Admission and Confession

Admission: Section 17. An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances mentioned An admission is a statement of fact which waives or dispenses with the production of evidence, by conceding that the fact asserted by the opponent is true. Admissions are followed because the conduct of a party to a proceeding, in respect to the matter in dispute, whether by acts, speech, or witting, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue. Admission constitute a very weak kind of evidence, and the court may reject them if it is satisfied, from other circumstances that they 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 or relevant to an issue in the case. The predominant characteristics of this type of evidence consist 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 the case. Judicial admissions, being made in the case are fully binding on the party who makes them. They constitute a wavier of proof. They can be made the foundation of the rights 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 case where they operate as or have the effect of estoppels, in which case, they are fully binding, 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 made by the defendant. It was held that section 17 of the evidence act makes no distinction between an admission made by the person in a plaint signed and verified by him may be used as evidence against him in other suits. Of course, the admission cannot be regarded as conclusive, and it is open to the party concerned to show that the segment is not true. 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 that character 3. Persons having proprietary or pecuniary interest in the proceeding, if the statements are made(i) In their character of persons so interested and (ii) During the continuance of their interest 4. Persons from whom the parties to the suit have derived their interest in the subject matter of the suit provided that the statements are made during the continuance of

the interest of the person making the statement. 5. Persons whose position or liability it is necessary to prove as against any party to the suit if the statements a.) Are made during the continuance of such position or liability, and b.) 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 in reference to a matter in dispute. CONFESSION The expression confession has not been defined in the evidence act. A confession is a statement which either admits the offence, or at any rate, substantially all the facts which constitute the offence. Stephen in his Digest of law of Evidence defines It thus,: A confession is an admission made 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 a number 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 places them in the category of relevant evidence, presumably on the ground that, as they are declarations against the interest of the person making them they are probably true. The probative value of an admission or confession can be offered only by witness who heard the 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 retracted later on. 2. As against the maker of the confession, the retracted confession may form the basis 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 can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking an assurance in support of its conclusions deductable 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, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. Shall presume Whenever it is directed by this Act that the court shall presume a fact, it shall 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

(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 of rebuttal. Thus, the court may presume that a message forwarded from a telegraph office corresponds with the message delivered for transmission at the office, or the court may presume that a certified copy of foreign judicial records is genuine and accurate but in either case, the court can call for further evidence. Whenever it is laid down that court shall presume a fact, it means that the court must regard 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 take the fact as proved unless the party interested in disproving it produces sufficient evidence for that purpose. Thus, the court has to presume the genuineness of every document purporting to be in London Gazette or the official Gazette. Similarly, the court shall presume the accuracy of maps and plans made by a government authority likewise, the court shall presume that a power of attorney purporting to be executed before a proper authority was so executed.

Facts connected with facts in issue as to form the part of the same transaction are relevant. Discuss with reference to res gestae.
Section. 5. Evidence may be given of facts in issue and relevant facts.Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. Explanation.This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure. Illustrations (a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At As trial the following facts are in issue As beating B with the club; As causing Bs death by such beating;

As intention to cause Bs death. (b) A suitor does not bring with him, and have in readiness for productjon at the first hearing of the case, a bond on which he relies. The section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, 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 to form the part of the same transactions are relevant, whether they occurred at the 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 a crime, is a fact in issue, then evidence can be given of every fact which forms part of the same 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 this word has been scrupulously avoided by the section. The reason why this word has been avoided is that the doctrine has been productive of confusion. The phrase is Latin which literally means things done and when translated into English means things said and done in the course of a transaction. Every case that comes before a court of law has a fact 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 the transaction 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 isolation without reference to its antecedents in time, place or surrounding circumstances, may render the fact, difficult or even impossible to comprehend. Other facts or circumstances may be so closely connected with the fact in issue as to be, in reality, part and parcel of the same transaction. Such ancillary facts are described as forming part of the res gestae of 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 off accidentally. There was evidence to the effect that the deceased telephoned to say Get me 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 to the house and found the body of a dead woman. Her call and the words she spoke were held to be relevant as a part of the transaction which brought about her death. Her call in distress showed that the shooting in question was intentional and not accidental, for no victim 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 into account 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

name, as a crime, a contract, a wrong or any other subject of inquiry which may be in issue. Roughly a transaction may be described as any physical act, or series of connected physical 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 not in isolation from each other. It may be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife without knowing, in a broader sense, what was happening. Thus in OLeary v. Re gem,3 evidence was admitted of assaults, prior to a killing, committed by the 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 he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded 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 and especially evidence of the behavior of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and isolated from it, could only be presented as an unreal and not very intelligible event. The prisoners generally violent 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 the victim of an assault identifying the assailant while moving with the police in his car was relevant 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 difficulty does 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 task force is trained at Bombay. All these acts, though isolated in time and space, are still the parts of the same transaction. This is true of all transactions which are of continuing nature. Similarly, where the question is whether certain goods were delivered in the performance of a contract. The fact that they were delivered to several intermediaries in the process of ultimate delivery to the buyer is relevant, each successive delivery being a part 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 a contract 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 was held to be relevant. If he had merely informed his own clerk that he was dealing with C and not with B, evidence of such a remark, even though contemporaneous, would have been inadmissible as hearsay. But because the inquiry was made at the suggestion of B

and in order to establish the credit of the purchaser, without which the transaction could not 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, is naturally bound to cry. He may cry under pain or for help or spell out the name and description of his attacker. If the transaction, e.g., an accident, happened in a public place, a number of by-standers will make mutual conversation about the incident. The question is to what extent such statements can be regarded as parts of the transaction. Illustration (a) deals with a situation of this kind. The illustration supposes that a man has killed another by beating him. Whatever was said or done by the offender and the deceased or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. 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 have been made so soon before or after or along with the incident that there was hardly any time to deliberate and thereby to fabricate a false story. The result is that there are numerous cases in which such evidence has been admitted and numerous cases in which evidence of statements has been rejected and there is room for a sharp difference of opinion. One of the earliest, and as often happens, the clearest [illustration] is the decision of H0LT, C.J. in Thompson v. Trevanion. He held that what the wife said immediately upon 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 evidence would be unreliable. The subsequent case of R. v. Bedingfield shows the value of time in this connection. A woman, with her throat cut, came suddenly out of a room, in which she had been injured and shortly before she died, said : Oh dear Aunt, see what Bedingfield has done to 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 she has been heard to say something, as dont Harry. But here it was something, stated by her after it was all over. The statement was also held to be not relevant as a dying declaration because she did not have the time to reflect that she was dying. The result and the reason given seem to be contradictory. If she did not have the time to reflect that she was dying, much less did she have the time to concoct a story. She ran out the same instant that she was injured and the aunt was the first person she met with. That is why the Privy Council has observed that R. v. Bedingfield is more useful as a focus of

discussion, than for the decision on the facts. But even so the principle of the decision in Bedingfields case was approved by the House of Lords in R. v. Christie. This was a case of an indecent assault upon a young boy. Shortly after the incident the boy 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 boys statement was so separated by time and circumstances from the actual commission of the crime that it was not admissible as part of the res gestae. The emphasis of the courts seem to be that the words should be at least de recenti and not after an interval which should allow time for reflection and concocting a story. The statement should be an exclamation forced out of a witness by the emotion generated by an event rather than a subsequent narrative. The courts have been stressing the necessity for close association in time, place and circumstances between the statement and the crucial events. How slight a separation of time and place may suffice to make the statement a different res 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. A witness 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 what was 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 at least many seconds. Yet they were regarded as the part of the running over. The result is a strange contrast with R. v. Bedingfleld, where a woman emerging out of a room where her throat was cut exclaimed the name of her assailant and the exclamation was held to be a different res, though there could hardly be a case where the words uttered carried more clearly the mark of spontaneity and 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 as part 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 of the Board, said : The test should not be the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish; such external matters as the time which elapses between the events and the speaking of the words (or vice versa) and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for

the judge to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was disengaged from it as to be able to construct or adapt his account, he should exclude it. Referring to the statements which are made before the event, his Lordship said that the same principle should apply. If the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression res gestae may conveniently 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 a woman was shot dead, she made a telephone call and hysterically asked the operator to get her the police. Before the operator could do anything, the sobbing woman gave her address 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 telephone call and the words spoken were parts of the transaction. LORD WILBERFORCE, said There was ample evidence of the close and intimate connection between the statement ascribed to the deceased and the shooting which occurred very shortly afterwards. They were closely associated in place and in time. The way in which the statement came to be made (in a call for the police) and the tone of voice used, showed intrinsically that the statement was being forced from the deceased by an overwhelming pressure of contemporary 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 res gestae. Where shortly before the incident in which a woman died of gun shot, she exclaimed that a man was standing near her with a gun in his hand, the statement was held to be sufficiently proximate in time to the happening as to be a part of the same transaction. Where shortly after a murder, the person suspected of it explained away the absence of the deceased by saying that he had left the village, the Supreme Court held the statement to be a part of the transaction. Where on hearing the cries of the sister of the accused for help as her brother (the accused) had set his wife afire, the witness ran to the rescue 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 of the transaction, but has heard of it from others. For example, a person who has himself witnessed an accident can give an account of it to the court, but his wife, who heard of it

from him, cannot give evidence of what her husband told her, her knowledge being hearsay. 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. The injured person explained him the nature of the accident. He was allowed to give evidence of 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 of hearsay. 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 of PROFESSOR WIGMORE that the rule is not only useless but also harmful. It is useless because every part of it is covered by some other rule, for example, declarations as to the state of mind or health. It is harmful because it causes confusion about the limitations of the other rules. The precise limits of res gestae are themselves not easy to define. Facts differ so greatly that no fixed principle can be laid down as to the matters that will form parts of a transaction.

Confession made in police custody whether admissible

Section 26: Confession by accused while in custody of police not to be proved against him: No confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a magistrate shall be proved as against such person. Explanation.In this section Magistrate does not include the head of a village discharging 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 Code of Criminal Procedure, 1882. Confession in police custody No confession is made to anybody while the person making it is in police custody is provable. The section will come into play when the person in police custody is in conversation with any person other than a police officer and confesses to his guilt. The section is based upon the same fear, namely, that the police would torture the accused and force 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 police custody are not different in kind and quality. Both are likely to suffer from the blemish of not being free and voluntary. The policy objectives underlying the limitation are clear. It is manifest to every ones experience that from the moment a person feels himself in custody on a criminal charge, his mental condition undergoes a very remarkable change and he naturally becomes much more accessible to every influence that addresses itself to either his hopes or fears.

Statements made to TV and press reporters by the accused person in the presence of police 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 open place or in the course of a journey and not necessarily in the walls of a prison. All circumstances in which the accused remains in the custody of the police while inquiries are 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 and unlawful police custody. Moreover, the concept of police custody does not necessarily connote the immediate presence of police officers, so long as the accused persons are aware 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 of villagers while the chowkidar (watchman) who arrested her left for the police-station and she 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 the toriga-driver and where the accused was taken to a doctor for treatment, the policeman standing outside at the door, the accused confessed to the doctor, a confession to the village Pradhan accompanying the police officer after the accused was got identified by the person who was last seen with the deceased, the confession in each of these cases was held to be irrelevant. Thus, as long as the accused is in effective police control, he is in police custody and temporary absence of the policeman makes no difference. The legality of the custody is also immaterial. If there is custody in fact, the confession will be vitiated even if the accused was illegally detained. An accused made his confession to two persons of the locality. Subsequently, the confession 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 by section 26. Explaining the concept of custody, the court said: Such custody need not necessarily be post-arrest custody. The word custody used in Section 26 is to be understood in a pragmatic sense. If any accused is within the general surveillance of the police during which his movements are restricted, then it can be regarded as custodial surveillance for the purposes of the section. If he makes any confession during that period to any person be he not a police officer, such confession would 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 while the accused was anywhere near the precincts of a police station or during the surveillance of the police. The mere fact that the confession spoken to those witnesses was later put in black 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

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 the confession free, voluntary and reliable. Immediate presence of the Magistrate means his presence in the same room where the confession is being recorded. His presence in the adjoining 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 24-26 does not apply. It is clear that an admission of a fact, however incriminating, but not by itself establishing the guilt of the maker of such admission, would not amount to confession within the meaning of Ss. 24-26. Thus spoke Supreme Court in a case where the statement of an accused, while in custody, to a doctor explaining the injuries on his person showed his presence in the room where a woman was killed and who had caused those injuries by biting him, was held to be relevant because it did not amount to a confession. It was only an admission of the fact of 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 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. Confessions to police and consequential discoveries Under the Evidence Act, there are two situations in which confessions to police are admitted in evidence. One is when the statement is made in the immediate presence of a Magistrate, And the second, when the statement leads to the discovery of a fact connected with the crime. The discovery assures the truth of the statement and makes it reliable even if it was extorted. This is so provided in Section 27. In order to assure genuineness of recoveries, it has become a matter of practice that recoveries should be affected in the presence of witnesses. The Supreme Court has pointed out that there is no such practice that where recoveries have to be effected from different places, different sets of persons should be called to witness them. The fact that the witnesses to recoveries are the neighbors of the deceased and, therefore, sympathetic to 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 of that part of the statement are washed off which leads to the discovery of an article connected with the crime. The finding of articles in consequence of the confession appears to render trustworthy that part which relates to them. Whether such a statement proceeds out of inducements, threats or torture are absolutely immaterial. Statements made by the accused in connection with an investigation in some other case which lead to the discovery of a fact are also relevant. That part of an

involuntary confession confirmed by the discovery of real evidence is admissible because the 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 do not deal with evidence of the same character. Section 26 bans confession to police altogether, but S. 27 lets in a statement which leads to a crucial discovery whether it amounts to confession or not. Under Section 26 a confession made in the presence of a Magistrate is wholly provable, whereas Section 27 permits only that part of the statement which leads to the discovery of fact.3 The scope of the section was explained by the Privy Council in Pulukuri Kottaya v. Emperor. A number of accused persons were prosecuted for rioting and murder. Some of them were sentenced to death and some to transportation for life. They appealed to the Privy Council on grounds, among others, that the statements of some of them were admitted in violation of Sections 26 and 27. The statement of one of them was: About 14 days ago I, Kottaya, and people of my party 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 you come. We did all this at the instance of Pulukuri Kottaya. Another accused said: I stabbed 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 the circumstances of his death. According to English law the statement is relevant only when the charge is that of murder or manslaughter. This was laid down in R. v. Mead : The accused who had been convicted of perjury (giving of false evidence) obtained an order for a new trial. Before this could take place he shot dead one of the witnesses. It was sought to prove at the new trial a declaration of the deceased witness given before his death 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 the evidence cannot be received Evidence of this description is only admissible where the death of the deceased is the subject of the charge, and circumstances of the death, the

subject of the dying declaration. Dying declaration or statements relating to cause of death [Clause i] Such a statement can be proved when it is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. The statement will be relevant in every case or proceeding in which the cause of that persons death comes into question.The clause further goes on to say that 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. The basis of the rule as to dying declaration was explained in the early case of R. v. Woodcock The prisoner was charged with the murder of his wife. Her statements as to circumstances of death were recorded by a magistrate. Death came forty-eight hours after this. She consistently and rationally repeated the circumstances of the ill-treatment meted 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 declarations are given credit has been approved, the subsequent cases quite clearly emphasise that declarations made without appreciation of impending death would not be admitted. The principle which has now become settled is that the declaration must be made at a time when the marker is under settled and hopeless expectation of death. He must feel at the time that he has no chance to live. This was pointed out in R. v. Jenkins. Though death must be thought by the declarant to be impending and inevitable, it is not necessary that it should come immediately after the statement. This was laid down by the Court of Criminal Appeal in R. v. Perry. But the court rejected her appeal and held that the evidence was properly admitted. Loiu ALVERSTONE, C.J., quoted WILLES, J., as saying that it must be proved that the man was 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 evidence because it is presumed that no person who is immediately going into the presence of his Maker, will do so with a lie on his lips. But the person making the declaration must entertain settled hopeless expectation of immediate death. If he thinks he will die tomorrow it will not do. The Supreme Court in its decision in P. V. Radhakrishna v. State of Karnataka, noted this in the following words The principle on which a dying declaration isadmitted in evidence is indicated in Latin maxim, nemo moriturus proesumitur mentiri, a man will not meet his maker with a lie in his mouth. Explaining the word immediate which was inserted by LusH, L.J., his Lordship said Immediate 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 hope of life has been abandoned so that the person making the statement thinks that death must follow. Applying this principle to the facts, his Lordship held that the words I shall go

should not be taken alone and the effect of the whole sentence was that she was under the hopeless 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 to the 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 no one can tell what the deceased was about to add; that it was in any event a serious error to admit it in part. An attempt was made in a case before the Supreme Court to exclude a declaration on the ground of incompleteness. The statement was recorded by a doctor. It was clear in all respects. 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 that the statement was not incomplete. It was rightly admitted. Where the declaration is oral it is desirable that as far as possible the whole of it shall be proved, though it should remain valid even if the witness is not able to remember the whole of it. A dying declaration may be made by signs when the injured person is unable to speak. It is further necessary for the relevancy of a dying declaration that the declarant, if he had lived on, would have been a competent witness. Thus, in a prosecution for the murder of a child, aged four years, it was proposed to put in evidence, as a dying declaration, what the 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, were not imported into the Evidence Act. One of the most important departures from English law that the Evidence Act marks is that here it is not necessary that the declarant should be under any expectation of death. If the declarant has in fact died and the statement explains the circumstances surrounding his death, the statement will be relevant even if no cause of death had arisen at the time of the making of the statement. The statutory authority is S. 32 (1) itself and the judicial authority is the leading decision of the Privy Council in Pakala Narayana Swami v. Emperor. The wife of the accused was indebted to the deceased in the sum of P.s. 3,000 which she had borrowed at 8% interest from the deceased on account of their needs about a year before the tragedy. A number of letters signed by the accuseds wife and which were 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 by any1ody but which, it was reasonably clear had come from the accuseds wife, invited him to come that day or next day to Berhampur. K. N.s widow told the court that on that day her husband showed her a letter and said that he was going to Berhampur as the

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 an officer in whose office K.N. was employed as a peon. K.N. left his house the next day in time to catch the train to Berhampur. On Tuesday, 23rd March, his body, cut into seven pieces, 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 evidence against him was, firstly, his indebtedness to the deceased, secondly, the statement of the deceased to his wife that he was going to the accused, thirdly, the steel trunk was purchased by a Dhobie (washerman) for and on behalf of th accused. Some other details about the arrival of the deceased at the accused house, discovery of blood-stained clothes and transportation &f the trunk to th station were also proved. The accused appealed to the Privy Council on th grounds that the statement of the deceased to his wife that he was going to th accused was wrongly admitted under S. 32 (i) and that the statement of th accused 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 declaration were accepted by the Supreme Court in Kaushal Rao v. State of Bombay. There were two rival factions of workers in a mill area in Nagpur. Rival factions even attacked each other with violence. In one such violent attack one Baboo Lal was inflicted a number of wounds in a street at about 9 p.m. He was taken to a hospital by his father and others reaching there at 9.25. On the way he told the party that he was attacked by four persons with swords and spears two of whom he identified as Kaushal and Tukaram. The doctor in attendance immediately questioned him and recorded his statement in which he repeated the above two names. A sub-Inspector also questioned him and noted his statement to the same effect. By 11.35 p.m. a magistrate also appeared and after the doctor had certified that the injured was in a fit condition to make the statement, the magistrate recorded the statement which was again to the same effect. He died the next morning. On the basis of these declarations recorded in quick succession by independent and responsible public servants and as corroborated by the fact that both the named persons were absconding before they were arrested, the trial judge sentenced Kaushal to death and Tukaram to life imprisonment. The High Court acquitted Tukaram altogether because of the confusion caused by the fact that in the dying declaration he was described as a tell, 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 of Kaushal 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 dying declaration must be corroborated by other evidence before it can be acted upon. The learned 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 furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subjected to cross-examination and because the maker of it might

be mentally and physically in a state of confusion.This statement occurred in a case in which the murder took place in a dark night and there were no lights available at the place 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 the case, 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 person who 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 that hearsay is no evidence and that evidence which has not been tested by crossexamination, is not admissible. The purpose of crops-examination is to test the veracity of the statements made by a witness. In the view of the Legislature, that test is applied by the solemn occasion, when the statement was made, when the person was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies. Need for Corroboration Emphasizing 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 so solemn and serene that it is equal to the obligation under oath. For this reason the requirement of oath and cross-examination are dispensed with. The victim (declarant) being the only eye-witness, the exclusion of his declaration may defeat the ends of justice. The Court has to be on its guard and see for itself that the declaration is voluntary and seems to reflect the truth.3 Some General Propositions: Factors in reliability The Court laid down the following general propositions 1. 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 and trustworthy and appears to have been made voluntarily, conviction can be based on 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 of evidence 4. 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 in the words of the maker of the declaration is reliable.4 But it is not necessary to record the declaration in the form.

Difference between examination in chief and crossexamination and re-examination.

Section 137. Examination-in-chief. The examination of a witness by the party who calls him shall be called his examination-in-chief.

Cross-examination.The examination of a witness by the adverse party shall be called his cross-examination. Re-examination.-The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. Examination-in-chief, Cross-examination, Re-examination The 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 to answer questions. This way, the testimony of the witnesses, can be confined to the facts relevant 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 known as examination-in-chief. The witness is then questioned by the opposite party and this is known as cross examination. If the party who has called a witness seeks to question him again after the cross examination that 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 has called him, then by the opposite party and then, if the party calling him so desires, be reexamined. The second para of the section enjoins that the examination-in-chief and the cross examinations must be confined to relevant facts. But, the cross-examinations need not be confined 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 exposed in the course of cross-examination. Thus cross-examination can extend to all the relevant facts, whether touched in the examination-in-chief or not. The purpose of cross-examination is to expose the truth about the testimony of the witness. But this is not the only method of discrediting a witness. The Supreme Court has pointed out that if the oral testimony of certain witnesses is contrary to proved facts, their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable, courts are not bound to accept it merely because there was no cross 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 human testimony. The value of that testimony depends on the honesty of the witness, his means of knowledge, his memory, his intelligence and his impartiality. Every question is relevant which 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;

second, to destroy or weaken the force of what the witness has said against you, and third, to show from the present attitude of the witness or from his past experience that he is 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-inchief, it was held that his evidence lost all credibility. Where an opportunity for cross examination has 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-defendant to 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 on adversely or friendly basis. He also does not have the right to produce his, own witnesses and adversely examine the defendant witnesses. This will be particularly so where he has not filed his own written statement. The proper limit of re-examination is to confine it to an explanation of the matters dealt with in cross-examination. If the re-examination introduces new mailer, the adverse party will have the right to cross-examine the witness over that new matter. The provisions of section 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 so desires) re-examined. The examination and cross-examination must relate to relevant facts but the cross examination need not be confined to the fact to which the witness testified on his examination-in-chief. Direction of Re-examination.The re-examination shall be directed to the explanation of the matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. Order in which witnesses to be examined An order of re-examination can be made by the court on an application by a party. It is not 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

cannot be any cross-examination without the foundation of examination-in-chief. Such an approach seriously affected the credibility of the prosecution case. Where the witness, who lodged the first information report (FIR) with some delay, was asked no questions in cross-examination to elicit any explanation about the delay, it was held 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 person summoned to produce a document does not become a witness by the mere fact that he produces 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 thereby become a witness and, therefore, cannot be cross-examined.He can be cross-examined only when he is called as a witness. Section 139 so provides. Where the wife of a partner was called upon to produce the deed of dissolution of the firm, she was not permitted to be examined as a witness. Such a person does not become a witness because he may either 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 inchief 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 moral character of the witness (a mother in this case) where the fact in issue was whether the accused had kidnapped and murdered her son. The paternity of the child was not in question. The murderer in such a case cannot escape by establishing that the mother of the child was of loose character? The evidence of character is meant to assist the court in estimating 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 an able man this year, and yet be a beggar in the next, it is a misfortune that happens to many 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 statement intending that some other person should act upon it, he will be estopped, that is, will be prevented, from denying the truth of his statement once the other person has altered his position on the basis of the statement. A person, while booking his consignment with a railway 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 sold certain property on the presence of his mother. The mother was not afterwards permitted to say that the property belonged to her and therefore, her son had no right to sell. By remaining silent she had made a representation that her son had the right to sell and the purchaser having acted on that representation, it was too late to deny the sellers right to

sell. The foundation of the doctrine is that a person cannot approbate and reprobate at the same time. Where a party refused to invoke the arbitration clause in the agreement saying that the matter in dispute was not arbitable. He was not allowed subsequently to seek reference of the matter to arbitration. Refusal to refer parties to arbitration was held to be proper. The principle of estoppel is incorporated in Section 115 of the Act. Estoppel: when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. The principle can be explained through Pickard V. Sears. Where one by his words or conduct willfully causes another tho believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his previous position, 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 the section 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, and Secondly, the person to whom such a representation is made should have acted on this belief of it. In Chhaganlal Mehta v. Haribhai Patel the Supreme court analyzed the scope of section 115 of the Act, and laid down that the following eight conditions must be satisfied to bring 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 a representation 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 future promises or intention. 3. The representation must have been meant to have been relied upon 4. 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 or omission. In other words, such declaration, act or omission must have actually caused the other person to act on the faith of it, and to alter his position to prejudice or detriment. 6. The misrepresentation or conduct or omission must have been the proximate cause 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 aware of the true state of things. There can be not estoppel if such a person was aware of the 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 was designed (or his representative) can avail of the doctrine. Kinds of Estoppel:

Estoppel are of seven kinds; 1. Estoppel by record under this kind of estoppel, a person is not permitted to dispute 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 a solemn engagement by deed as to certain facts, neither he, nor any one claiming through or under him, is permitted to deny such facts. 3. Estoppel by conduct, sometimes called estoppel by matter in pais, may arise from agreement, misrepresentation, or negligence. Estoppel in pais is dealt with in Section 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 arise against 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 exhaustive of all instances of estoppel as between landlord and tenant. 5. Estoppel by negligence this type of estoppel enables the party as against some other party to claim a right of property which in fact he do not possess. Such estoppel is described as estoppel by negligence or by conduct or representation or by a holding out of ostensible authority. Such estoppel is based on the existence of a duty which the person estopped is owing to the person led into the wrong belief or to the general public of whom the person is one 6. Estoppel on benami transactions- if the owner of the property clothes a third person with the apparent ownership and a right of disposition thereof, not merely by 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 a person to whom such third party has disposed of the property who has taken it on good faith and for value. 7. Estoppel on a point of law Estoppel refers to a belief in a fact and not in a proposition of law. A person cannot be estopped for a misrepresentation on a point of law. An admission matter of estoppel. Where persons merely represent their 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 person putting it wishes or expects to receive is called leading question. S. 142. When they must not be asked.Leading question must not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion, been already sufficiently proved. S. 143. When they may be asked.Leading questions may be asked in cross-examination. Leading questions The purpose of an examination-in-chief, that is, questioning of the witness The party who has called him, is to enable the witness to tell to the court by Own mouth the relevant facts of the case. A question should be put to him about the relevant facts and then he should be given the fullest freedom to answer the question out of the knowledge that he possesses. The witness should Left to tell the story in his own words. The answer should not be suggested. The question should not be so framed as to suggest the answer also. The question should not carry an inbuilt answer in it. Any such question 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, the lawyer questioning him would be able to construct through the mouth of the witness a story that suits his client. A fair trial of the accused is not possible if Prosecution can ask leading questions to a witness on a material part of his evidence against the accused. This would offend the right of the accused to a fair trial as enshrined in Article 21 of the Constitution. The expression leading question is defined in section 141. It says that any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question. Where, for example, it is relevant to tell to the court as to where a witness lives, the question to be asked to him should be where do you live? And then may tell where he lives. If the question is framed like this do you live in such and such place, the witness will pick up the hint and simply answer Yes. This is a leading question. It puts the answer 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 or in re-examination if they are objected to by the opposite party. In case the opposite party objects, the court can decide the matter and may in its discretion either permit a leading question or disallow it. The section enjoins the court that it shall permit leading questions as to matters which Introductory or undisputed, or which have, in the opinion of the court, been already sufficiently proved. Leading questions can always be asked in cross-examination. The total effect of the provisions is that leading questions may be asked in the 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 in question has already been satisfactorily proved; and

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 to understand the questions put to him or to give rational answers to them This may be due to tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Thus, no person is particular declared to be incompetent. It is wholly left to the discretion of the Court to see whether the person who appears as a witness is capable of understanding 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 suffering from 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 be legally received except upon oath, and that an infant, thou under the age of seven years, may be sworn in a criminal prosecution, provides such infant appears, on strict examination by the Court, to possess a sufficient: knowledge of the nature and consequences of an oath. For there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends 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 the Court; 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 at the trial of the accused for murder. The trial judge found that she was competent to testify as she 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 such unsworn evidence was admissible in the circumstances of the case. LORD GODDARD, who delivered the judgment of the Board, also laid down that under the Indian Evidence Act, 1872, and the Indian Oaths Act, 1873, a court can receive evidence of person who does not understand the nature of an oath but is otherwise competent to

testify, and understanding the questions put and being able to give rational answers. His Lordship also pointed out that it is a sound rule in practice not to act on the uncorroborated evidence of 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 to being things which they have themselves not seen and this belief, when once it gets hold of a child witness, is difficult to state. It is also well-known that child witnesses can be tutored much better than adults and further that when once a child witness has been properly tutored then 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 of 14 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 child at the trial of her step-father for burning her mother, rejected because her conduct in not crying out for help when her mother was groaning under pain was viewed as unnatural making her testimony unreliable. The Supreme Court upheld the conviction for the rape of a child 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 a child. Adequate corroboration of his testimony must be looked from other evidence. The child of 6 years in this case saw his mother being assaulted and killed at mid-night. He went back to sleep after witnessing the incident. This showed un naturality of conduct. He could not be relied upon. In reference to the competence of a child studying in 8th standard, the Supreme Court said that such child these days develops sufficient understanding to perceive facts and to narrate them. In a case of abduction and killing of children, there was a child witness who twice escaped the abduction attempt; rejection of his testimony was held to be not proper. His version was also supported by the testimony of his father. The court also said that it was not proper to hold that a child of ii years would not be able to remember the details of what happened three years ago.

The trial court relied upon the evidence of two child witnesses. The court had the opportunity of watching their demeanor and found them to be truthful. They also stood the test of cross-examination. Other circumstances also supported their evidence. The rejection of 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 as hearsay 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. It has 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 by someone else. (iii) Thirdly, it may be synonymous with irrelevant In the Evidence Act, to avoid this confusion, the word hearsay is not used. On this point, the Law Commission has observed: We have abstained from making use of the word hearsay from the uncertainty and vagueness of the meaning attributed to that word. 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 the second sense of the term as given above. The gist of section 60 of the Act is that statements made out of Court cannot be used to prove the truth of the matter contained in such statements. But this rule that hearsay evidence is not admissible must be accepted with 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 person also. Thus, a statement made by the widow of the deceased that she had heard from her husband that a bicycle had been given to him by his employer, so that he may not be late in attending the factory, was held to be hearsay. Likewise, on a charge that no tickets were issued to the passengers, evidence of an inspector and a constable that when they had demanded the tickets, they were informed by 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

saw X stabbing Y with a knife, it would be a case of direct evidence. Instances of hearsay evidence would be the evidence of A that Z told me that he had seen X stabbing Y or that Z wrote a letter to me stating that he had seen X stabbing Y or that I read in the 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. Can such 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, or even if consented to. The language of S. 60, which prescribes that oral evidence, in all cases, 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 is not open to a Judge to admit hearsay evidence which is not admissible by the statute, just because it appears to him that such irregularevidence would throw some light on the issue. Problem. A sues B for inducing C to break a contract of service made by him with A. C on leaving As service says to A I am leaving you because B has made me a better offer. Is the statement of C relevant 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 the interest of justice, to get the persons whose statements are relied upon, into Court for examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be best brought to light and exposed, if they exist, by the test of cross- examination. The following are a few more reasons, namely 1. It is not given on oath. 2. It cannot be tested by cross-examination 3. in many cases, it suppresses some better testimony which, though available, is not adduced. 4. Its admission tends to prolong trials unduly by letting statements 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 a witness to all the penalties of falsehood which may be inflicted by any of the sanctions of 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 that this was not his personal knowledge and that he was so informed by Somebody else.

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 from one 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 not admissible (1) A statement made outside the Court by a person who is not a witness may be a matter in issue, or it may be part of the circumstance which it is essential to ascertain. In such circumstances, the statement becomes admissible For example, a slanderous statement made by a third person and heard by the witness will be relevant, not regarding the truth of the Contents of the statement, but regarding the fact of the statement being made. (2) Sections 32 and 33 also lay down well-known exceptions to the general rule that hearsay evidence is not admissible. Thus. S. 32 (which has been discussed earlier) deals with the cases in which a statement of a relevant tact by a person who is dead, o who cannot be found, etc., is relevant. Similarly, S. 33 (which has also been discussed earlier) lays down that evidence given by a witness in a judicial proceeding is relevant for the purpose of proving, in a subsequent 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 relevant and 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 proof which in the eyes of the law, affords the greatest certainly of the fact in question, until it is shown that the production of primary evidence is out of the partys power, no other proof 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, which should be produced in original to prove the terms of the contract, if it exists and is obtainable. 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 the principle that the best evidence of which the subject is capable ought to be produced or its

absence is reasonably accounted for or explained, before secondary evidence (which is inferior) 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 the secondary evidence is admissible is on him. If foundation was not laid for reception of the secondary evidence under section 65, the alleged copy produced should be excluded from consideration. Primary evidence means that the document itself is produced for the inspection of the court. 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 the parties executing it. 2. Where a number of documents are all made by one uniform process (as in the case of printing lithography or photography), each is primary evidence of the contents of the rest. But where they are all copies of a common original, they are not 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 themselves ensure 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 has himself seen it.

ALL CONFESSIONS ARE ADMISSIONS, BUT ALL ADMISSIONS ARE NOT CONFESSION

It was held by the Supreme Court in that there is a clear distinction between admissibility of evidence and the weight to be attached to it. A confessional soliloquy is a direct piece of evidence. It may be an expression of conflict or emotion, or an argument to find excuse or justification for his act, or a conscious effort to stifle the pricked conscience, or a 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 actual commission of the crime, but also the motive, the preparation, the opportunity, the provocation, weapons used, the intention, concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a nonconfessional statement. Each part discloses some incriminating fact, i.e. some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime and though each part taken singly may not amount to a confession, each of them being part of the confessional statement partakes of the character 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 the statement, is part of the confession. If proof of the confession is excluded by any provision of law, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section. ADMISSIONS DISTINGUISHED FROM CONFESSION The term Admission is generally applied to civil transactions, the term confession being usually restricted to acknowledgment of guilt in criminal case. The Indian Evidence Act also 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 all admissions cannot be called confession. 1. A confession is a statement made by an accused person admitting that he has committed an offense, or at any rate, substantially all the facts which constitute the offense. Confessions find place in criminal proceedings only. An admission is a general term which suggests an inference as to any fact in issue or any relevant fact. Admission are generally used in civil proceedings; yet they may also be used in criminal proceedings. Every confession is an admission, but every admission in a 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 confession may 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 in itself of the matters confessed though as a rule of prudence, the courts may require corroborative evidence; but an admission is not a conclusive proof of the matters 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 offense can be taken into consideration against the co-accused. An admission, in the

contrary, may be used on behalf of the person, making it under the exceptions provided un section 21 but an admission by on of several defendants in a suit is no evidence against another defendant. The distinction between a confession and an admission was discussed by the Privy Council in Pakala marayanaswami v. Emperor, it observed that: No statement that contains self- Exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate, substantially all the facts which constitute the offence. An admission of grossly incriminating fact, even a conclusively incriminating fact, is not by itself a confession, e.g. an admission that the accused is the owner of, and was in recent possession of, the knife or revolver which caused a death with no explanation of any other mans possession. Thus, it can be said that all confessions are admissions, but all admissions are 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 in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation. 1. -- The word conduct in this section does include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2.-- When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. 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. (Motive). (b) A sues B upon a bond for the payment of money. B denies the making of the bond. The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, is relevant. (Motive). (c) A is tried for the murder of B by poison.

The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant. (Preparation). (d) The question is, whether a certain document is the will of A. The facts that, not long before the date of the alleged will, A made inquiry into matters to which the provisions of the alleged will relate, that he consulted vakils in reference to making the will, and that he caused drafts of other wills to be prepared of which he did not approve, are relevant. (Preparation). Section 8 provides for the relevancy of three principal facts which are very important in connection with every kind of civil or criminal case. They are 1. Motive; 2. Preparation; and 3. Conduct. MOTIVE Section 8 says that facts which show a motive for any facts in issue or relevant facts, are relevant. Motive is the moving power which impels one to do an act. It is the inducement for doing the act. Motive by itself is no crime, however heinous it may be. But once a crime has been committed, the evidence of motive becomes important. Therefore, evidence of the existence of a motive for the crime charged is admissible. Evidence f motive is always relevant, for men do not act wholly without motive. Evidence of motive helps the court to connect the accused with the deed. The act in question must have been done by the man who had the motive to do it. Evidence of motive figures in almost every criminal case. A few examples will suffice, On the murder of an old widow possessed of wealth, the fact that the accused was to inherit her fortunes on her death was held to be relevant as it showed that the accused had a motive to dispose her off.2 Similarly, where a woman was shot dead by her husband while she was alone with him in their home3 and where a woman was drowned while she was swimming with her husband, she being a good swimmer and the water being shallow, and in each case the husband resorted to the defense of accident, it was held that evidence could be given of the fact that in each case the husband had liaison with another woman as this would show that he had the strongest reason to be rid of his wife. In one of them the court said that it would put an incredible strain on human experience if Plomps (the accuseds) evident desire to get rid of his wife, presaged as it was by his talks and action, were fulfilled by her completely fortuitous death although a good swimmer and in circumstances which ought not to have involved any danger to her. Explaining the value of the evidence of motive, the court added: Evidence of motive is of itself, of course, in the nature of circumstantial evidence as to the main question in issue. In considering the conduct of a man, regard is had by judges and juries to the ordinary conduct of human affairs. When a man does an extraordinary or a wicked thing, there is probably some cause inducing or impelling him to do so and the more heinous the act is the more important becomes the question of motive. When, therefore, the question for consideration is whether such an act is intentional or not, it is of the higher importance to consider whether the person in question had any inducement to form such an intention. The existence of a motive may tend to show either that the person

concerned did the act simpliciter or that he did it intentionally. In Natha Sinngh v. Emperor, the Privy Council pointed out that facts showing motive should be admitted even if it involves evidence of other crimes committed by the accused, which is ordinarily not allowed. Their Lordships further pointed out Proof of motive or inducement for the commission of the offence is not necessary when there is clear evidence that a person has committed an offence. When evidence connecting the accused with the commission of the crime is weak, motive can hardly make up for the weakness of the prosecution case. If prosecution case is convincing beyond reasonable doubt, it is not necessary for the prosecution to prove motive or that motive was adequate. Where an eye-witness account of the happening of a fact is so clear and truthful that it establishes the connection of the person accused as the perpetrator of that fact. The evidence of motive pales into insignificance. It may play only a secondary role. PREPARATION Section 8 further provides that acts of preparation are relevant. It says that facts which show or constitute preparation for any fact in issue or relevant fact are relevant. Preparation by itself is no crime. The act of purchasing a pistol for the purpose of shooting down a man or a match box for burning a house, is by itself no offence. But once an offence has been committed, the evidence of preparation becomes most important for the crime must have been committed by the man who was preparing for it. Thus, for example, tile sharpening of a knife before an affray in which the knife was used is relevant as an act of preparation. For the same reason, it is relevant to show that the accused hired a revolver a few days before the murder. Illustration (c) refers to an act of preparation. Where death is caused by poisoning, the fact that shortly before the accused procured poison similar to that which was administered is relevant. The illustration is close to the facts of R. v. Palmer, where drawing the attention of the jury to an act of preparation LORD CAMPBELL, C.J. said Then, gentlemen, comes the more direct evidence that tile prisoner procured this very poison for what purpose was that obtained? You have no account of that purpose. What was the intention with which it was purchased, and what was the application of it, you are to infer. Illustration (d) refers to the acts of preparation that go before the making of a will. In reference to wills the question usually arises whether the will is genuine or forged. The illustration says that not long before the date of the will, the testator made inquiries into the matter to which tile provisions of the will relate, that he consulted vakils in reference to making the will and that he caused drafts of other wills to be prepared of which he did not approve, are relevant. These acts of preparation go to show that the will may be genuine. CONDUCT The last part of section 8 deals with the relevancy of the evidence of conduct. The conduct of a man is particularly important to the law of evidence, for his guilt or the state of his mind is often reflected by his conduct. Guilty mind begets guilty conduct.

Section 8 accordingly provides that the conduct of the following parties is Relevant. 1. The conduct of the parties to a suit or proceeding or of their agents. This category would include the conduct of the plaintiff and defendant and their agents in a civil suit and of the accused in a criminal proceeding. The conduct of an agent of an accused person may not, perhaps, be relevant as that is not likely to reflect the guilt of the accused. 2. The conduct of any person an offence against whom is the subject of any proceeding. This includes the conduct of the injured person. This had to be separately mentioned because in many criminal proceedings the injured person is not a party. Whereas the conduct of the injured person is not always without significance. Explaining this in Queen-Empress v. Abdullah, MAHMOOD, J. said: The reason why the Legislature said this was probably the fact that by a pure legal technicality the Crown occupies in criminal matters a position analogous to that of a plaintiff in a civil suit. The evidence of the conduct of such parties is allowed if two conditions are fulfilled, namely, the conduct must be in reference to the facts in issue or the facts relevant to them and, secondly, the conduct is such as influences or is influenced by the facts in issue or the relevant facts, Subject to these conditions. The evidence of conduct is relevant whether it is previous to the happening of the facts or subsequent to them. The reason why evidence of conduct is allowed is not far to seek. A mans conduct is always influenced by what he has been doing before or after the act.

Facts which need not be proved. (Ss. 56-58)

The following two facts need not be proved, viz., 1. Facts which the parties or their agents agree to admit at the hearing, or which they are deemed to have admitted by their pleadings. The Court may, however, require such facts also to be proved otherwise than by such admission. (S. 58) 2. Facts of which the Court will take judicial notice. (S. 56) Judicial notice (S. 57) The Courts take judicial notice of the following thirteen facts, viz., 1. Laws in force in India. 2. Public Acts of Parliament, and loca and personal Acts declared by it to be judicially noticed. 3. Articles of War for the Indian Army, Navy or Air force. 4. The course of proceedings of Parliament of the United Kingdom, of the Constituent

Assembly of India, of Parliament and of the Legislatures established in a State or in India. 5. The accession and the sign manual of the Sovereign of the U.K. and Ireland. 6. All seals of which English Courts take judicial notice; the seals of all the Courts in India, and of all Courts out of India established by the authority of the Central Government; the seals of Courts of Admiralty and Maritime Jurisdiction, and of Notaries Public, V and all seals which any person is authorised to use by the Consiitution or by Act of Parliament of the U.K. or an Act or Regulation having the force of law in India. 7. The accession to office, names, titles, functions and signatures of public officers in any State, if their appointment notified in the Official Gazette. 8. The existence, title and national flag of every State or Sovereign recognized by the Government of India. 9. The divisions of time, geographical divisions of the world and gazetted public festivals, feasts and holidays notified in the Official Gazette. 10. The territories under the dominion of the Government of India. 11. The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons. 12. The names of (a) the members and officers of the Court, (b) their deputies, subordinates and assistants, (c) officers executing its process, (c advocates, attorneys, proctors, vakils, pleaders, and (e) other persons legally authorised to appear and act before it. 13. The rule of the road on land or at sea (as for instance, that vhicies in India must keep to the left of a road, that steamboats in the sea should give way to sailing ships, etc.). In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact,. it may refuse to do so, unless and until such person produces any such book or document as it may consider necessary to enable it to do so. TAKING JUDICIAL NOTICE This expression means recognition without proof of something as existing or as being true. Judicial notice is based upon very obvious reasons of convenience and expediency: The wisdom of dispensing with proof of matters within the common knowledge of everyone has never been questioned. Judicial notice is the cognizance taken by the Court itself of certain matters which

are so notorious or clearly established, that the evidence of their existence is deemed unnecessary. S. 56.provides that no fact of which the Court will take judicial notice need be proved, and S. 57 enumerates the facts, of which the Court must take judicial notice. The Court takes judicial notice of these facts, and in doing so, may resort for aid to appropriate books or documents of reference. A party calling upon the Court to take judicial notice of any fact must be ready to supply it with any necessary book or document for reference. Judicial notice takes the place of proof, and is of equal force. As a means of establishing facts, it is therefore superior to evidence. (Beardsley v. Irving) The Supreme Court has held that the Court can take judicial notice of the fact that an allIndia strike was imminent on a particular day, and that it actually took place from a certain day. (Omkar Nath v. Delhi Adm., AIR. 1977 S.C. 1108) In one interesting English case (McOuaker v. Goddard, (1940) KB. 687), the question was whether the Court ought to take judicial notice that a camel is not a wild animal. The plaintiff in this case was bitten by a camel whilst visiting the zoo belonging to the defendant. The camel was held to be a wild animal; the plaintiff would be entitled to damages under the Rule in Rylands v. Fletcher, whereas if the Court held that the camel was a domestic animal, the plaintiff would have to show that the defendant had knowledge of its vicious nature. Ultimately, the Court took judicial notice of the fact that it is not a wild animal. Commenting on this decision, it has been remarked that since an English Court has taken judicial notice of the fact that the camel a domestic animal, it would now require an Act of the British Parliament to make it a wild animal. SECTION NOT EXHAUSTIVE The thirteen matters enumerated in S. 56 do not form an exhaustive list. The section merely provides that the Courts must take judicial notice of the facts enumerated therein: but, it does not prohibit the Courts from taking judicial notice of other facts, not to be found in the list. Thus, in England, the Court takes judicial notice of matters appearing in its own proceedings, and there is no reason why Indian Courts also would not take judicial notice of such proceedings.