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Evidence Act
Res Gestae
Sec. 6 . Relevancy of facts forming part of same transaction - Facts which, though not in issue, ar
so connected with a fact in issue as to form part of the same transaction, are relevant, whethe
they occurred at the same time and place or at different times and places.(a) A is accused of the murder of B by beating him. Whatever was said or done by A Or B or th
by-standers at the beating or so shortly before or after it as to form part of the transaction, is
relevant fact.
(b) a is accused of waging war against the Government of India by taking part in an arme
insurrection which property is destroyed, troops are attacked and gaols are broken open. Th
occurrence of these facts is relevant, as forming part of the general transaction, though A may no
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 th
parties relating to the subject out of which the libel arose, and forming part of the correspondencin 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 wer
delivered to several intermediate persons successively. Each delivery is a relevant fact.
Facts which are not themselves in issue may affect the probability of the existence of facts in issu
and be used as the foundation of inference respecting them such facts are described in Act a
relevant facts. Every fact is a part of other facts. Sec. 6 lays down that the facts which are s
connected with the facts in issue that they form part of the same transaction are relevant facts.
definition of the word 'same transaction' is given by Stephen who says, a transaction is a grou
of facts, connected together to be referred to by a single legal name, a crime, a contract, a wrong o
any other subject of enquiry which may be in issue. The rule of efficient test for determinin
whether a fact forms part of the same transaction or another depends upon whether they are s
related to one another in point of purpose, or as cause and effect, or as probable and subsidiar
act as to constitute one continuous action.
Doctrine of res gestae or parts of transaction
Apparently the phrase is well established in Law of Evidence. It has been used in two senses. I
the wider sense it covers all the probative facts by which res gestae are reproduced to the tribuna
where the direct evidence of witness or perception by the court are unattainable. In restrictemeaning res gestae imports the conception of action by action. To be clear, in the restricted sens
facts which constitute the res gestae must be such as so connected with the very transaction o
fact under investigation as to constitute a part of it. They are the acts talking for themselves no
what people say when talking about the acts.
The section is quite apparently based upon the English doctrine of res gestae. This Latin phras
means things done and when translated into English means things said and done in the cours
of a transaction. Every case that comes before a court of law has a fact story behind it. Every fa
story is made of certain acts, omissions and statements. Every such act, omission or statement a
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rows some g upon e na ure o e ransac on or revea s s rue qua y or c arac er s ou
be held as a part of the transaction and the evidence of it should be received. To state a fact o
event in isolation without reference to its antecedents in time, place or surroundin
circumstances, may render the fact, difficult or even impossible to comprehend. Other facts o
circumstances may be so closely connected with the fact in issue as to be, in reality, part an
parcel of the same transaction. Such ancillary facts are described as forming part of the res gesta
of the fact in issue, and may be proved.
The expression res gestae as applied to a crime means the complete transaction from its startinpoint in the act of the accused until the end is reached. What in any case constitutes a transactio
depends wholly on the character of the act and the circumstances of the case. It frequent
happens that, as evidence of circumstances may be resorted to for the purpose of proving th
commission of a particular offence charged, the proof of those circumstances involves the proof o
other acts either criminal or apparently innocent. In such cases it is proper that the chain o
evidence should be unbroken.
The words spoken by the person doing the act, or by the person to whom they were done or by th
bystanders are relevant as a part of the same transaction, but it should be borne in mind that suc
statements or declarations, as they are called, in order that they might be admissible as res gesta
should be contemporaneous with the transaction in issue, that is, the interval should not be mad
as to give time and opportunity for fabrication and connection and they should not amount a mer
narrative of a past occurance. If the statement is answer to a query after lapse of some time
cannot be treated as res gestae. At the time of murder the cry of deceased 'save me' and that of th
children that their mother was being killed are relevant as res gestae.
In Ratten v The Queen A man was prosecuted for the murder of his wife. His defence was that th
shot went off accidently. There was evidence to the effect that the deceased telephoned say : Ge
me the police please. Before the operator could connect the police, the caller, who spoke idistress, gave her address and the call suddenly ended. Thereafter the police came to the hous
and found the body of a dead woman. Her call and the words she spoke were held to be relevant a
a part of the transaction which brought about her death. Her call in distress showed that th
shooting in question was intentional and not accidental. For no victim of an accident could hav
thought of getting the police before the happening. This then is the utility of the doctrine of re
gestae. It enables the court to take into account all the essential details of a transaction.
A transaction can be truly understood only when all its integral parts are known and not i
isolation from each other.
The Court of Appeal held in another case that a statement made to a police officer by the victim oan assault identifying the assailant while moving with the police in his car was relevant as showin
that he had seen the victim of an assault and who committed it.
Acts or Omissions as Res Gestae
So far as acts and omissions accompanying a transaction are concerned, much difficulty does no
arise. Nature of the transaction itself indicates what should be its essential parts. In case of Miln
v Leisler a question was whether a contract had been made with a person in his personal capaci
or as an agent of another. The fact that the contractor wrote a letter to his broker asking him t
make inquiries was held to be relevant.
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Statements as Res gestae
Statements may also accompany Physical happenings. In the application of this principle th
courts have been very strict and cautious. For statements can be easily concocted. Hence th
principle that the statement should have been made so soon before or after or along with th
incident that there was hardly any time to deliberate and thereby to fabricate a false story. In cas
of R v. Bedingfield a woman, with a throat cut, came suddenly out of a room, in which she ha
been injured and shortly before she died, said : Oh dear Aunt, see what Bedingfield has done t
me. It was held that the statement was not admissible. Anything uttered by the deceased at th
time the act was being done would be admissible, as, for instance if she has been heard to sa
something, as don't Harry. But here it was something, stated by her after it was all over. Th
statement was also held to be not relevant as dying declaration because she did not have the tim
to reflect that she was dying.
In case of R v. Christie an indecent assault was made upon a young boy. Shortly after the inciden
the boy made certain statements to his mother by which he described the offence and the ma
who assaulted him. The evidence of the statement was excluded. Remarked that the boy
statement was so separated by time and circumstances from the actual commission of the crimthat it was not admissible as part of the res gestae.
The emphasis of the courts seem to be that the words should be at least de recenti and not afte
an interval which should allow time for reflection and concocting a story. The statement shoul
be an exclamation forced out of a witness by the emotion generated by an event rather than
subsequent narrative. The courts have stressing the necessity for close association in time,plac
and circumstances between he statement and the crucial events.
It has been held by the Supreme Court in R. M. Malkani v State of Maharashtra, that
contemporaneous tape-record of a relevant conversation is a relevant fact. It is res gestae. Her
the act of the assailant intruding into the courtyard during dead of the night, victimidentification of the assailant her pronouncement that appellant was standing with a gun and h
firing the gun at her, all circumstances so intertwined with each other by proximity of time an
space that the statement of the deceased became part of the same transaction. Hence it
admissible under Section 6 of the Evidence Act.
In Rattan Singh v. State of H. P. it was held that where shortly before the incidence in which
woman dies of gun shot, she exclaimed that a man was standing near her with a gun in his han
the statement was held to be sufficiently proximate in time to the happening as to be a part of th
same transaction.
Res Gestae and Hearsay
Hearsay evidence means the statement of a person who has not sent he happening of th
transaction, but has heard of it from others. But such evidence can be given if it is a part of th
transaction.
In Sukhar v. State of U.P., One morning while deceased was going on the road, Accused caugh
hold of his back and fired a pistol shot towards him, deceased raised an alarm on account of whic
PW 1 and PW 2 reached the scene of occurrence and that point of time, deceased fell down and th
accused made his escape. The two witnesses, brought deceased tot he police station whereupo
the olice recorded of the statement of deceased and started investi ation. Durin trial th
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prosecution witnesses PWs 1& 2merely stated as to what they heard from the injured at th
relevant point of time and according to PW 2, the injured had told him that the assailant had fire
upon him. While the trial was pending the injured died.
The High Court heavily relied upon the statement of PW 2. Counsel for the appellant strenuous
contended that the evidence of the Evidence of PW 2 cannot be held to be admissible unde
Section 6 of Evidence Act inasmuch as what the injured told the witness when the witness whe
the witness reached the scene of occurrence and the factum of alleged shooting by the accused the injured cannot be said to have formed part of the same transaction.
The Supreme Court said that Section 6 of the evidence act is an exception to the general ru
hereunder the hearsay evidence become admissible. But for bringing such hearsay evidenc
within the provisions of Section 6, what is required to be established is that it must be almo
contemporaneous with the acts and there should not be an interval which allow fabrication. Th
statement sought to be admitted, therefore as forming part of res gestae must have been mad
contemporaneously with the acts or immediately thereafter.
With reference to above explanation and referring to the case of Rattan Singh v. State of H.P., th
court held that the statement indicating that the injured told that the accused has fired at himwould become admissible under Section 6 of the Evidence Act.
Proved , Disproved and Not Proved
When is a fact said to be proved. Section 3 says :
Proved : A fact is said to be proved when, after considering the matters before it, the Court eithe
believes it to exist, or considers its existence so probable that a prudent man ought, under th
circumstances of the particular case, to act upon the supposition that it exists.
The degree of certainty which must be arrived at before a fact is said to be proved is that describe
in this section.
The section also states as to when a fact is said to be disproved.
Disproved : A fact is said to be disproved when, after considering the matters before it, the Cour
either believes that it does not exist, or considers its non-existence so probable that a prudent ma
ought, under the circumstances of the particular case, to act upon the supposition that it does noexist.
The section concludes with this set of provisions by defining a fact which is said to be no
proved. It says :
Not Proved : A fact is said to be not proved when it is neither proved not disproved.
These provisions of the Act deal with the degree or standard of proof. What and how much proo
is necessary to convince the judge of existence of a fact in issue? The answer depends upon man
circumstances as different standards of proof are demanded in civil and criminal cases. In civ
cases, for example, a matter is taken to be proved when the balance of probability suggests it, nu
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.
as would induce a reasonable man to come to the conclusion. Suspicion cannot take the place
proof, nor moral belief of the judge in the guilt of the accused.
Supreme Court held that in Criminal cases there has to be a proof which leaves behind n
reasonable doubt about the prosecution version. The victim's dying declaration which left man
uncovered points and also narrated an unnatural story. Because of these doubts the evidence wa
rejected.
The court has to proceed on the basis of the matters before it, which may be in the shape oevidence or any other shape.
Proved :- Proof does not mean proof to rigid mathematical demonstration, because that i
impossible. It means such evidence as would induce a reasonable man to come to conclusion. A
that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that th
fact is so. In the ordinary affairs of life courts do not require demonstrative evidence. Absolut
certainty amounting to demonstration is seldom to be had in the affairs of life and we ar
frequently obliged to act on degrees of probabilities which fall very short of it indeed.
In M. Narsingha Rao v. State of Andhra Pradesh, the Supreme Court held that a fact is said to b
proved when after considering the matter before it the Court either believe it to exist or consider
its existence so probable that a prudent man ought, under circumstances of particular case, to a
upon supposition that it exists. This is the definition of the word 'proved' in Evidence Act. What i
required is production of such materials on which the Court reasonably act to reach th
supposition that the fact exist. Proof of facts depends upon degree of possibility of having existed
The standard required for reaching the supposition is that of a prudent man acting in an
important matter concerning him.
The extent to which a particular evidence aids in proving the fact in controversy is called a
probative force. This probative force must be sufficient to induce the court either (a) to believe ithe existence of the fact sought to be proved, or (b) to consider its existence so probable that
prudent man ought to act upon the supposition that it exists. The test is of probability upon whic
a prudent man may base his opinion. In other words, it is the estimate which a prudent ma
makes of the probabilities having regard to what must be his duty as a result of his estimate.
Proof and suspicion :- It must be borne in mind that suspicion and conjecture cannot take th
place of legal proof.
Matter before it :- In order to decide as to whether a particular fact is proved, the court has t
consider the 'matter' before it. The expression, matters before it in this definition include
materials which do not fall within the definition of 'evidence' as given in Sec. 3. The result of locaenquiry by a court, material objects brought before the court, material objects brought before th
court, the demeanor of witnesses, admission by parties, confessions by the accused, statement o
the accused, Commissioner's reports, are not evidence according to the definition given in Sec. 3
But they are all matters before the court to be considered while coming to conclusion.
Disproved and not Proved :- The definition of the word 'disproved' is a converse of the definitio
of the word 'proved'. The expression 'not proved' indicates a state of mind in between the two, tha
is, when one cannot say whether a fact is proved or disproved. Not Proved is something differen
from being false. An inability to prove a claim does not mean in all cases that it is false. I
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negatives both proof and disproof.
Sec. 3 of Evidence Act, while explaining the meaning of proved, disproved and not prove
provides, the standard of proof. This standard should be of ordinary prudence in person, who wi
udge its existence or non-existence from the standard of circumstances before him.
In Naval Kishor Somani v. Poonam Somani, Andhra Pradesh High Court said that a fact which
proved does not necessarily mean that it is false one. The expression 'Proved' is followed b
expression disproved. This is followed by difinition of 'not proved'. The fact is said to be no
proved when it is neither proved not disproved. On the other hand the fact is said to be disprove
when after considering the matters before it the court either believes that it does not exist o
considers its bib-existence. The word 'disproved' is akin to the word 'false'. What is disproved
normally taken to be false thing. It will be thus seen that a fact proved is not necessarily a fa
disproved. A fact which is 'not proved' may be false or true. A doubt lingers about its truth merel
because it is not proved or may not jump to the conclusion that it is disproved. A fact is disprove
normally by the person who claims that alleged that the fact is not true.
A fact is said to be disproved when the Court believes that the fact in question does not exist an
that the Court believes the non-existence of that fact from the standard of man of ordinarprudence.
Not Proved where the fact is deemed to be not proved from the standard of a person of ordinar
prudence. The phrase NOT PROVED means neither the fact is proved with certainty nor the fact i
believed to exist. The phrase NOT PROVED is between the phrase proved and disproved. And th
phrase not proved is the result of careful scrutiny of the person of ordinary-prudence that the fa
either exists with certainty nor its non-existence is proved with certainty. It is provision betwee
existence and non-existence of the fact in the mind of a man of ordinary prudence.
CONSPIRACY
S. 10 Things said or done by conspirator in reference to common design. - Where there
reasonable ground to believe that two or more persons have conspired together to commit a
offence or an actionable wrong, anything said, done or written by any one of such persons i
reference to their common intention, after the time when such intention was first entertained b
any one of them, is a relevant fact as against each of the persons believed to be so conspiring, a
well as for the purpose of proving the existence of the conspiracy as for the purpose of showin
that any such person was a party to it.
Illustration :- Reasonable ground exists for believing that A has joined in a conspiracy to wage wa
against the Government of India.
The facts that B procured arms in Eurpoe for the purpose of the conspiracy, C collected money i
Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E publishe
writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul th
mone which C had collected at Calcutta and the contents of a letter written b H ivin a
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account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and t
prove A's complicity in it, although he may have been ignorant of all of them, and although th
persons by whom they were done were strangers to him, and although they may have taken plac
before he joined the conspiracy or after he left it.
The leading English is R v. Blake and Tye. Blake was working as a landing waiter at the Custom
House. Tye worked at the same place as an agent for the importers. They were charged wit
conspiracy to dodge the customs by passing goods without paying full duty. Tye made certaientries in two books. One of them was used for carrying out the fraud and the entries wer
necessary for that purpose. But the other was for his private record, or convenience, such as, th
counterfoil of his cheque book.
It was held that the entries in the former book were admissible against Blake, but the latter wer
not. The essence of the decision was that evidence of an act of a conspirator is relevant again
other only it the act was done to carry out the conspiracy. The act should relate to the furtheranc
of the common object.
THE basic principle which is underlined under Sec. 10 is the theory of agency and hence ever
conspirator is agent of this association in carrying out the object of conspiracy. Sec. 10 renderanything said or done or written by any one of the conspirators in reference to their commo
intention as relevant fact not only as (i) against each of the Conspirators but (ii) proving th
conspiracy itself. The only condition for application of the rule of Sec. 10 is that there must b
reasonable ground to believe that two or more persons have conspired together to commit a
offence. Conspiracy is a crime as well as a tort.
In State of Maharashtra v. Damu Gopinath Shinde, there was no doubt that there was reasonabl
ground to believe that four of accused conspirators have conspired to commit the offence o
abduction and murder of children involved in this case. So when these accused had spoken to eac
other in reference to common intention as could be gathered from conspirators can be regarded a
relevant facts falling within the preview of Sec.10. A dialogue between them could be prove
through any permitted legal mode. When the confession is legally proved and found admissible i
evidence the same can be used to ascertain what was said and done or written between th
conspirators.
The term 'conspiracy is the corrupt agreeing together of two or more persons to do, by concerte
action, something unlawful either as a means or as an end'. Sec 120-A of the Indian Penal Cod
lays down : When two or more persons agree to do or cause to be done (1) an illegal act, or (2) a
act which is not illegal but illegal by means, such agreement is designated as criminal conspiracyprovided that no agreement except an agreement to commit an offence shall amount to crimina
conspiracy unless some act besides an agreement is done by one or more parties to suc
agreement in pursuance thereof. Thus it is clear that when two or more persons agree together t
do some illegal act or some act by illegal means they are said to have conspired. It is enough if th
acts agreed to be done although not criminal are wrongful, i.e., amount to civil wrong civil wrong
A conspiracy consists of unlawful combination of two or more persons to do that which
contrary of law, or to do that which is wrongful towards other persons. It may be punishe
criminally, or civilly by action.
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. .
any direct evidence. The ingredients of the offence are that there should be an agreement betwee
persons who are alleged to conspire and the said agreement should be for doing an illegal act o
for doing by illegal means an act which itself may not be illegal. Therefore the essential of crimina
conspiracy is an agreement to do an illegal act and such an agreement can be proved either b
direct evidence or by circumstances evidence or by both, and it is a matter of common experienc
that direct evidence to proved conspiracy is rarely available. Therefore the circumstance prove
before during and after the occurance have to be considered to be decided about the complicity othe accused.
Privacy and secrecy are more characteristics of conspiracy than of a loud discussion in an elevate
place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence o
the conspiracy can be proved by either direct or ciarcumstance evidence. It is not always possib
to give affirmative evidence about the date of the formation of the criminal conspiracy, about th
object which the objectors set before themselves as the object of conspiracy and about the manne
in which the object of conspiracy is to be carried out, all this is a mater of inference.
Where trustworthy evidence establishing all links of circumstantial evidence is available th
confession of a co-accused as to conspiracy even without corroboration evidence can be taken int
consideration. It can in some cases be inferred from the acts and conduct of the parties.
It must be remembered that mere knowledge on the part of a man about a conspiracy will no
make him a conspiracy. Under Sec.10, a statement of act of one person is evidence again
another. The Section puts certain limitations to the general rule of admissibility stated above
Under Sec.10 a thing done, said or written after the time when such intention was first entertaine
by any one of them is relevant. Anything done, said or written before such intention of conspirac
was entertained by any one of them is not relevant under this section. Against each and everythin
said, done or written by a conspirator even after such intention was entertained by a member the conspiracy will not be relevant under this section. The only thing said, done or written i
reference to the common intention of the conspirators will be admissible. There is more limitatio
to the relevancy of evidence under Sec.10. Before any evidence is entertained under this sectio
there should be a reasonable ground for the court to believe that two or more persons hav
conspired together to commit, an offence or actionable wrong. Any statement made by accuse
after his arrest cannot fall within the ambit of Sec.10. Confessional statement of accused who
not alive would not be of any evidentiary use.
Analysis of Section 10. - Sec.10 can be analysed as follows :
(1) There shall be a prima facie evidence affording a reasonable ground for a court to believe thatwo or more persons are members of a conspiracy (2) if the said condition is fulfilled, anythin
said, done or written by any one of them in reference to their common intention will be evidenc
against the others (3) any thing said, done or written by him should have been said, done o
written by him after the intention was formed by any one of them (4) it would be relevant for th
said purpose against another who entered the conspiracy, whether it was said, done or writte
before he entered the conspiracy or after he left (5) and it can be used only against a conspirato
and not in his favour.
Before bringing on record anything said, done or written by an alleged conspirator the court ha
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to bring on record some evidence which prima facie proves the existence of the conspiracy. Once
reasonable ground to believe that several persons have conspired to commit an offence exists th
acts and declarations of a particular person in reference to the common intention are relevan
facts although that person may not so much as even know of the existence of many other engage
in the conspiracy. And if the evidence is taken after a prima facie proof of conspiracy but at a late
stage of the trial that reasonable ground of belief or prima facie proof is displaced by furthe
evidence, the court must reject the evidence previously taken.
In C B I v. V.C. Shukla (Hawala Case), entries in the accounts book alleged to be showin
conspiracy among all the accused. Evidence of prosecution witness only indicating that one of th
accused in question was known to the other accused person and had gone to their residence o
formal occasion, witness not speaking a word about other accused in question. It was held tha
Sec.10 cannot be pressed into holding that conspiracy amongst all the accused was proved.
The word 'intention' implies that the act intended is in the future and the section makes relevan
statements by a conspirator with reference to the future. The words in reference to their commo
intention mean in reference to what at the time of statement was intended in the futur
Narratives coming from the conspirators as to their past act cannot be said to have a reference ttheir commo intention.
In the case of Badri Rai v. State of Bihar the Supreme Court referred to the state of English Law a
expounded in R vs. Blake, and said that section 10 of the Evidence Act is on the same lines :
Ramji and Badri were prosecuted for conspiracy under S.120- and for bribing a police office
under S.165-A. An inspector of police was on his way to the police station. Both Ramni and Bad
approached him and requested that they would duly reward him if he could hush up the cas
relating to stolen ornaments and molten silver recovered from Ramji's house and which wa
under investigation. The inspector told them he could not talk to them on the road and that the
should come to the police station. The inspector reported the matter to his senior officer. Badalone came to the police station and offered him a packed wrapped in a piece of old newspape
containing Rs. 500 in currency notes. He told the inspector that Ramji had sent the money as
consideration for hushing up the case against him. In the presence of other persons, who becam
witnesses, the inspector seized the money and drew up the first information report.
The only question before the Supreme Court was whether the offer was whether the offer o
money and the accompanying statement made by Badri were relevant against Ramji. The cour
said that when both the accused approached the inspector and requested him to hush up the cas
that clearly showed that they had conspired to bribe a public servant. That being so, anything sai
or done by any of them in reference of their conspiracy to bribe was relevant against the othe
also. The statement and the offer of bribe had clear reference to their common intention and wer
therefore, relevant against both.
The Supreme Court further said, Sec.10 of the Evidence Act has been deliberately enacted in orde
to make such acts and statements of a co-conspirator admissible against the whole body o
conspirators, because of the nature of crime. A conspiracy is hatched in secrecy, and executed i
darkness. Naturally, therefore, it is not feasible for the prosecution to connect each isolated act o
statement of one accused with the acts of statements of the others, unless there is a common bon
linking all of them together.
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In Mirza Akbar v. Emperor, Mirza Akbar, Mst Mehr Teja and Umar Sher were convicted for th
murder of Ali Askar, the husband of Mst. Mehar Teja. The prosecution case was that Mst. Meha
Teja and Mirza Akbar desired to get rid of Askar so that they should marry each other. Umar She
was hired for the purpose. Umar Sher shot Ali Askar dead. After the murder was committed, M
Mehr Teja was arrested on the charge of conspiracy. She was examined before a magistrate an
there she made certain statement implicating Mirza Akbar. This statement was admitted i
evidence both by the trial Judge and Judicial Commissioner as relevant against the appellanunder Sec.10, Evidence Act. It was held that the words of Sec.10 are not capable of being wide
construed so as to include a statement made by one conspirator in the absence of the other wit
reference to past acts done in the actual course of carrying out the conspiracy, after it has bee
completed.
Appellant Mirza Akbar and Mst Teja were tried for conspiracy to commit the murder of Ali Aska
husband of Mst. Mehar Teja. After the murder was committed Mst. Mehar Teja was arrested. Sh
made the statement to the effect that there was conspiracy for murdering Ali Askar. It was hel
that the statement was made with reference to past act 'common intention' in the section signif
common intention existing at the time when the thing was done, written or said. Things saiwritten or done while the conspiracy is at foot are relevant. The statement was held to be no
admissible.
ADMISSION
S. 17. Admission defined - An admission is a statement, oral or documentary or contained i
electronic form, which suggests any inference as to any fact in issue or relevant fact, and which
made by any of the persons, and under circumstances hereinafter mentioned.
The section points three things it First defines admission, in terms of a statement which may b
oral or documentary or in electronic form. Secondly, the section says that an admission will b
relevant only if it is made by any of the person specified in the Act. The list is to be found in S. 18
Thirdly, the section says that it will be relevant only in the circumstances mentioned in the Ac
Such circumstances are mentioned in section 18-30.
The Supreme Court has given some guidance in this respect. Before the right of a party can b
taken to be defeated on the basis of an alleged admission by him, the implication of the statemen
made by him must be clear and conclusive. There should not be any doubt or ambiguity. It woul
be necessary to read all of his statements together. Applying this approach to the facts of a cas
before it.
Reasons for admissibility of admissions
An admission is a relevant evidence. Several reasons have been suggested for receiving admission
in evidence some of them are as follows :
1. Admissions as waiver of Proof
The section confines this effect only to formal admissions made at the time of the trial or as part o
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. .
that the Court may, in its discretion, require the facts admitted to be proved otherwise than b
such admission. Thus the Court may reject an admission either wholly or in part or may requir
further proof. Waiver of proof therefore, cannot be an exclusive reason for the relevancy of a
admission.
2. Admissions as statement against interest
The Second suggested reason is that an admission, being a statement against the interest of th
maker, should be supposed to be true, for it is highly improbable that a person will voluntarilmake a false statement against his own interest. But this also does not squarely account for th
relevancy of admissions. For one thing Section 17 does not require that an admission should be
statement suggest some inference as to a fact in issue or relevant to the issue, even if the inferenc
is in favour of the declarant. The act does not seem to require that an admission should be sel
harming statement.
3. Admissions as Evidence of Contradictory Statements
Still another reason that partly accounts for the relevancy of an admission is that there is
contradiction between the party's statement and his case. This kind of contradiction discredits h
case. If, for example, A sues B upon a loan. His account books show that the loan was given to C
The statement in his accounts is an admission on his part as it contradicts his case against B. Bu
his is only partly true, for the principle is that a party can prove all his opponent's statement
about the facts of the case and it is not necessary that they should be inconsistent with his case.
4. Admissions as Evidence of Truth
The last and most plausible and perhaps widely accepted reason that accounts for relevancy o
admissions is that whatever statements a party makes about the facts of the case, whether they b
for or against his interest, should be relevant as representing or reflecting the truth as again
him.
Forms of admission and to whom an admission may be made
It is generally immaterial as to whom an admission is made. It may occur in reference to th
proceedings or outside the court.
Formal or Judicial Admissions
An admission which is made as part of the proceedings so that it is recorded in the file of th
court, that is called a formal or judicial admission. Admissions expressly made in the proceeding
prior to the trial are sometimes called formal or express admissions.
Statements made by a person in his pleadings or in his evidence in a case have also been held b
the Supreme Court to be admissions and, therefore, relevant. The case before the court waBishwanath Prasad v. Dwarka Prasad :
The question was whether certain properties belonged to the defendant and certain others we
liable to partition. The opposite party had made statement in dispositions in an earlier suit tha
they belonged to the defendant. Similar admissions occurred in the written statement filed by th
plaintiff and his father in that suit.
Treating this as a relevant evidence against the plaintiff, Court remarked that Admissions ar
usually telling against the maker unless reasonably explained, and no acceptable ground t
extricate the appellants from the effect of their own earlier statements has been made out. Th
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attention of the learned Judge was drawn to section 145 of the Evidence Act which provides that
a witness is to be contradicted by his own earlier statement, the statement must be put to him s
that he may have an opportunity to explain it and this was not done in the present case Dealin
with this argument Court said :
There is a cardinal distinction between a party who is the author of a prior statement and
witness who is examined and is sought to be discredited by the use of his prior statement. In th
former case in admission by a party is a substantive evidence if it fulfills the requirements o
Sec21 in the latter case a prior statement is used to discredit the credibility of the witness an
does not become substantive evidence. In the former there is no necessary requirement of th
statement containing the admission having to be put to the party because it is evidence propri
vigore in the latter case the Court cannot be invited to be disbelieve a witness on the strength
the prior contradictory statement unless it has been put to him, as required by sec 145.
The court then pointed out that this distinction was clearly made out in Bharat Singh's Cas
Where the court disposed of a similar argument with the following observation :
Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Ac
though they are not conclusive proof of the matters admitted. We are of opinion that admission
duly proved are admissible evidence irrespective of whether the party making them appeared i
the case he made a statement contrary to these admissions. An admission is a substantiv
evidence of the fact admitted while a previous statement used to contradict a witness does no
become substantive evidence and merely serves the purpose of throwing doubt on the veracity
the witness.
Referring to the distinction between the relevancy of an admission and its weight the Cou
pointed out in the Bharat Singh's Case that the the weight to be attached to an admission mad
by a party is a mater different from its use as an admissible evidence.
Informal or casual AdmissionsSuch admissions may occur in the ordinary course of life, or in the course of business, or in casua
or informal conversation. The admission may be in writing or oral. Written admissions may occu
in the course of correspondence , in letters, business dairies or account book or other records.
there is a document against a party, any statement made by him about the contents of th
document is an admission against him even if the document itself is not provable on account o
want of stamp.
Admission and Hearsay
An oral admission can be proved either by the party to whom it was made or by someone wh
heard it being made. To this extent the evidence of an informal admission is an evidence o
hearsay. Sec.60 requires that oral evidence must in all cases be direct, that is to say, the witnes
must have personal and direct knowledge of the fact to which he testifies. If, for example, th
question is how a fire started. A person who witnessed the fire being started by an explosion ca
give evidence of this fact, for he has personal knowledge of the fact. If on his way home he tol
someone of the fact of explosion, that other cannot give evidence of the explosion for h
knowledge is nothing but a hearsay.
Persons whose admissions are relevant
Section 18 lays down the list of persons whose admissions constitute evidence against a party. Th
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effects of Sec.18,19 and 20, when put together, is that the admissions of following parties becom
relevant :
1. Parties of the Suit,
2. Agents of Parties,
3. Persons occupying representative character,
4. Statement will include the statements of the following parties :
This category will include the statements of the following parties :
(a) Persons having pecuniary or proprietary interest.
(b) Persons from whom the parties derived their interest.
(c) Persons whose position is in issue or is relevant.
(d) Persons expressly referred to.
Parties to suit or proceeding
The statement of a party in his written statement in an earlier proceeding was held to be relevan
against him in a subsequent proceeding. It seemed to the court to be evidence of telling natur
and heavily loaded against the party. Where there are more than one plaintiffs oar defendants to
suit, the Act does not make it clear whether the statement of a party will be relevant against his coplaintiffs or co-defendants. On principle as well as policy the statement of a defendant should no
bind his co-defendants, for otherwise the plaintiff can defeat the case of the other defendan
through the mouth of one of them. That would be unfair to the co-defendants. So a defendant
bound by his statement only to the extent of his own interest. An admission is the best evidenc
only against the party who has made it. Even if it were relevant under one category or the other,
appears from decision of the Supreme Court in Kashmira Singh v. State of M. P., that not muc
weight can be attached to it against the co-parties and it cannot by itself be the basis of legal righ
or liabilities.
Agents of Parties
The statement of an agent to a party are relevant as admission against the party provided th
court regards, under the circumstances of the case, the agents to be expressly or impliedl
authorised by the party to make the statement. According to the law of agency, a statement b
agent in the ordinary course of the business of agency is an admission against his principal.
Statements in representative character
A person who sues or is sued in a representative character, any statement made by him during th
time that he holds such character is an admission against the party whose representative he i
Representative character is occupied, for example, by trustees, receivers, the assignee of a
insolvent's estate, executors, administrators etc.
Persons having pecuniary or proprietary Interest in subject-matter
Statement of persons who, though not parties to the proceeding, have a pecuniary or proprietar
interest in the subject-matter of the proceeding, are relevant provided that the statement is mad
by any such person in the character of his interest.
Predecessor-in-title
Statements made by a persons from whom the parties to the suit have derived their interest in th
subject-matter of the suit are admissions provided they are made during the continuance of th
-
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.
title. Any statement made by him about the property while he was holding the title is relevan
against the parties who acquired the title from him. This category will include statements made b
a former owner of a property and such statements will be relevant against present owners.
statement made by any such person after he ceased to have any interest in the property i
question shall not be an admission against the present owner of the property.
Persons whose position is in issue
Sec.19 deals with statements of persons whose position is in issue, though they are not parties tthe case. The section is based upon the principle that where the right or liability of a party to a su
depends upon the liability of a third person, any statement by that third person about his liabilit
is an admission against the parties.
Statements by referees
Sec.20 deals with the principle that when a party makes a reference to a third person fo
information, any statement by that person about the subject-matter of the reference is a
admission against the party making the reference.
The Supreme Court in K.M. Singh v. Secretary, Association of Indian Universities. Here the issu
was whether the resignation tendered by the plaintiff was an involuntary one. He named tw
officials of the respondent association that if they would take special oath at a specified religiou
place and affirm that his resignation was not involuntary, he would accept the same. When th
official did so it amounted to an admission on his part and he became bound by the same.
S. 21. Proof of admissions against persons making them, and by or on their behalf. - Admissio
are relevant and may be proved as against the person who makes them, or his representative i
interest but they cannot be proved by or on behalf of the person who makes them or by h
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 natur
that, if the person making it were dead, it would be relevant as between third persons u/s 32.
(2)An admission maybe proved by or on behalf of the person making it when it consists of
statement of the existence of any state of mind or body, relevant or in issue, made at or about th
time when such state of mind or body existed, and is accompanied by conduct rendering i
falsehood improbable.
(3)An admission may be proved by or on behalf of the person making it, if it is relevant otherwis
than as an admission.
Illustrations
(a) The question between A and B is, whether certain deed is or is not forged. Aaffirms 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 the deed is forged but A cannot prove a
Statement by himself that the deed is genuine, nor can be proved 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,
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s owing o servations a ege to ave een ta en y im rom ay to ay, an
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 Sec.32.
Who can prove admissions
The section lays down the principles as to proof of admissions. The section is based upon th
principle that an admission is an evidence against the party who has made the admission and
therefore, it can be proved against him. He himself cannot prove his own statements, otherwis
every man, if he were in a difficulty, or in view of one, might make declarations to suit his ow
case, and then lodge them in proof of his case. The general rule is that the statements of a livin
person cannot be received unless they are against his interest. No man should be at liberty t
make evidence for himself through his own statements. Granted this facility, every litigant woul
construct a favourable case by his own statement.
The principle is, however, subject to important exceptions. In these exceptional cases a party
permitted to prove his own statements. Some of them may be mentioned here.
1. When the statement should have been relevant as Dying Declaration or as that
of a deceased person under S. 32.
Sec. 32 deals with the statement of persons who have died or who otherwise cannot come befor
the court. The statement of any such person can be proved in any case or proceeding to which it
relevant whether it operates in favour or against the person making the statement. I
circumstances stated in Sec. 32 such a statement can be proved by the maker himself if he is sti
alive. The exception is thus stated in S. 21(1).
An admission may be proved by or behalf of the person making it, when it is of such a nature th
if the person making it were dead, it would be relevant as between third persons under Sec. 32
Illustration (b) is on the point.
2. Statements as to bodily feeling or state of mind
The second exception is contained in S.21(2). It deals with statements as to body, bodily feeling o
state of mind. The subsection enables a person to prove his statements as to his state of body or o
mind. If, for example a person is injured and the question is whether the injury was intentional o
accidental, his statement at that time as to the way he was injured can be proved by himself. Th
conditions for the admissibility of such statements are, Firstly, that the statement should hav
been made at about the time when the state of mind of of body which is described by th
statement still existed. The statement should be contemporaneous with the existence of th
condition of mind or of body. This rules our chances of fabrication. A person is the least likely t
fabricate a statement when he is still reeling under the pain of the injury. And Secondly, th
statement should be accompanied by conduct which renders the falsehood of the statemen
improbable. Thus to reassure that the statement is really true, the Legislature insist that th
statement should be accompanied by such conduct as shows that the condition of mind or of bod
described by the statement is really true and not feigned. The conduct of a person under real pai
is different from that of a person who is only acting as such. The accompanying conduct is
greater guarantee of truth than the statements.
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3. When otherwise relevant
The last exception is that a person may prove his own statement when it is otherwise relevan
under any of the provisions relating to relevancy. A statement may be relevant either as a
admission of relevant fact or as a proof of the existence of a fact. There are many cases in which
statement is relevant not because it is an admission but because it establishes the existence o
non-existence of a relevant fact or a fact in issue. In all such cases a party can prove his own
statements.
Statement when Relevant
The act provides for the relevancy of statement in several cases.
Firstly, a party may prove his own statement under S.6 if it is a part of the same transaction. Th
doctrine of res gestae covers such statements.
Secondly, a statement may be proved by or on behalf of the person making it under Section 8 if
accompanies or explains acts other than statements or if it influenced the conduct of a perso
whose conduct is relevant.
Thirdly, a statement may be proved by or on behalf of the person making it under Section 14 if th
statement explains his state of mind or body or bodily feeling when any such thing is relevant or in issue.
Fourthly, a statement may be proved on behalf of the person making it if it is relevant under an
of the clauses of Section 32.
The Supreme Court has also laid down in some cases that where there is an admission, it is no
necessary to confront the person concerned with the previous statement. This is so because a
admission is a substantive and an independent piece of evidence.
Presumption of genuineness of electronic records.
Electronic records are presumed to be true. No further evidence is necessary in proof of a fa
appearing in such record. It is only when the genuineness of the record is in question that otheevidence would be receivable. In that case, an oral account of the contents of such record wou
also become receivable in evidence.
In K. Chinnaswamy Reddy v. State of Andhra Pradesh, to hold that the statement relating t
concealment is admissible in evidence by virtue of section 27. In that case, the question wa
formulate by the court, as follows:
Let us then turn to the question whether the statement of the appellant to the effect that 'he ha
hidden them (the ornaments)' and would point out the place' where they were, is whol
admissible in evidence under S.27 or only that of it is admissible where he stated that he woul
point out the place but not the part where he stated that he had hidden the ornaments.
In Pulukuri Kotayya v. King Emperor, the above question was answered as :
If we may respectfully say so, this case clearly brings out what part of the statement is admissibl
under S.27. It is only that part which distinctly relates to the discovery which is admissible if an
part of the statement distinctly relates to the discovery it will be admissible wholly and the Cou
cannot say that it will excise one part of the statement because it is of a confessional nature
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as a whole, whether it be in the nature of confession or not.
It is however urged that in a case where the offence consists of possession even the words wher
he had hidden them' would be inadmissible as they would amount to an admission by the accuse
that he was in possession. There are in our opinion two answers to this argument. In the fir
place S.27 itself says that where the statement distinctly relates to the discovery it will b
admissible whether it amounts to a confession or not. In the second place, these words b
themselves though they may prove the offence, for after the articles have been recovered arconnected with crime. i.e. In this case the prosecution will have to show that they are stole
property. We are therefore of opinion that the entire statement of the appellant would b
admissible evidence
In the light of this decision, we must hold that the accused must be deemed to be in exclusiv
possession of the articles concealed under the earth though the spots at which they wer
concealed may be accessible to public.
CONFESSION
The term confession is nowhere defined in the Evidence Act. All provisions relating t
confessions occur under the heading of admission. If a statement is made by a party to a Civ
proceeding it will be called an admission and if it is made by a party charged with a crime it wi
be called a confession. A confession is a statement made by a person charged with a crim
suggesting an inference as to any facts in issue or as to relevant facts. The inference that th
statement should suggest should be that he is guilty of the crime.
Stephen defined Confession as : A confession is an admission made at any time by a perso
charged with a crime stating or suggesting the inference that he committed that crime.
A confession is a direct acknowledgment of guilt, on the part of the accused, and by the very forc
of the definition excluded an admission which of itself as applied in Criminal Law, is statement b
the accused direct or implied, of facts pertinent to the issue, and tending in connection with
proof of other facts to prove his guilt but of itself is insufficient to authorise a conviction.
The acid test which distinguishes a confession from an admission is that where conviction can b
based on the statement alone, it is a confession and where some supplementary evidence
needed to authorise a conviction, then it is an admission. An other test is that if the prosecutiorelies on the statement as being true it is confession and if the statement is relied on because it
false it is admission. In criminal cases a statement by accused, not amounting to confession bu
giving rise to inference that the accused might have committed the crime is his admission.
Only voluntary and direct acknowledgment of guilt is confession. In a statement recorded by th
Magistrate, the accused did not admit his guilt in terms and merely went on stating the fact o
assault on the deceased by mistake. The Supreme Court held that such statement could not b
used against the accused as a Confession. A statement which may not amount to a confession ma
still be relevant as an admission.
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e e n t on attempte y t e r vy ounc as oun avour w t t e upreme ourt n a a
Narayan Swami v. Emperor over two scores. Firstly, that the definition is that it must either adm
the guilt in terms or admit substantially all the facts which constitute the offence, and secondl
that a mixed up statement which, even though contains some confessional statement, will sti
lead to acquittal, is no confession.
The confession comprised of two elements : (a) an account of how the accused killed the woma
and (b) an account of his reasons for doing so. The former elements being inculpatory and latte
exculpatory. In Aghnoo Nagesia v. State of Bihar when a statement in FIR given by an accusecontains incriminating materials and it is difficult to sift the exculpatory portion therefrom, th
whole of it must be excluded from evidence.
Forms of Confession
A confession may occur in any form. It may be made to the court itself, when it will be known a
udicial confession or to anybody outside the court, in which case it is called an extra-judici
confession. It may even consist of conversation to oneself, which may be produced in evidence
overheard by another.
Judicial Confession
Judicial confessions are those which are made before a magistrate or in court in the due course o
legal proceedings. A is accused of having killed G. He may, before the trial begins confess the gui
before some magistratae who may record it in accordance with the provisions of Section 16
Cr.P.C. At the committal proceedings before the magistrate or at the trial before Session Judge,
may confess his guilt. All these are Judicial confessions. A judicial confession has been defined t
mean plea or guilty on arrangement (before a tribunal) if made freely by a person in a fit state o
mind.
Extra Judicial Confession
Extra Judicial confessions are those which are made by the accused elsewhere than before magistrate or in court. An 'extra Judicial Confession' can be made to any person or to a body o
persons. It is not necessary that the statements should have been addressed to any definit
individual. It may have taken place in the form of a prayer. An extra judicial confession has bee
defined to mean a free and voluntary confession of guilt by a person accused of a crime in th
course of conversation with persons other than judge or magistrate seized of the charge again
himself.
An unambiguous extra judicial confession has got value of high probability because this type
confession is made by that person who had committed the crime and it will be taken int
consideration if it is free from doubt and its untruthfulness is free from any doubt. But foconfession made about charge in question the court has to satisfy itself that the confessio
voluntary and the confessions should not have been caused by inducement, threat or promise
the confession should not have been taken under the circumstances which came under perview o
Sec.25 or 26.
Before accepting the extra judicial confession, it should be seen that it is not made under unfair o
colleteral notions. For this the court has to enquire all the relevant facts, such as to whom th
confession was made, the time and place of making confession and the phraseology used by th
accused.
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Section 24. Confession caused by inducement, threat or promise, when irrelevant in crimina
proceeding. -- A confession made by an accused person is irrelevant in a criminal proceeding,
the making of the confession appears to the court th have been caused by any inducement, thre
or promise having reference to the charge against the accused person, proceeding from a perso
in authority and sufficient, in the opinion of the Court, to give the accused person grounds, whic
would appear to him reasonable, for supposing that by m aking it he would gain any advantage o
avoid any evil of temporal nature in reference to the proceeding against him.
Principle underlying Section 24.
The ground upon which confessions are received in evidence is the presumption that no perso
will voluntarily make a statement which is against his interest unless it be true. But the force o
the confession depends upon its voluntary character. There is always a danger that the accuse
may be led to incriminate himself falsely.
Voluntary and non-voluntary confession
The confession of an accused may be classified as voluntary and non-voluntary. A confession t
the police officer is the confession made by the accused while in custody of a police officer an
never relevant and can never be proved under Section 25 and 26. Now as for the extra-judiciconfession and confession made by the accused to some Magistrate to whom he has been sent b
the police for the purpose during the investigation, they are admissible only when they are mad
voluntarily. If the making of the confession appears to the court to have been caused by an
inducement, threat or promise having reference to the charge against the accused perso
proceeding from a person in authority and sufficient in opinion of the court to give the accuse
person grounds, which would appear to him reasonable for supposing that by making ti he woul
gain any advantage or avoid any evil of a temporal nature in reference to the proceeding again
him, it will not be relevant and it cannot be proved against the person making the statemen
Section 24 of the Evidence Act lays down the rule for the exclusion of the confession which armade non-voluntarily.
Confession irrelevant.-- If a confession comes within the four corners of Section 24 it is irrelevan
and cannot be used against the maker.
The ingredients of Section 24.-- To attract the prohibition enacted in Section 24
the following facts must be established :
(1)That the statement in question is a confession,
(2)that such confession has been made by the accused,
(3)that it has been made to a person in authority,
(4)that the confession has been obtained by reason of any inducement, threat or promis
proceeding from a person in authority,
(5)such inducement, threat or promise must have reference to the charge againt the accused, and
(6)the inducement, threat or promise must in the opinion of the court be sufficient to give th
accused ground, which would appear to him reasonable, for supposing that by making it he woul
gain any advantage or avoid any evil of a temporal nature in reference to the proceedings again
him.
(A)Confession caused by inducement, threat or promise. -- The term of inducement involves
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.
very difficult, to lay down any hard and fast rule as to what constitutes inducement. It is for th
Judge to decide in every case. Before a confession can be received as such, it must be shown that
was freely and voluntarily made. Thus it is clear that if threat or promise from a person i
authority is used in getting a confession it will not be taken into evidence.
(B)Threat, inducement and promise from a person in authority. -- The threat, inducement an
promise on account of which, the accused admits the guilt must come from a person who has go
some authority over the matter. It appears that a person in authority within the meaning oSection 24 should be one who by virtue of his position wields some kind of influence over th
accused.
(C)Inducement must have reference to the charge.-- The inducement must have reference to th
charge against the accused person, that is the charge of offence in the criminal courts an
inferencing the mind of the accused with respect to the escape from the charge. The inducemen
must have reference to escape from the charge. Mere exhortation to speak the truth in name o
God cannot in itself amount to an inducement.
(D)Sufficiency of the inducement, threat or promise. -- Before a confession is exclude
inducement, threat or promise would in the opinion of the court be sufficient to give the accuseperson ground which would appear to the accused (and not the court) reasonable for supposin
that by making the confession he would gain an advantage or avoid an evil of the nature
contemplated in the section. Consequently the mentality of the accused has to be judged and no
that of the person in authority.
Section 25.-- Confession to Police officer not to be proved. -- No confession made to a polic
officer, shall be proved as against a person accused of any offence.
The principle upon which the rejection of confession made by an accused to a police officer o
while in the custody of such officer is found is that a confession thus made or obtained
untrustworthy. The broad ground for not admitting confessions made to a police officer is to avoi
the danger of admitting a false confession. The police officer in order to secure conviction in a cas
very often puts the person so arrested to severe torture and makes him to confess a guilt withou
having committed it and when such steps are taken there is impunity for the real offender an
great encouragement to crime. Section 25 lays down that no confession made to a police office
shall be proved as against person accused of an offence.
It must be borne in mind that Section 25 of the Evidence Act excludes only confessions. A
statements that do not amount to confessions are not excluded by Section 25 of the Evidence Ac
and can be brought on record and proved against any accused.Section 26.-- Confession by accused while in custody of police not to be proved against him. -- N
confession made by any person whilst he is in custody of a police officer, unless it be made in th
immediate presence of a Magistrate, shall be proved as against such person.
The object of Section 26 of the Evidence Act is to prevent the abuse of their power by the polic
and hence confessions made by accused persons while in custody of police cannot be prove
against them unless made in presence of Magistrate.
Section 27.-- How much of information received from accused may be proved. - Provided tha
when any fact is deposed to as discovered in consequence of information received from a perso
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accuse o any o ence, n e cus o y o a po ce o cer, so muc o suc n orma on, w e er
amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved
This section of the Act is founded on the principle that if the confession of the accused
supported by the discovery of a fact then it may be presumed to be true and not to have bee
extracted. This section based on the view that if a fact is actually discovered in consequence
information given, some guarantee is afforded thereby that the information was true an
accordingly can be safely allowed to be given in evidence. But clearly the extent of the informatio
admissible must depend on the exact nature of the fact discovered to which such information required to relate.
Section 26 and 27 compared
Though the section is in the form of a proviso to Sec.26, these two sections do not deal wit
evidence of the same character. Section 26 bans confession to police altogether, but S. 27 lets in
statement which leads to a crucial discovery whether it amounts to confession or not. Unde
Section 26 a confession made in the presence of a Magistrate is wholly provable, whereas Sectio
27 permits only the part of the statement which leads to the discovery of fact. The scope of th
section was explained by the Privy Council in Pulukari Kotaya v. Emperor.
A number of accused persons were prosecuted for rioting and murder. Some of them wer
sentenced to death and some to transportation for life. They appealed to the Privy Council o
grounds, among others, that the statements of some of them were admitted in violation of Sectio
26 and 27. The statement of one of them was : About 14 days ago I, Kottaya, and people of m
party lay in waitfor Sivayya and others.... We all beat Sivayya and Subayya to death. Ramayya wh
was in our party received blows on his hands. He had a spear in his hands. He gave it to me then.
hid it and my stick in the rick of my village. I will show if you come. We did all this at the instanc
of Pulukuri Kottya. Another accused said : I stabbed Sivayya with a spear. I hid the spear in
yard in my village. I will show you the place. The relevant articles were produced from therespective places of hiding.
The High Court admitted the whole of the above statement. High Court held that unless the who
of the statement is admitted, it would be difficult to connect the articles produced with th
offence, the only connecting link being the confession statement.
The Privy Council pointed out that the case was wrongly decided. The result of the decision was t
read in Section 27 something which is not there and admit in evidence a confession barred b
Section 26.
Explaining the relationship between Section 26 and 27 and the bar imposed by Section 26, the
Lordship said :That ban was presumably inspired by the fear of the Legislature that a person under polic
influence might be induced to confess by the exercise of undue pressure. But if all that is require
to lift the ban be the inclusion in the confession of information relating to an object subsequentl
produced, the ban will lose its effect. On normal principles of construction their Lordships thin
that the proviso to Section 26 added by Section 27, should not be held to nullify the substance o
the section. In their Lordship's view it is fallacious to treat the fact discovered as equivalent t
the object produced the fact discovered embraces the place from which the object is produced an
the knowledge of accused as to this, and the information given must relate distinctly to this fac
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Information as to the past use of the object produced is not related to its discovery. Informatio
supplied by a person in custody that I will produce a knife concealed in the roof of my house
does not lead to the discovery of a knief. It leads to the discovery of a fact that a knife is conceale
in the house of the informant to his knowledge, and if the knife is concealed in the house of th
informant to his knowledge, and if the knief is proved to have been used in the commission of th
offence, the fact discovered is very relevant. But if to the statement the words are added wit
which I stabbed A these words are inadmissible since they do not relate to the discovery of th
knief in the house of the informant.
Explaining the scope of the section in general terms, their Lordships observed :
Section 27, which is not artistically worded, provides an exception to the prohibition imposed b
the preceding section, and enables certain statements made by a person in police custody to b
proved. The condition necessary to bring the section into operation is that discovery of a fact i
consequence of information received from a person accused of any offence in the custody of polic
officer must be deposed to, and thereupon so much of the information as relates distinctly to th
fact thereby discovered may be proved. The section seems to be based on the view that if a fact
actually discovered in consequence of information given, some guarantee is afforded thereby thathe information was true and accordingly can be safely allowed to be given in evidence. Normal
the section is brought into operation when a person in police custody produces from some place o
concealment some object, such as, a dead body, a weapon or ornaments, said to be connected wit
the crime of which the informant is accused.
Referring to the facts of the case their Lordship held that the whole of statement except th
passage, I hid it(a spear) and my stick in the rick in the village. I will show if you come i
inadmissible. Referring to the statement of the other accused, that I stabbed Sivayya with a spea
I hid the spear in a yard of my village. I will show you the place, their Lordships held that the firs
sentence must be omitted.In Bodh Raj v. State of J & K. it was held that only the information that definitely relates to th
facts discovered is admissible. But the information should not be truncated in such manner as t
make it insensible. The information must be recorded. Where it is not recorded, the exac
information must be adduced through evidence.
In State of Karnataka v. David Razario, it was held that the articles proved to have been stolen b
the accused were of very small value, articles of higher value remained untouched in the house o
the deceased, whether this could be exculpatory circumstance in a charge of murder with robber
or whether such evidence could be sole basis of conviction, question left unanswered.
In Pandurang Kalu Patil v. State of Maharashtra, it was held that where the accused disclosed :
have kept the firearm concerned behind the old house under a heap of wood. The same wa
recovered from the place. The court said that the fact discovered was not the gun but the fact tha
the accused had concealed it at the place from where it was found according to his disclosure.
Section 28 provides that if there is inducement, threat or promise given to the accused in order t
obtain confession of guilt from him but the confession is made after the impression caused by an
such inducement, threat or promise has, in the opinion of the court, been fully removed, th
confession will be relevant because it becomes pre and voluntary. It must be borne in mind tha
there must be stron and co ent evidence that the influence of the inducement has reall ceased.
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Section 29 lays down that if a confession is relevant, that is if it is not excluded from being prove
by any other provisions of Indian Evidence Act, it cannot be irrelevant if it was taken from th
accused by (1) giving him promise of secrecy, or (2) by deceiving him, or (3) when he was drunk
or (4) because it was made clear in answer to question which he need not have answered, o
because no warning was given that he was not bound to say anything and that whatever he will b
used against him.
Section 29 lays down that if a confession is not excluded by section 24.25 or 29 it will not bexcluded on the ground of the promise of secrecy or of deception or of being drunk, or for bein
made in answer to question or without that it will be used against him in evidence.
DYING DECLARATION
Section 32. Cases in which statements of relevant fact by person who is dead or cannot be foun
etc. is relevant.-- Statement written or verbal, or relevant facts made by a person who is dead, o
who cannot be found, or who has become incapable of giving evidence, or whose attendanccannot be procured without an amount of delay or expense which, under the circumstance of th
case appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) When it relates to cause of death. -- When the statement is made by a person as to the cause o
his death, or as to any of the circumstances of the transaction which resulted in his death, in case
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 tim
when they were made, under expectation of death, and whatever may be the nature of th
proceeding in which the cause of his death comes into question.
Illustration
(a) The question is whether A was murdered by B or
A dies of injuries received n a transaction in the course of which she was ravished. The question i
whether she was ravished by B or
The question is, whether A was killed by B under such circumstances that a suit wold lie against
by A's widow.
Statements made by A as to cause of his or her death, referring respectively to the murder, th
rape and the actionable wrong under consideration are relevant facts.
Dying Declaration is admissible in evidence being a hearsay evidence. This piece of hearsaevidence is admissible as an exception to the general rule of evidence that hearsay evidence is n
evidence in eye of law and it should be discarded as general rule because the evidence in all case
must be direct.
Requirements of Section 32.
The section is one of those3 provisions that provide exceptions to the principle of excludin
hearsay evidence. The principle of the section is that a person who has the first-hand knowledge o
the facts of a case, but who, for reasons stated in the section, such as death or disability, is not ab
to appear before the court, then his knowledge should be transmitted to the court through som
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o er persons.
Dying Declaration or statements relating to cause of death
Such a statement can be proved when it is made by a person as to the cause of his death, or as t
any of the circumstances of the transaction which resulted in his death. The statement will b
relevant in every case or proceeding in which the cause of that person's death comes into question
The clause further goes on to say that such statements are relevant whether the person who mad
them was or was not, at the time when they were made, under expectation of death and whateve
may be the nature of the proceeding in which the cause of death comes into question.The clause incorporates the principle of English law relating to what are popularly known as dyin
declarations but marks a remarkable departure from them.
Dying declaration in English Law
A 'dying declaration' means the statement of a person who has died explaining the circumstance
of his death. According to English law the statement is relevant only when the charge is that o
murder of manslaughter.
The basis of the rule as to dying declaration was explained in the early case of R v. Woodcock
explained the general principle :
The general principle on which this species of evidence is admitted is, that they are declaration
made in extremity, when the party is at the point of death, and when every hope of this world i
gone when every motive of falsehood is silenced, and the mind is induced by the most powerfu
considerations to speak the truth.
While the principle stated in this case relating to the basis on which dying declarations are give
credit has been approved, the subsequent cases quite clearly emphasise that declarations mad
without appreciation of impending death would not be admitted.
The Supreme Court in its decision in P. V. Radhakrishna v. State of Karnataka, noted this in th
following words : The principle on which a dying declaration is admitted in evidence is indicatein Latin maxim, nemo moriturus proesumitur mentiri, a man will not meet his maker with a lie i
his mouth. Explaining the word immediate which was inserted by his Lordship said
Immediate death must be construed in the sense of death impending, not on that instant, bu
within a very, very short distance indeed. In other words, the test is whether all hope of life ha
been abandoned so that the person making the statement thinks that death must follow
Applying this principle to the facts, his Lordship held that the words I shall go should not b
taken alone ant the effect of the whole sentence was that she was under the hopeless expectatio
of death.
An attempt was made in Kusa v. State of Orissa, before the Supreme Court to exclude declaration on the ground of incompleteness. The statement was recorded by a doctor. It was clea
in all respects. To wind up the statement the doctor asked the injured if he had anything else t
say. He lapsed into unconsciousness without answering this question. The court held that th
statement was not incomplete. It was rightly admitted.
Dying declaration under clause (1) of s. 32
Anticipation of death not necessary
One of the most important departures from English law that the Evidence Act marks is that here
is not necessary that the declarant should be under any expectation of death. If the declarant ha
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in fact died and the statement explains the circumstances surrounding his death, the statemen
will be relevant even if no cause of death had arisen at the time of the making of the statemen
The statutory authority is S.32(1) itself and the Judicial authority is the leading decision of th
Privy Council in Pakala Narayan Swami v. Emperor. The accused was convicted of murder an
sentenced to death. The evidence against him was, firstly,his indebtedness to the deceased
secondly, the statement of the deceased of his wife that he was going to the accused, thirdly, th
steel trunk was purchased by a Dhobie (washerman) for and on behalf of the accused. Some othe
details about the arrival of the deceased at the accused's house, discovery of blood-stained clothe
and transportation of the trunk of the station were also proved. The accused appealed to the Priv
Council on the grounds that the statement of the deceased to his wife that he was going to th
accused was wrongly admitted under S.32(1). Th