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Harinath Janumpally
THE INDIAN EVIDENCE ACT, 1872
EVIDENCE IMPORTANT QUESTIONS
SHORT ANSWER QUESTIONS
1. DEFINITION OF EVIDENCE (SECTION 3)
2. HEARSAY EVIDENCE
3. TYPES OF PRESUMPTIONS RECOGNISED BY INDIAN EVIDENCE ACT
4. DOCTRINE OF RES GESTAE (SECTIONS 6 & 7)
5. TEST IDENTIFICATION PARADE, UNDER WHICH CIRCUMSTANCES IT'S
INVALID
6. AMBIGUITY, PATENT AND LATENT.
7. JUDICIAL NOTICE (SECTIONS 56 & 57)
8. ACCOMPLICE (SECTION 133)
LONG ANSWER QUESTIONS
1. WHEN FACTS NOT OTHERWISE RELEVANT BECOME RELEVANT?
ILLUSTRATE
(PLEA OF ALIBI SECTION 11)
2. ADMISSION, DISCUSS THE RELEVANCE OF ADMISSIONS (SECTION 17)
3. DEFINE & DISTINGUISH ADMISSION AND CONFESSION
ALL CONFESSIONS ARE ADMISSIONS BUT ALL ADMISSIONS ARE NOT
CONFESSIONS
4. DYING DECLARATION, CONDITIONS FOR THE RELEVANCY &
ADMISSIBILITY
5. EXPERT OPINION, KINDS & THEIR ADMISSIBILITY AS EVIDENCE
6. WHO IS AN EXPERT? WHEN ARE OPINIONS OF EXPERTS RELEVANT?
7. BURDEN OF PROOF, GENERAL RULES RELATING TO BURDEN OF PROOF
8. DEFINE ESTOPPEL? EXPLAIN THE DIFFERENT KINDS OF ESTOPPEL
9. EXPLAIN "EXAMINATION-IN-CHIEF". CROSS-EXAMINATION &
RE-EXAMINATION (SECTION 137)
(DISCUSS THE DIFFERENT STAGES IN THE EXAMINATION OF
WITNESSES)
CASE LAWS
1.Sec 115 Estoppel 2.Section 30, Confession against the co-accused 3.Section 105, Burden of Proof 4.Section 11, (Alibi)
- Section 114, Court may presume existence of certain facts
- Section 118, Who may testify 7.Section 93, Patent Ambiguity
- Confession to a police officer and leads to the discovery of new fact (Section 27).
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- Professional Communications (Section 126).
- Confession to police officer not to be proved (Section 25).
- Sec. 65, Cases in which secondary evidence relating to documents may be given. PAPER-V: LAW OF EVIDENCE – SYLLABUS Unit-I: The Indian Evidence Act, 1872 — Salient features of the Act – Meaning and kinds of Evidence – the impact of the Information Technology Act, 2000 on the Indian Evidence Act – Interpretation clause — May Presume, Shall presume and Conclusive proof – Fact, Fact in issue and Relevant facts —Distinction between Relevancy and Admissibility – Doctrine of Res gestae — Motive, preparation and conduct — Conspiracy —When Facts not otherwise relevant become relevant — Right and custom — Facts showing the state of mind etc. Unit-II: Admissions & Confessions: General Principles concerning Admissions — Differences between “Admission” and “Confession” — Confessions obtained by inducement, threat or promise – Confessions made to police officer – Statement made in the custody of a police officer leading to the discovery of incriminating material — Admissibility of Confessions made by one accused person against coaccused. Dying Declarations and their evidentiary value — Other Statements by persons who cannot be called as Witnesses —Admissibility of evidence of witnesses in previous judicial proceedings in subsequent judicial proceedings. Unit-III: Relevancy of Judgments — Opinion of witnesses — Expert’s opinion — Opinion on Relationship especially proof of marriage — Facts which need not be proved — Oral and Documentary Evidence – General Principles concerning oral evidence and documentary evidence — Primary and Secondary evidence — Modes of proof of execution of documents — Presumptions as to documents — General Principles regarding Exclusion of Oral by Documentary Evidence – Relevance of social media in the law of evidence Unit-IV: Rules relating to Burden of Proof – Presumption as to Dowry Death — Estoppels —Kinds of estoppels — Res Judicata, Waiver and Presumption. Unit-V: Competency to testify — Privileged communications – Testimony of Accomplice — Examination in Chief, Cross-examination and Re-examination — Leading questions — Lawful questions in cross-examination —Compulsion to answer questions put to witness — Hostile witness — Impeaching the credit of witness — Refreshing memory — Questions Suggested Readings:
- Batuk Lal:The Law of Evidence, Central Law Agency, Allahabad.
- M. Monir:Principles and Digest of the Law of Evidence, Universal Book Agency, Allahabad.
- Vepa P. Saradhi:Law of Evidence Eastern Book Co., Lucknow.
Harinath Janumpally According to Blackstone, evidence “signifies that which demonstrates, makes clear or ascertains the truth of the facts or points in issue either in one side or the other”. Taylor describes the evidence as “all means which tend to prove or disprove any matter, fact, the truth of which is submitted to judicial investigation. The word ‘evidence’ in the Act signifies only the instruments by means of which relevant facts are brought before the court. The instruments adopted for this purpose are witnesses and documents. Under this definition, the evidence is divided into two clauses (1) oral and (2) documentary. Section 3 of the Indian Evidence Act defines “evidence” means and includes :
- All statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; such statements are called oral evidence.
- All documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.” “Evidence” means that which makes evident. The definition of evidence covers the evidence of witnesses and documentary evidence. Items which are not evidence: The following are not evidence
- An affidavit is not evidence.
- A confession of an accused.
- The result of a local investigation or local inspection, Classification of evidence: Evidence may be classified under the following heads:
- Oral and Documentary evidence.
- Direct and circumstantial evidence.
- Primary and secondary evidence.
- Real and personal evidence.
- Original and un-original evidence.
- Best and Inferior Evidence.
- Substantive and non-substantive.
- Positive and negative evidence.
- Prosecution evidence and defence evidence.
- Presumptive or prima facie evidence.
- Conclusive evidence.
- Corroborative evidence.
- Hearsay or direct evidence.
- HEARSAY EVIDENCE. Answer: Hearsay is what one hears (but does not know to be true). It means gossip.
Harinath Janumpally Hearsay evidence is the evidence learnt by witnesses not through the medium of their own senses but through the medium of the third person. It signifies the evidence heard and said. It is called a second hand or unoriginal evidence. Peter Murphy states that “ Hearsay evidence is given when a witness recounts a statement made (orally, in a document or otherwise,) by another person and where the proponent of the evidence asserts that what the person, who made the statement, said was true” Hearsay is that of which one has heard from another without himself having any direct knowledge thereof. Section 60 of the Indian Evidence Act prohibits hearsay evidence from being offered in judicial proceedings subject to the exceptions provided in the Evidence Act. Why hearsay evidence is excluded or discarded:
- The irresponsibility of the original declarant, whose statements were made neither on oath nor subject to cross-examination,
- The depreciation of truth in the process of repetition,
- The opportunities for fraud its admissions would open,
- The tendency of such evidence to protract legal enquiries,
- Encourages the substitution of weaker evidence in place of stronger proof,
- The person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility Exceptions to the hearsay rule: A number of exceptions have been recognized to facilitate for the admission of hearsay evidence.
- Res gestae,
- Admissions and Confessions,
- Statements by persons who cannot be called as witnesses (Sec 32),
- Evidence given in the former proceedings (Sec 33),
- Entries in books of account including those maintained in an electronic form are relevant (Sec 34),
- Relevancy of entry in public record or an electronic record made in the
Harinath Janumpally marriage. Section 113A of the Indian Evidence Act, 1872 deals with presumption as to abetment of suicide by a married woman. Section 113B of the Indian Evidence Act, 1872 deals with presumption as to dowry death. Section 114 deals with presumptions as to the existence of certain facts. Types of presumption (Classification): Presumptions are of three kinds:
- Presumption of fact (Natural Presumptions or May Presume): It is an inference which is drawn from the observation of the human mind. Sections 86, 87, 88, 90 and 114 of the Indian Evidence Act, 1872 deal with the presumption of fact. These presumptions are generally rebuttable. They may be correct or they may not be correct. The court may presume that a document or an account book or a telegraphic message etc., are correct; but, this presumption may be disproved also. e.g., (i) a watch of Ram is stolen and soon after it is recovered from the possession of Shyam. There shall be a natural inference (Presumption) that Shyam either stolen the watch himself or received it from some thief knowing it to be stolen, (ii) From the fact that a letter has been posted, the natural inference (presumption) would be that it reached the addressee,
- Presumption of law (artificial presumptions): Presumptions of law are divided into two categories. (A). Rebuttable (shall presume) presumption: Section 4 of the Evidence Act defines ‘shall presume’ “Wherever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved”. This kind of presumption arises when presumptions of law are certain legal rules, defining the amount of evidence requisite to support a particular allegation, which facts being proved, may be either explained away or rebutted by evidence to the contrary, but are conclusive in absence of such evidence. Legal presumptions of this kind are definitions of the quantity of evidence sufficient to make a prima facie case: in other words of the circumstances under which the burden of proof lies on the opposite party. Sections 107, 108, 112 are examples of this presumption. e.g., (i) Thus a man is presumed innocent until he is proved guilty; (ii) a child born in a legal wedlock shall be presumed to be legitimate and one who questions his legitimacy must disprove it; (iii) if a child is born during divorce he must be presumed illegitimate unless the contrary is proved. (B). Irrebuttable presumption: The conclusive or irrebuttable presumptions of law are those legal rules which are not overcome by any evidence that the fact is otherwise. A well-known instance of an irrebuttable presumption of law can be found in Section 82 of the Indian Penal Code, wherein it is laid down that “nothing is an offence which is done by a child under seven years of age”. In this type of presumption, there will not be any evidence to rebut them. These presumptions are the rules deciding the quality of evidence required by law. Irrebuttable presumptions are deemed to be correct, because of greater certainty. Irrebuttable presumptions are normally the laws of the land, like ignorance of the law is no excuse. e.g., where a man having no title obtains possession of land under lease by a
Harinath Janumpally man in possession who assumes him to give a title as a tenant he cannot deny his landlord’s title. Thus it is clear that this kind of presumption of law is conclusive.
- Presumption of Fact and Law (mixed presumptions): Mixed presumptions of law and fact are chiefly confined to the English law of real property, and it is no place in India as Evidence Act, has made provisions for the presumptions of fact (may presumption) and the presumptions of law (shall presume). There are certain sections in which it is said that a certain fact is conclusive proof of certain another fact. Conclusive proof: Whenever it is mentioned that a fact is a “conclusive proof” of another fact, the court has no discretion at all. It cannot call upon a party to prove that fact nor can it allow the opposite party to adduce evidence to disprove the fact. Section 41 of the Evidence Act provides inter alia that a final judgement, order or decree of a competent court in exercise of matrimonial jurisdiction is conclusive proof of that legal character. For example, suppose A files a suit in a court of law for a declaration that B is his legally married wife. The court gives a decree in favour of A and declares that B is his wife. After a few years in the lifetime of A, B files a suit against D for the property of one C, alleging that she is a widow of C., In this case, there will be an issue whether B is the wife of C. D files the copy of the judgement of the previous case (A versus B). This judgement will prove that B is legally married wife of A. Now that B is legally married wife of A is a conclusive proof of the fact that she is not the wife of C. Therefore after the judgment mentioned above has been filed, the court cannot allow B to adduce evidence to prove that she is wife of C and not of A. “Conclusive proof” in Section 4 of the Evidence Act – when one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
- DOCTRINE OF RES GESTAE (SECTIONS 6 & 7). Answer: The doctrine of res gestae has been borrowed from English Law and is incorporated in Sections 6 and 7 of the Evidence Act, states that: Section 6: “Relevancy of facts part of same transaction – Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations: (a). ‘A’ is accused of the murder of ‘B’ by beating him. Whatever was said or done by ‘A’ or ‘B’ or the bystanders at the beating or so shortly before or after it as to form part of the transaction is a relevant fact. (b). ‘A’ sues ‘B’ for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained are relevant facts, though they do not contain the libel itself. (c). The question is, whether certain goods ordered from ‘B’ were delivered to ‘A’. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact. Same transaction: “Same Transaction” means a transaction in a group of facts, connected together to be referred to by a single legal name as a crime, a contract, a
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- Where the eye-witness cannot give the name of the offender but claims that he can identify him, it is necessary to hold Test Identification Parade. The procedure of Identification Parade:
- The Test Identification parade has to be conducted by the Magistrate or an authorised person of Court,
- The Magistrate has to make sure that at least 10 persons of similar appearance or build or height are paraded with each suspect separately.
- The Magistrate has to examine the marks likely to affect Identification of the suspect.
- Identification should be held as early as possible.
- It is not safe to place reliance on the identification of an accused for the first time in Court by a witness after an inordinate delay.
- If the accused is known to the witness, the Identification Parade is not necessary. Circumstances of invalidity of Test Identification parade: In the following circumstances, the evidence of a witness in the Test Identification becomes invalid.
- Most of the crimes are committed in darkness and at secluded places. In such cases, the light becomes a matter of crucial importance to see the accused at the time of the offence.
- The eye-sight of the identifier has to be taken into consideration and at the time of offence whether he is using his spectacles (if needed) or also important.
- If the identifier is in stirred minds, for excitement, fear or terror,
- If the witness was in drunken position at the time of the offence.
- If the witness saw only the backside of the accused.
- If the suspect was already shown to the witness before the Identification Parade.
- If the precautionary steps such as bringing the accused by covering faces etc. have not been taken.
- If the Identification Parade is conducted on all accused in a single identification parade.
- Where there are more offenders and a single eye-witness who cannot identify the features of all the offenders with a short span of time.
- If the accused persons muffled their faces in order to screen their identity by appearance.
- If the photograph of the accused was shown to the identifying witness before the parade.
- If abnormal delay in holding identification parade has taken place.
- If the identification parade is not conducted by magistrate or an authorised person of court.
- When minimum 10 persons of similar appearance or build or height are not paraded along with the accused.
- AMBIGUITY. Answer: Meaning of Ambiguity: Doubtfulness, duplicity, indistinctness, or uncertainty of the meaning of an expression used in a written contract. Ambiguities are of two kinds, they are
- Patent Ambiguity: Patent means a doubt apparent on the face of an instrument or
Harinath Janumpally document. A patent defect is observable by the senses. A patent ambiguity (ambiguous patents) is one which appears on the face of the instrument. (i). Section 93, Exclusion of evidence to explain or amend ambiguous document Section 93 of the Evidence Act states that “When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects. This is also known as ambiguous patents. Patent ambiguity can be understood through Section 93 of the 1872 Act. If it appears to be ambiguous on the face of the document itself, then, patent ambiguity may be due to a wrong description or due to the incompleteness of the document. A patent ambiguity shows the defect, apparently, on the face of the document. No oral evidence can be given to removing such patent ambiguities. The document will generally be ambiguous and have no definite meaning. Sometimes, the patent ambiguity arises because of the ungrammatical usage of the language. Hence, we can say that it is the language of the document which will decide the question of the ambiguity of it. E.g. (i) ‘A’ agrees, in writing, to sell a horse to B for Rs. 1000 or Rs,
- Evidence cannot be given to show which price was to be given. (ii) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled. (ii). Sec 94, Exclusion of Evidence against application of document to existing facts, Section 94 of the Evidence Act states that “When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts”. E.g., A sells to B, by deed “my estate at Rampur containing 100 bighas”. A has an estate at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of different size”. Section 94 of the Evidence Act is a supplement to Section 93 of the Act. When there is neither patent nor latent ambiguity evidence cannot be given to contradict this.
- Latent Ambiguity: This is also known as ambiguous latent. The latent ambiguity is in a hidden form. The external circumstances do not create any difficulty or doubt as to the application of the subject matter. However, the inherent meaning creates difficulties in the application when the language used is clear, but, the meaning in application creates problems. The document is said to be latent ambiguity. Latent ambiguity is based on the principle of false demonstration on necet (false description). Therefore, a document with latent ambiguity can be rectified by supplying the necessary facts. It may be done by further evidence or by knowing the intention of the parties to a contract. (A). Section 95, Evidence as to document unmeaning in reference to existing facts– Section 95 of the Evidence Act states that “When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense”. Illustration: A sells to B, by deed, “my house in Calcutta”. A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house at Howrah.
Harinath Janumpally (6). Seals. (7). Accession etc. of public officers. (8). Recognition of foreign States and their National Flags. (9). Division of time, world geographical divisions etc. (10). Indian Territories. (11). Hostilities between India and other States. (12). Members and officers of Court. (13). Rules of Road and Matters of Public History.
- ACCOMPLICE (SECTION 133). Answer: An accomplice is not defined in the Indian Evidence, Act, 1872. Accomplice means a guilty associate or a partner in crime. The accomplice is called “particeps criminis” (Participant in a crime). The Participation may be before or after the crime. If the accomplice participated before the crime, he is a participant in the preparation. After the crime, means harbouring or concealing the crime. A reference is made in this regard under Section 133. Categories of accomplices: An accomplice is of three kinds: (A). Principals of the first and second degree: A principal of the first degree is one who actually commits the crime. A principal of the second degree is a person who is present and assists in the perpetration of the crime. These persons are undoubtedly under all the circumstances accomplices. (B). Accessories before the act: An accessory before the fact is one who counsels, incites, connives at, encourages or procures the commission of the crime. Of these persons, those who counsel, incite, encourage or procure the commission of the crime are certainly accomplices. The persons who do nothing but only connive at are not accomplices. All accessories before the fact, if they participate in the preparation for the crime are accomplice but if the participation is limited to the knowledge that a crime is to be committed they are not accomplices. Persons to be accomplices must participate in the commission of the same crime as the accused persons in a trial are charged. (C). Accessories after the crime: Every person is an accessory after the fact to a felony, who knowing that a felony has been committed by another person receives, comforts or assists him in order to escape from punishment; or rescues him from arrest, or having him in custody for the felony, intentionally and voluntarily allows him to escape, or opposes his arrest. Three conditions must unite to render one an accessory after the fact: 1. the felony must be complete, 2. the accessory must have the knowledge that the felony has been committed; 3. the accessory must harbour or assist the principal felon. Admissibility of accomplice evidence: It is to be noted that every person who is a competent witness is not a reliable witness and the test of reliability is to be satisfied through corroboration. Reasonable suspicion of mens rea is the test of accomplice. Section 133 Accomplice: An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. According to the illustration to Section 114, an accomplice is unworthy of credit unless he is corroborated in material particulars. However, it is to be noted that the conviction based on the uncorroborated
Harinath Janumpally evidence of an accomplice is not illegal under Section 133, the courts, generally should not convict a person on the basis of his uncorroborated evidence. The evidence of an accomplice is held to be untrustworthy for three reasons: (1) Accomplice is likely to speak false in order to shift the guilt. (2) Accomplice, being a guilty associate is likely to disregard oath, (3) The hope of pardon would lead him to favour the prosecution. LONG ANSWER QUESTIONS
- WHEN FACTS NOT OTHERWISE RELEVANT BECOME RELEVANT? ILLUSTRATE (PLEA OF ALIBI SECTION 11). Answer: General theory of relevancy: The object of any trial is to establish or disprove a particular claim or charge by evidence. Hence, any fact which either proves or tends to disprove the claim of charge is relevant. The general theory of relevancy is that any fact which either disproves or tends to disprove the particular claim or charge is relevant. Section 11 of the Evidence Act attempts to state in popular language the general theory of relevancy thus: “When facts not otherwise relevant become relevant” – (1) If they are inconsistent with any fact in issue or relevant fact; (2) If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. Illustrations: (a). The question is, whether ‘A’ committed a crime at Calcutta on a certain day. The fact that, on that day, ‘A’ was at Lahore is relevant. The fact that, near the time when the crime was committed, ‘A’ was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant. (b). the question is, whether ‘A’ committed a crime. The circumstances are such that the crime must have been committed either by ‘A’, ‘B’, ‘C’ or ‘D’. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either ‘B’, ‘C’ or ‘D’ is relevant. Alibi: Alibi is a Latin term which means elsewhere, Alibi is a claim or piece of evidence that one was elsewhere when an alleged act took place; an excuse. The term alibi is used to express that defence in a criminal prosecution, where the party accused, in order to prove that he could not have committed the crime charged against him, offers evidence that he was in a different place at the time. Strict proof is required to prove the plea of alibi and the burden was on the accused under Section 103. Defence of alibi, if true, is to be raised at the earliest moment. The accused persons taking the plea of alibi have to make out the case of their alibi and to satisfy the Magistrate that they were not present at the place of occurrence on the day and time of the incident. The plea of alibi must be proved with absolute certainty, so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. Plea of alibi taken by accused, it is he who has to prove it; State of Haryana v Sher Singh. Some more alibis:
Harinath Janumpally Classification of admissions Admissions can be broadly classified into two categories. They are; a. Judicial or Formal admissions Judicial admissions or formal admissions are made by a party during the proceedings of a case. Admission in a pleading in the Court is a judicial admission and it can be made the foundation of the rights of the parties. Judicial admissions are fully binding on the party that makes them. They constitute a waiver of proof. b. Extra-Judicial or Informal admissions Extra-judicial admission is an informal statement made by the parties outside the court. These admissions do not appear on the record of the case. They are usually made in the course of casual conversation. Extra-judicial admissions are binding on the party against whom they are set. However, they are binding only partially, and not fully, except in cases where they operate as or have the effect of estoppels, in which case again they are fully binding and may constitute the foundation of the rights of the parties.
- DEFINE CONFESSION. DISTINGUISH ADMISSION AND CONFESSION. Answer: Definition of Confession: Confession is admitting or acknowledging a fault, wrongdoing, and crime. The word ‘confession’ appears for the first time in Section 24 of the Evidence Act, but it has not been defined in the Act. As defined in Tomlins Law Dictionary, confession is a direct admission or acknowledgement of his guilty by a person who has committed a crime. According to Filz James Stephen, “A confession is an admission made at any time by a person charged with the crime stating or suggesting an inference that he committed the crime.” According to this definition a statement of an accused will amount to a confession if it fulfils the following two conditions: i). If he states that he committed the crime he is charged with, or ii). If he makes a statement by which he does not clearly admit the guilt, yet from the statement, some inference may be drawn that he might have committed the crime. Essentials of Confessions:
- Confessions must be voluntary.
- Confessions are declarations against the interest of the person making them,
- Confession must be clear, definite and unequivocal, whether it is a judicial or extra-judicial confession.
- Confession must either admit in terms the offence or at any rate substantially all the acts which constitute the offence.
- The reason or motive for confession and the person in whom confidence is reposed by the accused are essential for the truthfulness of the confession.
- Confession must be related to the guilt of criminal nature.
- Confessions should contain the admissions of incriminating facts relevant to the offence such as motive, preparation, absence of provocation, concealment of weapon and subsequent conduct which throw light upon the gravity of the offence and the intention of knowledge of the accused.
- Confession may be written or oral. The distinction between ‘admission’ and ‘confession’:
- The statement is genus, admission is species and confession is sub-species.
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- The word ‘admission’ is defined by Section 17 of the Evidence Act but the word ‘confession’ has not been defined in the Evidence Act.
- Admission is a general term which suggests and inference as to any fact in issue or any relevant fact while a confession is a statement made by an accused person admitting that he has committed an offence or all the facts which constitute the offence.
- Admissions though generally are used in civil proceedings yet they may also be used in criminal proceedings, whereas confessions are used only in criminal proceedings to establish the commission of an offence by him.
- The term ‘admission’ refers to every statement whether it runs in favour of or against the party making it, but, a confession is the admission of the guilt in reference to crime and therefore necessarily runs against the interests of the accused.
- An admission may be used on behalf of the person making it whereas a confession always goes against the party making it except under Section 30.
- An admission need not be voluntary to be relevant, though it may affect its weight; but a confession to be relevant, must be voluntary.
- The admissions made by an agent or even a stranger are relevant, but a confession to be relevant must be made by the accused himself.
- An admission by one of several defendants in a suit is no evidence against another defendant whereas the confessions of one of two or more against another defendant whereas the confessions of one of two or more accused jointly tried for the same offence can be taken into consideration against the co-accused (Section 30).
- Admission is not a conclusive proof of the matters admitted though it may operate as on estoppels. However, a confession is deliberately and voluntarily made be accepted as evidence in itself of the matters confessed though as a rule of prudence the courts may require corroborative evidence.
- An admission made to any person whether he is a policeman or a person in authority or whether it was the result of an inducement or promise is relevant, but, in case of confession, it is not relevant unless such confession is free and voluntary.
- As per Section 23 of the Evidence Act, an admission made upon an understanding that evidence of it would not be given is irrelevant but under Section 29 of the Evidence Act, a confession made under a promise of secrecy is relevant.
- Statements made by certain persons, who are not parties to the case are regarded as admissions against the parties under Sections 18-20 of the Evidence Act, but a confession always proceeds from a person who has committed an offence or is accused of an offence.
- All admissions are not confessions but all confessions are admissions.
- The acid test which distinguishes a confession from admission is that where a conviction can be based on the statement alone, it is a confession and where some supplementary evidence is needed to authorise a conviction, then it is admission. And another test is that if the prosecution relies on the statement as being true it is confession and if the statement is relied on because it is false it is admission. Section 27 Confession given to a police officer.
Harinath Janumpally fulfilled.
- The declarant must have died. If the declarant does not die, the statement will be dealt under Section 157.
- The dying declaration must be a statement, written or oral or by gestures.
- The declaration must be regarding Injuries are the cause of his death.
- Circumstances of the transaction which resulted in his death.
- The cause of the death of the declarant must be in question.
- The declaration must be complete.
- The dying declaration must be made as early as possible.
- There should not be any chance for tutoring.
- Declaration must be taken as a whole.
- Declaration should be precise.
- The declarant must be competent.
- The declarant must be in a fit condition.
- The statement must be recorded by a disinterested person e.g. Magistrate.
- The declarant should give the statement voluntarily.
- When the dying declaration is in instalments, it should be consistent; there should not be any contradictions (Mukesh & Others v NCR Delhi, Nirbhaya case)
- Before recording the statement fitness certificate by a doctor is required.
- Declarant's mental health, at the time of recording dying declaration, due to the medicines administered to him also important. Pakala Narayana Swami v. King Emperor (1939). Reasons or justification for the admissibility and validity of dying declaration: The admissibility of dying declaration is based on the maxim “Nemo moriturus praesumitur mentire” which means “A man will not meet his Maker with a lie in his mouth. The presumption is that when a person is conscious of his impending death, when he is confident of his fast dissolution or when he has resigned from the hope of survival, then in such cases he would not lie because “A man will not meet his Maker with a lie in his mouth”. The dead person cannot come and be a witness. The reasons for admitting the evidence of dying declaration are: (a) That it is the best evidence available, (b) The occasion is solemn, and the dying man has to face his Maker without any motive for telling a lie. (c) He is the best eye witness. Multiple Dying Declarations – J Ramulu v State of Andhra Pradesh, AIR 2008 SC 1505 at pp. 1509-1510.
- EXPERT OPINION, KINDS & THEIR ADMISSIBILITY AS EVIDENCE. Answer: Opinions of third persons, when relevant (Section 45 – 51): As a general rule, the Courts always see towards the direct evidence and tend to accept the evidence of a witness, who saw or hear the fact. The Courts weigh only on direct and circumstantial evidence. They do not consider the opinions of third parties when they are irrelevant. The Court is not an expert in every field. The rule of exclusion of opinion evidence is relaxed and expert opinion is admitted to enable a court to come to a proper
Harinath Janumpally decision. Again, it is the duty of the Court to weigh the strength of the opinion. Sections 45 to 51 of the Evidence Act lay down the general principles and procedures about ‘opinion of third persons when relevant’. The expert’s opinion, Section 45: “When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such a foreign law; science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts. Illustrations: (A) The question is, whether the death of A was caused by poison. The opinion of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant. (B) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question of whether the two documents were written by the same person or by different persons, are relevant”. Who is an expert: An ‘expert’ is a person specially skilled or practiced on any subject. In a general sense, an expert is a person of peculiar knowledge or skill; one who has peculiar knowledge or skill as to some particular subject, such as any art or science, or particular trade, or profession, or any special branch of learning; and is professionally or peculiarly acquainted with its practices and usages. An ‘expert’ is a person who made a special study of the subject or acquired special experience therein. An expert is a person who has special knowledge or skill in the particular calling to which the enquiry relates. The person possessing superior knowledge and practical experience in a particular field. Every expert need not have academic qualifications. Kinds of experts: Some of the experts who are authorised to give opinion are: doctor, chemical examiner, public analyst, motor vehicle inspector, coal expert, geological expert, surveyor, valuer, crop valuation expert, an agricultural officer, a goldsmith, auditor etc., Examples: A. A goldsmith possessing technical work of gold, and having more years of experience is an expert. He can tell how much percentage of gold and copper are in an ornament. No academic qualification is required for it. B. A photographer having longstanding experience in photography and have a reputation as a good photographer in a certain locality is an expert in the field of photography. C. A doctor, having qualifications, and experience is an expert. When a person died with the poison, the doctor can give a report after post-mortem. He can estimate how much quantity of poison was and what type of poison consumed by the deceased, and when consumed by the deceased, etc., such type of analysis can be done only by an expert. Admissibility of Expert Evidence: InRamesh Chandra Agrawal v. Regency Hospitals Ltd., it has been held that:
- The subject-matter of the case requires the opinion of the expert,
- The expert must be within a recognised field of experience.
