Law of Evidence (LLB-303)

1. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) SEMESTER: FIFTH BBALLB III A+B+C & BALLB III A+B+C NAME OF THE SUBJECT: LAW OF EVIDENCE UNIT-1 TOPIC: EVIDENCE & ITS RELATIONSHIP WITH SUBSTANTIVE & PROCEDURAL LAWS FACULTY NAME: Ms. Ridam Aggarwal (Assistant Professor)

2. Meaning of Evidence Evidence’ is derived from the Latin term. “Evidence” which means – “to show clearly, to make plainly certain, to ascertain, to prove” Taylor says – (functional description of court process) “The word ‘evidence’ includes all legal means, exclusive of mere arguments, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation.” Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

3. Definitions • Classical exposition of Bentham – “Any matter of fact, the effect or tendency of which is to produce in the mind a persuasion, affirmative or disaffirmive of the existence of some other matter of fact.” (comprehends both physical and psychological facts) • Evidence may bear two meanings or refer to – i) MEANS – that tend to create a belief in the mind of judge; and ii) FINAL BELIEF – actually created in his mind, known as PROOF. • PROOF IS THE END AND EVIDENCE IS THE MEANS TO PROOF. In the Indian Evidence Act,1872, the word ‘Evidence’ is used in the sense of “Means”. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

4. Extent & Application of Indian Evidence Act • Sec-1 The Indian Evidence Act,1872 came into force on 1st. September, 1872. • It applies to the whole of India and also J&K. • It applies to all JUDICIAL PROCEEDINGS in or before a court, including court martials under the Army Act,1950, The Navy Act, 1957 and the Air Force Act, 1950. Not applicable to – i) proceedings under The Army Act, The Naval Discipline Act, 1934 and the Air Force Act passed by the British Parliament. ii) Affidavits iii) Arbitration proceedings. • The provisions of this Act are not applicable to Departmental Inquiries / Domestic Inquiries/Commissions of Inquiries / Administrative Tribunals. • Refer to Court – Judicial Proceedings – Taking of evidence on oath. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

5. Evidence and its Relationship with the Substantive and Procedural Laws Sir James Stephen defines Law of Evidence as- “The Law of Evidence is that part of the law of procedure, which with a view to ascertain individual rights & liabilities in individual cases, it decides • What facts may or may not be proved in such case • What sort of evidence must be given to a fact which may be proved and • By whom and in what manner the evidence must be given by which any fact is proved.” Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

6. Evidence and its Relationship with the Substantive and Procedural Laws Cont. Law of Evidence deals with modes of Leading Evidence as well as regulating that evidence of which fact can be given in court. The main object of the law of evidence is to assist the court in judging what facts are relevant to ascertain the truth and to avoid the confusion and how such relevant facts will be proved in courts by lawfully leading the evidence. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

7. Evidence and its Relationship with the Substantive and Procedural Laws Cont. Laws may be divided into “Substantive” And “Procedural”. • The laws which defines rights, duties & liabilities are called “Substantive Laws”. For example, IPC. • The laws which prescribes the mode or procedure by which application of substantive laws is regulated are called “Procedural Laws”.Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

8. Conclusion Law of Evidence is a Procedural Law. Evidence Act does not define rights & liabilities under the law but only prescribe the mode by which rights or liabilities of parties is curtained. Therefore, it is a Procedural Law which helps in the implementation of Substantive Law. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

9. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) TOPIC: DEFINITIONS GIVEN UNDER INDIAN EVIDENCE ACT

10. Fact • FACT means and includes – • i) Any thing, state of things or relation of things capable of being perceived by the senses called as Physical Facts. • ii) Any mental condition of which any person is conscious called as Psychological facts. • Fact may be divided into – i) Fact in issue (FACTUM PROBANDUM) and ii) Relevant Fact (FACTUMPROBANS) or Evidentiary Fact Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

11. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Fact • ‘Fact’ means an existing thing. • Physical & Psychological Facts – A horse, a man are physical facts. • Psychological Facts – The sensation or recollection of which man is conscious, his desires, his intentions in doing a particular act etc. • Positive Facts – Existence of certain state of things • Negative Facts – Non existence of it.

12. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Fact in Issue A is a cashier in a factory. It is his duty to bring money from bank & distribute it to the laborers. A case under Sec. 409, IPC of Criminal Breach of Trust has been filed against him. The case against him is that he brought Rs. 25,000 from the bank & misappropriated Rs. 13,000 out of it. A says in his defense that he brought the case from the bank and as he was to go on leave that day, he, according to the direction of the Manager of the Company, hander over Rs. 25,000 to B, Assistant Cashier.

13. Relevant Fact • It is a subjective concept. • One fact is said to be relevant to other when it is connected with the other in such a manner as provided in the sections of relevancy in the act, ie., S.6 to 55. • A fact cannot be relevant in isolation. It has to be in connection with the other. It cannot exist alone. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

14. Relevant Fact – Examples • Mere watch is not a fact but a watch in possession of a person is a relevant fact. • “A & B had a quarrel and next day, B was found dead” – In this case, the quarrel between A & B is a relevant fact u/s 8 of the act as it constitutes the Motive of killing of B by A. • In Arushi Murder Case, the fact that her vagina was cleaned with water is a relevant fact that either she was sexually active or she was raped. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

15. Evidence Proved • A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. • Eg: A was found in possession of the murder weapon. In this case , a prudent man ought to act upon the supposition that exists. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

16. Evidence Disproved • A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances ofthe particular case, to act upon the supposition that it does not exist. • Eg: A had an argument with B. Later, B was found dead. Here, A was able to prove that he was not at the place of murder as he proved he was out of India. Here, this fact has been disproved. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

17. Not Proved • A fact is said not to be proved when it is neither proved nor disproved. • Here, the fact is in between, ie., the status of the fact is not decided. It has not been categorized between proved or disproved. It is yet to be divided in a particular category. • Eg: There were fingerprints on the murder weapon but it has still not been established to whom does those fingerprints belong. Here, it is in the category of Not Proved. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

18. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Evidence The word “Evidence” has been derived from the Latin word, ‘evidence’ which implies to show distinctly to make clear to view or sight, to discover clearly, to make plainly certain, to certain, to ascertain, to prove.

19. Oral Evidence • All statements which the Court permits or requires to be made before it by witness, in relation to matters of act under inquiry; such statements are called Oral Evidence. • Oral Evidence is that evidence which the victim has personally seen or heard. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

20. Documentary Evidence • All documents produced for the inspection of the Court; such documents are called Documentary Evidence. • It has to be in a written form. • It can be any kind of document which is relevant to the matter in question in the court of law. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

21. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Proved • Sec. 3 – Proved – A fact is said to be proved when, after considering the matter before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

22. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Proved • Proof – It must mean such evidence as would induce a reasonable man to come to the conclusion – Bhano V. Babu Singh, 1998 Cr. LJ 4768(Raj), Facts must be proved by the best evidence available. • Proof beyond reasonable doubt does not mean perfect proof, which may sound artificial.

23. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Proved • Letters of a married woman to her father apprehending danger. • Mass killing by Mob – Overt Act – Participation in Crime. • Medical opinion about husband conduct towards wife dying burns. • He tried to hold her by his hands & prevented her from going out of room.

24. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) TOPIC: THEORY OF RELEVANCY & PLEA OF ALIBI

25. Logical Relevancy • ‘Logical Relevancy’ means a logical connection between the two facts. • For eg: In Santosh Singh case, the fact that the helmet had a visor in the morning & it was missing in the evening & the fact that pieces of visor were found on the spot & apparently the victim had been hit with a heavy object show a logical connection with the causation of death. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

26. Legal Relevancy • When a logically relevant fact can be recognized as legally relevant, it is called ‘Legal Relevancy’. • The Indian Evidence Act in various sections such as S.6 to 55 identifies various logical relevant facts & puts them under these sections. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

27. Nexus between Logical Relevancy & Legal Relevancy • Every legally relevant fact in the act is also logically relevant but theoretically, it can be said that every logically relevant fact may not be legally relevant. • Only those logical facts which are covered under Section 6 to 55 can be called Legally Relevant. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

28. Admissibility • S. 165 (Proviso 1) - Judge's power to put questions or order production • S. 5 - Evidence may be given of facts in issue and relevant facts. • S. 155 - Impeaching credit of witness. • S. 136 - Judge to decide as to a,dmissibility of evidence. • S. 104 - Burden of proving fact to be proved to make evidence-' admissible. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

29. Reliability • Reliability of Evidences is a process where it is seen if an evidence given to prove a relevant fact is sufficient to the satisfaction of the court. • There is no mechanism given as such to prove it but various other provisions assist in this such as – Cross Examination – Confession – Contradiction – Re-examination – Examination-in-chief Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

30. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Alibi • The plea of absence of a person, charged with an offence, from the place of occurrence at the time of the commission of the offence is called ‘Plea of Alibi’. • Rajinder Singh V. State of U.P. [AIR 2007 SC 2791] – No finding of plea of alibi can be recorded by the High Court for the first time in a position – S. 161, Cr.P.C. – statement recorded – inadmissible.

31. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Case Law Binay Kumar & Others V. State of Bihar (AIR 1997 SC 321) • It was held by Supreme Court that it is basic law in the criminal case in which the accused is alleged to have inflicted physical injury to another person. The burden of proof is on prosecution to prove that the accused was present at the scene and has anticipated in the crime.

32. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) TOPIC: DOCTRINE OF RES GESTAE

33. Meaning • The term 'Res' is a Latin word which means "thing" and the expression "Res Gestae" literally which means “the thing done, a subject matter, a transaction or essential circumstances surrounding the subject". • In the law of evidence, it means things done including words spoken, forming part of the same transaction. • There is a fact story behind every case before the court of law. In (fact story) contains certain acts, omissions or statements, which are not in issue but are capable of throwing some light on the nature of the transaction revealing its true quality and character. • Such acts, omissions, or statements from part of the same transaction in issue and are allowed to be proved. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

34. Definition of Res Gestae Halsbury defines 'Res gaste' as "Facts which form part of the res gestae and are consequently provable as facts relevant to the issue ; include acts , declarations and incidents which themselves constitute or accompany and explain the facts or transaction in issue. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

35. Section 6 • S. 6 embodies the rule of Admission of Evidence know as Res gestae. This phrase means simply a transaction, thing done, subject matter Res gestae of any case properly consist of that portion of actual happening of the world out of the rights or liability, complained or asserted in the proceeding, necessarily, arise • This phrase has been used in two senses. a) In the restricted senses it means world's happening out of which the right or liability in question arises. In restricted meaning Res gestae imports the conception of action by some person producing the effects for which the liability is sought to be enforced an action. b) In the wider sense it covers all the probative facts by which res gestae are reproduced to the tribunal where the Direct Evidence of witness or perception by the Court are unattainable. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

36. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Section 7 Facts which are the occasion, cause or effect of facts in issue Facts which are the occasion, cause, or effect, immediately or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.

37. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Section 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 subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact ins issue or relevant fact, and whether it was previous or subsequent thereto.

38. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Section 8 Cont. • Explanation 1- The work "conduct" in this section does not 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.

39. Case Laws • Supreme Court in Punjabrao v. D P Meshram, AIR 1965 SC 1179, held that the Evidence of the conversion of a member of Scheduled Caste to Buddhism may be Corroborated by the Evidence of his conduct subsequent to his conversion. In Pershadi v. State , AIR 1957 SC 211, held that in a case of murder soon after the murder the accused who had earlier held out of a threat to the victim told the father of the victim that he had a hand in this appearance of the accused, is Admissible u/s. 6 of the Indian Evidence Act. • Supreme Court in Chander Kala v. Ram Kishan, AIR SC 1268, held that when the complainant narrated the incident to the relative of the deceased and he deposed to that effect in Court, such Evidence is Admissible in Evidence. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

40. Case Laws Cont. • In state of Andhra Pradesh v. Panna Satyanarayan, AIR 2000 SC 2138 , held that when the accused murdered his wife and daughter, the statement by the father of the deceased wife that father of the accused told him on telephone that his son has killed the deceased. Absence of a finding as to whatever information given by accused's father to the deceased's father that the accused had killed the deceased was either of the time of commission of the crime or immediately thereafter. So as to form the part of the same transaction, the statement cannot be considered as relevant u/s. 6. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

41. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) TOPIC: TEST IDENTIFICATION PARADE - TIP

42. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Test Identification Parade • The identification of an accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the quilt is otherwise established. • Many a times crimes are committed under the cover of darkness when non is able to identify the accused.

43. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Test Identification Parade • Mulla v. State of UP (2010) 3 SCC 508 “The identification parades are not primarily meant for the court. They are meant for investigation purposes.” • There are two purposes namely,: – Enable Witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of crime. – Investigation Authority – Suspect is a real person.

44. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Case Law Rajesh Govind Jagesha v. State of Maharashtra AIR 2000 SC 160: 2000 Cr LJ 380 (SC) – If the Test Identification Parade regarding accused was not conducted properly and suffered from unexplained delay, he is entitled to benefit of doubt.

45. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Case Law Mullagiri Vajiram v. State of Andhra Pradesh AIR 1993 SC 1243 When conviction was based on evidence of an eye witness and not on identification parade, it cannot be set aside on the ground that identification was not reliable.

46. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Case Law Raj Nath v. State of Uttar Pradesh 1988 Cr. LJ 422: AIR 1988 SC 345 – If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself detracts from the credibility of the test.

47. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) TOPIC: CONSPIRACY

48. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Role of Conspirator Section 10 : Things said or done by conspirator in reference to common design Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

49. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Section 11 Section 11 - When facts not otherwise relevant become relevant Facts not otherwise relevant are relevant- (1) If they are inconsistent with any fact is issue or relevant fact; (2) If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable

50. Illustration – Section 11 The question is, whether A committed a crime at Calcutta on a certain day. – The fact that, on that day, A was at Lahore is relevant. – The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed. Which would render it highly improbable, though not impossible, that he committed it, is relevant. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

51. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Case Law State of Maharashtra v. Damu Gopinath Shinde AIR 2000 SC 1671 – There was no doubt that there was reasonable ground to believe that four of the accused conspirators had conspired to commit the offence of abduction and murder of children involved in the case. – Accused had spoken to each other in reference to common intention.

52. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Case Law Bhagwandas v. State of Maharashtra AIR 1974 SC 878 –Anything written by a conspirator will not be admissible against him or others if it is not done in reference to the common intention of the conspiracy.

53. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-2 ADMISSIONS

54. Introduction • Admission plays a very important part in judicial proceedings. If one party to a suit or any other proceeding proves that the other party has admitted his case, the work of the court becomes easier. • An Admission may be proved by or on behalf of the person making it under certain exceptional circumstances. The Evidence Act, Sections 17 to 23 deals with the Admissions. • The expression 'Admission' means "Voluntarily acknowledgment of the existence or truth of a particular fact". But In the Evidence Act, the term 'Admission' has not been used in this wider sense. It deals with admissions by statements only oral or written or contained in an electronic form. Admission plays a very important role in judicial proceedings. If one party to the suit or any other proceeding proves that the other party has admitted his case, the work of court becomes easier. An Admission must be clear, precise and not vague or ambiguous. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

55. Definition of Admission • According to 17 of Indian Evidence Act, "An admission is a statement, oral or documentary or [contained in electronic form (Amendment w.e.f. 17/10/2000)] 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 hereinafter mentioned.” • There are three parts of the definition: • 1)It defines term "admission“ 2) It says that an admission will be relevant only if it is made by any of the person specified in the Act. 3) "Admission" is Relevant only in the circumstances mentioned in the Act. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

56. Features of Admission To constitute admission, the following characteristics are to be present as per definition stated above. 1) It may be oral or documentary 2) It is a statement to suggest any inference to any fact in issue or relevant fact. 3)It must be made by any person prescribed under the Act; and 4) It must be made under the circumstance prescribed under the Act. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

57. Features of Admission Cont. The admission must be clear and unambiguous. The admission is admissible because of the following reasons: a) Admission as a waiver of proof; b) Admission as a statement against interest; c) Admission as evidence of contradictory statement; d) Admission as evidence of truth. Admission is the best substantive evidence that an opposite party can rely upon. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

58. Nature of Admissions The statements made by parties during judicial proceeding are 'self regarding statements'. The self regarding statements may be classified under two heads - i)Self-serving statements; and ii)Self-harming statements. i) Self-serving Statements - Self-serving statements are those, which serve, promote or advance the interest of the person making it. Hence they are not allowed to be proved. They enable to create evidence for themselves. ii) Self-harming - Self-harming statements are those which harm or prejudice or injure the interest of the person making it. These self-harming statements all technically known as “Admissions" and are allowed to be proved. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

59. Who can make Admission? (S. 18 to 20) An Admission is relevant if it is made by: 1) A party to the proceeding; 2) An agent authorized by such party. 3) A party suing or being sued in a representative character making admission while holding such character. 4) A person who has a proprietary or pecuniary interest in the subject matter of the suit during the continuance of such interest. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

60. Who can make Admission? (S. 18 to 20) Cont. 5) A person from whom the parties to the suit have derived their interest in the subject matter of the suit during the continuance of such interest. (Section 18) 6) A person whose position it is necessary to prove in a suit, if such statements would be relevant in a suit brought by against himself (Section 19.) 7) A person to whom a party to the suit has expressly referred for information in reference to a matter in Dispute (Section 20.) Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

61. Proof of admission against persons making them, and by or on their behalf (Section 21) Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they can not be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases. (1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead it would be relevant as between the third person under section 32. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

62. Proof of admission against persons making them, and by or on their behalf (Section 21) Cont. • (2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) An admission may be proved by or on behalf of the person making it if it is relevant otherwise than as an admission. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

63. Illustrations (a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine nor con B Prove a statement by himself that the deed is Forged. (b) 'A' the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statement, because they would be admissible between third parties, if he were dead under Section 32, Clause (2). Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

64. Illustrations Cont. C) A is accused of a crime committed by him at Calcutta. He produces a letter written by him and dated at Lahore on that day, and bearing the Lahore post-mark of that day. The statement in the date of the letter is admissible, because if A were dead it would be admissible under Section 32, Clause (2). (d) A is accused of receiving stolen goods knowing them to be stolen. He officers to prove that he refused to sell them below their value. A may prove these statements though they are admissions, because they are explanatory of conduct influenced by facts in issue. (e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit. He offers to prove that he asked a skillful person to examine the coins as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine. A may prove these facts for the reasons stated in the last proceeding illustration Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

65. When oral admission as to contents of documents are relevant (Section 22) Oral admissions as to the contents of a document are not relevant unless and until the party proposing them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

66. When oral admissions as to contents of electronic records are relevant Section (22A) When oral admissions as to contents of electronic records are relevant.—Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question. [Inserted by the Information Technology Act, 2000, w.e.f. 17-10-2000.] Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

67. Case Law A Ramaiah V. State of A.P. (1997 SC 496) In this case, Supreme Court held that the statement in FIR furnished by one of the accused cannot be used against another accused unless its makers offered himself as a witness in the trial. It has very limited use of it as evidence under Section 21 of the Act against its maker alone unless the admission does not amount confession. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

68. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) CONFESSIONS

69. Introduction • The word “confession” appears for the first time in Section 24 of the Indian Evidence Act. This section comes under the heading of Admission so it is clear that the confessions are merely one species of admission. Confession is not defined in the Act. Mr. Justice Stephen in his Digest of the law of Evidence defines confession as “confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.” • In Pakala Narayan Swami v Emperor (AIR 1939 PC 47) Lord Atkin observed “ A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession”. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

70. Types of Confessions A confession may occur in many forms. When it is made to the court itself then it will be called judicial confession and when it is made to anybody outside the court, in that case it will be called extra-judicial confession. It may even consist of conversation to oneself, which may be produced in evidence if overheard by another. For example, in Sahoo v. State of U.P. the accused who was charged with the murder of his daughter-in- law with whom he was always quarreling was seen on the day of the murder going out of the house, saying words to the effect : “I have finished her and with her the daily quarrels.” The statement was held to be a confession relevant in evidence, for it is not necessary for the relevancy of a confession that it should be communicated to some other person. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

71. Types of Confessions Cont. • Judicial confession- Are those which are made before a magistrate or in court in the due course of legal proceedings. A judicial confession has been defined to mean “plea of guilty on arrangement (made before a court) if made freely by a person in a fit state of mind. • Extra-judicial confessions- Are those which are made by the accused elsewhere than before a magistrate or in court. It is not necessary that the statements should have been addressed to any definite individual. It may have taken place in the form of a prayer. It may be a confession to a private person. An extra-judicial confession has been defined to mean “ a free and voluntary confession of guilt by a person accused of a crime in the course of conversation with persons other than judge or magistrate seized of the charge against himself. A man after the commission of a crime may write a letter to his relation or friend expressing his sorrow over the matter. This may amount to confession. Extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

72. S.24 - Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding To attract the prohibition enacted in Section 24 the following facts must be established: •That the statement in question is a confession, •That such confession has been made by the accused, •That it has been made to a person in authority, •That the confession has been obtained by reason of any inducement, threat or promise, proceeding from a person in authority, •Such inducement, threat or promise must have reference to the charge against the accused, and •The inducement, threat or promise must in the opinion of the court be sufficient to give the accused ground, which would appear to him reasonable, for supporting that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

73. Evidentiary Value of Confession Value of Judicial Confession- • A case where there is no proof of corpus delicti must be distinguished from another where that is proved. In the absence of the corpus delicti a confession alone may not suffice to justify conviction. • The settled law is that a conviction can be based on confession only if it is proved to be voluntary and true. If corroboration is needed it is enough that the general trend of the confession is substantiated by some evidence which would tally with the contents of the confession. General corroboration is enough. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

74. Evidentiary Value of Confession Cont. Value of extra-judicial confession- Extra-judicial confessions are not usually considered with favour but that does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which support his statement should not be believed. Extra-judicial confessions have to received with great caution and care and when the foundation of the conviction is the confession alleged to have been made by the accused there are three things which the prosecution must establish. First, that a confession was made, secondly, that evidence of it can be given that is to say that it was voluntary and thirdly that it is true. Such a confession must be proved by an independent or satisfactory evidence. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

75. Section 25 – Confession to Police officer-not to be proved No confession made to a police officer shall be proved as against a person accused of any offence. Reasons for exclusion of confession to police- another variety of confessions that are under the evidence act regarded as involuntary are those made to a personnel. Section 25 expressly declares that such confessions shall not be proved. If confessions to police were allowed to be proved in evidence, the police would torture the accused and thus force him to confess to a crime which he might not have a committed. A confession so obtained would naturally be unreliable. It would not would be voluntary. Such a confession will be irrelevant whatever may be its form, direct, express, implied or inferred from conduct. The reasons for which this policy was adopted when the act was passed in 1872 are probably still valid. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

76. Case Laws on Section 25 In Dagdu v. State of Maharashtra, A.I.R. 1977 S.C. 1579 Supreme court noted: The archaic attempt to secure confessions by hook or by crook seems to be the be-all and end-all of the police investigation. The police should remember that confession may not always be a short-cut to solution. Instead of trying to “start” from a confession they should strive to “arrive” at it. Else, when they are busy on their short-route to success, good evidence may disappear due to inattention to real clues. Once a confession is obtained, there is often flagging of zeal for a full and through investigation with a view to establish the case de hors the confession, later, being inadmissible for one reason or other, the case fondles in the court. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

77. Case Laws on Section 25 Cont. • In R v. Murugan Ramasay, (1964) 64 C.N.L.R. 265 (P.C.) Police authority itself, however, carefully controlled, carries a menace to those brought suddenly under its shadow and the law recognises and provides against the danger of such persons making incriminating confessions with the intention of placating authority and without regard to the truth of what they are saying. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

78. S. 26 - Confession by accused while in custody of Police not to be proved against him • Section 26 provides that a confession which is made in custody of a police officer cannot be proved against him. Unless it is made before a magistrate. • The word custody is used here in wide sense. A policeman may lay his hand on a person, hand-cuff him or tie his waist with a rope and may take him with him. Again a police officer may not even touch a person but may keep such a control over him that the person so controlled cannot go any way he likes. His movement is in the control of the police officer. A police officer comes to A and asks him to follow to the police station as he is wanted in connection with a dacoity case. A follows him. He is in custody of the police officer. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

79. Case Law on Section 26 • In Kishore Chand v. State of Himachal Pradesh, the extra judicial confession was made to Pradhan who was accompanied by Police (enquiry) Officer. The only interference which could be drawn from the circumstance of the case, is that the confession was made at the time when the accused was in the custody of police and it could not be proved against the accused. It could not be believed that, when a police officer has seen the accused with deceased at last occasion, he will not take the accused in the custody. In the case it is evident that the Police Officer has created a scene and to avoid Section 25 and 26, the Police Officer has left the accused in the custody of village head man (pradhan). Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

80. Case Law on Section 26 Cont. • The Police Officer in this case has no difficulty to take the accused to the Judicial Magistrate and to take extra-judicial confession under section 164 of Cr.P.C which has got more probable value and it gives an opportunity to make the required warning, that this confession will be used against the accused and after this warning he records the confession. Under section 26, no confession made by an accused to any person while in custody of a police officer shall be proved against him. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

81. S. 27 - How much of information received from accused, maybe 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. • Principle- this section of the act is founded on the principle that if the confession of the accused is supported by the discovery of a fact then it may be presumed to be true and not to have been extracted. It comes into operation only- • If and when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody, and • If the information relates distinctly to the fact discovered. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

82. S. 27 - How much of information received from accused, maybe proved Cont. This section is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. In Pandu Rang Kallu Patil v. State of Maharashtra, it was held by Supreme Court that section 27 of evidence act was enacted as proviso to. The provisions of sections of Section 25 and 26, which imposed a complete ban on admissibility of any confession made by accused either to police or at any one while in police custody. Nonetheless the ban would be lifted if the statement is distinctly related to discovery of facts. The object of making provision in section 27 was to permit a certain portion of statement made by an accused to Police Officer admissible in evidence whether or not such statement is confessional or non confessional Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040

83. S. 28 - Confession made after removal of impression caused by inducement, threat or promise, relevant If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, it is relevant. Confession After Removal Of Threat Or Promise- under section 24 we have seen that if the opinion of a court a confession seems to have been caused by any inducement, threat or promise having reference to the charge and proceeding from a person in authority, it is irrelevant and cannot be proved even against a person making the confession, Section 28 provides that if there is inducement, threat or promise given to the accused in order to obtain confession of guilt from him but the confession is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court been fully removed, the confession will be relevant becomes pre and voluntary. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

84. S. 29 - Confession otherwise relevant not to become irrelevant because of promise of secrecy In such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to question which he need not have answered, whatever may have been the form of those questions, because he was not warned that he was not bound to make such confession, and that evidence if it might be given against him. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

85. S. 30 - Consideration of proved confession affecting person making it and others jointly under trial for same offence When more persons than one are being tried jointly for the same offence and a confession made by one such persons affecting himself and some other such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. Principle Underlying: when more persons than one are jointly tried for the same offence, the confession made by one of them, if admissible in evidence, should be taken into consideration against all the accused, and not against the person who alone made it. It appears to be very strange that the confession of one person is to be taken into consideration against another. Where the confession of one accused is proved at the trial, the other accused persons have no other opportunity to cross examine him. It is opposed to the principle of jurisprudence to use a statement against a person without giving him the opportunity to cross examine the person making the statement. This section is an exception to the rule that the confession of one person is entirely admissible against the oth Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

86. Case Law on Section 30 In Kashmira Singh v. State of MP , the accused Kashmira who was an Assistant Food Procurement Inspector, his services along with the another food inspector were terminated on a report of the food officer when they were getting the rice polished in a rice mill. Kashmira was heard twice saying that he would teach a lesson to the food officer. After a few months the son of the food officer was found missing and his body was found in a well. Kashmira, Gurudayal brother of Kashmira, Prithipal son of Gurudayal and one Gurubachan, a rickshaw puller in this case were tried of conspiracy and killing the child. The prosecution story was that Prirthipal led the child, when he was playing near the Gurudwara, for some distance and then the child was taken on the cycle by Kashmira to a house where he was murdered. According to the judgment of the SC Guruibachan was not a rickshaw puller by profession and the rickshaw was hired only for that night for the disposal of the body of the deceased. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

87. Case Law on Section 30 Cont. Hence, before the confession of one accused may be taken into consideration against others, it has to be shown that: 1) The person confessing and the others are being tried jointly. 2) They are being tried for the same offence. 3) The confession is affecting the person confessing and the other Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

88. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) DYING DECLARATION

89. Introduction • Dying Declaration is of the utmost importance and the evidence as to it should be exact and full as possible. The general rule is, 'hearsay evidence is no evidence and is not admissible in evidence.' Section 32 and 33 of the Evidence Act are among the Exceptions, as such dying Declaration is an exception to this general rule. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

90. Statement made by a person who cannot be called as Witness Section 32 - Cases in which statement of relevant fact by person who is dead or cannot be found etc is relevant: Statements, written or verbal, of relevant facts made by a person who is dead, or cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be produced without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

91. When it relates to cause of death When the statement 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, in which cases the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Following are the classes of person who cannot be called as witness under section 32 and their statements allowed to be proved in their absence. 1)Person who is dead: 2) Person who cannot be found 3) Who has become incapable of giving evidence: or 4) Whose attendance cannot be produced without unreasonable delay or expense? Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

92. Meaning and Definition "A dying declaration is a declaration written or verbal 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" Illustration B has been attacked by A. If B, shortly before death makes a declaration holding A, responsible for his injuries, it is called "Dying Declaration'. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

93. Section 32(1) Section 32(1) of The Indian Evidence Act defines Dying declaration as " a statement verbal or written made by a person who is dead or cannot be found, who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense, which under the circumstance of the case, appears to the court unreasonable, are themselves relevant facts in the following cases: a) When it relates to cause of death b) When it is made in course of business; or c) Against the interest of maker; or d) Gives opinion as to public right or custom or matters of general interest; or e) Relates to existence of relationship; or f) When it is made in will or deed relating to the family affairs; or g) In document relating to transaction mentioned in section 13(a); h) When it is made by several persons and expresses feeling relevant to matter in question Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

94. Section 32(1) explained further • Before such statements are admitted in evidence, it must be proved that who made the statement is dead and gone and therefore cannot appear before the court unless this fact is proved, the statement is not admissible. • When the statement is admitted under any of the clause of this section, it is substantive evidence and has to be considered along with other evidence. • Dying declaration is an exception to the general rules as to relevancy of fact. • The relevancy of fact provides that the statement made by witness in connection of fact or fact in issue are relevant but under Section 32 a statement made under certain circumstances become relevant , even though person is not called as a witness before the court. Dying declaration in fact is a surviving declaration. Declarant died and statement survives. It is declaration of a dead person. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

95. Conditions There are certain conditions in the section which are as follows: • It must be a statement, written or verbal • The person making statement must have died. • The statement relate to the cause of his death or the circumstances of the transaction which related in his death and not the cause of the death of someone else. • The cause of the person's death must be in question. • The person making statement must be in a fit condition to make the statement. • The statement must be competent • Declaration must be competent Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

96. Reasons For admissibility of Dying Declaration Dying declaration is admissible for the following two reasons: • As the Victim is sole Eye Witness, Exclusion of his evidence defeats the ends of justice. • Declaration made by a person under exception of death is presumed to be true. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

97. Merits of Dying Declaration • There is heavy conscience – The law presume that there is a possibility of true statement as to the cause of his death. It has moral and religious aspect behind it because a person who is on the bed of death, about to die generally speaks true, so as to attain spiritual benefits in other world. This is relative element, which changes from person to person, personality and mentality person making Dying Declaration. So a person who is about to die, tells the truth and truth only is a half truth as in case of harden criminals. So it is the personality, circumstances and the character of the person making Dying Declaration that decides the relevancy of Dying Declaration. • There is no reason to implicate wrong person: The person making Dying Declaration and mentioning in the name of the person responsible who has caused injuries to him which are likely to result in his death, generally will not implicate in a wrong person who is not at all responsible for such injuries. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

98. Merits of Dying Declaration Cont. • There is no reason why he will avoid the name of the person who is responsible for his death and his worst enemy in his life. It is more logical and realistic concept because person who is on the bed of Death will not implicate the name of wrong person for the cause of his death, but he will not allow his enemy to go unpunished who is responsible for his death. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

99. Demerits of Dying Declaration • There is no oath administered: When a person is called as witness in the Court he has to make a statement on oath. This is to have his inner conscience say truth and truth only. Law presume and expect person to state the truth. This is the theoretical aspect as it may be correct theoretically but not practically. • There is no cross-examination of such person making Dying Declaration: The need of cross-examination is to judge the credibility of the witness. It is the right of Defence Council. Questions are put to the witnesses to extract the truth in case of Dying Declaration other party or defence council have no opportunity of cross- examination of the witness who is dead. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

100. Demerits of Dying Declaration Cont. • Witness is not present before the Court: Behaviour, manner of answering the question of witness before the Court is a vital aspect in law because it gives opportunity to the judges to judge the character, personality of the witness this element is absent in dying declaration and hence it is not accepted as a rule Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

101. Evidentiary Value of Dying Declaration The evidentiary value of dying declaration will vary according to the circumstances of a particular case in which it is made. Dying Declaration is evidence but it is a weak piece of evidence. It is to be corroborated by other evidence for example other facts and evidence supporting Dying Declaration. It gives guidance to the Court, the has to accept the Dying Declaration as a suspicious statement, it is duty of the judge to consider the valuation of Dying Declaration. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

102. Evidentiary Value of Dying Declaration Cont. Such valuation of Dying Declaration depends upon many things as under 1) State of mind of declarant. 2) State of the body of declarant. 3) To whom the Declaration/Statement is made. 4) Who recorded the statement? 5) Whether the statement is recorded in the same language and in a same word of the declarant. Even though Dying Declaration is said to be of weak piece of evidence it is relevant in the Indian Evidence Act, because it is the best available evidence as to the cause of his death after his death. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

103. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) PRESUMPTIONS

104. Meaning • Presumption generally means a process of ascertaining few facts on the basis of possibility or it is the consequence of some acts in general which strengthen the possibility and when such possibility has great substantiate value then generally facts can be ascertained. • A presumption in law means inferences which are concluded by the court with respect to the existence of certain facts. The inferences can either be affirmative or negative drawn from circumstance by using a process of best probable reasoning of such circumstances. • The basic rule of presumption is when one fact of the case or circumstances are considered as primary facts and if they are proving the other facts related to it, then the facts can be presumed as if they are proved until disproved. • Section 114 of Indian Evidence Act specifically deals with the concept that ‘the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of (a) natural events, (b) human conduct, and (c) public and private business, in their relation to the facts of the particular case’. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

105. Classification of Presumption • Presumption of Fact or Natural Presumption • Presumption of law or Artificial Presumption – Rebuttable – Irrebuttable or Conclusive • Mixed Presumptions (Presumption of Fact and law both) Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

106. Presumption of Fact or Natural Presumption : • Sections 86 - 88, 90,, 113A and 114 lay down the provisions relating to Presumption of Fact or Natural Presumptions as stated below. these principles are generally rebuttable. • Section 86.Presumption as to certified copies of foreign judicial records • Section 87.Presumption as to Books, Maps and Charts • Section 88.Presumption as to Telegraphic Messages • Section 90.Presumption as to documents thirty years old • Section 113A.Presumption as to abatement of suicide by a married women • Section 113B.Presumption as to dowry death Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

107. Presumption of law or Artificial Presumption • Presumptions of law or artificial presumptions are inferences or propositions established by law. • Presumptions of law are of two kinds : a) Rebuttable b) Irrebuttable or Conclusive Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

108. Rebuttable Presumptions of law • These kinds of presumptions arise when presumptions of law are certain legal rules, defining the amount of evidence requisite to Support a particular allegation, which facts being proved, may be either explained away or rebutted by evidence to the contrary but are conclusive in absence of such evidence. For example, A man is presumed innocent until he is proved guilty. A child is born in a legal wedlock shall be presumed legitimate and one who questions his legitimacy must disprove it. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

109. Examples of Rebuttable Presumption • Section 107.Burden of proving death of person known to have been alive within thirty years. • Section 108.Burden of proving that person is alive who has not been heard of for seven years. • Section 102.On whom burden of proof lies. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

110. Irrebuttable or Conclusive Presumption • These Presumptions are those legal rules which are not outcome of any evidence that the fact is otherwise. Section 82 of Indian Penal Code is the well-known instance of an irrebuttable presumption of law which provides that nothing is an offense which is done by a child under 7 year of age. Section 115, 116 and Section 117 of the Indian Evidence Act 1872 deals with the rule Estoppel which are the examples of irrebuttable presumptions. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

111. Examples of Irrebuttable Presumption • Section 115. Estoppel • Section 116. Estoppel of tenant and of license of person in possession • Section 117. Estoppel of acceptor of bill of exchange, bailee or licensee Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

112. Mixed Presumptions (Presumption of Fact and law both) • Mixed presumptions of law and Fact are mainly confined to the English law of real property so it is not necessary to presume subject here. The Indian Evidence Act has made some provisions for the presumptions of fact and the presumptions of law. In certain sections of the Evidence Act, it has been provided that the court may presume certain facts. In some other sections, The court shall presume a fact has been used. There are certain sections in which it is said that a certain fact is conclusive proof of a certain another fact. Section 4 of the Evidence Act controls these sections and gives a direction to courts as to how proceed under those sections of the evidence act. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

113. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) EXPERT EVIDENCE

114. Introduction • Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion of third persons, which is commonly called in our day to day practice as expert’s opinion. These provisions are exceptional in nature to the general rule that evidence is to be given of the facts only which are within the knowledge of a witness. The exception is based on the principle that the court can’t form opinion on the matters, which are technically complicated and professionally sophisticated, without assistance of the persons who have acquired special knowledge and skill on those matters. Conditions for admitting an expert opinion are following:- a)That the dispute can’t be resolved without expert opinion and b)That the witness expressing the opinion is really an expert. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

115. Who Is An Expert? The definition of an expert may be referred from the provision of Sec.45 of Indian Evidence Act that an ‘Expert’ means a person who has special knowledge, skill or experience in any of the following---- 1) foreign law, 2) science 3) art 4) handwriting or 5) finger impression and such knowledge has been gathered by him— a) by practice, b) observation or c) proper studies. For example, medical officer, chemical analyst, explosive expert, ballistic expert, fingerprint expert etc. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

116. Duties Of An Expert • According to Sec.45, the definition of an expert is confined only to the five subjects or fields as mentioned above. But practically there are some more subjects or fields on which court may seek opinion an expert. • An expert witness is one who has devoted time and study to a special branch of learning and thus he is specially skilled on those points on which he is asked to state his opinion. His evidence on such points is admissible to enable the court to come to a satisfactory conclusion. • Duty of the expert:- a) An expert is not a witness of fact. b)His evidence is of advisory character. c) An expert deposes and does not decide. d) An expert witness is to furnish the judge necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgment by application of the criteria to the facts proved by the evidence Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

117. Value of Expert Evidence • The Expert evidence has two aspects – • a) Data evidence (it can’t be rejected if it is inconsistent to oral evidence) • b) Opinion evidence [it is only an inference drawn from the data and it would not get precedence over the direct eye-witness testimony unless the inconsistency between the two is so great as to falsify the oral evidence- Arshad v. State of A.P. (1996 CrLJ 2893 (para34) (AP)) • Expert evidence is opinion evidence and it can’t take the place of substantive evidence. It is a rule of procedure that expert evidence must be corroborated either by clear direct evidence or by circumstantial evidence.It is not safe to rely upon this type of evidence without seeking independent and reliable corroboration - S.Gopal Reddy v. State of A.P. (AIR 1996 SC2184 (Para27)) Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

118. Difference Between Evidence Of An Expert And Evidence Of An Ordinary Witness Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

119. Sec.45 - Relevancy of opinion of experts • Provision If the court has to form an opinion upon- a) Foreign law, b) Science, c) Art, d) Identity of handwriting or e) Finger impression the opinion of the persons who are specially skilled in the above subject or fields are relevant. The expert opinion is only corroborative evidence. It must not be the sole basis for conclusive proof. The expert witness must be subjected to cross-examination in the court. Mere submission of opinion by an expert through any certificate or any other document is not sufficient. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

120. Sec.45 - Relevancy of opinion of experts 1) Question arises whether A, at the time of committing the offence, was incapable to know the nature of his act or that he was doing what was wrong or contrary to law because of unsoundness of mind. The opinion of the experts upon the points are relevant--- a) Whether the symptom exhibited by A commonly show unsoundness of mind and b) Whether such unsoundness of mind usually renders the person incapable to know the nature of his act or to know what he does is wrong or contrary to law. 2) The question is whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. Opinion of experts on the question whether the two documents were written by the same person or by different persons, are relevant. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

121. Relevant Expert Evidence • Foreign law:- Foreign law can be proved – a) by the evidence of a person specially skilled in it and b) by direct reference to the books printed or published under the authority of the foreign government. • Fingerprint expert:- Expert opinion on fingerprints has the same value as the opinion of any other expert. The court will not take opinion of fingerprint expert as conclusive proof but must examine his evidence in the light of surrounding circumstances in order to satisfy itself about the guilt of the accused in a criminal case. • Ballistic expert:- A ballistic expert may trace a bullet or cartridge to a particular weapon from which it was discharged. Forensic ballistics may also furnish opinion about the distance from which a shot was fired and the time when the weapon was last used. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

122. Relevant Expert Evidence Science or art:- The Science or art includes all subjects on which a course of special study or experience is necessary to the formation of an opinion. “Science” or “art” is not limited to higher science or fine art, but it has its original sense of handicraft, trade, profession and skill in work which has been carried beyond the sphere of the common pursuits of life into that of the artistic and scientific action. The following matters are included in the ‘science’ and art and the expert opinion of these matters are relevant:- Medical opinion:- The value of Medical evidence is only corroborative. A doctor acquires special knowledge of medicine and surgery and as such he is an expert. Opinions of a medical officer, physician or surgeon may be admitted in evidence to show- a) Physical condition of the a person, b) Age of a person c) Cause of death of a person d) Nature and effect of the disease or injuries on body or mind e) Manner or instrument by which such injuries was caused f) Time at which the injury or wounds have been caused. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

123. Relevant Expert Evidence • Mani Ram v. State of U.P. 1994 Supp (2) SCC 289,292; 1994 SCC (Cri) 1242 When there is a conflict between the medical evidence and ocular evidence, oral evidence of an eye witness has to get primacy as medical evidence is basically opinionative. Where the direct evidence is not supported by the expert evidence, the evidence is wanting in the most material part of the prosecution case and therefore, it would be difficult to convict the accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with medical evidence, it is the most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained, it is sufficient to discredit the evidence as well as the entire case – • Piara Singh v. State of Punjab AIR 1977 SC 2274 - Where the opinion of one medical witness is contradicted by another and both experts are equally competent to form an opinion, the court will accept the opinion of that expert which supports the direct evidence in the case. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

124. Relevant Expert Evidence Handwriting:- Like other expert opinion, the opinion of handwriting expert is advisory in nature. The expert can compare disputed handwriting with the admitted handwriting and give his opinion whether one person is the author of both the handwriting. The court shall exercise great care and caution at the time of determining the genuineness of handwriting. A handwriting expert can certify only probability and 100% certainty. On the question of the handwriting of a person, the opinion of a handwriting expert is relevant, but it is not conclusive and handwriting of a person can be proved by other means also. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

125. The following are the different modes of proving handwriting: i) A person who wrote the document can prove it. (Sec.47) ii) A person who saw someone writing or signing a document can prove it (Sec.47) iii) A person who is acquainted with the handwriting by receiving the documents purported to have been written by the party in reply to his communication or in ordinary course of business, can prove the documents (Sec.47) iv) The court can form opinion by comparing disputed handwriting with the admitted handwriting (S.73) v) The person against whom the document is tendered can admit the handwriting. (Sec.21) vi) The expert can compare disputed handwriting with admitted handwriting and thereby prove or disprove whether the documents were written by the same or different persons. (Sec.45) Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

126. Relevant Expert Evidence Evidence of tracking dogs:- Trained dogs are used for detection of crime. The trainer of tracking dogs can give evidence about the behaviour of the dog. The evidence of the tracker dog is also relevant under section 45. In Abdul Razak V. State of Maharashtra (AIR 1970 SC 283) question arises before the Supreme Court whether the evidence of dog tracking is admissible in evidence and if so, whether this evidence will be treated at par with the evidence of scientific experts. In this case, Pune Express was derailed near Miraj Railway Station on 10th Oct.,1966. Sabotage was suspected. The removal of fishplates was found to be the cause of derailment and accident. The police dog was brought into service, taken to the scene of crime. After smelling the articles near the affected joint, the dog ran towards embankment where one fishplate was lying, then the dog smelt it and went to a nearby shanty and pounced upon the accused who was a gang man at Miraj Railway station. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

127. Relevant Expert Evidence The Supreme Court held that evidence of the trainer of tracking dog is relevant and admissible in evidence, but the evidence can’t be treated at par with the evidence of scientific experts analysing blood or chemicals. The reactions of blood and chemicals can’t be equated with the behaviour of dog which is an intelligent animal with many thought processes similar to the thought processes of human beings. Whenever thought process is involved there is risk of error and deception. The law is made clear by the Supreme Court by enunciating the principle that the evidence of dog tracking is admissible, but not ordinarily of much weight and not at par with the evidence of scientific experts. Apart from the above fields, there are chemical analyst, explosive experts, mechanical experts, interpreter, patent expert, hair expert etc. whose opinion is admissible in evidence. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

128. Relevant Expert Evidence • Expert opinion becomes admissible only when the expert is examined as a witness in the court. The report of an expert is not admissible unless the expert gives reasons for forming the opinion and his evidence is tested by cross-examination by the adverse party. But in order to curtail the delay and expenses involved in securing assistance of experts, the law has dispensed with examination of some scientific experts. • For example, Sec.293 Cr.P.C. provides a list of some Govt. Scientific Experts as following:- a) Any Chemical Examiner / Asstt. Chemical examiner to the Govt. b) The Chief Controller of explosives c) The Director of Fingerprint Bureau d) The Director of Haffkein Institute, Bombay e) The Director, Dy. Director or Asstt. Director of Central and State Forensic Science Laboratory. f) The Serologist to the Govt. g) Any other Govt. Scientific Experts specified by notification of the Central Govt. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

Law of Evidence (LLB-303)

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Law of Evidence (LLB-303)