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EvidenceAct
ResGestae
Sec.6.RelevancyoffactsformingpartofsametransactionFactswhich,thoughnotinissue,are
so connected with a fact in issue as to form part of the same transaction, are relevant, whether
theyoccurredatthesametimeandplaceoratdifferenttimesandplaces.
(a)AisaccusedofthemurderofBbybeatinghim.WhateverwassaidordonebyAOrBorthe
bystanders at the beating or so shortly before or after it as to form part of the transaction, is a
relevantfact.
(b) a is accused of waging war against the Government of India by taking part in an armed
insurrection which property is destroyed, troops are attacked and gaols are broken open. The
occurrenceofthesefactsisrelevant,asformingpartofthegeneraltransaction,thoughAmaynot
havebeenpresentatallofthem.
(c)AsuesBforalibelcontainedinaletterformingpartofacorrespondence.Lettersbetweenthe
partiesrelatingtothesubjectoutofwhichthelibelarose,andformingpartofthecorrespondence
inwhichitiscontained,arerelevantfacts,thoughtheydonotcontainthelibelitself.
(d)Thequestionis,whethercertaingoodsorderedfromBweredeliveredtoA.The goods were
deliveredtoseveralintermediatepersonssuccessively.Eachdeliveryisarelevantfact.
Factswhicharenotthemselvesinissuemayaffecttheprobabilityoftheexistenceoffactsinissue
and be used as the foundation of inference respecting them such facts are described in Act as
relevant facts. Every fact is a part of other facts. Sec. 6 lays down that the facts which are so
connectedwiththefactsinissuethattheyformpartofthesametransactionarerelevantfacts.A
definitionoftheword'sametransaction'isgivenbyStephenwhosays,atransactionisagroup
offacts,connectedtogethertobereferredtobyasinglelegalname,acrime,acontract,awrongor
any other subject of enquiry which may be in issue. The rule of efficient test for determining
whetherafactformspartofthesametransactionoranotherdependsuponwhethertheyareso
relatedtooneanotherinpointofpurpose,orascauseandeffect,orasprobableandsubsidiary
actastoconstituteonecontinuousaction.
Doctrineofresgestaeorpartsoftransaction
ApparentlythephraseiswellestablishedinLawofEvidence.Ithasbeenusedintwosenses.In
thewidersenseitcoversalltheprobativefactsbywhichresgestaearereproducedtothetribunal
where the direct evidence of witness or perception by the court are unattainable. In restricted
meaningresgestaeimportstheconceptionofactionbyaction.Tobeclear,intherestrictedsense
factswhichconstitutetheresgestaemustbesuchassoconnectedwiththeverytransactionor
factunderinvestigationastoconstituteapartofit.Theyaretheactstalkingforthemselvesnot
whatpeoplesaywhentalkingabouttheacts.
ThesectionisquiteapparentlybasedupontheEnglishdoctrineofresgestae.ThisLatinphrase
meansthingsdoneandwhentranslatedintoEnglishmeansthingssaidanddoneinthecourse
ofatransaction.Everycasethatcomesbeforeacourtoflawhasafactstorybehindit.Everyfact
storyismadeofcertainacts,omissionsandstatements.Everysuchact,omissionorstatementas
throwssomelightuponthenatureofthetransactionorrevealsitstruequalityorcharactershould
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throwssomelightuponthenatureofthetransactionorrevealsitstruequalityorcharactershould
beheldasapartofthetransactionandtheevidenceofitshouldbereceived.Tostateafactor
event in isolation without reference to its antecedents in time, place or surrounding
circumstances, may render the fact, difficult or even impossible to comprehend. Other facts or
circumstances may be so closely connected with the fact in issue as to be, in reality, part and
parcelofthesametransaction.Suchancillaryfactsaredescribedasformingpartoftheresgestae
ofthefactinissue,andmaybeproved.
Theexpressionresgestaeasappliedtoacrimemeansthecompletetransactionfromitsstarting
pointintheactoftheaccuseduntiltheendisreached.Whatinanycaseconstitutesatransaction
depends wholly on the character of the act and the circumstances of the case. It frequently
happens that, as evidence of circumstances may be resorted to for the purpose of proving the
commissionofaparticularoffencecharged,theproofofthosecircumstancesinvolvestheproofof
other acts either criminal or apparently innocent. In such cases it is proper that the chain of
evidenceshouldbeunbroken.
Thewordsspokenbythepersondoingtheact,orbythepersontowhomtheyweredoneorbythe
bystandersarerelevantasapartofthesametransaction,butitshouldbeborneinmindthatsuch
statementsordeclarations,astheyarecalled,inorderthattheymightbeadmissibleasresgestae
shouldbecontemporaneouswiththetransactioninissue,thatis,theintervalshouldnotbemade
astogivetimeandopportunityforfabricationandconnectionandtheyshouldnotamountamere
narrative of a past occurance. If the statement is answer to a query after lapse of some time it
cannotbetreatedasresgestae.Atthetimeofmurderthecryofdeceased'saveme'andthatofthe
childrenthattheirmotherwasbeingkilledarerelevantasresgestae.
InRattenvTheQueenAmanwasprosecutedforthemurderofhiswife.Hisdefencewasthatthe
shotwentoffaccidently.Therewasevidencetotheeffectthatthedeceasedtelephonedsay:Get
me the police please. Before the operator could connect the police, the caller, who spoke in
distress, gave her address and the call suddenly ended. Thereafter the police came to the house
andfoundthebodyofadeadwoman.Hercallandthewordsshespokewereheldtoberelevantas
a part of the transaction which brought about her death. Her call in distress showed that the
shootinginquestionwasintentionalandnotaccidental.Fornovictimofanaccidentcouldhave
thoughtofgettingthepolicebeforethehappening.Thisthenistheutilityofthedoctrineofres
gestae.Itenablesthecourttotakeintoaccountalltheessentialdetailsofatransaction.
A transaction can be truly understood only when all its integral parts are known and not in
isolationfromeachother.
TheCourtofAppealheldinanothercasethatastatementmadetoapoliceofficerbythevictimof
anassaultidentifyingtheassailantwhilemovingwiththepoliceinhiscarwasrelevantasshowing
thathehadseenthevictimofanassaultandwhocommittedit.
ActsorOmissionsasResGestae
Sofarasactsandomissionsaccompanyingatransactionareconcerned,muchdifficultydoesnot
arise.Natureofthetransactionitselfindicateswhatshouldbeitsessentialparts.IncaseofMilne
vLeisleraquestionwaswhetheracontracthadbeenmadewithapersoninhispersonalcapacity
orasanagentofanother.Thefactthatthecontractorwrotealettertohisbrokeraskinghimto
makeinquirieswasheldtoberelevant.
StatementsasResgestae
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StatementsasResgestae
Statements may also accompany Physical happenings. In the application of this principle the
courts have been very strict and cautious. For statements can be easily concocted. Hence the
principle that the statement should have been made so soon before or after or along with the
incidentthattherewashardlyanytimetodeliberateandtherebytofabricateafalsestory.Incase
of R v. Bedingfield a woman, with a throat cut, came suddenly out of a room, in which she had
beeninjuredandshortlybeforeshedied,said:OhdearAunt,seewhatBedingfieldhasdoneto
me.Itwasheldthatthestatementwasnotadmissible.Anythingutteredbythedeceasedatthe
time the act was being done would be admissible, as, for instance if she has been heard to say
something, as don't Harry. But here it was something, stated by her after it was all over. The
statementwasalsoheldtobenotrelevantasdyingdeclarationbecauseshedidnothavethetime
toreflectthatshewasdying.
IncaseofRv.Christieanindecentassaultwasmadeuponayoungboy.Shortlyaftertheincident
the boy made certain statements to his mother by which he described the offence and the man
who assaulted him. The evidence of the statement was excluded. Remarked that the boy's
statementwassoseparatedbytimeandcircumstancesfromtheactualcommissionofthecrime
thatitwasnotadmissibleaspartoftheresgestae.
Theemphasisofthecourtsseemtobethatthewordsshouldbeatleastderecentiandnotafter
anintervalwhichshouldallowtimeforreflectionandconcoctingastory.Thestatementshould
beanexclamationforcedoutofawitnessbytheemotiongeneratedbyaneventratherthana
subsequentnarrative.The courts have stressing the necessity for close association in time,place
andcircumstancesbetweenhestatementandthecrucialevents.
It has been held by the Supreme Court in R. M. Malkani v State of Maharashtra, that a
contemporaneoustaperecordofarelevantconversationisarelevantfact.Itisresgestae.Here
the act of the assailant intruding into the courtyard during dead of the night, victim's
identificationoftheassailantherpronouncementthatappellantwasstandingwithagunandhis
firingthegunather,allcircumstancessointertwinedwitheachotherbyproximityoftimeand
space that the statement of the deceased became part of the same transaction. Hence it is
admissibleunderSection6oftheEvidenceAct.
In Rattan Singh v. State of H. P. it was held that where shortly before the incidence in which a
womandiesofgunshot,sheexclaimedthatamanwasstandingnearherwithaguninhishand,
thestatementwasheldtobesufficientlyproximateintimetothehappeningastobeapartofthe
sametransaction.
ResGestaeandHearsay
Hearsay evidence means the statement of a person who has not sent he happening of the
transaction,buthasheardofitfromothers.Butsuchevidencecanbegivenifitisapartofthe
transaction.
In Sukhar v. State of U.P., One morning while deceased was going on the road, Accused caught
holdofhisbackandfiredapistolshottowardshim,deceasedraisedanalarmonaccountofwhich
PW1andPW2reachedthesceneofoccurrenceandthatpointoftime,deceasedfelldownandthe
accused made his escape. The two witnesses, brought deceased tot he police station whereupon
the police recorded of the statement of deceased and started investigation. During trial the
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the police recorded of the statement of deceased
and started investigation. During trial the
prosecution witnesses PWs 1& 2merely stated as to what they heard from the injured at the
relevantpointoftimeandaccordingtoPW2,theinjuredhadtoldhimthattheassailanthadfired
uponhim.Whilethetrialwaspendingtheinjureddied.
TheHighCourtheavilyrelieduponthestatementofPW2.Counselfortheappellantstrenuously
contended that the evidence of the Evidence of PW 2 cannot be held to be admissible under
Section6ofEvidenceActinasmuchaswhattheinjuredtoldthewitnesswhenthewitnesswhen
thewitnessreachedthesceneofoccurrenceandthefactumofallegedshootingbytheaccusedat
theinjuredcannotbesaidtohaveformedpartofthesametransaction.
The Supreme Court said that Section 6 of the evidence act is an exception to the general rule
hereunder the hearsay evidence become admissible. But for bringing such hearsay evidence
within the provisions of Section 6, what is required to be established is that it must be almost
contemporaneouswiththeactsandthereshouldnotbeanintervalwhichallowfabrication.The
statement sought to be admitted, therefore as forming part of res gestae must have been made
contemporaneouslywiththeactsorimmediatelythereafter.
WithreferencetoaboveexplanationandreferringtothecaseofRattanSinghv.StateofH.P.,the
court held that the statement indicating that the injured told that the accused has fired at him,
wouldbecomeadmissibleunderSection6oftheEvidenceAct.

Proved,DisprovedandNotProved
Whenisafactsaidtobeproved.Section3says:
Proved:Afactissaidtobeprovedwhen,afterconsideringthemattersbeforeit,theCourteither
believes it to exist, or considers its existence so probable that a prudent man ought, under the
circumstancesoftheparticularcase,toactuponthesuppositionthatitexists.
Thedegreeofcertaintywhichmustbearrivedatbeforeafactissaidtobeprovedisthatdescribed
inthissection.
Thesectionalsostatesastowhenafactissaidtobedisproved.
Disproved:Afactissaidtobedisprovedwhen,afterconsideringthemattersbeforeit,theCourt
eitherbelievesthatitdoesnotexist,orconsidersitsnonexistencesoprobablethataprudentman
ought,underthecircumstancesoftheparticularcase,toactuponthesuppositionthatitdoesnot
exist.
The section concludes with this set of provisions by defining a fact which is said to be not
proved.Itsays:
NotProved:Afactissaidtobenotprovedwhenitisneitherprovednotdisproved.
TheseprovisionsoftheActdealwiththedegreeorstandardofproof.Whatandhowmuchproof
isnecessarytoconvincethejudgeofexistenceofafactinissue?Theanswerdependsuponmany
circumstances as different standards of proof are demanded in civil and criminal cases. In civil
cases,forexample,amatteristakentobeprovedwhenthebalanceofprobabilitysuggestsit,nut
incriminalcasesthecourtrequiresaproofbeyondreasonabledoubt.Proofmeanssuchevidence

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incriminalcasesthecourtrequiresaproofbeyondreasonabledoubt.Proofmeanssuchevidence
aswouldinduceareasonablemantocometotheconclusion.Suspicioncannottaketheplaceof
proof,normoralbeliefofthejudgeintheguiltoftheaccused.
Supreme Court held that in Criminal cases there has to be a proof which leaves behind no
reasonable doubt about the prosecution version. The victim's dying declaration which left many
uncoveredpointsandalsonarratedanunnaturalstory.Becauseofthesedoubtstheevidencewas
rejected.
The court has to proceed on the basis of the matters before it, which may be in the shape of
evidenceoranyothershape.
Proved : Proof does not mean proof to rigid mathematical demonstration, because that is
impossible.Itmeanssuchevidenceaswouldinduceareasonablemantocometoconclusion.All
thatcanbedoneistoadducesuchevidenceasthatthemindofthetribunalissatisfiedthatthe
fact is so. In the ordinary affairs of life courts do not require demonstrative evidence. Absolute
certainty amounting to demonstration is seldom to be had in the affairs of life and we are
frequentlyobligedtoactondegreesofprobabilitieswhichfallveryshortofitindeed.
InM.NarsinghaRaov.StateofAndhraPradesh,theSupremeCourtheldthatafactissaidtobe
provedwhenafterconsideringthematterbeforeittheCourteitherbelieveittoexistorconsiders
itsexistencesoprobablethataprudentmanought,undercircumstancesofparticularcase,toact
uponsuppositionthatitexists.Thisisthedefinitionoftheword'proved'inEvidenceAct.Whatis
required is production of such materials on which the Court reasonably act to reach the
suppositionthatthefactexist.Proofoffactsdependsupondegreeofpossibilityofhavingexisted.
The standard required for reaching the supposition is that of a prudent man acting in any
importantmatterconcerninghim.
The extent to which a particular evidence aids in proving the fact in controversy is called as
probativeforce.Thisprobativeforcemustbesufficienttoinducethecourteither(a)tobelievein
the existence of the fact sought to be proved, or (b) to consider its existence so probable that a
prudentmanoughttoactuponthesuppositionthatitexists.Thetestisofprobabilityuponwhich
a prudent man may base his opinion. In other words, it is the estimate which a prudent man
makesoftheprobabilitieshavingregardtowhatmustbehisdutyasaresultofhisestimate.
Proof and suspicion : It must be borne in mind that suspicion and conjecture cannot take the
placeoflegalproof.
Matter before it : In order to decide as to whether a particular fact is proved, the court has to
consider the 'matter' before it. The expression, matters before it in this definition includes
materialswhichdonotfallwithinthedefinitionof'evidence'asgiveninSec.3.Theresultoflocal
enquirybyacourt,materialobjectsbroughtbeforethecourt,materialobjectsbroughtbeforethe
court,thedemeanorofwitnesses,admissionbyparties,confessionsbytheaccused,statementof
theaccused,Commissioner'sreports,arenotevidenceaccordingtothedefinitiongiveninSec.3.
Buttheyareallmattersbeforethecourttobeconsideredwhilecomingtoconclusion.
DisprovedandnotProved:Thedefinitionoftheword'disproved'isaconverseofthedefinition
oftheword'proved'.Theexpression'notproved'indicatesastateofmindinbetweenthetwo,that
is,whenonecannotsaywhetherafactisprovedordisproved.NotProvedissomethingdifferent
from being false. An inability to prove a claim does not mean in all cases that it is false. It
negativesbothproofanddisproof.
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negativesbothproofanddisproof.
Sec. 3 of Evidence Act, while explaining the meaning of proved, disproved and not proved
provides,thestandardofproof.Thisstandardshouldbeofordinaryprudenceinperson,whowill
judgeitsexistenceornonexistencefromthestandardofcircumstancesbeforehim.
InNavalKishorSomaniv.PoonamSomani,AndhraPradeshHighCourtsaidthatafactwhichis
proved does not necessarily mean that it is false one. The expression 'Proved' is followed by
expression disproved. This is followed by difinition of 'not proved'. The fact is said to be not
provedwhenitisneitherprovednotdisproved.Ontheotherhandthefactissaidtobedisproved
when after considering the matters before it the court either believes that it does not exist or
considersitsbibexistence.Theword'disproved'isakintotheword'false'.What is disproved is
normally taken to be false thing. It will be thus seen that a fact proved is not necessarily a fact
disproved.Afactwhichis'notproved'maybefalseortrue.Adoubtlingersaboutitstruthmerely
becauseitisnotprovedormaynotjumptotheconclusionthatitisdisproved.Afactisdisproved
normallybythepersonwhoclaimsthatallegedthatthefactisnottrue.
AfactissaidtobedisprovedwhentheCourtbelievesthatthefactinquestiondoesnotexistand
that the Court believes the nonexistence of that fact from the standard of man of ordinary
prudence.
NotProvedwherethefactisdeemedtobenotprovedfromthestandardofapersonofordinary
prudence.ThephraseNOTPROVEDmeansneitherthefactisprovedwithcertaintynorthefactis
believedtoexist.ThephraseNOTPROVEDisbetweenthephraseprovedanddisproved.Andthe
phrasenotprovedistheresultofcarefulscrutinyofthepersonofordinaryprudencethatthefact
eitherexistswithcertaintynoritsnonexistenceisprovedwithcertainty.Itisprovisionbetween
existenceandnonexistenceofthefactinthemindofamanofordinaryprudence.

CONSPIRACY
S. 10 Things said or done by conspirator in reference to common design. Where there is
reasonable ground to believe that two or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or written by any one of such persons in
referencetotheircommonintention,afterthetimewhensuchintentionwasfirstentertainedby
anyoneofthem,isarelevantfactasagainsteachofthepersonsbelievedtobesoconspiring,as
wellasforthepurposeofprovingtheexistenceoftheconspiracyasforthepurposeofshowing
thatanysuchpersonwasapartytoit.
Illustration:ReasonablegroundexistsforbelievingthatAhasjoinedinaconspiracytowagewar
againsttheGovernmentofIndia.
ThefactsthatBprocuredarmsinEurpoeforthepurposeoftheconspiracy,Ccollectedmoneyin
Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published
writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the
money which C had collected at Calcutta, and the contents of a letter written by H giving an
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money which C had collected at Calcutta, and the
contents of a letter written by H giving an
accountoftheconspiracy,areeachrelevant,bothtoprovetheexistenceoftheconspiracy,andto
prove A's complicity in it, although he may have been ignorant of all of them, and although the
personsbywhomtheyweredonewerestrangerstohim,andalthoughtheymayhavetakenplace
beforehejoinedtheconspiracyorafterheleftit.
TheleadingEnglishisRv.BlakeandTye.BlakewasworkingasalandingwaiterattheCustoms
House. Tye worked at the same place as an agent for the importers. They were charged with
conspiracy to dodge the customs by passing goods without paying full duty. Tye made certain
entries in two books. One of them was used for carrying out the fraud and the entries were
necessaryforthatpurpose.Buttheotherwasforhisprivaterecord,orconvenience,suchas,the
counterfoilofhischequebook.
ItwasheldthattheentriesintheformerbookwereadmissibleagainstBlake,butthelatterwere
not.The essence of the decision was that evidence of an act of a conspirator is relevant against
otheronlyittheactwasdonetocarryouttheconspiracy.Theactshouldrelatetothefurtherance
ofthecommonobject.
THE basic principle which is underlined under Sec. 10 is the theory of agency and hence every
conspirator is agent of this association in carrying out the object of conspiracy. Sec. 10 renders
anything said or done or written by any one of the conspirators in reference to their common
intention as relevant fact not only as (i) against each of the Conspirators but (ii) proving the
conspiracy itself. The only condition for application of the rule of Sec. 10 is that there must be
reasonable ground to believe that two or more persons have conspired together to commit an
offence.Conspiracyisacrimeaswellasatort.
InStateofMaharashtrav.DamuGopinathShinde,therewasnodoubtthattherewasreasonable
ground to believe that four of accused conspirators have conspired to commit the offence of
abductionandmurderofchildreninvolvedinthiscase.Sowhentheseaccusedhadspokentoeach
otherinreferencetocommonintentionascouldbegatheredfromconspiratorscanberegardedas
relevant facts falling within the preview of Sec.10. A dialogue between them could be proved
throughanypermittedlegalmode.Whentheconfessionislegallyprovedandfoundadmissiblein
evidence the same can be used to ascertain what was said and done or written between the
conspirators.
Theterm'conspiracyisthecorruptagreeingtogetheroftwoormorepersonstodo,byconcerted
action,somethingunlawfuleitherasameansorasanend'.Sec120AoftheIndianPenalCode
laysdown:Whentwoormorepersonsagreetodoorcausetobedone(1)anillegalact,or(2)an
actwhichisnotillegalbutillegalbymeans,suchagreementisdesignatedascriminalconspiracy
providedthatnoagreementexceptanagreementtocommitanoffenceshallamounttocriminal
conspiracy unless some act besides an agreement is done by one or more parties to such
agreementinpursuancethereof.Thusitisclearthatwhentwoormorepersonsagreetogetherto
dosomeillegalactorsomeactbyillegalmeanstheyaresaidtohaveconspired.Itisenoughifthe
actsagreedtobedonealthoughnotcriminalarewrongful,i.e.,amounttocivilwrongcivilwrong.
A conspiracy consists of unlawful combination of two or more persons to do that which is
contrary of law, or to do that which is wrongful towards other persons. It may be punished
criminally,orcivillybyaction.
IncaseofMohd.Khalidv.StateofWBthecourtsaidthatIncaseofconspiracytherecannotbe

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IncaseofMohd.Khalidv.StateofWBthecourtsaidthatIncaseofconspiracytherecannotbe
anydirectevidence.Theingredientsoftheoffencearethatthereshouldbeanagreementbetween
personswhoareallegedtoconspireandthesaidagreementshouldbefordoinganillegalactor
fordoingbyillegalmeansanactwhichitselfmaynotbeillegal.Thereforetheessentialofcriminal
conspiracy is an agreement to do an illegal act and such an agreement can be proved either by
directevidenceorbycircumstancesevidenceorbyboth,anditisamatterofcommonexperience
that direct evidence to proved conspiracy is rarely available. Therefore the circumstance proved
beforeduringandaftertheoccurancehavetobeconsideredtobedecidedaboutthecomplicityof
theaccused.
Privacyandsecrecyaremorecharacteristicsofconspiracythanofalouddiscussioninanelevated
placeopentopublicview.Directevidenceinproofofaconspiracyisseldomavailable,offenceof
theconspiracycanbeprovedbyeitherdirectorciarcumstanceevidence.Itisnotalwayspossible
togiveaffirmativeevidenceaboutthedateoftheformationofthecriminalconspiracy,aboutthe
objectwhichtheobjectorssetbeforethemselvesastheobjectofconspiracyandaboutthemanner
inwhichtheobjectofconspiracyistobecarriedout,allthisisamaterofinference.
Where trustworthy evidence establishing all links of circumstantial evidence is available the
confessionofacoaccusedastoconspiracyevenwithoutcorroborationevidencecanbetakeninto
consideration.Itcaninsomecasesbeinferredfromtheactsandconductoftheparties.
It must be remembered that mere knowledge on the part of a man about a conspiracy will not
make him a conspiracy. Under Sec.10, a statement of act of one person is evidence against
another. The Section puts certain limitations to the general rule of admissibility stated above.
UnderSec.10athingdone,saidorwrittenafterthetimewhensuchintentionwasfirstentertained
byanyoneofthemisrelevant.Anythingdone,saidorwrittenbeforesuchintentionofconspiracy
wasentertainedbyanyoneofthemisnotrelevantunderthissection.Againsteachandeverything
said,doneorwrittenbyaconspiratorevenaftersuchintentionwasentertainedbyamemberof
the conspiracy will not be relevant under this section. The only thing said, done or written in
referencetothecommonintentionoftheconspiratorswillbeadmissible.Thereismorelimitation
totherelevancyofevidenceunderSec.10.Beforeanyevidenceisentertainedunderthissection
there should be a reasonable ground for the court to believe that two or more persons have
conspired together to commit, an offence or actionable wrong. Any statement made by accused
after hisarrest cannotfall within the ambit of Sec.10. Confessional statement of accusedwho is
notalivewouldnotbeofanyevidentiaryuse.
AnalysisofSection10.Sec.10canbeanalysedasfollows:
(1)Thereshallbeaprimafacieevidenceaffordingareasonablegroundforacourttobelievethat
twoormorepersonsaremembersofaconspiracy(2)ifthesaidconditionisfulfilled,anything
said,doneorwrittenbyanyoneoftheminreferencetotheircommonintentionwillbeevidence
against the others (3) any thing said, done or written by him should have been said, done or
writtenbyhimaftertheintentionwasformedbyanyoneofthem(4)itwouldberelevantforthe
said purpose against another who entered the conspiracy, whether it was said, done or written
beforeheenteredtheconspiracyorafterheleft(5)anditcanbeusedonlyagainstaconspirator
andnotinhisfavour.
Beforebringingonrecordanythingsaid,doneorwrittenbyanallegedconspiratorthecourthas
tobringonrecordsomeevidencewhichprimafacieprovestheexistenceoftheconspiracy.Oncea
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tobringonrecordsomeevidencewhichprimafacieprovestheexistenceoftheconspiracy.Oncea
reasonablegroundtobelievethatseveralpersonshaveconspiredtocommitanoffenceexiststhe
acts and declarations of a particular person in reference to the common intention are relevant
factsalthoughthatpersonmaynotsomuchasevenknowoftheexistenceofmanyotherengaged
intheconspiracy.Andiftheevidenceistakenafteraprimafacieproofofconspiracybutatalater
stage of the trial that reasonable ground of belief or prima facie proof is displaced by further
evidence,thecourtmustrejecttheevidencepreviouslytaken.
In C B I v. V.C. Shukla (Hawala Case), entries in the accounts book alleged to be showing
conspiracyamongalltheaccused.Evidenceofprosecutionwitnessonlyindicatingthatoneofthe
accused in question was known to the other accused person and had gone to their residence on
formal occasion, witness not speaking a word about other accused in question. It was held that
Sec.10cannotbepressedintoholdingthatconspiracyamongstalltheaccusedwasproved.
Theword'intention'impliesthattheactintendedisinthefutureandthesectionmakesrelevant
statementsbyaconspiratorwithreferencetothefuture.Thewordsinreferencetotheircommon
intention mean in reference to what at the time of statement was intended in the future.
Narrativescomingfromtheconspiratorsastotheirpastactcannotbesaidtohaveareferenceto
theircommointention.
InthecaseofBadriRaiv.StateofBihartheSupremeCourtreferredtothestateofEnglishLawas
expoundedinRvs.Blake,andsaidthatsection10oftheEvidenceActisonthesamelines:
Ramji and Badri were prosecuted for conspiracy under S.120 and for bribing a police officer
underS.165A.Aninspectorofpolicewasonhiswaytothepolicestation.BothRamniandBadri
approached him and requested that they would duly reward him if he could hush up the case
relating to stolen ornaments and molten silver recovered from Ramji's house and which was
underinvestigation.Theinspectortoldthemhecouldnottalktothemontheroadandthatthey
should come to the police station. The inspector reported the matter to his senior officer. Badri
alone came to the police station and offered him a packed wrapped in a piece of old newspaper
containingRs.500incurrencynotes.HetoldtheinspectorthatRamjihadsentthemoneyasa
considerationforhushingupthecaseagainsthim.Inthepresenceofotherpersons,whobecame
witnesses,theinspectorseizedthemoneyanddrewupthefirstinformationreport.
The only question before the Supreme Court was whether the offer was whether the offer of
money and the accompanying statement made by Badri were relevant against Ramji. The court
saidthatwhenboththeaccusedapproachedtheinspectorandrequestedhimtohushupthecase,
thatclearlyshowedthattheyhadconspiredtobribeapublicservant.Thatbeingso,anythingsaid
or done by any of them in reference of their conspiracy to bribe was relevant against the other
also.Thestatementandtheofferofbribehadclearreferencetotheircommonintentionandwere,
therefore,relevantagainstboth.
TheSupremeCourtfurthersaid,Sec.10oftheEvidenceActhasbeendeliberatelyenactedinorder
to make such acts and statements of a coconspirator admissible against the whole body of
conspirators,becauseofthenatureofcrime.Aconspiracyishatchedinsecrecy,andexecutedin
darkness.Naturally,therefore,itisnotfeasiblefortheprosecutiontoconnecteachisolatedactor
statementofoneaccusedwiththeactsofstatementsoftheothers,unlessthereisacommonbond
linkingallofthemtogether.
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linkingallofthemtogether.
InMirzaAkbarv.Emperor,MirzaAkbar,MstMehrTejaandUmarSherwereconvictedforthe
murderofAliAskar,thehusbandofMst.MeharTeja.TheprosecutioncasewasthatMst.Mehar
TejaandMirzaAkbardesiredtogetridofAskarsothattheyshouldmarryeachother.UmarSher
washiredforthepurpose.UmarShershotAliAskardead.Afterthemurderwascommitted,Mst
MehrTejawasarrestedonthechargeofconspiracy.Shewasexaminedbeforeamagistrateand
there she made certain statement implicating Mirza Akbar. This statement was admitted in
evidence both by the trial Judge and Judicial Commissioner as relevant against the appellant
underSec.10,EvidenceAct.ItwasheldthatthewordsofSec.10arenotcapableofbeingwidely
construedsoastoincludeastatementmadebyoneconspiratorintheabsenceoftheotherwith
reference to past acts done in the actual course of carrying out the conspiracy, after it has been
completed.
AppellantMirzaAkbarandMstTejaweretriedforconspiracytocommitthemurderofAliAskar,
husbandofMst.MeharTeja.AfterthemurderwascommittedMst.MeharTejawasarrested.She
madethestatementtotheeffectthattherewasconspiracyformurderingAliAskar.Itwasheld
thatthestatementwasmadewithreferencetopastact'commonintention'inthesectionsignify
common intention existing at the time when the thing was done, written or said. Things said,
written or done while the conspiracy is at foot are relevant. The statement was held to be not
admissible.

ADMISSION
S. 17. Admission defined An admission is a statement, oral or documentary or contained in
electronicform,whichsuggestsanyinferenceastoanyfactinissueorrelevantfact,andwhichis
madebyanyofthepersons,andundercircumstanceshereinaftermentioned.
ThesectionpointsthreethingsitFirstdefinesadmission,intermsofastatementwhichmaybe
oral or documentary or in electronic form. Secondly, the section says that an admission will be
relevantonlyifitismadebyanyofthepersonspecifiedintheAct.ThelististobefoundinS.18.
Thirdly,thesectionsaysthatitwillberelevantonlyinthecircumstancesmentionedintheAct.
Suchcircumstancesarementionedinsection1830.
The Supreme Court has given some guidance in this respect. Before the right of a party can be
takentobedefeatedonthebasisofanallegedadmissionbyhim,theimplicationofthestatement
madebyhimmustbeclearandconclusive.Thereshouldnotbeanydoubtorambiguity.Itwould
benecessarytoreadallofhisstatementstogether.Applyingthisapproachtothefactsofacase
beforeit.
Reasonsforadmissibilityofadmissions
Anadmissionisarelevantevidence.Severalreasonshavebeensuggestedforreceivingadmissions
inevidencesomeofthemareasfollows:
1.AdmissionsaswaiverofProof
Thesectionconfinesthiseffectonlytoformaladmissionsmadeatthetimeofthetrialoraspartof
pleadingsorinreferencetothelitigation.Sec.58qualifiestheprinciplebysayingintheproviso

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pleadingsorinreferencetothelitigation.Sec.58qualifiestheprinciplebysayingintheproviso
that the Court may, in its discretion, require the facts admitted to be proved otherwise than by
suchadmission.ThustheCourtmayrejectanadmissioneitherwhollyorinpartormayrequire
furtherproof.Waiverofprooftherefore,cannotbeanexclusivereasonfortherelevancyofan
admission.
2.Admissionsasstatementagainstinterest
The Secondsuggestedreason is that an admission,being a statement against theinterest of the
maker, should be supposed to be true, for it is highly improbable that a person will voluntarily
make a false statement against his own interest. But this also does not squarely account for the
relevancyofadmissions.ForonethingSection17doesnotrequirethatanadmissionshouldbea
statementsuggestsomeinferenceastoafactinissueorrelevanttotheissue,eveniftheinference
isinfavourofthedeclarant.Theactdoesnotseemtorequirethatanadmissionshouldbeself
harmingstatement.
3.AdmissionsasEvidenceofContradictoryStatements
Still another reason that partly accounts for the relevancy of an admission is that there is a
contradictionbetweentheparty'sstatementandhiscase.Thiskindofcontradictiondiscreditshis
case.If,forexample,AsuesBuponaloan.HisaccountbooksshowthattheloanwasgiventoC.
ThestatementinhisaccountsisanadmissiononhispartasitcontradictshiscaseagainstB.But
his is only partly true, for the principle is that a party can prove all his opponent's statements
aboutthefactsofthecaseanditisnotnecessarythattheyshouldbeinconsistentwithhiscase.
4.AdmissionsasEvidenceofTruth
The last and most plausible and perhaps widely accepted reason that accounts for relevancy of
admissionsisthatwhateverstatementsapartymakesaboutthefactsofthecase,whethertheybe
for or against his interest, should be relevant as representing or reflecting the truth as against
him.
Formsofadmissionandtowhomanadmissionmaybemade
It is generally immaterial as to whom an admission is made. It may occur in reference to the
proceedingsoroutsidethecourt.
FormalorJudicialAdmissions
An admission which is made as part of the proceedings so that it is recorded in the file of the
court,thatiscalledaformalorjudicialadmission.Admissionsexpresslymadeintheproceedings
priortothetrialaresometimescalledformalorexpressadmissions.
Statementsmadebyapersoninhispleadingsorinhisevidenceinacasehavealsobeenheldby
the Supreme Court to be admissions and, therefore, relevant. The case before the court was
BishwanathPrasadv.DwarkaPrasad:
The question was whether certain properties belonged to the defendant and certain others were
liabletopartition.Theoppositepartyhadmadestatementindispositionsinanearliersuitthat
theybelongedtothedefendant.Similaradmissionsoccurredinthewrittenstatementfiledbythe
plaintiffandhisfatherinthatsuit.
Treating this as a relevant evidence against the plaintiff, Court remarked that Admissions are
usually telling against the maker unless reasonably explained, and no acceptable ground to
extricate the appellants from the effect of their own earlier statements has been made out. The
attentionofthelearnedJudgewasdrawntosection145oftheEvidenceActwhichprovidesthatif
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attentionofthelearnedJudgewasdrawntosection145oftheEvidenceActwhichprovidesthatif
awitnessistobecontradictedbyhisownearlierstatement,thestatementmustbeputtohimso
thathemayhaveanopportunitytoexplainitandthiswasnotdoneinthepresentcaseDealing
withthisargumentCourtsaid:
There is a cardinal distinction between a party who is the author of a prior statement and a
witnesswhoisexaminedandissoughttobediscreditedbytheuseofhispriorstatement.Inthe
former case in admission by a party is a substantive evidence if it fulfills the requirements of
Sec21 in the latter case a prior statement is used to discredit the credibility of the witness and
does not become substantive evidence. In the former there is no necessary requirement of the
statement containing the admission having to be put to the party because it is evidence proprio
vigoreinthelattercasetheCourtcannotbeinvitedtobedisbelieveawitnessonthestrengthof
thepriorcontradictorystatementunlessithasbeenputtohim,asrequiredbysec145.
The court then pointed out that this distinction was clearly made out in Bharat Singh's Case,
Wherethecourtdisposedofasimilarargumentwiththefollowingobservation:
Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Act,
thoughtheyarenotconclusiveproofofthemattersadmitted.Weareofopinionthatadmissions
dulyprovedareadmissibleevidenceirrespectiveofwhetherthepartymakingthemappearedin
the case he made a statement contrary to these admissions. An admission is a substantive
evidence of the fact admitted while a previous statement used to contradict a witness does not
becomesubstantiveevidenceandmerelyservesthepurposeofthrowingdoubtontheveracityof
thewitness.
Referring to the distinction between the relevancy of an admission and its weight the Court
pointedoutintheBharatSingh'sCasethatthetheweighttobeattachedtoanadmissionmade
byapartyisamaterdifferentfromitsuseasanadmissibleevidence.
InformalorcasualAdmissions
Suchadmissionsmayoccurintheordinarycourseoflife,orinthecourseofbusiness,orincasual
orinformalconversation.Theadmissionmaybeinwritingororal.Writtenadmissionsmayoccur
inthecourseofcorrespondence,inletters,businessdairiesoraccountbookorotherrecords.If
there is a document against a party, any statement made by him about the contents of the
documentisanadmissionagainsthimevenifthedocumentitselfisnotprovableonaccountof
wantofstamp.
AdmissionandHearsay
An oral admission can be proved either by the party to whom it was made or by someone who
heard it being made. To this extent the evidence of an informal admission is an evidence of
hearsay.Sec.60requiresthatoralevidencemustinallcasesbedirect,thatistosay,thewitness
must have personal and direct knowledge of the fact to which he testifies. If, for example, the
questionishowafirestarted.Apersonwhowitnessedthefirebeingstartedbyanexplosioncan
giveevidenceofthisfact,forhehaspersonalknowledgeofthefact.If on his way home he told
someone of the fact of explosion, that other cannot give evidence of the explosion for his
knowledgeisnothingbutahearsay.
Personswhoseadmissionsarerelevant
Section18laysdownthelistofpersonswhoseadmissionsconstituteevidenceagainstaparty.The
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Section18laysdownthelistofpersonswhoseadmissionsconstituteevidenceagainstaparty.The
effectsofSec.18,19and20,whenputtogether,isthattheadmissionsoffollowingpartiesbecome
relevant:
1.PartiesoftheSuit,
2.AgentsofParties,
3.Personsoccupyingrepresentativecharacter,
4.Statementwillincludethestatementsofthefollowingparties:
Thiscategorywillincludethestatementsofthefollowingparties:
(a)Personshavingpecuniaryorproprietaryinterest.
(b)Personsfromwhomthepartiesderivedtheirinterest.
(c)Personswhosepositionisinissueorisrelevant.
(d)Personsexpresslyreferredto.
Partiestosuitorproceeding
Thestatementofapartyinhiswrittenstatementinanearlierproceedingwasheldtoberelevant
against him in a subsequent proceeding. It seemed to the court to be evidence of telling nature
andheavilyloadedagainsttheparty.Wheretherearemorethanoneplaintiffsoardefendantstoa
suit,theActdoesnotmakeitclearwhetherthestatementofapartywillberelevantagainsthisco
plaintiffsorcodefendants.Onprincipleaswellaspolicythestatementofadefendantshouldnot
bind his codefendants, for otherwise the plaintiff can defeat the case of the other defendants
throughthemouthofoneofthem.Thatwouldbeunfairtothecodefendants.Soadefendantis
boundbyhisstatementonlytotheextentofhisowninterest.Anadmissionisthebestevidence
onlyagainstthepartywhohasmadeit.Evenifitwererelevantunderonecategoryortheother,it
appearsfromdecisionoftheSupremeCourtinKashmiraSinghv.StateofM.P.,thatnotmuch
weightcanbeattachedtoitagainstthecopartiesanditcannotbyitselfbethebasisoflegalrights
orliabilities.
AgentsofParties
The statement of an agent to a party are relevant as admission against the party provided the
court regards, under the circumstances of the case, the agents to be expressly or impliedly
authorised by the party to make the statement. According to the law of agency, a statement by
agentintheordinarycourseofthebusinessofagencyisanadmissionagainsthisprincipal.
Statementsinrepresentativecharacter
Apersonwhosuesorissuedinarepresentativecharacter,anystatementmadebyhimduringthe
time that he holds such character is an admission against the party whose representative he is.
Representative character is occupied, for example, by trustees, receivers, the assignee of an
insolvent'sestate,executors,administratorsetc.
PersonshavingpecuniaryorproprietaryInterestinsubjectmatter
Statementofpersonswho,thoughnotpartiestotheproceeding,haveapecuniaryorproprietary
interestinthesubjectmatteroftheproceeding,arerelevantprovidedthatthestatementismade
byanysuchpersoninthecharacterofhisinterest.
Predecessorintitle
Statementsmadebyapersonsfromwhomthepartiestothesuithavederivedtheirinterestinthe
subjectmatterofthesuitareadmissionsprovidedtheyaremadeduringthecontinuanceofthe
interestofthepersonsmakingthestatements.Apersonofthiskindiscalledapredecessorin

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interestofthepersonsmakingthestatements.Apersonofthiskindiscalledapredecessorin
title.Any statement made by him about the property while he was holding the title is relevant
againstthepartieswhoacquiredthetitlefromhim.Thiscategorywillincludestatementsmadeby
a former owner of a property and such statements will be relevant against present owners. A
statement made by any such person after he ceased to have any interest in the property in
questionshallnotbeanadmissionagainstthepresentowneroftheproperty.
Personswhosepositionisinissue
Sec.19dealswithstatementsofpersonswhosepositionisinissue,thoughtheyarenotpartiesto
thecase.Thesectionisbasedupontheprinciplethatwheretherightorliabilityofapartytoasuit
dependsupontheliabilityofathirdperson,anystatementbythatthirdpersonabouthisliability
isanadmissionagainsttheparties.
Statementsbyreferees
Sec.20 deals with the principle that when a party makes a reference to a third person for
information, any statement by that person about the subjectmatter of the reference is an
admissionagainstthepartymakingthereference.
TheSupremeCourtinK.M.Singhv.Secretary,AssociationofIndianUniversities.Heretheissue
was whether the resignation tendered by the plaintiff was an involuntary one. He named two
officialsoftherespondentassociationthatiftheywouldtakespecialoathataspecifiedreligious
place and affirm that his resignation was not involuntary, he would accept the same. When the
officialdidsoitamountedtoanadmissiononhispartandhebecameboundbythesame.
S.21.Proofofadmissionsagainstpersonsmakingthem,andbyorontheirbehalf.Admission
arerelevantandmaybeprovedasagainstthepersonwhomakesthem,orhisrepresentativein
interest but they cannot be proved by or on behalf of the person who makes them or by his
representativeininterest,exceptinthefollowingcases:
(1)Anadmissionmaybeprovedbyoronbehalfofthepersonmakingitwhenitisofsuchanature
that,ifthepersonmakingitweredead,itwouldberelevantasbetweenthirdpersonsu/s32.
(2)An admission maybe proved by or on behalf of the person making it when it consists of a
statementoftheexistenceofanystateofmindorbody,relevantorinissue,madeatoraboutthe
time when such state of mind or body existed, and is accompanied by conduct rendering its
falsehoodimprobable.
(3)Anadmissionmaybeprovedbyoronbehalfofthepersonmakingit,ifitisrelevantotherwise
thanasanadmission.
Illustrations
(a)ThequestionbetweenAandBis,whethercertaindeedisorisnotforged.A
affirmsthatitisgenuine,Bthatitisforged.
AmayproveastatementbyBthatthedeedisgenuine,andBmay
proveastatementbyAthatthedeedisforgedbutAcannotprovea
Statementbyhimselfthatthedeedisgenuine,norcanbeprovedastatement
byhimselfthatthedeedisforged.
(b)A,thecaptainofaship,istriedforcastingheraway.
Evidenceisgiventoshowthattheshipwastakenoutofherpropercourse.
Aproducesabookkeptbyhimintheordinarycourseofhisbusiness,
showingobservationsallegedtohavebeentakenbyhimfromdaytoday,and
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showingobservationsallegedtohavebeentakenbyhimfromdaytoday,and
indicatingthattheshipwasnottakenoutofherpropercourse.Amayprove
thesestatementsbecausetheywouldbeadmissiblebetweenthirdpartiesifhe
weredead,underSec.32.
Whocanproveadmissions
The section lays down the principles as to proof of admissions. The section is based upon the
principle that an admission is an evidence against the party who has made the admission and,
therefore,itcanbeprovedagainsthim.Hehimselfcannotprovehisownstatements,otherwise
every man, if he were in a difficulty, or in view of one, might make declarations to suit his own
case,andthenlodgetheminproofofhiscase.Thegeneralruleisthatthestatementsofaliving
person cannot be received unless they are against his interest. No man should be at liberty to
makeevidenceforhimselfthroughhisownstatements.Grantedthisfacility,everylitigantwould
constructafavourablecasebyhisownstatement.
The principle is, however, subject to important exceptions. In these exceptional cases a party is
permittedtoprovehisownstatements.Someofthemmaybementionedhere.
1.WhenthestatementshouldhavebeenrelevantasDyingDeclarationorasthat
ofadeceasedpersonunderS.32.
Sec.32dealswiththestatementofpersonswhohavediedorwhootherwisecannotcomebefore
thecourt.Thestatementofanysuchpersoncanbeprovedinanycaseorproceedingtowhichitis
relevant whether it operates in favour or against the person making the statement. In
circumstancesstatedinSec.32suchastatementcanbeprovedbythemakerhimselfifheisstill
alive.TheexceptionisthusstatedinS.21(1).
Anadmissionmaybeprovedbyorbehalfofthepersonmakingit,whenitisofsuchanaturethat
ifthepersonmakingitweredead,itwouldberelevantasbetweenthirdpersonsunderSec.32.
Illustration(b)isonthepoint.
2.Statementsastobodilyfeelingorstateofmind
ThesecondexceptioniscontainedinS.21(2).Itdealswithstatementsastobody,bodilyfeelingor
stateofmind.Thesubsectionenablesapersontoprovehisstatementsastohisstateofbodyorof
mind.If,forexampleapersonisinjuredandthequestioniswhethertheinjurywasintentionalor
accidental,hisstatementatthattimeastothewayhewasinjuredcanbeprovedbyhimself.The
conditions for the admissibility of such statements are, Firstly, that the statement should have
been made at about the time when the state of mind of of body which is described by the
statement still existed. The statement should be contemporaneous with the existence of the
conditionofmindorofbody.Thisrulesourchancesoffabrication.Apersonistheleastlikelyto
fabricate a statement when he is still reeling under the pain of the injury. And Secondly, the
statement should be accompanied by conduct which renders the falsehood of the statement
improbable. Thus to reassure that the statement is really true, the Legislature insist that the
statementshouldbeaccompaniedbysuchconductasshowsthattheconditionofmindorofbody
describedbythestatementisreallytrueandnotfeigned.Theconductofapersonunderrealpain
is different from that of a person who is only acting as such. The accompanying conduct is a
greaterguaranteeoftruththanthestatements.
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3.Whenotherwiserelevant
The last exception is that a person may prove his own statement when it is otherwise relevant
under any of the provisions relating to relevancy. A statement may be relevant either as an
admissionofrelevantfactorasaproofoftheexistenceofafact.Therearemanycasesinwhicha
statement is relevant not because it is an admission but because it establishes the existence or
nonexistence of a relevant fact or a fact in issue. In all such cases a party can prove his own
statements.
StatementwhenRelevant
Theactprovidesfortherelevancyofstatementinseveralcases.
Firstly,apartymayprovehisownstatementunderS.6ifitisapartofthesametransaction.The
doctrineofresgestaecoverssuchstatements.
Secondly,astatementmaybeprovedbyoronbehalfofthepersonmakingitunderSection8ifit
accompanies or explains acts other than statements or if it influenced the conduct of a person
whoseconductisrelevant.
Thirdly,astatementmaybeprovedbyoronbehalfofthepersonmakingitunderSection14ifthe
statementexplainshisstateofmindorbodyorbodilyfeelingwhenanysuchthingisrelevantoris
inissue.
Fourthly,astatementmaybeprovedonbehalfofthepersonmakingitifitisrelevantunderany
oftheclausesofSection32.
TheSupremeCourthasalsolaiddowninsomecasesthatwherethereisanadmission,itisnot
necessary to confront the person concerned with the previous statement. This is so because an
admissionisasubstantiveandanindependentpieceofevidence.
Presumptionofgenuinenessofelectronicrecords.
Electronic records are presumed to be true. No further evidence is necessary in proof of a fact
appearinginsuchrecord.Itisonlywhenthegenuinenessoftherecordisinquestionthatother
evidencewouldbereceivable.Inthatcase,anoralaccountofthecontentsofsuchrecordwould
alsobecomereceivableinevidence.

In K. Chinnaswamy Reddy v. State of Andhra Pradesh, to hold that the statement relating to
concealment is admissible in evidence by virtue of section 27. In that case, the question was
formulatebythecourt,asfollows:
Letusthenturntothequestionwhetherthestatementoftheappellanttotheeffectthat'hehad
hidden them (the ornaments)' and would point out the place' where they were, is wholly
admissibleinevidenceunderS.27oronlythatofitisadmissiblewherehestatedthathewould
pointouttheplacebutnotthepartwherehestatedthathehadhiddentheornaments.
InPulukuriKotayyav.KingEmperor,theabovequestionwasansweredas:
Ifwemayrespectfullysayso,thiscaseclearlybringsoutwhatpartofthestatementisadmissible
underS.27.Itisonlythatpartwhichdistinctlyrelatestothediscoverywhichisadmissibleifany
partofthestatementdistinctlyrelatestothediscoveryitwillbeadmissiblewhollyandtheCourt
cannot say that it will excise one part of the statement because it is of a confessional nature.
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Section27makesthatpartofthestatementwhichisdistinctlyrelatedtothediscoveryadmissible
asawhole,whetheritbeinthenatureofconfessionornot.
Itishoweverurgedthatinacasewheretheoffenceconsistsofpossessioneventhewordswhere
hehadhiddenthem'wouldbeinadmissibleastheywouldamounttoanadmissionbytheaccused
that he was in possession. There are in our opinion two answers to this argument. In the first
place S.27 itself says that where the statement distinctly relates to the discovery it will be
admissible whether it amounts to a confession or not. In the second place, these words by
themselves though they may prove the offence, for after the articles have been recovered are
connected with crime. i.e. In this case the prosecution will have to show that they are stolen
property. We are therefore of opinion that the entire statement of the appellant would be
admissibleevidence
In the light of this decision, we must hold that the accused must be deemed to be in exclusive
possession of the articles concealed under the earth though the spots at which they were
concealedmaybeaccessibletopublic.

CONFESSION
The term confession is nowhere defined in the Evidence Act. All provisions relating to
confessionsoccurundertheheadingofadmission.IfastatementismadebyapartytoaCivil
proceedingitwillbecalledanadmissionandifitismadebyapartychargedwithacrimeitwill
be called a confession. A confession is a statement made by a person charged with a crime
suggesting an inference as to any facts in issue or as to relevant facts. The inference that the
statementshouldsuggestshouldbethatheisguiltyofthecrime.
Stephen defined Confession as : A confession is an admission made at any time by a person
chargedwithacrimestatingorsuggestingtheinferencethathecommittedthatcrime.
Aconfessionisadirectacknowledgmentofguilt,onthepartoftheaccused,andbytheveryforce
ofthedefinitionexcludedanadmissionwhichofitselfasappliedinCriminalLaw,isstatementby
the accused direct or implied, of facts pertinent to the issue, and tending in connection with a
proofofotherfactstoprovehisguiltbutofitselfisinsufficienttoauthoriseaconviction.
Theacidtestwhichdistinguishesaconfessionfromanadmissionisthatwhereconvictioncanbe
based on the statement alone, it is a confession and where some supplementary evidence is
neededtoauthoriseaconviction,thenitisanadmission.Anothertestisthatiftheprosecution
reliesonthestatementasbeingtrueitisconfessionandifthestatementisreliedonbecauseitis
falseitisadmission.Incriminalcasesastatementbyaccused,notamountingtoconfessionbut
givingrisetoinferencethattheaccusedmighthavecommittedthecrimeishisadmission.
Onlyvoluntaryanddirectacknowledgmentofguiltisconfession.Inastatementrecordedbythe
Magistrate, the accused did not admit his guilt in terms and merely went on stating the fact of
assault on the deceased by mistake. The Supreme Court held that such statement could not be
usedagainsttheaccusedasaConfession.Astatementwhichmaynotamounttoaconfessionmay
stillberelevantasanadmission.
ThedefinitionattemptedbythePrivyCouncilhasfoundfavourwiththeSupremeCourtinPakala
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ThedefinitionattemptedbythePrivyCouncilhasfoundfavourwiththeSupremeCourtinPakala
NarayanSwamiv.Emperorovertwoscores.Firstly,thatthedefinitionisthatitmusteitheradmit
theguiltintermsoradmitsubstantiallyallthefactswhichconstitutetheoffence,andsecondly,
that a mixed up statement which, even though contains some confessional statement, will still
leadtoacquittal,isnoconfession.
Theconfessioncomprisedoftwoelements:(a)anaccountofhowtheaccusedkilledthewoman
and(b)anaccountofhisreasonsfordoingso.Theformerelementsbeinginculpatoryandlatter
exculpatory.In Aghnoo Nagesia v. State of Bihar when a statement in FIR given by an accused
contains incriminating materials and it is difficult to sift the exculpatory portion therefrom, the
wholeofitmustbeexcludedfromevidence.
FormsofConfession
Aconfessionmayoccurinanyform.Itmaybemadetothecourtitself,whenitwillbeknownas
judicial confession or to anybody outside the court, in which case it is called an extrajudicial
confession.Itmayevenconsistofconversationtooneself,whichmaybeproducedinevidenceif
overheardbyanother.
JudicialConfession
Judicialconfessionsarethosewhicharemadebeforeamagistrateorincourtintheduecourseof
legalproceedings.AisaccusedofhavingkilledG.Hemay,beforethetrialbeginsconfesstheguilt
before some magistratae who may record it in accordance with the provisions of Section 164,
Cr.P.C.AtthecommittalproceedingsbeforethemagistrateoratthetrialbeforeSessionJudge,A
mayconfesshisguilt.AlltheseareJudicialconfessions.Ajudicialconfessionhasbeendefinedto
meanpleaorguiltyonarrangement(beforeatribunal)ifmadefreelybyapersoninafitstateof
mind.
ExtraJudicialConfession
Extra Judicial confessions are those which are made by the accused elsewhere than before a
magistrateorincourt.An'extraJudicialConfession'canbemadetoanypersonortoabodyof
persons. It is not necessary that the statements should have been addressed to any definite
individual.Itmayhavetakenplaceintheformofaprayer.Anextrajudicialconfessionhasbeen
definedtomeanafreeandvoluntaryconfessionofguiltbyapersonaccusedofacrimeinthe
course of conversation with persons other than judge or magistrate seized of the charge against
himself.
An unambiguous extra judicial confession has got value of high probability because this type of
confession is made by that person who had committed the crime and it will be taken into
consideration if it is free from doubt and its untruthfulness is free from any doubt. But for
confession made about charge in question the court has to satisfy itself that the confession
voluntaryandtheconfessionsshouldnothavebeencausedbyinducement,threatorpromiseof
theconfessionshouldnothavebeentakenunderthecircumstanceswhichcameunderperviewof
Sec.25or26.
Beforeacceptingtheextrajudicialconfession,itshouldbeseenthatitisnotmadeunderunfairor
colleteral notions. For this the court has to enquire all the relevant facts, such as to whom the
confessionwasmade,thetimeandplaceofmakingconfessionandthephraseologyusedbythe
accused.
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Section 24. Confession caused by inducement, threat or promise, when irrelevant in criminal
proceeding.Aconfessionmadebyanaccusedpersonisirrelevantinacriminalproceeding,if
themakingoftheconfessionappearstothecourtthhavebeencausedbyanyinducement,threat
orpromisehavingreferencetothechargeagainsttheaccusedperson,proceedingfromaperson
inauthorityandsufficient,intheopinionoftheCourt,togivetheaccusedpersongrounds,which
wouldappeartohimreasonable,forsupposingthatbymakingithewouldgainanyadvantageor
avoidanyeviloftemporalnatureinreferencetotheproceedingagainsthim.
PrincipleunderlyingSection24.
The ground upon which confessions are received in evidence is the presumption that no person
willvoluntarilymakeastatementwhichisagainsthisinterestunlessitbetrue.Buttheforceof
the confession depends upon its voluntary character. There is always a danger that the accused
maybeledtoincriminatehimselffalsely.
Voluntaryandnonvoluntaryconfession
Theconfessionofanaccusedmaybeclassifiedasvoluntaryandnonvoluntary.A confession to
the police officer is the confession made by the accused while in custody of a police officer and
never relevant and can never be proved under Section 25 and 26. Now as for the extrajudicial
confessionandconfessionmadebytheaccusedtosomeMagistratetowhomhehasbeensentby
thepoliceforthepurposeduringtheinvestigation,theyareadmissibleonlywhentheyaremade
voluntarily. If the making of the confession appears to the court to have been caused by any
inducement, threat or promise having reference to the charge against the accused person
proceeding from a person in authority and sufficient in opinion of the court to give the accused
persongrounds,whichwouldappeartohimreasonableforsupposingthatbymakingtihewould
gainanyadvantageoravoidanyevilofatemporalnatureinreferencetotheproceedingagainst
him, it will not be relevant and it cannot be proved against the person making the statement.
Section 24 of the Evidence Act lays down the rule for the exclusion of the confession which are
madenonvoluntarily.
Confessionirrelevant.IfaconfessioncomeswithinthefourcornersofSection24itisirrelevant
andcannotbeusedagainstthemaker.
TheingredientsofSection24.ToattracttheprohibitionenactedinSection24
thefollowingfactsmustbeestablished:
(1)Thatthestatementinquestionisaconfession,
(2)thatsuchconfessionhasbeenmadebytheaccused,
(3)thatithasbeenmadetoapersoninauthority,
(4)that the confession has been obtained by reason of any inducement, threat or promise,
proceedingfromapersoninauthority,
(5)suchinducement,threatorpromisemusthavereferencetothechargeagainttheaccused,and
(6)the inducement, threat or promise must in the opinion of the court be sufficient to give the
accusedground,whichwouldappeartohimreasonable,forsupposingthatbymakingithewould
gainanyadvantageoravoidanyevilofatemporalnatureinreferencetotheproceedingsagainst
him.
(A)Confession caused by inducement, threat or promise. The term of inducement involves a
threatofprosecutioniftheguiltisnotconfessedandapromiseofforgivenessifitissodone.Itis
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threatofprosecutioniftheguiltisnotconfessedandapromiseofforgivenessifitissodone.Itis
verydifficult,tolaydownanyhardandfastruleastowhatconstitutesinducement.Itisforthe
Judgetodecideineverycase.Beforeaconfessioncanbereceivedassuch,itmustbeshownthatit
was freely and voluntarily made. Thus it is clear that if threat or promise from a person in
authorityisusedingettingaconfessionitwillnotbetakenintoevidence.
(B)Threat, inducement and promise from a person in authority. The threat, inducement and
promiseonaccountofwhich,theaccusedadmitstheguiltmustcomefromapersonwhohasgot
some authority over the matter. It appears that a person in authority within the meaning of
Section 24 should be one who by virtue of his position wields some kind of influence over the
accused.
(C)Inducementmusthavereferencetothecharge.Theinducementmusthavereferencetothe
charge against the accused person, that is the charge of offence in the criminal courts and
inferencingthemindoftheaccusedwithrespecttotheescapefromthecharge.Theinducement
must have reference to escape from the charge. Mere exhortation to speak the truth in name of
Godcannotinitselfamounttoaninducement.
(D)Sufficiency of the inducement, threat or promise. Before a confession is excluded,
inducement,threatorpromisewouldintheopinionofthecourtbesufficienttogivetheaccused
persongroundwhichwouldappeartotheaccused(andnotthecourt)reasonableforsupposing
that by making the confession he would gain an advantage or avoid an evil of the nature of
contemplatedinthesection.Consequentlythementalityoftheaccusedhastobejudgedandnot
thatofthepersoninauthority.
Section 25. Confession to Police officer not to be proved. No confession made to a police
officer,shallbeprovedasagainstapersonaccusedofanyoffence.
The principle upon which the rejection of confession made by an accused to a police officer or
while in the custody of such officer is found is that a confession thus made or obtained is
untrustworthy.Thebroadgroundfornotadmittingconfessionsmadetoapoliceofficeristoavoid
thedangerofadmittingafalseconfession.Thepoliceofficerinordertosecureconvictioninacase
veryoftenputsthepersonsoarrestedtoseveretortureandmakeshimtoconfessaguiltwithout
having committed it and when such steps are taken there is impunity for the real offender and
greatencouragementtocrime.Section 25 lays down that no confession made to a police officer
shallbeprovedasagainstpersonaccusedofanoffence.
It must be borne in mind that Section 25 of the Evidence Act excludes only confessions. All
statementsthatdonotamounttoconfessionsarenotexcludedbySection25oftheEvidenceAct
andcanbebroughtonrecordandprovedagainstanyaccused.
Section26.Confessionbyaccusedwhileincustodyofpolicenottobeprovedagainsthim.No
confessionmadebyanypersonwhilstheisincustodyofapoliceofficer,unlessitbemadeinthe
immediatepresenceofaMagistrate,shallbeprovedasagainstsuchperson.
TheobjectofSection26oftheEvidenceActistopreventtheabuseoftheirpowerbythepolice,
and hence confessions made by accused persons while in custody of police cannot be proved
againstthemunlessmadeinpresenceofMagistrate.
Section 27. How much of information received from accused may be proved. Provided that,
whenanyfactisdeposedtoasdiscoveredinconsequenceofinformationreceivedfromaperson
accusedofanyoffence,inthecustodyofapoliceofficer,somuchofsuchinformation,whetherit
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accusedofanyoffence,inthecustodyofapoliceofficer,somuchofsuchinformation,whetherit
amountstoaconfessionornot,asrelatesdistinctlytothefacttherebydiscovered,maybeproved.
This section of the Act is founded on the principle that if the confession of the accused is
supported by the discovery of a fact then it may be presumed to be true and not to have been
extracted. This section based on the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the information was true and
accordinglycanbesafelyallowedtobegiveninevidence.Butclearlytheextentoftheinformation
admissiblemustdependontheexactnatureofthefactdiscoveredtowhichsuchinformationis
requiredtorelate.
Section26and27compared
Though the section is in the form of a proviso to Sec.26, these two sections do not deal with
evidenceofthesamecharacter.Section26bansconfessiontopolicealtogether,butS.27letsina
statement which leads to a crucial discovery whether it amounts to confession or not. Under
Section26aconfessionmadeinthepresenceofaMagistrateiswhollyprovable,whereasSection
27 permits only the part of the statement which leads to the discovery of fact. The scope of the
sectionwasexplainedbythePrivyCouncilinPulukariKotayav.Emperor.
A number of accused persons were prosecuted for rioting and murder. Some of them were
sentenced to death and some to transportation for life. They appealed to the Privy Council on
grounds,amongothers,thatthestatementsofsomeofthemwereadmittedinviolationofSection
26and27.Thestatementofoneofthemwas:About14daysagoI,Kottaya,andpeopleofmy
partylayinwaitforSivayyaandothers....WeallbeatSivayyaandSubayyatodeath.Ramayyawho
wasinourpartyreceivedblowsonhishands.Hehadaspearinhishands.Hegaveittomethen.I
hiditandmystickintherickofmyvillage.Iwillshowifyoucome.Wedidallthisattheinstance
ofPulukuriKottya.Anotheraccusedsaid:IstabbedSivayyawithaspear.Ihidthespearina
yard in my village. I will show you the place. The relevant articles were produced from their
respectiveplacesofhiding.
TheHighCourtadmittedthewholeoftheabovestatement.HighCourtheldthatunlessthewhole
of the statement is admitted, it would be difficult to connect the articles produced with the
offence,theonlyconnectinglinkbeingtheconfessionstatement.
ThePrivyCouncilpointedoutthatthecasewaswronglydecided.Theresultofthedecisionwasto
read in Section 27 something which is not there and admit in evidence a confession barred by
Section26.
ExplainingtherelationshipbetweenSection26and27andthebarimposedbySection26,their
Lordshipsaid:
That ban was presumably inspired by the fear of the Legislature that a person under police
influencemightbeinducedtoconfessbytheexerciseofunduepressure.Butifallthatisrequired
toliftthebanbetheinclusionintheconfessionofinformationrelatingtoanobjectsubsequently
produced,thebanwillloseitseffect.OnnormalprinciplesofconstructiontheirLordshipsthink
thattheprovisotoSection26addedbySection27,shouldnotbeheldtonullifythesubstanceof
thesection.IntheirLordship'sviewitisfallacioustotreatthefactdiscoveredasequivalentto
theobjectproducedthefactdiscoveredembracestheplacefromwhichtheobjectisproducedant
theknowledgeofaccusedastothis,andtheinformationgivenmustrelatedistinctlytothisfact.
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Informationastothepastuseoftheobjectproducedisnotrelatedtoitsdiscovery.Information
supplied by a person in custody that I will produce a knife concealed in the roof of my house
doesnotleadtothediscoveryofaknief.Itleadstothediscoveryofafactthataknifeisconcealed
inthehouseoftheinformanttohisknowledge,andiftheknifeisconcealedinthehouseofthe
informanttohisknowledge,andifthekniefisprovedtohavebeenusedinthecommissionofthe
offence, the fact discovered is very relevant. But if to the statement the words are added with
whichIstabbedAthesewordsareinadmissiblesincetheydonotrelatetothediscoveryofthe
kniefinthehouseoftheinformant.
Explainingthescopeofthesectioningeneralterms,theirLordshipsobserved:
Section27,whichisnotartisticallyworded,providesanexceptiontotheprohibitionimposedby
the preceding section, and enables certain statements made by a person in police custody to be
proved.Theconditionnecessarytobringthesectionintooperationisthatdiscoveryofafactin
consequenceofinformationreceivedfromapersonaccusedofanyoffenceinthecustodyofpolice
officermustbedeposedto,andthereuponsomuchoftheinformationasrelatesdistinctlytothe
facttherebydiscoveredmaybeproved.Thesectionseemstobebasedontheviewthatifafactis
actuallydiscoveredinconsequenceofinformationgiven,someguaranteeisaffordedtherebythat
theinformationwastrueandaccordinglycanbesafelyallowedtobegiveninevidence.Normally
thesectionisbroughtintooperationwhenapersoninpolicecustodyproducesfromsomeplaceof
concealmentsomeobject,suchas,adeadbody,aweaponorornaments,saidtobeconnectedwith
thecrimeofwhichtheinformantisaccused.
Referring to the facts of the case their Lordship held that the whole of statement except the
passage, I hid it(a spear) and my stick in the rick in the village. I will show if you come is
inadmissible.Referringtothestatementoftheotheraccused,thatIstabbedSivayyawithaspear.
Ihidthespearinayardofmyvillage.Iwillshowyoutheplace,theirLordshipsheldthatthefirst
sentencemustbeomitted.
InBodhRajv.StateofJ&K.itwasheldthatonlytheinformationthatdefinitelyrelatestothe
factsdiscoveredisadmissible.Buttheinformationshouldnotbetruncatedinsuchmannerasto
make it insensible. The information must be recorded. Where it is not recorded, the exact
informationmustbeadducedthroughevidence.
InStateofKarnatakav.DavidRazario,itwasheldthatthearticlesprovedtohavebeenstolenby
theaccusedwereofverysmallvalue,articlesofhighervalueremaineduntouchedinthehouseof
thedeceased,whetherthiscouldbeexculpatorycircumstanceinachargeofmurderwithrobbery,
orwhethersuchevidencecouldbesolebasisofconviction,questionleftunanswered.
InPandurangKaluPatilv.StateofMaharashtra,itwasheldthatwheretheaccuseddisclosed:I
have kept the firearm concerned behind the old house under a heap of wood. The same was
recoveredfromtheplace.Thecourtsaidthatthefactdiscoveredwasnotthegunbutthefactthat
theaccusedhadconcealeditattheplacefromwhereitwasfoundaccordingtohisdisclosure.
Section28providesthatifthereisinducement,threatorpromisegiventotheaccusedinorderto
obtainconfessionofguiltfromhimbuttheconfessionismadeaftertheimpressioncausedbyany
such inducement, threat or promise has, in the opinion of the court, been fully removed, the
confessionwillberelevantbecauseitbecomespreandvoluntary.Itmustbeborneinmindthat
theremustbestrongandcogentevidencethattheinfluenceoftheinducementhasreallyceased.
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theremustbestrongandcogentevidencethattheinfluenceoftheinducementhasreallyceased.
Section29laysdownthatifaconfessionisrelevant,thatisifitisnotexcludedfrombeingproved
by any other provisions of Indian Evidence Act, it cannot be irrelevant if it was taken from the
accusedby(1)givinghimpromiseofsecrecy,or(2)bydeceivinghim,or(3)whenhewasdrunk,
or (4) because it was made clear in answer to question which he need not have answered, or
becausenowarningwasgiventhathewasnotboundtosayanythingandthatwhateverhewillbe
usedagainsthim.
Section 29 lays down that if a confession is not excluded by section 24.25 or 29 it will not be
excludedonthegroundofthepromiseofsecrecyorofdeceptionorofbeingdrunk,orforbeing
madeinanswertoquestionorwithoutthatitwillbeusedagainsthiminevidence.

DYINGDECLARATION
Section32.Casesinwhichstatementsofrelevantfactbypersonwhoisdeadorcannotbefound
etc.isrelevant.Statementwrittenorverbal,orrelevantfactsmadebyapersonwhoisdead,or
who cannot be found, or who has become incapable of giving evidence, or whose attendance
cannotbeprocuredwithoutanamountofdelayorexpensewhich,underthecircumstanceofthe
caseappearstotheCourtunreasonable,arethemselvesrelevantfactsinthefollowingcases:
(1)Whenitrelatestocauseofdeath.Whenthestatementismadebyapersonastothecauseof
hisdeath,orastoanyofthecircumstancesofthetransactionwhichresultedinhisdeath,incases
inwhichthecauseofthatperson'sdeathcomesintoquestion.
Such statements are relevant whether the person who made them was or was not, at the time
when they were made, under expectation of death, and whatever may be the nature of the
proceedinginwhichthecauseofhisdeathcomesintoquestion.
Illustration
(a)ThequestioniswhetherAwasmurderedbyBor
Adiesofinjuriesreceivednatransactioninthecourseofwhichshewasravished.Thequestionis,
whethershewasravishedbyBor
Thequestionis,whetherAwaskilledbyBundersuchcircumstancesthatasuitwoldlieagainstB
byA'swidow.
Statements made by A as to cause of his or her death, referring respectively to the murder, the
rapeandtheactionablewrongunderconsiderationarerelevantfacts.
Dying Declaration is admissible in evidence being a hearsay evidence. This piece of hearsay
evidenceisadmissibleasanexceptiontothegeneralruleofevidencethathearsayevidenceisno
evidenceineyeoflawanditshouldbediscardedasgeneralrulebecausetheevidenceinallcases
mustbedirect.
RequirementsofSection32.
The section is one of those3 provisions that provide exceptions to the principle of excluding
hearsayevidence.Theprincipleofthesectionisthatapersonwhohasthefirsthandknowledgeof
thefactsofacase,butwho,forreasonsstatedinthesection,suchasdeathordisability,isnotable
toappearbeforethecourt,thenhisknowledgeshouldbetransmittedtothecourtthroughsome
otherpersons.
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otherpersons.
DyingDeclarationorstatementsrelatingtocauseofdeath
Suchastatementcanbeprovedwhenitismadebyapersonastothecauseofhisdeath,orasto
any of the circumstances of the transaction which resulted in his death. The statement will be
relevantineverycaseorproceedinginwhichthecauseofthatperson'sdeathcomesintoquestion.
Theclausefurthergoesontosaythatsuchstatementsarerelevantwhetherthepersonwhomade
themwasorwasnot,atthetimewhentheyweremade,underexpectationofdeathandwhatever
maybethenatureoftheproceedinginwhichthecauseofdeathcomesintoquestion.
TheclauseincorporatestheprincipleofEnglishlawrelatingtowhatarepopularlyknownasdying
declarationsbutmarksaremarkabledeparturefromthem.
DyingdeclarationinEnglishLaw
A'dyingdeclaration'meansthestatementofapersonwhohasdiedexplainingthecircumstances
of his death. According to English law the statement is relevant only when the charge is that of
murderofmanslaughter.
The basis of the rule as to dying declaration was explained in the early case of R v. Woodcock :
explainedthegeneralprinciple:
Thegeneralprincipleonwhichthisspeciesofevidenceisadmittedis,thattheyaredeclarations
madeinextremity,whenthepartyisatthepointofdeath,andwheneveryhopeofthisworldis
gonewheneverymotiveoffalsehoodissilenced,andthemindisinducedbythemostpowerful
considerationstospeakthetruth.
Whiletheprinciplestatedinthiscaserelatingtothebasisonwhichdyingdeclarationsaregiven
credit has been approved, the subsequent cases quite clearly emphasise that declarations made
withoutappreciationofimpendingdeathwouldnotbeadmitted.
TheSupremeCourtinitsdecisioninP.V.Radhakrishnav.StateofKarnataka,notedthisinthe
followingwords:Theprincipleonwhichadyingdeclarationisadmittedinevidenceisindicated
inLatinmaxim,nemomoriturusproesumiturmentiri,amanwillnotmeethismakerwithaliein
his mouth. Explaining the word immediate which was inserted by his Lordship said :
Immediate death must be construed in the sense of death impending, not on that instant, but
withinavery,veryshortdistanceindeed.Inotherwords,thetestiswhetherallhopeoflifehas
been abandoned so that the person making the statement thinks that death must follow.
Applying this principle to the facts, his Lordship held that the words I shall go should not be
takenaloneanttheeffectofthewholesentencewasthatshewasunderthehopelessexpectation
ofdeath.
An attempt was made in Kusa v. State of Orissa, before the Supreme Court to exclude a
declarationonthegroundofincompleteness.Thestatementwasrecordedbyadoctor.Itwasclear
inallrespects.Towindupthestatementthedoctoraskedtheinjuredifhehadanythingelseto
say. He lapsed into unconsciousness without answering this question. The court held that the
statementwasnotincomplete.Itwasrightlyadmitted.
Dyingdeclarationunderclause(1)ofs.32
Anticipationofdeathnotnecessary
OneofthemostimportantdeparturesfromEnglishlawthattheEvidenceActmarksisthathereit
isnotnecessarythatthedeclarantshouldbeunderanyexpectationofdeath.Ifthedeclaranthas
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in fact died and the statement explains the circumstances surrounding his death, the statement
willberelevantevenifnocauseofdeathhadarisenatthetimeofthemakingofthestatement.
The statutory authority is S.32(1) itself and the Judicial authority is the leading decision of the
Privy Council in Pakala Narayan Swami v. Emperor. The accused was convicted of murder and
sentenced to death. The evidence against him was, firstly,his indebtedness to the deceased,
secondly,thestatementofthedeceasedofhiswifethathewasgoingtotheaccused,thirdly,the
steeltrunkwaspurchasedbyaDhobie(washerman)forandonbehalfoftheaccused.Someother
detailsaboutthearrivalofthedeceasedattheaccused'shouse,discoveryofbloodstainedclothes
andtransportationofthetrunkofthestationwerealsoproved.TheaccusedappealedtothePrivy
Council on the grounds that the statement of the deceased to his wife that he was going to the
accused was wrongly admitted under S.32(1). The court said, A variety of questions has been
mooted in the Indian Courts as to the effect of this section. It has been suggested that the
statementmakingitmustbeatanyrateneardeath,thatthecircumstancescanonlyincludeacts
done when and where the death was caused.... Statements made by the deceased that he was
proceedingtothespotwherehewasinfactkilled,orastohisreasonsforsoproceeding,orthathe
was going to meet a particular person or that he had been invited by such person to meet him,
wouldeachtothembecircumstancesofthetransaction,andwouldbesowhetherthepersonwas
unknown, or was not the person accused. Such a Statement might indeed be exculpatory of the
personaccused.
TheSupremeCourthasemphasisedtheneedforeffortbycourts,asfaraspossible,toincludea
statementwithinthescopeoftheS.32(1).Hence,statementsastoanyofthecircumstancesofthe
transactionwhichresultedinthedeathwouldbeincluded.
StatementofaccusedunderS.162Cr.P.C.
Butthestatementoftheaccusedtothepolicethatthedeceasedarrivedathisplacewasheldtobe
not relevant by virtue of Sec.162 of Cr.P.C. This section provides that a statement made by any
person to a police officer in the course of an investigation cannot be used against him in any
inquiryortrial.
Proximityoftimebetweenstatementanddeath
Therehastobeproximaterelationshipbetweenthestatementandthecircumstancesofdeath.In
RattanSinghv.H.P.thestatementofawomanmadebeforetheoccurrenceinwhichshedidthat
the accused was standing near her with a gun in his hand and this fact being one of the
circumstancesofthetransactionwasheldtobeadmissibleasadyingdeclarationbeingproximate
inpointoftimeandspacetothehappening.
AcceptanceofPakalarulingbySupemeCourt
Theprinciplesthuslaiddownrelatingtotherelevancyofadyingdeclarationwereacceptedbythe
SupremeCourtinKaushalRaov.StateofBombay.Thereweretworivalfactionsofworkersina
millarea in Nagpur. Rival factions even attacked each other with violence. In one such violent
attackoneBabooLalwasattackedeachotherwithviolence.InonesuchviolentattackoneBaboo
Lalwasinflictedanumberofwoundsinastreetatabout9p.m.Hewastakentoahospitalbyhis
fatherandothersreachingthereat9.25.Onthewayhetoldthepartythathewasattackedbyfour
personswithswordsandspearstwoofwhomheidentifiedasKaushalandTukaram.Thedoctor
inattendanceimmediatelyquestionedhimandrecordedhisstatementinwhichherepeatedthe
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inattendanceimmediatelyquestionedhimandrecordedhisstatementinwhichherepeatedthe
above two names. A subInspector also questioned him and noted his statement to the same
effect.By11.35p.m.Amagistratealsoappearedandafterthedoctorhadcertifiedthattheinjured
was in a fit condition to make the statement, the magistrate recorded the statement which was
againtothesameeffect.Hediedthenextmorning.
Onthebasisofthesedeclarationsrecordedinquicksuccessionbyindependentandresponsible
public servants and as corroborated by the fact that both the named persons were absconding
before they were arrested, the trial judge sentenced Kaushal to death and Tukaram to life
imprisonment.TheHighCourtacquittedTukaramaltogetherbecauseoftheconfusioncausedby
thefactthatinthedyingdeclarationhewasdescribedasateli,whereasTukarampresentbefore
the court was a kohli and in the same locality there lived four persons bearing the same name
some of whom were telis. But the conviction of Kaushal was maintained and on appeal, the
SupremeCourtalsoaffirmedtheconviction,didnotconsiderittobeabsoluteruleoflawthata
dying declaration must be corroborated by other evidence before it can be acted upon. The
learnedjudgehadtofacethefollowingobservationoftheSupremeCourtitself.
It is settled law that it is not safe to convict an accused person on the evidence furnished by a
dying declaration without further corroboration because such a statement is not made on oath
and is not subjected to cross examination and because the maker of it might be mentally and
physicallyinasateofconfusion.
NeedforCorroboration
The learned judge referred to the circumstances which may detract from the value of a dying
declaration,suchasthefactthatitwasnotmadeattheearliestopportunity,orthatthestatement
wasputintothemouthofthewitnessbyinterestedpartiesorwastheresultofleadingquestions,
andaddedthatsubjecttothesequalificationsthereisnoabsoluteruleoflaw,orevenaruleof
prudence,thatadyingdeclarationunlesscorroboratedbyotherindependentevidence,isnotfitto
beacteduponandmadethebasisofaconviction.
InP.V.Radhakrishnav.StateofKarnataka,emphasingthispointfurtherstilltheSupremeCourt
observedthatadyingdeclarationcanbeusedasasolebasisofconviction.Apersonondeathbed
isinapositionsosolemnandserenethatitisequaltotheobligationunderoath.Forthisreason
the requirement of oath and crossexamination are dispensed with. The victim(declarant)being
theonlyeyewitness,theexclusionofhisdeclarationmaydefeattheendsofjustice.Thecourthas
tobeonitsguardandseeforitselfthatthedeclarationisvoluntaryandseemstoreflectthetruth.
Wheretherearemorethanonedyingdeclaration
In Kishan Lal v. State of Rajasthan the oral dying declaration was made her(deceased) to her
father,uncleandgrandfather.Namesoftheaccusedmentionedtherein.However she could not
mentionthenameofaccusedinseconddyingdeclarationmadebeforemagistrate5daysafteron
thegroundthatshecouldnotrecogniseanyaccusedbecauseoffiredarknesscomingtohereyes.
Seconddyingdeclarationnotonlygivingtoconflictingversionbuttherewasintersediscrepancy
indepositionofwitnessgiveninsupportofdyingdeclarationitwasheldbySupremeCourtthat
the conviction based on such conflicting and discrepant dying declaration was liable to be set
aside.
SomeGeneralPropositions:Factorsinreliability
TheCourtlaiddownthefollowinggeneralpropositions:
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TheCourtlaiddownthefollowinggeneralpropositions:
1.Thereisnoabsoluteruleoflawthatadyingdeclarationcannotbethesolebasisofconviction
unlesscorroborated.
2.Eachcasemustgobyitsownfacts.
3.Adyingdeclarationisnotaweakerkindofevidencethananyotherpieceofevidence.
4.Adyingdeclarationwhichhasbeenproperlyrecordedbyacompetentmagistrate,thatistosay,
inforofquestionsandanswers,and,asfaraspracticableinwordsofthemakerofdeclarationof
reliable. In State of Karnataka v. Shariff, where the dying declaration was not recorded in
questionanswerfrom,itwasheldthatitcouldnotbediscardedforthatreasonalone.Astatement
recordedinhenarrativemaybemorenaturalbecauseitmaygivetheversionoftheincidentas
perceivedbythevictim.
5.Totestthereliabilityofadyingdeclaration,thecourthastokeepinviewthecircumstanceslike
theopportunityofthedyingmanofobservation,forexample,whethertherewassufficientlightif
thecrimewascommittedatnightwhetherthecapacityofthedeclarantwasnotimpairedatthe
timeofthestatement,thatthestatementhasbeenconsistentthroughoutthatthestatementhas
beenmadeattheearliestopportunityandwasnottheresultoftutoringbyinterestedparties.The
statement of the deceased in this case satisfied all these conditions and therefore, the Supreme
CourtheldthatitwasrightlyacteduponbytheHighcourtinconvictingtheappellant.
Whereforsomeunexplainedreasonthepersonwhonoteddown(scribe)thestatementwasnot
produced,thedeclarationwasnotacceptedasanevidence.
Statementmadetoorimplicatingrelatives
The Supreme Court laid down in a case that a dying declaration made to the relatives of the
deceased,whenproperlyprovedcanalsobetrusted.
F.I.R.Asdyingdeclarationsandstatementsrecordedbypolice
Where an injured person lodged the F.I.R. And then died, it was held to be relevant as a dying
declaration.AdeclarationnoteddownbyanAssistantSubInspectorevenbeforeanyF.I.R.Was
lodgedwasheldbytheSupremeCourttobeacceptable.Inthecircumstancesofthecase,thecourt
wasnotabletofindanyfaultintheA.S.I.Innotgettingthestatementrecordedbyamagistrate.
Therewasalsonoreasontodoubtthecorrectnessandauthenticityofthedyingdeclaration.There
is a clear provision in S. 162(2) of the Cr.P.C. Saving the validity of such statements. Thus
technically, a dying declaration recorded by police alone is relevant both under S.32(1) and by
virtueofthesavingofsuchstatementunderS.162(2)oftheCr.P.C.butevensotheSupremeCourt
had laid down that it is better to leave such a statement out of consideration unless the
prosecutionsatisfiesthecourtastowhyitwasnotrecordedbyamagistrateoradoctor.
InStateofKarnatakav.Shariff,theSupremeCourtobservedthatadyingdeclarationrecordedby
police cannot be discarded on the ground alone. There is no requirement of law that a dying
declarationmustnecessarilymadetoamagistrate.

PRESUMPTIONOFFACTS
Sec114.Courtmaypresumeexistenceofcertainfacts.TheCourtmaypresumetheexistence
of any fact which it thinks likely to have happened, regard being had to the common course of
naturalevents,humanconductandpublicandprivatebusiness,intheirrelationtothefactsofthe
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naturalevents,humanconductandpublicandprivatebusiness,intheirrelationtothefactsofthe
particularcase.
Illustrations
TheCourtmaypresume.
(a)thatamanwhoisinpossessionofstolengoodssoonafterthetheftiseitherthethieforhas
receivedthegoodsknowingthemtobestolenunlesshecanaccountforhispossession.
But the Court shall also have regard to such facts as the following, in considering whether such
maximsdoordonotapplytotheparticularcarebeforeit
as to illustration (a) a shopkeeper has in his till a marked rupee soon after it was stolen, and
cannotaccountforitspossessionspecificallybutiscontinuallyreceivingrupeeinthecourseofhis
business.
Presumption,meaningof.Apresumptionisaruleoflawthatattachesdefiniteprobativevalue
tospecificfactsordirectsthataparticularinferenceastoexistenceofonefactnotactuallyknown
shall be drawn from a fact which is known and proved. It furnishes prima ficie evidence of the
matter of which it relates and relieves the party of the duty of presenting evidence until his
opponent has introduced evidence to rubut the presumption. It raises such a high degree of
probabilityinitsfavourthatitmustprevailunlessclearlymetandexplained.Presumptionshold
thefieldintheabsenceofevidenceunlessclearlymetandexplained.Presumptionholdthefiled
in the absence of evidence but when facts appear presumptions go back. Presumptions may be
eitheroflaworfactandwhenoflawmaybeeitherconclusiveorrebuttablebutwhenoffactare
alwaysrebuttable.Mixedpresumptionarethosewhicharepartlyoflawandpartlyoffact.
Court may presume the existence of certain facts. If a fact is likely to have happen in the
common course of natural events according to general human conduct, according to public and
private business, in their relation to the facts of the particular case, the court may presume the
existenceofsuchfact.Thissectiongivesthecourtsverywidepower.Ifafactmusthappeninthe
ordinary course of events the court may presume it and the party denying its existence has to
rebutit.
In a criminal case the burden of proof always lies on the prosecution, for the accused is to be
presumedtobeinnocent.Theillustration(a)isanexceptiontothisgeneralrule.Thisillustration
laysdownthatassoonasitithasbeenestablishedthattheprisonerwasfoundinpossessionof
stolen goods shortly after they were stolen, it may be presumed that he is, either a thief or has
receivedthegoodsknowingthemtobestolen,unlesshecanaccountforhispossession.
Thepresumptionpermittedbyillustation(a)doesnotariseuntiltheprosecutionhasestablished
thefollowingfacts:
(1) The ownership of the article. Before a presumption may be raised under illustration (a)
againstanaccusedtotheeffectthatheisathieforhasreceivedanarticleknowingittobestolen,
itmustbeprovedthatthearticlewhichwasrecoveredfromhispossession,belongedtosomebody
elseandwasinhispossessionsometimesback.
(2)Thecommissionoftheft.Thesecondingredienttobeprovedbytheprosecutioninorderto
giverisetoapresumptionunderillustration(a)istheproofoftheftofthearticlerecoveredfrom
thepossessionoftheaccused.Theprosecutionmustprovethatatheftwascommittedinrespect
ofthepropertyrecoveredfromthepossessionoftheaccused.
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ofthepropertyrecoveredfromthepossessionoftheaccused.
InthecaseofUnionTerritoryofGoav.B.D.D'Souzaandothers,theaccusedwasunabletogive
any evidence about the stolen things. The presumption can be made under Section 114. The
accused were guilty under Section 411, I.P.C. But from the fact that the stolen article was
recoveredfromtheaccusedafteronemonthoftheft,itshallnotbepresumedthattheaccusedhad
committedmurder.
(3) Recent Possession. Mere recovery of stolen property from the possession of accused does
not give rise to presumption under illustration (a). For presumption under illustration (a) the
possessionmustberecent.Thepresumptionpermittedtobedrawnundersection114,illustration
(a)hastobereadalongwiththeimportanttimefactor.Ifarticlearefoundinthepossessionofa
personsoonafterthetheft,presumptionofguiltmaybepermitted.Butifathingisrecoveredlong
afternopresumptioncanbedrawn.
Whetherthepossessionisrecentornotmustbedeterminedbythenatureofthearticlesstolen.If
the article is of a nature likely to pass from hand to hand, the periods elapsed between the
committing of theft and the recovery must be very short. If the period is not very short no
presumptioncanberaisedthatthepersoninpossessionisathief,orthathereceivedthearticle
knowingittobestolen.Butifthearticleisofsuchanaturethatitcannotchangehandseasilya
longer period may be taken to be recent. In such cases the prosecution has to prove that the
accusedstoleawaythearticlehimselforhereceiveditknowingittobestolen.
(4)Possessionmustbeexclusive.Inordertoraisethepresumptionlegitimatelythepossession
ofstolenpropertyshouldbeexclusiveaswellasrecent.Findingofitonthepersonoftheaccused
or in a locked up house in a room or in a box of which he kept and the key of which he was in
exclusive possession would be a fair ground fro raising the presumption under this illustration
but if the articles stolen were only found in house or in a room in which he lived jointly with
othersorinanopenboxtowhichothershaveaccess,nodefinitepresumptionofhisguiltcouldbe
made.
InTrimbakv.StateofM.P.,courtobservedthat,whenthefiledfromwhichtheornamentswere
recoveredwasanopenone,andaccessibletoallandsundry,itisdifficulttoholdpositivelythat
theaccusedwasinpossessionofthesearticles.Thefactofrecoverybytheaccusediscompatible
with the circumstance of somebody else having placed the articles there and of the accused
somehow acquiring knowledge about their hereabouts and that being so, the fact of discovery
cannotberegardedasconclusiveproofthattheaccusedwasinpossessionofthesearticles.
Convictionforoffencesotherthantheftonrecovery.
InNagappaDondibav.StateofKarnatakaItwasheldthattherecoveryofornamentsofdeceased
which she was wearing before the murder, at the information of accused cannot connect the
accused with murder unless some evidence to connect him with murder. No presumption of
murdercanbedrawnunderillustration(a)
Presumptionofmurderbyrecoveryofarticleofdeceased.InWasimKhanv.StateofU.P.,the
question as to whether presumption should be drawn under section 114(a) is a matter which
depends on the evidence and circumstances of each case. The nature of recovery, the matter of
theiracquisitionbytheowner,themannerinwhichthearticleweredealtwithbytheaccused,the
placeofrecovery,thelengthofperiodofrecovery,theexplanationoftheaccusedorsomeofthem.
A recent and explained possession of stolen articles of deceased can be well be basis of

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A recent and explained possession of stolen articles of deceased can be well be basis of
presumptionofmurder.
Accused'sExplanation.
Thefollowingpropositionregardingtheburdenofprooftocriminaltrialmaybededucedfromthe
decided cases. (1) That in a criminal trial the onus of proving the main issue is always on the
prosecution, (2) that under illustration (a) to this section the Court may, but is not obliged to
make the presumption therein mentioned, (3) that even if the Court makes the presumption
underillustration(a)theonusofthegeneralissueisstillontheprosecution,(4)thatitisnotthe
lawthatiftheaccusedfailstoaccountforhispossessionofthegoodsallegedtobestolen,hemust
be convicted, if the other proved facts of the case do not prove his guilt, (5) that the accused is
entitledtoacquittalifhecangiveexplanationwhichwerereasonablytruealthoughthecourtmay
not be convinced of its truth. (6) that the accused is not required to prove his explanation by
adducing evidence, (7) that the accused need not give any explanation unless he is asked to
accountforhispossession.

ACCOMPLICEEVIDENCE
Anaccomplicemeansapersonwhohastakenpartinthecommissionofacrime.Whenanoffence
iscommittedbymorethanonepersoninconcert,everyoneparticipatinginitscommissionisan
accomplice.Conspiratorslaytheirplotinsecret,theyexecuteitruthlesslyanddonotleavemuch
evidencebehind.Often, therefore, the police has to select one of them for the purpose of being
convertedintoawitness.Heispardonedsubjecttotheconditionthathewillgiveevidenceagainst
his former partners in the crime. He is then known as an accomplice, turned witness or an
approver.Heappearsasawitnessfortheprosecutionagainsttheaccusedpersonwithwhomhe
acted together in the commission of the crime. The question is, to what extent his evidence or
testimonycanbereliedupontoconvicthisformerassociates.Whatisthevalueofevidenceofa
formercriminalturnedwitness?
Two provisions in the Act touch this problem. Section 133 categorically declares that an
accompliceisacompetentwitnessandtheCourtmayconvictonthebasisofsuchevidenceand
theconvictionwillnotbeillegalsimplybecauseitproceedsupontheuncorroboratedtestimonyof
anaccomplice.The other dealing with the matter is in the illustration (b) to section 114, which
saysthatthecourtmaypresumethatanaccompliceisunworthyofcreditunlesscorroboratedin
materialparticulars.Theseprovisionsshouldfirstbereproduced.
S.133.Accomplice.Anaccompliceshallbeacompetentwitnessagainstanaccusedpersonand
a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice.
S.114.Illustration(B).Thecourtmaypresumethatanaccompliceisunowrthyofcredit,unless
heiscorroboratedinmaterialparticulars.
Theapparentcontradictionbetweenthesetwodeclarationsshouldfirstberesolved.Section133is
aclearauthorisationtothecourtstoconvictontheuncorroboratedtestimonyofanaccomplice,
but since such a witness, being criminal himself, may not always be trustworthy, the court are
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but since such a witness, being criminal himself, may not always be trustworthy, the court are
guidedbytheillustrationappendedtoSection114that,ifitisnecessarythecourtshouldpresume
thatheisunreliableunlesshisstatementaresupportedorverifiedbysomeindependentevidence.
CategoriesofAccomplices.
Inordertobeanaccomplice,apersonmustparticipateinthecommissionofthesamecrime.This
participation may be done in various ways. The modes of taking part with a crime are treated
undertheheadof:
(1)Principalsinthefirstandseconddegree.Aprincipalofthefirstdegreeisonewhoactually
commitsthecrime.Aprincipaloftheseconddegreeisapersonwhoispresentandassistsinthe
perpetrationofthecrime.Thesepersonsareundoubtedlyunderallthecircumstancesaccomplice.
(2) Accessories before the facts. 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,encourageorprocurethecommissionofthecrimearecertainlyaccomplices.
(3) Accessories after the fact. Every person is an accessory after the fact to a felony, who
knowingthatafelonyhasbeencommittedbyanotherpersonreceives,comfortsorassistshimin
order to escape from punishment or rescues him from arrest, or having him in custody for the
felony,intentionallyandvoluntarilyallowshimtoescape,oropposeshisarrest.Threeconditions
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
harbourorassisttheprincipalfelon.
CorroborationasRuleofCaution
Once it is determined that the person who has appeared as a witness in fact an accomplice, the
questionthenarisesastowhatvalueistobeattachedtohisevidence,namely,whetheritshould
be acted uponinitself or some independent verification should be thought of his statements.It
hasbeenobservedfromtheearliesttimesasaruleofcautionwhichhasnowbecomevirtuallya
ruleorlaw,thattheevidenceofanaccompliceshouldstandthetestofverificationatleastinmain
points.Thisisknownascorroboration.
Thereasonswhycorroborationhasbeenconsiderednecessaryarethat:
(1)hehasbeencriminalhimself,and,therefore,histestimonyshouldnotcarrythesamerespect
asthatofalawabidingcitizen.
(2) he has been faithless to his companions and may be faithless to the court because he has
motivetoshifttheguiltfromhimselftohisformercompanions,and
(3) if he is an approver, he has been favoured by the State and is therefore, likely to favour the
state.
Thesereasonsdictatethenecessityforcorroboration.
Once corroboration in material particulars is found, the testimony of an accomplice can be the
basisofconviction.
The meaning and nature and extent of corroboration were explained by the court of Criminal
AppealsinRv.Baskerville:
Thecaseinvolvedanindecentassaultupontwoyoungboyswiththeirconsentattheresidenceof
theaccused.Thus both the boys were accomplices. The only way to corroborate the evidence of
one was to refer to the statement of the other. Should the evidence of one accomplice be
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one was to refer to the statement of the other.
Should the evidence of one accomplice be
corroboratedwiththeevidenceofanotheraccomplice.Thecourtheldthatthegeneralprincipleis
againstit.
In Bhuboni Sahu v. The Emp., eight persons were prosecuted for a murder four of them were
acquitted.Oftheremaining,oneappealedtothePrivyCouncil.Theevidenceagainsttheappellant
consistedof(a)evidenceofanaccomplicewhohadtakenpartinthemurderandhadbecomean
approver,(b)theconfessionofanotheraccusedpersonimplicatinghimselfandtheappellant,and
the recovery of a cloth which the deceased was wearing and a Khantibadi in circumstances
whichweretakentoverifytheevidenceoftheaccomplice
Theappellantwasacquittedbythecourt.TheCourtObserved:ThecombineeffectofSection133
and114,Illustration(b)maybestatedasfollow:
Accordingtotheformerwhichisaruleoflawanaccompliceiscompetenttogiveevidenceand
according to the latter which is a rule of practice is almost always unsafe to convict upon his
testimonyalone.Thereforethoughtheconvictionofanaccusedonthetestimonyofanaccomplice
cannotbesaidtobeillegalyetthecourtwill,asamatterofpractice,notaccepttheevidenceof
suchawitnesswithoutcorroborationinmaterialparticular.Thelawmaybestatedinthewordsas
inRv.Baskerville.
Thereisnodoubtthattheuncorroboratedevidenceofanaccompliceisadmissioninlaw.Butit
has been long a rule of practice at common law for the Judge to warn the jury of the danger of
convicting and in the prisoner on the uncorroborated testimony of an accomplice, and in the
discretionoftheJudge,toadvisethemnottoconvictuponsuchevidence,buttheJudgeshould
pointouttothejurythatiswithintheirlegalprovincetoconvictuponsuchunconfirmedevidence.
InNarayanChetanramChaudharyv.StateofMaharashtra,accusedcommittedoffenceofrobbery
andmurder.Alldeaths,exceptofachild,werecausedbytheA1,childwaskilledbyA2.Raju,PW
2activelyparticipatedandfacilitatedthecommissionofthecrime.Themurderswereapparently
committed to wipe out all evidence of robbery and committed by the accused persons. Accused
werearrestedfromdifferentplaces.Intheidentificationparadestheywereidentifiedbyvarious
witnesses. After the commitment but before the commencement of the trial Raju expressed his
wishtomakeaconfessionalstatement.Thetrialcourtacceptedtheapplication.TheaccusedRaju
wastenderedpardonontheconditionthatheshallmakeafullandtruedisclosureofthewholeof
the circumstances within his knowledge relating to the offence. High Court also accepted the
reference.
Thelearnedcounselfortheappellantsarguedthatasthestatementoftheapproverwasrecorded
afteranunexplainedprolongeddelay,thesamecouldnotbemadethebasisforconvictionofthe
accused. To this it was held that, Otherwise the words of the section at any time after
commitmentofthecasebutbeforejudgmentispassedareclearlyindicativeofthelegalposition
whichthelegislatureintended.Notimelimitisprovidedforrecordingsuchastatementanddelay
oneofthecircumstancestobekeepinmindasameasureofcautionforappreciatingtheevidence
of the accomplice. Human mind cannot be expected to be reacting in a similar manner under
differentsituations.Any person accused of an offence, may, at any time before the judgment is
pronounced,repentforhisactionandvolunteertodisclosethetruthinthecourt.Repentanceisa
condition of mind differing from person to person and from situation. Court, therefore, do not
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findanysubstancenthesubmissionsofthelearneddefencecounselthatasthestatementofthe
approverwasrecordedafterprolongeddelay,noreliancecouldbeplaceduponit.
Learnedcounselfurthercontendedthatconvictionbasedupontheuncorroboratedtestimonyof
the approver is neither safe nor proper particularly in a case where extreme penalty of death is
awarded.TheCourtsaidaftermakingreferencetoBhuboniSahuv.R.Rv.Bashervilleetc.the
courtsaidthatWehaveminutelyscrutinizedtheevidenceofPW2andthecorroborativeevidence
noticedbyboththattrialcourtaswellasHighCourtandfindnosubstanceinthesubmissionof
the learned counsel for the appellants that the testimony of PW 2 is vivid in explanation and
inspiresfullconfidenceofthecourttopasstheconvictionontheappellantsfortheoffenceswith
whichtheywerecharged.Thecorroborativeevidencetotheaforesaidstatementleavenodoubtin
themindofthecourtregardingtheinvolvementoftheappellantsinthecommissionofthecrime
forwhichtheyhavebeenconvictedandsentenced.
Natureandextentofcorroborations
Astothenatureandextentofcorroborationrequired,citedtheopinioninR.v.Stubbs,namely,
thattheevidenceofanaccomplicemustbeconfirmednotonlyasthecircumstancesofthecrime,
butalsoastotheidentityoftheprisoner.
CorroborationinRapeCases
The case is not directly on the subject of accomplice, but is on the point of corroboration.
Corroborationisacommonpointbetweenthevictimofrapeandanaccomplicebecausethrough
the woman who has been raped is not an accomplice, but her evidence has been treated by the
courtsonsomewhatsimilarline.Herevidencerequirescorroborationthesamewayasthatofan
accomplice.
RELEVANCYOFTHETAPERECORDEDCONVERSATION

Meaningofdocumentaryevidence
Theexpressiondocumentaryevidence,asitisdefinedinsection3,means:
Alldocumentsproducedfortheinspectionofthecourtsuchdocumentsarecalleddocumentary
evidence.
Theexpressiondocumentisdefinedinsection3asfollows:
Document means any mater expressed or described upon any substance by means of letters,
figuresormarks,orbymorethanoneofthosemeans,intendedtobeused,orwhichmaybeused,
forthepurposeofrecordingthatmatter.
Admissibility of Tape Recording. Tape recorded conversion is admissible. Tape recording is
document as defined in Section 3 of Evidence Act which stood on no different footing than
Photograph.Theyarerelevantonsatisfyingthefollowingcondition:
(i)Thevoiceofthepersonallegedtobespeakingmustbeidentifiedbythemakeroftherecordor
byotherwhoknowit.
(ii) Accuracy of what was actually recorded had to be proved by maker of the record, and
satisfactory evidence, direct or circumstantial,had to be there so as to rule out the possibility of
tamperingwiththerecord,
(iii) The subject matter recorded had to be shown to be relevant according to the rules of
relevancyintheEvidenceAct.
RecordedTapes
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RecordedTapes
With regard to the relevancy of a recorded tape, it has been said that there is no reason in
principle why the recording in some permanent or semipermanent manner of human voice (or
other sounds) which are relevant to the issue to be determined, provided that it furnishes
information, cannot be a document. They become media of communication as superior
substituteforwords.IthasbeenobservedinanAustraliancase:
If it should be established by oral evidence that there was a mechanical electronic recorder in
operation at a material time which was capable of and did record accurately sounds as they
occurred, and other oral evidence of identification, and noninterference, it appears that the
materialcontainingsuchrecordingisproperlyadmissibleinevidence.Thereisnodistinctionin
principlefromthereceptionintoevidenceofaphotographofastreetaccidenttakenatthetimeof
itsoccurrencewhichissworntobyaneyewitnessasbeingatruerepresentationofthesceneat
therelevanttime.Inthatcaselightwaves,andinthecaseofarecording,soundwaves,havebeen
capturedandpreservedbyscientificmeans.
These principles have generally been followed by the Supreme Court of India. Tape recorded
conversationscamebeforetheSupremecourtmostlyincasesinvolvingcorruptionbyofficialsin
receivingorattemptingtoreceivebribes.OnesuchcaseisR.M.Malkaniv.StateofMaharashtra.
The accused, who appealed to the Supreme court against his conviction, was the coroner of
Bombay. A doctor, who was running a nursing home, operated upon a patient who afterwords
died.It,beingapostoperationdeath,becamethsubjectofpostmortemandinquest.Thecoroner
persuadedthedoctortopayhimasumofmoneyifhewantedthereporttobefavourabletohim.
The payment was arranged to be made through another doctor and the final meeting for this
purpose was to be settled by telephone call from the house of the other doctor. The police
commissionerwascalledwiththetaperecordingmechanism.Thiswasconnectedtothedoctor's
telephone and thus the most incriminating conversation was recorded in the presence of the
policeofficer.
The Bombay High Court held that the testimony of the two doctors required corroboration and
thatthetapeamplycorroboratedit.ThedecisionwasupheldbytheSupremeCourt.Lookedinto
thepreviousauthorities.
This court in number of cases accepted conversation of dialogue recorded on taperecording
machine as admissible evidence. In Nagree's case, the conversation was between Nagree and
SheikhandNagreewasaccusedofofferingbribetoSheikh.
InthePresidentialElectioncasequestionwereputtoawitnessthathehadtriedtodissuadethe
petitionerfromfilinganelectionpetition.The petitioner had recorded on tape the conversation
that took place between the petitioner and the witness. The court admitted the recording to
contradictthewitness.Thetapeitselfbecomestheprimaryanddirectevidenceorwhathasbeen
saidandrecorded.
Dealingwiththerelevancyofsuchevidencethelearnedjudgesaid:
Taperecorded conversation is admissible provided, first, the conversation is relevant to the
mattersinissuesecondly,thereshouldbeidentificationofthevoiceandthirdly,theaccuracyof
thetaperecordedconversationisprovedbyeliminatingthepossibilityoferasingthetaperecord.
Acontemporaneoustaperecordofarelevantconversationisarelevantfactandisrelevantunder
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Acontemporaneoustaperecordofarelevantconversationisarelevantfactandisrelevantunder
section 8 of the Act. It is also res gestae (part of the same transaction) and, therefore, relevant
under section6. It is also comparable to photograph of a relevant incident and is, therefore a
relevantfactundersection7oftheAct.
Applying these principles to the facts of the case the learned judge had no doubt that the
conversationinquestionwasrelevant.
Still another case before the Supreme court involved the eviction of a tenant on the ground of
subletting.ThefindingoftheRentControllerthattherewassubletting,wasbaseduponatape
recordedconversationbetweenthetenantandthehusbandofthelandlady.TheCourtheldthat
taperecorded conversation can only be relied upon as corroborative evidence of conversation
deposed by any of parties to the conversation. In the absence of any such evidence, the tape
cannotbeusedasanevidenceinitself.
InasubsequentdecisiontheSupremeCourthastightenedtheruleastorelevancyoftapetothis
extentthatitmustbeshownthataftertherecordingthetapewaskeptinpropercustody.Inthat
case the Deputy Commissioner had left the tape with the stenographer. That was held to be
sufficient to destroy the authenticity of the tape. The supreme Court has further suggested that
how the cassette came into existence is an important consideration. The court rejected tape
recordedevidenceofanelectionspeechbecausethetapewaspreparedbyapoliceofficerandhe
was not able to explain why he had done so. The candidate had denied that the tape was in his
voice.

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