INDIAN EVIDENCE ACT

What is law according to HLA Hart? Primary rules and Secondary rules

In this context, Indian constitution is the primary rule and Indian evidence act and
other procedural laws are secondary rules.

History of evidence act: - Ancient period (Hindu)

- Mughal period

- British period

Fitz James prepared the draft of Indian constitution.

# UOI vs DR Verma- In departmental proceedings, (administrative) principles of

natural justice are followed and not Indian Evidence Act. It is not applicable to
inquiries conducted by tribunals.

# Anant chintman lagu vs state of Bombay 1960- Circumstantial evidence

- The origin of oral and documentary evidences can be seen from the Islamic
period except those prepared by women or lunatic.
- In british era, presidency courts and mufassil courts were established but
procedural code not specified for evidence so they followed English law but
they were also scattered as of the time.
- Muffasil courts were not even bound to follow all these codes. Different
disputes were dealt with different rules, no legit hard rules were present.

Eventually Indian Law Commission was established, SIR HENRY MAINE prepared
the draft of IEA but was criticized as it did not met the Indian demands. Sir James
Stephen created the 1870 draft but it is still relevant. The laid down rules are still
followed in India.

Evidence act was revised in 1977 and 2003.

SECTION 1 (SHORT TITLE)-

- Judicial proceedings- 3 tests are followed to ascertain whether a proceeding is

legitimate judicial or not. They are followed cumulatively.
 Functional Test
 Objective Test
 Process Test
- Objective test: when purpose of an enquiry is to establish a jural
relationship (rights, duties, and obligations) between persons or groups then
is it’s a judicial proceeding.
- Functional test: S2 (i) CRPC-It includes any proceeding during which
evidence is or maybe legally taken on oath.
- Process test- where judicial decision or application is taken on the basis of
evidence on oath. Application of judicial mind of judicial discretion guided by
the evidence adduced by both the parties. This test distinguished a JP from a
proceeding or an enquiry conducted by an administrative body where the final
outcome depends facts discovered by the body which is not clothed by any
discretion (fact finding and enquiry).
Departmental proceeding for example will fail these tests.

IEA does not apply to arbitration. It applies to court martial except those which are
established under army act, navy discipline act etc.

Proceedings of election tribunal and administration tribunal are also judicial

proceedings but for limited proceedings.

SECTION 3-

- Facts- evidence consists of facts. These facts may be facts in issue or relevant
issue.

There are 2 kinds of facts- PHYSICAL and PSYCHOLOGICAL.

- Facts means and includes ANYTHING, STATE OF THINGS and RELATION
OF THINGS.
- These are capable of being perceived by senses (these are physical facts and
can be felt by others also) while psychological facts are only felt by one person
and need to be expressed to others.

# Uday vs state of Karnataka- Future facts are those facts which are likely
to occur but not certain. These are not facts. False promises are also not facts
within the meaning of this code. (Promise of marriage and sexual relationship
based on that)

RELEVANT FACTS AND ISSUE IN FACTS-

In our system one party alleges a fact and other party tries to disprove that
fact.

- Relevant facts- Logical fact may not be need to be proved but legal facts need
to be proved.
- Facts in issue- Any existence, non-existence, ascertained or denied. Subject
matter in issue is whether they can be proved or not?
- Issues are of 2 kinds in civil cases- LAW or FACT.
- Order XIV rule 1 sub-rule 4- issue of fact and law. These are fact in issue.
- In criminal cases, the charges framed consists of fact in issue. In CRPC under
section 173, chargesheet is filed by police but charges are framed by magistrate
under section 223 and 246.
This is fact in issue.

- Proved, disapproved, and not proved

Proof- it is mental process by which one arrives at a conclusion whether a fact
exists or not on the basis of evidence.
- Definition of proved- words ‘beliefs’ and ‘consider’ only a prudent man
criterion is required. Justice V.C. Krishna Ayer talked about this in Nandini
Satpati vs PL Dani case.
In both proved and disapproved, certainty aspect of court is involved. (Based
on evidence)
 - ‘Not proved’- It is a state of uncertainty. Court could not reach to a conclusion
as to that particular fact.
- The mental process is also called the process of objective satisfaction as it
depends upon certain objective criteria.
- THIS BELIEF AND PROBABILTIY ARE NOT SUBJECTIVE INFERENCES
BUT CONCLUSION ARRIVED AT AFTER SCRUTNIZING ALL RELEVANT
FACT AND AFTER CONSIDERING THE MATTER BEFORE IT.

Evidence means and includes oral statement and written document

- Direct evidence

- Circumstantial evidence

DIRECT EVIDENCE-

S. 60

Oral evidence must be direct

Oral evidence must, in all cases whatever, be direct; that is to say—

If it refers to a fact which could be seen, it must be the evidence of a
witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a
witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other
manner, it must be the evidence of a witness who says he perceived it by that sense or
in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be
the evidence of the person who holds that opinion on those grounds;
Provided that the opinions of experts expressed in any treatise commonly offered for
sate, and the grounds on which such opinions are held, may be proved by the
production of such treatises if the author is dead or cannot be found, or has become
incapable of giving evidence, or cannot be called as a witness without an amount of
delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any
material thing other than a document, the Court may, if it thinks fit, require the
production of such material thing for its inspection.

- Witness: not defined in IEA but impliedly given in Chapter- IX Section 118-
134 (who will testify)

# Kalyan Kumar Gogoi vs Ashutosh Agnihotri 2011- Evidence is used

in 3 different senses---as equivalent to relevant, as equivalent to proof and as
equivalent to material on the basis of which the court comes to a conclusion
about the existence of a disputed fact.
Evidence is the means (by which truth is ascertained) and proof is the result.

There are 2 types of truth-

- Real truth- B is killed
- Forensic truth- A did not kill B (as there was no proof)

DIRECT EVIDENCE AND HEARSAY EVIDENCE (Indirect evidence

learned by witness not directly but heard from someone else)

CIRCUMSTANIAL EVIDENCE:

# KT Palani samy vs State of Tamil Nadu 2008- All logically relevant

facts are not legally relevant and all legally relevant facts may not be logically
relevant.

1) Oral evidence- Direct evidence- (section 60) (Question of who saw it?)
(can be given by witness in court)
Hearsay evidence- It is not defined anywhere and not
admissible in court.
 2) Oral evidence- Direct evidence- It is not defined. (Question of what did
you see? Like what you have directly seen or perceived it)

Circumstantial evidence- It is not defined. (Circumstances

can be seen in which act took place)

Case was discussed in which family went to a party, washerman came home and stole
valuables while there was a maid in the house who did not see the thief but was
standing naked in front of the mirror. Keeping in mind this case, circumstantial
evidence is stronger than direct evidence such as the witness.

There is not rule as to which type of case would prevail over other but court but it’s
the court’s discretion.

# Father benedict vs state of Kerala- Court relied on the last seen theory.

- Priest killed his mistress

- Court said that he had motive for the crime
- On appeal, the court said he is not guilty and said that the woman was of
immoral character and moreover he had no motive as he did not change his
identity or clothes.

Test and reliability required for direct an circumstantial evidence. In KT

Palani Swamy case the court has to take note of certain criminology principles
while determining all these things. In circumstantial evidence, courts use
carefully as to they are knit together.

- In KT PALANI case, the supreme court said that the conviction can safely be
based on circumstantial evidence provided if satisfies the following test:
:- All the circumstances forming on chaining of events must be fully
established and no line in the chain should be found missing.
:- The circumstantial evidence must be consistent with the hypothesis
and the guilt only of the accused and no other.
:- It must be of conclusive nature.
 :- It should be in consistent with the innocence and the accused.
:- It should exclude every other hypothesis except the guilt of the accused.

# Wakkar and anr vs state of UP: SC observed the courts have to watchful
and avoid the danger of allowing the suspicion to take place of legal proof

There is no such hierarchy of preference in both direct and circumstantial

evidence.

Unreliableness of direct evidence:

: - Perception of witness may be mistaken
: - The truthfulness of statements of witness

# Ganpat Singh vs state of Madhya Pradesh 2017:

- Test for circumstantial evidence was laid down. No eyewitness required- every
link in chain and circumstances must be established beyond reasonable
doubts. All circumstances consistent with accused.
- The normal principle in a case based on circumstantial evidence is to look at
the circumstances from which an inference of guilt is sought. Must covertly
and forming of those circumstances should have definite tendency pointing
towards guilt of accused. The circumstances taken cumulatively should form a
chain of complete.

Last seen theory comes into play where the times gap between the point of when the
accused and deceased were last seen alive. The possibility is so small that any other
person other than any accused being the author of course becomes impossible. In
some cases, it will be possible because of long time that a degree and doubt is raised
to regarding the culpability of accused.

# Sarad Birdichand vs state of Maharashtra:

Circumstantial evidence’s another case

# Factum Probandam (Ultimate fact which is to be proved) and Factum Probantia

(Relevant fact used to established fact in issue. Evidence required to prove those
must be relevant as well)

# Documentary evidence: Section: 61-98 Chapter: 5

Primary document and Secondary evidence

Material evidence: Material evidence is such evidence which is recovered from the
scene of crime.

How to prove contents of these documents?

Section 61- by primary or secondary evidence

Primary (section-62)- document itself produced for perusal of court

# Bhawanji Kalyanji vs Punjabhar Hazabai-

Primary evidence means document itself produced for the court.

The said carbon copy would be primary evidence for the purpose of its production.

Secondary evidence- Section 63

Documentary evidence consists of electronic evidence as by IT Act 2000.

#Aryan Malkhani vs state of Maharashtra

# Pratap Singh vs Punjab- SC held that tape would be admissible if it is relevamt

and accuracy of tape is established.

@ Best evidence rule: whole focus in on admissing such facts which are highly
relevant. Courts generally prefer eyewitness over circumstantial evidence.
Among the primary and secondary evidence, primary is to be preferred.

@Assumption (Natural/ artificial or law made): It is an inference of a fact derived

from other fact. As can be seen with last seen theory.

Natural presumption: about presumption and a fact

Artificial presumption: produced by law e.g. one is innocent until guilty, child below
7 years has no mens rea.

Presumption of fact is further divided into 3- MAY PRESUME (directionary)

SHALL PRESUME (shall prove)

CONCLUSIVE PROOF

If A says that B is A’s wife. If B produces divorce paper then there is conclusive proof
that marriage is dissolved.

Section 112- whether the presumption of legitimate child be rebutted or not.

Rebuttable presumption: Section- 79 to 85, 89, 105, 111A, 113B, 114A IEA in those
circumstance court shall presume.

- ‘Shall presume’- S.4 IEA. Take example of section 113B, burden or proof is on
accused to prove that death was not due to dowry.
Another example are section 83 and 105 which are rebuttable and they can be
proved or disproved
- ‘May presume’ e.g. in section 86-88
In this, there is discretion with the judge that he may presume it or not.
- ‘Conclusive proof’- in section 11, in its interpretation court draws 3
presumptions together.
What about conclusive proof of legitimacy of the child?
- Proof required in rebuttal of shall presume is different from may presume.
The strength of proof in shall presume in higher in may presume.
- Presumption and innocence are rebuttable
- Ignorance of law is no excuse- not expressly but impliedly
- Child below 7 years- not rebuttable under section 82 of IPC

# Santosh Kumar Singh case (Priyadarshini case): whether murder

and rape were committed. Nobody saw any of these events. No direct
evidence. Only circumstantial facts were taken into consideration.
Like previous conduct of stalking and annoying was in neighbourhood that
day
- Subsequent conduct- Hands were fractured, said it was an accident but
medical exam said it was not (it was a fresh fracture)
All these are relevant facts.
- Section 5 gives a general rule as it is an enabling provision. It starts with
evidence may be…
- Special rule prevails over general rule.
- There are also facts which need not be proved, i.e. they are irrelevant- S.24
- Section 3 contains both inclusionary rule and exclusionary rule. Section 5 says
that evidence may be given of relevant facts and facts in issue. This is
inclusionary part. This is general principle. (section- 136, 165, 104,134, 155,
165) relevant in order to understand relevancy of facts.
- Exclusionary- what cannot be given evidence of- eg- 24, 25, 26
- Irrelevant fact may also be logical but they are not legally relevant.
# Rana Kapoor vs NCT of Delhi
136- gives us general rule and admissibility
104- burden of proof
155-in certain circumstances court may also asl irrelevant facts or questions
There are certain acts which form a part of the same transaction
DOCTRINE OF RES GESTAE- not explicitly in Indian Law but discussed in
various cases.
If in a particular legislation, there are rules on legislation, they would prevail
over evidence act only section 5-55 suggest that certain sections talk about
certain irrelevant facts. Eg. Confession which are forced are not admissible.
Instead of calling them irrelevant facts, we should call them inadmissible
facts.
 Then we know according to section 136, it is the court which decides on
admissibility. Burden of proof that this fact is a relevant is on the parties.
- Certain facts are dependent on other facts. Eg. Illustration of section 104. If A
wants to prove something by dying declaration and if the person wants to
prove his DD he has to prove that he is dead.
- Rattan vs R- Distress call case
- Hadu vs State
Prosecution was depended on circumstantial evidence. Court said that the
statements should be spontaneous.

- Logical Relevancy:
- # Hadu vs state: if one fact is connected to other, logically it is called logical
relevancy and it may be based on following factor-
- Cause and effect: occurrence at the same place, same time, common purpose
and design. Bar the admission of certain confessions made under inducement,
threat made in police custody.
Section 112-131- also bar admission of facts which are covered by those
sections like communication between husband and wife, advocate and client.
- These are exclusionary rule itself. Exclusionary rule in CRPC in section 16
which bars statement made in police custody investigation being used in any
trial. The court will not admit these although they fall under chapter of
relevancy of fact.
- Law commission of India in its 69 th report mentions that there is no doubt
that Sir James was fully aware of distinction between relevancy and
admissibility under section 136 but the use of term relevant and irrelevant in
section 24, 28 and 29 has to led to some lack in clarity.
- Instead of the term irrelevant, inadmissible would have been more
appropriate because a confession made by the accused himself is
unquestionably relevant as its best evidence possible.
- Relevancy is general and relates to categories of facts determined by law but
reliability and present are case specific. Relevancy is within domain of
legislative function. Whereas reliability and proof are within its domain of
judicial function.
13 January 2023

The meaning of term logical relevancy: this interpretation was given in adhu vs state
—magical powers case; gave the guy money; found lmao ded;

If one fact is connected to the other logically, it is called logical relevancy and it may
be based on the following factors:

1. cause and effect

2. occurrence at the same time

3. same place

4. common purpose and design

What are the facts or rules fall under exclusionary rule in IEA?

1. Rules regarding relevancy are all contained in chapter 2. Section 24,25 and 26
which are placed in the same chapter in fact provide for irrelevancy and bar the
admission of certain confessions made under inducement, threat or made to police
officer or in police custody.

2. Section 122 to 131 which occurs in chapter on witnesses also bar admission of facts
which are covered by those sections like communication bw husband wife, bw
advocate and client etc.

3. There are some exclusionary pro in CRPC like sec 162 which bar statements made
to police during investigation from being used in any trial.

They otherwise are relevant but not admissible.

Relevancy and admissibility (section 136). Court is only gonna allow those facts
which are relevant.
The law commission of India in its 69th report mentions that there is no doubt that sir
Stephens was fully aware of the clear distinction bw relevancy and admissibility as of
section 136. But the use of term relevant and irrelevant in section 24,28 and 29 has
led to some lack of clarity. section 24 says the confession made by accused is
irrelevant if made under all of the above.

Instead of the term irrelevant, inadmissible would have been more appropriate
because a confession made by the accused is unquestionably relevant as it is the best
piece of evidence.

What the fuck is meaning of reliability?

High prerogative value. Relevancy is generic and related to categories of fact

determined by law but reliability and proof are case specific. Relevancy is the domain
of legislative function whereas reliability and proof are within the domain of judicial
function.

18 January 2023

SECTION 6- RELEVANCY OF FACTS FORMING PART OF SAME

TRANSACTION:

Q. What is a transaction?

A. It is a series of act which culminate into certain crime or act. For ex when we say
theft is committed, there will be a series of act prior to the commission of the act. Ex.
Waiting of lights to go off etc. Entering in a contract is a transaction.

Similarly, as somebody is killed, it must have been followed by certain acts which
contributed to the commission of the final act.
So the facts which form part of same transaction are relevant facts. All these facts
need not be united by time or place. So whatever is said or done by the doer of the
crime will be part of same transaction. Even when there is no unity of time and place,
those acts can be said to be a part of same transaction.

Look at the illustrations given in bare act.

Illustration II of section 6 is relevant of illustration of section 10. Different acts may
be taken place in different places, like said in the illustration but they are all united
by the common design purpose. LOOK AT IT.

# Ratten vs R- related to lady who told the telephone operator and said that her life is
in danger. Distress call; whether the statement made by lady will be admissible or
not.

As hearsay evidence is not admissible but

A statement otherwise than by a person while giving oral evidence in the proceedings
which is tendered as evidence of the matter stated. Section 1 of UK civil evidence act
is relevant here because Indian evidence act does not define hearsay evidence.

The UK criminal justice act section 114 refers to hearsay as, in criminal proceedings,
a statement not made in oral evidence in the proceedings.

RES GESTAE, DOCTRINE OF HUE AND CRY OR DISTRESS CALL

Meaning of same transaction- must be spontaneously related, same place, time,

cause and effect same, common design purpose.

Example- If a dead body is found on a rail track, it is the effect, and the cause maybe
that the person died due to accident. But if they go near the dead body, and there are
no signs to prove that there was an accident. So for establishing cause and effect, we
will seek to forensic and post-mortem.

# Kameshwar prasad vs Rex- RES GESTAE: those circumstances which are the
automatic and undersigned incidents of a particular litigated fact and which are
admissible when illustrative of such facts.

# Krishan kumar malik vs Haryana-

19 Jan. 23
Now referring to the book BATUK LAL of evidence.

RES GESTAE is implicit in section 6 but has limited the scope of it. So as we know
relevant facts are those which are part of the same transaction. So how RES GESTAE
in India is limited to same transaction when there is spontaneous and
contemporaneous event.

The court is very cautious in admitting a fact under section 6 after the act had took
place. As after the task is complete there is a chance of internal or external
fabrication. So In order to keep the fact undisturbed, undistorted and unfabricated, it
has to be kept spontaneous.

# Sawal Das vs State of Bihar 1974- a lady from Bihar, few people entered the
house and burnt alive, closed the door and started beating her children, people from
neighbourhood came, person from balcony saw the event, it was taken as an
admissible fact and taken as relevant fact. He went and registered FIR and the report
was filed after the incident was already over.

RES GESTAE is a wider term and it implicitly take aspects of it under section 7 and
8. Under section 6 only those facts are relevant which take place under the same
transaction like Hadu vs state.

REASONING OF THE COURT IN HADU VS STATE: The court said that the
statement will be relevant under section 6 only if it is spontaneous and
contemporaneous to the transaction. In the present case, there was nothing to show
that the car driver knew about the murder nor was the statement made by him in the
presence of and to the hearing of the accused. The statement was not a part of the
transaction. The court said hearsay statements to be admissible as substantive
evidence of the truth of facts stated therein must themselves be part of transaction
and not merely uttered in the course of transaction.

SECTION 7 - FACTS WHICH ARE THE OCCASION, CAUSE OR EFFECT

OF FACTS IN ISSUE:
Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant
facts, or facts in issue, or which constitute the state of things under which they
happened, or which afforded an opportunity for their occurrence or transaction, are
relevant.

Example: Maid and washerman

Hue and cry doctrine:

20 Jan. 23

Relevant facts= same transaction

Relevant facts are also those facts which are cause and effect, which gives
opportunity, the state of things for another fact, then they are also relevant facts.

E.g., if A filed suit against B, decree in favour of B, A killed B, cause is decree

favouring B and effect is death.

E.g., a lady returning back from a party, on a secluded road, street lights not
working, no police patrolling, this is opportunity

Last seen theory is based on presumption by court under section 114. It can also
presume that is the accused was last seen with the deceased person, he might
have killed him. But it is rebuttable. The burden to rebut this argument lies on the
accused.

The opportunity to commit crime- last seen theory accords that there was a
opportunity to commit crime.

# Satpal Singh vs State of Haryana 2018

# Surajdev Manto vs State of Bihar 2020

# Shailendra Rajdev baswan vs State of Gujrat 2019

# Jaswant Gir vs State of Punjab- there was a lady who couldn’t walk herself,
a person found dead by stabbing, last seen was lady but the fact that she couldn’t
even walk by herself.

24 Jan. 23

There are certain facts which do not follow part of the same transaction but still
are relevant and united by cause effect opportunity and establishes any other fact.

Those facts are motive, preparation and conduct.

If the fact in issue is murder, the accuse will make a preparation which also
becomes relevant fact. Now how he conducted after and before committing the
crime. Previous and subsequent.

The conduct will also include statement in form of complaint which cause certain
grievances. But when the victim narrate his story after interrogation, then it does
not count as a statement or conduct.

What is motive?

There are 4 stages of commission of a crime-

- Intention
- Preparation
- Attempt
- Actual commission
From intention comes motive.

# State vs Mahindra Singh Daniya 2011

Motive is important in a case of circumstantial evidence. It is not the sole

criteria to punish accused but aa imp factor. Motive merely cannot establish
guilt of accused.
If the accused is absconding places to places, is it possible to establish his
guilt?
NO, it was held in Mathu vs state.

# Queen vs Abdullah:
Prostitution throat slit case.
Whether her conduct will be counted as subsequent conduct under section 8
and was it admissible?
Admissible under section 8 or 32(1)? Majority was in favour of the latter as
they called it a dying declaration.
YES.
Allahabad HC took a diff POV that the lady did not say the name in her own
accord so it will not be admissible under section 8.
But section 8f say that the intervention of 3rd party is OKAY.

# Raja vs state of karnatka

# Darbara singh vs state of Punjab

If eyewitness are available, we do not go into the motive scenario.

If prep is established, it becomes one aspect of conduct, they are also viewed
as an evidence.
For conduct, we know statements corroborated with complaint.
This subsequent conduct is important in cases of rape. It implies whether
victim fails hue and cry thingy.
# Tukaram vs state of Maharashtra:

Does filing of FIR comes into the ambit of conduct?

The circumstances and terms under which complaint are made are relevant.

Conduct, previous or subsequent, is not open ended, either or both relevant

facts or facts in issue are considered.

# Nakha singh vs emperor 1996

# Afzal vs NCT read with 54A of CRPC (deals with identification of
person arrested) ALSO 291A