INDIAN EVIDENCE ACT 1872
THE
INDIAN EVIDENCE ACT, 1872 ACT No. 1 OF 1872*
[15th March, 1872.]
Preamble. Preamble.-WHEREAS it is expedient to consolidate, define
and amend the law of Evidence; It is hereby enacted as follows:--
PART I RELEVANCY OF FACTS PART I RELEVANCY OF FACTS CHAPTER I
PRELIMINARY CHAPTER I.-PRELIMINARY
Extent. Commencement of Act. 1. Short title.-This Act may be
called the Indian Evidence Act,
Extent.-It extends to the whole of India 1*[except the State of
Jammu and Kashmir] and applies to all judicial proceedings in or
before any Court, including Courts-martial, 2*[other than
Courts-martial convened under the Army Act, (29 & 30 Vict., c.
109)] 3*[the Naval Discipline Act or 4*** the Indian Navy
(Discipline) Act, 1934 (34 of 1934),] 5*[or the Air Force Act] (7
Geo. 5, c. 51.) but not to affidavits 6* presented to any Court or
officer, nor to proceedings before an arbitrator; Commencement of
Act. Commencement of Act.-And it shall come into force on the first
day of September, 1872.
2. [Repeal of enactments.] Rep. by the Repealing Act, 1938 (1 of
1938), s. 2 and Sch.
3. Interpretation clause.-In this Act the following words and
expressions are used in the following senses, unless a contrary
intention appears from the context:- "Court." "Court"
includes all Judges 7* and Magistrates 8*, and all persons, except
arbitrators, legally authorized to take evidence.
---------------------------------------------------------------------
1 Extended to and brought into force in Dadra and Nagar Haveli
(w.e.f. 1.7.65) by Reg. 6 of 1963, s.2 & Sch. I. 2 The Act comes
into force in Pondicherry on 1.10.1963 vide Re. 7 of 1963, s. 3 and
Sch. I. 3 Extended to Goa, Daman and Diu by Reg. 11 of 1963, s. 3 &
Sch. 4 Extended to Laccadive, Minicoy and Amindivi Islands (w.e.f.
1-10-1067); vide Reg. 8 of 1965, s. 3 & Sch.
---------------------------------------------------------------------
1. Subs. by Act 3 of 1951, s. 3 and Sch., for "except Part B
States". 2. Ins. by Act 18 of 1919, s. 2 and Sch. I. See s. 127
of the Army Act (44 and 45 Vict., c. 58). 3. Ins. by Act 35 of 1934,
s. 2 and Sch. 4. The words "that Act as modified by" rep.
by the A. O. 1950. 5. Ins. by Act 10 of 1927, s. 2 and Sch. I. 6. As
to practice relating to affidavits, see the Code of Civil Procedure,
1908 (Act 5 of 1908), s. 30 (c) and Sch. I, Order XIX. See also the
Code of Criminal Procedure, 1898 (Act 5 of 1898), ss. 539 and 539A.
7. Cf. the Code of Civil Procedure, 1908 (Act 5 of 1908), s. 2, the
Indian Penal Code (Act 45 of 1860), s. 19; and, for a definition of
"District Judge", the General Clauses Act, 1897 (10 of
1897),
s. 3 (17).
8. Cf. the General Clauses Act, 1897 (10 of 1897), s. 3 (32) and
Code of Criminal Procedure, 1898 (Act 5 of 1898). *Amended in W.
Bengal by W. Ben. Act 20 of 1960. Amended in Tamil Nadu by T.N. Act
67 of 1979. 2 "Fact." "Fact" means and includes--
(1) any thing, state of things, or relation of things, capable of
being perceived by the senses;
(2) any mental condition of which any person is conscious.
Illustrations (a) That there are certain objects arranged in a
certain order in a certain place, is a fact. (b) That a man heard or
saw something, is a fact. (c) That a man said certain words, is a
fact. (d) That a man holds a certain opinion, has a certain
intention, acts in good faith or fraudulently, or uses a particular
word in a particular sense, or is or was at a specified time
conscious of a particular sensation, is a fact. (e) That a man has a
certain reputation, is a fact. "Relevant." One fact is said
to be relevant to another when the one is connected with the other in
any of the ways referred to in the provisions of this Act relating to
the relevancy of facts. "Facts in issue." The expression
"facts in issue" means and includes-- any fact from which,
either by itself or in connection with other facts, the existence,
non-existence, nature or extent of any right, liability, or
disability, asserted or denied in any suit or proceeding, necessarily
follows. Explanation.--Whenever, under the provisions of the law for
the time being in force relating to Civil Procedure, 1* any Court
records an issue of fact, the fact to be asserted or denied in the
answer to such issue is a fact in issue. Illustrations A is accused
of the murder of B. At his trial the following facts may be in
issue:-- that A caused B's death; that A intended to cause B's death;
that A had received grave and sudden provocation from B; that A, at
the time of doing the act which caused B's death, was, by reason of
unsoundness of mind, incapable of knowing its nature.
---------------------------------------------------------------------
1. See now Code of Civil Procedure, 1908 (Act 5 of 1908); as to the
settlement of issues, see Sch. I, Order XIV. 3 "Document".
"Document" 1* means any matter expressed or described upon
any substance by means of letters, figures or marks, or by more than
one of those means, intended to be used, or which may be used, for
the purpose of recording that matter. Illustrations A writing 2* is a
document: 2* Words printed lithographed or photographed are
documents: A map or plan is a document: An inscription on a metal
plate or stone is a document: A caricature is a document. "Evidence."
"Evidence" means and includes--
(1) all statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such
documents are called documentary evidence. "Proved." A fact
is said to be proved when, after considering the matters before it,
the Court either believes it to exist, or considers its existence so
probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists.
"Disproved." A fact is said to be disproved when, after
considering the matters before it, the Court either believes that it
does not exist, or considers its non-existence so probable that a
prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it does not exist. "Not proved."
A fact is said not to be proved when it is neither proved nor
disproved. "India." 3*["India" means the
territory of India excluding the State of Jammu and Kashmir.]
---------------------------------------------------------------------
1. Cf. the Indian Penal Code (Act 45 of 1860), s. 29 and the General
Clauses Act, 1897 (10 of 1897), s. 3 (18). 2. Cf. definition of
"writing" in the General Clauses Act, 1897 (10
of 1897), s. 3 (65). 3. Subs. by Act 3 of 1951, s. 3 and Sch., for
the definition of "State" and "States" which was
ins. by the A. O. 1950. 4
"Shall Presume." "Conclusive proof." 4. "May
presume."-Whenever it is provided by this Act that the Court may
presume a fact, it may either regard such fact as proved, unless and
until it is disproved, or may call for proof of it: "Shall
presume."-Whenever it is directed by this Act that the Court
shall presume a fact, it shall regard such fact as proved, unless and
until it is disproved: "Conclusive proof."-When one fact is
declared by this Act to be conclusive proof of another, the Court
shall, on proof of the one fact, regard the other as proved, and
shall not allow evidence to be given for the purpose of disproving
it. CHAPTER II OF THE RELEVANCY OF FACTS CHAPTER II. OF THE RELEVANCY
OF FACTS
5. Evidence may be given of facts in issue and relevant facts.-
Evidence may be given in any suit or proceeding of the existence of
non-existence of every fact in issue and of such other facts as are
hereinafter declared to be relevant, and of no others.
Explanation.--This section shall not enable any person to give
evidence of a fact which he is disentitled to prove by any provision
of the law for the time being in force relating to Civil Procedure.
1* Illustrations (a) A is tried for the murder of B by beating him
with a club with the intention of causing his death. At A's trial the
following facts are in issue:-- A's beating B with the club; A's
causing B's death by such beating; A's intention to cause B's death.
(b) A suitor does not bring with him, and have in readiness for
production at the first hearing of the case, a bond on which he
relies. This section does not enable him to produce the bond or prove
its contents at a subsequent stage of the proceedings, otherwise than
in accordance with the conditions prescribed by the Code of Civil
Procedure 1*.
6. Relevancy of facts forming part of same transaction.-Facts
which, though not in issue, are so connected with a fact in issue as
to form part of the same transaction, are relevant, whether they
occurred at the same time and place or at different times and places.
---------------------------------------------------------------------
1. See now the Code of Civil Procedure, 1908 (Act 5 of 1908). 5
Illustrations (a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the by-standers at the
beating, or so shortly before or after it as to form part of the
transaction, is a relevant fact. (b) A is accused of waging war
against the 1*[Government of India] by taking part in an armed
insurrection in which property is destroyed, troops are attacked and
gaols are broken open. The occurrence of these facts is relevant, as
forming part of the general transaction, though A may not have been
present at all of them. (c) A sues B for a libel contained in a
letter forming part of a correspondence. Letters between the parties
relating to the subject out of which the libel arose, and forming
part of the correspondence in which it is contained, are relevant
facts, though they do not contain the libel itself. (d) The question
is, whether certain goods ordered from B were delivered to A. The
goods were delivered to several intermediate persons successively.
Each delivery is a relevant fact.
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, which afforded an
opportunity for their occurrence or transaction, are relevant.
Illustrations (a) The question is, whether A robbed B. The facts
that, shortly before the robbery, B went to a fair with money in his
possession, and that he showed it or mentioned the fact that he had
it, to third persons, are relevant. (b) The question is, whether A
murdered B. Marks on the ground, produced by a struggle at or near
the place where the murder was committed, are relevant facts. (c) The
question is, whether A poisoned B. The state of B's health before the
symptoms ascribed to poison, and habits of B, known to A, which
afforded an opportunity for the administration of poison, are
relevant facts.
8. Motive, preparation and previous or subsequent conduct.-Any
fact is relevant which shows or constitutes a motive or preparation
for any fact in issue or relevant fact. The conduct of any party, or
of any agent to any party, to any suit or proceeding, in reference to
such suit or proceeding, or in reference to any fact in issue therein
or relevant thereto, and the conduct of any person an offence against
whom is the subject of any proceeding, is relevant, if such conduct
influences or is influenced by any fact in issue or relevant fact,
and whether it was previous or subsequent thereto.
---------------------------------------------------------------------
1. Subs. by the A. O. 1950 for "Queen". 6 Explanation
1.--The word "conduct" in this section does not include
statements, unless those statements accompany and explain acts other
than statements; but this explanation is not to affect the relevancy
of statements under any other section of this Act. Explanation
2.--When the conduct of any person is relevant, any statement made to
him or in his presence and hearing, which affects such conduct, is
relevant. Illustrations (a) A is tried for the murder of B. The facts
that A murdered C, that B knew that A had murdered C, and that B had
tried to extort money from A by threatening to make his knowledge
public, are relevant. (b) A sues B upon a bond for the payment of
money. B denies the making of the bond. The fact that, at the time
when the bond was alleged to be made, B required money for a
particular purpose, is relevant. (c) A is tried for the murder of B
by poison. The fact that, before the death of B, A procured poison
similar to that which was administered to B, is relevant. (d) The
question is, whether a certain document is the will of A. The facts
that, not long before the date of the alleged will, A made inquiry
into matters to which the provisions of the alleged will relate, that
he consulted vakils in reference to making the will, and that he
caused drafts of other wills to be prepared of which he did not
approve, are relevant. (e) A is accused of a crime. The facts that,
either before or at the time of, or after the alleged crime, A
provided evidence which would tend to give to the facts of the case
an appearance favourable to himself, or that he destroyed or
concealed evidence, or prevented the presence or procured the absence
of persons who might have been witnesses, or suborned persons to give
false evidence respecting it, are relevant. (f) The question is,
whether A robbed B. The facts that, after B was robbed, C said in A's
presence- "the police are coming to look for the man who robbed
B," and that immediately afterwards A ran away, are relevant.
(g) The question is, whether A owes B rupees 10,000. The facts that A
asked C to lend him money, and that D said to C in A's presence and
hearing- "I advise you not to trust A, for he owes B 10,000
rupees," and that A went away without making any answer, are
relevant facts. (h) The question is, whether A committed a crime. The
fact that A absconded after receiving a letter warning him that
inquiry was being made for the criminal, and the contents of the
letter, are relevant. (i) A is accused of a crime. The facts that,
after the commission of the alleged crime, he absconded, or was in
possession of property or the proceeds of property acquired by the 7
crime, or attempted to conceal things which were or might have been
used in committing it, are relevant. (j) The question is, whether A
was ravished. The facts that, shortly after the alleged rape, she
made a complaint relating to the crime, the circumstances under
which, and the terms in which, the complaint was made, are relevant.
The fact that, without making a complaint, she said that she had been
ravished is not relevant as conduct under this section, though it
may be relevant as a dying declaration under section 32, clause
(1), or as corroborative evidence under section 157. (k) The question
is, whether A was robbed. The fact that, soon after the alleged
robbery, he made a complaint relating to the offence, the
circumstances under which, and the terms in which, the complaint was
made, are relevant. The fact that he said he had been robbed without
making any complaint, is not relevant, as conduct under this section,
though it
may be relevant as a dying declaration under section 32, clause
(1), or as corroborative evidence under section 157.
9. Facts necessary to explain or introduce relevant facts.-Facts
necessary to explain or introduce a fact in issue or relevant fact,
or which support or rebut an inference suggested by a fact in issue
or relevant fact, or which establish the identity of any thing or
person whose identity is relevant, or fix the time or place at which
any fact in issue or relevant fact happened, or which show the
relation of parties by whom any such fact was transacted, are
relevant in so far as they are necessary for that purpose.
Illustrations (a) The question is, whether a given document is the
will of A. The state of A's property and of his family at the date of
the alleged will may be relevant facts. (b) A sues B for a libel
imputing disgraceful conduct to A ; B affirms that the matter alleged
to be libellous is true. The position and relations of the parties at
the time when the libel was published may be relevant facts as
introductory to the facts in issue. The particulars of a dispute
between A and B about a matter unconnected with the alleged libel are
irrelevant, though the fact that there was a dispute may be relevant
if it affected the relations between A and B. (c) A is accused of a
crime. The fact that, soon after the commission of the crime, A
absconded from his house, is relevant under section 8, as conduct
subsequent to and affected by facts in issue. The fact that at the
time when he left home he had sudden and urgent business at the place
to which he went, is relevant, as tending to explain the fact that he
left home suddenly. The details of the business on which he left are
not relevant, except in so far as they are necessary to show that the
business was sudden and urgent. 8 (d) A sues B for inducing C to
break a contract of service made by him with A. C, on leaving A's
service, says to A-"I am leaving you because B has made me a
better offer." This statement is a relevant fact as explanatory
of C's conduct, which is relevant as a fact in issue. (e) A, accused
of theft, is seen to give the stolen property to B, who is seen to
give it to A's wife. B says as he delivers it-"A says your are
to hide this." B's statement is relevant as explanatory of a
fact which is part of the transaction. (f) A is tried for a riot and
is proved to have marched at the head of a mob. The cries of the mob
are relevant as explanatory of the nature of the transaction.
10. Things said or done by conspirator in reference to common
design. Where there is reasonable round to believe that two or more
persons have conspired together to commit an offence or an actionable
wrong, anything said, done or written by any one of such persons in
reference to their common intention, after the time when such
intention was first entertained by any one of them, is a relevant
fact as against each of the persons believed to be so conspiring, as
well for the purpose of proving the existence of the conspiracy as
for the purpose of showing that any such person was a party to it.
Illustration Reasonable ground exists for believing that A has joined
in a conspiracy to wage war against the 1*[Government of India]. The
facts that B procured arms in Europe for the purpose of the
conspiracy, C collected money in Calcutta for a like object, D
persuaded persons to join the conspiracy in Bombay, E published
writings advocating the object in view at Agra, and F transmitted
from Delhi to G at Kabul the money which C had collected at Calcutta,
and the contents of a letter written by H giving an account of the
conspiracy, are each relevant, both to prove the existence of the
conspiracy, and to prove A's complicity in it, although he may have
been ignorant of all of them, and although the persons by whom they
were done were strangers to him, and although they may have taken
place before he joined the conspiracy or after he left it.
11. When facts not otherwise relevant become relevant.-Facts not
otherwise relevant are relevant--
(1) if they are inconsistent with any fact in issue or relevant
fact;
(2) if by themselves or in connection with other facts they make
the existence or non-existence of any fact in issue or relevant fact
highly probable or improbable. Illustrations (a) The question is
whether A committed a crime at Calcutta on a certain day. The fact
that, on that day, A was at Lahore is relevant.
---------------------------------------------------------------------
1. Subs. by the A. O. 1950 for "Queen". 9 The fact that,
near the time when the crime was committed, A was at a distance from
the place where it was committed, which would render it highly
improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime. The circumstances
are such that the crime must have been committed either by A, B, C or
D. Every fact which shows that the crime could have been committed by
no one else and that it was not committed by either B, C or D, is
relevant.
amount are relevant. 12. In suits for damages, facts tending to
enable Court to determine amount are relevant. In suits in which
damages are claimed, any fact which will enable the Court to
determine the amount of damages which ought to be awarded, is
relevant.
13. Facts relevant when right or custom is in question.-Where the
question is as to the existence of any right or custom, the following
facts are relevant:- (a) any transaction by which the right or custom
in question was created, claimed, modified, recognized, asserted or
denied, or which was inconsistent with its existence: (b) particular
instances in which the right or custom was claimed, recognized or
exercised, or in which its exercise was disputed, asserted or
departed from. Illustration. The question is whether A has a right to
a fishery. A deed conferring the fishery on A's ancestors, a mortgage
of the fishery by A's father, a subsequent grant of the fishery by
A's father, irreconcilable with the mortgage, particular instances in
which A's father exercised the right, or in which the exercise of the
right was stopped by A's neighbours, are relevant facts.
feeling. 14. Facts showing existence of state of mind, or of body,
of bodily feeling.-Facts showing the existence of any state of mind,
such as intention, knowledge, good faith, negligence, rashness,
ill-will or good-will towards any particular person, or showing the
existence of any state of body or bodily feeling, are relevant, when
the existence of any such state of mind or body or bodily feeling, is
in issue or relevant. 1*[Explanation 1.--A fact relevant as showing
the existence of a relevant state of mind must show that the state of
mind exists, not generally, but in reference to the particular matter
in question. Explanation 2.--But where, upon the trial of a person
accused of an offence, the previous commission by the accused of an
offence is
---------------------------------------------------------------------
1. Subs. by Act 3 of 1891, s. 1, for the original Explanation.
---------------------------------------------------------------------
20 relevant within the meaning of this section, the previous
conviction of such person shall also be a relevant fact. 1*]
Illustrations. (a) A is accused of receiving stolen goods knowing
them to be stolen. It is proved that he was in possession of a
particular stolen article. The fact that, at the same time, he was in
possession of many other stolen articles is relevant, as tending to
show that he knew each and all of the articles of which he was in
possession to be stolen. 2*[(b) A is accused of fraudulently
delivering to another person a counterfeit coin which, at the time
when he delivered it, he knew to be counterfeit. The fact that, at
the time of its delivery, A was possessed of a number of other pieces
of counterfeit coin is relevant. The fact that A had been previously
convicted of delivering to another person as genuine a counterfeit
coin knowing it to be counterfeit is relevant.] (c) A sues B for
damage done by a dog of B's which B knew to be ferocious. The facts
that the dog had previously bitten X, Y and Z, and that they had made
complaints to B, are relevant. (d) The question is whether A, the
acceptor of a bill of exchange, knew that the name of a payee was
fictitious. The fact that A had accepted other bills drawn in the
same manner before they could have been transmitted to him by the
payee if the payee had been a real person, is relevant, as showing
that A knew that the payee was a fictitious person. (e) A is accused
of defaming B by publishing an imputation intended to harm the
reputation of B. The fact of previous publications by A respecting B,
showing ill- will on the part of A towards B is relevant, as proving
A's intention to harm B's reputation by the particular publication in
question. The facts that there was no previous quarrel between A and
B, and that A repeated the matter complained of as he heard it, are
relevant, as showing that A did not intend to harm the reputation of
B. (f) A is sued by B for fraudulently representing to B that C was
solvent, whereby B, being induced to trust C, who was insolvent,
suffered loss. The fact that, at the time when A represented C to be
solvent, C was supposed to be solvent by his neighbours and by
persons dealing with him, is relevant, as showing that A made the
representation in good faith. (g) A is sued by B for the price of
work done by B, upon a house of which A is owner, by the order of C,
a contractor. A's defence is that B's contract was with C. The fact
that A paid C for the work in question is relevant, as proving that A
did, in good faith, make over to C the management of the work in
question, so that C was in a position to contract with B on C's own
account, and not as agent for A.
---------------------------------------------------------------------
1. See the Code of Criminal Procedure, 1898 (Act 5 of 1898), s. 311.
2. Subs. by Act 3 of 1891, s. 1, for the original illustration (b).
11 (h) A is accused of the dishonest misappropriation of property
which he had found, and the question is whether, when he appropriated
it, he believed in good faith that the real owner could not be found.
The fact that public notice of the loss of the property had been
given in the place where A was, is relevant, as showing that A did
not in good faith believe that the real owner of the property could
not be found. The fact that A knew, or had reason to believe, that
the notice was given fraudulently by C, who had heard of the loss of
the property and wished to set up a false claim to it, is relevant,
as showing that the fact that A knew of the notice did not disprove
A's good faith. (i) A is charged with shooting at B with intent to
kill him, In order to show A's intent the fact of A's having
previously shot at B may be proved. (j) A is charged with sending
threatening letters to B. Threatening letters previously sent by A to
B may be proved, as showing the intention of the letters. (k) The
question is, whether A has been guilty of cruelty towards B, his
wife. Expressions of their feeling towards each other shortly before
or after the alleged cruelty are relevant facts. (l) The question is
whether A's death was caused by poison. Statements made by A during
his illness as to his symptoms are relevant facts. (m) The question
is, what was the state of A's health at the time when an assurance on
his life was effected. Statements made by A as to the state of his
health at or near the time in question are relevant facts. (n) A sues
B for negligence in providing him with a carriage for hire not
reasonably fit for use, whereby A was injured. The fact that B's
attention was drawn on other occasions to the defect of that
particular carriage is relevant. The fact that B was habitually
negligent about the carriages which he let to hire is irrelevant. (o)
A is tried for the murder of B by intentionally shooting him dead.
The fact that A on other occasions shot at B is relevant as showing
his intention to shoot B. The fact that A was in the habit of
shooting at people with intent to murder them, is irrelevant. (p) A
is tried for a crime. The fact that he said something indicating an
intention to commit that particular crime is relevant. The fact that
he said something indicating a general disposition to commit crimes
of that class is irrelevant.
15. Facts bearing on question whether act was accidental or
intentional.-When there is a question whether an act was accidental
or intentional, 1*[or done with a particular knowledge or intention,]
the fact that such act formed part of a series of similar
occurrences, in each of which the person doing the act was concerned,
is relevant.
---------------------------------------------------------------------
1. Ins. by Act 3 of 1891, s. 2.
---------------------------------------------------------------------
12 Illustrations (a) A is accused of burning down his house in order
to obtain money for which it is insured. The facts that A lived in
several houses successively each of which he insured, in each of
which a fire occurred, and after each of which fires A received
payment from a different insurance office, are relevant, as tending
to show that the fires were not accidental. (b) A is employed to
receive money from the debtors of B. It is A's duty to make entries
in a book showing the amounts received by him. He makes an entry
showing that on a particular occasion he received less than he really
did receive. The question is, whether this false entry was accidental
or intentional. The facts that other entries made by A in the same
book are false, and that the false entry is in each case in favour of
A, are relevant. (c) A is accused of fraudulently delivering to B a
counterfeit rupee. The question is, whether the delivery of the rupee
was accidental. The facts that, soon before or soon after the
delivery to B, A delivered counterfeit rupees to C, D and E are
relevant, as showing that the delivery to B was not accidental.
16. Existence of course of business when relevant.-When there is a
question whether a particular act was done, the existence of any
course of business, according to which it naturally would have been
done, is a relevant fact. Illustrations (a) The question is, whether
a particular letter was despatched. The facts that it was the
ordinary course of business for all letters put in a certain place to
be carried to the post, and that particular letter was put in that
place are relevant. (b) The question is, whether a particular letter
reached A. The facts that it was posted in due course, and was not
returned through the Dead Letter Office, are relevant. ADMISSIONS
17. Admission defined.-An admission is a statement, oral or
documentary, which suggests any inference as to any fact in issue or
relevant fact, and which is made by any of the persons, and under the
circumstances, hereinafter mentioned.
by suitor in representative character; by party interested in
subject matter; by person from whom interest derived. 18. Admission
by party to proceeding or his agent.-Statements made by a party to
the proceeding, or by an agent to any such party, whom the Court
regards, under the circumstances of the case, as expressly or
impliedly authorized by him to make them, are admissions. by suitor
in representative character-Statements made by parties to suits suing
or sued in a representative character, are not admissions, unless
they were made while the party making them held that character. 13
Statements made by-- by party interested in subject matter;
(1) persons who have any proprietary or pecuniary interest in the
subject-matter of the proceeding, and who make the statement in their
character of persons so interested, or by person from whom interest
derived.
(2) persons from whom the parties to the suit have derived their
interest in the subject-matter of the suit, are admissions, if they
are made during the continuance of the interest of the persons making
the statements.
to suit. 19. Admissions by persons whose position must be proved
as against party to suit.-Statements made by persons whose position
or liability it is necessary to prove as against any party to the
suit, are admissions, if such statements would be relevant as against
such persons in relation to such position or liability in a suit
brought by or against them, and if they are made whilst the person
making them occupies such position or is subject to such liability.
Illustration A undertakes to collect rents for B. B sues A for not
collecting rent due from C to B. A denies that rent was due from C to
B. A statement by C that he owed B rent is an admission, and is a
relevant fact as against A, if A denies that C did owe rent to B.
20. Admissions by persons expressly referred to by party to suit.-
Statements made by person to whom a party to the suit has expressly
referred for information in reference to a matter in dispute are
admissions. Illustration The question is, whether a horse sold by A
to B is sound. A says to B--"Go and ask C, C knows all about
it." C's statement is an admission.
behalf. 21. Proof of admissions against persons making them, and
by or on their behalf.-Admissions are relevant and may be proved as
against the person who makes them, or his representative in interest;
but they cannot be proved by or on behalf of the person who makes
them or by his representative in interest, except in the following
cases:-
(1) An admission may be proved by or on behalf of the person
making it, when it is of such a nature that, if the person making it
were dead, it would be relevant as between third persons under
section 32.
(2) An admission may be proved by or on behalf of the person
making it, when it consists of a statement of the existence 14 of any
state of mind or body, relevant or in issue, made at or about the
time when such state of mind or body existed, and is accompanied by
conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person
making it, if it is relevant otherwise than as an admission.
Illustrations (a) The question between A and B is, whether a certain
deed is or is not forged. A affirms that it is genuine, B that it is
forged. A may prove a statement by B that the deed is genuine, and B
may prove a statement by A that deed is forged; but A cannot prove a
statement by himself that the deed is genuine, nor can B prove a
statement by himself that the deed is forged. (b) A, the captain of a
ship, is tried for casting her away. Evidence is given to show that
the ship was taken out of her proper course. A produces a book kept
by him in the ordinary course of his business showing observations
alleged to have been taken by him from day to day, and indicating
that the ship was not taken out of her proper course. A may prove
these statements, because they would be admissible between third
parties, if he were dead, under section 32,
clause (2). (c) A is accused of a crime committed by him at
Calcutta. He produces a letter written by himself and dated at Lahore
on that day, and bearing the Lahore post-mark of that day. The
statement in the date of the letter is admissible, because,
if A were dead, it would be admissible under section 32, clause
(2). (d) A is accused of receiving stolen goods knowing them to be
stolen. He offers to prove that he refused to sell them below their
value. A may prove these statements, though they are admissions,
because they are explanatory of conduct influenced by facts in issue.
(e) A is accused of fraudulently having in his possession counterfeit
coin which he knew to be counterfeit. He offers to prove that he
asked a skilful person to examine the coin as he doubted whether it
was counterfeit or not, and that that person did examine it and told
him it was genuine. A may prove these facts for the reasons stated in
the last preceding illustration.
22. When oral admissions as to contents of documents are
relevant.-Oral admissions as to the contents of a document are not
relevant, unless and until the party proposing to prove them shows
that he is entitled to give secondary evidence of the contents of
such document under the rules hereinafter contained, or unless the
genuineness of a document produced is in question. 15
23. Admissions in civil cases when relevant.-In civil cases no
admission is relevant, if it is made either upon an express condition
that evidence of it is not to be given, or under circumstances from
which the Court can infer that the parties agreed together that
evidence of it should not be given. Explanation.--Nothing in this
section shall be taken to exempt any barrister, pleader, attorney or
vakil from giving evidence of any matter of which he may be compelled
to give evidence under section
Confession caused by inducement, threat or promise, when
irrelevant in criminal proceeding. 24. Confession caused by
inducement, threat or promise, when irrelevant in criminal
proceeding.-A confession made by an accused person is irrelevant in a
criminal proceeding, if the making of the confession appears to the
Court to have been caused by any inducement, threat or promise 1*
having reference to the charge against the accused person, proceeding
from a person in authority and sufficient, in the opinion of the
Court, to give the accused person grounds, which would appear to him
reasonable, for supposing that by making it he would gain any
advantage or avoid any evil of a temporal nature in reference to the
proceedings against him.
25. Confession to police-officer not to be proved.-No confession
made to a police-officer2*, shall be proved as against a person
accused of any offence.
against him. 26. Confession by accused while in custody of police
not to be proved against him.-No confession made by any person whilst
he is in the custody of a police-officer, unless it be made in the
immediate presence of a Magistrate, 3* shall be proved as against
such person. 4*[Explanation.--In this section "Magistrate"
does not include the head of a village discharging magisterial
functions in the Presidency of Fort St. George 5*** or elsewhere,
unless such headman is a Magistrate exercising the powers of a
Magistrate under the Code of Criminal Procedure, 18826* (10 of
1882).]
27. How much of information received from accused may be proved.-
Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any
---------------------------------------------------------------------
1. For prohibition of such inducements, etc., see the Code of
Criminal Procedure 1898 (Act 5 of 1898), s. 343. 2. As to statements
made to a police-officer investigating a case, see s. 162, ibid. 3. A
Coroner has been declared to be a Magistrate for the purposes of this
section, see the Coroners Act, 1871 (4 of 1871), s. 20. 4. Ins. by
Act 3 of 1891, s. 3. 5. The words "or in Burma" rep. by the
A. O. 1937. 6. See now the Code of Criminal Procedure, 1898 (Act 5 of
1898).
---------------------------------------------------------------------
16 offence, in the custody of a police-officer, so much of such
information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.
threat or promise, relevant. 28. Confession made after removal of
impression caused by inducement, threat or promise, relevant.-If such
a confession as is referred to in section 24 is made after the
impression caused by any such inducement, threat or promise has, in
the opinion of the Court, been fully removed, it is relevant.
promise of secrecy, etc. 29. Confession otherwise relevant not to
become irrelevant because of promise of secrecy, etc.-If such a
confession is otherwise relevant, it does not become irrelevant
merely because it was made under a promise of secrecy, or in
consequence of a deception practised on the accused person for the
purpose of obtaining it, or when he was drunk, or because it was made
in answer to questions which he need not have answered, whatever may
have been the form of those questions, or because he was not warned
that he was not bound to make such confession, and that evidence of
it might be given against him.
others jointly under trial for same offence. 30. Consideration of
proved confession affecting person making it and others jointly under
trial for same offence.-When more persons than one are being tried
jointly for the same offence, and a confession made by one of such
persons affecting himself and some other of such persons is proved,
the Court may take into consideration such confession as against such
other person as well as against the person who makes such confession.
1*[Explanation.-"Offence" as used in this section, includes
the abetment of, or attempt to commit, the offence.*2] Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that
A said--"B and I murdered C". The Court may consider the
effect of this confession as against B. (b) A is on his trial for the
murder of C. There is evidence to show that C was murdered by A and
B, and that B said--"A and I murdered C". This statement
may not be taken into consideration by the Court against A, as B is
not being jointly tried.
31. Admissions not conclusive proof, but may estop.-Admissions are
not conclusive proof of the matters admitted but they may operate as
estoppels under the provisions hereinafter contained.
---------------------------------------------------------------------
1. Ins. by Act 3 of 1891, s. 4. 2. Cf. the Indian Penal Code (Act 45
of 1860), Explanation 4 to s.
17 STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES
cannot be found, etc., is relevant. When it relates to cause of
death; or is made in course of business; or against interest of
maker; or gives opinion as to public right or custom, or matters of
general interest; or relates to existence of relationship; or is made
in will or deed relatin to family affairs; or in document relating to
transaction mentioned in section 13, clause (a); or is made by
several persons and expresses feelings relevant to matter in
question; 32. Cases in which statement of relevant fact by person who
is dead or cannot be found, etc., is relevant.-Statements, written or
verbal, of relevant facts made by a person who is dead, or who cannot
be found, or who has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay or expense
which under the circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in the following cases:--
When it relates to cause of death.-
(1) When the statement is made by a person as to the cause of his
death, or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that person's
death comes into question. Such statements are relevant whether the
person who made them was or was not, at the time when they were made,
under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question. or is
made in course of business;
(2) When the statement was made by such person in the ordinary
course of business, and in particular when it consists of any entry
or memorandum made by him in books kept in the ordinary course of
business, or in the discharge of professional duty; or of an
acknowledgment written or signed by him of the receipt of money,
goods, securities or property of any kind; or of a document used in
commerce written or signed by him; or of the date of a letter or
other document usually dated, written or signed by him. or against
interest of maker;
(3) When the statement is against the pecuniary or proprietary
interest of the person making it, or when, if true, it would expose
him or would have exposed him to a criminal prosecution or to a suit
for damages. or gives opinion as to public right or custom, or
matters of general interest;
(4) When the statement gives the opinion of any such person, as to
the existence of any public right or custom or matter of public or
general interest, of the existence of which, if it existed, he would
have been likely to be aware, and when such statement was made before
any controversy as to such right, custom or matter had arisen. or
relates to existence of relationship.-
(5) When the statement relates to the existence of any
relationship 1*[by blood, marriage or adoption] between persons as to
whose relationship 1*[by blood, marriage or adoption]
---------------------------------------------------------------------
1. Ins. by Act 18 of 1872, s. 2.
---------------------------------------------------------------------
28 the person making the statement had special means of knowledge,
and when the statement was made before the question in dispute was
raised. or is made in will or deed relating to family affairs;
(6) When the statement relates to the existence of any
relationship 1*[by blood, marriage or adoption] between persons
deceased, and is made in any will or deed relating to the affairs of
the family to which any such deceased person belonged, or in any
family pedigree, or upon any tombstone, family portrait or other
thing on which such statements are usually made, and when such
statement was made before the question in dispute was raised. or in
document relating to transaction mentioned in section 13, clause (a);
(7) When the statement is contained in any deed, will or other
document which relates to any such transaction as is mentioned in
section 13, clause (a). or is made by several persons and expresses
feelings relevant to matter in question.
(8) When the statement was made by a number of persons, and
expressed feelings or impressions on their part relevant to the
matter in question. Illustrations. (a) The question is, whether A was
murdered by B; or A dies of injuries received in a transaction in the
course of which she was ravished. The question is whether she was
ravished by B; or The question is, whether A was killed by B under
such circumstances that a suit would lie against B by A's widow.
Statements made by A as to the cause of his or her death, referring
respectively to the murder, the rape and the actionable wrong under
consideration, are relevant facts. (b) The question is as to the date
of A's birth. An entry in the diary of a deceased surgeon regularly
kept in the course of business, stating that, on a given day he
attended A's mother and delivered her of a son, is a relevant fact.
(c) The question is, whether A was in Calcutta on a given day. A
statement in the diary of a deceased solicitor, regularly kept in the
course of business, that on a given day the solicitor attended A at a
place mentioned, in Calcutta, for the purpose of conferring with him
upon specified business, is a relevant fact. (d) The question is,
whether a ship sailed from Bombay harbour on a given day. A letter
written by a deceased member of a merchant's firm by which she was
chartered to their correspondents in London, to whom the cargo was
consigned, stating that the ship sailed on a given day from Bombay
harbour, is a relevant fact.
---------------------------------------------------------------------
1. Ins. by Act 18 of 1872, s. 2 19 (e) The question is, whether rent
was paid to A for certain land. A letter from A's deceased agent to
A, saying that he had received the rent on A's account and held it at
A's orders, is a relevant fact. (f) The question is, whether A and B
were legally married. The statement of a deceased clergyman that he
married them under such circumstances that the celebration would be a
crime, is relevant. (g) The question is, whether A, a person who
cannot be found, wrote a letter on a certain day. The fact that a
letter written by him is dated on that day is relevant. (h) The
question is, what was the cause of the wreck of a ship. A protest
made by the Captain, whose attendance cannot be procured, is a
relevant fact. (i) The question is, whether a given road is a public
way. A statement by A, a deceased headman of the village, that the
road was public, is a relevant fact. (j) The question is, what was
the price of grain on a certain day in a particular market. A
statement of the price, made by a deceased banya in the ordinary
course of his business, is a relevant fact. (k) The question is,
whether A, who is dead, was the father of B. A statement by A that B
was his son, is a relevant fact. (l) The question is, what was the
date of the birth of A. A letter from A's deceased father to a
friend, announcing the birth of A on a given day, is a relevant fact.
(m) The question is, whether, and when, A and B were married. An
entry in a memorandum-book by C, the deceased father of B, of his
daughter's marriage with A on a given date, is a relevant fact. (n) A
sues B for a libel expressed in a painted caricature exposed in a
shop window. The question is as to the similarity of the caricature
and its libellous character. The remarks of a crowd of spectators on
these points may be proved.
the truth of facts therein stated. 33. Relevancy of certain
evidence for proving, in subsequent proceeding, the truth of facts
therein stated.-Evidence given by a witness in a judicial proceeding,
or before any person authorized by law to take it, is relevant for
the purpose of proving, in a subsequent judicial proceeding, or in a
later stage of the same judicial proceeding, the truth of the facts
which it states, when the witness is dead or cannot be found, or is
incapable of giving evidence, or is kept out of the way by the
adverse party, or if his presence cannot be obtained without an
amount of delay or expense which, under the circumstances of the
case, the Court considers unreasonable; Provided-- that the
proceeding was between the same parties or their representatives in
interest; 20 that the adverse party in the first proceeding had the
right and opportunity to cross-examine; that the questions in issue
were substantially the same in the first as in the second proceeding.
Explanation.--A criminal trial or inquiry shall be deemed to be a
proceeding between the prosecutor and the accused within the meaning
of this section. STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES
34. Entries in books of account when relevant.-1* Entries in books
of account, regularly kept in the course of business, are relevant
whenever they refer to a matter into which the Court has to inquire,
but such statements shall not alone be sufficient evidence to charge
any person with liability. Illustration A sues B for Rs. 1,000, and
shows entries in his account books showing B to be indebted to him to
this amount. The entries are relevant, but are not sufficient,
without other evidence, to prove the debt.
35. Relevancy of entry in public record made in performance of
duty.-An entry in any public or other official book, register or
record, stating a fact in issue or relevant fact, and made by a
public servant in the discharge of his official duty, or by any other
person in performance of a duty specially enjoined by the law of the
country in which such book, register or record is kept, is itself a
relevant fact.
36. Relevancy of statements in maps, charts and plans.-Statements
of facts in issue or relevant facts, made in published maps or charts
generally offered for public sale, or in maps or plans made under the
authority of 2*[the Central Government or any State Government], as
to matters usually represented or stated in such maps, charts or
plans, are themselves relevant facts.
certain Acts or notifications. 37. Relevancy of statement as to
fact of public nature contained in certain Acts or
notifications.-When the Court has to form an opinion as to the
existence of any fact of a public nature, any statement of it, made
in a recital contained in any Act of Parliament 3*[of the United
Kingdom] or in
---------------------------------------------------------------------
1. Cf. the Code of Civil Procedure, 1908 (Act 5 of 1908), Sch. I,
Order VII, Rule 17. As to admissibility in evidence of certified
copies of entries in Bankers' books, see the Bankers' Books Evidence
Act, 1891 (18 of 1891), s. 4. 2. Subs. by the A. O. 1948 for "any
Govt. in British India". 3. Ins by the A. O. 1950. 21 any
1*[Central Act, Provincial Act or 2*[a State Act] or in a Government
notification or notification by the Crown Representative appearing in
the Official Gazette or in any printed paper purporting to be the
London Gazette or the Government Gazette of any Dominion, colony or
possession of his Majesty is a relevant fact]. 3* * * * *
38. Relevancy of statements as to any law contained in law-books.-
When the Court has to form an opinion as to a law of any country, any
statement of such law contained in a book purporting to be printed or
published under the authority of the Government of such country and
to contain any such law, and any report of a ruling of the Courts of
such country contained in a book purporting to be a report of such
rulings, is relevant. HOW MUCH OF A STATEMENT IS TO BE PROVED
document, book or series of letters or papers. 39. What evidence
to be given when statement forms part of a conversation, document,
book or series of letters or papers.-When any statement of which
evidence is given forms part of a longer statement, or of a
conversation or part of an isolated document, or is contained in a
document which forms part of a book, or of a connected series of
letters or papers, evidence shall be given of so much and no more of
the statement, conversation, document, book or series of letters or
papers as the Court considers necessary in that particular case to
the full understanding of the nature and effect of the statement, and
of the circumstances under which it was made. JUDGMENTS OF COURTS OF
JUSTICE WHEN RELEVANT
40. Previous judgments relevant to bar a second suit or trial.-
The existence of any judgment, order or decree which by law prevents
any Court from taking cognizance of a suit or holding a trial, is a
relevant fact when the question is whether such Court ought to take
cognizance of such suit or to hold such trial.
41. Relevancy of certain judgments in probate, etc.,
jurisdiction.-A final judgment, order or decree of a competent Court,
in the exercise of probate, matrimonial, admiralty or insolvency
jurisdiction,
---------------------------------------------------------------------
1. The original words were "Act of the Governor General of India
in Council or of the Governors in Council of Madras or Bombay, or of
the Lieutenant-Governor in Council of Bengal, or in a notification of
the Govt. appearing in the Gazette of India, or in the Gazette of any
L. G., or in any printed paper purporting to be the London Gazette or
the Govt. Gazette of any colony or possession of the Queen, is a
relevant fact". This was amended first by the Repealing and
Amending Act, 1914 (10 of 1914), and then by the A.O. 1937, the A. O.
1948 and the A. O. 1950 to read as above. 2. Subs. by Act 3 of 1951,
s. 3 and Sch., for "an Act of the Legislature of a Part A State
or a Part C State". 3. The last paragraph omitted by Act 10 of
1914. 22 which confers upon or takes away from any person any legal
character, or which declares any person to be entitled to any such
character, or to be entitled to any specific thing, not as against
any specified person but absolutely, is relevant when the existence
of any such legal character, or the title of any such person to any
such thing, is relevant. Such judgment, order or decree is conclusive
proof- that any legal character which it confers accrued at the time
when such judgment, order or decree came into operation; that any
legal character, to which it declares any such person to be entitled,
accrued to that person at the time when such judgment 1*[order or
decree] declares it to have accrued to that person; that any legal
character which it takes away from any such person ceased at the time
from which such judgment, 1*[order or decree] declared that it had
ceased or should cease; and that anything to which it declares any
person to be so entitled was the property of that person at the time
from which such judgment, 1*[order or decree] declares that it had
been or should be his property.
mentioned in section 41. 42. Relevancy and effect of judgments,
orders or decrees, other than those mentioned in section
41.-Judgments, orders or decrees other than those mentioned in
section 41 are relevant if they relate to matters of a public nature
relevant to the enquiry; but such judgments, orders or decrees are
not conclusive proof of that which they state. Illustration A sues B
for trespass on his land. B alleges the existence of a public right
of way over the land, which A denies. The existence of a decree in
favour of the defendant, in a suit by A against C for a trespass on
the same land, in which C alleged the existence of the same right of
way, is relevant, but it is not conclusive proof that the right of
way exists. 43 Judgments, etc., other than those mentioned in
sections 40 to 42, when relevant. 43. Judgments, etc., other than
those mentioned in sections 40 to 42, when relevant.-Judgments,
orders or decrees, other than those mentioned in sections 40, 41 and
42, are irrelevant, unless the existence of such
---------------------------------------------------------------------
1 Ins. by Act 18 of 1872, s. 3.
---------------------------------------------------------------------
33 judgment, order or decree is a fact in issue, or is relevant under
some other provision of this Act. Illustrations (a) A and B
separately sue C for a libel which reflects upon each of them. C in
each case says that the matter alleged to be libellous is true, and
the circumstances are such that it is probably true in each case, or
in neither. A obtains a decree against C for damages on the ground
that C failed to make out his justification. The fact is irrelevant
as between B and C. (b) A prosecutes B for adultery with C, A's wife.
B denies that C is A's wife, but the Court convicts B of adultery.
Afterwards, C is prosecuted for bigamy in marrying B during A's
lifetime. C says that she never was A's wife. The judgment against B
is irrelevant as against C. (c) A prosecutes B for stealing a cow
from him. B is convicted. A afterwards sues C for the cow, which B
had sold to him before his conviction. As between A and C, the
judgment against B is irrelevant. (d) A has obtained a decree for the
possession of land against B. C, B's son, murders A in consequence.
The existence of the judgment is relevant, as showing motive for a
crime. 1*[(e) A is charged with theft and with having been previously
convicted of theft. The previous conviction is relevant as a fact in
issue. (f) A is tried for the murder of B. The fact that B prosecuted
A for libel and that A was convicted and sentenced is relevant under
section 8 as showing the motive for the fact in issue.]
may be proved. 44. Fraud or collusion in obtaining judgment, or
incompetency of Court, may be proved.-Any party to a suit or other
proceeding may show that any judgment, order or decree which is
relevant under section 40,41 or 42, and which has been proved by the
adverse party, was delivered by a Court not competent to deliver it,
or was obtained by fraud or collusion. OPINIONS OF THIRD PERSONS WHEN
RELEVANT
45. Opinions of experts.-When the Court has to form an opinion
upon a point of foreign law, or of science, or art, or as to identity
of handwriting 2*[or finger impressions], the opinions upon that
point of persons specially skilled in such foreign law, science or
art, 3*[or in questions as to identity of handwriting] 2*[or finger
impressions] are relevant facts. Such persons are called experts.
---------------------------------------------------------------------
1. Ins. by Act 3 of 1891, s. 5. 2. Ins. by Act 5 of 1899, s. 3. For
discussion in Council as to whether " finger impressions"
include "thumb impressions," see Gazette of India, 1898,
Pt. VI, p. 24. 3. Ins. by Act 18 of 1872, s. 4. 24 Illustrations (a)
The questions is, whether the death of A was caused by poison. The
opinions of experts as to the symptoms produced by the poison by
which A is supposed to have died, are relevant. (b) The question is,
whether A, at the time of doing a certain act, was, by reason of
unsoundness of mind, incapable of knowing the nature of the act, or
that he was doing what was either wrong or contrary to law. The
opinions of experts upon the question whether the symptoms exhibited
by A commonly show unsoundness of mind, and whether such unsoundness
of mind usually renders persons incapable of knowing the nature of
the acts which they do, or of knowing that what they do is either
wrong or contrary to law, are relevant. (c) The question is, whether
a certain document was written by A. Another document is produced
which is proved or admitted to have been written by A. The opinions
of experts on the question whether the two documents were written by
the same person or by different persons, are relevant.
46. Facts bearing upon opinions of experts.-Facts, not otherwise
relevant, are relevant if they support or are inconsistent with the
opinions of experts, when such opinions are relevant. Illustrations
(a) The question is, whether A was poisoned by a certain poison. The
fact that other persons, who were poisoned by that poison, exhibited
certain symptoms which experts affirm or deny to be the symptoms of
that poison, is relevant. (b) The question is, whether an obstruction
to a harbour is caused by a certain sea-wall. The fact that other
harbours similarly situated in other respects, but where there were
no such sea-walls, began to be obstructed at about the same time, is
relevant.
47. Opinion as to hand-writing, when relevant.-When the Court has
to form an opinion as to the person by whom any document was written
or signed, the opinion of any person acquainted with the handwriting
of the person by whom it is supposed to be written or signed that it
was or was not written or signed by that person, is a relevant fact.
Explanation.--A person is said to be acquainted with the handwriting
of another person when he has seen that person write, or when he has
received documents purporting to be written by that person in answer
to documents written by himself or under his authority and addressed
to that person, or when, in the ordinary course of business,
documents purporting to be written by that person have been
habitually submitted to him. 25 Illustration The question is, whether
a given letter is in the handwriting of A, a merchant in London. B is
a merchant in Calcutta, who has written letters addressed to A and
received letters purporting to be written by him. C, is B's clerk,
whose duty it was to examine and file B's correspondence. D is B's
broker, to whom B habitually submitted the letters purporting to be
written by A for the purpose of advising with him thereon. The
opinions of B, C and D on the question whether the letter is in the
handwriting of A are relevant, though neither B, C nor D ever saw A
write.
48. Opinion as to existence of right or custom, when relevant.-
When the Court has to form an opinion as to the existence of any
general custom or right, the opinions, as to the existence of such
custom or right, of persons who would be likely to know of its
existence if it existed, are relevant. Explanation.--The expression
"general custom or right" includes customs or rights common
to any considerable class of persons. Illustration The right of the
villagers of a particular village to use the water of a particular
well is a general right within the meaning of this section.
49. Opinion as to usages, tenets, etc., when relevant.-When the
Court has to form an opinion as to-- the usages and tenets of any
body of men or family, the constitution and government of any
religious or charitable foundation, or the meaning of words or terms
used in particular districts or by particular classes of people, the
opinions of persons having special means of knowledge thereon, are
relevant facts.
50. Opinion on relationship, when relevant.-When the Court has to
form an opinion as to the relationship of one person to another, the
opinion, expressed by conduct, as to the existence of such
relationship, of any person who, as a member of the family or
otherwise, has special means of knowledge on the subject, is a
relevant fact: Provided that such opinion shall not be sufficient to
prove a marriage in proceedings under the Indian Divorce Act (4 of
1869), or in prosecutions under sections 494, 495, 497 or 498 of the
Indian Penal Code (45 of 1860). 26 Illustrations (a) The question is,
whether A and B, were married. The fact that they were usually
received and treated by their friends as husband and wife, is
relevant. (b) The question is, whether A was the legitimate son of B.
The fact that A was always treated as such by members of the family,
is relevant.
51. Grounds of opinion, when relevant.-Whenever the opinion of any
living person is relevant, the grounds on which such opinion is based
are also relevant. Illustration An expert may give an account of
experiments performed by him for the purpose of forming his opinion.
CHARACTER WHEN RELEVANT
52. In civil cases character to prove conduct imputed,
irrelevant.-In civil cases the fact that the character of any person
concerned is such as to render probable or improbable any conduct
imputed to him is irrelevant, except in so far as such character
appears from facts otherwise relevant.
53. In criminal cases previous good character relevant.-In
criminal proceedings the fact that the person accused is of a good
character is relevant.
1*[54. Previous bad character not relevant, except in reply.-In
criminal proceedings the fact that the accused person has a bad
character is irrelevant, unless evidence has been given that he has a
good character, in which case it becomes relevant. Explanation
1.--This section does not apply to cases in which the bad character
of any person is itself a fact in issue. Explanation 2.--A previous
conviction is relevant as evidence of bad character.]
55. Character as affecting damages.-In civil cases the fact that
the character of any person is such as to affect the amount of
damages which he ought to receive, is relevant. Explanation.--In
sections 52, 53, 54 and 55, the word "character" includes
both reputation and disposition; but, 2*[except as provided in
section 54], evidence may be given only of general reputation and
general disposition, and not of particular acts by which reputation
or disposition were shown.
---------------------------------------------------------------------
1. Subs. by Act 3 of 1891, s. 6, for the original section. 2. Ins. by
s. 7, ibid. 27 PART II ON PROOF PART II ON PROOF CHAPTER III FACTS
WHICH NEED NOT BE PROVED CHAPTER III. FACTS WHICH NEED NOT BE PROVED
56. Fact judicially noticeable need not be proved. No fact of
which the Court will take judicial notice need be proved.
57. Facts of which Court must take judicial notice. The Court
shall take judicial notice of the following facts:--
1*[(1) All laws in force in the territory of India;]
(2) All public Acts passed or hereafter to be passed by Parliament
2*[of the United Kingdom], and all local and personal Acts directed
by Parliament 2*[of the United Kingdom] to be judicially noticed;
(3) Articles of War for 3*[the Indian] Army 4*[Navy or Air Force];
5*[(4) The course of proceeding of Parliament of the United
Kingdom, of the Constituent Assembly of India, of Parliament and of
the legislatures established under any laws for the time being in
force in a Province or in the States;]
(5) The accession and the sign manual of the Sovereign for the
time being of the United Kingdom of Great Britain and Ireland:
(6) All seals of which English Courts take judicial notice; the
seals of all the 6*[Courts in 7*[India]] and of all Courts out of
7*[India] established by the authority of 8*[the Central Government
or the Crown Representative]: the seals of Courts of Admiralty and
Maritime Jurisdiction and of Notaries Public, and all seals which any
person
---------------------------------------------------------------------
1. Subs. by the A. O. 1950 for the former para. 2. Ins. ibid. 3.
Subs., ibid., for "Her Majesty's". 4. Subs. by Act 10 of
1927, s. 2 and Sch. I, for "or Navy".
5. Subs. by the A. O. 1950 for the former para. (4). 6. Subs. by
the A. O. 1948 for "Courts of British India". 7. Subs. by
Act 3 of 1951, s. 3 and Sch., for "the States". 8. Subs. by
the A. O. 1937 for "the G. G. or any L. G. in Council". 38
is authorized to use by 1*[the Constitution or an Act of Parliament
of the United Kingdom or an] Act or Regulation having the force of
law in 2*[India];
(7) The accession to office, names, titles, functions and
signatures of the persons filling for the time being any public
office in any State, if the fact of their appointment to such office
is notified in 3*[any Official Gazette];
(8) The existence, title and national flag of every State or
Sovereign recognized by 4*[the Government of India];
(9) The divisions of time, the geographical divisions of the
world, and public festivals, fasts and holidays notified in the
Official Gazette;
(10) The territories under the dominion of 4*[the Government of
India];
(11) The commencement, continuance and termination of hostilities
between 4*[the Government of India] and any other State or body of
persons;
(12) The names of the members and officers of the Court and of
their deputies and subordinate offices and assistants, and also of
all officers acting in execution of its process, and of all
advocates, attorneys, proctors, vakils, pleaders and other persons
authorized by law to appear or act before it;
(13) The rule of the road 5*[on land or at sea]. In all these
cases and also on all matters of public history, literature, science
or art, the Court may resort for its aid to appropriate books or
documents of reference. If the Court is called upon by any person to
take judicial notice of any fact, it may refuse to do so unless and
until such person produces any such book or document as it may
consider necessary to enable it to do so.
58. Facts admitted need not be proved. No fact need be proved in
any proceeding which the parties thereto their agents agree to admit
at the hearing, or which, before
---------------------------------------------------------------------
1. Subs. by the A. O. 1950 for "any Act of Parliament or other".
2. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States".
3. Subs. by the A. O. 1937 for "the Gazette of India or in the
Official Gazette of any L. G." 4. Subs. by the A. O. 1950 for
"the British Crown". 5. Ins. by Act 18 of 1872, s. 5. 29
the hearing, they agree to admit by any writing under their hands, or
which by any rule of pleading in force at the time they are deemed to
have admitted by their pleadings: Provided that the Court may, in its
discretion, require the facts admitted to be proved otherwise than by
such admissions. CHAPTER IV OF ORAL EVIDENCE CHAPTER IV. OF ORAL
EVIDENCE
59. Proof of facts by oral evidence. All facts, except the
contents of documents, may be proved by oral evidence.
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 sale, 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. CHAPTER V OF DOCUMENTARY
EVIDENCE CHAPTER V. OF DOCUMENTARY EVIDENCE
61. Proof of contents of documents. The contents of documents may
be proved either by primary or by secondary evidence. 30
62. Primary evidence. Primary evidence means the document itself
produced for the inspection of the Court. Explanation 1.--Where a
document is executed in several parts, each part is primary evidence
of the document: Where a document is executed in counterpart, each
counterpart being executed by one or some of the parties only, each
counterpart is primary evidence as against the parties executing it.
Explanation 2.--Where a number of documents are all made by one
uniform process, as in the case of printing, lithography or
photography, each is primary evidence of the contents of the rest;
but, where they are all copies of a common original, they are not
primary evidence of the contents of the original. Illustration A
person is shown to have been in possession of a number of placards,
all printed at one time from one original. Any one of the placards is
primary evidence of the contents of any other, but no one of them is
primary evidence of the contents of the original.
63. Secondary evidence. Secondary evidence means and includes--
(1) certified copies given under the provisions hereinafter
contained; 1*
(2) copies made from the original by mechanical processes which in
themselves insure the accuracy of the copy, and copies compared with
such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not
execute them;
(5) oral accounts of the contents of a document given by some
person who has himself seen it. Illustrations (a) A photograph of an
original is secondary evidence of its contents, though the two have
not been compared, if it is proved that the thing photographed was
the original. (b) A copy compared with a copy of a letter made by a
copying machine is secondary evidence of the contents of the letter,
if it is shown that the copy made by the copying machine was made
from the original.
---------------------------------------------------------------------
1. See s. 76, infra. 31 (c) A copy transcribed from a copy, but
afterwards compared with the original, is secondary evidence; but the
copy not so compared is not secondary evidence of the original,
although the copy from which it was transcribed was compared with the
original. (d) Neither an oral account of a copy compared with the
original, nor an oral account of a photograph or machine-copy of the
original, is secondary evidence of the original.
64. Proof of documents by primary evidence. Documents must be
proved by primary evidence except in the cases hereinafter mentioned.
65. Cases in which secondary evidence relating to documents may be
given. Secondary evidence may be given of the existence, condition or
contents of a document in the following cases:-- (a) when the
original is shown or appears to be in the possession or power-- of
the person against whom the document is sought to be proved, or of
any person out of reach of, or not subject to, the process of the
Court, or of any person legally bound to produce it, and when, after
the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have
been proved to be admitted in writing by the person against whom it
is proved or by his representative in interest; (c) when the original
has been destroyed or lost, or when the party offering evidence of
its contents cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time; (d) when the
original is of such a nature as not to be easily movable; (e) when
the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is
permitted by this Act, or by any other law in force in 1*[India] to
be given in evidence; 2*
---------------------------------------------------------------------
1. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States".
2. Cf. the Bankers' Books Evidence Act, 1891 (18 of 1891), s. 4. 32
(g) when the originals consist of numerous accounts or other
documents which cannot conveniently be examined in Court and the fact
to be proved is the general result of the whole collection. In cases
(a), (c) and (d), any secondary evidence of the contents of the
document is admissible. In case (b), the written admission is
admissible. In case (e) or (f), a certified copy of the document, but
no other kind of secondary evidence, is admissible. In case (g),
evidence may be given as to the general result of the documents by
any person who has examined them, and who is skilled in the
examination of such documents.
66. Rules as to notice to produce. Secondary evidence of the
contents of the documents referred to in section 65, clause (a),
shall not be given unless the party proposing to give such secondary
evidence has previously given to the party in whose possession or
power the document is, 1*[or to his attorney or pleader,] such notice
to produce it as is prescribed by law; and if no notice is prescribed
by law, then such notice as the Court considers reasonable under the
circumstances of the case: Provided that such notice shall not be
required in order to render secondary evidence admissible in any of
the following cases, or in any other case in which the Court thinks
fit to dispense with it:--
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know
that he will be required to produce it;
(3) when it appears or is proved that the adverse party has
obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of
the document;
(6) when the person in possession of the document is out of reach
of, or not subject to, the process of the Court.
written document produced. 67. Proof of signature and handwriting
of person alleged to have signed or written document produced. If a
document is alleged to be signed or to have been written wholly or in
part by any person, the signature or the handwriting
---------------------------------------------------------------------
1. Ins. by Act 18 of 1872, s. 6. 33 of so much of the document as is
alleged to be in that person's handwriting must be proved to be in
his handwriting.
68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used
as evidence until one attesting witness at least has been called for
the purpose of proving its execution, if there be an attesting
witness alive, and subject to the process of the Court and capable of
giving evidence: 1*[Provided that it shall not be necessary to call
an attesting witness in proof of the execution of any document, not
being a will, which has been registered in accordance with the
provisions of the Indian Registration Act, 1908 (16 of 1908), unless
its execution by the person by whom it purports to have been executed
is specifically denied.]
69. Proof where no attesting witness found. If no such attesting
witness can be found, or if the document purports to have been
executed in the United Kingdom, it must be proved that the
attestation of one attesting witness at least is in his handwriting,
and that the signature of the person executing the document is in the
handwriting of that person.
70. Admission of execution by party to attested document. The
admission of a party to an attested document of its execution by
himself shall be sufficient proof of its execution as against him,
though it be a document required by law to be attested.
71. Proof when attesting witness denies the execution. If the
attesting witness denies or does not recollect the execution of the
document, its execution may be proved by other evidence.
72. Proof of document not required by law to be attested. An
attested document not required by law to be attested may be proved as
if it was unattested.
proved. 73. Comparison of signature, writing or seal with others
admitted or proved. In order to ascertain whether a signature,
writing or seal is that of the person by whom it purports to have
been written or made, any signature, writing or seal admitted or
proved to the satisfaction of the Court to have been written or made
by that person may be compared with the one which is to be proved,
although that signature, writing or seal has not been produced or
proved for any other purpose. The Court may direct any person present
in Court to write any words or figures for the purpose of enabling
the Court to compare
---------------------------------------------------------------------
1. Ins. by Act 31 of 1926, s. 2. 34 the words or figures so written
with any words or figures alleged to have been written by such
person. 1*[This section applies also, with any necessary
modifications, to finger-impressions.] PUBLIC DOCUMENTS
74. Public documents. The following documents are public
documents:--
(1) documents forming the acts or records of the acts-- (i) of the
sovereign authority. (ii) of official bodies and tribunals, and (iii)
of public officers, legislative, judicial and executive, 2*[of any
part of India or of the Common-wealth], or of a foreign country;
(2) public records kept 3*[in any State] of private documents.
75. Private documents. All other documents are private.
76. Certified copies of public documents. Every 4* public officer
having the custody of a public document, which any person has a right
to inspect, shall give that person on demand a copy of it on payment
of the legal fees therefor, together with a certificate written at
the foot of such copy that it is a true copy of such document or part
thereof, as the case may be, and such certificate shall be dated and
subscribed by such officer with his name and his official title, and
shall be sealed, whenever such officer is authorized by law to make
use of a seal; and such copies so certified shall be called certified
copies. Explanation.--Any officer who, by the ordinary course of
official duty, is authorized to deliver such copies, shall be deemed
to have the custody of such documents within the meaning of this
section.
77. Proof of documents by production of certified copies. Such
certified copies may be produced in proof of the contents of the
public documents or parts of the public documents of which they
purport to be copies.
---------------------------------------------------------------------
1. Ins. by Act 5 of 1899, s. 3. 2. The original words "whether
of British India, or of any other part of Her Majesty's Dominions"
have successively been amended by the A. O. 1948 and the A. O. 1950
to read as above. 3. Subs. by the A. O. 1950 for "in any
Province". 4. A village-officer in the Punjab has been declared
for the purposes of this Act to be a public officer having the
custody of a public document--see the Punjab Land-revenue Act, 1887
(17
of 1887), s. 151 (2). 35
78. Proof of other official documents. The following public
documents may be proved as follows:--
(1) Acts, orders or notifications of 1*[the Central Government] in
any of its departments, 2*[or of the Crown Representative] or of any
State Government or any department of any State Government,-- by the
records of the departments, certified by the heads of those
departments respectively, or by any document purporting to be printed
by order of any such Government 2*[or, as the case may be, of the
Crown Representative];
(2) the proceedings of the Legislatures,-- by the journals of
those bodies respectively, or by published Acts or abstracts, or by
copies purporting to be printed 3*[by order of the Government
concerned];
(3) proclamations, orders or regulations issued by 4*Her Majesty
or by the Privy Council, or by any department of 4*Her Majesty's
Government,-- by copies or extracts contained in the London Gazette,
or purporting to be printed by the Queen's Printer;
(4) the Acts of the Executive or the proceedings of the
Legislature of a foreign country,-- by journals published by their
authority, or commonly received in that country as such, or by a copy
certified under the seal of the country or sovereign, or by a
recognition thereof in some 5*[Central Act]:
(5) the proceedings of a municipal body in 6*[a State],-- by a
copy of such proceedings, certified by the legal keeper thereof, or
by a printed book purporting to be published by the authority of such
body;
---------------------------------------------------------------------
1. Subs. by the A. O. 1937 for "the Executive Govt, of British
India". 2. Ins. ibid. 3. Subs., ibid., for "by order of
Govt." 4. The words "Her Majesty" shall stand
unmodified, vide the A. O.
of India in Council". 6. Subs. by the A. O. 1950. for "a
Province". 36
(6) public documents of any other class in a foreign country,-- by
the original, or by a copy certified by the legal keeper thereof,
with a certificate under the seal of a Notary Public, or of 1*[an
Indian Consul] or diplomatic agent, that the copy is duly certified
by the officer having the legal custody of the original, and upon
proof of the character of the document according to the law of the
foreign country. PRESUMPTIONS AS TO DOCUMENTS
79. Presumption as to genuineness of certified copies. The Court
shall presume 2*[to be genuine] every document purporting to be a
certificate, certified copy or other document, which is by law
declared to be admissible as evidence of any particular fact and
which purports to be duly certified by any officer 3*[of the Central
Government or of a State Government, or by any officer 4*[in the
State of Jammu and Kashmir] who is duly authorized thereto by the
Central Government]: Provided that such document is substantially in
the form and purports to be executed in the manner directed by law in
that behalf. The Court shall also presume that any officer by whom
any such document purports to be signed or certified, held, when he
signed it, the official character which he claims in such paper.
80. Presumption as to documents produced as record of evidence.-
Whenever any document is produced before any Court, purporting to be
a record or memorandum of the evidence, or of any part of the
evidence, given by a witness in a judicial proceeding or before any
officer authorized by law to take such evidence or to be a statement
or confession by any prisoner or accused person, taken in accordance
with law, and purporting to be signed by any Judge or Magistrate, or
by any such officer as aforesaid, the Court shall presume-- that the
document is genuine; that any statements as to the circumstances
under which it was taken, purporting to be made by the person signing
it, are true, and that such evidence, statement or confession was
duly taken.
---------------------------------------------------------------------
1. Subs. by the A. O. 1950 for "a British Consul". 2. Ins.
by the A. O. 1948. 3. The original words beginning from "in
British India" and ending with the words "to be genuine"
have been successively amended by the A. O. 1937, A. O. 1948 and A.
O. 1950 to read as above. 4. Subs. by Act 3 of 1951, s. 3 and Sch.,
for "in a Part B State". 37
other documents. 81. Presumption as to Gazettes, newspapers,
private Acts of Parliament and other documents.-The Court shall
presume the genuineness of every document purporting to be the London
Gazette or 1*[any Official Gazette, or the Government Gazette] of any
colony, dependency or possession of the British Crown, or to be a
newspaper or journal, or to be a copy of a private Act of Parliament
2*[of the United Kingdom] printed by the Queen's Printer and of every
document purporting to be a document directed by any law to be kept
by any person, if such document is kept substantially in the form
required by law and is produced from proper custody.
or signature. 82. Presumption as to document admissible in England
without proof of seal or signature.-When any document is produced
before any Court, purporting to be a document which, by the law in
force for the time being in England or Ireland, would be admissible
in proof of any particular in any Court of Justice in England or
Ireland, without proof of the seal or stamp or signature
authenticating it or of the judicial or official character claimed by
the person by whom it purports to be signed, the Court shall presume
that such seal, stamp or signature is genuine, and that the person
signing it held, at the time when he signed it, the judicial or
official character which he claims, and the document shall be
admissible for the same purpose for which it would be admissible in
England or Ireland.
83. Presumption as to maps or plans made by authority of
Government.-The Court shall presume that maps or plans purporting to
be made by the authority of 3*[the Central Government or any State
Government] were so made, and are accurate; but maps or plans made
for the purposes of any cause must be proved to be accurate.
84. Presumption as to collections of laws and reports of
decisions.-The Court shall presume the genuineness of every book
purporting to be printed or published under the authority of the
Government of any country, and to contain any of the laws of that
country, and of every book purporting to contain reports of decisions
of the Courts of such country.
85. Presumption as to powers-of-attorney.-The Court shall presume
that every document purporting to be a power-of-attorney, and to have
been executed before, and
---------------------------------------------------------------------
1. Subs. by the A. O. 1937 for "the Gazette of India. or the
Govt. Gazette of any L. G., or". 2. Ins. by the A. O. 1950. 3.
The original word "Government" has successively been
amended by the A. O. 1937, A. O. 1948, Act 40 of 1949 and the A. O.
1950 to read as above. 38 authenticated by, a Notary Public, or any
Court, Judge, Magistrate, 1*[Indian] Consul or Vice-Consul, or
representative 2*** of the 3*[Central Government], was so executed
and authenticated.
86. Presumption as to certified copies of foreign judicial
records.-The Court may presume that any document purporting to be a
certified copy of any judicial record of 4*[5*** any country not
forming part of India or] of Her Majesty's Dominions is genuine and
accurate, if the document purports to be certified in any manner
which is certified by any representative of 6*** the 3*[Central
Government] 7*[in or for] 8*[such country] to be the manner commonly
in use in 9*[that country] for the certification of copies of
judicial records. 10*[An officer who, with respect to 11*** any
territory or place not forming part of 12*[India or] Her Majesty's
Dominions, is a
Political Agent therefor, as defined in section 3, 13*[clause
(43)], of the General Clauses Act, 1897 (10 of 1897), shall, for the
purposes of this section, be deemed to be a representative of the
3*[Central Government] 14*[in and for the country] comprising that
territory or place].
87. Presumption as to books, maps and charts.-The Court may
presume that any book to which it may refer for information on
matters of public or general interest, and that any published map or
chart, the statements of which are relevant facts and which is
produced for its inspection, was written and published by the person
and at the time and place, by whom or at which it purports to have
been written or published.
---------------------------------------------------------------------
1. Subs. by the A. O. 1950 for "British". 2. The words "of
Her Majesty, or" rep., ibid. 3. Subs. by the A. O. 1937 for "G.
of I.". 4. Subs. by the A. O. 1950 for "any country not
forming part". 5. The words "a Part B State or of"
omitted by Act 3 of 1951, s. 3 and Sch. 6. The Words "Her
Majesty or of" rep. by the A. O. 1950. 7. Subs. by Act 3 of
1891, s. 8 for "resident in". 8. Subs. by Act 3 of 1951, s.
3 and Sch., for "such Part B State or country". 9. Subs. by
s. 3 and Sch., ibid., for "that State or country". 10.
Subs, by Act 5 of 1899, s.4, for the para, added by Act 3 of 1891, s.
3. 11. The words "a Part B State or "ins. by the A. O..
1950 omitted by Act 3 of 1951, s. 3 and Sch. 12. Ins. by the A. O.
1950.
13. Subs., ibid., for "clause (40)". 14. Subs. by Act 3
of 1951, s. 3, Sch., for "in and for that Part B State or
country". 39
88. Presumption as to telegraphic messages.-The Court may presume
that a message, forwarded from a telegraph office to the person to
whom such message purports to be addressed, corresponds with a
message delivered for transmission at the office from which the
message purports to be sent; but the Court shall not make any
presumption as to the person by whom such message was delivered for
transmission.
89. Presumption as to due execution, etc., of documents not
produced.-The Court shall presume that every document, called for and
not produced after notice to produce, was attested, stamped and
executed in the manner required by law.
90. Presumption as to documents thirty years old.-Where any
document, purporting or proved to be thirty years old, is produced
from any custody which the Court in the particular case considers
proper, the Court may presume that the signature and every other part
of such document, which purports to be in the handwriting of any
particular person, is in that person's handwriting, and, in the case
of a document executed or attested, that it was duly executed and
attested by the persons by whom it purports to be executed and
attested. Explanation.--Documents are said to be in proper custody if
they are in the place in which, and under the care of the person with
whom, they would naturally be; but no custody is improper if it is
proved to have had a legitimate origin, or if the circumstances of
the particular case are such as to render such an origin probable.
This explanation applies also to section 81. Illustrations. (a) A has
been in possession of landed property for a long time. He produces
from his custody deeds relating to the land showing his titles to it.
The custody is proper. (b) A produces deeds relating to landed
property of which he is the mortgagee. The mortgagor is in
possession. The custody is proper. (c) A, a connection of B, produces
deeds relating to lands in B's possession which were deposited with
him by B for safe custody. The custody is proper. CHAPTER VI OF THE
EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE CHAPTER VI OF THE EXCLUSION
OF ORAL BY DOCUMENTARY EVIDENCE
property reduced to form of document. 91. Evidence of terms of
contracts, grants and other dispositions of property reduced to form
of document.-When the terms of a contract, or of a grant, or of any
other disposition of property, have been reduced to the form of a
document, and in all cases in which any matter is required by law to
be 40 reduced to the form of a document, no evidence 1* shall be
given in proof of the terms of such contract, grant or other
disposition of property, or of such matter, except the document
itself, or secondary evidence of its contents in cases in which
secondary evidence is admissible under the provisions hereinbefore
contained. Exception 1.--When a public officer is required by law to
be appointed in writing, and when it is shown that any particular
person has acted as such officer, the writing by which he is
appointed need not be proved. Exception 2.--Wills 2*[admitted to
probate in 3*[India]] may be proved by the probate. Explanation
1.--This section applies equally to cases in which the contracts,
grants or dispositions of property referred to are contained in one
document and to cases in which they are contained in more documents
than one. Explanation 2.--Where there are more originals than one,
one original only need be proved. Explanation 3.--The statement, in
any document whatever, of a fact other than the facts referred to in
this section, shall not preclude the admission of oral evidence as to
the same fact. Illustrations (a) If a contract be contained in
several letters, all the letters in which it is contained must be
proved. (b) If a contract is contained in a bill of exchange, the
bill of exchange must be proved. (c) If a bill of exchange is drawn
in a set of three, one only need be proved. (d) A contracts, in
writing, with B, for the delivery of indigo upon certain terms. The
contract mentions the fact that B had paid A the price of other
indigo contracted for verbally on another occasion. Oral evidence is
offered that no payment was made for the other indigo. The evidence
is admissible. (e) A gives B a receipt for money paid by B. Oral
evidence is offered of the payment. The evidence is admissible.
----------------------------------------------------------------------
1. Where, however, a Criminal Court finds that a confession or other
statement an accused person has not been recorded in the manner
prescribed, evidence may be taken that the recorded statement was
duly made-see the Code of Criminal Procedure, 1898 (Act 5 of 1898),
s. 533. 2. Subs. by Act 18 of 1872, s. 7, for "under the Indian
Succession Act". 3. Subs. by Act 3 of 1951, s. 3 and Sch., for
"the States". 41
92. Exclusion of evidence of oral agreement.-When the terms of any
such contract, grant or other disposition of property, or any matter
required by law to be reduced to the form of a document, have been
proved according to the last section, no evidence of any oral
agreement or statement shall be admitted, as between the parties to
any such instrument or their representatives in interest, for the
purpose of contradicting, varying, adding to, or subtracting from,
its terms:
Proviso (1).--Any fact may be proved which would invalidate any
document, or which would entitle any person to any decree or order
relating thereto; such as fraud, intimidation, illegality, want of
due execution, want of capacity in any contracting party, 1*[want or
failure] of consideration, or mistake in fact or law.
Proviso (2).--The existence of any separate oral agreement as to
any matter on which a document is silent, and which is not
inconsistent with its terms, may be proved. In considering whether or
not this proviso applies, the Court shall have regard to the degree
of formality of the document.
Proviso (3).--The existence of any separate oral agreement,
constituting a condition precedent to the attaching of any obligation
under any such contract, grant or disposition of property, may be
proved.
Proviso (4).--The existence of any distinct subsequent oral
agreement to rescind or modify any such contract, grant or
disposition of property, may be proved, except in cases in which such
contract, grant or disposition of property is by law required to be
in writing, or has been registered according to the law in force for
the time being as to the registration of documents.
Proviso (5).--Any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to contracts of that
description, may be proved: Provided that the annexing of such
incident would not be repugnant to, or inconsistent with, the express
terms of the contract.
Proviso (6).--Any fact may be proved which shows in what manner
the language of a document is related to existing facts.
Illustrations (a) A policy of insurance is effected on goods "in
ships from Calcutta to London". The goods are shipped in a
particular ship which is lost. The fact that particular ship was
orally excepted from the policy cannot be proved.
----------------------------------------------------------------------
1. Subs. by Act 18 of 1872, s. 8, for "want of failure". 42
(b) A agrees absolutely in writing to pay B Rs. 1,000 on the first
March 1873. The fact that, at the same time an oral agreement was
made that the money should not be paid till the thirty-first March
cannot be proved. (c) An estate called "the Rampore tea estate"
is sold by a deed which contains a map of the property sold. The fact
that land not included in the map had always been regarded as part of
the estate and was meant to pass by the deed cannot be proved. (d) A
enters into a written contract with B to work certain mines, the
property of B, upon certain terms. A was induced to do so by a
misrepresentation of B's as to their value. This fact may be proved.
(e) A institutes a suit against B for the specific performance of a
contract, and also prays that the contract may be reformed as to one
of its provisions, as that provision was inserted in it by mistake. A
may prove that such a mistake was made as would by law entitle him to
have the contract reformed. (f) A orders goods of B by a letter in
which nothing is said as to the time of payment, and accepts the
goods on delivery. B sues A for the price. A may show that the goods
were supplied on credit for a term still unexpired. (g) A sells B a
horse and verbally warrants him sound. A gives B a paper in these
words: "Bought of A a horse of Rs. 500". B may prove the
verbal warranty. (h) A hires lodgings of B, and gives B a card on
which is written--"Rooms, Rs. 200 a month." A may prove a
verbal agreement that these terms were to include partial board. A
hires lodgings of B for a year, and a regularly stamped agreement,
drawn up by an attorney, is made between them. It is silent on the
subject of board. A may not prove that board was included in the term
verbally. (i) A applies to B for a debt due to A by sending a receipt
for the money. B keeps the receipt and does not send the money. In a
suit for the amount, A may prove this. (j) A and B make a contract in
writing to take effect upon the happening of a certain contingency.
The writing is left with B, who sues A upon it. A may show the
circumstances under which it was delivered.
93. Exclusion of evidence to explain or amend ambiguous document.-
When the language used in a document is, on its face, ambiguous or
defective, evidence may not be given of facts which would show its
meaning or supply its defects. Illustrations (a) A agrees, in
writing, to sell a horse to B for "Rs. 1,000 or Rs. 1,500".
Evidence cannot be given to show which price was to be given. (b) A
deed contains blanks. Evidence cannot be given of facts which would
show how they were meant to be filled.
facts. 94. Exclusion of evidence against application of document
to existing facts.-When language used in a document is plain in
itself, and when it applies accurately to existing facts, evidence
may not be given to show that it was not meant to apply to such
facts. 43 Illustration A sells to B, by deed, "my estate at
Rampur containing 100 bighas". A has an estate at Rampur
containing 100 bighas. Evidence may not be given of the fact that the
estate meant to be sold was one situated at a different place and of
a different size.
95. Evidence as to document unmeaning in reference to existing
facts.-When language used in a document is plain in itself, but is
unmeaning in reference to existing facts, evidence may be given to
show that it was used in a peculiar sense. Illustration A sells to B,
by deed, "my house in Calcutta". A had no house in
Calcutta, but it appears that he had a house at Howrah, of which B
had been in possession since the execution of the deed. These facts
may be proved to show that the deed related to the house at Howrah.
several persons. 96. Evidence as to application of language which
can apply to one only of several persons.-When the facts are such
that the language used might have been meant to apply to any one, and
could not have been meant to apply to more than one, of several
persons or things, evidence may be given of facts which show which of
those persons or things it was intended to apply to. Illustrations
(a) A agrees to sell to B, for Rs. 1,000, "my white horse".
A has two white horses. Evidence may be give of facts which show
which of them was meant. (b) A agrees to accompany B to Haidarabad.
Evidence may be given of facts showing whether Haidarabad in the
Dekkhan or Haiderabad in Sind was meant.
neither of which the whole correctly applies. 97. Evidence as to
application of language to one of two sets of facts, to neither of
which the whole correctly applies.-When the language used applies
partly to one set of existing facts, and partly to another set of
existing facts, but the whole of it does not apply correctly to
either, evidence may be given to show to which of the two it was
meant to apply. Illustration A agrees to sell to B "my land at X
in the occupation of Y". A has land at X, but not in the
occupation of Y, and he has land in the occupation of Y but it is not
at X. Evidence may be given of facts showing which he meant to sell.
98. Evidence as to meaning of illegible characters, etc.-Evidence
may be given to show the meaning of illegible or not commonly
intelligible characters, of foreign, obsolete, technical, 44 local
and provincial expressions, of abbreviations and of words used in a
peculiar sense. Illustration A, sculptor, agrees to sell to B, "all
my mods". A has both models and modelling tools. Evidence may be
given to show which he meant to sell.
99. Who may give evidence of agreement varying terms of document.-
Persons who are not parties to a document, or their representatives
in interest, may give evidence of any facts tending to show a
contemporaneous agreement varying the terms of the document.
Illustration A and B make a contract in writing that B shall sell A
certain cotton, to be paid for on delivery. At the same time they
make an oral agreement that three months credit shall be given to A.
This could not be shown as between A and B, but it might be shown by
C, if it affected his interests.
100. Saving of provisions of Indian Succession Act relating to
wills.-Nothing in this Chapter contained shall be taken to affect any
of the provisions of the Indian Succession Act, 1865 (10 of 1865)1*
as to the construction of wills. PART III PRODUCTION AND EFFECT OF
EVIDENCE PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII OF
THE BURDEN OF PROOF CHAPTER VII OF THE BURDEN OF PROOF
101. Burden of proof.-Whoever desires any Court to give judgment
as to any legal right or liability dependent on the existence of
facts which he asserts, must prove that those facts exist. When a
person is bound to prove the existence of any fact, it is said that
the burden of proof lies on that person. Illustrations (a) A desires
a Court to give judgment that B shall be punished for a crime which A
says B has committed. A must prove that B has committed the crime.
----------------------------------------------------------------------
1. See now the Indian Succession Act, 1925 (39 of 1925), Pt. VI, Ch.
VI. 45 (b) A desires a Court to give judgment that he is entitled to
certain land in the possession of B, by reason of facts which he
asserts, and which B denies, to be true. A must prove the existence
of those facts.
102. On whom burden of proof lies.-The burden of proof in a suit
or proceeding lies on that person who would fail if no evidence at
all were given on either side. Illustrations (a) A sues B for land of
which B is in possession, and which, as A asserts, was left to A by
the will of C, B's father. If no evidence were given on either side,
B would be entitled to retain his possession. Therefore the burden of
proof is on A. (b) A sues B for money due on a bond. The execution of
the bond is admitted, but B says that it was obtained by fraud, which
A denies. If no evidence were given on either side, A would succeed,
as the bond is not disputed and the fraud is not proved. Therefore
the burden of proof is on B.
103. Burden of proof as to particular fact.-The burden of proof as
to any particular fact lies on that person who wishes the Court to
believe in its existence, unless it is provided by any law that the
proof of that fact shall lie on any particular person. Illustration
1*[(a)] A prosecutes B for theft, and wishes the Court to believe
that B admitted the theft to C. A must prove the admission. B wishes
the Court to believe that, at the time in question, he was elsewhere.
He must prove it.
104. Burden of proving fact to be proved to make evidence
admissible.-The burden of proving any fact necessary to be proved in
order to enable any person to give evidence of any other fact is on
the person who wishes to give such evidence. Illustrations (a) A
wishes to prove a dying declaration by B. A must prove B's death. (b)
A wishes to prove, by secondary evidence, the contents of a lost
document. A must prove that the document has been lost.
----------------------------------------------------------------------
1. Sic. In the Act as published in Gazette of India, 1872, pt. IV, p.
1, there is no illustration (b). 46
105. Burden of proving that case of accused comes within
exceptions.-When a person is accused of any offence, the burden of
proving the existence of circumstances bringing the case within any
of the General Exceptions in the Indian Penal Code, (45 of 1860) or
within any special exception or proviso contained in any other part
of the same Code, or in any law defining the offence, is upon him,
and the Court shall presume the absence of such circumstances.
Illustrations (a) A, accused of murder, alleges that, by reason of
unsoundness of mind, he did not know the nature of the act. The
burden of proof is on A. (b) A, accused of murder, alleges that, by
grave and sudden provocation, he was deprived of the power of
self-control. The burden of proof is on A. (c) Section 325 of the
Indian Penal Code (45 of 1860) provides that whoever, except in the
case provided for by section 335, voluntarily causes grievous hurt,
shall be subject to certain punishments. A is charged with
voluntarily causing grievous hurt under section
section 335 lies on A.
106. Burden of proving fact especially within knowledge.-When any
fact is especially within the knowledge of any person, the burden of
proving that fact is upon him. Illustrations (a) When a person does
an act with some intention other than that which the character and
circumstances of the act suggest, the burden of proving that
intention is upon him. (b) A is charged with travelling on a railway
without a ticket. The burden of proving that he had a ticket is on
him.
thirty years. 107. Burden of proving death of person known to have
been alive within thirty years.-When the question is whether a man is
alive or dead, and it is shown that he was alive within thirty years,
the burden of proving that he is dead is on the person who affirms
it.
seven years. 108. Burden of proving that person is alive who has
not been heard of for seven years.-1*[Provided that when] the
question is whether a man is alive or dead, and it is proved that he
has not been heard of for seven years by those who would naturally
have heard of him if he had been alive, the burden of proving that he
is alive is 2*[shifted to] the person who affirms it.
----------------------------------------------------------------------
1. Subs. by Act 18 of 1872, s. 9, for "When". 2. Subs. by
s. 9, ibid., for "on". 47
and tenant, principal and agent. 109. Burden of proof as to
relationship in the cases of partners, landlord and tenant, principal
and agent.-When the question is whether persons are partners,
landlord and tenant, or principal and agent, and it has been shown
that they have been acting as such, the burden of proving that they
do not stand, or have ceased to stand, to each other in those
relationships respectively, is on the person who affirms it.
110. Burden of proof as to ownership.-When the question is whether
any person is owner of anything of which he is shown to be in
possession, the burden of proving that he is not the owner is on the
person who affirms that he is not the owner.
active confidence. 111. Proof of good faith in transactions where
one party is in relation of active confidence.-Where there is a
question as to the good faith of a transaction between parties, one
of whom stands to the other in a position of active confidence, the
burden of proving the good faith of the transaction is on the party
who is in a position of active confidence. Illustrations (a) The good
faith of a sale by a client to an attorney is in question in a suit
brought by the client. The burden of proving the good faith of the
transaction is on the attorney. (b) The good faith of a sale by a son
just come of age to a father is in question in a suit brought by the
son. The burden of proving the good faith of the transaction is on
the father. 111A. Presumption as to certain offences.
1*[111A. Presumption as to certain offences.-(1) Where a person is
accused of having committed any offence specified in sub-section
(2), in-- (a) any area declared to be a disturbed area under any
enactment, for the time being in force, making provision for the
suppression of disorder and restoration and maintenance of public
order; or (b) any area in which there has been, over a period of more
than one month, extensive disturbance of the public peace, and it is
shown that such person had been at a place in such area at a time
when firearms or explosives were used at or from that place to attack
or resist the members of any armed forces or the forces charged with
the maintenance of public order acting in the discharge of their
duties, it shall be presumed, unless the contrary is shown, that such
person had committed such offence.
(2) The offences referred to in sub-section (1) are the following,
namely:-- (a) an offence under section 121, section 121A, section 122
or section 123 of the Indian Penal Code (45 of 1860); (b) criminal
conspiracy or attempt to commit, or abetment of, an offence under
section 122 or section 123 of the Indian Penal Code (45 of 1860).
112. Birth during marriage, conclusive proof of legitimacy.-The
fact that any person was born during the continuance of a valid
marriage between his mother and any man, or within two hundred and
eighty days after its dissolution, the mother remaining unmarried,
shall be conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage had no access
to each other at any time when he could have been begotten.
113. Proof of cession of territory.-A notification in the Official
Gazette that any portion of British territory has 2*[before the
commencement of Part III of the Government of India Act, 1935 (26
Geo. 5, e. 2)] been ceded to any Native State, Prince or Ruler, shall
be conclusive proof that a valid cession of such territory took place
at the date mentioned in such notification. 113A. Presumption as to
abetment of suicide by a married woman. 3*[113A. Presumption as to
abetment of suicide by a married woman.-When the question is whether
the commission of suicide by a woman had been abetted by her husband
or any relative of her husband and it is shown that she had committed
suicide within a period of seven years from the date of her marriage
and that her husband or such relative of her husband had subjected
her to cruelty, the court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by her
husband or by such relative of her husband. Explanation.--For the
purposes of this section, "cruelty" shall have the same
meaning as in section 498A of the Indian Penal Code (45 of 1860).]
113B. Presumption as to dowry death. 4*[113B. Presumption as to dowry
death.-When the question is whether a person has committed the dowry
death of a woman and it is shown that soon before her death such
woman had been subjected by such person to cruelty or harassment for,
or in connection with, any demand for dowry, the court shall presume
that such person had caused the dowry death. Explanation.--For the
purposes of this section, "dowry death" shall have the same
meaning as in section 304B of the Indian Penal Code.]
114. Court may presume existence of certain facts. The Court may
presume the existence of any fact which it thinks likely to have
happened, regard being had to the common
---------------------------------------------------------------------
1. Ins. by Act 61 of 1984, s. 20 (w.e.f. 14.7.1984). 2. Ins. by the
A. O. 1937, Part III of the Govt. of India Act, 1935, came into force
on the 1st April, 1937. 3. Ins. by Act 46 of 1983, s. 7 4. Ins. by
Act 43 of 1986, s. 12 (w.e.f. 19.11.1986). 48 course of natural
events, human conduct and public and private business, in their
relation to the facts of the particular case. Illustrations The Court
may presume-- (a) that a man who is in possession of stolen goods
soon after the theft is either the thief or has received the goods
knowing them to be stolen, unless he can account for his possession;
(b) that an accomplice is unworthy of credit, unless he is
corroborated in material particulars; (c) that a bill of exchange,
accepted or endorsed, was accepted or endorsed for good
consideration; (d) that a thing or state of things which has been
shown to be in existence within a period shorter than that within
which such things or states of things usually cease to exist, is
still in existence; (e) that judicial and official acts have been
regularly performed; (f) that the common course of business has been
followed in particular cases; (g) that evidence which could be and is
not produced would, if produced, be unfavourable to the person who
withholds it; (h) that if a man refuses to answer a question which he
is not compelled to answer by law, the answer, if given, would be
unfavourable to him; (i) that when a document creating an obligation
is in the hands of the obligor, the obligation has been discharged.
But the Court shall also have regard to such facts as the following,
in considering whether such maxims do or do not apply to the
particular case before it:-- as to illustration (a)--a shop-keeper
has in his till a marked rupee soon after it was stolen, and cannot
account for its possession specifically, but is continually receiving
rupees in the course of his business: as to illustration (b)--A, a
person of the highest character is tried for causing a man's death by
an act of negligence in arranging certain machinery. B, a person of
equally good character, who also took part in the arrangement,
describes precisely what was done, and admits and explains the common
carelessness of A and himself: as to illustration (b)--a crime is
committed by several persons. A, B and C, three of the criminals, are
captured on the spot and kept apart from each other. Each gives an
account of the crime implicating D, and the accounts corroborate each
other in such a manner as to render previous concert highly
improbable: as to illustration (c)--A, the drawer of a bill of
exchange, was a man of business. B, the acceptor, was a young and
ignorant person, completely under A's influence: as to illustration
(d)--it is proved that a river ran in a certain course five years
ago, but it is known that there have been floods since that time
which might change its course: 49 as to illustration (e)--a judicial
act, the regularity of which is in question, was performed under
exceptional circumstances: as to illustration (f)--the question is,
whether a letter was received. It is shown to have been posted, but
the usual course of the post was interrupted by disturbances: as to
illustration (g)--a man refuses to produce a document which would
bear on a contract of small importance on which he is sued, but which
might also injure the feelings and reputation of his family: as to
illustration (h)--a man refuses to answer a question which he is not
compelled by law to answer, but the answer to it might cause loss to
him in matters unconnected with the matter in relation to which it is
asked: as to illustration (i)--a bond is in possession of the
obligor, but the circumstances of the case are such that he may have
stolen it. 114A. Presumption as to absence of consent in certain
prosecutions for rape. 1*[114A. Presumption as to absence of consent
in certain prosecutions for rape.-In a prosecution for rape under
clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or
clause (g) of
sub-section (2) of section 376 of the Indian Penal Code, where
sexual intercourse by the accused is proved and the question is
whether it was without the consent of the woman alleged to have been
raped and she states in her evidence before the Court that she did
not consent, the Court shall presume that she did not consent.]
CHAPTER VIII ESTOPPEL CHAPTER VIII. ESTOPPEL
115. Estoppel.-When one person has, by his declaration, act or
omission, intentionally caused or permitted another person to believe
a thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the truth of
that thing. Illustration A intentionally and falsely leads B to
believe that certain land belongs to A, and thereby induces B to buy
and pay for it. The land afterwards becomes the property of A, and A
seeks to set aside the sale on the ground that, at the time of the
sale, he had no title. He must not be allowed to prove his want of
title.
116. Estoppel of tenant; and of licensee of person in possession.-
No tenant of immovable property, or person claiming through such
tenant, shall, during the continuance of the tenancy, be permitted to
deny that the landlord of such tenant had, at the beginning of the
tenancy, a title to such immovable property; and no person who came
upon any immovable property by the licence of the person in
possession thereof shall be permitted to deny that such person had a
title to such possession at the time when such licence was given.
117. Estoppel of acceptor of bill of exchange, bailee or
licensee.-No acceptor of a bill of exchange shall be permitted to
deny that the drawer had authority to draw such bill or to endorse
it; nor shall any bailee or licensee be permitted to deny that his
bailor or licensor had, at the time when the bailment or licence
commenced, authority to make such bailment or grant such licence.
---------------------------------------------------------------------
1. Ins. by Act 43 of 1983, s. 6. 50
Explanation (1).--The acceptor of a bill of exchange may deny that
the bill was really drawn by the person by whom it purports to have
been drawn.
Explanation (2).--If a bailee delivers the goods bailed to a
person other than the bailor, he may prove that such person had a
right to them as against the bailor. CHAPTER IX OF WITNESSES CHAPTER
IX OF WITNESSES
118. Who may testify.-All persons shall be competent to testify
unless the Court considers that they are prevented from understanding
the questions put to them, or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body
or mind, or any other cause of the same kind. Explanation.--A lunatic
is not incompetent to testify, unless he is prevented by his lunacy
from understanding the questions put to him and giving rational
answers to them.
119. Dumb witnesses.-A witness who is unable to speak may give his
evidence in any other manner in which he can make it intelligible, as
by writing or by signs; but such writing must be written and the
signs made in open Court. Evidence so given shall be deemed to be
oral evidence.
person under criminal trial. 120. Parties to civil suit, and their
wives or husbands. Husband or wife of person under criminal trial.-In
all civil proceedings the parties to the suit, and the husband or
wife of any party to the suit, shall be competent witnesses. In
criminal proceedings against any person, the husband or wife of such
person, respectively, shall be a competent witness.
121. Judges and Magistrates.-No Judge or Magistrate shall, except
upon the special order of some Court to which he is subordinate, be
compelled to answer any questions as to his own conduct in Court as
such Judge or Magistrate, or as to anything which came to his
knowledge in Court as such Judge or Magistrate; but he may be
examined as to other matters which occurred in his presence whilst he
was so acting. Illustrations (a) A, on his trial before the Court of
Session, says that a deposition was improperly taken by B, the
Magistrate. B cannot be compelled to answer questions as to this,
except upon the special order of a superior Court. 51 (b) A is
accused before the Court of Session of having given false evidence
before B, a Magistrate. B cannot be asked what A said, except upon
the special order of the superior Court. (c) A is accused before the
Court of Session of attempting to murder a police-officer whilst on
his trial before B, a Sessions Judge. B may be examined as to what
occurred.
122. Communications during marriage.-No person who is or has been
married shall be compelled to disclose any communication made to him
during marriage by any person to whom he is or has been married; nor
shall he be permitted to disclose any such communication, unless the
person who made it, or his representative in interest, consents,
except in suits between married persons, or proceedings in which one
married person is prosecuted for any crime committed against the
other.
123. Evidence as to affairs of State.-No one shall be permitted to
give any evidence derived from unpublished official records relating
to any affairs of State, except with the permission of the officer at
the head of the department concerned, who shall give or withhold such
permission as he thinks fit.
124. Official communications.-No public officer shall be compelled
to disclose communications made to him in official confidence, when
he considers that the public interests would suffer by the
disclosure.
1*[125. Information as to commission of offences.-No Magistrate or
police-officer shall be compelled to say whence he got any
information as to the commission of any offence, and no revenue-
officer shall be compelled to say whence he got any information as to
the commission of any offence against the public revenue.
Explanation.--"Revenue-officer" in this section means any
officer employed in or about the business of any branch of the public
revenue.]
126. Professional communications.-No barrister, attorney, pleader
or vakil shall at any time be permitted, unless with his client's
express consent, to disclose any communication made to him in the
course and for the purpose of his employment as such barrister,
pleader, attorney or vakil, by or on behalf of his client, or to
state the contents or condition of any document with which he has
become acquainted in the course and for the purpose of his
professional employment, or to disclose any advice
---------------------------------------------------------------------
1. Subs. by Act 3 of 1887, s. 1, for the original s. 125. 52 given by
him to his client in the course and for the purpose of such
employment: Provided that nothing in this section shall protect from
disclosure--
(1) any such communication made in furtherance of any 1*[illegal]
purpose:
(2) any fact observed by any barrister, pleader, attorney or
vakil, in the course of his employment as such, showing that any
crime or fraud has been committed since the commencement of his
employment. It is immaterial whether the attention of such barrister,
2*[pleader], attorney or vakil was or was not directed to such fact
by or on behalf of his client. Explanation.--The obligation stated in
this section continues after the employment has ceased. Illustrations
(a) A, a client, says to B, an attorney--"I have committed
forgery and I wish you to defend me." As the defence of a man
known to be guilty is not a criminal purpose, this communication is
protected from disclosure. (b) A, a client, says to B, an
attorney--"I wish to obtain possession of property by the use of
a forged deed on which I request you to sue." This
communication, being made in furtherance of a criminal purpose, is
not protected from disclosure. (c) A, being charged with
embezzlement, retains B, an attorney, to defend him. In the course of
the proceedings, B observes that an entry has been made in A's
account book, charging A with the sum said to have been embezzled,
which entry was not in the book at the commencement of his
employment. This being a fact observed by B in the course of his
employment, showing that a fraud has been committed since the
commencement of the proceedings, it is not protected from disclosure.
127. Section 126 to apply to interpreters, etc.-The provisions of
section 126 shall apply to interpreters, and the clerks or servants
of barristers, pleaders, attorneys and vakils.
128. Privilege not waived by volunteering evidence.-If any party
to a suit gives evidence therein at his own instance or otherwise, he
shall not be deemed to have consented thereby to such disclosure as
is mentioned in section 126; and if any
---------------------------------------------------------------------
1. Subs. by Act 18 of 1872, s. 10, for "criminal". 2. Ins.
by s. 10, ibid. 53 party to a suit or proceeding calls any such
barrister, 1*[pleader], attorney or vakil as a witness, he shall be
deemed to have consented to such disclosure only if he questions such
barrister, attorney or vakil on matters which, but for such question,
he would not be at liberty to disclose.
129. Confidential communications with legal advisers.-No one shall
be compelled to disclose to the Court any confidential communication
which has taken place between him and his legal professional adviser,
unless he offers himself as a witness, in which case he may be
compelled to disclose any such communications as may appear to the
Court necessary to be known in order to explain any evidence which he
has given, but no others.
130. Production of title-deeds of witness not a party.-No witness
who is not a party to a suit shall be compelled to produce his title-
deeds to any property, or any document in virtue of which he holds
any property as pledgee or mortgagee or any document the production
of which might tend to criminate him, unless he has agreed in writing
to produce them with the person seeking the production of such deeds
or some person through whom he claims.
refuse to produce. 131. Production of documents which another
person, having possession, could refuse to produce.-No one shall be
compelled to produce documents in his possession, which any other
person would be entitled to refuse to produce if they were in his
possession, unless such last-mentioned person consents to their
production.
criminate. 132. Witness not excused from answering on ground that
answer will criminate.-A witness shall not be excused from answering
any question as to any matter relevant to the matter in issue in any
suit or in any civil or criminal proceeding, upon the ground that the
answer to such question will criminate, or may tend directly or
indirectly to criminate, such witness, or that it will expose, or
tend directly or indirectly to expose, such witness to a penalty or
forfeiture of any kind: Proviso. Provided that no such answer, which
a witness shall be compelled to give, shall subject him to any arrest
or prosecution, or be proved against him in any criminal proceeding,
except a prosecution for giving false evidence by such answer.
---------------------------------------------------------------------
1. Ins. by Act 18 of 1872, s. 10. 54
133. Accomplice.-An accomplice shall be a competent witness
against an accused person; and a conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of an
accomplice.
134. Number of witnesses.-No particular number of witnesses shall
in any case be required for the proof of any fact. CHAPTER X OF THE
EXAMINATION OF WITNESSES CHAPTER X OF THE EXAMINATION OF WITNESSES
135. Order of production and examination of witnesses.-The order
in which witnesses are produced and examined shall be regulated by
the law and practice for the time being relating to civil and
criminal procedure respectively, and, in the absence of any such law,
by the discretion of the Court.
136. Judge to decide as to admissibility of evidence.-When either
party proposes to give evidence of any fact, the Judge may ask the
party proposing to give the evidence in what manner the alleged fact,
if proved, would be relevant; and the Judge shall admit the evidence
if he thinks that the fact, if proved, would be relevant, and not
otherwise. If the fact proposed to be proved is one of which evidence
is admissible only upon proof of some other fact, such last-mentioned
fact must be proved before evidence is given of the fact first-
mentioned, unless the party undertakes to give proof of such fact,
and the Court is satisfied with such undertaking. If the relevancy of
one alleged fact depends upon another alleged fact being first
proved, the Judge may, in his discretion, either permit evidence of
the first fact to be given before the second fact is proved, or
require evidence to be given of the second fact before evidence is
given of the first fact. Illustrations (a) It is proposed to prove a
statement about a relevant fact by a person alleged to be dead, which
statement is relevant under section
proposing to prove the statement, before evidence is given of the
statement. (b) It is proposed to prove, by a copy, the contents of a
document said to be lost. The fact that the original is lost must be
proved by the person proposing to produce the copy, before the copy
is produced. (c) A is accused of receiving stolen property knowing it
to have been stolen. 55 It is proposed to prove that he denied the
possession of the property. The relevancy of the denial depends on
the identity of the property. The Court may, in its discretion,
either require the property to be identified before the denial of the
possession is proved, or permit the denial of the possession to be
proved before the property is identified. (d) It is proposed to prove
a fact (A) which is said to have been the cause or effect of fact in
issue. There are several intermediate facts (B, C and D) which must
be shown to exist before the fact (a) can be regarded as the cause or
effect of the fact in issue. The Court may either permit A to be
proved before B, C or D is proved, or may require proof of B, C and D
before permitting proof of A.
Cross-examination. Re-examination. 137. Examination-in-chief.-The
examination of witness by the party who calls him shall be called his
examination-in-chief. Cross-examination.-The examination of a witness
by the adverse party shall be called his cross-examination.
Re-examination.-The examination of a witness, subsequent to the
cross-examination by the party who called him, shall be called his
re-examination.
138. Order of examinations.-Witnesses shall be first examined-in-
chief, then (if the adverse party so desires) cross-examined, then (
if the party calling him so desires) re-examined. The examination and
cross-examination must relate to relevant facts but the
cross-examination need not be confined to the facts to which the
witness testified on his examination-in-chief. Direction of
re-examination. The re-examination shall be directed to the
explanation of matters referred to in cross-examination; and, if new
matter is, by permission of the Court, introduced in re-examination,
the adverse party may further cross-examine upon that matter.
139. Cross-examination of person called to produce a document.-A
person summoned to produce a document does not become a witness by
the mere fact that he produces it and cannot be cross-examined unless
and until he is called as a witness.
140. Witnesses to character.-Witnesses to character may be cross-
examined and re-examined.
141. Leading questions.-Any question suggesting the answer which
the person putting it wishes or expects to receive is called a
leading question.
142. When they must not be asked.-Leading questions must not, if
objected to by the adverse party be asked in an examination-in-chief,
or in a re-examination, except with the permission of the Court. 56
The Court shall permit leading questions as to matters which are
introductory or undisputed, or which have, in its opinion, been
already sufficiently proved.
143. When they may be asked.-Leading questions may be asked in
cross-examination.
144. Evidence as to matters in writing.-Any witness may be asked,
whilst under examination whether any contract, grant or other
disposition of property, as to which he is giving evidence, was not
contained in a document, and if he says that it was, or if he is
about to make any statement as to the contents of any document,
which, in the opinion of the Court, ought to be produced, the adverse
party may object to such evidence being given until such document is
produced, or until facts have been proved which entitle the party who
called the witness to give secondary evidence of it. Explanation.--A
witness may give oral evidence of statements made by other persons
about the contents of documents if such statements are in themselves
relevant facts. Illustration The question is, whether A assaulted B.
C deposes that he heard A say to D--"B wrote a letter accusing
me of theft, and I will be revenged on him." This statement is
relevant, as showing A's motive for the assault, and evidence may be
given of it, though no other evidence is given about the letter.
1*145. Cross-examination as to previous statements in writing.-A
witness may be cross-examined as to previous statements made by him
in writing or reduced into writing, and relevant to matters in
question, without such writing being shown to him, or being proved;
but, if it is intended to contradict him by the writing, his
attention must, before the writing can be proved, be called to those
parts of it which are to be used for the purpose of contradicting
him.
146. Questions lawful in cross-examination.-When a witness is
cross-examined, he may, in addition to the questions hereinbefore
referred to, be asked any questions which tend-
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or
---------------------------------------------------------------------
1. As to the application of s. 145 to police-diaries, see the Code of
Criminal Procedure, 1898 (Act 5 of 1998), s. 172. 57
(3) to shake his credit, by injuring his character, although the
answer to such questions might tend directly or indirectly to
criminate him or might expose or tend directly or indirectly to
expose him to a penalty or forfeiture.
147. When witness to be compelled to answer.-If any such question
relates to a matter relevant to the suit or proceeding, the
provisions of section 132 shall apply thereto.
compelled to answer. 148. Court to decide when question shall be
asked and when witness compelled to answer.-If any such question
relates to a matter not relevant to the suit or proceeding, except in
so far as it affects the credit of the witness by injuring his
character, the Court shall decide whether or not the witness shall be
compelled to answer it, and may, if it thinks fit, warn the witness
that he is not obliged to answer it. In exercising its discretion,
the Court shall have regard to the following considerations:--
(1) such questions are proper if they are of such a nature that
the truth of the imputation conveyed by them would seriously affect
the opinion of the Court as to the credibility of the witness on the
matter to which he testifies:
(2) such questions are improper if the imputation which they
convey relates to matters so remote in time, or of such a character,
that the truth of the imputation would not affect, or would affect in
a slight degree, the opinion of the Court as to the credibility of
the witness on the matter to which he testifies:
(3) such questions are improper if there is a great disproportion
between the importance of the imputation made against the witness's
character and the importance of his evidence:
(4) the Court may, if it sees fit, draw, from the witness's
refusal to answer, the inference that the answer if given would be
unfavourable.
149. Question not to be asked without reasonable grounds.-No such
question as is referred to in section 148 ought to be asked, unless
the person asking it has reasonable grounds for thinking that the
imputation which it conveys is well-founded. Illustrations (a) A
barrister is instructed by an attorney or vakil that an important
witness is a dakait. This is a reasonable ground for asking the
witness whether he is a dakait. 58 (b) A pleader is informed by a
person in Court that an important witness is a dakait. The informant,
on being questioned by the pleader, gives satisfactory reasons for
his statement. This is a reasonable ground for asking the witness
whether he is a dakait. (c) A witness, of whom nothing whatever is
known is asked at random whether he is a dakait. There are here no
reasonable ground for the question. (d) A witness, of whom nothing
whatever is known, being questioned as to his mode of life and means
of living, gives unsatisfactory answers. This may be a reasonable
ground for asking him if he is a dakait.
grounds. 150. Procedure of Court in case of question being asked
without reasonable grounds.-If the Court is of opinion that any such
question was asked without reasonable grounds, it may, if it was
asked by any barrister, pleader, vakil or attorney, report the
circumstances of the case to the High Court or other authority to
which such barrister, pleader, vakil or attorney is subject in the
exercise of his profession.
151. Indecent and scandalous questions.-The Court may forbid any
questions or inquiries which it regards as indecent or scandalous,
although such questions or inquiries may have some bearing on the
questions before the Court unless they relate to facts in issue, or
to matters necessary to be known in order to determine whether or not
the facts in issue existed.
152. Questions intended to insult or annoy.-The Court shall forbid
any question which appears to it to be intended to insult or annoy,
or which, though proper in itself, appears to the Court needlessly
offensive in form.
veracity. 153. Exclusion of evidence to contradict answers to
questions testing veracity.-When a witness has been asked and has
answered any question which is relevant to the inquiry only in so far
as it tends to shake his credit by injuring his character, no
evidence shall be given to contradict him; but, if he answers
falsely, he may afterwards be charged with giving false evidence.
Exception 1.--If a witness is asked whether he has been previously
convicted of any crime and denies it, evidence may be given of his
previous conviction. Exception 2.--If a witness is asked any question
tending to impeach his impartiality- and answers it by denying the
facts suggested, he may be contradicted. Illustrations (a) A claim
against an underwriter is resisted on the ground of fraud. The
claimant is asked whether, in a former transaction, he had not made a
fraudulent claim. He denies it. Evidence is offered to show that he
did make such a claim. The evidence is inadmissible 59 (b) A witness
is asked whether he was not dismissed from a situation for
dishonesty. He denies it. Evidence is offered to show that he was
dismissed for dishonesty. The evidence is not admissible. (c) A
affirms that on a certain day he saw B at Lahore. A is asked whether
he himself was not on that day at Calcutta. He denies it. Evidence is
offered to show that A was on that day at Calcutta. The evidence is
admissible, not as contradicting A on a fact which affects his
credit, but as contradicting the alleged fact that B was seen on the
day in question in Lahore. In each of these cases the witness might,
if his denial was false, be charged with giving false evidence. (d) A
is asked whether his family has not had a bloodfeud with the family
of B against whom he gives evidence. He denies it. He may be
contradicted on the ground that the question tends to impeach his
impartiality.
154. Question by party to his own witness.-The Court may, in its
discretion, permit the person who calls a witness to put any
questions to him which might be put in cross-examination by the
adverse party.
155. Impeaching credit of witness.-The credit of a witness may be
impeached in the following ways by the adverse party, or, with the
consent of the Court, by the party who calls him:-
(1) by the evidence of persons who testify that they, from their
knowledge of the witness, believe him to be unworthy of credit;
(2) by proof that the witness has been bribed, or has 1*[accepted]
the offer of bride, or has received any other corrupt inducement to
give his evidence;
(3) by proof of former statements inconsistent with any part of
his evidence which is liable to be contradicted;
(4) when a man is prosecuted for rape or an attempt to ravish, it
may be shown that the prosecutrix was of generally immoral character.
Explanation.--A witness declaring another witness to be unworthy of
credit may not, upon his examination-in-chief, give reasons for his
belief, but he may be asked his reasons in cross-examination, and the
answers which he gives cannot be contradicted, though, if they are
false, he may afterwards be charged with giving false evidence.
---------------------------------------------------------------------
1. Subs. by Act 18 of 1872, s. 11, for "had".
---------------------------------------------------------------------
60 Illustrations (a) A sues B for the price of goods sold and
delivered to B. C says that he delivered the goods to B. Evidence is
offered to show that, on a previous occasion, he said that he had not
delivered goods to B. The evidence is admissible. (b) A is indicted
for the murder of B. C says that B, when dying, declared that A had
given B the wound of which he died. Evidence is offered to show that,
on a previous occasion, C said that the wound was not given by A or
in his presence. The evidence is admissible.
admissible. 156. Questions tending to corroborate evidence of
relevant fact, admissible.-When a witness whom it is intended to
corroborate gives evidence of any relevant fact, he may be questioned
as to any other circumstances which he observed at or near to the
time or place at which such relevant fact occurred, if the Court is
of opinion that such circumstances, if proved, would corroborate the
testimony of the witness as to the relevant fact which he testifies.
Illustration A, an accomplice, gives an account of a robbery in which
he took part. He describes various incidents unconnected with the
robbery which occurred on his way to and from the place where it was
committed. Independent evidence of these facts may be given in order
to corroborate his evidence as to the robbery itself.
testimony as to same fact. 157. Former statements of witness may
be proved to corroborate later testimony as to same fact.-In order to
corroborate the testimony of a witness, any former statement made by
such witness relating to the same fact at or about the time when the
fact took place, or before any authority legally competent to
investigate the fact, may be proved.
relevant under section 32 or 33. 158. What matters may be proved
in connection with proved statement relevant under section 32 or
33.-Whenever any statement, relevant under section 32 or 33, is
proved, all matters may be proved either in order to contradict or to
corroborate it, or in order to impeach or confirm the credit of the
person by whom it was made, which might have been proved if that
person had been called as a witness and had denied upon
cross-examination the truth of the matter suggested.
When witness may use copy of document to refresh memory. 159.
Refreshing memory. A witness may, while under examination, refresh
his memory by referring to any writing made by himself at the time of
the transaction concerning which he is questioned, or so soon
afterwards that 61 the Court considers it likely that the transaction
was at that time fresh in his memory. The witness may also refer to
any such writing made by any other person, and read by the witness
within the time aforesaid, if when he read it he knew it to be
correct. When witness may use copy of document to refresh memory.
Whenever a witness may refresh his memory by reference to any
document, he may, with the permission of the Court, refer to a copy
of such document: Provided the Court be satisfied that there is
sufficient reason for the non-production of the original. An expert
may refresh his memory by reference to professional treatises.
160. Testimony to facts stated in document mentioned in section
159.-A witness may also testify to facts mentioned in any such
document as is mentioned in section 159, although he has no specific
recollection of the facts themselves, if he is sure that the facts
were correctly recorded in the document. Illustration A book-keeper
may testify to facts recorded by him in books regularly kept in the
course of business, if he knows that the books were correctly kept,
although he has forgotten the particular transactions entered.
1*161. Right of adverse party as to writing used to refresh
memory.-Any writing referred to under the provisions of the two last
preceding sections must be produced and shown to the adverse party if
he requires it; such party may, if he pleases, cross-examine the
witness thereupon.
Translation of documents. 162. Production of documents.-A witness
summoned to produce a document shall, if it is in his possession or
power, bring it to Court, notwithstanding any objection which there
may be to its production or to its admissibility. The validity of any
such objection shall be decided on by the Court. The Court, if it
sees fit, may inspect the document, unless it refers to matters of
State, or take other evidence to enable it to determine on its
admissibility. Translation of documents.-If for such a purpose it is
necessary to cause any document to be translated, the Court may, if
it thinks fit, direct the translator to keep the contents secret,
unless the document is to be given in
---------------------------------------------------------------------
1. As to the application of s. 161 to police-diaries, see the Code of
Criminal Procedure, 1898 (Act 5 of 1898), s. 172.
---------------------------------------------------------------------
62 evidence: and, if the interpreter disobeys such direction, he
shall be held to have committed an offence under section 166 of the
Indian Penal Code (45 of 1860).
163. Giving, as evidence, of document called for and produced on
notice.-When a party calls for a document which he has given the
other party notice to produce, and such document is produced and
inspected by the party calling for its production, he is bound to
give it as evidence if the party producing it requires him to do so.
notice. 164. Using, as evidence, of document production of which
was refused on notice.-When a party refuses to produce a document
which he has had notice to produce, he cannot afterwards use the
document as evidence without the consent of the other party or the
order of the Court. Illustration A sues B on an agreement and gives B
notice to produce it. At the trial A calls for the document and B
refuses to produce it. A gives secondary evidence of its contents. B
seeks to produce the document itself to contradict the secondary
evidence given by A, or in order to show that the agreement is not
stamped. He cannot do so.
165. Judge's power to put questions or order production.-The Judge
may, in order to discover or to obtain proper proof of relevant
facts, ask any question he pleases, in any form, at any time, of any
witness, or of the parties about any fact relevant or irrelevant; and
may order the production of any document or thing: and neither the
parties nor their agents shall be entitled to make any objection to
any such question or order, nor, without the leave of the Court, to
cross-examine any witness upon any answer given in reply to any such
question: Provided that the judgment must be based upon facts
declared by this Act to be relevant, and duly proved: Provided also
that this section shall not authorize any Judge to compel any witness
to answer any question or to produce any document which such witness
would be entitled to refuse to answer or produce under sections 121
to 131, both inclusive, if the question were asked or the document
were called for by the adverse party; nor shall the Judge ask any
question which it would be improper for any other person to ask under
section 148 or 149; nor shall he dispense with primary evidence of
any document, except in the cases hereinbefore excepted.
166. Power of jury or assessors to put questions.-In cases tried
by jury or with assessors, the jury or assessors may put any
questions to the witnesses, through or leave of the 63 Judge, which
the Judge himself might put and which he considers proper. CHAPTER XI
OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE CHAPTER XI OF
IMPROPER ADMISSION AND REJECTION OF EVIDENCE
167. No new trial for improper admission or rejection of
evidence.-The improper admission or rejection of evidence shall not
be ground of itself for a new trial or reversal of any decision in
any case, if it shall appear to the Court before which such objection
is raised that, independently of the evidence objected to and
admitted, there was sufficient evidence to justify the decision, or
that, if the rejected evidence had been received, it ought not to
have varied the decision. SCHEDULE I Enactments repealed. THE
SCHEDULE.--[Enactments repealed.] Rep. by the Repealing Act, 1938 (1
of 1938), s. 2 and Sch.