Q121.”What is the presumption relating to Dowry Death in the Indian Evidence Act, 1872?
In law a presumption means a rule of law that Courts and judges shall draw a particular inference from a particular fact or from a particular evidence, unless and until the truth of such inference is disproved. In law there are two presumptions viz: a) presumption of fact and b) presumption of law. Section 113 B of the Indian Evidence Act, 1872, deals with the presumption relating to Dowry Death. The explanation attached to the Section states that “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).
According to Section 113B of the Indian Evidence Act, 1872, when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death
Q122. A and B are jointly tried for the murder of C. It is proved that A said that he and B had murdered C. Whether the statement given by A is a confession? Discuss the relevancy of this statement with the aid of relevant legal provision.
Yes statement of A is confession. A and B are jointly tried for the murder of C. It is proved that A said—”B and I murdered C”. The Court may consider the effect of this confession as against B. It is to be noted that both A and B are tried jointly. Hence provisions of Section 30 of the Evidence Act, 1872, are applicable.
According to Section 30 of the Evidence Act, 1872, when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of 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.
Q123.Briefly explain Estoppel.
Part III, Chapter VIII containing Section 115 to 117 of the Indian Evidence Act 1872 , lay down the provisions relating to the “doctrine of Estoppel” Section 115 embodies the principle of Estoppels. Estoppel is rule of evidence, by which a person is not allowed to plead the contrary of a fact or state of things, which he formally asserted as existing.
According to Section 115 of the Indian Evidence Act, 1872, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
‘A’ intentionally and falsely leads ‘B’ to believe that certain land belongs to ‘A’ and thereby induces ‘B’ to buy and pay for it. The land afterwards becomes the property of ’A’ and A seeks to set aside the sale on the ground that, at the time of the sale, He had no title. He must not be allowed to prove his want of title.
Q124. Define “presumption”, what do you mean by May Presume, shall presume and conclusive proof?
Presumption may be defined as an inference affirmative or dis-affirmative, of the truth of falsehood of a doubtful fact of proposition drawn by a process of probable reasoning from something proved or taken for granted. In law a presumption means a rule of law that Courts and judges shall draw a particular inference from a particular fact or from a particular evidence, unless and until the truth of such inference is disproved. In law there are two presumptions viz: a) presumption of fact and b) presumption of law.
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.
Q125. Can admissions be proved by or on behalf of the persons making them? If so, is the rule subject to any exceptions?
Section 21 deals with the proof of admissions against persons making them, and by or on their behalf. This section brings forth general principles of admission that admissions made are relevant and may be proved against the person who makes the admission and his representative in interest. Admission should be clear if they are used against the person making them. What a party himself admits to be true may reasonably be presumed be to so and until that presumption is rebutted the fact admitted should be taken to be established The person against whom admission is proved is at liberty to show it was untrue. Any self-serving statement made under this section would be considered irrelevant unless it falls under the ambit of general exception as provided
Exceptions:
- when a statement is made to a third person by a person who is no more alive.
- facts which are relevant under section 6 to 13 cannot be rendered inadmissible simply because they can be proved on behalf of the persons making them. Certain other relevant statements can also be proved by the party making it, such as, when the statement is itself a fact in issue or if it is a part of res gestae.
Q126. “Hear-say evidence is no evidence”. Explain.
Hearsay evidence has no evidentiary value due to following reasons:
- It is not given on oath
- It cannot be tested by cross-examination
- In many cases, it suppresses some better testimony which, though available, is not adduced.
- Its admission tends to prolong trials unduly by letting statements, the probative value is very low.
- Its admission tends to open door to fraud, which might be practiced with impunity.
- Hearsay evidence is secondary evidence.
- If confronted with contrary position, he always has a line of escape by pleading that this was not his personal knowledge and that he was so informed by somebody else.
Provisions of Sections 32 and 33 lays down some exceptions to the general rule that hearsay evidence is not admissible.
Q.127. Differentiate between admission and confession.
| Admission | Confession |
| It is made in generally in civil cases. | It is made in criminal cases only. |
| It is genus, which means all admission does not includes confession. | It is species, meant every confession includes admission. |
| Additional evidence is required to prove the guilt. | The guilt can be proved on the basis of confessional statement. |
| It is not regarded as Conclusive proof u/s 31. | It is regarded as conclusive proof, if it is made voluntarily and truly made. |
| It is usually not relevant if it is made on promise of secrecy u/s 23. | Confession is relevant if it is made on promise of secrecy u/s 29. |
| It can not be retracted | It can be retracted |
| Persons who are not parties can make admission u/s. 18, 19 & 20. | Confession can be made only by an accused. |
| It may not be Voluntarily made. | It must be direct, free and voluntarily made. |
| It cannot be used against the co-plaintiff or defendant. | It may be used against a co-accused u/s 30. |
| It may be used in favour of the maker as exception u/s.21 | It is always used against the persons who make it. |
| It is relevant when made in police custody u/s 27. | It is irrelevant when made in police custody u/s 25 & 26. |
| No form of admission has been prescribed. | It has prescribed format for recording u/s 164 of Cr.P.C. |
Q128. Explain the provision related to exclusion of oral evidence by documentary evidence.
Chapter VI, Sections 91 to 100 of the Indian Evidence Act 1872 deals with the provisions of “exclusion of oral by documentary evidence”.\ Documents once reduced into writing are considered to be the best evidence. The very object for which writing is used is to perpetuate the memory of what is written down, and so to furnish permanent proof of it. In order to give effect to this, the document itself must be produced. Section 61 of Evidence Act provides that the contents of documents may be proved by primary evidence or its secondary evidence.
Section 91 and Section 92 define the cases in which documents are exclusive evidence of transactions which they embody and oral evidence cannot be used to supersede, control, contradict, vary add to subtract from the terms of the document.
Section 93 to 100 deal with the Interpretation of Documents by oral evidence.
When the term of contract or of a grant or any other disposition of property have been reduced to the form of a document, and when any matter is required by law to be reduced to the form of a document – no evidence can be given in proof of the terms of such contract, grant, etc., except
- The document itself or
- Secondary evidence of its contents, in cases in which secondary evidence is admissible.
Q129. When are opinions of third person relevant according to Indian Evidence Act?
Chapter II Sections 45 to 51of the Indian Evidence Act deal with the relevancy of opinions of third persons. The provisions under these sections are exceptional to natural rule of law of evidence where the evidence is only that fact which is given by the witness on the basis of his knowledge and belief. This exception states that the court cannot draw its opinion on the technical matters as well as complicated matters which require the special knowledge of the person having acquired expertise on the relative field.
According to Section 45 of the Act, an expert is said to be a person having knowledge or expertise in any of the field like foreign law, science, art, identity of handwriting or finger expression and where such knowledge has been gathered by him by practice, observation, studies. The primary obligation of the expert witness is to assist the court on the cases which fall under the ambit of their expertise. They are not bound to compel the parties to pay their fees who have appointed them. Expert evidence is opinion evidence and it cannot replace the substantive evidence. It is the rule of the procedure that the expert witness must be corroborated either by direct evidence or by circumstantial evidence.
The opinion of expert required in following situations:
- Foreign law, science, handwriting, etc. (Ss. 45, 46, 47)
- Electronic signature (S. 47 A)
- Rights and customs (S. 48)
- Usages, tenets, etc. (s. 49)
- Relationship (Ss. 50 & 51)
Q130. What is the difference between Judicial and Extra Judicial confession? Explain the evidentiary values.
Judicial confession:
A Judicial Confession is that which is made before Magistrate or in a court due course of judicial proceeding. Judicial Confession is relevant and is used as evidence against the maker provided it is recorded in accordance with provisions of Section 164 of CrPC. The magistrate who records a confession under Section 164, Criminal Procedure Code, must, therefore, warn the accused who is about to confess that he may or may not be taken as an approval. After warning the accused he must give time to think over the matter and then only record the confession. Such a confession is called judicial confession. Judicial confession is relevant and admissible.
Extra-Judicial Confession:
Extra-Judicial Confession is made not before a Magistrate or any Court in due course of judicial proceeding but is made either to police during the investigation or into police custody or made otherwise than to the police. Extra-Judicial confession is not relevant.
Q131.. State briefly the facts and principles in the Pakala Narayan Swami v. Emperor.
On Tuesday, March 23, 1937, at noon the body of the deceased man (Kuree Nukaraju ) was found in a steel trunk in a third class compartment at Puri, the terminus of a branch line on the Bengal Nagpur Railway, where the trunk had been left unclaimed. The body has been cut into seven portions. The body of the deceased was identified by his widow. The deceased was a man of about 40 and working as a peon in the service of dewan of Pithapur.
Pakala Narain Swami, the accused, was married to one of the daughters of deceased. After marriage Pakala Narain Swami and his wife went to live at Berhampur about 250 miles away from Pithapur. In the year of 1933, they came back to Pithapur. On account of their needs of money the accused’s wife borrowed Rs. 3000 at interest at the rate of 18% per annum. About 50 letters and notes proving these transactions signed by the accused’s wife were found in the deceased man’s house at Pithapur after his death.
On Saturday 20th March 1937, the deceased received a letter from the accused inviting him to come that day or the next day to Berhampur. The deceased’s widow told the court that on that day her husband showed her a letter and said that he was going to Berhampur as Swami’s wife had written to him inviting him to come to receive payment of his dues. The deceased left his place on 21st march to catch the train for Berhampur. He did not come back and on Tuesday 23rd March his body was found in a steel trunk in a third class compartment of a train at Puri.
The accused was tried and convicted for murder and was sentenced to death.Appeal was made at Privy Council.
The issues raised were:
- Whether the statement of the accused can be considered as confession?
- Whether the statement of the deceased to his wife that he is going to Berhampur to take back his loan was considered as a dying declaration?
The privy council made following observation.
- The word confession can be construed from a statement by an accused suggesting the inference that he had committed the crime.
- A confession either admits in terms of the offence or at any rate substantially admits all the facts which constitute the offence.
- An admission of a gravely incriminating facts even if a conclusively incriminating facts cannot be considered as a confession
- A statement which contain self-explanatory matter cannot amount to confession. It must be either be taken as whole or rejected.
- The statement of the deceased to his wife was considered as a dying declaration and hence admissible under section 32(1).
Q132. Define Evidence and distinguish between oral and written Evidence.
According to Section 3 of the Indian Evidence act, 1872, “Evidence” means and includes 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; and all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.
| Oral Evidence | Documentary Evidence |
| According to Section 3 of the Indian Evidence Act, 1872, 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. | According to Section 3 of the Indian Evidence Act, 1872, all documents produced for inspection of Court are called documentary evidence |
| Oral evidence is a statement of witnesses. | Documentary evidence is a statement of documents. |
| witnesses are said to be living proofs | Documents are denominated as dead proof |
| There may be discrepancies in oral evidence. | Documentary evidence is superior to oral evidence in permanence, and in many respects, in trustworthiness. |
| Oral evidence should be direct from a witness who have seen, heard, or perceived the facts in issue or relevant facts. | Existence of documentary evidence excludes the production of oral evidence. |
Q133. Now-a-days dying declaration has lost its creditability and authenticity, discuss.
According to Lord Eyre, C.B., “the principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of the world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and awful is considered by the law as creating an obligation equal to that which is imposed by the law as creating an obligation equal to that which is imposed by a positive oath administered in the court of justice.”
Physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for a wrong to another, as well as the fact that the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination: all these considerations conspire to render such declarations a dangerous kind of evidence. Hence, now-a-days dying declaration has lost its creditability and authenticity.
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