Legum Baccalaureus (LLB) - Law of Evidence 2nd Semester Syllabus Short Notes

    *** Download the PDF from the link provided at the bottom of this page.

Each subject's PDF will be in its respective blog.

SYLLABUS SHORT NOTES

UNIT – 1

The Indian Evidence Act, 1872

The Indian Evidence Act, 1872 is a legislation that governs the admissibility, relevancy, and weight of evidence presented in Indian courts. It is based on the principles of English common law and is applicable to all proceedings in Indian courts, including civil and criminal cases.

The act provides a framework for the evaluation of evidence presented in court and outlines the various types of evidence that may be presented, such as oral, documentary, and circumstantial evidence. It also lays down rules for the examination and cross-examination of witnesses.

The Indian Evidence Act also contains provisions regarding the burden of proof in a case, which is the obligation of a party to prove a fact or issue. It also includes provisions for the presumption of certain facts, such as that a person is innocent until proven guilty.

The act is divided into three parts: the relevancy of facts, the onus of proof, and the production and effect of evidence. It contains a total of 167 sections and is considered a comprehensive legislation on evidence in India.

Overall, the Indian Evidence Act plays a crucial role in the administration of justice in India by providing a standardized framework for the evaluation of evidence in court proceedings.

 

Salient features of the Act

The Indian Evidence Act, 1872 is a comprehensive legislation that outlines the rules for the admissibility, relevancy, and weight of evidence presented in Indian courts. Some of the salient features of the act are:

1.       Applicability: The act applies to all judicial proceedings in India, including civil, criminal, and revenue cases.

2.       Types of Evidence: The act recognizes three types of evidence - oral, documentary, and circumstantial evidence.

3.       Relevancy of Evidence: The act lays down rules for the relevancy of evidence and states that evidence is relevant if it is related to a fact in issue or is likely to prove or disprove it.

4.       Burden of Proof: The act provides guidelines for determining the burden of proof in a case. It states that the party who asserts a fact or issue has the burden of proving it.

5.       Presumption of Facts: The act includes provisions for the presumption of certain facts, such as that a person is innocent until proven guilty.

6.       Witnesses: The act lays down rules for the examination and cross-examination of witnesses and also provides for the protection of witnesses.

7.       Admissibility of Evidence: The act sets out the criteria for the admissibility of evidence, stating that evidence must be relevant, not excluded by law, and presented in accordance with the provisions of the act.

8.       Privileged Communications: The act recognizes certain communications as privileged, including those between lawyer and client, husband and wife, and communication made in the course of official duty.

9.       Confessions: The act sets out the rules for the admissibility of confessions and states that a confession made to a police officer is not admissible as evidence.

10.   Expert Evidence: The act provides for the admissibility of expert evidence and lays down the qualifications that an expert must possess.

Overall, the Indian Evidence Act is a crucial legislation that sets out the guidelines for the presentation and evaluation of evidence in Indian courts.

 

Meaning and kinds of Evidence

Evidence refers to any material or information that is presented in a court of law to prove or disprove a fact or issue in a case. Evidence can take many forms, including oral testimony, documents, physical objects, photographs, and expert opinions. Evidence is the cornerstone of the legal system and plays a crucial role in determining the outcome of a case.

There are three main kinds of evidence that are recognized by the Indian Evidence Act, 1872:

1.       Oral Evidence: Oral evidence refers to any statement made by a witness in court under oath. This includes direct evidence, where the witness personally observed the facts in issue, and hearsay evidence, where the witness relates something they were told by someone else.

2.       Documentary Evidence: Documentary evidence includes any written or printed material that is presented in court, such as contracts, letters, receipts, and reports. The admissibility of documentary evidence is determined by the rules set out in the Indian Evidence Act.

3.       Circumstantial Evidence: Circumstantial evidence refers to evidence that is not based on direct observation of the facts in issue but is inferred from other facts or circumstances. For example, if a witness testifies that they saw a person near the scene of a crime at the time it occurred, this would be circumstantial evidence that the person may have been involved in the crime.

In addition to these three main kinds of evidence, other forms of evidence may be presented in court, such as physical evidence (such as weapons or clothing) or expert evidence (such as the opinion of a medical expert). The admissibility of such evidence is determined by the rules set out in the Indian Evidence Act and the discretion of the judge presiding over the case.

 

The impact of the Information Technology Act, 2000 on the Indian Evidence Act

The Information Technology Act, 2000 (IT Act) is a legislation in India that provides legal recognition to electronic records and digital signatures. The IT Act has had a significant impact on the Indian Evidence Act, 1872, particularly with respect to the admissibility of electronic evidence in court proceedings.

Prior to the IT Act, the admissibility of electronic evidence was not explicitly addressed in the Indian Evidence Act. However, the IT Act introduced the concept of electronic records, which are defined as any data, record, or information that is stored in electronic form. The IT Act also provides for the admissibility of electronic records as evidence in court proceedings, subject to certain conditions.

Under the Indian Evidence Act, electronic records are treated as documents, and the rules for the admissibility of electronic records are similar to those for the admissibility of paper documents. Section 65B of the Indian Evidence Act sets out the conditions that must be satisfied for electronic records to be admissible as evidence in court. These conditions include:

1.       The electronic record must be produced from a computer that was used regularly and reliably to store the information.

2.       The computer must have been operating properly at the time the information was entered.

3.       The electronic record must be accompanied by a certificate, in the prescribed form, that verifies the authenticity of the record.

4.       The certificate must be signed by a person who has the necessary knowledge and expertise to give such a certificate.

Overall, the IT Act has had a significant impact on the admissibility of electronic evidence in court proceedings in India. The introduction of electronic records and the conditions for their admissibility have clarified the legal framework for the presentation and evaluation of electronic evidence, and have facilitated the use of technology in the legal system.

 

Interpretation clause

An interpretation clause is a section of a legal document, such as an act or a statute, that provides definitions and explanations of key terms and phrases used in the document. The purpose of an interpretation clause is to clarify the meaning of the terms used in the document and to ensure that the document is interpreted consistently.

In the Indian context, the interpretation clause is included in various legal documents, including the Indian Constitution, the Indian Penal Code, and the Indian Evidence Act. For example, Section 3 of the Indian Evidence Act provides an interpretation clause that defines key terms used in the Act, such as "evidence," "fact," and "proved." The interpretation clause also includes definitions of various types of evidence, such as "documentary evidence" and "oral evidence."

The interpretation clause plays a crucial role in the interpretation and application of legal documents. By providing definitions and explanations of key terms, the interpretation clause helps to ensure that the document is applied consistently and that there is clarity in the interpretation of the document. It also helps to avoid confusion and ambiguity in the interpretation of the document, which can lead to inconsistencies in legal decisions.

 

May Presume, Shall presume and Conclusive proof

In legal language, "may presume," "shall presume," and "conclusive proof" are terms that describe different degrees of certainty or probability that a fact or issue in a legal case can be determined based on the evidence presented. These terms are often used in relation to the Indian Evidence Act, 1872.

1.       "May presume": When a fact is said to be "may be presumed," it means that a judge or a jury can infer that fact from the available evidence, but they are not required to do so. In other words, it is a permissive inference. For example, Section 114 of the Indian Evidence Act states that the court may presume the existence of certain facts, such as the fact that a person who has been missing for a long period is presumed to be dead.

2.       "Shall presume": When a fact is said to be "shall be presumed," it means that the judge or the jury is required to draw the inference unless the evidence presented proves otherwise. In other words, it is a mandatory inference. For example, Section 112 of the Indian Evidence Act states that a child born during a marriage is presumed to be the legitimate child of the husband and wife, unless proven otherwise.

3.       "Conclusive proof": When a fact is said to be "conclusively proved," it means that the evidence presented establishes that fact beyond any doubt or question. In other words, it is an irrefutable proof. For example, Section 114A of the Indian Evidence Act states that the court shall presume that a document purporting to be a power of attorney was executed by the person who purports to have executed it, unless it is proved otherwise.

In summary, "may presume" refers to a permissive inference, "shall presume" refers to a mandatory inference, and "conclusive proof" refers to an irrefutable proof. These terms are important in the interpretation and application of the Indian Evidence Act, and they help to ensure that legal decisions are based on a clear understanding of the evidence presented.

 

Fact, Fact in issue and Relevant facts

In legal language, "fact," "fact in issue," and "relevant facts" are important concepts that are used in the Indian Evidence Act, 1872, and other legal documents. These terms are defined as follows:

1.       Fact: A fact is any event, circumstance, or thing that can be perceived by the senses or is capable of being demonstrated or proven. In the context of the Indian Evidence Act, a fact is something that is capable of being proved or disproved in a legal proceeding.

2.       Fact in issue: A fact in issue is a fact that is directly and substantially in dispute in a legal proceeding. In other words, it is a fact that is relevant to the case and is being contested by the parties involved. For example, in a criminal trial, the fact in issue may be whether the accused committed the crime or not.

3.       Relevant facts: Relevant facts are any facts that have a logical connection to the fact in issue or that tend to prove or disprove the fact in issue. In other words, relevant facts are any facts that are helpful in determining the truth or falsity of the fact in issue. Relevant facts can include facts that are related to the circumstances of the case, the behavior of the parties involved, or the location or timing of the event in question.

In summary, "fact" refers to any event or circumstance that can be proven or disproven in a legal proceeding, "fact in issue" refers to a fact that is directly in dispute in a legal proceeding, and "relevant facts" refer to any facts that have a logical connection to the fact in issue or that tend to prove or disprove the fact in issue. These concepts are important in the interpretation and application of the Indian Evidence Act, as they help to ensure that only relevant and admissible evidence is presented in court.

 

 

Distinction between Relevancy and Admissibility

In legal language, "relevancy" and "admissibility" are two important concepts that are used in the Indian Evidence Act, 1872, and other legal documents. These terms are often used interchangeably, but they have different meanings and implications in a legal context. The main differences between relevancy and admissibility are as follows:

1.       Relevancy: Relevancy refers to the logical connection between a fact and the matter at issue in a legal proceeding. In other words, relevancy determines whether a fact is pertinent to the case and is capable of aiding in the determination of the truth or falsity of the matter at issue. A fact is relevant if it has a logical connection to the fact in issue or tends to prove or disprove the fact in issue. Relevant evidence is evidence that is logically connected to the matter at issue.

2.       Admissibility: Admissibility refers to whether evidence is admissible in court or not. Admissibility is determined by the rules of evidence, which govern the admissibility of evidence in court. Evidence may be excluded from being admitted for various reasons, such as being irrelevant, unreliable, or prejudicial. For example, evidence that is obtained through illegal means may be excluded from being admitted in court because it is not admissible, even if it is relevant to the case.

In summary, "relevancy" refers to the logical connection between a fact and the matter at issue, whereas "admissibility" refers to whether evidence is admissible in court or not. Relevancy determines whether a fact is pertinent to the case, while admissibility determines whether the evidence is admissible in court under the rules of evidence. Both relevancy and admissibility are important concepts in the interpretation and application of the Indian Evidence Act, as they help to ensure that only relevant and admissible evidence is presented in court.

 

Doctrine of Res gestae

The doctrine of Res gestae is a legal principle that allows certain statements or actions to be admissible as evidence in court as part of the circumstances surrounding a particular event. The term "Res gestae" means "things done" in Latin and refers to a group of facts, circumstances or events that are so closely connected to the main event that they form part of the same transaction. The doctrine of Res gestae is based on the idea that certain statements or actions made by individuals during an event are spontaneous and trustworthy because they are made in the heat of the moment and are closely related to the event.

Under the Indian Evidence Act, 1872, the doctrine of Res gestae is covered under Section 6, which provides that facts that form part of the same transaction as the fact in issue are relevant if they are necessary to explain or illustrate the fact in issue. This means that statements, acts or conduct of a person, which are made or done in close proximity to the fact in issue and are part of the same transaction, may be admitted as evidence in court. Such statements or actions are admissible because they are believed to be a part of the res gestae and are considered to be part of the main event itself.

For example, if a person is accused of a murder, and a witness testifies that they heard the victim scream "he is killing me" just before the murder, this statement may be admissible as part of the doctrine of Res gestae. Similarly, if a victim is found with bruises and injuries, the statements made by the victim immediately after the incident may be admissible as part of the same transaction under the doctrine of Res gestae.

In summary, the doctrine of Res gestae is a legal principle that allows certain statements or actions to be admissible as evidence in court if they are closely related to the main event and form part of the same transaction. The doctrine of Res gestae is an important tool in determining the admissibility of evidence and is often used in criminal and civil cases.

 

Motive, preparation and conduct

In the context of the Indian Evidence Act, 1872, motive, preparation, and conduct are important concepts that are used in determining the relevancy and admissibility of evidence in court.

1.       Motive: Motive refers to the reason or purpose behind a particular action. Evidence of motive is often relevant and admissible in court because it helps to establish the accused's state of mind and their intention in committing the offense. Motive is not an essential element of an offense, but it is often used to infer guilt, especially in cases where there is a lack of direct evidence.

2.       Preparation: Preparation refers to the actions taken by an accused person before committing an offense. Evidence of preparation may be admissible in court if it is relevant to the issue at hand. For example, evidence of a person buying a weapon before committing a murder may be relevant and admissible in court to establish premeditation and intent.

3.       Conduct: Conduct refers to the behavior or actions of a person. Evidence of conduct may be relevant and admissible in court if it tends to prove or disprove a fact in issue. For example, evidence of a person's behavior after committing an offense may be admissible in court to establish guilt or innocence. Similarly, evidence of a person's behavior before or during an offense may also be admissible if it is relevant to the issue at hand.

In summary, motive, preparation, and conduct are important concepts in the Indian Evidence Act, 1872, that are used to determine the relevancy and admissibility of evidence in court. Evidence of motive, preparation, and conduct may be relevant and admissible if it tends to prove or disprove a fact in issue.

 

Conspiracy

Conspiracy is an agreement between two or more persons to commit an unlawful act or to accomplish a lawful act by unlawful means. It is a criminal offense under the Indian Penal Code, and evidence of conspiracy is often used in criminal trials to establish the guilt of the accused.

Under the Indian Evidence Act, 1872, evidence of conspiracy is covered under Section 10, which provides that facts showing a common intention or design between two or more persons to commit an offense are relevant when such facts are committed in pursuance of that intention or design. In other words, evidence of conspiracy is admissible in court if it tends to establish that the accused had a common intention or design to commit the offense and that the offense was committed in pursuance of that intention or design.

The prosecution must prove two elements to establish conspiracy:

1.       Agreement: There must be an agreement between two or more persons to commit an unlawful act or to accomplish a lawful act by unlawful means.

2.       Overt Act: There must be an overt act committed by one or more of the conspirators in furtherance of the conspiracy.

It is important to note that the overt act need not be a criminal offense in itself, but it must be connected to the conspiracy and must be done in furtherance of the conspiracy.

In summary, conspiracy is an agreement between two or more persons to commit an unlawful act or to accomplish a lawful act by unlawful means. Evidence of conspiracy is admissible in court under the Indian Evidence Act, 1872, if it tends to establish that the accused had a common intention or design to commit the offense and that the offense was committed in pursuance of that intention or design. The prosecution must prove the agreement and an overt act committed in furtherance of the conspiracy to establish conspiracy.

 

When Facts not otherwise relevant become relevant

Under the Indian Evidence Act, 1872, facts not otherwise relevant become relevant in certain circumstances when they tend to establish a relevant fact. These circumstances are listed in Sections 6 to 55 of the Act and are referred to as "facts which are relevant although they are not connected with the fact in issue."

Some examples of situations where facts not otherwise relevant become relevant are:

1.       Existence of course of conduct: When the conduct of any person or a series of transactions is relevant, any fact which establishes or disproves the existence of such conduct or transactions is also relevant, whether it occurred before or after the transaction in issue.

2.       Statements made under special circumstances: When a statement is made by a person in a position to know the facts, and the statement is against the person's interest, or made in circumstances that would ordinarily make the statement reliable, the statement becomes relevant.

3.       Motive, preparation, and conduct: Facts showing the motive or preparation for any fact in issue or relevant fact, and facts showing the conduct of any person regarding that fact, are relevant.

4.       Similar fact evidence: In some cases, evidence of similar facts or circumstances is relevant to prove the fact in issue. This is often used in cases of sexual offenses, where the prosecution may introduce evidence of the accused's prior sexual conduct to prove a pattern of behavior.

It is important to note that the admissibility of such evidence is subject to certain restrictions and safeguards, such as the requirement that the probative value of the evidence outweighs its prejudicial effect.

In summary, facts not otherwise relevant become relevant under the Indian Evidence Act, 1872, in certain circumstances where they tend to establish a relevant fact. These circumstances are listed in Sections 6 to 55 of the Act and cover a range of situations, including the existence of a course of conduct, statements made under special circumstances, motive, preparation, and conduct, and similar fact evidence.

 

 

Right and Custom

Under the Indian Evidence Act, 1872, both rights and customs are considered relevant facts. A "right" is defined as any legal entitlement, claim, or interest that a person has in a property or any other matter. On the other hand, a "custom" is a local or traditional practice that has been followed by a particular community or group of people over a long period of time.

Section 13 of the Indian Evidence Act provides that a right may be proved by any evidence that is admissible under the Act, including documentary evidence, oral evidence, and the testimony of witnesses. Similarly, Section 13 also allows the proof of customs, but only if such customs are:

1.       Ancient: The custom must be ancient and must have been in existence for a long time.

2.       Certain: The custom must be certain, meaning that it must be clearly defined and consistently followed.

3.       Reasonable: The custom must be reasonable and not against public policy or morals.

4.       Continuous: The custom must have been continuously observed and followed by a particular community or group of people.

5.       Obligatory: The custom must be obligatory and not voluntary.

In summary, under the Indian Evidence Act, 1872, both rights and customs are considered relevant facts. A right may be proved by any evidence that is admissible under the Act, while the proof of customs is subject to certain conditions, including that the custom is ancient, certain, reasonable, continuous, and obligatory.

 

Facts showing the state of mind etc

Under the Indian Evidence Act, 1872, facts showing the state of mind, feelings, or intention of a person are considered relevant facts. Such facts can be used to prove the state of mind, feelings, or intention of a person at a particular point in time.

For example, if a person is accused of murder, evidence of that person's prior statements or conduct showing that he or she had a motive to commit the crime, such as jealousy or anger towards the victim, may be admissible to prove his or her state of mind at the time of the crime.

Similarly, evidence of a person's prior statements or conduct showing a certain intention or plan, such as purchasing materials used in the commission of a crime, may also be admissible to prove his or her state of mind and intention at the time of the crime.

However, it is important to note that the admissibility of such evidence is subject to certain restrictions and safeguards. For example, evidence of a person's prior bad acts or character is generally not admissible to prove his or her propensity to commit the crime charged, unless the character or bad act is an essential element of the crime or is relevant to a specific defense.

In summary, under the Indian Evidence Act, 1872, facts showing the state of mind, feelings, or intention of a person are relevant facts and may be admissible to prove a person's mental state or intention at a particular point in time. However, the admissibility of such evidence is subject to certain restrictions and safeguards.

 

 

UNIT – 2

Admissions & Confessions

Under the Indian Evidence Act, 1872, both admissions and confessions are considered relevant facts that may be used as evidence in a criminal trial. However, there are important differences between the two.

An admission is a statement made by a party to a case, either orally or in writing, which suggests that they have some connection to the facts of the case. An admission may be express or implied. Express admissions are clear and unambiguous statements made by a party admitting to certain facts. Implied admissions are statements made by a party that do not explicitly admit to certain facts but may imply guilt or involvement.

Confession, on the other hand, is a statement made by a person accused of a crime, in which they admit to committing the offense. Confessions may be made to the police or to any other person, and they may be oral or in writing.

Both admissions and confessions are considered relevant evidence, and they can be used against the party who made them. However, there are certain rules that must be followed for their admissibility.

Admissions are admissible as evidence if they are relevant to the matter in issue and made by a person who is a party to the case. Confessions, on the other hand, must be voluntary to be admissible. A confession that has been obtained by coercion, inducement, or threat is not admissible as evidence.

Additionally, a confession must be made to a police officer of or above the rank of sub-inspector, and it must be recorded in writing by the police officer. The accused must also be informed of their right to remain silent and to be represented by a lawyer.

In summary, both admissions and confessions are considered relevant evidence under the Indian Evidence Act, 1872. Admissions may be express or implied, while confessions are statements made by an accused person admitting to the commission of the offense. However, confessions must be voluntary and made to a police officer of or above the rank of sub-inspector and recorded in writing.

 

General Principles concerning Admissions

Under the Indian Evidence Act, 1872, admissions are considered relevant evidence that may be used against a party to a case. Admissions may be express or implied, and they may be made by a party to the case or by someone authorized to speak on their behalf.

Here are some general principles concerning admissions:

1.       Admissions must be relevant: Admissions are admissible as evidence only if they are relevant to the matter in issue. An admission that does not relate to the case is not admissible.

2.       Admissions may be made orally or in writing: Admissions may be made orally or in writing, and they may be made before or after the commencement of legal proceedings.

3.       Admissions must be made by a party to the case or by someone authorized to speak on their behalf: Admissions may be made by a party to the case or by someone authorized to speak on their behalf. For example, an admission made by an agent or employee of a party may be admissible as evidence against that party.

4.       Admissions may be implied: Admissions may be implied from a party's conduct or silence. For example, if a party fails to deny an allegation made against them, their silence may be taken as an admission.

5.       Admissions are not conclusive proof: Admissions are not conclusive proof of the matter admitted. The court may consider other evidence to determine the truth of the matter.

6.       Admissions made under duress are not admissible: Admissions made under duress or coercion are not admissible as evidence. The admission must be made voluntarily and without any inducement or threat.

In summary, admissions are relevant evidence that may be used against a party to a case. They may be express or implied, and they may be made orally or in writing. However, they must be relevant to the matter in issue, and they must be made voluntarily and without duress.

 

Differences between "Admission" and "Confession"

Under the Indian Evidence Act, 1872, there are significant differences between admissions and confessions. While both are relevant evidence that may be used in criminal trials, they differ in terms of their meaning, nature, and admissibility.

Here are some of the main differences between admissions and confessions:

1.       Meaning: An admission is a statement made by a party to a case, which suggests that they have some connection to the facts of the case. A confession, on the other hand, is a statement made by an accused person admitting to the commission of the offense.

2.       Nature: Admissions may be express or implied, and they may be made before or after the commencement of legal proceedings. Confessions, on the other hand, are generally made after a person has been arrested or detained by the police.

3.       Voluntariness: Admissions may be made voluntarily or involuntarily, while a confession must be made voluntarily to be admissible. A confession obtained by coercion, inducement, or threat is not admissible as evidence.

4.       Recording: Confessions must be made to a police officer of or above the rank of sub-inspector, and they must be recorded in writing by the police officer. Admissions may be made to anyone and need not be recorded.

5.       Admissibility: Admissions are generally admissible as evidence if they are relevant to the matter in issue and made by a person who is a party to the case. Confessions, on the other hand, are subject to strict admissibility rules. For example, a confession must be made to a police officer of or above the rank of sub-inspector and must be recorded in writing.

In summary, the main differences between admissions and confessions are that confessions are made by an accused person admitting to the commission of the offense and must be made voluntarily to be admissible. Admissions, on the other hand, may be made by a party to a case and need not be voluntary or recorded.

 

Confessions obtained by inducement, threat or promise

Confessions obtained by inducement, threat or promise are not admissible in court under the Indian Evidence Act, 1872. This is because such confessions are considered to be involuntary and hence unreliable.

Section 24 of the Indian Evidence Act, 1872 provides that a confession made by an accused person is irrelevant in a criminal proceeding if it appears to the court that the confession was caused by any inducement, threat, or promise. This means that if a confession is obtained through any inducement, threat or promise, it cannot be used as evidence in court.

The term "inducement" refers to an offer of some benefit, such as money, property or some other advantage, made to the accused person in exchange for a confession. The term "threat" refers to a warning given to the accused person that some harm will befall them or their family members if they do not confess. The term "promise" refers to a guarantee given to the accused person that they will be given some benefit if they confess.

It is important to note that a confession obtained by the police through torture, coercion or other forms of physical or mental pressure is also considered involuntary and is therefore inadmissible in court.

In summary, confessions obtained by inducement, threat or promise are not admissible in court as evidence because they are considered involuntary and unreliable. The Indian Evidence Act, 1872 provides for strict rules regarding the admissibility of confessions in criminal proceedings to ensure that justice is served fairly and impartially.

 

Confessions made to police officer

Confessions made to a police officer are admissible in court as evidence under certain circumstances, as provided by the Indian Evidence Act, 1872.

Section 25 of the Act deals with confessions made to police officers. According to this section, confessions made to police officers are not admissible as evidence against the accused person unless they are made to a police officer of or above the rank of sub-inspector and are recorded in writing, either by the police officer or under his direction.

This section also provides that a confession made by an accused person while in police custody is considered to be involuntary and is hence inadmissible as evidence unless it is made in the immediate presence of a magistrate.

Furthermore, section 26 of the Act provides that if a person makes a confession to a police officer, and such confession is followed by the discovery of a fact which is considered to be relevant to the case, the confession may be used as evidence against the accused person. However, it must be proved that the fact discovered was a direct result of the confession.

It is important to note that confessions obtained by the police through torture, coercion or other forms of physical or mental pressure are considered involuntary and are therefore inadmissible in court, regardless of whether they are made to a police officer or not.

In summary, confessions made to police officers are admissible in court as evidence if they are made to a police officer of or above the rank of sub-inspector and are recorded in writing. However, confessions made under duress or through coercion are considered involuntary and are hence inadmissible.

 

 

Statement made in the custody of a police officer leading to the discovery of incriminating material

Under the Indian Evidence Act, 1872, a statement made in the custody of a police officer leading to the discovery of incriminating material is admissible in court as evidence, provided that it meets certain conditions.

Section 27 of the Act deals with the admissibility of such statements. According to this section, when any fact is discovered in consequence of information received from a person accused of any offense while he is in the custody of a police officer, the fact so discovered is admissible in evidence in any inquiry, trial or other proceedings against the accused person, subject to certain conditions.

The first condition is that the person making the statement must be in the custody of a police officer at the time of making the statement. The second condition is that the statement must relate to the fact discovered. The third condition is that the discovery of the fact must be made in consequence of the information received from the accused person.

If all these conditions are satisfied, the statement made in the custody of a police officer leading to the discovery of incriminating material is admissible as evidence against the accused person in court.

However, it is important to note that the statement must be voluntary and not made under duress or coercion. If the statement is obtained through torture, threats, inducement or other forms of coercion, it is considered involuntary and hence inadmissible in court.

In summary, a statement made in the custody of a police officer leading to the discovery of incriminating material is admissible as evidence in court if it meets the conditions specified in Section 27 of the Indian Evidence Act, 1872. However, the statement must be voluntary and not obtained through coercion or duress.

 

Admissibility of Confessions made by one accused person against co-accused. Dying Declarations and their evidentiary value

Confessions made by one accused person against a co-accused are generally not admissible in court as evidence under the Indian Evidence Act, 1872. This is because such a confession is considered hearsay and lacks the necessary reliability and credibility to be used as evidence.

However, there are certain exceptions to this rule. If the confession made by one accused person against a co-accused is a part of the same transaction or forms part of the same conspiracy, it may be admissible as evidence against the co-accused.

Dying declarations, on the other hand, are admissible in court as evidence under Section 32 of the Indian Evidence Act, 1872. A dying declaration is a statement made by a person who is aware that death is imminent, about the cause of his or her death or the circumstances leading to it. Dying declarations are considered to be reliable and credible evidence, as the declarant has no motive to lie or fabricate the statement.

To be admissible, a dying declaration must meet certain conditions. It must have been made by a person who is aware that death is imminent, and it must relate to the cause of death or the circumstances leading to it. The declarant must have been competent to make the statement, and the statement must have been made voluntarily and without any coercion or influence.

The evidentiary value of a dying declaration depends on the facts and circumstances of each case. The court will evaluate the statement based on its reliability and credibility, and will consider factors such as the mental and physical condition of the declarant at the time of making the statement, the nature of the statement, and the presence or absence of any motive to fabricate the statement.

In summary, confessions made by one accused person against a co-accused are generally not admissible in court as evidence, unless they are part of the same transaction or conspiracy. Dying declarations, on the other hand, are admissible as evidence, provided they meet the conditions specified in Section 32 of the Indian Evidence Act, and their evidentiary value depends on the facts and circumstances of each case.

 

Other Statements by persons who cannot be called as Witnesses

Under the Indian Evidence Act, there are certain statements made by persons who cannot be called as witnesses that may be admissible as evidence in court. These include:

1.       Statement by a person who is dead or cannot be found: If a person has made a statement and is dead or cannot be found, that statement may be admissible as evidence under Section 32 of the Indian Evidence Act. Such a statement is known as a "statement by a person who is dead or cannot be found". For example, if a witness in a murder case has made a statement to the police, but has since died, that statement may be admissible in court as evidence.

2.       Statement by a person who is mentally or physically incapable of giving evidence: If a person is mentally or physically incapable of giving evidence, any statement made by that person may be admissible as evidence under Section 32 of the Indian Evidence Act. Such a statement is known as a "statement by a person who is mentally or physically incapable of giving evidence". For example, if a victim of a crime is unable to give evidence due to a physical or mental disability, any statement made by the victim may be admissible as evidence in court.

3.       Statement by an accomplice: If a person is charged with a crime and there is evidence that suggests that the person committed the crime in concert with other persons, any statement made by an accomplice may be admissible as evidence under Section 10 of the Indian Evidence Act. However, the court must be satisfied that the statement is not only relevant but also trustworthy.

4.       Statement in public documents: Statements made in public documents, such as records of births, deaths, and marriages, may be admissible as evidence under Section 35 of the Indian Evidence Act.

It is important to note that while these statements may be admissible as evidence, their reliability and credibility may be subject to scrutiny by the court. The court will evaluate each statement based on the circumstances under which it was made and will determine whether it is admissible and what weight should be given to it.

 

Admissibility of evidence of witnesses in previous judicial proceedings in subsequent judicial proceedings.

Under the Indian Evidence Act, evidence given by a witness in a previous judicial proceeding may be admissible in a subsequent judicial proceeding, subject to certain conditions. This type of evidence is known as "previous statement of a witness".

Section 33 of the Indian Evidence Act provides that any statement made by a person who is called as a witness in a judicial proceeding may be used to contradict or corroborate his or her testimony in a subsequent proceeding, in the following circumstances:

1.       If the witness is dead or cannot be found or is incapable of giving evidence;

2.       If the witness is kept out of the way by the adverse party;

3.       If the witness cannot be examined without an amount of delay or expense that the court considers unreasonable;

4.       If the witness is an expert and the court thinks it necessary to examine him or her.

In addition, Section 145 of the Indian Evidence Act provides that a witness may be cross-examined about any previous statement made by him or her in writing or reduced to writing, if it is relevant to the matter in issue.

However, it is important to note that previous statements of a witness are not always admissible in subsequent judicial proceedings. The admissibility of such evidence depends on whether the statement was made under oath or affirmation in the previous proceeding, and whether the party against whom the statement is sought to be used had the opportunity and the right to cross-examine the witness in the previous proceeding. If the statement was not made under oath or affirmation, or if the party against whom the statement is sought to be used did not have the opportunity to cross-examine the witness in the previous proceeding, the statement may not be admissible in the subsequent proceeding.

 

UNIT - 3

Relevancy of Judgments

Under the Indian Evidence Act, judgments and orders passed by a court of competent jurisdiction are relevant and admissible in certain circumstances.

Section 40 of the Act provides that judgments, orders or decrees, other than those passed in a criminal trial, are relevant when they are:

1.       Relevant under the provisions of the law by which they were made;

2.       Relevant to explain or illustrate any transaction or relationship mentioned in the suit;

3.       Relevant to impeach or confirm the credit of any witness, or to corroborate or contradict the testimony of any witness;

4.       Relevant in any other manner.

In addition, Section 41 of the Act provides that a judgment, order or decree in a criminal trial is relevant when it is offered as evidence in any other legal proceeding for the purpose of proving any fact which it establishes.

However, it is important to note that judgments, orders or decrees are not conclusive evidence of the facts stated therein, and they are not binding on the court in any subsequent legal proceedings. They are only relevant to the extent that they provide evidence of the existence of the facts stated therein, and the court may consider such evidence along with other evidence presented in the case before arriving at a decision.

It is also important to note that judgments, orders or decrees of foreign courts are subject to additional requirements of authentication and certification before they can be admitted as evidence in Indian courts.

 

Opinion of witnesses

Under the Indian Evidence Act, the opinion of a witness is generally not admissible as evidence, except in certain specific situations.

Section 45 of the Act provides that when the court has to form an opinion on a point of foreign law, science, or art, or on a question of identity or handwriting, the opinions of persons who are experts in such matters may be admitted as evidence.

In addition, Section 47 of the Act provides that when the court has to form an opinion as to the value of any goods or the amount of any damage, the opinions of persons who are skilled in such matters may be admitted as evidence.

It is important to note that even in these situations, the opinions of witnesses must be based on their specialized knowledge or expertise, and they must be able to provide a rational explanation of the reasons for their opinion.

In general, the opinion of a witness about a matter of fact is not admissible as evidence, since the ultimate decision about the facts of the case is the responsibility of the court. Witnesses are expected to testify about what they saw, heard or otherwise experienced, rather than offering their opinions on the matter. However, witnesses may be asked to provide their opinions about matters such as the demeanor or credibility of another witness, as long as their opinions are based on specific observations and not on speculation or conjecture.

 

Expert's opinion

Under the Indian Evidence Act, the opinion of an expert witness may be admitted as evidence in certain situations. An expert witness is someone who has specialized knowledge, skill, or expertise in a particular area, and who can provide an opinion on a matter that is beyond the understanding of an ordinary person.

Section 45 of the Act provides that when the court has to form an opinion on a point of foreign law, science, or art, or on a question of identity or handwriting, the opinions of persons who are experts in such matters may be admitted as evidence.

In addition, Section 51 of the Act provides that when the court has to form an opinion as to the identity of any person or thing, the opinion of persons who have had personal experience of the relevant person or thing may be admitted as evidence.

When an expert witness provides an opinion, they are expected to explain the reasons for their opinion and the methodology they used to arrive at their conclusion. The court may evaluate the reliability and credibility of the expert's opinion, based on factors such as the expert's qualifications, the soundness of their methodology, and the consistency of their opinion with other evidence presented in the case.

It is important to note that an expert's opinion is not binding on the court and the court may arrive at a different conclusion based on the evidence presented. The court is responsible for weighing the expert's opinion along with other evidence presented and arriving at a decision based on the overall picture presented by the evidence.

 

Opinion on Relationship especially proof of marriage

Under the Indian Evidence Act, the opinion of a witness about a question of relationship or marriage is generally not admissible as evidence. However, there are some specific provisions that allow for the admission of such opinions under certain circumstances.

Section 50 of the Act provides that when the court has to form an opinion as to the relationship of one person to another, the opinions expressed by persons who are likely to have knowledge of the relationship may be admitted as evidence. For example, the opinions of family members, friends, or acquaintances who have personal knowledge of the relationship may be admitted as evidence.

Similarly, Section 50A of the Act provides that when the court has to form an opinion as to whether a marriage has been solemnized between two persons, the opinions of persons who are acquainted with the customs and traditions of the community to which the parties belong may be admitted as evidence.

However, it is important to note that the opinions of witnesses under these provisions must be based on their personal knowledge or experience and they must be able to provide a rational explanation for their opinion. The court may evaluate the credibility and reliability of the witness's opinion based on their relationship to the parties, their knowledge of the customs and traditions, and any other relevant factors.

In addition to the opinions of witnesses, other forms of evidence such as documentary evidence, photographs, and other physical evidence may also be used to prove the relationship or marriage between two persons.

 

Facts which need not be proved

Under the Indian Evidence Act, there are certain facts which are presumed to be true and do not need to be proved in court. These include:

1.       Presumption of correctness of judicial and official acts: The court presumes that all judicial and official acts have been performed in a lawful and proper manner. Therefore, the party challenging the correctness of such acts has the burden of proving otherwise.

2.       Presumption of validity of documents: Documents that are required by law to be registered or attested are presumed to be genuine and valid. However, this presumption may be rebutted by evidence to the contrary.

3.       Presumption of natural and probable consequences: When a party's actions are likely to result in a particular consequence, the court may presume that the consequence did in fact occur. For example, if a person shoots another person with a gun, the court may presume that the victim suffered injuries as a natural and probable consequence of the shooting.

4.       Presumption of ownership: The court may presume that a person who is in possession of property is the owner of that property, unless there is evidence to the contrary.

5.       Presumption of death: If a person has not been seen or heard from for a period of seven years, the court may presume that the person is dead.

It is important to note that these presumptions are rebuttable and can be challenged by evidence to the contrary.

 

Oral and Documentary Evidence

Under the Indian Evidence Act, evidence can be broadly classified into two categories: oral and documentary.

Oral evidence refers to the statements made by witnesses in court during their examination-in-chief, cross-examination, and re-examination. Oral evidence can include both direct and circumstantial evidence. Direct evidence is evidence that directly proves a fact in issue, while circumstantial evidence is evidence that indirectly proves a fact in issue by establishing other facts that support the inference of the fact in issue.

Documentary evidence, on the other hand, refers to any material object that contains information relevant to the case, such as a written instrument, a photograph, a map, a plan, or any other record. Documentary evidence can be either primary or secondary evidence. Primary evidence is the original document itself, while secondary evidence is a copy or reproduction of the original document.

Under the Indian Evidence Act, certain rules apply to the admissibility of both oral and documentary evidence. For example, oral evidence must be direct and based on the personal knowledge of the witness, while documentary evidence must be authenticated and proved to be genuine before it can be admitted in court. The admissibility of both types of evidence also depends on their relevance to the fact in issue and their compliance with other rules of evidence.

 

General Principles concerning oral evidence and documentary evidence

General principles concerning oral evidence:

1.       Personal knowledge: Oral evidence should be based on the personal knowledge of the witness. The witness must have seen, heard, or perceived the fact about which they are testifying.

2.       Oath or affirmation: Oral evidence must be given under oath or affirmation. The witness must swear or affirm to tell the truth.

3.       Examination-in-chief: The party calling the witness must first ask questions during the examination-in-chief. The witness is expected to provide a clear and complete account of the relevant facts.

4.       Cross-examination: The opposing party is entitled to cross-examine the witness. Cross-examination is an opportunity to challenge the credibility and reliability of the witness and their testimony.

5.       Re-examination: After cross-examination, the party calling the witness may ask additional questions during re-examination. Re-examination is usually limited to clarifying issues raised during cross-examination.

 

 

General principles concerning documentary evidence:

1.       Admissibility: Documentary evidence must be relevant to the fact in issue and must be admissible under the rules of evidence. The court will determine whether the evidence is admissible.

2.       Authentication: Documentary evidence must be authenticated to prove that it is genuine. Authentication can be done by the person who created the document or by someone who is familiar with the document.

3.       Original document rule: The best evidence is the original document itself. Secondary evidence, such as a copy or reproduction, may be admissible if the original document is lost, destroyed, or not available.

4.       Hearsay rule: Documentary evidence containing hearsay statements may be inadmissible. Hearsay is an out-of-court statement offered for the truth of its contents.

5.       Documentary evidence may be challenged by the opposing party through cross-examination and by producing contrary evidence. The party offering the document must prove that it is authentic and relevant to the case.

 

Primary and Secondary evidence

Primary evidence is the best evidence that can be produced in court to prove a fact. It refers to the original document or object that is directly related to the fact in issue. Primary evidence is admissible in court without any need for further proof. For example, the original contract, the original will, or the original deed.

Secondary evidence, on the other hand, is evidence that is not the best evidence. It is evidence that is produced to prove a fact when the primary evidence is not available. Secondary evidence is generally considered to be less reliable than primary evidence. Examples of secondary evidence include a photocopy of a document, a certified copy of a document, or an oral testimony of a witness who has seen the original document.

Under the Indian Evidence Act, secondary evidence is admissible only in certain circumstances. The rules regarding secondary evidence are as follows:

1.       When the original document is lost or destroyed: In this case, a certified copy of the original document may be produced as secondary evidence.

2.       When the original document is in the possession of the opposite party: In this case, a notice must be given to the opposite party to produce the original document. If the opposite party fails to produce the original document, secondary evidence may be produced.

3.       When the original document is not easily movable: In this case, a certified copy of the original document may be produced as secondary evidence.

4.       When the original document is a public document: In this case, a certified copy of the original document is admissible as secondary evidence.

5.       When the original document is a trade or business document: In this case, a copy of the original document is admissible as secondary evidence if the original document is not easily accessible or if it is in the possession of a third party who cannot be compelled to produce it.

 

 

Modes of proof of execution of documents

The execution of a document refers to the process of signing, attesting, and delivering a document. Under the Indian Evidence Act, the execution of a document can be proved by several modes of proof, which are as follows:

1.       Primary evidence: The best evidence of the execution of a document is the document itself. Therefore, the document can be proved by producing the original document in court.

2.       Oral evidence: The execution of a document can also be proved by the oral testimony of witnesses who were present at the time of the execution of the document. The witnesses can testify as to the identity of the signatories, the circumstances surrounding the execution, and the delivery of the document.

3.       Admission of execution: The execution of a document can also be proved by the admission of the party against whom the document is sought to be proved. If the party admits to having executed the document, then the execution is deemed to be proved.

4.       Comparison of handwriting: The execution of a document can also be proved by comparing the handwriting on the document with the admitted handwriting of the signatory. If the handwriting matches, then the execution is deemed to be proved.

5.       Expert opinion: The execution of a document can also be proved by expert opinion. An expert can examine the document and give an opinion as to whether it was executed by the alleged signatory or not.

6.       Presumption: The execution of a document can also be presumed in certain circumstances. For example, if a document has been in the possession of a party who would not have possessed it unless it had been executed by the alleged signatory, then the execution can be presumed.

 

Presumptions as to documents

The Indian Evidence Act, 1872 provides for several presumptions as to documents. These presumptions are as follows:

1.       Presumption as to genuineness of certified copies: A certified copy of a public document is presumed to be genuine and accurate, and the court may presume that the certified copy was made by a public officer in the course of his official duty.

2.       Presumption as to the documents produced as record of evidence: The court may presume that any document produced for inspection was written, signed, and executed by the person by whom it purports to have been written, signed, or executed.

3.       Presumption as to documents 30 years old: When a document is more than 30 years old and is produced from any custody which the court considers proper, the court may presume that the signature and every other part of the document which purports to be in the handwriting of any particular person, was in that person's handwriting.

4.       Presumption as to document in possession of stranger: If a document is found in the possession of a person who is not the lawful owner of the document, it may be presumed that the document was obtained by illegal means.

5.       Presumption as to certain documents: The court may presume the genuineness of certain documents such as power of attorney, wills, and bills of exchange, which are executed in a certain manner as provided under the Indian Evidence Act.

6.       Presumption as to documents in electronic form: If a document is maintained in electronic form and is produced from a computer, it is presumed to be authentic unless the contrary is proved.

These presumptions are rebuttable, which means that they can be challenged by the party against whom they are being used as evidence.

 

General Principles regarding Exclusion of Oral by Documentary Evidence

The Indian Evidence Act, 1872 provides certain general principles regarding the exclusion of oral by documentary evidence. These principles are as follows:

1.       When the terms of a contract, grant or other disposition of property have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant, or disposition except the document itself.

2.       When any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the matter except the document itself.

3.       When any public record, document or a copy of such record or document is required by law to be kept, and is kept in any office or public repository, evidence may be given of the existence of such record or document or of the fact that such office or repository has the custody of the document, as the case may be, and such evidence shall be sufficient to prove the existence of the record or document, unless the law requires that the original document be produced.

4.       If a party to a suit has given a notice to produce a document, and such document is not produced, secondary evidence of its contents may be given.

5.       Where a document is executed in several parts, each part is primary evidence of the document.

These general principles are subject to certain exceptions, such as cases where the document is lost, destroyed or in the possession of the adverse party. In such cases, secondary evidence of the contents of the document may be given. Additionally, the court may allow oral evidence to be given in cases where the document does not speak for itself or requires explanation.

 

Relevance of social media in the law of evidence

Social media has become an integral part of our daily lives, and its relevance in the law of evidence cannot be ignored. The Indian Evidence Act, 1872 does not explicitly mention social media as a form of evidence, but it can be admissible as electronic evidence under Section 65B of the Act.

Social media can be relevant in the following ways:

1.       Authentication of electronic evidence: Social media posts, messages, and other electronic communications can be authenticated through metadata, IP addresses, timestamps, and other technical details. These details can help in establishing the identity of the author and the time and place of creation of the electronic evidence.

2.       Character evidence: Social media posts and messages can be relevant in proving the character of a person, which can be admissible in certain cases. For example, a post or message containing a confession, admission, or threat can be used to prove the character of the person making the statement.

3.       Proof of facts: Social media can be used to prove facts that are relevant to a case. For example, a post or message containing a photograph, video, or audio recording can be used to prove the occurrence of an event or the authenticity of a document.

4.       Impeachment of witnesses: Social media can be used to impeach the credibility of a witness by showing inconsistencies or contradictions in their statements. For example, if a witness testifies to a certain fact in court but has previously made a contradictory statement on social media, the earlier statement can be used to impeach the credibility of the witness.

However, social media evidence may also raise issues of privacy, authenticity, and admissibility. It is important to establish the authenticity and integrity of social media evidence before it is presented in court, and to ensure that it is obtained legally and with the consent of the parties involved.

 

UNIT – 4

Rules relating to Burden of Proof

The rules relating to the burden of proof in the Indian Evidence Act, 1872 are as follows:

1.       Burden of proof: The burden of proof means the obligation to prove a fact. The general rule is that the burden of proof lies on the party who asserts the affirmative of the issue. The person who makes an assertion must prove it.

2.       Burden of proof as to any particular fact: The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by law that the burden of proof lies on some other person.

3.       Burden of proof as to the existence of a document: The burden of proof as to the existence of a document is on the person who asserts that it exists.

4.       Burden of proving fact to be proved to avoid a contract or obligation: The burden of proving any fact, the existence or non-existence of which is essential to the determination of any contract or liability, is on the person who seeks to avoid the contract or liability.

5.       Burden of proving death of a person: The burden of proving the death of a person is on the person who claims that the person is dead.

6.       Burden of proving a person to be alive: The burden of proving that a person is alive is on the person who asserts that the person is alive.

7.       Burden of proving a person guilty of a crime or offence: The burden of proving that a person has committed a crime or offence is on the prosecution.

These rules help to determine the party who has the obligation to prove a particular fact in a case. The burden of proof is an important aspect of the law of evidence, and it is necessary to establish the burden of proof correctly to ensure that justice is done in a case.

 

Presumption as to Dowry Death

As per Section 113B of the Indian Evidence Act, 1872, there is a presumption as to dowry death in cases where the question of dowry death arises. This presumption means that the court shall presume that the accused person has caused the dowry death if certain conditions are met. The conditions that need to be met are:

1.       The woman has died within seven years of marriage.

2.       The woman was subjected to cruelty or harassment by her husband or his relatives.

3.       Such cruelty or harassment was for or in connection with any demand for dowry.

If the above conditions are met, the court shall presume that the accused person has caused the dowry death. This means that the burden of proof is shifted to the accused to prove that he did not cause the dowry death.

This presumption has been added to the Indian Evidence Act, 1872 to protect women who are victims of dowry deaths. Dowry deaths are a serious problem in India, and this provision helps to ensure that the guilty are punished. However, it is important to note that the presumption can be rebutted by the accused person by providing evidence to the contrary.

 

Estoppels

Estoppel is a principle of law that prevents a person from denying or asserting something that is contrary to what they have previously stated or done. It is based on the concept that a person should not be allowed to change their position to the detriment of another person who has relied on their earlier statements or conduct.

In the law of evidence, estoppel is used to prevent a party from denying the truth of a statement they have previously made. There are two types of estoppel:

1.       Estoppel by record: This occurs when a judgment or a record in a previous case precludes a party from denying the truth of a statement made in that case.

2.       Estoppel by conduct: This occurs when a party's conduct or silence has led another party to believe something to be true, and the first party seeks to deny that truth later.

Estoppel can also be used in contract law to prevent a party from denying the existence of a contract or the terms of a contract that they have previously acknowledged or acted upon.

The principle of estoppel is based on the notion of fairness and justice. It is used to prevent a party from acting in an unjust or unfair manner, and to protect the interests of other parties who have relied on their earlier statements or conduct.

 

Kinds of estoppels

There are several kinds of estoppels recognized in the law:

1.       Estoppel by deed: This type of estoppel arises when a person executes a deed or other legal document containing certain representations or promises, and later tries to deny or contradict those representations or promises.

2.       Estoppel by record: This type of estoppel arises when a judicial decision or other official record has been made in a previous case, and a party is precluded from denying or contradicting the truth of the matter decided in that case.

3.       Estoppel by representation: This type of estoppel arises when a party makes a representation or statement of fact to another party, who then relies on that representation to their detriment. The party who made the representation may be estopped from denying the truth of the representation.

4.       Promissory estoppel: This type of estoppel arises when a promise has been made by one party to another, and the second party relies on that promise to their detriment. The first party may be estopped from denying the existence or terms of the promise.

5.       Equitable estoppel: This type of estoppel arises when a party's conduct or silence has led another party to rely on a certain state of affairs, and it would be unjust or unfair to allow the first party to deny that state of affairs.

6.       Estoppel by election: This type of estoppel arises when a party is given a choice between two or more courses of action, and they choose one course of action to the exclusion of others. They may be estopped from denying the validity or effectiveness of the course of action they have chosen.

 

Res Judicata, Waiver and Presumption

Res Judicata, Waiver, and Presumption are important concepts in the law of evidence.

Res Judicata: This legal principle, also known as the 'rule of conclusiveness of judgment', states that once a final judgment has been made on a matter by a competent court, the matter cannot be reopened again in a subsequent lawsuit between the same parties or their privies. In other words, the decision of a court on a matter which is finally adjudicated is binding on the parties, and no new evidence or arguments can be raised to challenge it. The doctrine of res judicata promotes judicial economy, finality, and certainty of legal decisions.

Waiver: Waiver is the intentional and voluntary relinquishment of a known right or privilege. In the context of evidence, waiver refers to the act of voluntarily giving up the right to object to the admissibility of evidence that would otherwise be inadmissible. For example, if a party fails to object to the admission of hearsay evidence during a trial, they may be deemed to have waived their objection and the evidence may be admitted.

Presumption: Presumption is a legal concept that allows a court to infer the existence of a fact from the existence of another fact. Presumptions can be either rebuttable or irrebuttable. A rebuttable presumption is one that can be disproved by evidence to the contrary, whereas an irrebuttable presumption is one that cannot be overcome by any evidence to the contrary. For example, under the Indian Evidence Act, there is a rebuttable presumption that a person is innocent until proven guilty. There is also an irrebuttable presumption that a child under seven years of age is incapable of committing a crime.

In conclusion, Res Judicata, Waiver, and Presumption are important legal principles in the law of evidence that play a crucial role in ensuring the fairness and efficiency of the judicial process.

 

UNIT – 5

Competency to testify

Competency to testify refers to the legal capacity or eligibility of a person to be a witness in a court of law. In India, every person is presumed to be competent to testify as a witness unless the court finds him/her to be incompetent or disqualified under the law.

According to the Indian Evidence Act, 1872, the following persons are disqualified from giving evidence:

1.       A person who is of unsound mind, and hence, incapable of understanding the questions put to him and giving rational answers.

2.       A person who is unable to communicate verbally, such as a deaf and mute person.

3.       A person who is a child and is not capable of understanding the questions put to him and giving rational answers.

4.       A person who is a party to the case, his/her spouse, or a person interested in the outcome of the case.

5.       A person who has been convicted of an offense involving dishonesty, unless the court grants a pardon or the conviction has been set aside.

6.       A person who is an advocate in the case, unless he is called to testify by the opposite party.

7.       A person who is a judge, magistrate, or any other officer connected with the administration of justice, except where he is a party to the case.

It is important to note that even if a witness is competent to testify, his/her evidence must still be relevant to the matter in issue and admissible under the Indian Evidence Act.

 

Privileged communications

In the law of evidence, privileged communications refer to certain types of communications that are protected from disclosure in a legal proceeding. These communications are deemed confidential and privileged, and are generally excluded from evidence. The idea behind privileged communications is to encourage open and honest communication between certain types of individuals, by ensuring that their communications remain confidential.

Some common examples of privileged communications include:

1.       Attorney-Client Privilege: This protects communications between an attorney and their client, and ensures that the client can speak candidly with their attorney without fear of their statements being used against them in court.

2.       Doctor-Patient Privilege: This protects communications between a doctor and their patient, and ensures that the patient can disclose sensitive medical information to their doctor without fear of it being used against them in court.

3.       Spousal Privilege: This protects communications between spouses, and ensures that they can speak candidly with each other without fear of their statements being used against them in court.

4.       Clergy-Penitent Privilege: This protects communications between a member of the clergy and a penitent, and ensures that the penitent can speak candidly with the clergy member without fear of their statements being used against them in court.

It is important to note that the rules regarding privileged communications can vary by jurisdiction, and not all types of communications are privileged in all circumstances. Additionally, there are often exceptions to these rules in certain situations, such as when there is a threat of harm to oneself or others.

 

Testimony of Accomplice

In criminal trials, the testimony of an accomplice is an important form of evidence. An accomplice is a person who has participated in the commission of a crime with the defendant. The testimony of an accomplice is typically viewed with suspicion because of the potential for the witness to have a motive to lie or to implicate others in order to reduce his or her own punishment.

Under the Indian Evidence Act, an accomplice is a competent witness, and his or her testimony can be used to support a conviction. However, the judge must warn the jury that the testimony of an accomplice is subject to special scrutiny, and that it should be considered with caution.

The testimony of an accomplice can be corroborated by other evidence in the case, such as physical evidence or the testimony of other witnesses. If the testimony of an accomplice is not corroborated, it may not be sufficient to support a conviction.

It is also important to note that in some cases, an accomplice may be offered immunity from prosecution in exchange for his or her testimony. In such cases, the accomplice's testimony may be viewed with even greater suspicion, and the jury may be instructed to consider the potential bias of the witness when evaluating his or her testimony.

 

Examination in Chief, Cross examination and Re-examination

Examination-in-chief, cross-examination, and re-examination are the three stages of witness examination during a trial.

Examination-in-chief: This is the first stage of witness examination, during which the lawyer who called the witness questions them about their knowledge of the events relevant to the case. The purpose of this stage is to elicit relevant evidence from the witness in support of the party's case.

Cross-examination: After the examination-in-chief, the opposing lawyer has the opportunity to cross-examine the witness. During cross-examination, the lawyer asks questions that challenge the witness's credibility or version of events. The purpose of this stage is to test the witness's evidence and to elicit any information that may be favorable to the opposing party.

Re-examination: If new matters arise during cross-examination, the lawyer who called the witness may re-examine the witness to clarify or rebut any new evidence or issues raised during cross-examination.

The purpose of these stages of witness examination is to ensure that the facts of the case are presented clearly and accurately to the court. Effective examination and cross-examination can be critical in determining the outcome of a case.

 

Leading questions

In legal proceedings, a leading question is a question that suggests the answer or puts words in the mouth of the person being questioned. Generally, leading questions are not allowed during the examination-in-chief, which is the initial questioning of a witness by the party who called them to testify. This is because the purpose of the examination-in-chief is to elicit evidence from the witness, not to suggest what the answer should be.

However, leading questions are allowed during cross-examination, which is the questioning of a witness by the opposing party after the examination-in-chief. This is because the purpose of cross-examination is to challenge the witness's testimony and to test their credibility.

In certain circumstances, leading questions may also be allowed during the re-examination, which is the questioning of a witness by the party who called them to testify after cross-examination. This is usually limited to clarifying or explaining matters that arose during cross-examination.

 

Lawful questions in cross examination

Cross-examination is a critical part of the trial process where the opposing party is given the opportunity to question the witness. The purpose of cross-examination is to test the credibility and accuracy of the witness's testimony and to challenge any evidence presented by the witness.

In general, the questions in cross-examination should be relevant to the issues in the case and should not be repetitive or confusing. The questions should be designed to elicit information that supports the cross-examiner's case or to undermine the witness's credibility or the evidence presented by the witness.

Some of the lawful questions in cross-examination are as follows:

1.       Questions to test the witness's accuracy or memory of events.

2.       Questions to test the witness's ability to perceive or observe events accurately.

3.       Questions to test the witness's ability to communicate effectively.

4.       Questions to test the witness's bias or motive in giving evidence.

5.       Questions to test the witness's credibility, such as prior inconsistent statements.

6.       Questions to test the witness's knowledge of the subject matter.

7.       Questions to test the witness's understanding of the legal principles involved.

It is important to note that the questions should not be argumentative, hostile, or harassing, and should not be designed to confuse or mislead the witness. Additionally, the cross-examiner should avoid asking questions that call for speculation, assumptions, or opinions that are not supported by the evidence.

 

Compulsion to answer questions put to witness

In general, witnesses are required to answer all questions put to them during examination-in-chief, cross-examination, and re-examination, subject to certain exceptions. However, witnesses may refuse to answer questions if doing so would incriminate themselves or expose them to a criminal charge or penalty.

The privilege against self-incrimination is a constitutional right and is recognized by law. If a witness claims this privilege, they may refuse to answer any questions that may tend to incriminate them. However, this privilege may not be claimed by a witness who is not the accused in the case.

Additionally, witnesses may also refuse to answer questions that are privileged, such as those that relate to communications between a lawyer and client, husband and wife, or doctor and patient, among others. In such cases, the witness may claim the privilege and refuse to answer the question.

 

Hostile witness

A hostile witness is a witness who appears in court to testify but refuses to give truthful or accurate answers to the questions asked. A witness can be declared hostile by the party calling the witness if it appears that the witness is deliberately giving false or misleading answers, or if the witness is hostile to that party's case.

When a witness is declared hostile, the party calling the witness can cross-examine the witness as if they were a witness for the opposing party. The party calling the witness can also ask leading questions, which are normally not allowed in direct examination, to try to elicit the truth.

In India, the Indian Evidence Act does not use the term "hostile witness" but allows the cross-examination of a witness who is adverse or hostile to the party who called them. Section 154 of the Act provides that leading questions can be asked in cross-examination to a witness who is hostile or adverse. The cross-examiner can ask leading questions to the witness to test their veracity or to elicit the truth from them.

 

Impeaching the credit of witness

Impeaching the credit of a witness means discrediting or weakening the testimony of a witness by bringing to light certain facts or evidence that casts doubt on the witness's credibility or reliability. This can be done in several ways:

1.       Contradiction: This is where evidence is introduced to contradict or disprove the testimony of the witness. For example, if a witness testifies that he saw the accused at a certain place at a certain time, evidence can be introduced to show that the accused was actually somewhere else at that time.

2.       Prior inconsistent statements: This is where a witness is confronted with a statement made by him in the past that is inconsistent with his present testimony. If the witness denies making the prior statement, it can be proved by other witnesses or by documentary evidence.

3.       Bias or interest: This is where evidence is introduced to show that the witness has a bias or interest in the outcome of the case, which may have influenced his testimony. For example, if the witness is a business partner of the accused, evidence can be introduced to show that the witness had a financial interest in the case.

4.       Character: This is where evidence is introduced to show that the witness has a bad character or a history of dishonesty, which may affect his credibility. However, this can only be done in certain circumstances, such as when the witness is the accused or a prosecution witness.

It is important to note that impeaching the credit of a witness does not necessarily mean that the witness's testimony is untrue. It simply means that there are reasons to doubt the witness's credibility or reliability. It is up to the trier of fact (judge or jury) to decide whether or not to believe the witness's testimony.

 

Refreshing memory

Refreshing memory is a process by which a witness is allowed to consult any writing or document in order to help them remember a fact or incident relevant to the case that they may have forgotten or are not able to recall fully. The Indian Evidence Act allows a witness to refer to a document for the purpose of refreshing their memory, even if the document is not produced in court as evidence. However, the witness must be able to identify the document as one that they had seen and used in the past, and the other party must be given an opportunity to inspect the document and cross-examine the witness on it.

The process of refreshing memory can be initiated by either the witness themselves or by the opposing counsel during cross-examination. The purpose of refreshing memory is to enable the witness to provide accurate and reliable testimony, and it can be a useful tool in eliciting evidence and ensuring a fair trial. However, it is important to ensure that the witness is not using the document to fabricate or manipulate their testimony, and that the opposing party is given an opportunity to challenge the authenticity and relevance of the document.

 

Questions of corroboration

In the law of evidence, corroboration refers to the evidence that is given to support or confirm the testimony of another witness or to support the existence of a particular fact. The requirement of corroboration arises in situations where the testimony of a single witness is insufficient to establish a fact or an issue.

Corroboration can be sought in various ways, such as by the testimony of other witnesses, circumstantial evidence, physical evidence, documentary evidence, or other relevant evidence. However, it is important to note that corroboration is not necessary in every case, and the requirement of corroboration may vary depending on the nature of the case and the evidence presented.

In criminal cases, the testimony of an accomplice or an interested witness may require corroboration in order to establish guilt beyond a reasonable doubt. In civil cases, corroboration may be required to prove certain types of claims, such as fraud or breach of contract.

It is up to the discretion of the judge or jury to determine the weight and credibility of the corroborating evidence, and whether it is sufficient to establish the existence of a fact or issue. However, it is important to note that the mere absence of corroboration does not necessarily mean that the testimony of a witness is unreliable or untrue. The credibility and reliability of a witness should be assessed based on a variety of factors, such as the witness's demeanor, consistency of testimony, and overall credibility.

 

Improper admission and rejection of evidence.

Improper admission and rejection of evidence refer to the situation where a court of law either wrongly accepts evidence that should not have been admitted or rejects evidence that should have been admitted. This can lead to a miscarriage of justice and is a ground for appeal.

Improper admission of evidence occurs when evidence that is inadmissible under the law is accepted by the court. For example, if a confession was obtained under duress or threat, it is not admissible as evidence. However, if the court accepts it as evidence, it would be an improper admission of evidence.

On the other hand, improper rejection of evidence occurs when evidence that is admissible under the law is rejected by the court. For example, if a witness is giving relevant evidence that can prove a point in a case, but the court rejects the evidence without any valid reason, it would be an improper rejection of evidence.

In both cases, the party affected can appeal the decision of the court to a higher court. The higher court will review the case and determine if the court below wrongly admitted or rejected evidence. If the higher court finds that the evidence was improperly admitted or rejected, it may reverse the decision of the lower court and order a retrial or a new hearing.

 ------------------------------ XXX-----------------------------------

DOWNLOAD LINK FOR SYLLABUS SHORT NOTES :

DOWNLOAD - law of Evidence syllabus short notes (revised on 14-08-2023)

:DOWNLOAD - LLB (3YDC) 2nd SEM - Ext. Imp Questions of All Subjects

----------------------------------------------------------------------

GOTO OTHER SUBJECTS SHORT NOTES 

|||||||| 1st SEMESTER ||||||||||

P-V: Environmental Law 

||||||||| 2nd SEMESTER |||||||||

P-I: Contract Law - 2 

P-II: Family Law - 2

P-III: Constitutional Law - 2

P-IV: Law of Crimes

P-V: Law of Evidence

|||||||||| 3rd SEMESTER ||||||||||||||||

P-I: Jurisprudence

P-II: Law of Property

P-III: Administrative Law

P-IV: Company Law

P-V: Labour Law - 1

|||||||||| 4th SEMESTER ||||||||||||||||

P-1: Labour law - 2

P-II: Public International Law

P-III: Interpretation of Statutes

P-IV: Land Laws

P-V: Intellectual Property Law

-----------------------------------------------------------------------

Note: Some of the short notes are intended for a basic understanding of the subject topics. For a more in-depth understanding, please refer to the textbooks.