evidence summary 1

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Admission and Confession

Admission: Section 17.

An admission is a statement, oral or documentary or contained in electronic form, whichsuggests any inference as to any fact in issue or relevant fact, and which is made by anyof the persons, and under the circumstances mentioned

An admission is a statement of fact which waives or dispenses with the production ofevidence, by conceding that the fact asserted by the opponent is true. Admissions arefollowed because the conduct of a party to a proceeding, in respect to the matter indispute, whether by acts, speech, or witting, which is clearly inconsistent with the truth ofhis contention, is a fact relevant to the issue. Admission constitute a very weak kind ofevidence, and the court may reject them if it is satisfied, from other circumstances thatthey are untrue.

An admission is a confession or voluntary acknowledgement made by a party or someone

identified with him in legal interest of the existence of certain facts which are in issue orrelevant to an issue in the case. The predominant characteristics of this type of evidenceconsist in its binding character.

Admissions are broadly classified into two categories(i) Judicial Admissions and(ii) Extra-judicial admissions.Judicial admissions: are formal admissions made by a party to the proceeding of the case.Extra-judicial admissions are informal admissions not appearing on the record of thecase. Judicial admissions, being made in the case are fully binding on the party whomakes them. They constitute a wavier of proof. They can be made the foundation of therights of the parties.

Extra-judicial admissions are also binding on the party against whom they are set up.Unlike judicial admissions, they are binding only partially and not fully, except in casewhere they operate as or have the effect of estoppels, in which case, they are fullybinding, and may constitute the foundation of the rights of the parties.In case decided by the Supreme Court, the plaintiff sought to rely on an admission madeby the defendant. It was held that section 17 of the evidence act makes no distinctionbetween an admission made by the person in a plaint signed and verified by him may beused as evidence against him in other suits. Of course, the admission cannot be regardedas conclusive, and it is open to the party concerned to show that the segment is nottrue. Statements, made by the following six classes of persons are admissions.1. A party to the proceeding or by his agent.

2. Parties suing or being sued in a representative character while they hold thatcharacter3. Persons having proprietary or pecuniary interest in the proceeding, if thestatements are made-(i) In their character of persons so interested and(ii) During the continuance of their interest4. Persons from whom the parties to the suit have derived their interest in the subjectmatter of the suit provided that the statements are made during the continuance of
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the interest of the person making the statement.5. Persons whose position or liability it is necessary to prove as against any party tothe suit if the statementsa.) Are made during the continuance of such position or liability, andb.) Are such as would be relevant as against such persons in a suit brought by or

against them?6. Persons to whom a party to the suit has expressly referred for information inreference to a matter in dispute.

CONFESSION

The expression confession has not been defined in the evidence act. A confession is astatement which either admits the offence, or at any rate, substantially all the facts whichconstitute the offence.Stephen in his Digest of law of Evidence defines It thus,: A confession is an admissionmade at any time by a person charged with a crime, stating or suggesting an inference

that he committed the crime this definition was adopted by the courts in India in anumber of cases.Supreme Court in sahool v state of UP the court observed that;Admission and confession are exceptions to the hearsay rule, the evidence Act placesthem in the category of relevant evidence, presumably on the ground that, as they aredeclarations against the interest of the person making them they are probably true. Theprobative value of an admission or confession can be offered only by witness who heardthe admission or confession, as the case may be.Important Rules regarding confession which retracted are:1. A Confession is not to be regarded as involuntary merely because it is retractedlater on.

2. As against the maker of the confession, the retracted confession may form thebasis of a conviction if it is believed to be true and voluntarily made.3. The confession of a co-accused cannot be treated as substantive evidence, and canbe pressed into service only when the court is inclined to accept other evidenceand feels the necessity of seeking an assurance in support of its conclusionsdeductable form the said evidence.

May presume , shall presume

Section 4 of evidence Act defines may presume and shall presume;May presume- Whenever it is provided by this Act that the court may presume a fact, itmay either regard such fact as proved, unless and until it is disproved, or may call forproof of it.

Shall presume Whenever it is directed by this Act that the court shall presume a fact, itshall regard such fact as proved, unless and until it is disproved.Whenever it is provided the Evidence Act that a court may presume a fact, it may either(i) regard such fact as proved, unless and until it is disproved, OR
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(ii) May call for proof of it.

MEANING OF COURT MAY PRESUME

Whenever the Act lays down that the court may presume a fact, it has a discretion to

presume it, as proved, or to call for confirmatory evidence of it, as the circumstances ofrebuttal. Thus, the court may presume that a message forwarded from a telegraph officecorresponds with the message delivered for transmission at the office, or the court maypresume that a certified copy of foreign judicial records is genuine and accurate but ineither case, the court can call for further evidence.Whenever it is laid down that court shall presume a fact, it means that the court mustregard such fact as proved unless and until it is disproved.

MEANING OF COURT SHALL PRESUME

when the Act lays down that the court

shall presume a certain fact, the court has no option in the matter, and it is bound to takethe fact as proved unless the party interested in disproving it produces sufficient evidencefor that purpose. Thus, the court has to presume the genuineness of every documentpurporting to be in London Gazette or the official Gazette. Similarly, the court shallpresume the accuracy of maps and plans made by a government authority likewise, thecourt shall presume that a power of attorney purporting to be executed before a properauthority was so executed.

Facts connected with facts in issue as to form the part of the

same transaction are relevant. Discuss with reference to resgestae.

Section. 5.Evidence may be given of facts in issue and relevant facts.Evidence may begiven in any suit or proceeding of the existence or non-existence of every fact inissue and of such other facts as are hereinafter declared to be relevant, and of noothers.

Explanation.This section shall not enable any person to give evidence of a fact whichhe is disentitled to prove by any provision of the law for the time being in force relatingto Civil Procedure.

Illustrations(a) A is tried for the murder of B by beating him with a club with the intention ofcausing his death.

At As trial the following facts are in issueAs beating B with the club;As causing Bs death by such beating;
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As intention to cause Bs death.(b) A suitor does not bring with him, and have in readiness for productjon at thefirst hearing of the case, a bond on which he relies. The section does not enablehim to produce the bond or prove its contents at a subsequent stage of theproceedings, otherwise than in accordance with the conditions prescribed by the

Code of Civil Procedure.

RES GESTAE

Section 6: Relevancy of facts forming part of same transaction:Facts which though not in issue are so connected with a fact in issue as toform the part of the same transactions are relevant, whether they occurred atthe same time and same places,

Doctrine of res gestae or parts of transaction

The principle of the section is that whenever a transaction such as a contract or acrime, is a fact in issue, then evidence can be given of every fact which forms part of thesame transaction. The facts which surround the happening of an event are its res gestae.The section is quite apparently based upon the English doctrine of res gestae though thisword has been scrupulously avoided by the section. The reason why this word has beenavoided is that the doctrine has been productive of confusion. The phrase is Latin whichliterally means things done and when translated into English means things said anddone in the course of a transaction. Every case that comes before a court of law has afact story behind it. Every fact story is made of certain acts, omissions and statements.Every such act, omission or statement as throws some light upon the nature of thetransaction or reveals its true quality or character should be held as a part of the

transaction and the evidence of it should be received. To state a fact or event in isolationwithout reference to its antecedents in time, place or surrounding circumstances, mayrender the fact, difficult or even impossible to comprehend. Other facts or circumstancesmay be so closely connected with the fact in issue as to be, in reality, part and parcel ofthe same transaction. Such ancillary facts are described as forming part of the res gestaeof the fact in issue, and may be proved.

For example, in Ratten v. The Queen,A man was prosecuted for the murder of his wife. His defense was that the shot went offaccidentally. There was evidence to the effect that the deceased telephoned to say Getme the police please. Before the operator could connect the police, the caller, who spoke

in distress, gave her address and the call suddenly ended. Thereafter the police came tothe house and found the body of a dead woman. Her call and the words she spoke wereheld to be relevant as a part of the transaction which brought about her death. Her call indistress showed that the shooting in question was intentional and not accidental, for novictim of an accident could have thought of getting the police before the happening.This then is the utility of the doctrine of res gestae. It enables the court to take intoaccount all the essential details of a transaction.

A transaction is a group of facts so connected together as to be referred to by a single


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name, as a crime, a contract, a wrong or any other subject of inquiry which may be inissue.

Roughly a transaction may be described as any physical act, or series of connectedphysical acts, together with the words accompanying such act or acts.

A transaction can be truly understood only when all its integral parts are known and notin isolation from each other.It may be arbitrary and artificial to confine the evidence to the firing of the gun or theinsertion of the knife without knowing, in a broader sense, what was happening. Thus inOLeary v. Re gem,3 evidence was admitted of assaults, prior to a killing, committed bythe accused during what was said to be a continuous orgy.DIXON, J., stated as follows

The evidence disclosed that, under the influence of the beer and wine hehad drunk and continued to drink, he engaged in repeated acts of violence which might beregarded as amounting to a connected course of conduct. Without evidence of what,

during that time, was done by those men who took any significant part in the matter andespecially evidence of the behavior of the prisoner, the transaction of which the allegedmurder formed an integral part could not be truly understood and isolated from it, couldonly be presented as an unreal and not very intelligible event. The prisoners generallyviolent and hostile conduct might well serve to explain his mind and attitude and,therefore, to implicate him in the resulting homicide.The Court of Appeal held in another case that a statement made to a police officer by thevictim of an assault identifying the assailant while moving with the police in his car wasrelevant as showing that he had seen the victim of an assault and who committed it.

Acts or Omissions as Res Gestae

So far as acts and omissions accompanying a transaction are concerned, much difficultydoes not arise. Nature of the transaction itself indicates what should be its essential parts.Where, for example, there is a conspiracy to overthrow the Government of India by force,funds for the purpose are raised at Calcutta, arms and ammunition at Madras and a taskforce is trained at Bombay. All these acts, though isolated in time and space, are still theparts of the same transaction. This is true of all transactions which are of continuingnature. Similarly, where the question is whether certain goods were delivered in theperformance of a contract. The fact that they were delivered to several intermediaries inthe process of ultimate delivery to the buyer is relevant, each successive delivery being apart of the transaction. If libel is contained in a letter forming part of a correspondence,

the whole correspondence is relevant.

The case of Mime v. Leisler is another example. Here the question was whether acontract had been made with a person in his personal capacity or as an agent of another.The fact that the contractor wrote a letter to his broker asking him to make inquiries washeld to be relevant. If he had merely informed his own clerk that he was dealing with Cand not with B, evidence of such a remark, even though contemporaneous, would havebeen inadmissible as hearsay. But because the inquiry was made at the suggestion of B


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and in order to establish the credit of the purchaser, without which the transaction couldnot have proceeded, it was held to be part of the res gestae.

Statements as Res gestae

Statements may also accompany physical happenings. An injured person, for example, isnaturally bound to cry. He may cry under pain or for help or spell out the name anddescription of his attacker.If the transaction, e.g., an accident, happened in a public place, a number of by-standerswill make mutual conversation about the incident. The question is to what extent suchstatements can be regarded as parts of the transaction. Illustration (a) deals with asituation of this kind. The illustration supposes that a man has killed another by beatinghim. Whatever was said or done by the offender and the deceased or the by-standers atthe beating, or so shortly before or after it as to form part of the transaction, is a relevantfact.

In the application of this principle the courts have been very strict and cautious. For,statements can be easily concocted. Hence the principle that the statement should havebeen made so soon before or after or along with the incident that there was hardly anytime to deliberate and thereby to fabricate a false story. The result is that there arenumerous cases in which such evidence has been admitted and numerous cases in whichevidence of statements has been rejected and there is room for a sharp difference ofopinion.

One of the earliest, and as often happens, the clearest [illustration] is the decision ofH0LT, C.J. in Thompson v. Trevanion. He held that what the wife said immediatelyupon hurt being received and before that she had time to devise or contrive anything for

her own advantage, might be given in evidence.

If sufficient time elapsed to allow the invention of a false tale, obviously the evidencewould be unreliable. The subsequent case of R. v. Bedingfield shows the value of timein this connection.

A woman, with her throat cut, came suddenly out of a room, in which she had beeninjured and shortly before she died, said : Oh dear Aunt, see what Bedingfield has doneto me.

Cociciaum, C. J., held that the statement was not admissible. Anything uttered by the

deceased at the time the act was being done would be admissible, as, for instance if shehas been heard to say something, as dont Harry. But here it was something, stated byher after it was all over. The statement was also held to be not relevant as a dyingdeclaration because she did not have the time to reflect that she was dying. The result andthe reason given seem to be contradictory. If she did not have the time to reflect that shewas dying, much less did she have the time to concoct a story. She ran out the sameinstant that she was injured and the aunt was the first person she met with. That is whythe Privy Council has observed that R. v. Bedingfield is more useful as a focus of


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discussion, than for the decision on the facts.But even so the principle of the decision in Bedingfields case was approved by theHouse of Lords in R. v. Christie.This was a case of an indecent assault upon a young boy. Shortly after the incident theboy made certain statements to his mother by whom he described the offence and the

man who assaulted him.

The evidence of the statement was excluded. LORD ATKINSON remarked that the boysstatement was so separated by time and circumstances from the actual commission of thecrime that it was not admissible as part of the res gestae. The emphasis of the courtsseem to be that the words should be at least de recenti and not after an interval whichshould allow time for reflection and concocting a story.The statement should be an exclamation forced out of a witness by the emotiongenerated by an event rather than a subsequent narrative. The courts have beenstressingthe necessity for close association in time, place and circumstances between the

statementand the crucial events.How slight a separation of time and place may suffice to make the statement a differentres rather than a part of the same transaction, is often difficult to decide.For example, in R. v. Foster :The prisoner was charged with manslaughter in killing a person by driving over him. Awitness saw the vehicle driven by at a very rapid rate, but did not see the accident.Immediately after, on hearing the victim groan, he went up to him and asked him whatwas the matter. The deceased then made a statement as to the cause of the injury.The court held that what the deceased said at the instant, as to the cause of the accident,is clearly admissible.

The words were spoken after the running over was completed and after the lapse of atleast many seconds. Yet they were regarded as the part of the running over. The result isa strange contrast with R. v. Bedingfleld,where a woman emerging out of a room where her throat was cut exclaimed the name ofher assailant and the exclamation was held to be a different res, though there couldhardly be a case where the words uttered carried more clearly the mark of spontaneityand intense involvement.The result is also in contrast with R. v. Gibson,where the words spoken by an onlooker after the assault was over were not regarded aspart of res gestae.Looking at this state of uncertainty the Privy Council in Ratten v. Reginam, tried to lay

down a more scientific formula. LORD WILBERFORCE who delivered the judgment ofthe Board, said :The test should not be the uncertain one whether the making of the statement was insomesense part of the event or transaction. This may often be difficult to establish; suchexternal matters as the time which elapses between the events and the speaking of thewords (or vice versa) and differences in location being relevant factors but not, taken bythemselves, decisive criteria. As regards statements made after the event it must be for


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the judge to satisfy himself that the statement was so clearly made in circumstances ofspontaneity or involvement in the event that the possibility of concoction can bedisregarded. Conversely, if he considers that the statement was made by way of narrativeof a detached prior event so that the speaker was disengaged from it as to be able toconstruct or adapt his account, he should exclude it.

Referring to the statements which are made before the event, his Lordship said that thesame principle should apply.

If the drama, leading up to the climax, has commenced and assumed such intensity andpressure that the utterance can safely be regarded as a true reflection of what wasunrolling or actually happening, it ought to be received. The expression res gestae mayconveniently sum up these criteria, but the reality of them must always be kept in mind.The facts of the case, which have already been noted, were that a few minutes before awoman was shot dead, she made a telephone call and hysterically asked the operator toget her the police. Before the operator could do anything, the sobbing woman gave heraddress and the call was dead. Within five minutes the police reached there and found the

body of a dead woman. In the prosecution of her husband it was held that the telephonecall and the words spoken were parts of the transaction.LORD WILBERFORCE, saidThere was ample evidence of the close and intimate connection between the statementascribed to the deceased and the shooting which occurred very shortly afterwards. Theywere closely associated in place and in time. The way in which the statement came to bemade (in a call for the police) and the tone of voice used, showed intrinsically that thestatement was being forced from the deceased by an overwhelming pressure ofcontemporary event. It carried its own stamp of spontaneity.

It has been held by the Supreme Court in R. M. Malkani v. State of Maharashtra, that a

contemporaneous tape-record of a relevant conversation is a relevant fact. It is resgestae. Where shortly before the incident in which a woman died of gun shot, sheexclaimed that a man was standing near her with a gun in his hand, the statement washeld to be sufficiently proximate in time to the happening as to be a part of the sametransaction. Where shortly after a murder, the person suspected of it explained away theabsence of the deceased by saying that he had left the village, the Supreme Court heldthestatement to be a part of the transaction. Where on hearing the cries of the sister of theaccused for help as her brother (the accused) had set his wife afire, the witness ran to therescue and found the woman burning and though she was not able to speak, her husband,standing by her side, was heard saying : Now I have got rid of you. This statement was

held to be a part of the transaction:

Res Gestae and Hearsay

Hearsay evidence means the statement of a person who has not seen the happening ofthetransaction, but has heard of it from others. For example, a person who has himselfwitnessed an accident can give an account of it to the court, but his wife, who heard of it


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from him, cannot give evidence of what her husband told her, her knowledge beinghearsay. But such evidence can be given if it is a part of the transaction.In R. v. Foster, the witness had only seen a speeding vehicle, but not the accident. Theinjured person explained him the nature of the accident. He was allowed to give evidenceof what the deceased said, although it was only a derived knowledge, it being a part of res

gestae. Thus, the doctrine of res gestae constitutes an exception to the principle ofhearsay.

The res gestae doctrine has often been criticised. According to PROFESSOR STONE,no evidential problem is so shrouded in doubt and confusion. It was the opinion ofPROFESSOR WIGMORE that the rule is not only useless but also harmful. It is uselessbecause every part of it is covered by some other rule, for example, declarations as to thestate of mind or health. It is harmful because it causes confusion about the limitations ofthe other rules. The precise limits of res gestae are themselves not easy to define. Factsdiffer so greatly that no fixed principle can be laid down as to the matters that will formparts of a transaction.

Confession made in police custody whether admissible

Section 26: Confession by accused while in custody of police not to be proved againsthim: No confession made by any person whilst he is in the custody of a police officer,unless it is made in the immediate presence of a magistrate shall be proved as againstsuch person.

Explanation.In this section Magistrate does not include the head of a villagedischarging magisterial functions in the presidency of Fort St. George or elsewhere,unless such head-man is Magistrate exercising the powers of a Magistrate under the Codeof Criminal Procedure, 1882.

Confession in police custody

No confession is made to anybody while the person making it is in police custodyis provable. The section will come into play when the person in police custody is inconversation with any person other than a police officer and confesses to his guilt. Thesection is based upon the same fear, namely, that the police would torture the accusedandforce him to confess, if not to the police officer himself, at least to some one else. The

confession made to a police officer or to anyone else while the accused is in policecustody are not different in kind and quality. Both are likely to suffer from the blemish ofnot being free and voluntary.The policy objectives underlying the limitation are clear. It is manifest to everyones experience that from the moment a person feels himself in custody on a criminalcharge, his mental condition undergoes a very remarkable change and he naturallybecomes much more accessible to every influence that addresses itself to either his hopesor fears.
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Statements made to TV and press reporters by the accused person in the presence ofpolice and also in police custody were held to be inadmissible.

Police Custody

Police custody means police control even if it be exercised in a home, in an openplace or in the course of a journey and not necessarily in the walls of a prison. Allcircumstances in which the accused remains in the custody of the police while inquiriesare made by them have been considered to fall within the purview of the statutory bar.The courts have declined to recognize in this context any distinction between lawful andunlawful police custody. Moreover, the concept of police custody does not necessarilyconnote the immediate presence of police officers, so long as the accused persons areaware that the place where they are detained is really accessible to the police.Thus, where a woman arrested for the murder of a young boy was left in the custody ofvillagers while the chowkidar (watchman) who arrested her left for the police-station andshe confessed in his absence, while the accused being carried on a tonga was left alone

by the policeman in the custody of the tonga-driver and he told of his criminality to thetoriga-driver and where the accused was taken to a doctor for treatment, the policemanstanding outside at the door, the accused confessed to the doctor, a confession to thevillage Pradhan accompanying the police officer after the accused was got identified bythe person who was last seen with the deceased, the confession in each of these caseswas held to be irrelevant. Thus, as long as the accused is in effective police control, he isin police custody and temporary absence of the policeman makes no difference. Thelegality of the custody is also immaterial. If there is custody in fact, the confession willbe vitiated even if the accused was illegally detained.

An accused made his confession to two persons of the locality. Subsequently, theconfession was reduced to writing inside the police station on the accused being brought

there. The Supreme Court said that such extra-judicial confession was not hit bysection 26.

Explaining the concept of custody, the court said:

Such custody need not necessarily be post-arrest custody. The word custody used inSection 26 is to be understood in a pragmatic sense. If any accused is within the generalsurveillance of the police during which his movements are restricted, then it can beregarded as custodial surveillance for the purposes of the section. If he makes anyconfession during that period to any person be he not a police officer, such confessionwould be held within the banned contours outlined in section 26.

Applying this to the facts of case the court said that the confession was not made whilethe accused was anywhere near the precincts of a police station or during the surveillanceof the police. The mere fact that the confession spoken to those witnesses was later put inblack and white is no reason to cover it with the wrapper of inadmissibility.

Presence of Magistrate

The section recognises one exception. If the accused confesses while in police custody


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but in the immediate presence of a Magistrate, the confession will be valid.The presence of a Magistrate rules out the possibility of torture thereby making theconfession free, voluntary and reliable. Immediate presence of the Magistrate means hispresence in the same room where the confession is being recorded. His presence in theadjoining room cannot afford the same degree of protection against torture.

A confession made while the accused is in judicial custody or lock-up will be relevant,even if the accused is being guarded by policemen.Where a statement does not amount to a confession, the bar contained in sections 24-26does not apply. It is clear that an admission of a fact, however incriminating, but not byitself establishing the guilt of the maker of such admission, would not amount toconfession within the meaning of Ss. 24-26.Thus spoke Supreme Court in a case where the statement of an accused, while incustody, to a doctor explaining the injuries on his person showed his presence in the roomwhere a woman was killed and who had caused those injuries by biting him, was held tobe relevant because it did not amount to a confession. It was only an admission of the factof the presence at the scene of the crime.

Section 27: How much of information received from accused may be proved:Provided that, when any fact is deposed to as discovered in consequence ofinformation received from a person accused of any offence, in the custody of apolice officer, so much of such information, whether it amounts to a confession ornot, as relates distinctly to the fact thereby discovered, may be proved.

Confessions to police and consequential discoveriesUnder the Evidence Act, there are two situations in which confessions to police areadmitted in evidence. One is when the statement is made in the immediate presence of aMagistrate,

And the second, when the statement leads to the discovery of a fact connected with thecrime. The discovery assures the truth of the statement and makes it reliable even if itwas extorted. This is so provided in Section 27.In order to assure genuineness of recoveries, it has become a matter of practice thatrecoveries should be affected in the presence of witnesses. The Supreme Court haspointed out that there is no such practice that where recoveries have to be effected fromdifferent places, different sets of persons should be called to witness them. The fact thatthe witnesses to recoveries are the neighbors of the deceased and, therefore, sympatheticto him, is not material.

The section is quite apparently laid out as a proviso or an exception to the preceding

section which deal with confessions in police custody and other involuntary confessions.Thus it seems that the intention of the legislature is that all objections to the validity ofthat part of the statement are washed off which leads to the discovery of an articleconnected with the crime. The finding of articles in consequence of the confessionappears to render trustworthy that part which relates to them.Whether such a statement proceeds out of inducements, threats or torture are absolutelyimmaterial. Statements made by the accused in connection with an investigation in someother case which lead to the discovery of a fact are also relevant. That part of an


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involuntary confession confirmed by the discovery of real evidence is admissible becausethe truth of the statement is established by that evidence.

Sections 26. and 27 compared

Though the section is in the form of a proviso to Sec. 26, these two sections donot deal with evidence of the same character.

Section 26 bans confession to police altogether, but S. 27 lets in a statement which leadsto a crucial discovery whether it amounts to confession or not.Under Section 26 a confession made in the presence of a Magistrate is whollyprovable, whereas

Section 27 permits only that part of the statement which leads to the discovery offact.3 The scope of the section was explained by the Privy Council inPulukuri Kottaya v. Emperor.

A number of accused persons were prosecuted for rioting and murder. Some of themwere sentenced to death and some to transportation for life. They appealed to the PrivyCouncil on grounds, among others, that the statements of some of them were admitted inviolation of Sections 26 and 27.

The statement of one of them was: About 14 days ago I, Kottaya, and people of myparty lay in wait for Sivayya and others... We all beat Sivayya and Subayya to death.Ramayya who was in our party received blows on his hands. He had a spear in his hands.He gave it to me then. I hid it and my stick in the rick of my village. I will show if youcome. We did all this at the instance of Pulukuri Kottaya. Another accused said: Istabbed shivayya with spear. I hid the spear in a yard in my village. I will show you the

place. The relevant articles were produced from the respective places of hiding.

Dying declaration

Dying declaration in English law

A dying declaration means the statement of a person who has died explaining thecircumstances of his death. According to English law the statement is relevant only whenthe charge is that of murder or manslaughter. This was laid down inR. v. Mead :

The accused who had been convicted of perjury (giving of false evidence) obtained anorder for a new trial. Before this could take place he shot dead one of the witnesses. Itwas sought to prove at the new trial a declaration of the deceased witness given before hisdeath in which he stated certain facts material to the charge of perjury.

ABBOTF, C.J., expressing the opinion of the court said : We are all of opinion that theevidence cannot be received Evidence of this description is only admissible where thedeath of the deceased is the subject of the charge, and circumstances of the death, the
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subject of the dying declaration.

Dying declaration or statements relating to cause of death [Clause i] Such astatement can be proved when it is made by a person as to the causeof his death, or as to any of the circumstances of the transaction which resulted in his

death. The statement will be relevant in every case or proceeding in which the cause ofthat persons death comes into question.The clause further goes on to say that suchstatements are relevant whether the person who made them was or was not, at the timewhen they were made, under expectation of death, and whatever may be the nature of theproceeding in which the cause of his death comes into question.

The basis of the rule as to dying declaration was explained in the early case ofR. v. Woodcock The prisoner was charged with the murder of his wife. Her statements asto circumstances of death were recorded by a magistrate. Death came forty-eight hoursafter this. She consistently and rationally repeated the circumstances of the ill-treatmentmeted out to her and she remained conscious till the last moment and did not seem at all

to be aware of her approaching dissolution.

While the principle stated in this case relating to the basis on which dying declarationsare given credit has been approved, the subsequent cases quite clearly emphasise thatdeclarations made without appreciation of impending death would not be admitted. Theprinciple which has now become settled is that the declaration must be made at a timewhen the marker is under settled and hopeless expectation of death. He must feel at thetime that he has no chance to live. This was pointed out in R. v. Jenkins. Though deathmust be thought by the declarant to be impending and inevitable, it is notnecessary that it should come immediately after the statement. This was laid down by theCourt of Criminal Appeal in R. v. Perry.

But the court rejected her appeal and held that the evidence was properly admitted. LoiuALVERSTONE, C.J., quoted WILLES, J., as saying that it must be proved that the manwas dying and there must be a settled hopeless expectation of death in the declarant.He then quoted LUSH, L.J.,4 to the effect A dying declaration is admitted in evidencebecause it is presumed that no person who is immediately going into the presence of hisMaker, will do so with a lie on his lips. But the person making the declaration mustentertain settled hopeless expectation of immediate death. If he thinks he will dietomorrow it will not do.

The Supreme Court in its decision in P. V. Radhakrishna v. State of Karnataka, notedthis in the following words The principle on which a dying declaration isadmitted inevidence is indicated in Latin maxim, nemo moriturus proesumitur mentiri, a man willnot meet his maker with a lie in his mouth. Explaining the word immediate which wasinserted by LusH, L.J., his Lordship saidImmediate death must be construed in the sense of death impending, not on that instant,but within a very, very short distance indeed. In other words, the test is whether all hopeof life has been abandoned so that the person making the statement thinks that deathmustfollow. Applying this principle to the facts, his Lordship held that the words I shall go


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should not be taken alone and the effect of the whole sentence was that she was underthehopeless expectation of death.

It is necessary that the deceased should have completed his statement. Thus, where in

Waugh v. R., the deceased, who was the victim of shooting, volunteered a statement tothe police but before completing it fell into a coma from which he never recovered.Rejecting the statement, LORD OAKSEY said.The dying declaration was inadmissible because on its face it was incomplete and noone can tell what the deceased was about to add; that it was in any event a serious errortoadmit it in part.

An attempt was made in a case before the Supreme Court to exclude a declaration on theground of incompleteness. The statement was recorded by a doctor. It was clear in allrespects. To wind up the statement the doctor asked the injured if he had anything else to

say. He lapsed into unconsciousness without answering this question. The court held thatthe statement was not incomplete. It was rightly admitted. Where the declaration is oral itis desirable that as far as possible the whole of it shall be proved, though it should remainvalid even if the witness is not able to remember the whole of it. A dying declaration maybe made by signs when the injured person is unable to speak. It is further necessary forthe relevancy of a dying declaration that the declarant, if he hadlived on, would have been a competent witness. Thus, in a prosecution for the murder ofa child, aged four years, it was proposed to put in evidence, as a dying declaration, whatthe child said shortly before her death. The declaration was held to be inadmissible.

Dying declaration under clause (i) of S. 32, Evidence Act Anticipation of death not

Necessary

Luckily many of these fine points of English law, some bordering on artificiality, werenot imported into the Evidence Act. One of the most important departures from Englishlaw that the Evidence Act marks is that here it is not necessary that the declarant shouldbe under any expectation of death.If the declarant has in fact died and the statement explains the circumstances surroundinghis death, the statement will be relevant even if no cause of death had arisen at the time ofthe making of the statement. The statutory authority is S. 32 (1) itself and the judicialauthority is the leading decision of the Privy Council inPakala Narayana Swami v. Emperor.

The wife of the accused was indebted to the deceased in the sum of P.s. 3,000which she had borrowed at 8% interest from the deceased on account of their needs abouta year before the tragedy. A number of letters signed by the accuseds wife and whichwere discovered from the deceaseds house clearly proved this fact. On 20th March,1937, the deceased whose name was K.N. received a letter, which was not signed byany1ody but which, it was reasonably clear had come from the accuseds wife, invitedhim to come that day or next day to Berhampur. K. N.s widow told the court that on thatday her husband showed her a letter and said that he was going to Berhampur as the


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Swamis wife had written to him inviting him to come to receive payment of his dues.K.N. and the wife of the accused were known to each other as she was the daughter of anofficer in whose office K.N. was employed as a peon. K.N. left his house the next day intime to catch the train to Berhampur. On Tuesday, 23rd March, his body, cut into sevenpieces, was found in a steel trunk in a third class compartment of a train at Pun, where the

trunk had been left unclaimed.

The accused was convicted of murder and sentenced to death. The evidenceagainst him was, firstly, his indebtedness to the deceased, secondly, the statement of thedeceased to his wife that he was going to the accused, thirdly, the steel trunk waspurchased by a Dhobie (washerman) for and on behalf of th accused. Some other detailsabout the arrival of the deceased at the accused house, discovery of blood-stained clothesand transportation &f the trunk to th station were also proved. The accused appealed tothe Privy Council on th grounds that the statement of the deceased to his wife that he wasgoing to th accused was wrongly admitted under S. 32 (i) and that the statement of thaccused to the police that the deceased arrived at his place was admitted i violation of

section 162, the Criminal Procedure Code. Acceptance of Pakala ruling by Supreme Court

The principles thus laid down relating to the relevancy of a dying declarationwere accepted by the Supreme Court inKaushal Rao v. State of Bombay.There were two rival factions of workers in a mill area in Nagpur. Rival factionseven attacked each other with violence. In one such violent attack one Baboo Lal wasinflicted a number of wounds in a street at about 9 p.m. He was taken to a hospital by hisfather and others reaching there at 9.25. On the way he told the party that he was attackedby four persons with swords and spears two of whom he identified as Kaushal andTukaram. The doctor in attendance immediately questioned him and recorded his

statement in which he repeated the above two names. A sub-Inspector also questionedhim and noted his statement to the same effect. By 11.35 p.m. a magistrate also appearedand after the doctor had certified that the injured was in a fit condition to make thestatement, the magistrate recorded the statement which was again to the same effect. Hedied the next morning.On the basis of these declarations recorded in quick succession by independent andresponsible public servants and as corroborated by the fact that both the named personswere absconding before they were arrested, the trial judge sentenced Kaushal to deathand Tukaram to life imprisonment. The High Court acquitted Tukaram altogether becauseof the confusion caused by the fact that in the dying declaration he was described as atell, whereas Tukaram present before the court was a kohli and in the same locality there

lived four persons bearing the same name some of whom were tells. But the conyiction ofKaushal was maintained and on appeal, the Supreme Court also affirmed the conviction,SINHA, J., (afterwards C.J.) did not consider it to he absolute ruI of law that a dyingdeclaration must be corroborated by other evidence before it can be acted upon. Thelearned judge had to face the following observation of the Supreme Court itself.It is settled law that it is not safe to convict an accused person on the evidence furnishedby a dying declaration without further corroboration because such a statement is notmade on oath and is not subjected to cross-examination and because the maker of it might


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be mentally and physically in a state of confusion.This statement occurred in a case inwhich the murder took place in a dark night and there were no lights available at theplace and, therefore, the court ruled that the declaration in question was not dependable.SINHA, J., therefore, pointed out that the observation, being unnecessary for deciding thecase, was obiter and did not have the force of law, and continued The Legislature in its

wisdom has enacted section 32 (i) of the Evidence Act. Thus the statement by a personwho is dead is itself a relevant fact. This provision has been made by the Legislature,advised as a matter of sheer necessity by way of an exception to the general rule thathearsay is no evidence and that evidence which has not been tested by cross-examination,is not admissible. The purpose of crops-examination is to test the veracity of thestatements made by a witness. In the view of the Legislature, that test is applied by thesolemn occasion, when the statement was made, when the person was in danger of losinghis life. At such a serious and solemn moment, that person is not expected to tell lies.Need for CorroborationEmphasizing this point further still the Supreme Court observed that a dying declaration

can be used as a sole basis of conviction. A person on death bed is in a position sosolemnand serene that it is equal to the obligation under oath. For this reason the requirement ofoath and cross-examination are dispensed with. The victim (declarant) being the onlyeye-witness, the exclusion of his declaration may defeat the ends of justice. The Courthas to be on its guard and see for itself that the declaration is voluntary and seems toreflect the truth.3Some General Propositions: Factors in reliability

The Court laid down the following general propositions1. There is no absolute rule of law that a dying declaration cannot be the sole basis

of conviction unless corroborated. If the declaration is coherent, consistent andtrustworthy and appears to have been made voluntarily, conviction can be basedon it even if there is no corroboration.2. Each case must go by its own facts.3. A dying declaration is not a weaker kind of evidence than any other piece ofevidence4. A dying declaration which has been properly recorded by a competent magistrate,that is to say, in the form of questions and answers, and, as far as practicable inthe words of the maker of the declaration is reliable.4 But it is not necessary torecord the declaration in the form.

Difference between examination in chief andcrossexamination and re-examination.

Section 137. Examination-in-chief. The examination of a witness by the party who callshim shall be called his examination-in-chief.
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Cross-examination.The examination of a witness by the adverse party shall be calledhis cross-examination.

Re-examination.-The examination of a witness, subsequent to the cross-examinationby the party who called him, shall be called his re-examination.

Examination-in-chief, Cross-examination, Re-examinationThe testimony of a witness is recorded in the form of answers to questions put to him.Witnesses are not permitted to deliver a speech to the Court, but are supposed only toanswer questions. This way, the testimony of the witnesses, can be confined to the factsrelevant to the issue. Such questioning of the witness is called his examination. Every witness is first examined by the party who has called him and this is knownas examination-in-chief. The witness is then questioned by the opposite party and this is known ascross examination. If the party who has called a witness seeks to question him again after the

cross examinationthat is known as re-examination.

The order of examination is laid down in section 138.According to the first para every witness shall first be examined by the party who hascalled him, then by the opposite party and then, if the party calling him so desires, bereexamined.The second para of the section enjoins that the examination-in-chief and the crossexaminationsmust be confined to relevant facts. But, the cross-examinations need not beconfined to the facts touched in the examination-in-chief.

If the examination-in-chief does not go round all the relevant facts, they may be exposedin the course of cross-examination. Thus cross-examination can extend to all the relevantfacts, whether touched in the examination-in-chief or not.

The purpose of cross-examination is to expose the truth about the testimony of thewitness. But this is not the only method of discrediting a witness. The Supreme Court haspointed out that if the oral testimony of certain witnesses is contrary to proved facts, theirevidence might well be discarded on that ground. If their testimony is on the face of itunacceptable, courts are not bound to accept it merely because there was nocross examination.

The following statement throws some light upon the purpose of cross-examination.Where the facts are in dispute, such cases, generally speaking, are proved by humantestimony. The value of that testimony depends on the honesty of the witness, his meansof knowledge, his memory, his intelligence and his impartiality. Every question is relevantwhich goes to indicate the presence or absence of these qualities or any of them.Tile object of cross examination may be described as three-fold.

First, to elicit from an adverse witness something in your favor;


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second, to destroy or weaken the force of what the witness has said against you, andthird, to show from the present attitude of the witness or from his past experience that heis unworthy of belief in whole or in part.

The lawyer seeks to discover the flaws, if any, in the testimony of the witness and also to

unmask perjury by the method of cross-examination.

Where a witness refused to appear for cross-examination after having been examined-in-chief,it was held that his evidence lost all credibility. Where an opportunity for cross examinationhas been given but has not been used at all used only partly, that does not

demolish the testimony of the witness.An order allowing cross-examination of a co-defendant by another co-defendantto the extent of clash of interests between them was held to be permissible.

Pro forma party

A pro forma defendant was given no right to examine the witness of the plaintiff either onadversely or friendly basis. He also does not have the right to produce his, own witnessesand adversely examine the defendant witnesses. This will be particularly so where he hasnot filed his own written statement.The proper limit of re-examination is to confine it to an explanation of the matters dealtwith in cross-examination. If the re-examination introduces new mailer, the adverse partywill have the right to cross-examine the witness over that new matter. The provisions ofsection 138 are as follows

Section 138. Order of Examination.Witnesses shall be first examined-in-chief then(if the adverse party so desires) cross-examined, then (if the party calling him sodesires) re-examined.The examination and cross-examination must relate to relevant facts but thecross examinationneed not be confined to the fact to which the witness testified on hisexamination-in-chief.

Direction of Re-examination.The re-examination shall be directed to the explanationof the matters referred to in cross-examination; and, if new matter is, by permission of theCourt, introduced in re-examination, the adverse party may further cross-examine uponthat matter.

Order in which witnesses to be examinedAn order of re-examination can be made by the court on an application by a party. It isnot restricted to the courts own motion.

A witness cannot be thrown open to cross-examination unless he is first examined-in-chief.Where the prosecution did not examine its witness and offered him to be cross-examined,the Supreme Court held that this amounted to abandoning ones own witness. There


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cannot be any cross-examination without the foundation of examination-in-chief. Such anapproach seriously affected the credibility of the prosecution case. Where the witness, wholodged the first information report (FIR) with some delay, wasasked no questions in cross-examination to elicit any explanation about the delay, it washeld that the evidence of the FIR remained unchallenged and, therefore, could be

believed to be true.

S. 139. Cross-examination of person called to produce a document.A personsummoned to produce a document does not become a witness by the mere fact that heproduces it and cannot be cross-examined unless and until he is called as a witness.

A person who has been called only to produce a document does not therebybecome a witness and, therefore, cannot be cross-examined.He can be cross-examinedonly when he is called as a witness. Section 139 so provides. Where the wife of a partnerwas called upon to produce the deed of dissolution of the firm, she was not permitted tobe examined as a witness. Such a person does not become a witness because he mayeither attend the court personally to produce the document or depute any person to do so.

S. 140. Witnesses to character.Witnesses to character may be cross-examined.A witness who appears to give evidence of a partys character may be examined in-chief and may also be cross-examined, and for that reason he may also be reexamined.The court should not allow scandalous and indecent imputations on the moralcharacter of the witness (a mother in this case) where the fact in issue was whether theaccused had kidnapped and murdered her son. The paternity of the child was not inquestion. The murderer in such a case cannot escape by establishing that the mother ofthe child was of loose character? The evidence of character is meant to assist the court inestimating the value of evidence brought before the court through the mouth of a witness.HOLT, C.J., observed : A man is not born a knave; there must be time to make

him so; nor is he presently discovered after he becomes one. A man may be reputed anable man this year, and yet be a beggar in the next, it is a misfortune that happens tomany men, and his former reputation will signify nothing to him upon this occasion.

octrine of Estoppel

Estoppel is a principle of law by which a person is held bound by the representations,made by hi, or arising out of his conduct. If, for example, a person made a statementintending that some other person should act upon it, he will be estopped, that is, will beprevented, from denying the truth of his statement once the other person has altered hisposition on the basis of the statement. A person, while booking his consignment with arailway company declared its value to be one hundred rupees. He was not permitted,when the packet was lost, to claim that its value was much more than that. A person soldcertain property on the presence of his mother. The mother was not afterwards permittedto say that the property belonged to her and therefore, her son had no right to sell. Byremaining silent she had made a representation that her son had the right to sell and thepurchaser having acted on that representation, it was too late to deny the sellers right to
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sell. The foundation of the doctrine is that a person cannot approbate and reprobate at thesame time. Where a party refused to invoke the arbitration clause in the agreement sayingthat the matter in dispute was not arbitable. He was not allowed subsequently to seekreference of the matter to arbitration. Refusal to refer parties to arbitration was held to beproper.

The principle of estoppel is incorporated in Section 115 of the Act.Estoppel: when one person has, by his declaration, act or omission, intentionally causedor permitted another person to believe a thing to be true and to act upon such beliefneither he nor his representative shall be allowed, in any suit or proceeding betweenhimself and such person or his representative, to deny the truth of that thing.The principle can be explained through Pickard V. Sears.

Where one by his words or conduct willfully causes another tho believe in the existenceof a certain state of things, and induces him to act on that belief, or to alter his previousposition, the former is preceded from averring against the latter a different state of things

as existing at that time.

In order to hold a person bound by estoppel under section 115, the requirements of thesection should be met, and they can be grouped under two headings:Firstly, there should be a representation that a certain state of thing is true, andSecondly, the person to whom such a representation is made should have acted on thisbelief of it.

In Chhaganlal Mehta v. Haribhai Patel the Supreme court analyzed the scope of section115 of the Act, and laid down that the following eight conditions must be satisfied tobring a case within the scope of estoppel. As defined in Section 115. 1. There must have

been a representation by a person to another person. Such arepresentation may be in any form a declaration, or an act or an omission.2. Such representation must have been of the existence of a fact- and not of futurepromises or intention.3. The representation must have been meant to have been relied upon4. There must have been belief on the part of the other party in its truth.5. There must have been some action on the faith of that declaration, act oromission. In other words, such declaration, act or omission must have actuallycaused the other person to act on the faith of it, and to alter his position toprejudice or detriment.6. The misrepresentation or conduct or omission must have been the proximatecause of leading the other party to act to his prejudice.7. The person claiming the benefit of an estoppel must show that he was not awareof the true state of things. There can be not estoppel if such a person was aware ofthe true state of affairs or if he had means of such knowledge.8. Only the persons to whom the representation was made or for whom it wasdesigned (or his representative) can avail of the doctrine.

Kinds of Estoppel:


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Estoppel are of seven kinds;

1. Estoppel by record under this kind of estoppel, a person is not permitted todispute the facts upon which a judgement against him is based. It is dealt with by(i) S.11 to 14 of the code of civil procedure, and (ii) s. 40 to 44 of the evidence

Act.2. Estoppel by deed under this kind of estoppel, where a party has entered into asolemn engagement by deed as to certain facts, neither he, nor any one claimingthrough or under him, is permitted to deny such facts.3. Estoppel by conduct, sometimes called estoppel by matter in pais, may arise fromagreement, misrepresentation, or negligence. Estoppel in pais is dealt with inSection 115 to 117.4. Equitable estoppel The evidence Act is not exhaustive of the rules of estoppel.Thus although section 116 only deals with the estoppel has been held to ariseagainst a mortgagee, an executor, a legatee, a trustee, or an assignee of property,precluding him from denying the title of the mortgagor, the testator, the author of

the trust, or the assignor, as the case may be, Further section 116 is not exhaustiveof all instances of estoppel as between landlord and tenant.5. Estoppel by negligence this type of estoppel enables the party as against someother party to claim a right of property which in fact he do not possess. Suchestoppel is described as estoppel by negligence or by conduct or representation orby a holding out of ostensible authority. Such estoppel is based on the existenceof a duty which the person estopped is owing to the person led into the wrongbelief or to the general public of whom the person is one6. Estoppel on benami transactions- if the owner of the property clothes a thirdperson with the apparent ownership and a right of disposition thereof, not merelyby transferring it to him, but also by acknowledging that the transferee has paid him the

consideration for it, he is estopped from asserting his title as against aperson to whom such third party has disposed of the property who has taken it ongood faith and for value.7. Estoppel on a point of law Estoppel refers to a belief in a fact and not in aproposition of law. A person cannot be estopped for a misrepresentation on apoint of law. An admission matter of estoppel. Where persons merely representtheir conclusions of law as to the validity of an assumed or admitted adoption,there is no representation of a fact to constitute an estoppel.

Leading Questions

S. 141. Leading QuestionsAny question suggesting the answer which the personputting it wishes or expects to receive is calledleading question.

S. 142. When they must not be asked.Leading question must not, if objected to bythe adverse party, be asked in an examination-in-chief or in a re-examination, except withthe permission of the Court.
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The Court shall permit leading questions as to matters which are introductory orundisputed, or which have in its opinion, been already sufficiently proved.

S. 143. When they may be asked.Leading questions may be asked incross-examination.

Leading questions

The purpose of an examination-in-chief, that is, questioning of the witnessThe party who has called him, is to enable the witness to tell to the court byOwn mouth the relevant facts of the case. A question should be put to him about therelevant facts and then he should be given the fullest freedom to answer the question outof the knowledge that he possesses. The witness should Left to tell the story in his ownwords. The answer should not be suggested. The question should not be so framed as tosuggest the answer also. The question should not carry an inbuilt answer in it. Any suchquestion which suggests to the witness the answer which he is expected to make is known

as a leading question. If such questions were permitted in examination-in-chief, thelawyer questioning him would be able to construct through the mouth of the witness astory that suits his client. A fair trial of the accused is not possible if Prosecution can askleading questions to a witness on a material part of his evidence against the accused. Thiswould offend the right of the accused to a fair trial as enshrined in Article 21 of theConstitution.

The expression leading question is defined in section 141. It says that any questionsuggesting the answer which the person putting it wishes or expects to receive is called aleading question.Where, for example, it is relevant to tell to the court as to where a witness lives, thequestion to be asked to him should be where do you live? And then may tell where helives. If the question is framed like this do you live in such and such place, the witnesswill pick up the hint and simply answer Yes. This is a leading question. It puts theanswer in the mouth of the witness and all that has to do is to throw it back.Section 142 enjoins that leading questions should not be asked in examination-in-chief orin re-examination if they are objected to by the opposite party. In case the opposite partyobjects, the court can decide the matter and may in its discretion either permit a leadingquestion or disallow it. The section enjoins the court that it shall permitleading questions as to matters which

Introductory or undisputed, or which have, in the opinion of the court, been alreadysufficiently proved. Leading questions can always be asked in cross-examination.

The total effect of the provisions is that leading questions may be asked inthe following cases

1. where they are not objected to by the opposite party;2. where the opposite party objects but the court overrules the objection;3. where they deal with matter of undisputed or introductory nature or the matter inquestion has already been satisfactorily proved; and


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4. leading questions may always be asked in cross-examination.

Competency of child witness.

Competence of witnesses:

Every person is competent to testify unless the Court feels that he is not able tounderstand the questions put to him or to give rational answers to them This may be duetotender years, extreme old age, disease, whether of body or mind, or any other cause ofthesame kind. Thus, no person is particular declared to be incompetent. It is wholly left to thediscretion of the Court to see whether the person who appears as a witness is capable ofunderstanding the questions put to him and of giving rational answers to them. The

disqualifying factors may be that he is too young a child or too old a man or is sufferingfrom a disease of mind or of body. Even a lunatic is not declared to be incompetent:Unless his lunacy prevents him from understanding or answering questions.

Child witness

As for children it was observed in an early case that no testimony whatever can belegally received except upon oath, and that an infant, thou under the age of seven years,maybe sworn in a criminal prosecution, provides such infant appears, on strict examination bythe Court, to possess a sufficient:

knowledge of the nature and consequences of an oath. For there is no precise or fixed ruleasto the time within which infants are excluded from giving evidence; but their admissibilitydepends upon the sense and reason the entertain of the danger and impiety to falsehood,which is to be collected from their answers to the questions propounded to them by theCourt; but if they a found incompetent to take an oath, their testimony cannot be received.The Privy Council considered the question of a child witness in Mohan Sugal v. The King.

A girl not more than ten years old was tendered by the Crown as the only eye-witness atthetrial of the accused for murder. The trial judge found that she was competent to testify asshe

appeared to be intelligent for her age and gave her answers frankly and without hesitation.But she was not able to understand the nature of an oath. Their Lordships held that suchunsworn evidence was admissible in the circumstances of the case.

LORD GODDARD, who delivered the judgment of the Board, also laid down that under theIndian Evidence Act, 1872, and the Indian Oaths Act, 1873, a court can receive evidenceofperson who does not understand the nature of an oath but is otherwise competent to
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testify,and understanding the questions put and being able to give rational answers. His Lordshipalso pointed out that it is a sound rule in practice not to act on the uncorroboratedevidenceof a child, whether sworn in or unsworn, but this rule is of prudence and not of law.

Allahabad High Court Ram Hazoor Paridey v. State, A.I.R. 1959 All. 409 : 1959 Cr. L.J.796, the observing: The difficulty with child witnesses often is that they can be made tobeing things which they have themselves not seen and this belief, when once it gets holdof achild witness, is difficult to state. It is also well-known that child witnesses can be tutoredmuch better than adults and further that when once a child witness has been properlytutoredthen such a child witness cannot easily be shaken in cross-examination. Satbir v.Haryana, girl of 10 years, her testimony found to be trustworthy in a murder case.Dattu Ramrao Sakhare v. State of Maharashtra, (1997) S.C.C. 341, child witness of 10

years found reliable and also corroborated otherwise.Prakash Singh v. State of M.P, A.I.R. 1993 S.C. 65, child of14 years, victimss younger brother, gave proper account of the incident of murder,testimony accepted.

State of Punjab v. Narinder Kumar, 1992 Cr. L.J. 2192 (P. & H.), the testimony of a childat the trial of her step-father for burning her mother, rejected because her conduct in notcrying out for help when her mother was groaning under pain was viewed as unnaturalmaking her testimony unreliable. The Supreme Court upheld the conviction for the rape ofachild partly on the strength of the evidence of some other children with whom she was

playing at the time.

The Supreme Court has emphasized the need for carefully evaluating the testimony of achild. Adequate corroboration of his testimony must be looked from other evidence. Thechild of 6 years in this case saw his mother being assaulted and killed at mid-night. Hewentback to sleep after witnessing the incident. This showed un naturality of conduct. He couldnot be relied upon. In reference to the competence of a child studying in 8th standard, theSupreme Court said that such child these days develops sufficient understanding toperceivefacts and to narrate them.

In a case of abduction and killing of children, there was a child witness who twice escapedthe abduction attempt; rejection of his testimony was held to be not proper. His versionwasalso supported by the testimony of his father. The court also said that it was not proper tohold that a child of ii years would not be able to remember the details of what happenedthree years ago.


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The trial court relied upon the evidence of two child witnesses. The court had theopportunity of watching their demeanor and found them to be truthful. They also stood thetest of cross-examination. Other circumstances also supported their evidence. Therejectionof their evidence by the High Court was held by the Supreme Court to be not proper.

Hearsay Evidance

Section 60 aims at rejection of evidence which is not direct, i.e., what is known ashearsay evidence.It is a fundamental rule of the law of evidence that hearsay is not admissible.The word hearsay is capable of various meanings and is ambiguous in the extreme. Ithas at least 3 distinct meanings

(i) Firstly, the word hearsay may mean whatever a person is heard to say.

(ii) Secondly, it may mean whatever a person declares on information given bysomeone else.

(iii) Thirdly, it may be synonymous with irrelevantIn the Evidence Act, to avoid this confusion, the word hearsay is not used. On thispoint, the Law Commission has observed: We have abstained from making use of theword hearsay from the uncertainty and vagueness of the meaning attributed to thatword.

A statement, oral or written, by a person not called as a witness comes under the general

rule of hearsay. Section 60 of the Act is directed against avoiding hearsay evidence in thesecond sense of the term as given above. The gist of section 60 of the Act is thatstatements made out of Court cannot be used to prove the truth of the matter contained insuch statements. But this rule that hearsay evidence is not admissible must be acceptedwith great caution.

The test to distinguish between direct evidence and hearsay evidence is as follows :

It is direct evidence if the Court, to act upon It, has to rely only upon the witness,whereas it is hearsay, if it has to rely not only upon the witness, but some other personalso.

Thus, a statement made by the widow of the deceased that she had heard from herhusband that a bicycle had been given to him by his employer, so that he may not be latein attending the factory, was held to be hearsay.Likewise, on a charge that no tickets were issued to the passengers, evidence of aninspector and a constable that when they had demanded the tickets, they were informedby the passengers that none had been issued to them, is hearsay

Thus, if X is charged with the murder of and if Z, in his evidence, states that I
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saw X stabbing Y with a knife, it would be a case of direct evidence. Instances ofhearsay evidence would be the evidence of A that Z told me that he had seen X stabbingY or that Z wrote a letter to me stating that he had seen X stabbing Y or that I read inthe newspaper that X had murdered Y.

Problem.The question is whether A was driving a bus, at a particular time.There are no eye-witnesses, but the witnesses tell the Court what others told them. Cansuch evidence be allowed ?

Ans.No, such evidence is not admissible, as it is hearsay Jaddoo Singh v. Malti Devi,A.l.R. 1983 At. 87)

HEARSAY EVIDENCE NOT ADMISSIBLE EVEN IF CONSENTED TO.

lt may be noted that hearsay evidence is not admissible even if not objected to, oreven if consented to. The language of S. 60, which prescribes that oral evidence, in allcases, must be direct, leads to the conclusion that the Court has no discretion in the

matter, except in the cases which fall under the exceptions discussed below. Thus, it isnot open to a Judge to admit hearsay evidence which is not admissible by the statute, justbecause it appears to him that such irregularevidence would throw some light on theissue.

Problem. A sues B for inducing C to break a contract of servicemade by him with A. C on leaving As service says to A I am leavingyou because B has made me a better offer. Is the statement of Crelevant and admissible in evidence ?

Ans. This statement of C made to A is inadmissible, inasmuch as it is hearsay.

GROUNDS FOR REJECTING HEARSAY EVDENCE.

Hearsay evidence is excluded on the ground that it is always desirable, in theinterest of justice, to get the persons whose statements are relied upon, into Court forexamination in the regular way, in order that many possible sources of inaccuracy anduntrustworthiness can be best brought to light and exposed, if they exist, by the test ofcross- examination.

The following are a few more reasons, namely1. It is not given on oath.2. It cannot be tested by cross-examination3. in many cases, it suppresses some better testimony which, though available, is notadduced.

4. Its admission tends to prolong trials unduly by lettingstatements the probative value of which is very slight.5. Its admission tends to open the door for fraud, which might be practised with impunity.6. It is secondhaod evidence not connected with personal responsibility, which exposes awitness to all the penalties of falsehood which may be inflicted by any of the sanctionsof truth. The person giving such evidence does not have any sense of responsibility,confronted with a contrary position, he always has a line of escape by pleading thatthis was not his personal knowledge and that he was so informed by Somebody else.


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7. There is a tendency that truth will be diluted and diminished with each repetition.If the rule were othejse it would attach undue importance to false rumour flying fromone foul tongue to another.

As rightly observed by Pope,. The flying rumour gathered as they rolled,Scarce any tale was sooner heard than told,

And all who told it added something new,All who heard it made enlargement too,In every ear it spread, on every tongue it grew.

EXCEPTIONS TO THE RULE OF HEARSAY EVIDENCE

The following are the exceptions to the general rule that hearsay evidence is notadmissible(1) A statement made outside the Court by a person who is not a witness may be a matterin issue, or it may be part of the circumstance which it is essential to ascertain. Insuch circumstances, the statement becomes admissible For example, a slanderous

statement made by a third person and heard by the witness will be relevant, notregarding the truth of the Contents of the statement, but regarding the fact of thestatement being made.(2) Sections 32 and 33 also lay down well-known exceptions to the general rule thathearsay evidence is not admissible.Thus. S. 32 (which has been discussed earlier) deals with the cases in which astatement of a relevant tact by a person who is dead, o who cannot be found, etc., isrelevant.Similarly, S. 33 (which has also been discussed earlier) lays down that evidencegiven by a witness in a judicial proceeding is relevant for the purpose of proving, in asubsequent judicial proceeding, the truth of the fact which it states, when the witness

is dead, or cannot be found, etc.(3) Under Section 6, a statement made by a person who is not a witness becomes relevantand admissible if the statement is part of the transaction in question (res gestae)

Primary Evidence and Secondary evidence

Primary evidence is the best or highest evidence; in other words , it is the kind of proofwhich in the eyes of the law, affords the greatest certainly of the fact in question, until itis shown that the production of primary evidence is out of the partys power, no otherproof for the fact is, in general, admitted. All evidence falling short of this in its degree is

termed secondary.

Primary evidence of a transaction, evidenced by writing is in the document itself, whichshould be produced in original to prove the terms of the contract, if it exists and isobtainable. Secondary evidence of the contents of a written instrument cannot be given,unless there is some legal excuse for non-production of the original. This is based on theprinciple that the best evidence of which the subject is capable ought to be produced or its
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absence is reasonably accounted for or explained, before secondary evidence (which isinferior) is admitted.

It may be noted that the party who wishes to give secondary evidence must lay the

foundation for reception of the secondary evidence. The burden of proof to show that thesecondary evidence is admissible is on him. If foundation was not laid for reception ofthe secondary evidence under section 65, the alleged copy produced should be excludedfrom consideration.Primary evidence means that the document itself is produced for the inspection of thecourt.

1. Where a document is executed in-(i) Several parts- each part is primary evidence of the document.(ii) Counterpart (each counterpart being executed by one or some of the

parties only), each counterpart is primary evidence as against theparties executing it.

2. Where a number of documents are all made by one uniform process (as in thecase of printing lithography or photography), each is primary evidence of thecontents of the rest. But where they are all copies of a common original, they arenot primary evidence of contents of the original.Secondary Evidence means and includes:

1. Certified copies given under section 74.

2. Copies made from the original, by mechanical processes which in themselvesensure the accuracy of the copy.

3. Copies compared from copies made from the original by mechanical process.

4. Copies made from original.

5. Copies compared with the original.

6. Counterparts of documents as against the parties who did not execute them.

7. Oral accounts of the contents of a document given by some person who hashimself seen it.

ALL CONFESSIONS ARE ADMISSIONS, BUT ALLADMISSIONS ARE NOT CONFESSION
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It was held by the Supreme Court in that there is a clear distinction between admissibilityof evidence and the weight to be attached to it. A confessional soliloquy is a direct pieceof evidence. It may be an expression of conflict or emotion, or an argument to findexcuse or justification for his act, or a conscious effort to stifle the pricked conscience, ora penitent or remorseful act of exaggeration of his part in the crime.

A confession may consist of several parts, and may reveal not only the actualcommission of the crime, but also the motive, the preparation, the opportunity, theprovocation, weapons used, the intention, concealment of the weapon and the subsequentconduct of the accused. If the confession is tainted, the taint attaches to each part of it. Itis not permissible in law to separate one part and to admit it in evidence as a non-confessionalstatement. Each part discloses some incriminating fact, i.e. some fact whichby itself or along with other admitted or proved facts suggests the inference that theaccused committed the crime and though each part taken singly may not amount to aconfession, each of them being part of the confessional statement partakes of thecharacter of the confession. If a statement contains an admission of an offence, not only

that admission, but also every other admission of an incriminating fact contained in thestatement, is part of the confession. If proof of the confession is excluded by anyprovision of law, the entire confessional statement in all its parts including the admissionsof minor incriminating facts must also be excluded, unless proof of it is permitted bysome other section.

ADMISSIONS DISTINGUISHED FROM CONFESSION

The term Admission is generally applied to civil transactions, the term confession beingusually restricted to acknowledgment of guilt in criminal case. The Indian Evidence Actalso proceeds on the same principles. Thus, Confessions are merely a species of which

the genus is the admission. Therefore, all confessions would be admissions, but alladmissions cannot be called confession.1. A confession is a statement made by an accused person admitting that he hascommitted an offense, or at any rate, substantially all the facts which constitutethe offense. Confessions find place in criminal proceedings only. An admission isa general term which suggests an inference as to any fact in issue or any relevantfact. Admission are generally used in civil proceedings; yet they may also be usedin criminal proceedings. Every confession is an admission, but every admission ina criminal case is not a confession. A statement may be irrelevant as a confession,but it may be relevant as an admission. A statement not admissible as a confessionmay yet, for other purposes, be admissible as an admission as against the person

who made it.2. A confession, if deliberately and voluntarily mad may be accepted as evidence initself of the matters confessed though as a rule of prudence, the courts mayrequire corroborative evidence; but an admission is not a conclusive proof of thematters admitted, though it may operate as an estoppel.3. A confession always goes against the person making it, except under section 30,under which the confession of one or more accused jointly tried for the offensecan be taken into consideration against the co-accused. An admission, in the


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contrary, may be used on behalf of the person, making it under the exceptionsprovided un section 21 but an admission by on of several defendants in a suit is noevidence against another defendant.The distinction between a confession and an admission wasdiscussed by the Privy Council in Pakala marayanaswami v.

Emperor, it observed that: No statement that contains self- Exculpatory matter can amount to aconfession, if the exculpatory statement is of some fact which, if true, would negative theoffence alleged to be confessed. Moreover, a confession must either admit in terms theoffence, or at any rate, substantially all the facts which constitute the offence. Anadmission of grossly incriminating fact, even a conclusively incriminating fact, is not byitself a confession, e.g. an admission that the accused is the owner of, and was in recentpossession of, the knife or revolver which caused a death with no explanation of anyother mans possession.Thus, it can be said that all confessions are admissions, but all admissionsare not confessions.

Relavance of Motive, Preparation and Conduct of the accused

S. 8. Motive, preparation and previous or subsequent conduct.-Any fact is relevant which shows or constitutes a motive or preparation for any fact inissue or relevant fact.

The conduct of any party, or of an

evidence summary 1

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