Synopsis•

(SECTIONS 1-100)

Page

Preamble 1

The Act is a consolidating, defining and amending Statute 1
History oF the Law of Fvidenr.e

The Act repeals all rules of evidence not saved by the Act 2

Construction 3

Proviso 4

Headings and side-notes 4

Illustrations 5

Reference to English authorities 5

Lex ion 6

Changes in the law of evidence are retrospective 7

Object of the Evidence Act 7

Part I

Relevancy of facts 9

Chapter I

Preliminary 9

Ii Short title, extent and commencement 9

Commentary

India 9

Pakistan 10

Application of the Act to Court-Martial 10

Judicial Proceedings 10

Statement by Judge or Presiding Officer 10

Courts 10

Affidavits 10

Department enquiries 11

The Act is not applicable to proceedings before an arbitrator 12

The Act is not applicable to proceedings under the Income-tax Act 13

Administration of Evacuee Property Act 13

Election Petition 13

Preceding before industrial Tribunal 13

2. Repeal of enactments

Commentary

Repealed section 13

SYNOPSIS Mw

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The Act is a repealing Statute

Rules of cvidcnce contained in other Statutes, Act' of
Regulations are not affected 14
3. Interpretation clause 14
"Court" 14
Commentary
Unless a contrary intention appears from the context
"Court" 15
Family Court and Evidence Act 16
Includes, means and includes 16
"Fact" 16
Illustrations 16

Commentary
Facts 17
Relevant 17
"Facts in issue" 17
Explanation 18
I tlu s rat ions
Commentary
Facts in issue 18
Facts in issue and issues of fact 19
"Document" 19
Illustrations 19

Commentary
Document 19
"Evidence" 20
Commentary
711
Evidence
Types of evidence :—(l) Primary and Secondary 21
Direct and circumstantial evidence 22
"Proved" 23
"Disproved" 23
"Not proved" 24
"India" 24
Commentary
What is proof? 24
Proof: proved, disproved, not proved 24
Not proved 25
 INDIAN EVIDENCE ACT, 1872

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Evidence and proof: "matters before it" 25

Prima facie case 26

Proof in civil and crminal cases 26

Standard of proof: in civil and criminal cases 26

Necessary to explain the injuries on the person of the pccused 28
Omission to send blood stained earth for chemical examination 28

Presumption of innocence 29

Burden on accused— see Sections 105, 106. Benefit of Doubt 29

Suspicion is not legal evidence 30

Cer-pus d1Ct! 30

Circumstantial evidence in criminal cases 30
Explanation of the accused 33
33
False explanations,

False denials 33

Special rules of proof in criminal trial 33

"Special rules of proof in criminal cases"— Election eases 33
Legal proof and moral conviction conjectures and suspicion 34
National Security Act, Section 3(2) and
Criminal
Procedure Code Section 156, 35
172
Constitution of India Art. 136 35
35
\Vakf, Muslim Law

4. "May presume" 35

"Shall presume" 35
"Conclusive proof" 35
Commentary

Classification of presumptions 36
Presumptions 36

Presumptions of fact or Natural Presumptions 36
Presumptions of Law or Artificial Presumptions 36

Rebuttable Presumptions of Law 36
Irrebuttable Presumptions of Law 36

What is presumption 36

Presumptions of fact or natural presumptions 36
Presumptions of law 37
or artificial presumptions
Conclusive proof 37
Chapter 11

Of the Relevancy of facts 39
Commentary

Relevancy of Facts 39

Logical relevancy and Legal relevancy 39

Legal relevancy and admissibility 40
Relevancy not affected by provisions of Cr. Procedure Code;
 SYNOPSIS Aix

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considerations of public policy not recognized by the Act 40

5. Evidence may be given of facts in issue and relevant facts 41
Explanation
Illustrations 41

Commentary
Only facts in issue and relevant facts may be given in evidence 41
Trap witness 42
Objections to çvidence: at what stage may objection to
relevancy or to modc of proof be raised 41
Facts declared to be reievant 45
And of no others 45
Question of admissibility to be argued in the absence of the Jury 45
Criminal cases 45
Explanation 45
6. Relevancy of facts forming part of same transaction
Illustrations 45
Commentary
English Law 46
Res Gestae: contituen t, incidents of a transaction 46
Parts of the same transaction 47-
Several offences may form one transaction 48
Statement admissible as part of the transaction under inquiry 48
A first information report may be admissible as a part of
the transaction 50
Statements made by a raped woman • 50
Spontaneous explanation of the accused 51
Statements admitted under Section 6 are original evidence
and not hearsay 51
The maker of the statement need not be called to prove it 51
Statements which are admissible as part of the transaction
are sub-stantive evidence 52
Statements which are apart of the res gestae may be admissible
under Section 157 or Section 155 52
Statements contained in documents 52
Illustration (a)— "Bystanders" 52
7. Facts which are the occasion, cause or effect of facts in issue 52
Illustrations
Commentary
Occasion, cause, effect, opportunity, state of things 53
Causation 53
 INDIAN EVIDENCE ACT. 1872

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State of things 53
Opportunity for their occurrence 54
Opportunity 54
Footprints 54
Tape Record 54
Similar unconnected facLs 54
Illustration (c) 54
8. Motive, preparation and previous or subsequent Conduct 55
Explanation 1 55
Explanation 2 55
Illustrations

Commentary
Motive 57
Adequacy of motive 60
Proof of motive 60
Preparation 60
Preparation and attempt 61
Conduct 61
Persons A hose conduct is relevant 62
Instance of relevant conduct 63
Absconding 64
Pointing Out places connected with the offence or where stolen
properly or articic.s connected with the offence are concealed,
production of stolen property or instrunicnts of crime 65
Statements preceding or accompanying production or pointing
out of stolen property or instruments of crime 67
Conduct is admissible to explain, but not to control, the terms
of a document 67
Explanation 1 : . Statements explaining or accompanying relevant
conduct 67
Signs and gesticulations in reply to questions not admissible
as conouct 68
Relevancy of a complaint; distinction between a complaint
and statement 69
Evidentiary function of a complaint and its terms 70
A first information report may be admissible as part of the
informant's conduct 71
Explanation 2 : Statements affecing conduct 72
Silence admissible as conduct 73
Admissions by posscssion of, or access to, documents 74
 SYNOPSIS

1age

9. Facts necessary to explain or introduce relevant facts 75

Illustrations
Commentary
Scope 77
Introductory or explanatory facts 77
Facts which support or rebut an inference suggested by a
fact in issue or relevant fact 78
Identity 79
Identity of things 79
Identity of skeleton 80
Evidence of Expert Trackers 80,
Facts establishing the identity of a person with an ascertained
person 80
Similarity of physical characteristics in cases involving questions
of paternity 80
Question of paternity 80
Indentification by photographs 81
Identification of suspect by witness by showing photographs 81
Superimposed photograph is admissible into evidence 81
Previous identification 81
Identification by voice or beard 81
Identification by voice, and gait 81
Utterances: identification by 82
The identity of machine 82
Identity of a person as the doer of a particular act 82
Similar transactions whether admissible to establish the identity
of an offender 82
Identity of tenure 83.
Value of premises similarly situated 83
Identification tests or parades 83
Identification parade— when necessary 83
Late indentification parade 84
Effect of failure to hold identification parade 84
Evidentiary function of identification tests 85
Precautions to be taken in conducting test parade 87
Evidentiary value of identification tests 87
Identity of an accused must be established before he is punished 92
Mistake in identification is a question of fact 92
Identification parade and Art. 20 (3) Constitution 92
Section 9 and Section 164 Cr. P.C. 93
Admissibility of identification proceedings held by the
police but not supervised by a Magistrate 93
Who can hold identification parade 93

if INDIAN EVlDfOC1 ACt. 1872

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Identification parade and Section 162 Cr. P.C. 94
Fact.c fixing the time or place at which any fact in issue or
relevant fact happened 94
Facts showing the relation of parties by whom any fact in
issue or relevant fact happened 94
Facts showing the relation of parties by whom any fact in
issue or relevant fact was transacted 94
Memorandum of identification parade 94
Legal status of Identification Memo 94
10. Things said or done by conspirator in rererence to
common design
95
Illustrations
95
Commentary
Principle Theory of agency 95
Applicability and scope of— Analysis of the section 96
The acts, statements or writings of a conspirator are admissible
against himself independently of Section 10 96
Difference between English and Indian Law on the object 97
Common intention : English Law
97
Construction of things done, spoken or wrilten regarding conspiracy 97
Prirnafacje proof of conspiracy and of the accused's connection
with it must be given before giving in evidence the act.
declaration or writing of conspirator 97
Meaning and proof of conspiracy
98
Conspiracy is the root and specific instances are fruits 100
Evidence which is admissible on a charge of conspiracy 100
Evidence admissible beyond period of conspiracy: Conspiracy
to Commit Criminal Breach of Trust
101
Past transactions
101
Applicability of the Section at the appellate stage 101
Confession of a cc acccscd or ssatcmcnt of an approver wicth,c
admissible under Section 10 as the communication of a
conspirator
101
Confession of a deceased conspirator 102
In reference to their common intention
102
The statement, act or writing of a conspirator must, in order
to be admissible against others, have reference to common
intention. Statements made or acts done by others after the
arrest of the accused whether admissible against the accused 102
Statements made or acts done by others before the accused joined
the conspiracy
Statement by a conspirator that another conspirator mentioned
the accused as a co-conspirator 105
 SYNOPSIS liii

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Can one person be convicted of conspiracy 105
Illustration 105
Participation in conspiracy expert testimony as to handwriting
based on photographs Sections 10, 47, 120-B I.P.C. 106
Conspiracy to hush up case of corruption 106
Charge of cheating 106
Charge under Section 120-B I.P.C. not necessary 106
Documents in the possession of a conspirator when admissible
against co-conspirators 107
Copies of intercepted ! ttcrs 107
Evidenuary value of ac.s, statements or writings admitted
under this Section 107
Statements and acts of persons conspiring to commit an actionable
wrong whether admi sibte against each other in civil cases 108
11. When facts not otherwise relevant become relevant 109
Illustrations 109
Commentary
Principle 109
Scope 109
Facts which make existence of a fact in issue or a relevant fact highly
probable or improbable are themselves relevant 109
Highly probable 110
Degree of probability between the fact to be proved and the fact
sought to be given in evidence 110
Court's discretion in admitting evidence under this section Ill
Is the Section controllci by the more specific provisions of
the Act? Ill
Statements, oral or documentary, of persons not called as witnesses,
whether admissible uhder Section 11 ? Rule against hearsay how
far affected by the section? 112
Recitals of boundaries in ancient deeds 113
Bad character inadmissible 113
Opinion evidence 114
Admissions in one's own favour may become admissible
under Section II 114
Similar unconnected transactions 114
Similar unconnected previous incidents Sections I and 54 114
Sections 1], 13 and 43 115
Instance of probability: Inference of the probability of a tran-
saction from the simlarity or simultaneousness of another Its
Facts or circumstances which weaken the prosecution case : Effcct
of all prosecution witnesses being only chance witnesses 116
Effect of identification made at the parade held after two months 117

112 INDIAN EVIDENCE ACT, 1872

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Effect of a material discrepancy between deposition and police

Statement 117
Effect of inconsistency with medical evidence, improbability,

omission in report and factional rivalry 117

Relevancy of judgments not inter parses 118

Instances of probability; entry or absence of entry 118

Batwara papers 118

Other instances of probability 118

Resemblance of features in cases involving question of paternity 118
Factors which render the prosecution case improbable Case of

bribery 118

Effect of improbability 119

Instances of improbability or inconsistency 119

Instance of improbability 119

Effect of an omnibus statement involving all present in an offence 120
Effect of omission to give the name of the accused in the F.I.R. 120

Effect of circumstances raising grave suspicion 120
Effect of a false statement by a witness that another alleged

eye-witness was present 120

Effect of Omission to hold an identification parade 121
Instance of facts and circumstances which were held not to vitiate the
value of the prosecution evidence. Absence of name of accused in

FIR— When the informant is not an eye-witness 121
Absence of any injury on person of accused— When he is only a

leader who did not take direct part in a fracas 121

Absence of blood marks on clothes of a near relative 121
Slight errors in description particularly when the witness is

illiterate 121
Relationship of a witness with the deceased is no ground in itself for

rejecting his evidence 121
Unregistered documents whether admissible under Section 11 for

collateral purposes 122
E',idcnee of a y bc accepted even though 'e portion

of the testimony is discarded 122

Guilt to be proved 122

Evidence of Alibi 122

Alibi 123

Previous judgments 123
Illustration
12. In suits for damages, fads tending to enable Court to

determine amount are relevant 123
Commentary

SYNOPSIS lv

Page

13. Facts relevant when right or custom is in question 124

Illustration 124

Commentary

Principle 125
By which 125

The section applies to 'll kinds of rights and custom 125

Right claimed by cust n 126

Admissibility of statem.nts made in prior proceedings 126
"Traaion by which" and "instances i n which"; mer# rPcitic
staicments and admission in one's own favour are not

admissible 126
Deed of sale, mortgage, etc. whether admissible as a transaction by
which a right is claimed or asserted 129
Other documents containing assertion of right: maps, chitiahs,khas
mahal papers, jamabandis, road cess papers, partition deeds, batwara
papers, etc. 131
Entries sale-certificates, writs of attachment, robkaries or orders for
delivery of possession, etc. 132
Assertion or denial of a right or custom in pleadings, applications,
reports, etc. 133
Recitals in a Will 133

Recitals of boundaries in documents 133

Statements in third party documents 135

Essentials of a valid custom 135

Custom Overrides the General Law 135

Proof of Customs 136

Modes of proving cuslcm 136
Admissibility of Judici ti Decisions in Support of Custom and

their Value 138
Value of oral evidence f custom when documentary evidence is

withheld-Custom cannot be inferred by analogy 138

Hearsay Evidence to Establish custom 138

Family custom 138

Sections 13 and 101 to 103.— Proof of family custom 138

Caste custom 138

Prohibitory custom 139

Relevancy of judgments not inter parties 139

Calcutta decisions 139

Allahabad decisions 143
Oudh decisions
143
Patna decisions 145
Nagpur decisions 146

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Bombay decisions 146

Lahore decisions 148
Madras decision 149
Rangoon decisions 151
Sindh decisions 151
Privy Council decisions 151
Conclusion 153
Sections 35 and II, whether applicable to judgments 154
Section 13, whether applicable to judgments 155
Judgments inter partes but not operating as rcsjudicata 157
Extent of admissibility of judgments not inter parties 158
Relevancy of judgment inter panes 159
Judgment between a party and a stranger 159

Only appellate judgment must be produced 159
Judgment of the Appellate Court 160
Findings of fact, statements or recitals of facts, and observations

contained in judgments not inter parties, whether relevant 160
Admission of judgment in a previous case
160
A judgment may be secondary evidence of the pleadings of the panIcs
thcreto, and of any statement, admission or acknowledgement 160
Contradicting a witness by a judgment judgment whether admissible
as proof of the deposition of a witness or the terms of a document
referred to in the judgment 160
A previous judgment holding a person to be a minor is not evidence
of minority 161
Admission of mortgagor in a mortgage-deed relevant and admissible
in evidence 161
Adopted son 161
Recitals of age, date of birth, date of death, etc., in judgments,

whether admissible under Section 13 or Section 35 161
Previous decision in favour of or against other co-sharers 162
Possessory orders under the Criminal Procedure Code and the
Specific Relief Act: Orders under Section 107, Criminal
Procedure Code 162
Foreign judgnienis 164
Decisions in land acquisition cases 164
Land Acquisition case 16-1
Maharashtra Regional and Town Planning Act ... 164
Judgment as evidence of a compromise 164
Compromise 164
Razinama in Criminal Proceedings 164
Police reports and orders under Section 145. Cr. P. code 164
Plaint and Written Statement 164

SYNOPSIS lvii

Page

Illustrations 164

Judgment of acquittal in a suit for damages for malicious

prosecution 165
Judgment in a civil suit, whether admissible in subsequent criminal

proceedings 165
Judgment in a criminal case whether admissible in a subsequent civil

case 165

Orders in lunacy proceedings 165

Subsequent judgment 165

Whether judgments may shift onus 166

14. Facts showing existence of state of mind, or of body, or

bodily feeling 166

Explanation 1 166

Explanation 2 166

Illustrations 166
15. Facts bearing on question wbrther act was accidental or

intentional 169

Illustrations 169
Commentary

Principle 170
Relevancy of facts showing the existence of a mental condition or
state of mind of an accused person which is an element of the

offence of which he is charged Sections 14 and 15 170
Evidence admissible in proof of a mental or physical condition;

Sections 14 and 15 170

Guess work is not a fact 171
Evidence admitted under Section 14 or Section 15 is admissible in
proof of only a mental fact, and is not admissible to prove th

other ingredients of the right of liability 171

Evidence in Rebuttal 173
Similar facts, when they constitute a system or design may become
admissible to prove the connection of the accused with the transaction

charged 173
Sequence and proximity of time between the evidentiary fact and the

fact to be proved 173
Direct evidence of mental condition or bodily feeling; declarations

in Court 173
Circumstantial evidence of the existence of a mental condition;

declarations out of Court 174

Declarations as to religious belief 174
 INDIAN EVIDENCE ACT, 1872

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Circumstantial evidence of the existence of a mental condition ; prior

or subsequent similar occurrences 174

Principle of admissibility of similar acts and its qualifications 175
Evidence of similar occurrences should be given only when evidence
as to the main fact and of the defendant's connection with it has

been given 177
"Series of similar occurrences"; Single occurrence, dissimilar

instances 177
"In each of which the person doing the act was concerned":

anonymous instances 178
Proof of similar occurrences 1'78
Explanation I to Section 14 ; evidence must relate not to the state
of mind in general but to the state of mind in reference to

the particular matter in question 178

General tendency of accused cannot be proved 179
Explanation 2 to Section 14; previous conviction is admissible only
when the commission 01 the offence is relevant as showing a state

of mind 179

Direct evidence of intention 180

Burden of proof of intention 180

Illustration relating to evidence of intelitiorl 181

Proof of intention 181

Circumstantial evidence of intention 181

Direct evidence of knowledge 182

Circumstantial evidence of knowledge 182

Notice 183

Knoledge of propensities of animals; Illustration (c) to Section 14 183

Illustrations relating to evidence of knowledge 184

Ill-will, good-will ; malice 184

Negligence and rashness 185

Facts showing a state of body or bodily feeling ; health and feelings 186

Good faith ; Bad faith 186

Allegations of ,nalafldes under the Companies Act 187

Fraud 188

Guilty knowledge in receiving stolen property 188

Counterfeiting and forgery 189
Other COiflS or documents possessed or uttered must be proved to be

counterfeit or forged 191

Homicide ; other instance 191

Homicide ; similar instances of poisoning 191
Homicide : other instances of deaths in similar circumstances 192

Arson 192

Bribery 193

False pretences and other fraud 193

Embezzlement and cheating 195
 SYNOPSIS Ll!1

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Criminal breach of trust 196
Procuring abortion 196
Rape ; sodomy incest, indecent exposure : pandering ; pimping 196
Treason ; sedition : defamation, etc. 197
False claims 199
Fraudulent transfers 198
Extortion and blackmail 198
Dealing in liquors or drugs 199
Gambling 199
Evasion of payment of duty 199
Previous conduct 199
Previous attempts to commit an offence: Sections 8 and 14 199
Previous commission of dacoities, thefts, etc., is relevant on charges
of forming a gang for habitually committing dacoities or thefts but
not on charges of specific dacoities 199
Similar facts, when they constitute a system or design may become
admissible to prove the connection of the accused with the
transaction charged 199
Illustration (a) 201
Illustration (b) 201
Illustration (c) 201
16. Existence of course of business when rekant 201
Illustrations 201
Commentary
Course of business, according to which an act would have been done,
is admissible to prove that the act was done 202
Presumptions arising from the course of business in the post office 203
Postal Service 203
Illustration (b) Presumption if a letter posted was received 203
Admissions 203
17 Admission defined 204
Commentary
Ground for the reception of admissions in evidence: Sections 17 to 30:
Admissions and confessions 204
Definition of an admission; admissions by conduct 204
Statement 204
Admissions and confessions : importance of the distinction between
the two 205
Distinction between admissions and confessions 206
An admission must be taken as a whole though it is not necessary that
it should be believed or disbelieved as a whole 208

INDIAN EVIDENCE ACT, 1872
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A conlcssion, like an admission, must be considered as a whole, though
it is not necessary that it should be believed or disbelieved as
209
a whole
211
Admission must be clear and unambiguous
Form of admission; admissions is invalid un-stamped or unregistered
211
documents
Mode of proof of admissions : should an admission be put to the party
211
making it
214
Time when admission may be made
Admission via sigraturC on a document is not tantamount In
214
admission of its execution
214
Sections 17, 21 and 145
214
Reference to admissions in judgments
Admissions by minor or without personal knowledge 215
Admission founded on hearsay or merely expressive of We declarant's
215
belief or opinion
216
Admission on a pure matter of law
216
Evidcndary function of admissions
Statements in the presence, and documents in the possession,
218
of a party
Admission not admissible against person other than the person
218
making it
218
- Admission in plaint
219
Effect of admission
219
Weight to he given to admission
Evidentiary value of statement in returns filed by party to Statutory
219
Board gi ing list of properties
219
Party to the proceeding
219
Admission by a party
219
18. Admission by party to proceeding or his agent
Commentary
220
Person whose statements are admissions
Sections 17, 18 and 21- Admission of the adverse party is the best
220
piece of evidence
221
Parties in criminal cases
221
Admissions by an accused
221
Admission by co-accused
SlatemenLs of partiec cuing or sued in a representative character 221
222
Admissions by agenlc
Proof of agency
Admissions by agents in criminal cases
Admissions by Co-Defendants l'i
Admission by Government servants
 IM
SYNOPSIS

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224
Admissions by officers of corporatiOflS4ln(l firms 224
Admissions by counsel or solicitor 227
Affidavits and depositions of witnesses 28
Admissions by the manager ofajoint Hindu family 228
Admissions by guardian or manager of Court of Wards
229
Other instances of agency 229
Admissions by a partner are admissible against the other partners
Whether a partner is an agent of the other partners to make an acknow-
ledgment of liability, or payment of interest, or part payment
230
of the principal and thus to extend the period of limitation
231
Admissions by partners admissible inter se
Admissions by persons having a joint proprietary or pecuniary
231
interest in the subject matter of the suit 232
Jointly interest in tort or crime 233
Admissions by the predecessors in title of the parties 234
Admission by a mortgagor
Purchaser at a sale for arrears of revenue is not the representative of
234
the defaulting proprietor 234
Auction purchaser is the representative of the judgmcflt-debtor
Admissions of a former holder arc not admissible against a holder in
235
due course of a negotiable instrument
235
AdmiSsions.bY insolvents - 236
Admission of the principal, when admissible against the surety
236
Admission of the insured are not admissible against the beneficiary
236
Admission by trustees
t is nc: admissible
An admission by a co-plaintiff or a co-defenda n
unless the party making the admission is jointly interested with,
or is the predecessor in title of, the party against whom it is
237
tendered in evidence
Admission must have been made during the continuance of the interest
of the person making it and must relate to his title and not to
238
independent matters 238
Transfers in fraud of creditors 239
Statement of Admission in judgment 239
Recital in docujient 239
Effect of admission in documents 239
Denial of Admission 239
Admissions must be taken as a whole
19. Admissions by persons whose position must be proved as against
0 239
party to suit
240
Illustrations
Commentary
240
Admissions by strangers

[ji
INDIAN EVIDENCE ACT, 1872

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Case
241
20. Admission by persons expressly referred to by party to suit
241
Illustrations
241
Commentary
Admissions by referees
Admissions by referees on matters of Jaw 241
242
An admission by a referee is not conclusive unless it operates as an
estoppel, or amounts to an adjustment of the suit, or to an agree-
ment to refer
242
Admissions by referees in criminal cases
243
21. Proof or admissions against persons
making them and by or on
their behair
243
Illustrations
244
Commentary
An admission may be proved against, but not in favour of, its maker 244
Recitals of boundaries
Confessions and Admissions contrasted 246
246
Confessions and admissions in criminal cases; statements in F.I.R.
admissibility of
246
Accused prosecuted on the First Information Report made by him 247
An admission may be proved as against the person by whom or on
whose behalf it is made and against the representative in interest
Of such person
248
Relevancy of proof of statements made by accused persons before
Custom Authorities; Sections 21 and 67
Previous statements to public officer 248
248
Section 2 1— Effect of admission Essentials of admission
248
Admission and previous statement for contradiction 249
Admission Rebuttable
249
Admission as to motive— Admissible under Section 21 249
Statement to Police
Admissions in intercepted c orrespondence between respondents in 249
divorce proceedings
Letters of accused to be used as admission 249
Clause ( 1) 249
Clause (2) 250
Clause (3) 250
Effect of admission 250
Admission by accused 251
Sections 21 and 145 251
252

SYNOPSIS lxiii

Page

22. When oral admissions as to contents of documents are relevant 252
Commentary

Admission as to contents of documents 252

23. Admission in civil cases when relevant 252

Explanation 253
Commentary

Admissions without prejudice 253

Negotiations for a compromise 254

Admissions before an arbitrator 255

Explanation 255
24, Confession caused by inducement, threat or promise, when irrel-

evant in criminal proceeding 255

Commentary

Principal 255
Ingredients of Section 24 256
Meaning of the word "voluntary" 258

Tests for determining whether a confession is voluntary 258

Whether the Confession was voluntary 258
If the Circumstances threw any doubt on the voluntary character of
a confession the confession must be rejected 258

Involuntary confessions 258
A non-voluntary confession must be rejected 259
Mere allegations of inducement are not sufficient to displace the

voluntary character 259
The test to be applied to a confession for the purpose of judging
whether it is 'true' 259
Is the confession true? 259

Confession Contradicted by medical evidence 259
The test of the admissibility of a confession in its voluntariness and
not its truth 260

Motive for confession 260

An involuntary confession is admissible in civil proceedings 260
Burden of proving the voluntary or involuntary character of a

confession 260
Burden to establish that confession was voluntary is on the

prosecution—Effect of prolonged custody 262

Nature of the onus 262

Appears to the Court 262
The question of admissibility of a confession is a question for the
judge; but the question of its weight is a question for the jury 264
Conditions of inadmissibility of a confession essentials of the rule of

exclusion 265
 INDIAN EVIDENCE ACT, 1872

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Condition (i) of inadmissibility: only such statements are inadmissible

as amount to confessions 266

Meaning of confession 267
Communication to another is not an essential ingredient of the concept
of confession 268

Mere conduct is not a confession 268

Exculpatory statemeits are not confessions 269
Confession— Self exculpatory statement 270
Use of a confession which is partly inculpatory and partly

exciupatory 271
Confessional Statement— Exculpatory part inherently improbable
and contradicted
by other evidence— Inculpatory part can be
accepted 271
Where the statement of an accused covers two distinct and

separate matters 271

Acknowledgement of subordinate facts 272
Pointing out places in consequence of inducement 273
Confession "plenary" and "not plenary" 273

Judicial and extra-judicial confessions 273
Condition (ii) of inadmissibility : confessor must be an

accused person 273
Person under surveillance making a statement 275
Condition (iii) of inadmissibility: confession must be involuntary;

nature of the inducement, threat or promise 275
Inducement may not be express but may be implied 277

The confession must be the result of inducement 277
Inducement to confess one crime does not invalidate a confession

as to another crime 277
Confession need not be made to the person in authority holding out
the inducement nor need inducement be held Out directly to the
prisoner himself 277
Confession caused by physical violence or threat of physical violence;
rack, whip, lynching and "sweat box" 277
Confession obtained by "third degree" methods; 'sweat box";

Continuous and searching interrogation by a per-son in authority 278

Explaining Section 171-A of the Sea Customs Act is no threat 279
Promise of pardon or of cessation or withdrawal of prosecution;

promise not to prosecute 279
Promise of not prosecuting or of saving the offender, or of cessation
or withdrawal of prosecution
; promise to release or abstain from
arrest; threat to arrest 280

Inducement that the Sentence would be lighter 281
Inducement involved in the expression "you had better confess"
or "you had better tell the truth" 281
 SYNOPSIS

Page

Statement obtained on oath 282

Inducement outside the terms of Section 24 282
Production of Document as Result of Inducement 283
Condition (iv) of inadmissibility: the inducement, threat or promise
must have been held by a person in authority— When does a
confession become inadmissible 283
Sections 24 and 25—Customs Officers not Police Officers 286
Customs Officers not Police Officers 286
Explaining Section 195 I.P.C. no threat 287
Confessional statements made before Coroners 287
Deposition by the accused in extradition proceedings 287
The person holding out inducement must ioivally possess authority 287
Condition (v) of inadmissibility ; sufficiency and character of the
inducement 288
Advantage to be gained or evil to be avoided must be of a temporal
nature : confessions induced by religious or moral exhortations
are admissible 288
The advantage to be gained or the evil to be avoided must be of a
temporal nature and must have reference to the proceedings 289
Confession and plea of guilty 290
General observations relating to the proof, admissibility and value
of confessions 290
Proof of confession Sections 24 to 27 290
Proof of an extra judicial confession 291
Extra Judicial Confession Confession if oral must be
assessed carefully 293
Extra-judicial confession in writing 293
Extra judicial confession— May be retied upon, proved— Actual
words not necessary 293
Evidentiary Value of Extra-judicial confession 293
Weight of retracted extra-judicial confession 293
Proof of a judicial confession; oral confession to Magistrates 294
Admissibility of a confession 294
How confession should be construed and used 295
Confession not contrary to oral evidence and so it cannot be said to
be untrue 95
Evidential value of confessions 295
Whether an inadmissible confession may be used to contradict the
confessor if and when examined as a witness 297
Corroboration to confession; Rule of prudence in regard to
corroboration 298
Admissibility and value of retracted confessions 299
ketractcd confession requires corroboration 302
Corroboration needed for retracted confession 302
 INDIAN EVIDENCE ACT. 1372

Page
Corroboration by independent evidence is necessary before a convi-
ction can be based upon a retracted confession, even when it is
accepted as voluntary and true 302
Nature of the corroboration required for supporting a retracted confe-
ssion Difference between corroboration for accomplice evidence
and retracted confession 302
Nature of corroboration required for confession 303

Conviction cannot be based on uncorroborated retracted confession 303

Value of retracted confession— Rule for guidance of court 303
Corroboration required for retracted confession 304
Onus of proving the voluntary character of a retracted confession 304
Confessions must be taken as a whole, though they need not be

believed or disbelieved as a whole where there is other evidence 305

Sections 24 and 25— Ban under these sections compared 305

Sections 24 to 27 and Section 162 of the Criminal Procedure Code 305

Scope of Sections 24 to 30— Law relating to confessions 305
No conflict of Section 24 with Section 80 306
Grant of copy of confession 306

Function and duty of court under Section 24 306

25. Confession to police officer not to he proved 306
Commentary
Reason of the rule 307
Confession made to Police Officers 307
A person accused of any offence 308
Confessor need not have been "accused" of the offence at the time
the confession was made 308
Confession in this section does not mean confession only of the
crime under Investigation 309

Confession contained in a recover list 309
Confession contained in FJ.R. 309

Confession in first information is inadmissible, but admission is not 309
F.I.R. by the accused admitting the offence 309
Accused prosecuted on the first information report made by him
Police Officer 310
Is Customs Officer a Police Officer 311
Test for being a Police Officer— Whether Excise Inspector under
Bihar and Orissa Excise Act (2 of 1915) is a Police Officer 312
Excise Officer is not a Police Officer 313

Members of the Railway Protection Force are not Police Officers 313
Confessional letter addressed to a Police Officer is admissible 313
Sub-Inspector of Police on deputation does not cease to be
Police Officer 314
 SYNOPSIS
II

Page
Confession made to a Police Officer is not admissible against a
co-accused, but may be admissible for, or to contradict the
evidence of the confessor when examined as a witness
314
Extra judicial Confession made to a private person in the presence
of a police officer is inadmissible
315
Confessions made to police by deceased accomplices admissible
against others
315
Purposes for which a confession to a Police Officer may be
admissible
Ban is absolute 315
Section 25 and 26— Use of statements made to Police 316
316
Confessions made to Police Officers are inadmissible but admissions
may be admissible
316
Pointing out places connected with the offence
Sections 25, 26 and 27— Incriminating statements not leading to 317
discovery
Sections 24 and 52— Ban under these sections compared 318
319
Scope and applicability
319
26. Confession by accused while in custody of police not to be proved
against him
319
Explanation
319
Commentary
Sections 25 and 26 compared
319
Statements not amounting to confessions are not admissible—Scope 320
Admission not barred
Custody 321
Police Officer 321
323
Confession is admissible if made to a Magistrate or to a person other
than a Police Officer but in the immediate presence of a
Magistrate
323
Confession to Presidency Magistrate
Coroner 326
Taluka Magistrate 326
326
Prolonged detention and its effect on voluntariness
327
Sections 25 and 26— Use of statements made to police 327
Reasons underlying Sections 25, 26
327
Sections 25 and 26-- Reasons for the provision
Explanation 327
328
Constitutionality of Sections 25 and 26
328
27 How much of information received from accused
may be
proved
328

MM INDIAN EVIDFYCE AC- F, 1872

Page
Commentary

Principle— Sections 26 and 27 328

Theory of confirmation by subsequent facts 328
Sections 26, 27 compared 329

Sections 27, 25 and 26— Scope of Section 27 Essential ingredients 329
Sections 26 and 27 331
Scope explained 331

Applicability of Section 27—Essential condition for 332

Essential ingredient of Section 27 332

Construction of the section 332

The section is a proviso to Sections 24-26 333
Person making the statement must he accused of an offence and in the
custody of a Police Officer-- Import of the expression "accused of
any offence" 333
Information must lead to the discovery of a relevant fact, i.e., a

material object 336
Pointing out places connected with the offence and statements made

while pointing out such places; no dis overy 335
Discovery in consequence of information ; accused himself producing.
or leading the police to, to [lie material object: statements preceding

discovery 335

Information leading to discovcry-- Adinisihlc in evidence 341
Statement of accused to police leading to discovery— Admissi-

bility 341

Section 27 341

In absence of statement of accused Section 27 not attracted 342

No discovery if police already knew where was the property 342
Discovery evidence is not substantive evidence but only corroborative

evidence 342

Section 27 and illustration (a) to Section 114 342
In a theft case the statement of accused to Police that he would show
the place where ornaments are hidden and information leading to

recovery are admissible ip evidence 342
"Fact discovered"— Deceased's head not found - Admissibility

of evidence 343

Cases 343

Statements accompanying production of a thing 343

Statements after discovery 344

Confessional statements in recovery lists 344

Joint discoveries like information given by more than one accused 344
Where several accused gave information but discoveries were made

by one "S" - His statement is admissible 345
Joint statement given by two accused persons leading to the discovery
of two material objects— Whether admissible—Separate statements

SYNOPSIS
Lxix

Page
from the accused person to be recorded 346
By whom should discovery have been made; no discovery where the
fact is already known to the police— Discovery of incriminating
articles when inadmissible
346
How much of information is admissible, so much of such information
as "relates distinctly" to the fact thereby discovered 348
Information and discovery must be connected as cause and effect 356
"Fact discovered"— S catcment of accused iJat the articles were kept
by him in one of the rooms in P.W. 32's house--Articles not found
on search— Subsequently articles were icovcred on the basis of a
statement give by P.W. 31. Recover y could not be treated as a reco-
very in pursuance of the information supplied by the
accused— Recovery not one under Section 27 357
Meaning of the expression fact thereby discovered in Section 27 357
Statement that the article was given to another person, whether
admissible?
357
Whether information should be stated in the exact words of
the accused? 358
Other cases illustrative of the section 360
Ban under Sections 26 and 27 compared 360
Can a confession admissible under Section 27 affect a co-acused
under Section 30-K 361
Section not affected by Section 162, Cr. P. Code 361
Section 27 and Section 8 362
Evidential value of the discovery and the accompanying statement 362
Evidentiary value of confession ; Discovery held to amount to posse-
ssion and not mere knowledge 364
Disclosure : Accompanying statement 365
Section 27 unaffected by Sections 161. 162, Cr. P.C. 365
Section does not offend against Article 14 365
Section 27 does not offend against the Constitution ; Section 27 and
Article 14 (equal protection of the laws) 365
Section 27 and Article 20 (3) (Self-Incrimination) 366
28. Confession made after removal of impression caused by inducem-
ent threat or promise, relevant 366
Commentary
Fully removed
... 3
29. Confession otherwise relevant not to become irrelevant because
of premise of secrecy etc. .. 367
Commentary
Scope
... 368
Promise of secrecy
... 368

IM INDIAN EVIDENCE ACT, 1872

Page
Deception 368
Confession in answer to questions 368
Want of warning 368
30. Consideration of proved confession affecting person making it
and others jointly under trial for same offence 369
Illustrations 369
Commentary
Principle 369
"Are being jointly tried for the same offence" 370
Joint trial in warrant cases plea of guilty; admissibility of the
confession of the accused pleading guilty 371
Sessions trials ; plea of guilty accepted no joint trial ; inadmissibility
of the confession of the accused pleading guilty 372
Session trials: plea of guilty not accepted joint trial, admissibility of
the confession of the accused pleading guilty 372
Session trial, plea of guilty neither accepted nor refused to be accepted
confession inadmissible 372
Joint trial; summons cases ; plea of guilty 373
"Confessions affecting himself and some other of such persons", test
01 admissibility
373
Applicability of the section to confessions made at the trial as well
as to those made before the trial 375
Mode of proof of a confession 375
Confession made to a Magistrate in a Native State 376
Sections 30 and 32 (I) Confession of a dead accused is relevant
against a co-accused, though it is inadmissible under Section 30 376
"May take into consideration" : evidentiary value of the confession
of a co-accused; conviction on such confession, whether legal? 376
Confession of a co-accused is not substantive evidence against the
other accused 378
Confession of co-accused-- Admissibility and weight of 379
A'cs,i'ii making cnn1esrion exciilnatine himself and throwing blame
ui co-accused
379
Death after confession 379
Use of confession in one case, in another case 379
Corroboration of the confession of a co-accused necessary 379
Recovery of ornaments as corroboration of confession 380
Reasons for requiring corroboration 380
Nature and extent of corroboration 380
Firstly, corroboration must be on material particulars 381
Secondly corroboration must be by independent evidence and not by
the testimony of an accomplice, nor by the confession of another
co-accused 382
 SYNOPSIS lxxi

Page
Evidentiary value of confession of co-accused 384
Retracted confession— Use of retracted confessions of the
co-accused 384
Retracted confession of co-accused 384
Retracted confession admissible against maker and the co-accused 385
Number of confessions by several accused retracted appreciated and
extent of corroboration 385
Probative value of retracted confession 386
Section 30 and 3— Probative value of confession of co-accused 386
Sections 30 and 24— Self exculpatory confession subsequently retr-
acted use of such uufess ion
Sections 30, 114.133 387
Statements made in answer to notice under Section 171-A, Sea
Customs Act— No bar to application of Section 30 to such statements,
if same are considered to be voluntary 387
Section 27 and Section 30 ; confession inadmissible against its maker
is also inadmissible against a co-accused 387
Confessions made to the police 388
Section 30 and Article 20 (3) 388
31. Admissions not conclusive proof, but may estop
388
Commentary
Admissions are not conclusive and may be proved to be untrue or
mistaken
388
Admission— If conclusive proof- Section 4 390
Admission- Evidentiary value of 390
Effect of admissions 390
Admission— Binding effect 390
Mutual admissions 390
Evidentiary value of admission made under suspicious
circumstances
390
Gratuitous admissions
391
Admissions shift onus
391
Admissions by conduct
391
Admissions by possession of documents 391
Admissions and confessions 391
An admission must be taken as a whole 391
Form of admissions 391
Mode of proof of admissions; should an admission be put to the Party
making it?
391
Admissions by minors
391
Admissions on questions of law 391
Admissions founded on hearsay 391
Admissions in pleadings
391
 INDIAN EVIDENCE ACT, 1872

Page
Admission in a plead i ng of a former litigation— Evidentiary

value 392
Deposition of witness in other litigaliuns— Not admissible against

other defendants 392

Admission in writ petition— Applicability 392

Admission of payment by a creditor 392

Admission by a widow 392

Admission in a registered deed 392

Admission in a gift deed 393

Admission of marriage 393

Admission in divorce Proceedings 393

Admission as to the construction of a document 393
Confession not excluded by Sections 23-26 are admissible under
Section 31 393

Statements by persons who cannot be called as witnesses 394

32. Cases in which statement of relevant fact by person who is dead or

cannot be found, etc. is relevant 394

(1) When it relates to cause of death 394

(2) Or is made in course of business 394

(3) Or against interest of maker 394
(4) Or gives opinion as to a public right or custom, or matters

of general interest 394

(5) Or relates to existence of relationship 395

(6) Or is made in will or deed relating to family affairs 395
(7) Or in document relating to transaction mentioned in Section 13
clause (a) 395
(8) Or is made by several persons and expresses feelings relevant

to matter in question 395

Illustrations 395
Commentary
taierncnts by persojib who camimmni be calkci as esscs ground
of admissibility

Statements made by signs or gestures 397

Statements of relevant facts statements of facts in issue 398

Joint statements by persons deceased and persons alive 398

Competency and credibility of the maker of the statement 398
Statements inadmissible under section 32, whether admissible tinder

Section 11, Section 14, or any other section 398

Statements admitted under section 32 are substantive evidence 398
Condition precedent
to the admissibility of statements unclem
section 32 399

"Statements made by a person who is dead" 399
 SYNOPSIS lxxiii

Page

Who cannot be found 400

Who has become incapable of giving evidence 400
Whose attendance cannot be procured without unreasonable delay
or expense 400
Clause (1) ; Dying Declarations 400
Principle and the reason of the rule 400
What is a dying declaration and its weak points and principle of
its admission 400
Difference between the Indian rule and the English rule; declaration
need not have been made under expectation of death 401
Competency and credibility of the declarant 401
Statements made before injuries 401
Substance of the declaration 403
Cause of declarants death must be in issue in care ijA wLich the
declaration is sought to be given in evidence 404
Death not as a result of injuries 405
Statement not as to the cause of death is not admissible. When dying
declaration inadmissible 405
Circumstances of transaction resulting in his death 406
Person to whom the declaration should he made; form of the
declaration 407
Unreliable dying declaration 408
Statements made by deceased to Magistrate and Police Head
Constable— Admissibility of 408
Declaration recorded by a Magistrate not competent to do so 409
Mode of recording a dying declaration 409
Dying declaration comprising of answers to questions probative
value 409
How should dying declarations be proved? 411
Test of reliable dying declaration 411
Witnesses present at the time of recording of dying declaration not
examined 412
Circumstances which lend strength and assurance to a dying
declaration 412
Evidential value of dying declarations; need for corroboration 412
Need for corroboration to a dying declaration 416
Infirmity in dying declaration— corroboration required 416
Absconding as corroboration 417
No rule of law or prudence that it requires corroboration 417
Conviction may be based on uncorroborated dying declaration 417
When conviction can be based only on dying declaration 417
Dying declaration— Evidentiary value of 418
A dying declaration must stand or fall as a whole 421
Incomplete dying declaration 421
lxxiv
LNDIAN EVIDENCE AC'r, 1872

Page
Dying declaration incomplete
422
Dying declaration complete— thumb impression taken after death
statement admissible in evidence
422
Dying declaration should be free and unaided by outside agency
Limits of dying declaration 423
423
Long statement likely to be not genuine
423
Dying declaration need not be exhaustive
423
Dying declaration referring to motive of accused— admissibility
424
Dying declaration implicating several persons does not become less
credible
424
Value of dying dertsratin- Eye witness '.v disbetievod and acc-
ording to medical evidence the deceased was not in a position to
walk or speak
Dying declaration in ardu
425
425
Application for police protection
425
Section 32 and 33
425
Clause (2) Declarations in course of business or duty
426
Reasons of the rule
426
Difference between the English rule and the Indian rule
426
Condition precedent to the admissibility of the declaration :proof that
the declarant cannot be called as a witness necessary
426
If the statement is in writing, it must be duly proved
427
Statement must have been made in the ordinary course of business
and not on a special occasion or for a special purpose
427
Books kept in the ordinary course of business
429
Peon's indorsement of refusal on a letter; rcpoi 'f a process-server
429
Statements in the diary of a deceased Police oflir
429
Statements made by deceased decd writers admissible to prove
execution of deeds
429
Statements by deceased bhats, family chroniclers and priests as to
relationship, births deaths and marriages
430
Entries of death or birth in the diary of deceased chaukidar
430
Correctness of age of accused
430
Entries in hundabandi, chowhaddjhandi jamabandi jarnawasibaqi,
talab-baqi or collection papers and leiskhana registers, etc.
430
A statement admissible under this clause may amount to an admission
in favour of its maker and may be admissible in his life-tune road-
cess returns
431
Entries in books of account relevant under section 34 do not require
corroboration, if they become relevant under Section 32 also 432
E v identiary value of loose sheets of almanac
432
Section 32 (2) and (6) Panjis (genealogical trees) maintained by
Panjikars among Naithal Brahmins
433
Statements in commercial documents
433
 SYNOPSIS xxv

Page

Clause (3) Declarations against interest .433

Principle and reason of the rule 433
Condition precedent to the admissibility of statements under this
clause; proof that the declarant cannot be called as a witness is
necessary 433
If the statement is in writing, it must be duly proved 433
Difference between admissions and statements admissible under this
clause 434
Recitals in a consent decree are not "statements" 434
Statements against pecuniary interest 434
Road-cess returns 435
Charging and discharging entries in accounts, discharging entries
outbalancing the charging entries : charging entries admissible 436
Statements against proprietary interest : declarations in disparage-
ment of title
Statement of deceased person regarding separation admissible 438
Recitals of boundaries of property in deeds not inter parties, whether
admissible to prove o nership or possession of adjoining
property? 438
Meaning of a statement being "against interest" 440
Personal knowledge on the part of the declarant of the fact stated
necessary 441
Collateral and incidental facts mentioned in the statement are
admissible 441
Statement exposing its author to a prosecution or a suit for damages 442
Whole statement admissible 442
Statements by accomplices 443
Admissibility of confessional statements made to the police by a
deceased accomplice doubtful Section 32 (3), 25, 26 and 30,
Evidence Act, and Section 162, Cr. P. Code 443
Relief that the statement would expose its maker to prosecution is
necessary 443
Statements made alter prosecution has commenced or after the risk of
prosecution has passed away are inadmissible 443
Statements falling within Section 32(3) are admissible under
Section 21 in the declaranVs lifetime 444
Clause (4): Declarations as to Public and General rights 444
Principle and reason of the rule 444
Conditions of admissibility 445
Statement must relate to the existence of the right or custom and not
to particular facts evidencing the existence of that right or
custom 445
 INDIAN EVIDENCE ACT, 1872

Page
Public right versus private right: statement asserting the existence
of a private right admissible to prove the non-existence of a public

right 446
Statement must give the deelarant's opinion and must not be a mere
repetition of hearsay Section 32 (4), 48 and 49 446

Public right or custom, or matter of public or general interest '446
Statement is admissible whether the right or custom be a fact in

issue or merely relevant 447

Declarations as to private rights are admissible 447
Statement must be by a person likely to be aware of the existence
of the right custom or matter in question ; competency of the

declarant ; entries in wajibulariz 448
SLILCrOL,t must have been made bcfor the commcnccment of the

controversy ; Lis mota; Section 32 (4) and Section 49 448

Clause (5) and (6) Declarations as to pedigree 449

Principle and reason 449

Scope of Section 32 (5) 450

Points of distinction between clause (5) and clause (6) 450

Scope of Section 32 (5) and (6) 451

Form of the declaration 451
Invalidity of a document does not ordinarily affect the admissibility

of the statement 451
Declaration must he shown to have been made by a person who is

dead or who cannot be produced as a witness 451

Statement by several persons some of whom are dead 452
To be admissible tinder clause 5, the declaration must be of a person

having special means of kno ledge 452
Statement in a register of baptism, school register, pocket hook,

or petition for guardianship, whether admissible ? 454

Relationship of blood, marriage or adoption 454
Declaration admissible on such matters as age, seniority, minority, date
of birth, legitimacy, and names of relations : but not on questions

which are not strictly questions of relationship 455
Construction of Section 32(5)— Statement as regards

age— admissible 457

Horoscopes or birthday-books 457

Admissibility of pedigrees under clause (6) 458

Admissibility of pedigrees under clause (5) 459
Pedigrees filed in settlement proceedings are admissible under
Section 32 (5) and Section 35 : presumption of genuiness under

Section 90 in respect of 30 years old pedigrees 460
Pedigrees must be shown to represent the statement of a competent

declarant who is dead or who cannot be called as witness 461
Pedigrees more than 30 years old may be presumed to be genuine
under Section 90 462
 SYNOPSIS lxxvii

Page
Evidence of relationship derived from a pedigree inadmissible if
pedigree not produced 463
Objection to the admissibility of a pedigree table must be taken in
the trial Court 463
Statement in Wills 463
Personal knowledge; evidence by a living witness on matters of pedi-
gree inadmissible if based on hearsay of incompetent declarants,
but admissible if based on hearsay of competent declarants 464
Personal knowledge ; declaration inadmissible if based on hearsay
of persons not having special means of knowledge, but admissible
if based on hearsay of persons having special means of knowledge.,. 465
Declaration contained in a document filed by the deceased or by
the counsel or agent of the deceased 465
The declaration is admissible in declarant's favour even in his life-time;
Section 32 and Section 21; statements in the affidavit or deposition
of a living person 466
Lie ,nota the declaration must have been made before the commen-
cement of any controversy 467
Value of evidence as to pedigree 467
Clause (7) Declarations relating to a transaction by which a
right is created, asserted, etc. 468
Scope and application of clause (7) 468
Statements contained in a document relating to any such transaction
as is mentioned in Section 13 (a) 469
Section 32 (7) and 32 (3) 469
Transaction must be one by which, and not in which, the right or
custom was created, asserted etc. 469
Statement in the will of a deceased person 470
Assertion of title in a mortgage-deed by a deceased mortgagor is
admissible in proof of ownership 470
Other instance of assertion 470
Clause (8) Statements made by a number of persons expressing
their feelings or impressions 471
Principle 471
33. Relevancy of certain evidence for proving, in subsequent procee-
ding, the truth of facts therein stated 471
Explanation 471
Commentary
Principle and reason 472
Proof of unavailahilty of the witness is a necessary prerequisite for
the admission of former deposition 472
 INDIAN EVIDENCT ACT, 1872

Page
Provisions of the section should be applied sparingly and with caution;
evidence of and reasons for, application of the section should be
formally recorded
472
Effect of consent to the admission of inadmissible evidence in civil
and criminal cases
When the witness is dead 475
475
Person making the statement died before her statement could be
recorded before the Magistrate__ Statement inadmissible under this
section
When the witness cannot be found 475
Incapable of giving evidence illness 476
477
When the witness is kept out of the way by the adverse party
Unreasonable delay and expense 477
Depositions in foreign counL-y under the Fugitive Offenders Act 478
480
The evidence must have .e ii given in judicial proceedings or before
a person authorized by law to lake it
Persons authorized by law to take evidence 480
Reasons to be slated for transfer of statement 481
481
Evidence must have been given before a competent authority and
taken in accordance with law
481
Proviso (1) Identity of parties
481
Former proceeding in which evidence was given in have been
between the parties to the subsequent proceeding or between the
represenla(ives in interest of such parties
481
To determine whether a person is the representative in interest of -
another regard must be had to the state of affairs at the time the
e' 'dence was given in the
first suit; adopted so, whether represe-
ntative of his natural father ?
484
Former depositions admissible against and in favour of persons suing or
being sued as partners, joint contractors, copareeners, legatees, or
terintS.in.common representative suits
484
Explanation depositions in criminal cases admissible in civil cases
and vice versa
Depositions before the Coroner 485
486
Proviso (2) The right and opportunity to cross examine
487
Both the right and the opportunity to cross-examine must have
co-existed
487
No right to cross-examine statement made in an inquiry under
Section 476,
Cr. P. Code ; deposition taken before the framing of
the charge in warrant cases, whether admissible if the witness not
available for further cross .examination ?
W itness dying before conclusion of 487
cr oss-examination : admissibility
of the deposition doubtful
488


SYNOPSIS lxxvix

Page

Right and opportunity to cross-examine not utilised before the commi-

4"
tting Magistrate: deposition admissible
Cross examination reserved, witness dying before cross-examination
deposition whether admissible? 4.9
Right and opportunity to cross-examine witnesses implied in procee-

dings before an officer authorized to take evidence 489

Depositions taken on commission admissible 489

Evidence recorded in luancy proceedings 490

Evidence given in ex-parte proceedings or in the absence of party 490
A former deposition is inadmissible if it was not read over to the

witness 491
In a dc novo trial depositions
of dead witnesses may be admitted
under Section 33 491
Right and opportunity of cross-examination in mutation procee-

dings 491
Existence of an opportunity to cross-examine, if not admitted, must
be proved 492

Statements in affidavits are inadmissible 492
Evidence produced by a defendant in the first proceeding is inadmi-

ssible against his co-defendant 492

Proviso (3) Identity of Issues 492

Principle 492
Questions in mutation pruceedings are not necessarily the same as in a

subsequent civil suit 493
Evidence recorded in a suit to contest a notice of ejectment, whether
admissible in subsequent civil suit ? 493
Deposition made before a Sub-Registrar in an inquiry under
Section 41(2) of the Registration Act is admissible in a subsequent
civil suit relating to the genuineness of the will 494
A deposition admitted under Section 33 constitutes substantive evid-
ence: admissibility of a previous deposition under some other provi-

sions of the law 494
'195
Moce of proof of a deposition

Use of incomplete evidence 495
Credit of a deceased deponent may be confirmed or impeached like

that of an ordinary witness 495
Section 33 of the Evidence Act and Section 288 of the Criminal Proce-

dure Code 496
Statements made under special circumstances ... 496

34. Entries in books of account when relevant 496

Illustration 496
Commentary
 lxxx INDIAN EVIDENCE ACT. 1872

Page
Principle 496

What is a book of account? 497
Regularly kept in the course of business": the system according to
which accounts are kept affects their value and not their admissibi-

lity contemporaneous, personal knowledge of the entrant 497
In applying the general principle of Regularity of Entry different
circumstances may come into question 499
Incorrect entries in the books 499
Formal proof of the fact that the books have been regularly kept in

the course of business, whether necessary ? 499
Evidentiary function of the entries; entries relevant but not sufficient
to cb.rge a person with liability 500
Corroboration 502
Account books regularly kept in course of business may be proved

but should be corroborated 502

Each item in the books must be proved 502

Writer must be examined 503
The nature of corroborative evidence 503

Plaintiff's own statement, whether sufficient corroboration? 504
Absence of entry of a fact which, in the usual course, should have
been recorded in the books, is relevant to prove the non-existence
of that fact - 505
Account relevant under Section 34 and other sections of Lhc Act, e.g.,
Sections 32(2), 21, 157, 159 and 160 ; corroboration, whether

necessary ? 506
Suspicious entry 507
Sections 34 and 90 Evidentiary value loose sheets of account 507
Rent collection papers, Jamawasilbaqi, jamabandi, lalib baqi
papers etc. 509
Corroboration necessary for entries in account books 509
35. Relevancy of entry in public record, made in performance of duty... 509
Commentary
Principle 509
Scope-Hath Chitha 510
Public or other official register, book or record ; public servant 511
Section 35 is applicable Loan entry in a public or other official record
of foreign country 511
Contemporaneousness; personal knowledge 511
Entry in an official record made in excess of official duty, whether

admissible? 512

Entry, if not made by the proper official, whether admissible? 512
Absence of entry in a public or official book, register or record,

whether relevant? 513
 SYNOPSIS

Page
Admissibility of registers of births, baptisms, mamages or death 513
Chowkidar Hatchitha entries— Book not produced but a leaf of
the book
516
Entries in Hatchitha Book about child birth— Admissibility to prove
paternity— Non mention of name of child- If ground for not relying
on it.
516
Certified copies of registers of births and deaths admissible 516
Evidentiary value of registers of births and deaths 517
Applicability
517
Official record of custom admissibility and evidentiary value of
entries in the wajibularz
517
Official record of custom ; admissibility and cvidenr.iary value ol
entries in the riwaj-i-am
519
Entries in Riwaj-i-am in conflict with general custom recorded in
Rattigan's Digest— The former should prevail 520
Other official records of custom
520
Records of Rights, settlement, survey and other revenue records 521
Record of rights
522
Evidentiary value of settlement records
523
Evidetia-y value of revenue records
523
Revenue register
525
More than one record of rights
525
Recital of alienation or partition in a revenue record, whether evidence
of alienation or partition?
526
Inam Registers
526
Value of entries in Inam Register
Quinquennial Registers 526
526
Register of sarsikan papers
527
Presumption of public temple in Madras State and near abouts 527
Diglott Register
527
Value of recitals in an ancient document
527
Chittahs
527
Partition or batwara papers
527
Maps, surveys and parcha slips
528
Reports made by public servants
529
Evidentiary value of Official reports
529
Reports under Section 202, Cr. P. Code, or under Order 26,
C.P.Code
530
Endorsement of a public document by a public servant: statement
made by a public servant in a public document
530
Recitals of relevant facts in judgments inter panes or not
inter panes
531
Entry of date of birth in a guardianship certificate or in a register of
applications for guardianship, whether relevant?
531
 xxii INDIAN EVIDENCE ACT. 1872

Page
J-lospi(.at regi,tcrs and certificates 532
School registers, records and certificates 532
Matriculation certificate 533
Evidentiary value of school registers 534
False entry in School Register can be explained 534
Municipal registers and records 534
Municipal Records— Presumption of correctness 535
Jail registers 535
Forest marking book 535
First information reports and statements recorded by the police 535
Relevancy of Police Report of election meeting 536
Proof of Electoral Roll 536
Evidentiary value of voter's list 536
Entries in Crime Note Book 536
War Diaries 536
Recovery list 537
Public rrord of a relevant statement is admissible 537
District Ga'cttccrs 537
Metrological records 537
Correspondence and copies of correspondence 537
Instances of other clitries held admissible under the section 518
Mutation entries 539
Evidentiary value of mutation order based on Untrue evidence 539
Report of Court of Enquiry on accident to aircraft 539
Entries held unadmissjhte under the section 540
Municipal Act 540
Recitals of boundaries of land in a sale certificate 541
Sections 35 and 77 541
Facts contained in Judgment not Inter Partes are not admissible
under Sections 40 to 43 541
Commissioner's Report 541
36. Relevanc y of statements in maps ) charts and plans 541
Cotr.mentnry
Maps, charts and plans 541
Published maps or charts generally offered for public sale 541
Maps and plans made under the authority of Government must have
been made for a public purpose 542
Map not an official map— Admissible only on proof that it was gene-
rally offered for public sale 542
Superimposed maps 542
Plan made by a Commissioner 542
Proof ot maps and plans 542
Survey maps
543
 SYNOPSIS
ME

Page
Survey maps arc good but not COnClUSiVe evidence of possession;
presumption as to their accuracy
Factors LOveming the evidentiary value of survey maps 543
Survey maps whether evidence of title? 544
Revenue maps 544
Chivahs and field-books 545
Topographical survey maps 545
Thakbast maps and thak khasra 546
Presumption of accuracy of thak maps 546
Evidentiary value of thak maps 546
Thakbast maps, whether evidence of possession and title? 547
Survey maps and thak maps, whether Sufficient evidence of the fact 548
that the land was included in the Permanent Settlement ?
Survey map disagree wth the thakbast map 548
Absence of entry in a survey map or thak map 549
Diara map 549
Rennell's map 550
Other maps and plans 550
Section 36 and 83 550
37. 551
Relevancy of statement as to Fact or public nature,
certain Acts or notifications co ntained in
Commentary 551
Principle
Fact of a public nature 552
Recital of a fact of a Public nature in a private Act 552
38. Relevancy of st 552
atements as to any law contained in law books
Commentary 552
Proof of foreign law -
Statement of foreign law in 553
authorized books and authorized or
unauthorized reports is admissible
Proof of foreign law by expert testimony 553
Foreign law is provable by foreign judgment 553
Commercial documents 553
How much of a statement is to be proved 553
39. What 553
evidence to be given when statement forms part of a
conversation document, book, or, series of letters or papers
Commentary 553
Independent parts of a statement not admissible
Explanatory or qualifying parts of a statement are admissible 554
Pasts of a confession, not admissible under Section 27, do not become 554
admissible under Section 39
Judgments of courts of justice, when relevant 555.
555

lxXXiV INDIAN EVIDENCE ACT. 1872

Page

40. Previous judgments relevant to bar a second suitor trial 555
Commentary
Previous judgments admissible in support of a plea of rcs

judicata or of autrefois acuit or autrefois Convict 555

"Holding a trial" includes trial of an issue 556

Only appellate judgment must he produced 556
Judgment given in evidence under Section 40 may be

attacked on any such ground as is mentioned in Section 44 557

41. Relevancy or certain judgments in probate, etc., jurisdiction 557
Commentary

Judgments in Personam and judgments in rem 558

Final judgment, order or decree 559

Only appellate judgment must be produced 559
Judgnicnts in rem conclusive of matters actually decided

foreign judgments in rem 559

Reasons of the conclusiveness of judgments, in rem 559

Judgment in rem whether conclusive in criminal proceedings 7 559

Construction and Interpretation of the Section 560

What is a matter of status 560

Judgments of probate Coons 560

Judgment in rem-Presumption regarding probate judgment 561
Order granting probate conclusive against panics, privies
and strangers, of the appointment of the executor or the
administrator, and of due execution, validity and contents

of the will 561

Other matter Q of which the probate is conclusive evidence 562
Order of a probate Court cannot be questioned by any other

civil Court 562
Order granting probate, whether conclusive answer to a

criminal prosecution ? 563
Probate iudgment is conclusive of the grounds of the decision
against parties and privies on principles ofreajudicata
Probate judgment no evidence, in any case, not conclusive
evidence either under Section 41, Evidence Act, or Sec-

tion 11, C.P. Code, of matters only incidentally decided 564

Order refusing probate, whether conclusive ?

565
Probate judgment of foreign Court 565

Matrimonial jurisdiction 566
Judgment of a Court of matrimonial jurisdiction conclusive
against strangers on questions status but not on grounds for
the dissolution of marriage, etc. 566

Judgment under the Hindu Marriage Act is ajudgmcnt in rem 567
 SYNOPSIS lxxxv

Page
Judgments of a foreign matrimonial Courts 568
Judgment of a matrimonial Court annul marriage, whether conclu-
sive on a charge of bigamy? 568
Admiralty jurisdiction 568
Scope of Section 41, Insolvency judgments 568
Insolvency jurisdiction; order of adjudication as insolvent etc. 569
Adjudication by insolvency Court as to a person's title to
property seized by the Court is conclusive 570
Order refusing to declare a person insolvent is not a judgment in
rem ; decision of insolvency Court that a person is or is not
member of firm not conclusive inter omnes 570
Decision that a creditor has or has not proved his right to present
the petition 571
Findings in an insolvency juugment, whether conclusive? 571
Legal character 571
The section is exhaustive of judgments in rem judgments on
questions of adoption, legitimacy, etc., are not judgments
in rem 571
Foreign judgments declaring status 572
Foreign Judgments 572
Orders in luancy proceedings 572
42. Relevancy and effect of judgments, orders or decrees, other
than those mentioned in Section 41 572
Illustration 573
Commentary
Principle 573
Matters of a public nature 573
Judgments on questions of customs or usage 573
Report is not a judgment 574
Judicial decisions on questions of customs are relevant; com-
promise judgments admissible 574
Other instances of matters of a public nature, judgments re-
garding which have been held admissible 574
Matters not held to be of a public nature 575
Coroner's Inquisition 575
Only appellate judgment must be produced 575
43. Judgments. etc., other than those mentioned in Sections 40 to 42
when relevant 575
Illustrations 576
Commentary
Principle 576
A judgment: not inter partes, is conclusive evidence against

Ix xvj INDIAN uVIDliNCu ACT, 1872

!'age
strangers of its existence, date and legal consequences and
disLnghished from its truth
577
Admissibility of judgment not inter panes 578
Judgment not inter panics— Redemption suit— Evidentiary
value of previous decisions
578
A judgment not inter panes, not being a judgment in rem or
relating to matters of a public nature is irrelevant, but the
existence of such judgment may become relevant under
some other section of die Act
578
Instance of the existence of a judgment becoming a fact in issue
or a relevant fact
580
Mere recitals of relevant or collateral facts in judgments are
inadmissible
581
Judgment between a party and a scanger 581
Judgments inter panics, which are not admissible under Sections
40-42 whether admissible under Section 43?
581
Previous judgment in criminal case whether admissible in sub-
Sequent tstal
582
Judgment of a criminal Court is irrelevant in a civil Suit as
proof of the point decided by the criminal Court 582
E ideritiary value of a judgment of a criminal Court 584
Proceeding for the revocation of the grant of probate Relevancy
of the judgment in a previous criminal case wherein the son
was convicted of murder
584
Judgment of a civil Court is not admissible in a criminal Court
to establish the truth of the facts found by the Civil Court 585
Criminal cases should he given precedence
585
Judgment of acquittal in a suit for damages for malicious
Prosecution
586
Malicious Prosecution : Suit for damages
586
Admissibility ofajudgment of the criminal Court in a suit for
damages
586
Plea of autrcfois acq
586
In a prosecution for perjury, the judgment in the proceeding
in which evidence was given is inadmissible
586
A judgment may be secondary evidence of the pleadings of the
parties thereto and of any statement, admission or
acknowledgement
586
Finding by a Co-operative Societies Deputy Registrar 587
Contradicting a witness by ajudgnient whether admissible as
croof of the deposition of a witness or the ierms of a docu-
nment rcfei-rcd to in that judgment ?
587
Sections 11, 13 and 43
588
Motor Accidents Tribunal and Criminal Judgment
• 588
 SYNOPSIS
lsxxvji

Page
44. Fraud or Collusion in obta in ing Judgment or
Court, may be proved incompetency of
588
Commentary

Avoiding circumstances of a judgment admitted under Sections

40,4lor42
Avoiding circumstances may be shown in the proceedings in 588
which the decree Qr order is given in evidence
Foreign judgment may be assailed by a stranger on the grounds 589
menticrn pil in Shf'
590
Want of jurisdiction
590
Judgment delivered by a Court "not competent" to deliver
it is
void distinction between total want of
exercise of jurisdiction jurisdiction and erroneous

Separate proceedings to set aside a decree or an order made 590

without jurisdiction are not necessary
592
The Court executing a decree is entitled to refuse to execute it if
it was made by a Court not having jurisdiction
Section is subject to SCCIiOU 11 of the Code of Civil Procedure 592
Fraud 592
592
Fraud as an avoiding circurr; rcc of a j u
dgment, order or decree 593
Fraudulent nature of the judgment, order or decree may be proved
in the proceeding in which it is tendered in e v
idence, and a
Prev ious separate suit to have it set aside is not necessary
No res judicata if the previous judgment, order or decree was 593
obtained by fraud or collusion
What is fraud? 593
Explanation 594
Fraud in Section in 44 means "actual" and not "constructive" fraud 594
Fraud must be extrinsic or collateral to everything adjudicated 594
upon and not such as has been dealt with by the Court pass-
ing the judgment sought to be vacated
It may be shown that the Court was misled, but not that the 595
Court was mistaken; decree cannot be attacked on the gro-
und that it was procured by perjured evidence
Exparte decree is invalid if Obtained by fraudulent suppression 595
Of summonses
Court asked to set aside decree on the ground of fraud cannot 596
examine the decree on its merits
Signature on summons forged 597
A stranger may plead fraud, as also a pasty on whom fraud has 597
been practised, but not a party who himself has practised fraud
Whether a privy may plead the fraud of his pre 597
decessor in interest ? 598
lxxxviii INDIAN EVIDENCE ACT, 1872

Page
Collusion 598
Collusion 598
Separate suit to set aside the decree not necessary 599
A stranger to a previous judgment may plead collusion but not a
party to it 599
Negligence 599
Section, whether exhaustive of the grounds which ajutigment,
order or decree may be attacked ; negligence 599
Setting aside decrees on ground of mistake 600
Right under Section 44 is independent of any limitation 600
Opinions of third persons, when relevant 601
45. Opinions of experts 601
Illustrations 601
Commentary
Option evidence in general expert testimony 601
Matters for expert testimony; competency to depose as an expert 603
Foreign law 603
Foreign law 603
Competency of a foreign law expert 604
Science or Art 604
Science or art 604
Mode of making expert opinion evidence 605
Expert should be examined in the presence of the accused and not
on commission 606
Medical experts 607
Competency of a medical expert • - 607
Value of medical expert testimony 607
Use of the evidence of a medical expert, Per. S.K. Das and
Sarkar JJ. 608
Meda! o'iion on the nature of injuries 610
Medical evidence 610
Medical opinion as to age 610
Proof of age of girl 610
Opinion of experts postmortem report— Evidentiary value as to
age of injuries - 611
Medical report or certificate 611
Doctor's endorsement regarding soundness of mind 611
Scope— Expert evidence as to mental condition of a person 612
Workmen's Compensation Act 612
Accident— Loss of expectation of life— Proof— Medical Evi-


SYNOPStS
lxx'u

Page
dence— Admissibility 612
Chemical Examiner's report -. 612
Differing reports from Chemical Examiner and Imperial
Serologist— Duty of prosecution 613
Hypothetical questions 613
Hypothetical questions to an expert ... 614
Chances of a man falling out of a window ... 614
Handwriting experts ..- 614
Handwriting experts ... 614
Competency of handwriting experts ... 615
Mode of proving a writing genuine or forged. Sections 45, 47
and 73, Modes of proving handwriting ... 615
Report of a handwriting expert 617
Examination of handwriting expert in a sine qua non ... 617
Value of expert testimoney on questions of handwriting ... 618
Opinion as to typewritten matters ' ... 623
opinion as to printed matters ... 623
Finger Impression Experts .. 623
Thumb-impression experts ... 623
Competency of finger print expert- 624
Value of finger print experts testimony 624
The report of a finger print expert ... 627
Section 45 and 5— Evidence of thumb impression expert-
Importance of Duty Of Court ... 627
Opinion of Expert Trackers ... 627
Evidence of foot print expert ... 627
Opinion of expert on type script ... 628
Footprints ... 628
Identification of Hair ... 628
Dog tracking evidence— Admissibility ... 629
Evidence of dog tracking— Not ordinarily of much weight ... 629
Fire arms experts ... 629
Scope of- Murder caused by use of firearm prosecution, if bound
to call ballistic expert in addition to direct evidence ... 629
Value of the opinion of nautical assessors ... 630
Public Analyst's certificate ... 630
Sections 45 Scope— Opinion of Architects— Regarding cost of
construction— Value of 630
Opinion of Registrar of Trade Mark as an Expert ... 631
Section 45—Copyright ... 631
Expert test irnony in general ... 631
Failure to examine Excise Inspector ... 631
Section 45— Examination of a handwriting expert if a sine qua non ... 631

Ke INDIAN EVIDENCE ACT, 1572

i'age
Opinion of expert not called as a witness 631
Failure to cross-examine an expert 631
Court acting as an expert 632
Value of expert testrnony in general 632
Section 45— Opinion of handwriting expert—Evdcntiary value 633
Evidence of a handwriting expert- Evidentiary value and binding
nature 633
Value of expert evidence 633
Experts evidence not supported by reasons valueless 633
Finding based on expert testimony may be challenged in second
qI 6A
Evidentiary value of photographs 634
Whether expert testimony of handwriting can be based on photo-
graphs-- Admissibility of photographs 634
Mode of impeaching the credit of an expert. 634
Cross-examination of an expert by another expert 634
46. Fact bearing upon opinions of experts • 635

Illustrations • 635
Commentary
Facts consistent or insonsistcnt with the opinions of experts 635
Expert Evidence 636
Value of Passage from books 636
47. Opinion as to handwriting when relevant 636
Examination 636
Illustrations 636
Commentary
Mode of proving Handwriting 637
Proof of the genuineness of a document 638
Handwriting proof of 638
Examination of Handwriting expert not necessary in every case
of disputed writing 639
Anthracence powder and ultra-violet lamp 639
Competency witness must be acquainted with the handwriting 639
Whether handwriting includes signature and mark? 640
Evidence of handwriting expert should be corroborated 641
Explanation to Section 47 641
Sections 45 and 47— Expert evidence about genuineness of the
handwriting 642
Section 45 and 47— Opinion of handwriting expert- Evidentiary
value of when Court to accept opinion 642
Section 47 and 67 642
 SYNOPSIS xci

Page
Sections 45, 47 and 73 643
48. Opinion as to existence of right or custom, when relevant 643
Explanation 643
Illustration 644
Commentary
Opinion as to the existence of a right or custom; section 13 com-
pared with section 48 644
Section 32 (4) compared with section 48 644
General custom or right 644
Whether custom includes usage? 644
Persons having special means of knowledge 645
Opinion is admissible, though based on hearsay 645
Value of opinion evidence 645
Entries as to custom in a wajibularz or rewa•axn 646
Rattigan's Digest 646
49. Opinion as to usage, tenets, etc., when relevant 646
Commentary
Opinions as to usages, tenets, etc. 647
Usages of a family 617
Opinions of persons having special means of krow1edge 647
Gambling slips 648
Meaning of betting terms 648
Entries as to Custom in a wajibiilarz 648
50. Opinion on relationship, when relevant 648
Illustrations 648
Commentary
Family conduct ; principle 648
Essential rquircments 649
Section 50— Scope— Relationship of one person to another-Proof
of conduct of witness having special means of knowledge— If
can be proved by another 649
Section 32 (5) and Section 50 compared 649
Section 50 antI 32 (5) 650
Mode of proving opinion 650
Special means of knowledge 650
Persons having special means of knowledge 650
Value of the evidence relevant under this section 651
Value of evidence relevant under Section 50 651
Instances of conduct held relevant 651
General reputation as proof of relationship not admissible 652
 xcii INDIAN EVIDENCE AD, 1872

Page

Opinion on relationship 652

Opinion expressed by conduct 652

Presumptions from conduct 652
Member of family deposing about fact heard from ancestors—

Admissibility 652

Personal knowledge not necessary 653
Opinion based on hearsay not admissible 653

Evidence of general repute 653

Marriage acknowledgment: adoption 653

Law presumes marriage 655

Proviso 656
Effect of the proviso to Section 50 656
Proviso to section 50 not applicable to contempt proceedings 656
Section 50 and 60— Applicability and scope— Opinion evidence
as to relationship— Mode of proof 657

Sections 50 and 60— Inter Rclationship between these Sections 657

Sections 50 and 60 Proof of Marriage 657
Evidence of devolution of property—Sections 50 and 60 658

51. Grounds of opinion, when relevant 658

Illustration 658
Commentary

Principle 658

Grounds of opinion 658

Character, when relevant 659
659
Introductory

52. In civil cases character to prove conduct imputed, irrelevant 659
Commentary

Scope of Sections 52, 53 54 and 55 659
Evidence of character is admissible where character is a fact in

issue 659

Evidence of character inadmissible when character not in issue 660
Sections 52 and 155 660

53. In criminal cases, previous good character relevant 660
Commentary

Previous good character 660

Where character not in issue 661

Value of the evidence of good character 661
Sections 53 and 55, Explanation-- Difference between character
and disposition— Evidence of good character— value of 662
 SYNOPSIS xciii

Page

662
54. Previous bad character not relevant, except in reply
662
Explanation 1
662
Explanation 2
Commentary
Evidence of bad character 662
Evidence of bad character, when admissible; Explanation 1 664
Evidence of bad character may become relevant under sections
14 and 15 665
Previous conviction : Explanation II 666
Previous convictions for specific offences, whether admissible in
trials of gang cases under Section 400 or Section 401 I.P. Code? 667
Proof of Previous Conviction under Section 75, I.P. Code 668
Character of the prosecutor 668
669
55. Character as affecthIg damages
Explanation 669
Commentary
Character evidence in suits for damages 669
Cases where bad character of the plaintiff affects the amount of
damages 669
Plaintiff's good character, whether relevant 669
Explanation : general reputation and general disposition 670
Part II
On proof
Chapter III
671
56. Facts which need not be proved
Commentary
Facts which need not be proved 671
671
57. Facts of which Court must take judicial notice
Commentary
Judicial notice Facts of which Court must take judicial notice 673
Clause (1) ; Judicial notice of laws and rules having the force of law 674
Rules of Hindu law, Mohammadan law, or custom to be judicially
noticed 674
Reference to Law Reports 675
Clause (2): Acts of British Parliament 675
Clause (4): course of proceeding of Parliament 676
Clause (6) : seals of which English Courts take judicial notice 676
Signature or seal of a Sub-Registrar or of a Foreign Notary Public 676
Clause (7) judicial notice to be taken of Gazetted Officers 676
xciv INDIAN EV1DINE AC], 1872

Page
Gazette need not be exhibited 676
Clause (8) ; States recognised by the Government of India 677
Clause (9) divisions of time 677
Geographical divisions 677
Public festivals: facts and holidays 677
Clause (10); territories under the dominion of the Government of
India 677
Section 57(10)— Judicial notice of annexation of territory— Rule
as to 678
Clause (11); state of war between the Government of India and
q ny nrhr tate 678
r 67
Clause (13); ule of the road
List of facts enumerated in Section 57 not exhaustive of the facts
of which Courts may take judicial notice 678
Constitution of India, Art. 14 and 226 681
Reference to appropriate books of documents of reference 681
Matters of history, literature, science or art, of which judicial
notice may be taken: reference to standard works 682
Reference to works of science or art; Section 57 and Section 60 683
Matters of history, literature, science or art, of which judicial
notice may be taken ; reference to standard works 682
Reference to works of science or art ; Section 57 and Section 60 683
Attention of the parties must be drawn to books and documents
referred to by the Court under this section 684
The Judge cannot utilize his personal knowledge of particular
facts which are not subject of judicial notice 684
Constitution of India, Art. 32 684
58. Facts admitted need not be proved 685
Commentary
Admissions in pleadings ; principle 685
How and when may admissions be made? 685
Implied admissions or admissions by non-traverse 686
Implied admission as to jurisdiction 686
Admissions by Counsel 686
Distinction between evidentiary admissions and admissions
in pleadings 687
Admission of the execution and the terms of a document renders
proof of the document unnecessary, even though the documents
is inadmissible for Want of registration, sufficient stamp or
proper attestation 687
Admission of a subsequent oral agreement varying the terms of
a registered instrument 688
Section 58— Original need not be proved 689
 SYNOPSIS xcv

Page
Section whether applicable to criminal trials? 689
Consent of the accused to an unauthorized course of procedure 689
Admissions in probate suits and divorce cases 690
Section 58— Denial 690
Section 5l_ Admission— Weight Of 690
Proviso ; Courts may require admitted facts to be proved discre-
tion to call for proof should be exercised where the admission is
fraudulent or erroneous or where the document admitted is in-
operative by reason of want of registration or proper attestation 691
Discretion when to be interfered with by the appellate Court 691
Chapter IV 692
Of oral evidence 692
59. Proof of facts by oral evidence 692
Commentary
Facts that may be proved by oral evidence 692
Meaning of oral evidence 692
Evidentiary function of oral evidence 692
Election cases 692
Election cases 692
Oral evidence should be judgcd in the light of probabilities,
admitted facts and principles of human action 692
Presumption arising from partial perjury or forgery to be applied
with caution 701
Appreciation of oral evidence 703
0. Oral evidence must be direct 708
Commentary
Meaning of "direct evidence" in English law and under the Indian
Evidence Act 709
Circumstantial evidence 709
Meaning of "hearsay"; exceptions to the rule against 'hearsay" 710
Statements made by persons not examined as witnesses may in
some cases amount to "original" as distinguished from "hearsay"
or "derivative" evidence 710
Reasons for the exclusion of hearsay 711
Hearsay evidence— Reasons for rejection 711
Fact to be proved by direct evidence must be shown to be fact
in issue or relevant 711
Hearsay evidence held inadmissible 712
Section 641) 712
Fabricating Evidence 713
Section 60 713
Section 60— Oral evidence— Part of the statement which is
xcvi INDIAN EVIDENCE ACT. 1872

Page
hersay not admissible 713
Secondary evidence of the contents of a document by a person
who has seen but not himself read, the document is inadmissible 714
Evidence as to the signature of a person by one who did not see
the executant sign 714
Section 50— Admissibility of F.I.R. 714
Reports, certificates, letters telegrams, newspapers, maps etc., are
inadmissible unless the writer is examined 714
The post-mortem report if relates to dead body— Eyidence of
doctor as to indentification if admissible 715
Catalogues, admissibility of 715
Hearsay evidence as to the loss of a document, when admissible
to found a case for the reception of secondary evidence 715
Doing and sayings of an unlawful assembly or a mob 716
Hearsay evidence of general repute in proceedings under Section
110, Cr. P. Code, admissible 716
Opinion as to the existence of a family custom is relevant even if
the opinion is based on hearsay 716
Section 50 and 60 716
Family tradition 716
Hearsay in affidavits 717
Consent or omission to object hearsay evidence does not make
it admissible; hearsay evidence in cross-examination. 717
Section 60— Domestic tribunal and proof 717
Proviso I ; Opinions of experts expressed in treatises may be
proved by the production of treatise 717
Section 49 & 60— Opinion of living expert in a treaties 718
Proviso II 718
Chapter V 718
Of documentary evidence 718
61. Proof of contents ofdocuments 719
Commentary
Section 61 is subject to the provisions of Sections 64 and 65 719
Section 61 719
Section 61— Scope— Consent to admission of document if bar
to challenge its genuineness 719
Section 52,61,64 & 65— Scope and applicability 719
62. Primary evidence 720
Explanation I 720
Explanation 2 720
Illustration 720
Commentary
 SYNOPSIS xcvii

Page

Primary evidence 720

Explanation I: Document executed in several parts or counterparts 720
Explanation TI: Printed, Lithographic, photographic and other re-
production g made by uniform process 721
721
63. Secondary evidence
Illustrations 722
Commentary
Definition and admissibility of secondary evidence; Section 63
and 65 722
Section 63— Proof of Report of speech 722
Section 63— Photograph
Clause (1) ; certified copies 723
Certified copy is not proof of the execution of the document 723
Copies of registered documents obtained from the Registration
Office 723
Clause (2) ; copies made by mechanical processes, and copies
compared with machine—made copies. 723
Clause (3) copies made by mechanical processes, and copies
compared with machine—made copies. 723
Judgment, whether good secondary evidence of the pleadings,
admissions, depositions, documents filed etc. ? 725
Copies obtained from the Registration Office 726
Proof of copy is no proof of the execution and genuineness of the
original 726
Section 63 726
Clause (4) ; counterparts of documents 726
Clause (5) oral accounts of the contents of a document, given by
a person who has himself seen it 726
Oral account of the contents of a document by a person who has
seen but not read the original is inadmissible 727
The section is exhaustive of the kinds of secondary evidence
permitted by the Act 728°'
A judgment may be secondary evidence of the pleadings of the
parties thereto, and of any statement, admission of
acknowledgement 729
Objection to the form of secondary evidence cannot be taken for
the first time in appeal 729
Admission of improper secondary evidence by consent -- 729
64. Proof of documents by primary evidence 729
Commentary
Principle -. 729
Section 64— Medical Report 730
LA

xcvii INDIAN EVIDENCE ACT, 1872

Page

Section 64--- Unregistered lease 730
Section 64— Objection to admissible of document— If can be

raisçd in appeal 730
65. Cases in which secondar y evidence relating to documents

may be given 730
Commentary

Section— 65 Scope 731
Sections 65 and 91 facts evidenced by documents may, in some

cases, be proved by independent oral evidence 731
A document need not be proved or produced when its execution

and contents have been admitted in pleading 733
Written admission as to the contents of a document, made
otherwise than in pleadings also dispenses with the production

of the original 733

Admission as foundations of a claim 734
Secondary evidence can be admitted only on the ground.s mentioned

in Section 65 734

Section 65—. Producing during arguments 734

The section is applicable to criminal cases 734

Section 65— Section applies to criminal cases also 734
Appellate Court will not ordinarily interfere with the discretion

of the first Court in the admission of secondary evidence 734
Secondary evidence admitted without objection in the Court of
first instance, appellate Court cannot raise or recognise an

objection to its admissibility 735
Section 65--- Registered deeds— Proof in the absence of original

deeds 735
A document inadmissible for want of registration, cannot he proved

by secondary evidence 736
Secondary evidence of an unregistered mortgage-deed is admissible

to establish the personal liability of mortgagor 737
Secondary evidence cannot be given of the contents of a docu-
ment which is inadmissible by reason of its not having been

sufficiently stamped 737

When may a document be presumed to have been stamped 738
Secondary evidence of an unstamped document executed out of

India 738
Documents, not produced after notice, to be presumed to have been

duly stamped 738
Section 65— Original documents not produced— Copies are not

admissible 739
Section 65— Secondary evidence— Admissibility when original

available 739
 SYNOPSIS xcix

Page
Section 65— Secondary evidence— Admissibility— In case orialnal
itself inadmissible 739
Secondary evidence of an acknowledgment of liability under
Section 19 of the Limitation Act is admissible 739
Secondary evidence of a document is no proof of its genuineness
or execution 739
Section 65— Certified copy of will 739
Section 65— Uncertified copy is useless 739
Section 65— Draft of notice issued by party— Admissibility in
evidence 739
Clause (a) 740
Sectic 65 (z)—Sccpe of section 65 (a)— Case falling under
Section 65 (a) Secondary evidence is admissible 740
When the original is or appears to be in the possession or power
of the person against whom it is sought to be proved 740
Section 65 (a) 740
Notice 740
Section 65 (a) 741
Any kind of secondary evidence is admissible under this part of
the clause 741
Section 65— Any secondary evidence will be admissible 741
Section 65 (a)— Terms of lease contained in correspoziJnce
Original produced— Secondary evidence admissible 741
When the original is or appears to be in the possession or power of
any person out of reach of, or not subject to the process of the
Court, secondary evidence becomes admissible without notice
to produce the original 741
When the original is or appears to be in the possession or power
of a person who is legally bound to produce it 741
Section 65 (a)— Clause (a) of Section 65 is not controlled by
clause (1) thereof 742
Section 65 (a) and (f) 743.
Clause (b) 743
When the existence condition or contents of the original have been
proved to be admitted in writing by the person against whom it
is to be proved, or by the representative in interest of such
person 743
Written admissions as to the contents of inadmissible documents
are themselves inadmissible 743
What constitutes admission of the existence, condition or contents
of a document 744
Denial of execution of a bond, coupled with a plea of payment 744
Section 65(b)— Question of admissibility of a document cannot be
 INDIAN 1VIDF3NCli ACT, 1872

Page
raised for the first time in Supreme Court 744
Clause (c)
When the original has been destroyed or lost, or when it cannot
be produced in reasonable time 744
Section 65 (c)-- Document in defendant's possession 745
Secondary evidence of previous conviction 745
Sufficiency and admissibility of the evidence of search for the
document 746
Document on the record of another case, secondary evidence
whether admissible 747
Hearsay is inadmissible to prove loss or destruction of the docu-
ment, but is admissible to prove reasonableness of the search 748
Suit on a bond alleged to be lost: loss of bond must be proved even
if payment is pleaded 748
Reconstruction of a lost record 748
Probate may be granted of a lost will 748
Section 65 (c)— Secondary Evidence as to the contents of the
original 749
Any secondary evidence may be given when the original is lost or
destroyed or cannot be produced 7-19
Section 65 (c)— Any secondary evidence is admissible 749
Clause (d) 749
When the original is of such a nature as not to be easily movable 749
Clause (e) 749
Public documents may be proved by certified copies 749
Instances of public documents held provable by certified copies 750
Section 65 (c) 750
Form of secondary evidence admissible in proof of the contents
of a public document 751
C!ase () 751
When the original is a document of which a certified copy is
permitted by law to be given in evidence 751
Income (ax documents 752
Copies obtained from the registration office are inadmissible unless
a case for the reception of secondary evidence under Section
65 of the Evidence Act is made Out 752
Form of secondary evidence admissible in proof of document
falling under clause (f) 752
Clause (g) 752
Section 65 (g)— When originals consist of numerous documents
etc. 753


SYNOPSIS ci

Page
Degrees of secondary evidence; last four paragraphs of the section 753
Scope Sections 65 and 63 definition and admissibility of secondary
evidence 754
Sections 65 & 66— Applicability— Agreement of sale entered
into with the defendant- Sale to plaintiff— Agreement of sale
with vendor— Failure to produce on notice sent by defendant—
Admissibility– - Evidence of contents 754
Sections 65, 67— Object 754
Section 65— Testimonial Compulsion—Attempt to adduce secon-
dary evidence— If can amount to testimonial compulsion 755
66. Rules as to notice to produce 755
Commentary
Notice to produce is necessary whether the document be in the
possession of a party or a stranger 756
Application of the section to criminal cases 756
Form of notice 756
Service of notice 756
Estoppel by notice 756
Omission to object to the admissibility of secondary evidence
tendered without giving notice to produce 757
Section 66— Scope— Certified copies admitted and marked as
exhibits without objection— Objection at late stage— If open 757
Proviso (1) 757
When the document is itself a notice 757
Proviso (2) 757
Where the adverse party must know that he will required to produce
the document 757
In a redemption suit notice to the mortgagee defendant to produce
the mortgage deed is not necessary 758
Pro forma defendant, whether adverse party? 758
Proviso (3) --- 758
When the adverse party has obtained possession of the original by
force or fraud 758
Proviso (4) 758
When the adverse party or his agent has the original in Court 758
Proviso (5) 758
When the adverse party or his agent has admitted loss of the
document -- - 758
Proviso (6) - -- 759
When the original is in the possession of a person who is out of

cli INDIAN EVIDENCE ACT. 1872

Page

reach of, or not subject to, the process of the Court 759
Notice may be dispensed with in any other case in which the

Court thinks lit to dispense with it 759
67. Proof of signature and handwriting of person alleged to have

signed or written document produced 760
Commentary

Principle and Scope 760

Meaning of execution of a document 760
A document not proved is inadmissible evidence unless strict proof

was waived; omission to object to proof 761

Mode of proof of signature or writing 762

Presumptive proof of the execution of a document 763
May a document be considered to be proved merely on proof of

the signature of an attesting witness 764

Proof of a registered document 765

Proof of corrections of a document 766

Original Sale Deed not filed 766

Proof of signature includes proof of mark or thumb-impression 766

68. Proof of execution of document required b y law to he attested 767
Commentary

Documentary required by law to be attested 768
Document executed in England and required by the English law to

be attested 768
A document required by law to be attested cannot be used as

evidence, unless at least one attesting witness has been called 768
Fa i lure to comply with the provisions of section 68 does not make
the document admissible even if no objection is taken to its

admissibility 768
'though more than one attesting witness need not be called, the
document; must be proved to have been properly attested

by the requisite number of witnesses 769

When aceting witnesses need not be called 771

Formal proof of Will 772
Where a document required by law to be attested has been pro-
perly attested, it cannot he used as evidence even for a coll-

ateral purpose, unless one attesting witness has been called 772
Purposes for which a document not proved in accordance with

Section 68 is admissible 773
A mortgage deed, if properly attested, cannot be used to create a
charge, or as evidence of personal debt, unless one attesting
witness has been called; but if the deed is not properly attested,
it may be used as evidence of a personal debt without call-

ing an attesting witness 773
 SYNOPSIS Ct"

Page
Meaning of attestation; attestation of wills governed by the Indian
Succession Act 774
S. 45, Corroboration of the Signature of testator 774
Meaning of attestation; attestation of instruments is required by
the Transfer of Property Act to be attested 774
Amendment, whether retrospective? 774
It is not necessary that both the attesting witness should be present
at the same time 777
Attestation of deeds executed by pardanashin ladies 777
A party to a deed is not a competent attesting witness? 778
A erribe rflnrd Itect his own act 779
Whether a Sub-Registrar or a witness identifying the executani
before a Sub-Registrar can be treated as an attesting witness 779
Endorsement of admission of execution made by the Sub-Registrar
does not require proof 780
Proof of thirty years old documents 781
Proviso; in the. case of a registered document other than a will an
attesting witness need not be called 781
Will 783
Succession Act, Sections 61, 63 783
Succession Act, Sections 276,213,63 783
The Proviso is retrospective in its operation 784
69. Proof where no attesting witness found 784
Commentary
Principle 784
If no attesting witness can be found 784
Proof of unavailability of the attesting witness necessary 785
Proof of the handwriting of the attesting witness and of the
signature of the executant is necessary 785
Proof of signature of the cxecutant 786
Proof of the handwriting of the witness 786
Objection to the sufficiency of proof under Section 69 cannot be
entertained in appeal 787
Document executed in England 787
70. Admission of execution by party to attested document 787
Commentary
Where the execution of a document is admitted, no attesting
witness need be called 787
Meaning of admission of execution 787
To dispense with the proof of execution, the admission must
have been for the purposes of the suit; merely evidentary admi-
ssion do not dispere with the proof of execution 788
 INDIAN EVIDENCE ACT. 1872

Page
The admission is binding only on the admiEing executant and

not on his co-executant or representative in interest 789
Provisions of the law requiring certain instruments to be attested
are not affected by Section 70 of the Evidence Act, which applies
only to properly attested instruments to be attested are not affect-
ed by Section 70 of the Evidence, which applies only to properly

attested instruments 789
Admission of the section of a document does not dispense with
the proof of its attestation, if its attestation is denied 790

71 Proof when attesting witness denies the execution 793

Commentary
Execution of a document may be proofed by other evidence, if the

attesting witness called denies or does not recollect its execution 793
When the execution of a document is sought to be proved under

Section 71, proof of attestation is not necessary 794

72. Proof of dc"aent not required by law to be attested 795

73. Comparison of signature, writing or seal with others admitted

or proved 795

Commentary

Section 73 lays (town an additional mode of proving handwriting 795
The admitted or proved writing, signature, etc., may be compared with
the writing signature, etc. which either purports, or is alleged, to

have been written or made by a particular person 796
Disputed writing can be compared only with an admitted or proved

writing 796

Comparison may be in by the Judge, the jury, or an expert 796
Comparison of handwriting is a dangerous mode of proof when the

Court is not guided by the evidence of an expert 797
Evidence of dissimilarity of handwriting, whether evidence of
forgery? 799
Fud!rsg based '' a comprken nf handwriting r5nnnl he set aside

in second appeal 79)
Comparison of the disputed writing with the specimen of writing
taken in Court is less satisfactory than comparison of it with

approved or admitted previous signature 800

Power of Court to direct accused to give his specimen handwriting 800
Court can order an accused person to give his finger impression for

purposes of comparison 800
Value of the evidence of similarity of finger impressions for purposes

of comparison 802

Section not applicable to a mark, not being a thumb-impression 802
 SYNOPSIS cv

Page

Public documents 802

74. Public documents 802

75. Private documents 802

Commentary
Public documents 8U2
Section 74: Whether original of a public document can be admitted
in evidence without proving its execution in accordance with law 803
Section 74 and 65—Scope--Certified copy of registered document
—If admissible in evidence—Proof of original—Necessity 803
Documents forming the acts or records of the acts 804
Foreign public documents 804
Acts or records of the acts of the sovereign authority 804
Records of the acts of an official body; record of rrr'eecings of a
municipal body 804
Municipal registers of deaths and births 805
Section 74 : Memorandum of association of a company 805
Records of the acts of judic i al officers and tribunals $05
Pleadings 806
Section for prosecution 807
Election papers 807
Complainant's statements under Section 200 Cr. P.C. 807
Compromise Deed 807
Sale deed 807
Confession recorded by a Magistrate not specifically empowered
during investigation of a case - Admission 807
Warrant and other papers of criminal courts 807
Translated copy 807
Acts or records of the acts of a revenue officer ; revenue records,
settlement records, survey and settlement reports, chittahs,jama
-bandis, accounts registers, etc. 807
Revenue documents Mutations 809
Ok),
Pariwarik register
Income-tax documents 809
Acts or records of the acts of a police officer 810
Other public documents 810
Documents held not to be public documents 811
Public records kept in any State or private documents 811
Trust Deed 812
Specific Relief Act, 1963, Sec. 38 $12
76. Certified copies of public documents 812
Explanation 812
77. Proof of documents by production of certified copies 813

no
INDIAN LVIDENCE ACT, 1872

Page
Commentary
Th e fact of a document being a public document and the fact of its
being open to Inspection are not Co-extensive
Public document— Proof 813
of—Nature of evidence required
The right to obtain certified copies 813
Test of right to inspect 813
Notes of evidence 814
Remand reports 814
Food adulteration and Money Lender's Act 814
Dhatu Neet 814
814
The right to inspect depends on the interest which the person applying
for inspection has in the document
814
Remedy of the aggrived persnhi wher inspection or copy has been
wrongly refused
Defect in the form of certificate 815
Copy of a deposition not ceruficj in the manner prescribed by 815
Sections 76 and 86 ; deposition may be proved otherwise
815
Copy unlawfully issued or not properly certified is inadmissible
Unseated copies 815
Certified copy must be of a public document 816
816
Oral evidence of a kanungo not admissible to prove the contents
of settlement record
Copying Ices 816
816
Objection with regard to the admissibility of document
Birth certificate 816
816
78. Proof of other ofl'icial documents
816
L ocal Amendment
818
West Bengal
818
Section 78 provides an alternative mode of proving certain public
documents
818
Clause (1)
818
Acts
Acts, orders of notifications; Clause (1) 818
818
Conflict between the text of an Act as printed in the Gazette of India
and as printed in book form by the Government
Notification 819
Departmental circulars 819
820
Orders of the Government : order sanctioning prosecution
820
Clause (2)
820
The proceedings of the Legislatures
820
 SYNOPSIS

Page

Clause (3) 621

Proclamations, orders or regulations issued by His Majesty or by the
Privy Council 821
Clause (4) 821
The Acts of the Executive, or the proceedings of the Legislature
of a foreign country 821
Clause (5) 821
Proceedings of a Municipal body 821
Clause (6) 822
Foreign public documents 822
Proof of foreign judicial records—Foreign Judgment 822
Presumptions as to documents 822
79. Presumption as to genuineness of certified copies 823
Commentary
Certificates and certified documents must be presumed to be
genuine 823
Presumption as to the original 824
Proof of the original 824
Presumption of genuineness of a certificate of registration 824
Letter signed by the Chief Secretary ordering the prosecution of
a person is sufficient proof of the order of prosecution 824
A certified copy of revenue record 824
Sections 77, 79 and Allahabad High Court Rules, R 260 and
Limitation Act (1963) S. 12 824
Objection in appeal 825
825
80. Presumption as to documents produced as record or evidence
Commentary
Principle 825
idcnc jaust have Ian in the course of a judicial proceeding or
before an officer authorized to take it; police investigation under
Chapter XIV, Cr. P. Code, is not a judicial proceeding 825
A confession or a statement by an accused person need not have been
made in a judicial proceeding 826
To give rise to any presumption under Section 80 the evidence must
have been taken in accordance with law; effect of not interpreting
or reading over a deposition to a witness 826
No presumption under Section 80 if the deposition is not signed by
the Judge. 829
No presumption under Section 80 as to the testation of the deposition
of a medical witness sought to be admitted under Section 509, Cr. P.
Code 829
 INDIAN EVtDt:YCE? ACT, 1872

Page
Presumption under Section 80 arises also in respect of a certified
copy of a deposition 829
Recital of a deposition in a judgment 830
Is there any presumption under Section 80 as to the identity of the
deponent Or the confessor? 830
The presumptions of Section 80 arise in respect of the record of the
statement or confession of an accused person only if it has been
taken according to law 831
Sections 80 and 164 and 364 and 533 Cr.P.C. - Proof of confession,
deposition 832
Confession 833
Confession recorded without jurisdiction or otherwise than under any
statutory direction 833
Certified confessions will be presumed and Section 80 to be
voluntary
833
Presumptions arise tinder Section 80 833
Presumption that the document is genuine 833
Presumption as to the existence of the circumstances mentioned in
the document 833
Presumption as the document having been duly taken 834
Presumption regarding the regard ofa dying declaration when taken
as a deposition 835
A memorandum of identification proceedings 835
Dc!arat ion 835
81. Presumption as to Gazettes, newspapers, private Ads of Parlia-
ment and oUter documents 835
Commentary
Gazettes, newspapers, private Acts, etc. 836
Newspapers 836
Gazettes 837
Electoral roll 837
Report of Court of Enquiry 837
Records of rights 837
A newspaper is not proof of the facts reported 837
Document directed by any law to be kept by any person register of
births and deaths kept under Madras Act III of 1899 838
82. Presumption as to document admissible in England without proof
of seal or signature 838
Commentary

Documents admissible without proof of seal or signature 838

Presumptions as to powers-of-attorney executed and attested abroad 839
Certificate by the Manchester Chamber of Commerce not within the
SeCtion 839
 SYNOPSIS ci.

Page

83. Presumption as to maps or plans made by authority of

Government 840

Commentary 840

Maps and plans sections 36 and 83 840

Maps prepared for a cause 840
Presumption of accuracy arises in respect of those maps and plans
only which are made for a public purpose 840
Extent of the presumption of accuracy 841
No presumption of accuracy in respect of map or plan made for the
purposes of a particular case 841
Instances of maps or plans to which a presumption of accuracy attaches
under this section 842
Settlement maps, value of 842

84. Presumption as to collections of laws and reports of decisions 842

Commentary
Collections of laws and reports of decisions ; Sections 38 and 84 842
Law books and reports 842

85. Presumption as to powers-of-attorney 842

Commentar
Powers-of-ailorney l-t 3
Power of Attorney 3
Presumption an to a power-of-attorney produced at the time of prese-
nting a decutuent for registration 844
Scope of Presumption 8-14
Authcniical by notary in California 844

86. Presumption as to certified copies of foreign judicial records 845

Commentary
Certified copies of foreign judicial records 845
Copy must be certified in a manner which is certified by an Indian
or British representative to the manner commonly in use in that
country 846
The section is not exhaustive of the modes of proof of foreign judi-
cial records; other modes of proving foreign judicial records 846

87. Presumption as to books, maps and charts 846

Commentary
Presumption as to hooks, maps and charts $47

88. Presumption as to telegraphic messages 847

Commentary
Presumption as to telegraphic messages 847
cx INDIAN EVIDENCE ACT, 1872

Page
Delivery to the addressee from the office of destination must
be proved 848
No presumption as to the identity of the sender - No presumption

regarding the author of a message sent by post 848

Proof of telegraphic message 848
Presumption as to the delivery of a telegraphic message to the

addressee 848

Presumption as to the date and hour of the message 849

Mode of proof a telegraphic message 849

Radio messages 849
89. Presumption as to due execution, ctc., of documents not
produced 849
Commentary 849

Applicability 849

No presumption as to the Contents of the document 850
Doubtful whether the section is applicable when the document is in

the possession of a stranger who refuses to produce it 850

90. Presumption as to documents thirty years old 851

Local Amendment 852

Utthr Pradesh 852
Commentary
As amended in Uttar Pradesh by U.P. Civil Laws Reforms and

Amendment Act, 1954 852

Ancient documents principle 853

Construction of ancient documents 853

The scope of Section 90 853

Documents that are the subject of the presumption 853

Section 90 is applicable to wills produced in Courts of Probate 854
The document must purport or be proved to be thirty years old
computation
of the period of thirty years—Mode of reckoning
period 855

Proof of proper custody necessary 855

Document of title in the custody of a person out of possession 856

Meaning of "proper custody": Explanation 856

Instance of proper custody 857
Document produced from the records of a Court, whether produced

from proper custody ? Custody of Court 858

The Presumption is discretionary and not imperative 858

Presumption must he applied with care and caution 860

Proper cases for the application of the presumption 861

Cases where the Court may refuse to apply to presumption 861

Procedure in, and consequent on making the presumption 862
 SYNOPSIS

Page
Interference by the appellate Court with the discretion of the trial
Court in the matter of raising the presumption 862
Extent of the presumption, no presumption as to the correctness of
the contents of the document - Extent of presumption 863
Presumption of due execution 863
Presumption of a sound disposing mind and due attestation in the
case of an ancient will 865
No presumption that the document was executed by a pardanashin
lady intelligently and without undue influence 865
No presumption as to the agent's authority when the document is
executed by an agent 865
Presumption of authority to execute document 865
No presumption as to the authority of the executant of a deed
of grant 866
Document executed by an illiterate person ; document marked by
an illiterate cxecut.ant or signed on his behalf by the scribe 866
Presumption of due attestation includes cases of attestation by agent 867
Attestation by a Registrar 867
Section 90 is inapplicable to documents not purporting to be signed
by, or to be in the handwriting of, any particular person: unsigned
accounts 867
Unsigned accounts 868
No presumption of due execution in favour of the original where the
contents of the original are proved by a copy 868
Presumption under - Section 90—Scope and applicability 868
A copy purporting to be 30 years old and produced from proper cus-
tody may be presumed to have been written or signed by the person
by whom it purports to have been written or signed 870
Certified copies of document 870
Evidentiary value of ancient documents; need for corroboration 871
Service books and other documents 872
Sections 90 and 65— Copy of document admitted as secondary
evidence 872
Commercial Documents 872
Chapter VI 873
Of the exclusion of oral by documentary evidence 873
91. Evidence of terms of contracts, grants and other disposition of
property reduced to form of document 873
Exception I 873
Exception 2 873
Explanation 1 873
Explanation 2 873

Mr INDIAN EVIDENCE ACT, 1872

Page
Explanation 3
873
Illustrations
873
Commentary
Principle
874
Section 10-A of the Deccan Agriculturists' Relief Act oven-ides
Section 91
874
Section 91 is applicable to third panics
Distinction between the provisions of Section 64 and those of 875
Section 91.
875
Three classes of cases where oral evidence is excluded by docume-
ntary evidence
875
Oral evidence is not excluded where the fact to be proved is neither
the contents of a document, nor the terms of a contract, grantor
disposition of property, nor a matter required by law to be reduced
to writing
876
Explanation 111; other evidence not excluded if the fact to be pro-
ved is a fact other than the facts referred to in the section 876
The date of document
877
Endorsement of payment on the back of a bond
877
Endorsement on a deed of alienation, not a record of contract 877
Oral proof of payment or non-payment of money for which a receipt
has been taken is admissible
877
In the case of a contract, grantor disposition oral evidence is exclu-
ded only if the transaction has been actually reduced to winIng
but in the case of matter required by law to be reduced to writing
oral evidence is excluded whether the matter has been reduced to
writing or not
878
Oral evidence is excluded only if all the terms of the contract, grant ...
or disposition have been reduced to writing ... 879
Whether bought and sold notes constitute a contract so as to exclude
other evidence
879
Other evidence is inadmissible in proof of the terms of a contract, gr-
ant or disposition of property, if such terms have been reduced to
writing
880
Evidence of original oral agreement preceding the written contract is
inadmissible
882
Other evidence is admissible in proof of the factum or existence of
a transaction as distinguished from its terms
882
Instrument not registered according to law, other evidence in proof of
the terms of the transaction is inadmissible
884
Registration Act Section 17(l)(b) and 49 T.P.A. Section 5
886
Mortgage-deed inadmissible, independent proof of title not excluded... 886
Oral proof of payment where receipt for money has not been regis-
tered as required by law
886
 SYNOPSIS aiii

Pag~

Document inadmissible for want of proper stamp; other evidence in

proof afthe terms of lhe Lransactian is imidmissible if !.he transac-
tion is a cootmcr, grant or dis{X>sition, or is a matter required by
law to be redueed to writing 886
Promissory note, bill or hundi not properly stamped, whether the van-
saction of loan may be proved by olher evidence /" " 886
Whether the mere facl of payment of money gives a cause of action;
meaning of "suit on the consideration" 890
Insurticiently stamped promissory note need not be proved if the tran-
saction of loan is admitted by the defendant in his pleadings 892
Rate of interest in an inadmissible promissory nOle 892
Document inadmissible by reason of its not having been properly atte ·
sted or by reason of its having been materi~!!y :::.l:crco!, Cial evid-
ence of the transaction inadmissible 892
Object of agreement to sti fle prosecution, other evidence of the agree-
ment whether admissible 893
Matters required by law to be reduced to the fonn of a"document 893
Instance of matters required by law LO be reduced to the fonn of a
document 893
A eontract of sale is not required by law to be reduced to writing 894
Whether oral evidence of a confession to a MagisLrate is admissible
when the Magislrate has made no record of the confession or ..... hen
the record is defective 894
Oral evidence in proof of a deposition 895
Ackno ..... ledgment of liabi lity ; payment of interest on, and part pay-
ment of, the principal of a de bt 896
Previous conviction must be proved by documentary evidence 898
Oral evidence of a dying declaration 898
Statement to the police 898
Oral evidence in a proor of a search, whether admissible 898
Exceptiop I ; appointment of a public servant may be proved by pro-
of of his having acted as such " 899
Exception II ; wills may be proved by the probate ' ... 899
Explanation I ; transaction contained in marc documents than one 899
Explanation II ; only aile original need be proved 899
Explanation III 900
Illustration (b) 900
92. Exclusion or e\'idence or oral agreement 900
Proviso (I) 900
Proviso (2) 900
Proviso (3) 900
Proviso (4) 901
Proviso (5) 90 1
Proviso (6) 901
cxiv INDIAN EVIDENCE ACT, 1872

Page
901
Illustrations
Commentary
Principle 902
Distinction between Section 91 and Section 92 ... 902
Oral evidence is not excluded if the terms of the contract, grant or
disposition have not been reduced to writing ... 902
Oral evidence is admissible to show that, notwithstanding a written
agreement, there was no oral agreement between the parties ... 903
Oral evidence is admissible to show that a writing does not represent
a completed transaction ... 905
The section is not applicable where the whole contract has not been
reduced to writing ... 905
Whether endorsement on a promissory note embodies all the terms of
the contract 906
The rule enacted by Section 92 of the Evidence Act is relaxed by
Section 10-A of the Daccan Agriculturists' Relief Act 906
Oral evidence of the intention of the parties to a document is
inadmissible 906
Oral evidence of the intention or of the acts and conduct of the parties,
whether admissible to show that an instrument was intended by the
parties to be different from what it purports to be or to show that
there was a contemporaneous oral agreement varying the terms of
the instrument mortgage or sale 907
Oral evidence to contradict the terms of a lease ... 911
Oral evidence to contradict the terms of a mortgage-deed is
inadmissible ... 912
Inadequacy of consideration may be taken into consideration is
determining the question whether a transaction is a sale or a
mortgage ... 912
Evidence of the acts and conduct of the parties is admissible to
construe a document ... 913
Evideiice of conduct s admissible when the document is ambiguous
or obscurely framed ... 913
Coritemporanea expositio acts of the parties are admissible to exp-
lain but not to contradict documents ... 914
Course of dealing ... 915
Subsequent acts and declarations of a parent purchasing property in
the name of a child are inadmissible ... 915
Preliminary negotiations, conversations, correspondence, etc., not
admissible to contradict or vary the terms of a document but
admissible to identify the subject-matter of the agreement 915
Evidence of oral agreement to vary terms implied by law in a wri-
tten contract .. 916
 SYNOPSIS
cxv

Page
Oral agreement as to the discharge or satisfaction of liability arising
out of a written instrument 917
Whether the ostensible exccutant of a written contract can show that
he signed otherwise than as an executant, e.g., as an agent, par-
tner, surety, witness or a benamidar 917
Benami promissory notes 919
Whether an instrument containing an absolute promise to pay on de-
mand may be shown by oral evidence to be not enforceable on de-
mand
919
Endorsement of payment on the back of a bond 919
Whether a hiba (gift) may be shown to be a hiba bi/iwaz (gift for
consideration) and vice versa 919
Gift cannot be s' .c be a wi! 919
Absolute gift cannot be shown to be revocable 920
A gift cannot be proved to be a convenience 920
Parol evidence is admissible to show that a joint tenancy has been
converted into a tenancy-in-common 920
Oral agreement as to the date of delivery of goods arriving by a spe-
cific steamer 920
Oral agreement to waive a default clause in a bond 920
Evidence in variation or contradiction of bought and sold notes 920
Deposit or pledge 920
Oral evidence to show that two documents embody one transaction 920
Disposition in favour of A and "others"; oral evidence admissible to
establish the identity of "others" 921
Oral evidence contradicting recitals of fact which are not "terms" of
a contract, grant or disposition is admissible 921
The section applies only to dispositive instruments and excludes parol
evidence only as between the parties to such instruments and their
representatives in interest 922
Evidence to contradict a recital in a record 923
Oral agreement adjusting or varying a decree, whether provable 923
Parol evidence is not inadmissible where the proceeding are between
strangers, or between a party and a stranger; or between co-obligors
or between co-obligees 925
Members of a joint Hindu family are parties to a deed executed by the
manager of the family 927
Later oral agreement between only some representatives of the original
parties to the deed 927
Proof of the benami character of a transaction 928
Oral evidence as to secret tFUSLS in wills 928
Plea as to intention to lead oral evidence 929
Proviso (1) 929
Separate suit for rectification or rescission of the instrument is not
necessary 930

ME INDIAN EVIDENCE ACT. 1872

Page

.Fraud 930

Fraud mus: he contemporaneous and not subsequent 932
A party may be estopped from insisting on the apparent character of

a document 932

Intimidation 933

Illegality 933

Want of due execution 933

Want of capacity 933

Want of failure of consideration 933

Recital of receipt of consideration may operate as an estoppel 936

Mistake of fact or law 936

Proviso (2) 939

Separate oral agreement 939
Distinction between cases where the whole contract has not been

reduced to writing and the cases falling within this Proviso 939
Separate oral agreement as to a matter is admissible where the docu-
ment is not a formal deed or instrument and contains no provision as

to that matter 940

Onus of proving collateral oral agreement 942

Separate written agreement 942
Document of loan silent as to interest whether oral agreement as

to Interest is provable 942
Evidence of a separate oral agreement is admissible only if it is not
inconsistent with the terms of the document, and the document is

silent on the point 943
Whether a promissory note payable on demand can be proved by oral

evidence not to be so 946
Mortgage money payable on demand, oral agreement that the money

would be paid by instalments is inadmissible 947

Proviso (3) 947

Conditional instruments 947
Oral agreement making the operation of a promissory note payable
948
on demand conditional on the fulfilment of a condition is provable..
Promissory note: oral agreement held not constituting a condition

precedent 950
Distinction between an agreement which constitutes a condition prece-

dent and one which operates as a defeasance 952
Condition precedent must be such as prevents the attaching of any
obligation whatever and not any particular obligation under the

instrument 953
Condition precedent must not be inconsistent with any stipulation in

the deed 953

Contracts subject to approval or sanction 954

Conditional instruments escrows 954
 SYNOPSIS
clvii

Page
Proviso (4)
955
Subsequent oral agreement rescinding or varying a contract
955
"Distinct subsequent oral agreement" ; agreement inferred from the
acts and conduct of the parties
956
Evidence of a subsequent oral agreement rescinding or modifying a
transaction is required by law to be reduced to writing
956
Evidence of a subsequent oral agreement residing or varying the
terms of a transaction is inadmissible if the document embodying
transaction has been registered
957
Subsequent oral agreement rescinding or modifying the terms of a We
deed or a deed of or exchange is inadmissible where the sale or
exchange is required by law to be reduced to writing or has been
registered
958
Vendee attesting a sale deed of the same property by this vendor in
favour of another person. Estoppel or rescission?
Variation or rescission of a lease, where the lease is required by law to 958
be in writing or has been registered, is not provable
Evidence of surrender or relinquishment of tenancy evidenced by a 959
registered lease is admissible
960
Variation of rescission of a mortgage which is required by law to be in
writing or which has been registered in not provable
960
Subsequent oral agreement in discharge or satisfaction of the obligati-
ons created by a registered instrument or by a contract required by
law to be reduced to writing is admissible; discharge of a mortgage
or pronote debt
962
Oral agreement to postpone the right of causing the mortgaged proper-
ty to be sold
A contemporaneous oral agreement as to the mode of discharge of an 966
obligation created by a written instrument is admissible
966
An independent contract which does not purport to rescind or modify
the original written contract is not governed by the proviso;
subsequent oral agreement to re-convey pr operty sold by a regis-
tered deed
967
Proviso (5)
968
Incidents annexed by usage to contracts
Meaning and proof of custom or usage 968
969
Distinction between evidence of usage and evidence of practice
969
The annexing of the incident must not be inconsistent with the
terms of the document
Test of admissibility of the evidence of usage 970
Evidence of a custom extending due date 971
971
Custom as to the rights and liabilities of brokers acting for undisclos-
ed principals
971

RM INDIAN EVIDONCE ACT, 1872

Page
Custom of drawing hundi without disclosing the drawers

agency 972

Usage as to the payment of interest 972

Evidence of usage to show that words are used in a special sense 972

Proviso (6) 972

Surrounding circumstances 972
Surrounding circumstance admissible to show the identity or extent of

the subject-matter or meaning of terms or identity of a person 972
Admissibility of surrounding circumstances to explain or interpret

written contracts 973
grants and instruments other than wills
Sale or mortgage? 974
Evidence of surrounding circumstance is not admissible where there is
no ambiguity in the document, or where the ambiguity is a "patent"

ambiguity as distinguished from a "latent" ambiguity 975

Construction of printed documents 976
Court's power to construe and interpret a document in the light of
surrounding circumstances is not affected by the rule in

Section 92 976

Admissibility of surrounding circumstances to explain wills 976

(i) Persons 977

(ii) Subject-matter 977

(iii) Meaning of terms and other ambiguities 977

General rules governing the construction of wills 978

Subsequent circumstances 978

Ambiguities in documents 978

General principles governing the admission of extrinsic evidence to

interest documents 978
Construction of a document, whether a question of law or of fact;
competency of a second appeal 980
Ambiguities in documents; "patent ambiguities" and "latent

ambiguities" 980
Pant evirl'tnce is not ac1mtsihte to expNin a patent ambiguity, but

is admissible to explain a latent ambiguity 980

Inaccuracies in documents 981

93. Exclusion of evidence to explain or amend ambiguous documents... 981

Illustrations 981
Commentary
981
Patent ambiguities which cannot be explained by extrinsic evidence -.

Ambiguous language 982

Insufficient description of property 983

Ambiguity in the clause relating to interest 983
Mistakes may be corrected, and blanks and omissions filled by the

Courts by the ordinary rules of construction 984
 SYNOPSIS
Em

Page
Blanks left in a document by mistake or fraud
Inconsistency between printed and written matter, or between words 984
and figures
984
94. Exclusion of evidence against application of document to existing
facL
Illustration 984
Commentary 984

Extrinsic evidence is not admissible where there is no ambiguity in

a document
Words of a document must be understood in their 984
sense primary or ordinary
(iQc
Primary meaning of words when applied to persons
Primary meaning of words when applied to property 985
Extrinsic evidence not admissible to construe an unambigious 985
document
Mutual mistake of the parties to a document may be proved even if 986
the document as executed is plain and unambiguous
95. 987
Evidence as to document in unmeaning reference to existing facts...
Illustration 987
Commentary 987

Evidence is admissible to show that the words in a document

,; are
used in a secondary or special sence and not in their primary or
ordinary sense
Incorrect names and description distinction between section 95 987
section 97 and
Misdescription of property ; P artial 988
misdescription does not render an
instrument inoperative false dem onstration no nocet
Extrinsic evidence to explain a decree or a Security bond 988
Generia descriptio, whether controlled by accumulative description 989
Discrepancy between field numbers and other de scription, or between 990
area and other description, of property
Variance between d 990
escription or measurement as given in the deed
and as given in the plan or schedule
Extrinsic evidence admissible to prove identity of property in cases 991
of ambiguous description
Misdesci-iption may be pleaded as a defence 991
Misdescription of persons 992
Other instances of misdescription 992
Misdescription due to mistake 992
Direct declarations of intention, whether admissible to remove a lat- 992
ent ambiguity under Sections 95 and 97
993
 cxx INDIAN EVI[)ENCF ACT, 1872

Page

96. Evidence as to application of language which can apply to one only

of several persons 993

Illustrations 993

Commentary
Language of the document equally applicable to more than one person

or thing ; equivocations 994

Document bearing two dates 995

Direct declarations of intention 995

Evidence of conduct 995
97. Evidence as to application of language to one of two sets of facts, to

neither of which the whole correctly applies 996

Illustration 996
Commentary-

Distinction between Sections 95, 96 and 97 997
Extinsic evidence is admissible where pan of the document applies

to one subject-matter and part to another 996
Direct declarations of intention whether admissible to remove a latent
ambiguity under Section 97 997

98. Evidence as to meaning of illegible characters, etc 997

Illustration 997
Commentary

Principle 997
Evidence to show the meaning of illegible or not commonly intelli-

gible characters 998
Evidence to show the meaning of foreign obsolete, technical, local
and provincial expressions, of abbreviations, and of words used

in a peculiar sense is admissible 998

Code expressions 998

Evidence of usage 998
Custom or usage annexing incidents to contracts, etc - 999
999
99, Who may give evidence of agreement varying terms of document...

Illustration 999
Commentary

The section is superfluous 1000

100. Saving of provisions of Indian Succession Act relating wills 1000
Commentary
Special rules of construction of wills
Hindu wills