit for damages.
(4) Or gives opinion as to public right or custom, or matters of general interest – When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest of the existence of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
(5) Or relates to existence of relationship – When the statement relates to the existence of any relationship 1 by blood, marriage or adoption between persons as to whose relationship 1 by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6) Or is made in will or deed relating to family affairs – When the statement relates to the existence of any relationship 1 by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on
which such statements are usually made, and when such statement was made before the question in dispute was raised.
(7) Or in document relating to transaction mentioned in section 13, Clause (a). – When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).
(8) Or is made by several persons and express feelings relevant to matter in question – When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.
Illustrations
(a) The question is, whether A was murdered by B ; or
A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or
The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.
Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.
(b) The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.
(c) The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that, on a given day, the solicitor attended A at a place mentioned, in Calcutta , for the purpose of conferring with him upon specified business, is a relevant fact.
