The Indian Evidence Act Questions 81 to 100 (3 Marks)

Q81. What is “Burden of Proof‟? On whom the burden of proof lies in suit of proceeding?

Chapter VII, S.101 to S.114 of Indian Evidence Act, 1872, deals with the provisions of “burden of Proof”. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The burden of proof means the obligation to prove a fact.

The expression burden of proof is explained in S.101 of Indian Evidence Act as, “When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person”. For Example: A alleges that B has murdered C, then the burden of proof lies on A to prove his allegations. Generally, in civil cases, the burden of proof lies on plaintiff and in criminal cases it lies on prosecution.

According to Section 102 of the Indian Evidence Act, 1872, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.

Q82. Who is Dumb Witness? How can dumb witness provide evidence?

Every person is competent to give evidence if he satisfied the test of being able to understand the questions which are put to him, and he is in a position to give rational answer to those questions. Any person who satisfies these tests shall be competent to testify, child, deaf and dumb persons can give evidence. Deaf and Dumb are competent to give evidence. They may give evidence either by signs or through an interpreter or in writing.  Section 119 of the Indian Evidence Act deals with the deaf and dumb witness.

According to Section 119 of the Indian Evidence Act, 1872, a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence. If the deaf and dumb witness is prevented from narrating the incident by making signs, gestures, etc. under Section 119 of the Act, the interpreter can be called to interpret the same.

Q83. Write Short Note on “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).

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. Such valuation of Dying Declaration depends upon many things as under

• State of mind of declarant.
• State of the body of declarant.
• To whom the Declaration/Statement is made.
• Who recorded the statement?
• Whether the statement is recorded in the same language and in a same word of the declarant.

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

Q84. Arvind intentionally leads Chirag to believe that one acre of a particular land belongs to him (Arvind), and influences Chirag to buy the land making full payment to Arvind. However, at the time of this sale, the land did not actually belong to Arvind. But after three months of the sale, Arvind becomes the owner of the said land. Now he seeks to set aside the sale between himself and Chirag.

a) Can the sale be set-aside between them? Why?

b) Explain the ‘doctrine’ applicable to such cases with the help of relevant provisions

a) No, in this case Sale cannot be set aside, as Arvind is stopped from denying his title to the land which earlier he claimed to have (Section 115 of the Indian Evidence Act, 1872).

b) The doctrine of estoppel is applicable in this case.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 belied, 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.

Q85. Surbhi was pricked in the stomach by her Husband who was angry as she could not bring the dowry as per his demand from her parents. She was admitted to the hospital by her neighbour, and she narrated to them that her husband had caused the injuries. She also told the same to the on-duty policeman at the hospital Police-chowki. Later, Surbhi passed away.

a) What will be the value of Surbhi’s statement to her neighbour, in the trial that would be held against her husband?

b) Give landmark Judgment relevant to this situation with provision.

a) Statement of Surbhi can be considered as 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”. Dying declaration can be made to anyone even to police officer or constable. 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).

b) The landmark judgment is Laxman v. State of Maharashtra, AIR 2002 SC 2973. In this case the apex court observed that what is essentially required is that, a person who records the statement must be satisfied that the injured person was in a fit state of mind.

Q86. Shani, Bunny, and Chunky plan to kill Khalid by hiring a contract killer Ahmed. After commission of the crime, Ahmed, the contract killer, was arrested by the police. Ahmed named all three people to be involved in the said crime. Bunny, however, denies his role in the commission of the subject crime. The police officer books all four as accused for the murder of Khalid.

a) Can the police book Bunny as co-conspirator in this case? If yes, then give reason(s) with provision(s)

b) What will be the situation if Bunny did not actively take part in the commission of the crime, but only helped Shani and Chunky finding the killer?

A Conspiracy consists in a combination or agreement or agreement between two or more persons to do an unlawful act or to do unlawful act by unlawful means. The evidence of a conspirator is admissible against his co-conspirator on the principal that the thing done, written or spoken was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. If prima existence of a conspiracy is gives and accepted, the evidence of acts and statements made by any one of the conspirators in furtherance of the common object is admissible against all.

 Section 10 of the Indian Evidence Act, 1872, deals with conspiracy. According to Section 10 of the Act, 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.

Section 10 of the Act, has been deliberately enacted in order to make acts of a co-conspirator admissible against the whole body of conspirators , because of the nature of crime.

Q87. What is Secondary Evidence? Does it have any value in evidence?

Documentary Evidences are of two kinds – Primary Evidence and Secondary Evidence.According to Section 62 of the Act, primary evidence means the document itself produced for the inspection of the Court”. 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.

Before secondary evidence of a document can be allowed to be led two things have to be satisfied:

• that the original document was properly stamped and admissible in evidence and
• that one of the conditions enumerated in section 65 of the Indian Evidence Act entitling the leading of secondary evidence has been established.

Q88. What is an 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.

Q89. What is a “cross-examination”? What questions are lawful in a cross – examination?

According to Section 137, para 2 of the Indian Evidence Act, 1872, the examination of a witness by the adverse party is called his cross-examination. Cross-examination considered most powerful weapon. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing. Leading questions may be asked.

The cross –examination need not be confined to relevant facts touched in the examination in chief. If examination-in-chief does not touch all the facts, then they may be exposed in cross examination.

The object of the cross examination is

1. to test the truth of statement made by witness, to see how far is memory is reliable or what powers of observation possesses whether he is partial or impartial, etc. 
2. to a impeach the accuracy, credibility and general value of the evidence given in chief;
3. to sift the facts already stated by the witness,
4. to detect and expose discrepancies or to elicit suppressed facts which will support the case of cross examination of party.

Leading questions may be asked in cross examination. The questions those are indecent and scandalous (Section 151) or insulting or annoying. (Section 152) are barred in cross examination. Court can forbid them.

Q90. Explain the meaning of Plea of Alibi

Section 11 of the Indian Evidence Act, 1872 is expounded with the Plea of Alibi. It is the plea of absence of person, charged with an offence, from the place of occurrence at the time of the commission of the offence is named as plea of alibi. The term “Alibi “is a Latin word which implies – elsewhere or some another place. In criminal law this plea is employed by accused against the commission of an alleged offence. When the accused pleads the alibi in court of law, he or she attempts to prove that he or she is elsewhere else at the time when the offence is committed. In other words, it simply tells us that the accused wasn’t physically present at the crime scene. It’s basic law that in criminal case, the burden is on the accused to prove that the he was not present at the scene and has not participated within the crime (Section 103 of Indian Evidence Act, 1872). So as to ascertain the plea of alibi the accused must lead evidence to indicate that he was too far off at the instant of the crime from the place of occurrence that he couldn’t have committed the offence

Q91.What is a Leading Question?

Section 141 of the Indian Evidence Act 1872 defines ‘Leading Questions’ as, “Any questions suggesting the answer which the person putting it wishes or expects to receive is called a leading question. Example:  Is your name so and so?

Section 142 and Section 143 of the Act, provides circumstances under which the leading Questions may be asked or may not be asked.  According to Section 142, leading questions must not, if objected to by the adverse party, be asked in anexamination-in-chief, or in re-examination, except with the permission of the Court. The Section further lays down that the court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. According to Section 143 of the Act, leading questions can be asked in cross examination.

Q92. Explain what is meant by “Indirect Evidence”

Evidence can be broadly divided into two sub- categories, direct and indirect or circumstantial evidence. In India, the term circumstantial evidence was first used by Sir James Stephen, stating circumstantial evidence to be facts that are relevant to the other fact, whose existence can prove by the existence of other fact. Circumstantial evidence is supported by a significant amount of corroboration. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

An example of circumstantial evidence would be, if police retrieve stolen goods from the house of a suspect, although it establishes that the suspect has stolen the good but does not necessarily establish guilt or the fact that he must have stolen the goods. Recovery of goods in the house of a suspect is a circumstantial evidence as the goods might be placed there by someone else, thus not establishing complete guilt but forming a chain of events. This would shift the burden of proof on the suspect to establish his innocence.

In Bhim Singh Vs. State of Uttarakhand, (2015) 4 SCC 281 (para 23) case, the Supreme Court has laid down principles on circumstantial evidence, which clearly shows that circumstantial evidence needs corroboration. The principles are

1. the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established,
2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
3. the circumstances should be of conclusive nature and tendency,
4. they should exclude every possible hypothesis except the one to be proved,

Q93.Explain in short Presumption as to Electronic Messages.

According to Section 4 of the Indian Evidence Act, 1972, 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. Thus it is a discretion of the court.

Section 88A of the Indian Evidence Act, 1872, deals with the presumption as to electronic message. According to Section 88a of the Act, the Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

Q94. 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)

Q95.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

Q96. 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

Q97. 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 of the Indian Evidence Act, 1872, deal 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)

Q98.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

Q99. 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)

Q100. 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.

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