The Indian Evidence Act Concept Application 01

Q1. Explain Primary and Secondary Evidence with illustrations.

Documentary Evidences are of two kinds – Primary Evidence and Secondary Evidence.

Primary Evidence:

Section 62 of the Indian Evidence Act, 1872, defines the term ‘primary evidence’. According to Section 62 of the Act, primary evidence means the document itself produced for the inspection of the Court”. Primary evidence is original or from the main source. Prior notice is not required to be served to produce it before the Court. The primary evidence is by itself admissible to the Court. It is always better to provide primary evidence to the court. It may be original property papers, original will, any accounts file, or any other such document.

Secondary Evidence:

Section 63 of the Indian Evidence Act, 1872, defines the term ‘secondary evidence’.  According to Section 63 of the Act, secondary evidence means inferior or substituted evidence which itself indicates the existence of more original source of information. Secondary evidence may be given in the absence of the (better) primary evidence if proper explanation is given for such absence. Section 65 of the Evidence Act provides for circumstances in which secondary evidence is admissible. According to Section 63 copies made and compared with the originals, or Photostat copies may be treated as secondary evidence.

Q2. When fact not otherwise relevant becomes relevant?

Section 3, Interpretation Clause of the Indian Evidence Act, 1872 defines this term as “One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.”

Section 11 of the Indian Evidence Act, 1872 deals with facts which ordinarily have nothing to do with that of a case are not in themself, but they have become to the relevant only by virtue of fact that they are either inconsistent with any fact in issue or relevant fact or they make the existence of a fact in issue or relevant fact either highly probable or improbable.

According to Section 11 of the Evidence Act,Facts not otherwise relevant are relevant-  

(1) if they are inconsistent with any fact in 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.

This section enables a person charged with a crime to take what is commonly called the plea of alibi which means his presence elsewhere at the time of crime. Evidence can be given of every fact which by itself or in connection with other facts makes the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. This section is too wide in its import. It does not place any restriction upon the range of facts that can be admitted as showing inconsistencies or probabilities. It leaves the whole thing at the discretion of the court.

Q3. What is Admission? Who can make Admission?

Section 17 of the Indian Evidence Act, 1872 defines the term “Admission” as: “An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances.

Admission in the Evidence Act is nothing but a piece of evidence. Admissions dealt with in the Indian Evidence Act in Section 17 to 23 and 31 or different from Judicial Admissions.

Sections 18 to 20 of the Act lays down the provisions relating to persons to make admissions. An admission is relevant. if it is made by

1. A party to the proceeding (Civil or Criminal);
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 interest in the subject matter of the suit during the continuance of such interest
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,
6. A person whose position is it necessary to prove in a suit, if such statements would be relevant in a suit brought by or against himself,
7. A person to whom a party to the suit has expressly referred for information in reference to a matter in dispute.

Q4. Who can do retraction of Admission?

Confessions are merely a species of admission which is defined under Section 17 of the Act. Retraction may be defined as the act of recanting. Which means withdrawing or renouncing prior statements formally.Thus,Retracted admission is a statement made by an accused person before the trial begins by which he admits to have committed the offence but which he repudiates/retracts at the trial.

That is, when a person was having once recorded a confession which is otherwise relevant, subsequently goes back upon it saying either that he never confessed or that he wrongly confessed is called a retracted confession. Article 20(3) of the Constitution of India, 1950 guarantees protection against the compulsion to be a witness against oneself.

The person who is best suited to state on facts can do retraction of admission.

Q5. Write note on ―Admissibility of Confession made to Police.

Confessions are merely a species of admission which is defined under Section 17 of the Act. Article 20(3) of the Constitution of India, 1950 guarantees protection against the compulsion to be a witness against oneself.

According to Section 25 of the Indian Evidence Act, 1872, no confession made to a police-officer, shall be proved as against a person accused of any offence. According to Section 26 of the Act, no confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

The rule of total exclusion of custodial confession from evidence, as enacted under Section 25 and 26 of the Evidence Act on the face of it, shows a serious concern of legislature for protection against police brutality, of the right of an accused person not to be compelled incriminate himself.

In Ram Singh v. State of Maharashtra, 1999 Cr LJ 3763 (Bom), the court held that any confessional statement given by accused before police is inadmissible in evidence   and   cannot   be   brought   on   record   by   the   prosecution   and   is insufficient to convict the accused.

Q6. Distinguish between Public Document and Private Document.

Public Documents	Private Documents
The term “Public Document” is defined in Section 74 of the Indian Evidence Act, 1872.	The term “Private Document” is defined in Section 75 of the Indian Evidence Act, 1872.
Public Documents are those documents which are authenticated by a public officer or also contain statements made by the public officer in their official capacity.	Private documents are those documents which are prepared between persons for their usual business transactions and communications.
They are made available to the public at large for reference and use.	They are not made available to the public at large. These documents are kept in the custody of the private persons only.
They act as admissible evidence of the fact in civil matters.	Certified copies of the private documents are generally not considered as evidence unless there is proof of the original copy is provided.
They are proved by secondary evidence.	They are proved by primary evidence.
The court is bound to presume the genuineness of a public document from the duly certified secondary copy.	No presumption is made about the genuineness of the original document from secondary evidence of private document except in some exceptional circumstances.

Q7. What are the ways of impeaching the credit of witness?

Impeaching the credit of a witness means to shake the reliability of the evidence given by the witness. It is to expose the person’s (witness’) real character and make the court believe that the witness is not reliable, and thus the court should not rely on this witness. Section 155 of the Indian Evidence Act, 1872 deals with the impeachment of credit of witness.

According to Section 155 of the Evidence Act the credit of the witness can be impeached by allowing independent evidence by both the parties i.e. the adverse party and the party calling the witness. The adverse party has a right to impeach the credit, whereas the party calling can only do it with the court’s permission. The section provides three ways to impeach the credit of witness:

1. Testimony of unworthiness:  By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;
2. Witness is bribed: By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
3. Former inconsistent statement: By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

Q8. Write Short Note on Examination of Witnesses.

The examination of witnesses is an integral part of a criminal trial. Witness testimonies are one of the most reliable evidence because the person giving the statements has personally witnessed the event happen. Part III, Chapter X, Section 135 to Section 166 of The Indian Evidence Act Deals with the Provisions of Examination of witnesses. Section 135 deals with the order of production and examination of witnesses.

According to Section 135 of the Act, the order in which witness are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law, by the discretion of the Court.

There are three stages of examination of witness. Sec. 138 of the Indian Evidence Act, governs the order of examination, wherein the witness is examined in chief (Section 137 para 1), then cross-examined (Section 137 para 2) and then re-examined (if the opposition party so desires) (Section 137 para 3).

The order in which witnesses are to be produced for examination is to be decided by the party leading his evidence. However, the Court has a discretion to direct the order in which the witnesses shall be produced. Like all other discretion, it has to be unreliable. Delay in the examination of a witness does not make the evidence of such witness to be unreliable.

Q9. Define Evidence. Mention various type of Evidence.

Section 3, Interpretation Clause of the Indian Evidence Act, 1872 defines the term “Evidence”. “Evidence” means and includes—

1. all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
2. all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.

Evidence in its relation to law includes all the legal means exclusive of mere arguments which tend to prove or disprove any fact the truth of which is submitted to judicial investigation. Court is not concerned about the method by which the evidence is obtained. Court has to decide on its admissibility.

Different types of evidence are

• Direct or Primary Evidence
• Indirect or Secondary Evidence
• Oral Evidence
• Documentary Evidence
• Hearsay Evidence
• Circumstantial Evidence
• Real Evidence
• Personal Evidence
• Judicial Evidence
• Non-judicial Evidence

Q10. Who can be a Witness? Mention various kind of witness.

A witness is said to be competent when there is nothing in law to prevent him from appearing in the court and giving witness. Whether a witness is competent, depends on his capacity to understand the question put to him and the capacity to give rational answer thereto.

According to Section 118 of the Indian Evidence Act, 1872, all persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind, or any other cause of the same kind. Using this logic anybody including child, dumb person, or lunatic person who can understand question and can give rational answer can testify.

Different kinds of witness are as follows:

• Prosecution witness
• Defence witness
• Eye witness
• Expert witness
• Hostile witness
• Child witness
• Dumb witness
• Chance witness
• Accomplice witness
• Interested witness

Q11. What are the essential conditions for Dying Declaration?

“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”. Section 32 of the Indian Evidence Act refers to a statement made by a person who is dead or cannot be found etc. Generally, hearsay evidence are not admissible but statement made by a person who is dead or cannot be found etc. is admissible as exception under Section 21(1).

Essential conditions of dying declaration 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

Q12. Elaborate the scheme for Indian Evidence Act, 1872

The scheme of the Indian evidence Act, 1872 is as follows:

There are 3 Parts and 11 Chapters of the Act, The Parts are as follows:

• Part I named Relevancy of Facts consisting of Chapters I and II
• Part II named On Proof consisting of Chapters III to VI
• Part III named Production and Effect of Evidence consisting of Chapters VII to XI

The Chapters are as follows:

• Chapter I: Preliminary (Ss. 1 – 4)
• Chapter II: Of the Relevancy of Facts (Ss. 5 – 55)
• Chapter III: Facts Which Need Not Be Proved (Ss. 56 – 58)
• Chapter IV: Of oral evidence (Ss. 59 – 60)
• Chapter V: Of Documentary Evidence (Ss. 61 – 100)
• Chapter VI: Of the Exclusion of Oral by Documentary Evidence (Ss. 91 – 100)
• Chapter VII: Of the Burden of Proof (Ss. 101 – 114 A)
• Chapter VIII: Estoppel (Ss. 115 – 117)
• Chapter IX: Of Witness (Ss. 118 – 134)
• Chapter X: Of the Examination of Witness (Ss. 135 – 166)
• Chapter XI: Of Improper Admission and Rejection of Evidence (S. 167)

Q13.Explain Chapter VII of Indian Evidence Act, 1872.

Chapter VII of the Indian Evidence Act is of the Burden of Proof. It contains Section 101 to 114A. The headings of section are as follows:

Section	Particulars
Section 101	Burden of Proof
Section 102	On whom burden of proof lies
Section 103	Burden of proof as to particular fact
Section 104	Burden of proving fact to be proved to make evidence admissible
Section 105	Burden of proving that case of accused comes within exceptions
Section 106	Burden of proving fact specially within knowledge
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 109	Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent
Section 110	Burden of proof as to ownership
Section 111	Proof of good faith in transactions where one party is in relation of active confidence
Section 111A	Presumption as to certain offences
Section 112	Birth during marriage, conclusive proof of legitimacy
Section 113	Proof of cession of territory
Section 113A	Presumption as to abatement of suicide by a married women
Section 113B	Presumption as to dowry death
Section 114	Court may presume existence of certain facts
Section 114A	Presumption as to absence of consent in certain prosecutions for rape

Q14.Comment on “All confessions are admissions but all admissions are not confessions.”

The term confession is nowhere defined in the Indian Evidence Act 1872, but the definition of admission under section 17 of Indian evidence Act becomes applicable to confession also. If a statement made by a party in the civil proceeding, it is called as admission while if it is made by the party charged with the crime, in a criminal proceeding, it is called as a confession. Thus, the confession is a statement made by the person charged with a crime suggesting an inference as to any fact in issue or as to relevant fact.  The inference that the statement should suggest that he is guilty of a crime.

Confessions are merely a species of admission which is defined under Section 17 of the Act. While admission is genus itself. Thus, the confession is a subset of admission. Confession can be made by accused only, while persons who are not parties can make admission. Confession is irrelevant when made in police custody u/s 25 & 26, while, admission is relevant when made in police custody u/s 27. Form of confession is prescribed u/s 164 of Cr.P.C, while no form of admission has been prescribed. Confession is regarded as conclusive proof, if it is made voluntarily and truly made, while admission is not regarded as conclusive proof. Thus, all confessions are admissions but all admissions are not confessions

Q15.Explain the provisions relating to “Character When Relevant”

Character is a combination of quality distinguishing a person, the individuality of which is the product of nature, habits and environment. The word Character has been defined in Section 55 of the Indian Evidence Act, 1872. It includes both reputation and disposition, but except as provided in Section 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown. Sections 52 to 55 deals with provisions explaining relevancy of character of accused in judicial proceedings.

1. In civil cases character to prove conduct imputed is irrelevant (Section 52)
2. In criminal cases previous good character relevant (Section 53)
3. In criminal cases previous bad character not relevant except in reply is relevant and where the bad character itself is a fact in issue. (Section 54)
4. In civil cases character as affecting damages is relevant (Section 55)

Q16. Explain Chapter VIII of Indian Evidence Act, 1872

Chapter VIII of the Indian Evidence Act is of Estoppel. It contains Section 115 to 117.  Doctrine of Estoppel is that provision which prohibits a person from giving false evidence by preventing them from making contradicting statements in a Court of Law. The objective of this doctrine is to avert the commission of fraud by one person against another person. This doctrine holds a person accountable for false representations made by him, either through his words or through his conduct. According to Section 15 of the Act, estoppel as a principle which prohibits a person from denying what was earlier said by him in the Court. The court in Pickard v. Sears said that estoppel is where:

•           One party by his words or actions makes a representation

•           The other party believing in his words acts on that

•           Or alters his position

then the party would not be allowed to deny the things he previously said.

The headings of section are as follows:

Section	Particulars
Section 115	Estoppel
Section 116	Estoppel of tenant, and of licensee of person in possession
Section 117	Estoppel of acceptor of bill of exchange, bailee or licensee

Q17.Elaborate the definition for “Document”

Section 3 of the Evidence Act, 1872 define the term “Document”. According to Section 3 of the Act, “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

According to section 3 of the Indian Evidence Act, 1872, the evidence provided to the court in the written form is called Documentary Evidence. There are two categories of documentary evidence: (a) Public Document and (b) Private Document.

Examples of document are a writing, a map or plan, an inscription on meal frame, electronic document.

Chapter V, Sections 61-90 of the Indian Evidence Act, 1872 deals with documentary evidence and they may be grouped as follows:

1. Documentary evidence (Sections 61 to 73A)
2. Public documents (Sections 74 to 78)
3. Presumptions as to documents (Sections 79 to 90)

Q18. Elaborate “Proved”, “Disproved” and “Not Proved”

Section 3, Interpretation Clause of the Indian Evidence Act, 1872 defines these terms.

• “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.
• “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 of the particular case, to act upon the supposition that it does not exist.
• “Not proved”. — A fact is said not to be proved when it is neither proved nor disproved.

Q19. What is “Fact in Issue”?

Section 3, Interpretation Clause of the Indian Evidence Act, 1872 defines this term.

The expression “facts in issue” means and includes— any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. 

‘Fact in issue’ are those facts, which are alleged by one party and denied by other parties in the pleading in a civil case or alleged by the prosecution and denied by the accused in a criminal case. A fact in issue is called the “principal fact” or factum probandum

Essentials or elements of “Fact in issue”?

• It is the fact of dispute between the parties; and
• It should touch the question of rights and liabilities of parties in the dispute.

Q20.Explain “May Presume, Shall Presume and Conclusive Proof

Section 4 of the Evidence Act, 1872 define these terms.

• “May presume”—Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
• “Shall presume”—Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
• “Conclusive proof”—When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

Indian Evidence Act Questions 1 to 20
Indian Evidence Act Questions 21 to 40
Indian Evidence Act Questions 41 to 60
Indian Evidence Act Questions 61 to 80
Indian Evidence Act Questions 81 to 100
Indian Evidence Act Questions 101 to 120
Indian Evidence Act Questions 121 to 133