Law of Evidence


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Q. What do you understand by Admission?     

General Concept of Admission -
In general, Admission is a voluntary acknowledgment of a fact. Importance is given to those admissions that goes against the interests of the person making the admission. For example, when A says to B that he stole money from C, A makes an admission of the fact that A stole money from C.This fact is detrimental to the interests of A. The concept behind this is that nobody would accept or acknowledge a fact that goes against their interest unless it is indeed true. Unless A indeed stole money from C, it is not normal for A to say that he stole money from C. Therefore, an admission becomes an important piece of evidence against a person. On the other hand, anybody can make assertions in favor of themselves. They can be true or false. For example, A can keep on saying that a certain house belongs to himself, but that does not mean it is necessarily true. Therefore, such assertions do not have much evidentiary value.

Admission as per Indian Evidence Act -
Section 17 of Indian Evidence Act defines Admission as thus -  An admission is a statement, oral or documentary, or contained in electronic form, 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.

As per this definition, any statement, which suggests any inference about any fact in issue or relevant fact, and which is made by persons under certain circumstances, is an admission. These circumstances are mentioned in Section 18 to 20 as follows -

Section 18 - Admission by party to proceeding or his agent; by suitor in representative character; by party interested in subject-matter; by person from whom interest derived - 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 made 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.

Statements made by -
(1) by party interested in subject matter; 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
(2) by person from whom interest derived; 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.

According to this section, statements made a persons who are directly or indirectly a party to a suit are admissions. Thus, statements of an agent of a party to the suits are also admissions. Statements made by persons who are suing or being sued in a representative character are admissions, only if those statements were made by the party while being in that representative character. Similarly, statements made by persons who have a pecuniary interest in the subject matter of the proceeding and statements made by persons from whom such interest is derived by the parties in suit, are also admissions if they are made while the maker had such an interest. For example, A bought a piece of land from B. Statements made by B at the time when B was the owner of the land are admissions against A.

Section 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 the made if they are made whilst the person making them occupies such position or is subject of such liability.

Illustration -
A undertakes to collect rent 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 owned B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.

Section 20 - Admission by persons expressly referred to by party to suit - Statements made by persons 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.

To be considered an admission, it is not necessary for a statement to give a direct acknowledgment of liability. It is sufficient even if the statement suggests an inference about the liability. For example, A is charged with murder of B by giving poison. The statement by A that he purchased a bottle of poison is admission because it suggests the inference that he might have murdered B using that poison, even though it does not clearly acknowledge the fact that A murdered B. In the case of Chekham Koteshwara Rao vs C Subbarao, AIR 1981, SC held that before the right of a party can be taken to be defeated on the basis of an alleged admission by him, the implication of the statement must be clear and conclusive. There should not be any doubt or ambiguity.Further, it held that it is necessary to read all of his statements together. Thus, stray elements elicited in cross examination cannot be taken as admission.

Q. Discuss the law regarding proof of admissions against persons making them and by or on behalf of them. "Admission cannot be proved by or on behalf of any person who makes it". Are there any exceptions? Discuss.

It is important to note that Indian Evidence Act does not require that an admission be of statements that are against the interests of the maker. All that is necessary is that the statement should suggest some inference as to a fact in issue or relevant to the issue, even if the inference is in the interest of the maker of the statement. Self serving prior statements are also admissions. For example, A person can say to B that he did not steal money from C. This is a self serving statement and is a valid admission. Does this mean that a person can make self serving statements and escape from his liability? The answer is no because such self serving admissions are governed by the provisions of Section 21, which says the following -

Section 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 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 skillful 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.

From the above illustrations it is clear that the general rule is that a person is not allowed to prove his own admissions. Otherwise, as observed in R vs Hardy, 1794, every man, if he were in difficulty, or in view of one, might make declarations to suit his own case and then lodge them in proof of his case.  This principle, however, is subject to some important exceptions, which allow a person to prove his own statements. These are as follows -

Exception 1 - When the statement should have been relevant as dying declaration or as that of a deceased person under Section 32. Section 32 deals with the statement of persons who have died or who otherwise cannot come before the court. The statement of any such person can be proved in any case or proceeding to which it is relevant whether it operates in favor of or against the person making the statement. In circumstances stated in Section 32 such a statement can be proved by the maker himself if he is still alive. In the situation described in Illustration (b), in a case between the shipowner and the insurance company, the contents of the log book maintained by the captain would have been relevant evidence if the captain were dead under Section 32. Therefore, the captain is allowed to prove the contents of the log book even in the case involving him and the shipowners.

Exception 2 -  Statements as to bodily feeling or mind - It enables a person to prove his statements about his state of mind or body if such state of mind or body is a fact in issue or is relevant fact and if the statement was made at the time when such state of mind or body existed and further if the statement is accompanied with his conduct that makes the falsehood of the statements improbable. In Illustration (d), the statements of A that show that he refused to sell them below their value, are self serving admissions. However, it is acceptable because they reflect A's state of mind and were associated with a conduct of refusing to sell that makes their falsehood improbably.

Exception 3 - The last exception allows a person to prove his own statement when it is otherwise relevant under any of the provisions relating to relevancy. There are many cases in which a statement is relevant not because it is an admission but because it establishes the existence or non-existence of a relevant fact or a fact in issue. In all such cases a party can prove his own statements. These cases are covered by the following sections -

Section 6 -  When a statement is made relevant by the doctrine of res gestae i.e. due to part of the same transaction. For example, immediately after a road accident, if the victim has made a statement to the rescuer about the cause of the accident, he can prove that statement because it is part of the same transaction.

Section 8 - A statement may be proved by or on behalf of the person make it under Section 8 if it accompanies or explains acts other than statements or if it influences the conduct of a person whose conduct is relevant. For example, where A says to B, "You have not paid my money back", and B walks away in silence, A may prove his own statement because it has influenced the conduct of a person whose conduct is relevant.

Section 14 - When the statement explains his state of mid or body or bodily feeling when any such thing is relevant or is in issue, it can be proved by himself. For example, where the question is whether a person has been guilty of cruelty towards his wife, he may prove his statements made shortly before or after the alleged cruelty which explain his love and affection for and his feeling towards his wife.




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Q. What do you understand by Burden of Proof? On whom the does the burden of proof lie? State the rules of determining Burden of Proof in a suit or proceeding. When does the burden of proof shift to the other parties? Are there any exceptions?

General Concept of Burden of Proof
The responsibility to prove a thing is called burden of proof. When a person is required to prove the existence or truthfulness of a fact, he is said to have the burden of proving that fact. In a case, many facts are alleged and they need to be proved before the court can base its judgment on such facts. The burden of proof is the obligation on a party to establish such facts in issue or relevant facts in a case to the required degree of certainty in order to prove its case. For example, in a case of murder, prosecution may allege that all the conditions constituting a murder are fulfilled. All such conditions are facts in issue and there is an obligation to prove their existence. This obligation is a burden of proof. In general, every party has to prove a fact that goes in his favor or against his opponent, this obligation is nothing but burden of proof. Section 101 defines burden of proof as follows - When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

The important question is who is supposed to prove the various facts alleged in a case. In other words, on whom should the burden of proving a fact lie? The rules for allocation of burden of proof are governed primarily by the provisions in Section 101 to 105. The rules propounded by these sections can be categorized as General rules and Specific rules.

General rules

Rule 1 -  As per Section 101, specifies the basic rule about who is supposed to prove a fact. It says that 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. For example, 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. Another example - 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.

Facts can be put in two categories - those that positively affirm something and those that deny something. For example, the statement, "A is the owner of this land" is an affirmative statement, while "B is not the owner of this land" is a denial. The rule given in Section 101 means that the person who asserts the affirmative of an issue, the burden of proof lies on his to prove it. Thus, the person who makes the statement that "A is the owner of the land", has the burden to prove it. This rule is useful for determining the ownership of the initial burden. Whoever wishes the court to take certain action against the opposite party based on certain facts, he ought to first prove those facts.

However, it is not very simple to categorize a fact as asserting the affirmative. For example, in the case of Soward vs Legatt, 1836, a landlord suing the tenant asserted that the tenant did not repair the house. Here, he was asserting the negative. But the same statement can also be said affirmatively as the tenant let the house dilapidate. In this case, Lord ABINGER observed that In ascertaining which party is asserting the affirmative the court looks to the substance and not the language used. Looking at the substance of this case, the plaintiff had to prove that the premises were not repaired.

Thus, the court should arrive at the substance of the issue and should require that party to begin who in substance, though may not be in form, alleges the affirmative of the issue.

Burden of Proof and Onus of Proof
The term Burden of Proof is used in two difference senses - the burden of proof as a matter of law and pleading, and the burden of proof as a matter of adducing evidence also called as onus. There is a subtle distinction between burden of proof and onus of proof, which was explained in the case of Ranchhodbhai vs Babubhai AIR 1982. The first one is the burden to prove the main contention of party requesting the action of the court, while the second one is the burden to produce actual evidence. The first one is constant and is always upon the claimant but the second one shifts to the other party as and when one party successfully produces evidence supporting its case. For example, in a case where A is suing B for payment of his services, the burden of proof as a matter of law is upon A to prove that he provided services for which B has not paid. But if B claims that the services were not up to the mark, the onus of burden as to adducing evidence shifts to B to prove the deficiency in service. Further, if upon providing such evidence, A claims that the services were provided as negotiated in the contract, the onus again shifts to A to prove that the services meet the quality as specified in the contract.

The next rule determines who has the onus of proof.

Rule 2 - As per Section 102, 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. The following illustrations explain this point -
Illustration 1 -  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.
Illustration 2 - 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.

Rule 3 - As per Section 103, the person who wants the court to believe in an alleged fact is the one who is supposed to prove that fact unless it is provided by any law that the proof of that fact shall lie on any particular person. For example, A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. Another example - B wishes the Court  to believe that, at the time in question, he was elsewhere. He must prove it. Further, as specified in Section 104, if a person wants the court to believe in a fact that assumes the existence of another fact, it is up to the person to prove the other fact also. For example, A wishes to prove a dying declaration by B. A must prove B's death. A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.

Specific Rules
These rules specifically put the burden on proving certain facts on particular persons -

Rule 1 - As per Section 106, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 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. For example, A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him.

Rules of Presumption - Section 107 and 108 say that if a person was known to be alive within 30 yrs the presumption is that he is alive and if the person has not been heard of for seven years by those who have naturally heard from him if he had been alive, the presumption is that the person is death. But no presumption can be draw as to the time of death. Sections 109 establishes the burden in case of some relations such as landlord and tenant, principle and agent etc. Further sections specify the rules about burden of proof in case of terrorism, dowry death, and rape.

Exceptions -

Exception 1 -
The general rule in criminal cases is that the accused is presumed innocent. It is the prosecution who is required to establish the guilt of the accused without any doubt. At the same time, the accused is not required to prove his innocence without any doubt but only has to create reasonable doubt that he may not be guilty.  Section 105 specifies an exception to this general rule. When an accused claims the benefit of the General Exception clauses of IPC, the burden of proving that he is entitled to such benefit is upon him. For example, if an accused claims the benefit of insanity in a murder trial, it is up to the accused to prove that he was insane at the time of committing the crime.
In the case of K M Nanavati vs State of Maharashtra, AIR 1962, SC explained this point. In this case, Nanavati was accused of murdering Prem Ahuja, his wife's paramour, while Nanavati claimed innocence on account of grave and sudden provocation. The defence's claim was that when Nanavati met Prem at the latter's bedroom, Prem had just come out of the bath dressed only in a towel; an angry Nanavati swore at Prem and proceeded to ask him if he intends to marry Sylvia and look after his children. Prem replied, "Will I marry every woman I sleep with?", which further enraged Nanavati. Seeing Prem go for the gun, enclosed in a brown packet, Nanavati too went for it and in the ensuing scuffle, Prem's hand caused the gun to go off and instantly kill him.
Here, SC held that there is a presumption of innocence in favor of the accused as a general rule and it is the duty of the prosecution to prove the guilt of the accused beyond any doubt. But when an accused relies upon the general exception or proviso contained in any other part of the Penal Code, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Thus, it was upon the defence to prove that there existed a grave and sudden provocation. In absence of such proof, Nanavati was convicted of murder.

Exception 2 - Admission - A fact which has been admitted by a party and which is against the interest of that party, is held against the party. If the fact is contested by the party, then the burden of proof rests upon the party who made the admission. For example, A was recorded as saying that he committed theft at the said premises. If A wants to deny this admission, the burden of proof rests on A to prove so.

Exception 3 - Presumptions - Court presumes the existence of certain things. For example, as per Section 107/108, court presumes that a person is dead or alive based on how long he has not been heard of. Section 109, presumes that when two people have been acting as per the relationship of landlord - tenant, principle - agent, etc, such relationship still exists and anybody who contends that such relationship has ceased to exist has to provide proof. Section 110 presumes that the person who has the possession of a property is the owner of that property. As per Section 113A, 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. As per Section 113B, 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.

Thus, when the presumption of the court is in favor of a party, the burden of disproving it rests on the opposite party.




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Q. What do you understand by Confession? How does confession differ from admission? State the law relating to confessions. What is Judicial and Extra-Judicial confession? Under what circumstances is it relevant and when can it not be proved? State the extent, relevancy, and admissibility of a confession as evidence. How far can the statements of the accused made before the police be used against him?     

General Concept of Confession -
The term confession is not defined anywhere in Indian Evidence Act. But it is thought that an Admission in case of a criminal matter is Confession.  The same was stated by STEPHEN in his digest that that a confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed the crime.  However, Privy Council, in case of Pakala Narayan Swami vs Emperor AIR 1939, did not accept this definition. In this case Lord ATKIN observed that no statement that contains self exculpatory matter can amount to a confession. Further, a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. An offence of a gravely incriminating fact, is not in itself a confession. For example, an admission that the accused is the over of and was in recent possession of the knife or revolver which caused death with no explanation of any other man's possession, is not a confession even though it strongly suggests that the accused has committed the murder.

The decision by Privy Council in Pakala Narayan Swami case was approved by SC in the case of Palvinder Kaur vs State of Punjab, AIR 1952. In this case, Palvinder was on trial for murder of her husband along with another, who all the time remained absconding. In her statement to the court, her husband was hobbyist photographer and used to keep handy photo developing material which is quick poison. On this occasion, he was ill and she brought him some medicine and the medicine was kept near the liquid developer and by mistake swallowed the liquid and died. She got afraid and with the help of the absconder, she dumped the body in the well. The statement, thus, partially admitted guilt and partially showed innocence. Here, the lower courts sorted out the exculpatory part and convicted her on the inculpatory part. However, SC rejected this approach and held that the rule regarding confession and admission is that they must either be accepted or rejected as whole.

Difference between Confession and Admission
This brings us to the main difference between admission and confession. An admission is a statement that may or may not be a conclusive evidence of a fact in issue or relevant fact but to be a confession, the admission must conclusively prove the guilt of the maker of the admission.  For example, in the case of Veera Ibrahim vs State of Maharashtra, AIR 1976, a person being prosecuted under Customs Act told the customs officer that he did not know that the goods loaded in his truck were contraband nor were they loaded with his permission. SC held that the statement was not a confession but it did amount to admission of an incriminating fact that the truck was loaded with contraband material.

Thus,  a statement which may not amount to confession may still be relevant as admission. Only a voluntary and direct acknowledgment of guilt is confession, but when a confession fall short of actual admission of guilt, it may nevertheless be used as evidence under Section 21.

Regarding admission that contains multiple sentences, Justice Thomas, of SC stated the law in the case of Lokeman Shah vs State of WB, AIR 2001 as follows -
The test of discerning whether a statement recorded by a judicial magistrate under Section 164 of CrPC, is confessional or not is not to determine it by dissecting the statement into different sentences and then to pick out some as not inculpative.The statement must be read as a whole and then only the court should decide whether it contains admissions of his inculpatory involvement in the offence. If the result of that test is positive the the statement is confessional otherwise not.

Classification of Confessions
A confession may occur in any form. It may be made to the court itself, or to anybody outside the court. In this manner, a confession may be divided into two categories - Judicial Confession and Extra-judicial Confession.

Judicial Confession -  A judicial confession is a confession that is made in front of a magistrate or in a court. It may be made in the course of a judicial proceeding.
Extra - Judicial Confession -  An extra-judicial confession is a confession that is made by the party elsewhere than before a magistrate or in a court. It is admissible in evidence under Section 21 and it is proved by the witnesses who had heard the speaker's words constituting the confession.

A confession ma even consist of conversation with oneself. For example, in case of Sahoo vs State of UP, AIR 1966, an accused who was charged with murder of his daughter in law with whom he was always quarreling was seen on the day of the murder going out of the home saying words to the effect, "I have finished her and with her the daily quarrels.". The statement was held to be a valid confession because it is not necessary for the relevance of a confession that it should communicate to some other person.

Relevancy of Confessions -
Confessions when Not Relevant
A confession becomes irrelevant and thus, inadmissible, in situations described in the Sections 24, 25, and 26.
1. Section 24 - Confession caused by inducement, threat, or promise from a person in authority - Confession made by an accused is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by inducement, threat, or promise, made by any person in authority and that in the view of the court such inducement, threat, or promise gives reasonable ground to the person that by making the confession he would gain any advantage or avoid any evil of a temporary nature in reference to the proceedings against him.
The following conditions are necessary to attract the provisions of this section -
  1. The confession must have been made because of inducement, threat, or promise -  A confession should be free and voluntary. If it flows from fear or hope, it is inadmissible. In deciding whether a particular confession is because of threat, inducement, or promise, the question has to be considered from the point of view of the accused as to how the inducement, threat or promise would operate in his mind. For example, where the accused was told by the magistrate, "tell me where the things are and I will be favorable to you", it was held to be inadmissible. 
  2. The inducement, threat, or promise, must be made by a person in authority - A person in authority is not merely a police officer or a magistrate but every such person who can reasonably hold a sway over the investigation or trial. Thus, government officials such as a senior military officer, police constable, warden, clerk of the court, all have been held to be a person in authority. Even private persons such as the wife of the employer was also held to be a person in authority.
  3. It should relate to the charge in question - This requirement is specifically stated in the section, which says that the inducement must have "reference to the charge against the accused person". Thus, in the case of Empress vs Mohan Lal, 1881, the confession by a person who was threatened to be removed from his caste for life, was held to be relevant because the threat did not have anything to do with the charge. The position in English law is not same. In fact, J ATKINSON has said that this rule is illogical and unreasonable. For example, a daughter is accused of shoplifting and later on her mother is also accused of the same offence. Now, if the mother is induced to confess by saying that if she confesses to the charge, proceedings against her daughter will be dropped, this will most like lead to an untrue confession. Yet, it would be valid under this section. 
  4. It should hold out some material, worldly, or temporal benefit or advantage - The inducement should be about some tangible benefit. For example, a reference to spiritual benefit such as, taking an accused to a temple to confess does not fall in this category but a promise to reduce the sentence would fall under it.
It is necessary that all the conditions must exist cumulatively. Further, this section merely requires that if it "appears to the court" that the confession was improperly obtained, it becomes inadmissible i.e. if the circumstances create a probability in the mind of the court that the confession is improperly obtained, it may hold it inadmissible.

2. Confessions to Police - It is presumed that police holds a position of great influence over the actions of the the accused and so there is a high probability that confessions obtained by the police are tainted with threat, or inducement. Further, it is important to prevent the practice of oppression or torture by the police to extract the confession.  This principle is espoused by Sections 25 and 26, which are as follows -
Section 25 - Confession to police-officer not to be proved - No confession made to  a police-officer shall  be proved  as  against  a  person accused of any offence.  This section is very broadly word. It strictly disallows any confession made to the police officer as inadmissible no matter what the circumstances. In the case of Raja Ram vs State of Bihar, AIR 1964, SC held that the term police-officer is not be be interpreted strictly but must be given a more comprehensive and popular meaning. However, these words are also not to be construed in so wide sense as to include a person on whom only some powers exercised by the police are conferred. The test for determining whether such a person is a police officer, is whether the powers are such as would tend to facilitate the obtaining of confession by him from a suspect. Thus, a chowkidar, police patel, a village headman, an excise officer, are all considered to be police officer.
Section 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, shall be proved as against such person. This section further tries to ensure that the confession is not extracted due to the influence of the police. Any confession made while the maker is in custody of the police is invalid unless it is made in the immediate presence of a magistrate. The presence of a magistrate is, by a legal fiction, regarded as equivalent to removal of police influence and the statement is therefore considered to be free from police influence.
Mere absence of the police officer from a room where confession is taken does not terminate his custody of the accused. The word custody does not just mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction.

Section 27 provides another exception when a confession made to the police is admissible. This is when a confession leads to the discovery of a fact connected with the crime. The discovery assures that the confession is true and reliable even if it was extorted. In order to ensure the genuineness of recoveries, it has become a practice to effect the recoveries in the presence of witnesses.

Constitutionality of Section 27 -  Indian Evidence Act was written before the Constitution of India and Article 20(3) of the constitution says that no person shall be compelled to be a witness against himself. This article seemingly made Section 27 unconstitutional. SC considered this issue in the case of Nisa Sree vs State of Orissa AIR 1954, and held that it is not violative of Article 20(3). A confession may or may not lead to the discovery of an increminating fact. If the discovered fact is non incriminatory, there is no issue and if it is self-incriminatory, it is admissible if the information is given by the accused without any threat.

Confessions when Relevant -
The following three types of confession are relevant and admissible -

1. Section 27 - Confession leading to a discovery -  Explained above.

2. Section 28 - Confessions made after removal of threat -  If the confession is obtained after the impression caused by threat, inducement, or promise is removed in the opinion of the court, then the confession is admissible.

3. Section 29 -  Confession made under promise, deception,etc. -  If a confession is otherwise relevant, it does not become irrelevant merely because it was made -
(a) under a promise of secrecy or
(b) in consequences of a deception practiced on the accused person for the purpose of obtaining it or
(c) while the accused was drunk or
(d) while answering the questions he need not have answered or
(e) when the accused was not warned that he was not bound to make such confession and that evidence of it might be given against him.

The basis of this section is that any breach of confidence or of good faith or practice of any artifice does not invalidate a confession. However, a confession obtained by mere trickery does not carry much weight. For example, in one case, an accused was told that somebody saw him doing the crime and because of this the accused made a confession. The court held the confession as inadmissible. In Rex vs Shaw, A was accused of a murder and B, a fellow prisoner, asked him about how he did he do the murder. A said, "Will you be upon your oath not to mention what I tell you?", to which B promised on his oath that he will not tell anybody. A then made a statement. It was held that it was not such an inducement that would render the confession inadmissible.

The five circumstances mentioned in the section are not exhaustive.




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Q. Discuss the law regarding competency of a witness? (Sections 118-121) Can a wife be a competent witness against her husband? (Section 120)
 
 
The modern judicial system is based on evidence. The knowledge of how an event happened is arrived at by the court through witnesses. As BENTHAM said, "Witnesses are the eyes and ears of justice." The court gives its finding based on the evidence given by witnesses. It is important, therefore, to understand who can and cannot be a competent witness. Section 118 of Indian Evidence Act, 1872, contains the provisions for determining a competent witness.

Section 118. Who may testify? - All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and 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 question put to him and giving rational answers to him.

As is evident from Section 118, in general, nobody is barred from being a witness as long as he is able to understand the questions that are put to him as well as is able to give rational replies to those questions. There may be several reasons because of which a person may not be able to comprehend the questions and/or is unable to reply coherently. This section does not attempt to define all such reasons but gives examples of such reasons such as young age (in case of a child), mental illness, or extreme old age. It is up to the court to determine whether a person is able to understand the questions or give rational answers. Thus, competency is a rule, while incompetency is an exception.  Even a lunatic is considered a competent witness if his lunacy does not prevent him from understanding the questions and giving rational answers.

Child Witness
A young child, if he is able to understand the questions and is able to reply rationally, is a competent witness even if he is of a tender age. For example, in the case of Jai Singh vs State, 1973, Cr LJ, a seven year old girl who was the victim of attempted rape was produced as a witness and her testimony was held valid.
It has been held in several early cases that a child under the age of seven years can be a competent witness if, upon the strict examination of the court, the child is found to understand the nature and consequences of an oath. For example, in Queen vs Seva Bhogta, 1874, a ten year old girl, who was the only eye witness of a murder was made a witness. She appeared to be intelligent and was able to answer questions frankly and without any hesitation. However, she was not able to understand the meaning of oath. It was held that her unsworn evidence was admissible in the given circumstances. The same was observed in Rameshwar Kalyan Singh vs State of Rajasthan AIR 1952, where the accused was charged with the offence of rape of a girl of 8 years of age. It was held that ommission of oath only affects the credibility of the witness and not competency of the witness. The question of competency is determined by section 118, and the only ground that is given for incompetency is the inability to comprehend the questions or inability to give rational answers.

The supreme court however has emphasised the need for carefully evaulating the testimony of a child. Adequate corroboration of his testimony must be looked from other evidence.

Dumb Witness
Section 119 - 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.

Competency of a wife as a witness against her husband
As per Section 120, in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. Further, in criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.
Thus it is pretty clear that the spouse of a person can be a competent witness against that person. For example, in the case of Shyam Singh vs Shaiwalini Ghosh, AIR 1947, Calcutta HC held that Husband and wife are both competent witness against each other in civil and criminal cases. They are competenet witness to prove that there has been no conjugation between them during marriage.
Although not mentioned in the act, it has been held in several cases that provisions of this section are subject to Section 122, which makes the communication between a husband and wife privileged.

Competency of Accused
As per Section 315 of Cr P C, an accused is a competent witness. He can given evidence on his behalf, but if he does not, no comment can be made against the accused or adverse inference be drawn against him.

Competency of an Accomplice
Accomplice - An accomplice is a person who has taken part, whether big or small, in the commission of an offence. Accomplice includes principles as well as abettors.
Not an Accomplice - person under threat commits the crime, person who merely witnesses the crime, detectives, paid informers, and trap witnesses

Generally, a small offender is pardoned so as to produce him as a witness against the bigger offender.  However, evidence by an accomplice is not really very reliable because - 1) he is likely to swear falsely in order to shift blame, 2) as a participator in a crime, he is a criminal and is likely immoral, and so may disregard the sanctity of oath, and 3) since he gives evidence in promise of a pardon, he will obviously be favorable to prosecution.

Even so, an accomplice is allowed to give evidence. As per Section 133, he is a competent witness against the accused and a conviction based on his evidence is not illegal merely because his evidence has not been corroborated. At the same time, Section 114 (b) contains a provision that allows the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particular. The idea is that since such a witness is not very reliable, his statements should be or verified by some independent witness. This is interpreted as a rule of caution to avoid mindless usage of evidence of accomplice for producing a conviction.

Since every case is different, it is not possible to precisely specify a formula for determining whether corroborative evidence is required or not. So some guiding principles were propounded in the case of  R vs Baskerville, 1916. According to this procedure -
1. It is not necessary that there should be an independent confirmation of every detail of the crime related by the accomplice. It is sufficient if there is a confirmation as to a material circumstance of the crime.
2. There must at least be confirmation of some particulars which show that the accused committed the crime.
3. The corroboration must be an independent testimony. i.e one accomplice cannot corroborate other.
4. The corroboration need not be by direct evidence. It may be through circumstantial evidence.

This rule has been confirmed by the Supreme Court in Rameshwar vs State of Rajasthan, 1952

Accomplice and Co-accused
The confession of a co-accused (S. 30) is not treated in the same way as the testimony of an accomplice because -
1. The testimony of an accomplice is taken on oath and is subjected to cross examination and so is of a higher probative value.
2. The confession of a co-accused can hardly be called substantive evidence as it is not evidence within the definition of S. 3. It must be taken into consideration along with other evidence in the case and it cannot alone form the basis of a conviction. While the testimony of an accomplice alone may be sufficient for conviction.



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Short Notes.


Hearsay Evidence

Hearsay means information gathered by the first person from a second person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence.  For example, when A says that A heard from B that C killed D, A's statement is a hearsay and this kind of evidence is usually not admissible due to Section 60, which says that oral evidence must be direct. I.e.If it  refers to  a fact which could be seen, it must be the evidence of a witness who says he saw it or if it  refers to a fact which could be heard, it must be the evidence of a witness who says he heard it and so on. Hearsay evidence means the statement of a witness not based on his personal knowledge but on what he heard from others. The reasons for excluding such evidence are two -  There is no way to know what the person who said the thing actually meant because he is not produced before the court. He might as well be misunderstood, and second, the opposite party does not have any chance to cross question the original author of the statement.

Exceptions to hearsay rule -

1. Res Gestae (S. 6)
2. Admissions and Confessions (S. 17)
3. Statements relevant under S. 32  (Cases  in which  statement of  relevant fact by person who is dead or  cannot be  found, etc.,  is relevant)
4. Statements in public documents.
5. Evidence in former proceedings (S. 33 - Relevancy of  certain evidence  for proving, in subsequent proceeding, the truth of facts therein stated.)
6. Statement of Experts in treaties (S. 60)
7. Miscellaneous - Can the court extend these exceptions or create new ones? Lord Hershell expressed himself against the desirability of extending the exceptions.


Opinion of third person
In general, the opinions of third parties are irrelevant. They form part of res inter alios acta. Ordinarily, the court is not interested in anyone's opinions but only in facts. A witness must be a witness of a fact and not of an opinion. Beliefs of a witness are irrelevant. However, there are exceptions. These exceptions are given from Section 45 to 51. Opinion of experts, Opinion about handwriting, Opinion as to existence of a right or custom, Opinion as to usages, tenets, etc, Opinion as to relationship
Ground of opinion is also relevant.


1. Opinion of experts - Section 45 - 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 or finger impressions, the opinions upon that point of persons  specially skilled  in such  foreign law,  science or  art, or in  questions  as  to  identity  of  handwriting, or  finger impressions are relevant facts.

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 handwriting, when 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.

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                            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.


     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.


     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.


     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).

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                            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.


     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.