A brief insight on Law of evidence in India

1. By A.S. Jaybhaye
B.A.,LL.M.,NET

2. Section 5
 Evidence may be given in a suit or proceeding of:
Facts in issue
Relevant facts
Existence/non existence of a thing
Note: it means the court must take evidence of the
relevant facts only and of no others.
Section 6 to 55 deals with relevancy of facts.

3. Section 6
 Relevancy of facts forming the part of same
transaction/Doctrine of ‘Res Gastae’ :
 This section is based on the principle of ‘Res Gastae’ which
means ‘transaction, things done, the subject matter, things
said or done in the course of a transaction etc.’
 The res gastae as applied to a crime means the complete
transaction from its starting point in the act of the accused
until the end is reached.
 In such cases it is proper that the chain of evidence should
be unbroken.
 It is an exception to ‘hearsay evidence’.

4. Section 6
 Relevancy of facts forming the part of same transaction:
 Ratten v. The Queen (1971) 3 W.L.R. 930
A man was prosecuted for the murder of his wife. His defence
was that the shot went off accidently. There was evidence to the
effect that the deceased telephoned to say : “Get me the police”.
Before the operator could connect to the police, the caller, who
spoke in distress, gave her address and the call suddenly ended.
Thereafter police came to the house and found the body of a
dead woman.
Held: Her call and words she spoke were held to be relevant as a
part of the same transaction.

5. Section 6
 Relevancy of facts forming the part of same
transaction:
 State of AP v. Panna Satyanarayan AIR 2000 SC 2138
 The accused murdered his wife and daughter. The father of the
deceased wife stated that father of accused told him on
telephone that his son had killed the deceased. There was no
finding as to whether the information given by accused father to
the deceased’s father that the accused had killed the deceased
was either of the time or immediately thereafter so as to form the
part of same transaction.
 Held: statement not relevant under section 6.
 Sawal Das v. State of Bihar AIR 1974, SC 778.
 “ At the time of the murder, the cry of deceased ‘save me’ and that of
the children that their mother was being killed are as res gastae.”

6. The word ‘same transaction’
 Not defined under the Act.
 Whether a fact forms part of the same transaction or not
depends upon whether they are related/ linked to one
another or not.
 Def’n by Stephen: “ A transaction is a group of facts,
connected together to be referred to by a single legal name,
a crime, a contract, a wrong or any other subject of enquiry
which may be in issue.”
 The words spoken by the person doing the act, or by the
person to whom they were done or by the bystanders are
relevant as a part of the same transaction.

7. Section 7
 Occasion, cause, effect etc.
 This section deals with a variety of facts such as those
which constitute the occasion or cause of, or provide
the opportunity for, the happening of the facts in
issues or which show their effects.

8. Section 7
 The section thus provides for the relevancy of the
following kinds of facts:
1. Facts constituting the occasion.
2. Facts which show the cause.
3. The effects of the principal facts.
4. Facts which provide opportunity for happening of
the principal fact.

9. Section 7
 Occasion:
 See illustration (a) of this section.
If a man claims that he was robbed of money on the
occasion of a certain fair, he should be able to show
that he had money with him, for otherwise there
would be no occasion to rob him. The fact that on the
way he told one of his friends that he was going to the
fair with money would be relevant as this shows that
he did have money with him.

10. Section 7
 Cause:
 Cause often explains why a particular act was done.
 It helps the court to connect a person with the act.
 Ex. If a person is running short of money, that may
cause him to take a loan. And if he denies the fact of
the loan, evidence can be given of the same.
 Motive or cause is somewhat similar to each other.
 Ex. Whether a person thrown acid on girl is a fact in
issue. The evidence can be given of the cause, why he
committed such offence.

11. Section 7
 Effect:
 Every act leaves behind certain effects or proofs.
 See illustration (b) of this section.
 Ex. Whether death of a person was suicidal or murder.
It can be determined by looking at the effects of the
incident.
 Ex. When a human being is cut into pieces on the
ground, there shall be bleeding and the blood will be
found on the place of occurrence.

12. Section 7
 Opportunity :
 See illustration (c ) of this section.
 The circumstances which provide an opportunity for the
happening of a fact in issue are relevant.
 Evidence of opportunity becomes important as it shows
that the act must have been done by the person who had
the opportunity to do it.
 Ex. A is charged for entering B’s room in night for stealing
money. The fact that A lived in the same house, and that
there were interconnecting doors, are relevant facts as
giving opportunity of having committed theft.

13. Section 7
 State of things:
 The facts which constitute the state of things under which
or in the background of which the principal facts happened
are relevant.
 Ex. In a murder trial evidence was led to the effect that
when it became cloudy and stormy, when the electricity
failed and when it became very dark, the murder was
committed. In this case the fact of murder is principal fact
and the other facts show the state of things.

14. Section 8
 Section 8 provides for the relevancy of three principal
facts which are very important:
1. Motive
2. Preparation
3. Conduct

15. Section 8
 Motive:
 Facts which show a motive for any facts in issue or
relevant facts, are relevant.
 There is hardly any act without a motive.
 Motive is the moving power which compels one to do
an act. It is the reason behind committing a crime.
 Ex. Murder of the old lady for inhering her property, to
take revenge, to commit crime out of jealousy etc.

16. Section 8
 Intention & Motive:
 Intention and motive should not be confused with
each other.
 Intention is considered as the highest form of mens
rea.
 Whereas motive may be useful where there is no direct
evidence available.
 Ex. If a man fires at a tiger, but the aim is missed and
the man is killed, he intends to kill the tiger. His
intention was not to kill the man.

17. Section 8
 Preparation
 Facts which show or constitute preparation for any fact
in issue or relevant fact are relevant.
 Ex. An act of purchasing a pistol is no offence. But the
moment he kills any person with same pistol, then
evidence can be given of preparation to commit a
crime.
 In case of bomb blast, people sitting together and
conspiring to commit a bomb blast would be relevant
as evidence.

18. Section 8
 Conduct :-
 Previous or subsequent
 See illustration (f) and (g)

19. Section 9
 Facts necessary to explain or introduce relevant facts:
 When the court has to know the identity of any thing
or any person, any fact which establishes such identity
is relevant.
This section deals with ‘Test identification parade’.
No provision in Cr.p.c till 2005, However new section
was added, i.e. Sec. 54-A
It was added in the year 2005 , by way of amendment.
TI parade means identity of a person by witness or a
victim who was involved in a crime.

20. Section 9
 TI Parade- When necessary?
1. When accused is not known to the victim or
witnesses.
2. When name of the accused does not appear in F.I.R.
3. Section 279, riot cases.
o TI Parade- Why necessary?
1. To enable the witnesses to identify the real accused
person.
2. For satisfaction of police officers that investigation is
moving in a right direction.

21. Section 9
 Identity of physical features also becomes relevant:
 Such as age, height, hair, complexion and other
circumstances that provide a material for proving the
identity of a person.
 Identification by fingerprint: The identity of finger
impressions is the strongest evidence of the identity of
person and such evidence is admissible.
 Identity by foot marks: Evidence of tracker is
admissible if proved that the foot-prints in question
are identical with foot prints of the accused.

22. Section 9- Imp case laws
 In fact there is no fixed rule as regards the period
within which identification parade must be held. It is
for the court whether to accept it or reject it.
 Suresh Chand Bahri v. State of Bihar AIR 1994 SC 2420
 TI Parade must be held at earliest possible opportunity
with necessary safeguard and precaution. However,
when accused had been seen by the witness for quite
number of times at different point of time and place
then no TI parade is necessary.

23. Section 9- Imp case laws
 Ram babu v. State of UP AIR 2010 SC 2143.
 Held: The purpose of the TI parade is to test and
strengthen trustworthiness of the evidence of the
witness in the court. The evidence generated by the a
TI parade is used for corroboration.
 Rajesh Govind Jogesh v State of Maharshtra AIR 2000
SC 160.
 Held: The delay in holding parade must be
satisfactorily accounted for. The explanation that no
magistrate was available in Bombay for 5 weeks for
supervising the parade was held to be not satisfactory.

24. Section 9- Imp case laws
 Dana yadav v. State of Bihar AIR 2002 SC 3325.
 Held: where the accused was already well-known to
the witnesses, the Supreme Court observed that the
holding of an TI parade would be waste of public time.
 State of MP v. Chamru AIR 2007 SC 2400.
 Held: Where the photographs of the accused were
shown to two of the child witnesses before the TI
parade, that took away the effect of the TI parade.

25. Section 10
 Things said or done by conspirator in reference to
common design.
 The term ‘Conspiracy’ means combination of two or
more persons for unlawful purposes.
 Section 120-A and 120-B of IPC deals with criminal
conspiracy.
 Agreement between two or more persons form an
essential ingredient.
 Such agreement is formed to do an illegal act.

26. Section 10
 What things are relevant under section 10?
 Any thing said, done or written by any one of the
conspirators is relevant against all the conspirators.
 That the conspiracy existed is relevant.
 And every such conspirator or a person was a party to
it.
 ‘Common intention’ was there to do an unlawful thing.

27. Section 10
 Imp. Case laws:
 Shivnarayan v. State of Maharashtra AIR 1980 SC 439.
 Held: “Act of a conspirator is act of another. Under the
principle contained in section 10 of the Evidence Act,
once a conspiracy to commit an illegal act is proved,
act of one conspirator becomes the act of the other.”
 Ammani & others v. State of Kerala AIR 1998 SC 260.
 Held: “Where there was reasonable ground to believe
that the other accused had conspired together in
committing murder, the confession made by accused
could be used against other accused also.”

28. Section 10
 Imp. Case laws:
 State of Maharashtra v. Damu Shinde 2000, Cri.L.J.
2301 SC
 Held: four accused persons conspired to commit
abduction and murder of children. One of them made
a confession in which he referred to what the other
accused had said and done in reference to their
common intention. The confession was held to be
usable against all the accused persons.

29. Section 11
 When facts not otherwise relevant become relevant
 This section is based on doctrine of ‘plea of alibi’.
 ‘Plea of alibi’ means presence of the accused elsewhere
at the time of the crime.
 This is one kind of defence taken by an accused person
to avoid criminal liability.
 The plea of alibi postulates the physical impossibility
of the presence of the accused at the scene of the
offence by reason of his presence at another place.

30. Section 11
 Example:
 A person is charged with murder which took place at
Calcutta, he can take defence that on that day, he was
somewhere else.
 Note: The burden of proof in this case lies on the
person who wants to take benefit of plea of alibi.

31. Admissions and Confessions
 Provisions of admission are given from section 17 to 23
of Indian Evidence Act.
 Meaning of admission:
 Admissions are statements made by parties before the
court relating to a particular suit.
 If one party to a suit or any other proceeding proves
that the other party has admitted his case, the work of
the court becomes easier.
 See section. 58 i.e. facts admitted need not be proved.

32. Admission
 Admissions are statements made by a party in 3 forms.
i.e.
1. Oral;
2. Documentary ; &
3. Electronic form.
Note: Admission is usually followed in civil cases or a
suit rather than criminal cases.

33. Admission
 Admissions can be made by the following persons or
parties:
 A party to the proceeding.
 By legal representative of the deceased person.
 By any agent of the party.
 By power of attorney.
 By pleader or advocate.
 Persons interested in the subject matter of the suit.

34. Admission
 Imp. Points:
 By admitting facts a person admits his liability. An
admission therefore binds its maker.
 The statement to be called an admission must suggest
or throw some light on the fact in issue or a relevant
fact.
 Ex. Admission of a fact as to signature on any
document.
 Admissions can be proved as against the person
making the same or his agent or representative.

35. Admission
 Imp. Points:
 Admission , though it not conclusive proof, but may
act as Estoppels.
 Doctrine of Estoppel meaning:
 “It prevents a person from denying a particular fact
which he has previously admitted.”

36. Confession:
 Provisions from section 24 to 30 of Evidence Act r/w
section 164 of Cr.p.c.
 Definition by Stephen:- “ A confession is an admission
made any time by a person charged with a crime
stating or suggesting an inference that he committed
crime”.
 Confession is usually followed in criminal cases.
 It is said that “ all confessions are admissions but all
admissions are not confessions”.

37. Confession:
 Ingredients of a confession:
1. It should be voluntarily made.
2. It should be made in the presence of the magistrate.
3. It shall read over to the accused and taken into
writing.
4. It shall be signed by the accused and the Magistrate.
5. Confession of co-accuses may be used against other
accused.

38. Confession:
 Types of Confession:
1. Judicial confession
2. Extra-judicial confession
 Judicial confession are those which are made before
the Magistrate in due course of legal proceedings ex.
Under section 164 of cr.p.c.
 Extra- Judicial confession are those which are made
by the party elsewhere than before a Magistrate or in
court.