PART I : RELEVANCY OF FACTS
CHAPTER I : PRELIMINARY
1. Short title, extent and commencement
This Act may be called the Indian Evidence
Act, 1872.
2It extends to the whole of India 3 [Except
the State of Jammu and Kashmir] and applies to all judicial proceedings
in or before any Court, including Courts-martial, 4[other than Courts-martial
convened under the Army Act.,] (44 & 45 Vict., c.58) 5[the Naval Discipline
Act (29 & 30 Vict., c 109) or 6[***] the Indian Navy (Discipline) Act.
19347] (34 of 1934) 8[or the Air Force Act] 7 Geo. 5, c. 51) but not to
affidavits presented to any Court to any Court or Officer, not to proceedings
before an arbitrator
And it shall come into force on the first
day of September, 1872.
[2. Repeal of enactments: Repealed by the
Repealing Act, 1938]
"Court"- includes all Judges and Magistrates,
and all persons, except arbitrators, legally authorized to take evidence.
"Fact" - "Fact" means and includes-
(1) any thing, state of things, or relation
of things, capable of being perceived by the sense;
(2) any mental condition of which any person
is conscious.
Illustrations
(a) That there are certain objects arranged
in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is
a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has
a certain intention, acts in goods faith or fraudulently, or uses a particular
word in a particular sense, or is or was at a specified time conscious
of a particulars sensation, is a fact.
(e) That a man has a certain reputation,
is a fact.
"Relevant" - One fact is said to be relevant
to another when the one is connected with the other in any of the ways
referred to in the provisions of this Act relating to the relevancy of
facts.
"Facts in issue" - The expression "facts
in issue" means and includes -
any fact from which, either by itself or
in connection with other facts, the existence, non-existence, nature or
extent of any right, liability, or disability, asserted or denied on any
suit or proceeding, necessarily follows.
Explanation - Whenever, under the provisions
of the law for the time being in force relating to Civil Procedure, any
Court records an issue of fact, the fact to be asserted or denied in the
answer to such issue is a fact in issue.
Illustrations
A is accused of the murder of B.
At his trial the following facts may be in
issue:-
That caused A B's death;
That A intended to cause Bs' death;
That A had received grave and sudden provocation
from B;
That A, at the time of doing the act which
caused B's death, was, by reason of unsoundness of mind, incapable of knowing
its nature.
"Documents" - "Documents" means any matter
expressed of described upon any substance by means of letters, figures
or marks, or by more than one of those means, intended to be used, or which
may be used, for the purpose of recording that matter.
Illustrations
A writing is a document;
(1) all statements which the Court permits
or requires to be made before it by witnesses, in relation to matters of
fact under inquiry;
such statements are called oral evidence;
(2) all documents produced for the inspection
of the Court;
such statements are called oral evidence;
"Proved" - A fact is said to be proved when,
after considering the matters before it, the Court either believes it to
exist, or considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the supposition
that it exists.
"Disproved"- A fact is said to be disproved
when, after considering the matters before it, the Court either believes
that it does not exist, or considers its non-existence so probable that
a prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it does not exist.
"Not proved"- A fact is said not to be proved
when it is neither proved nor disproved.
"India"- 9["India" means the territory of
India excluding the State of Jammu and Kashmir.]
4. "May presume"
"Shall presume" - Whenever it s directed
by this Act that the Court shall presume a fact, it shall regard such fact
as proved, unless and until it disproved;
"Conclusive proof" - When one fact is declared
by this Act to be conclusive proof of another, the Court shall, on proof
of the one fact, regard the other as proved, and shall not allow evidence
to be given for the purpose of disproving it.
CHAPTER II : OF THE RELEVANCY OF FACTS
5. Evidence may be given of facts in issue
and relevant facts
Explanation-This section shall not enable
any person to give evidence of a fact which he is disentitled to prove
by any provision of the law for the time being in force relating to Civil
Procedure10
Illustrations
A is tried for the murder of B by beating
him with a club with the intention of causing his death.
At A's trial the following facts are in issue:-
A's beating B with the club;
A's causing B's death by such beating;
A's intention to cause B's death.
(b) A suitor does not bring with him, and
have in readiness for production at the first hearing of the case, a bond
on which he relies. This section does not enable him to produce the bond
or prove its contents at a subsequent stage of he proceedings, otherwise
than in accordance with the conditions prescribed by the Code of Civil
Producer10
6. Relevancy of facts forming part of same
transaction
Illustrations
(a) A is accused of the murder of B by beating
him. Whatever was said or done by A or B or the by-standers at the beating,
or so shortly or after it as to form part of the transaction, is a relevant
fact.
(b) A is accused of waging war against the
11[ Government of India] by taking part in an armed insurrection in which
property is destroyed troops are attacked and goals are broken open. The
occurrence of these facts is relevant, as forming part of the general transaction,
though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter
forming part of a correspondence. Letters between the parties relating
to the subject out of which the libel arose, and forming part of the correspondence
in which it is contained, are relevant facts, though they do not contain
the libel itself.
(d) The question is, whether certain goods
ordered from B were delivered to A. The goods were delivered to several
intermediate persons successively. Each delivery is a relevant fact.
7. Facts which are the occasion, cause or
effect of facts in issue
Illustrations
(a) The question is, whether A robbed B.
The facts that, shortly before the robbery,
B went to a fair with money in his possession, and that he showed it or
mentioned the fact that he had it, to third persons, are relevant.
(b) The question is whether A murdered B.
Marks on the ground, produced by a struggle
at or near the place where the murder was committed, are relevant facts.
(c) The question is whether A Poisoned B.
The state of B's health before the symptoms
ascribed to poison, and habits of B, known to A, which afforded an opportunity
for the administration of poison, are relevant facts.
8. Motive, preparation and previous or subsequent
conduct
The conduct of any party, or of any agent
to any party, to any suit or proceeding, in reference to such suit or proceeding,
or in reference to any fact in issue therein or relevant thereto, and the
conduct of any person an offence against whom is subject of any proceeding,
is relevant, if such conduct influences or is influenced by any fact ins
issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1- The work "conduct" in this
section does not include statements, unless those statements accompany
and explain acts other than statements, but this explanation is not to
affect the relevancy of statements under any other section of this Act.
Explanation 2-When the conduct of any person
is relevant, any statement made to him or in his presence and hearing,
which affects such conduct is relevant.
Illustrations
(a) A is tried for the murder of B.
The facts that A murdered C, that B knew
that A had murdered C, and B had tried to had extort money from A by threatening
to make his knowledge public, are relevant.
(b) A sues B upon a bond for the payment
of money. B denies the making of the bond.
the fact that, at the time when the bound
was alleged to be made, B required money for a particular purpose, is relevant.
(c) A is tried for the murder of B by poison.
The fact that, before the death of B, A procured
poison similar to that which was administered to B, is relevant.
(d) The question is, whether a certain document
is the will of A.
The facts that, not long before the date
of the alleged will, A made inquiry into matters to which the provisions
of the alleged will relate that the consulted vakils in reference to making
the will, and that he caused drafts or other wills to be prepared of which
he did not approve, are relevant.
(e) A is accused of a crime.
The acts that, either before or at the time
of, or after the alleged crime, A proved evidence which would tend to give
to the facts of the case an appearance favourable to himself, or that he
destroyed or concealed evidence, or prevented the presence or procured
the absence of persons who might have been witnesses, or suborned persons
to give false evidence respecting it, are relevant.
(f) The question is, whether A robbed B.
The facts that, after B was robbed, C said
in and A's presence- "the police are coming to look for the man who robbed
B." and that immediately afterwards A ran away, are relevant.
(g) The question is, whether A owes B rupees
10,000.
The facts that A asked C to lend him money,
and that D said to C in A's presence and hearing- "I advise you not to
trust A, for he B 10,000 rupees," and that A went away without making any
answer, are relevant facts.
(h) The question is, whether A committed
a crime.
The fact that A absconded after receiving
a letter warning him that inquiry was being made for the criminal and the
contents of the letter, are relevant.
(i) A is accused of a crime.
The facts that, after the commission of the
alleged crime, he absconded, or was in possession of property of the proceeds
of property acquired by the crime, or attempted to conceal things which
were or might have been used in committing if, are relevant.
(j) The question is, whether A was ravished.
The facts that, shortly after the alleged
rape, she made a complaint relating to the crime, the circumstances under
which, and the terms in which, the complaint was made, are relevant.
The fact that, without, making a complaint,
she said that she had been ravished is not relevant as conduct under this
section, though it may be relevant.
as a dying declaration under section 32,
clause (1), or
as corroborative evidence under section 157.
(k) The question is, whether A was robbed.
The fact that, soon after the alleged robbery,
he made a complaint relating to the offence, the circumstances under which,
and the terms in which the complaint was made, are relevant.
The fact that he said he had been robbed,
without making any complaint, is not relevant as conduct under this section,
though it may be relevant.
as a dying declaration under section 32,
clause (1), or
as corroborative evidence under section 157.
9. Facts necessary to explain or introduce
relevant facts
Illustrations
(a) The question is, whether a given document
is the will of A.
The state of A's property and of his family
at the date of the alleged will may be relevant facts.
(b) A sues B for a libel imputing disgraceful
conduct to A; B affirms that the matter alleged to be libelous is true.
The position and relations of the parties
at the time when the libel was published may be relevant facts as introductory
to the facts in issue.
The particulars of a dispute between A and
B about a matter unconnected with the alleged libel are irrelevant though
the fact that there was a dispute may be relevant it is affected the relations
between A and B.
(c) A is accused of a crime.
The fact that, soon after the commission
of the crime, A absconded from his house, is relevant, under section 8
as conduct subsequent to and affected by facts in issue.
The fact that at the time when he left home
he had sudden and urgent business at the place to which he went is relevant,
as tending to explain the fact that he left home suddenly.
The details of the business on which he left
are not relevant, except in so far as they are necessary to show that the
business was sudden and urgent.
(d) A sues B for inducing C to break a contract
of service made by him with A.C,on leaving A's service, says to A-"I am
leaving you because B has made me a better offer" . This statement is a
relevant fact as explanatory of Co's conduct, which is relevant as a fact
in issue.
(e) A accused of theft, is seen to give the
stolen property to B, who is seen to give it to A's wife. B says as he
delivers it-"A says your are to hide this". B's statement is relevant as
explanatory of a fact which is part of the transaction.
(f) A is tried for a riot and is proved to
have marched at the head of a mob. The cries of the mob are relevant as
explanatory of the nature of the transaction.
10. Things said or done by conspirator in
reference to common design
Reasonable ground exists for believing that
A has joined in a conspiracy to wage war against the 11[ Government of
India]
The facts that B procured arms in Europe
for the purpose of the conspiracy, C collected in Calcutta for a like object
D persuaded persons to join the conspiracy in Bombay, E published writings
advocating the object in view at Agra, and F transmitted from Delhi to
G at Kabul the money which C had collected at Calcutta , and the contents
of a letter written by H giving an account of the conspiracy, are each
relevant, both to prove the existence of the conspiracy, and to prove A's
complicity in it, although he may have been ignorant of all of them, and
although the persons by whom they were done were strangers to him, and
although they may have taken place before he joined the conspiracy or after
he left it.
11. When facts not otherwise relevant become
relevant
(1) If they are inconsistent with any fact
is issue or relevant fact;
(2) If by themselves or in connection with
other facts they make the existence or non-existence of any fact in issue
or relevant fact highly probable or improbable
Illustration
(a) The question is, whether A committed
a crime at Calcutta on a certain day.
The fact that, on that day, A was at Lahore
is relevant.
The fact that, near the time when the crime
was committed, A was at a distance from the place where it was committed.
Which would render it highly improbable, though not impossible, that he
committed it, is relevant.
(b) The question is, whether A committed
a crime.
The circumstances are such that the crime
must have been committed either by A,B,C or D. Every fact which shows that
the crime could have been committed by no one else and that it was not
committed by either B, C or D is relevant.
12. In suits for damages, facts tending to
enable Court to determine amount are relevant
13. Facts relevant when right or custom is
in question
(a) Any transaction by which the right or
custom in question was created, claimed, modified, recognized, asserted,
or denied, or which was inconsistent with its existence;
(b) Particular instances in which the right
or custom was claimed, recognized, or exercised, or in which its exercise
was disputed, asserted or departed from.
Illustration
The question is, whether A has a right to
a fishery. A deed conferring the fishery on A's ancestors, a mortgage of
the fishery by A's father, a subsequent grant of the fishery by A's father,
irreconcilable with the mortgage, instances in which A's father exercised
the right, or in which the exercise of the right was stopped by A's neighbours,
are relevant facts.
14. Facts showing existence of state of mind,
or of body or bodily feeling
12[ Explanation 1- A fact relevant as showing
the existence of a relevant state of mind must show that the state of mind
exists, not generally, but in reference to the particular matter in question.
Explanation 2- But where, upon the trial
of a person accused of an offence, the previous commission by the accused
of an offence is relevant within the meaning of this section, the previous
conviction of such person shall also be a relevant fact.
Illustrations
(a) A is accused of receiving stolen goods
knowing them to be stolen, It is proved that he was in possession of a
particular stolen article.
The fact that at the same time, he was in
possession of many other stolen articles is relevant, as tending to show
that he knew each and all of the articles off which he was in possession
to be stolen.
13[(b) A is accused of fraudulently delivering
to another person a counterfeit coin which, at the time when he delivered
it, he know to be counterfeit.
The fact that, at the time of its delivery,
A was possessed of a number of other pieces of counterfeit is relevant.
The fact that A had been previously convicted
of delivering to another person as genuine a counterfeit coin knowing it
to be counterfeit is relevant.]
(c) A sues B for damage done by a dog of
B's which knew to be ferocious.
The facts that the dog had previously bitten
X, Y and Z, and that they had made complaints to B, are relevant.
(d) The question is whether A, the acceptor
of a bill of exchange, knew that the name of the payee was fictitious.
The fact that A had accepted other bills
drawn in the same manner before they could have been transmitted to him
by the payee if the payee, is relevant, as showing that a knew that the
payee was a fictitious person.
(e) A is accused of defaming B by publishing
an imputation intended to harm the reputation of B.
The fact of previous publications by A respecting
B, showing ill-will on the part of A towards B, is relevant, as proving
A's intention to harm B's reputation by the particular publication in question.
The facts that there was no previous quarrel
between A and B, and that A repeated the matter complained of as he heard,
it are relevant, as showing that A did not intend to harm the reputation
of B.
(f) A is sued by B for fraudulently representing
to B that C was solvent, whereby B, being induced to trust C, who was insolvent,
suffered loss.
The fact that, at the time when A represented
C to be solvent, C was supposed to be solvent by his neighbours and by
persons dealing with him, is relevant, as showing that A made the representation
in good faith.
(g) A is sued by B for the price of work
done by B, upon a house of which A is owner, by the order of C,
(h) A is accused of the dishonest misappropriation
of property which he had found, and the question is whether, when he appropriated
it, he believed in good faith that the real owner could not be found.
The fact that public notice off the loss
of the property had been given in the place where A was, is relevant, as
showing that A did not in good faith believe that the real owner of the
property could not be found.
The fact that A knew, or had reason to believe,
that the notice was given fraudulently by C, who had heard of the loss
of the property and wished to set up a false claim to it, is relevant,
as showing the fact that A knew of the notice did not disprove A's good
faith.
(i) A is charged with shooting at B with
intent to kill him. In order to show A's intent, the fact of A's having
previously shot at B may proved.
(j) A is charged with sending threatening
letters to B. Threatening letters previously sent by A to B may be proved
as showing the intention of the letters.
(k) The question is, whether A has been guilty
of cruelty towards B, his wife.
(l) The question is, whether A's death was
caused by poison.
Statements made by A during his illness as
to his symptoms, are relevant facts.
(m) The question is, what was the state of
A's health at the time when an assurance on his life was effected.
Statements made by A as to the state of his
health at or near the time in question, are relevant facts.
(n) A sues B for negligence in providing
him with a carriage for hire not reasonably fit for use, whereby A was
injured.
The fact that B's attention was drawn on
other occasions to the defect of that particular carriage, is relevant
The fact that B was habitually negligent
about the carriage which he let to hire, is irrelevant.
(o) A is tried for the murder of B by intentionally
shooting him dead.
(p) A is tried for a crime.
The fact that he said something indicating
an intention to commit that particular crime is relevant.
The fact that he said something indicating
a general disposition to commit crimes of that class is irrelevant.
The fact that A, on other occasions shot
at B is relevant; as showing his intention to shoot B.
The fact that A was in the habit of shooting
at people with intent to murder them, is irrelevant.
15. Facts bearing on question whether act
was accidental or intentional
Illustration
(a) A is accused of burning down his house
in order to obtain money for which it is insured.
The facts that a lived in several houses
successively, each of which he insured, in each of which a fire occurred,
and after each of which fires. A received payment from a different insurance
office, are relevant, as tending to show that the fires were not accidental.
(b) A is employed to receive money from the
debtors, of B. It is A's duty to make entries in a book showing the amounts
received by him. He makes an entry showing that on a particular occasion
he received less than he really did receive.
The question is, whether this false entry
was accidental or intentional.
The facts that other entries made by A in
the same book are false, and that the false entry is in each case in favour
of A, relevant.
(c) A is accused of fraudulently delivering
to B a counterfeit rupee.
The question is, whether the delivery of
the rupee was accidental.
The facts that, soon before or soon after
the delivery to B, A delivered counter feit rupees to C, D and E are relevant,
as showing that the delivery to B was not accidental.
Indian Evidence Act, 1872
CHAPTER III : FACTS WHICH NEED NOT BE PROVED
56. Fact Judicially noticeable need not be
proved
57. Facts of which Court must take judicial
notice
34[(1) All laws in force in the territory
of India :]
(2) All public Acts passed or hereafter to
be passed by Parliament 35[of the United Kingdom], and all local and personal
Acts directed by Parliament 35[of the United Kingdom] to be judicially
noticed;
(3) Articles of War for 36[ the Indian ]
Army 37[Navy or Air Force];
38[(4) The course of proceeding of Parliament
of the United Kingdom, of the Constituent Assembly of India, of Parliament
and of the legislatures established under any laws for the time being in
force in a Province or in the States; ]
(5) The accession and the sign manual of
the Sovereign for the time being of the United Kingdom of Great Britain
and Ireland ;
(6) All seals of which English Courts take
judicial notice: the seals of all the 39[Courts in 40[India]] and of all
Courts out of 40[India] established by the authority of 41[the Central
Government or the Crown Representative]; the seals of Courts of Admiralty
and Maritime Jurisdiction and of Notaries Public, and all seals which any
person is authorized to use by 42[the Constitution or an Act of Parliament
of the United Kingdom or an] Act or Regulation having the force of law
in 40[India]
(7) The accession to office, names, titles,
functions and signatures of the persons filling for the time being any
public office in any State, if the fact of their appointment to such office
is notified in 43[any Official Gazette];
(8) The existence, title and national flag
of every State or Sovereign recognized by 44[the Government of India];
(9) The divisions of time, the geographical
divisions of the world, and public festivals, fasts and holidays notified
in the Official Gazette;
(10) The territories under the dominion of
44[ the Government of India];
(11) The commencement, continuance, and termination
of hostilities between 44[the Government of India] and any other State
or body of persons;
(12) The names of the members and officers
of the Court and of their deputies and subordinate officers and assistants,
and also of all officers acting in execution of its process, and of or
all advocates, attorneys, proctors, vakils, pleaders and other persons
authorised by law to appear or act before it;
(13) The rule of the road 45[ on land or
at sea].
In all these cases, and also on all matters
of public history, literature, science or art, the Court may resort for
its aid to appropriate books or documents of reference.
If the Court is called upon by any person
to take judicial notice of any fact, it may refuse to do so unless and
until such person produces any such book or document as it may consider
necessary to enable it to do so.
58. Facts admitted need not be proved
Provided that the Court may, in its discretion,
require the facts admitted to be proved otherwise than by such admissions.
CHAPTER IV : OF ORAL EVIDENCE
59. Proof of facts by oral evidence
60. Oral evidence must be direct
if it refers to a fact which could be seen,
it must be the evidence of a witness who says who says he saw it;
if it refers to a fact which could be heard,
it must be the evidence of a witness who says he heard it;
if it refers to a fact which could be perceived
by any other sense or in any other manner, it must be the evidence of a
witness who says he perceived it by that sense or in that manner;
if it refers to an opinion or to the grounds
on which that opinion is held, it must be the evidence of the person who
holds that opinion on those grounds:
Provided that the opinions of experts expressed
in any treatise commonly offered for sale, and the grounds on which such
opinions are held, may be proved by the production of such treatises if
the author is dead or cannot be found, or has become incapable of giving
evidence, or cannot be called as a witness without an amount of delay or
expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers
to the existence to the existence or condition of any material thing other
than a document, the Court may, if it thinks fit, require the production
of such material thing for its inspection.
CHAPTER V : OF DOCUMENTARY EVIDENCE
61. Proof of contents of documents
62. Primary evidence
Explanation 1-Where a document is executed
in several parts, each part is primary evidence of the document :
Where a document is executed in counterpart,
each counterpart being executed by one or some of the parties only, each
counterpart is primary evidence as against the parties executing it.
Explanation 2- Where a number of documents
are all made by one uniform process, as in the case of printing, lithography,
or photography, each is primary evidence of the contents of the rest ;
but, where they are all copies of a common original, they are not primary
evidence of the contents of the original.
Illustrations
A person is shown to have been in possession
of a number of placards, all printed at one time from one original. Any
one of the placards is primary evidence of the contents of any other, but
no one of them is primary evidence of the contents of the original.
63. Secondary evidence
(1) certified copies given under the provisions
hereinafter contained;
(2) Copies made from the original by mechanical
processes which in themselves ensure the accuracy of the copy, and copies
compared with such copies.
(3) copies made from or compared with the
original ;
(4) counterparts of documents as against
the parties who did not execute them;
(5) oral accounts of the contents of a documents
given by some person who has himself seen it.
Illustration
(a) A photograph of an original is secondary
evidence of its contents, though the two have not been compared,if it is
proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter
made by a copying machine is secondary evidence of the contents of the
letter, if it is shown that the copy made by the copying machine was made
from the original.
(c) A copy transcribed from a copy, but afterwards
compared with the original, is secondary evidence; but he copy not so compared
is not secondary evidence of the original, although the copy from which
it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared
with the original, nor an oral account of a photograph or machine copy
of the original, is secondary evidence of the original.
64. Proof of documents by primary evidence
65. Cases in which secondary evidence relating
to documents may be given
(a) When the original is shown or appears
to be in the possession or power-
of the person against whom the document is
sought to be proved , or
of any person out of reach of, or not subject
to, the process of the Court or
of any person legally bound to produce it,
and when, after the notice mentioned in section
66, such person does not produce it;
(b) when the existence, condition or contents
of the original have been proved to be admitted in writing by the person
against whom it is proved or by his representative in interest;
(c) when the original has been destroyed
or lost, or when the party offering evidence of its contents cannot, for
any other reason not arising from his own default or neglect, produce it
in reasonable time;
(d) when the original is of such a nature
as not to be easily movable;
(e) when the original is public document
within the meaning of section 74;
(f) when the original is a document of which
a certified copy is permitted by this Act, or by any other law in force
in 40[India] to be given in evidence ;
(g) when the originals consist of numerous
accounts or other documents which cannot conveniently be examined in court
and the fact to be proved it the general result of the whole collection.
In cases (a), (c) and (d), any secondary
evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the
document, but no other kind of secondary evidence, admissible.
In case (g), evidence may be given as to
the general result of the documents by any person who has examined them,
and who is skilled in the examination of such documents.
66. Rules as to notice to produce
Provided that such notice shall not be required
in order to render secondary evidence admissible in any of the following
cases, or in any other case in which the Court thinks fit to dispense with
it:-
(1) when the document to be proved is itself
a notice ;
(2) when, from the nature of the case, the
adverse party must know that he will be required to produce it;
(3) When it appears or is proved that the
adversary has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has
the original in Court ;
(5) when the adverse party or his agent has
admitted the loss of the document;
(6) when the person in possession of the
document is out of reach of, or not subject to, the process of the Court.
67. Proof of signature and handwriting of
person alleged to have signed or written document produced
68. Proof of execution of document required
by law to be attested
47[Provided that it shall not be necessary
to call an attesting witness in proof of the execution of any document,
not being a will, which has been registered in accordance with the provisions
of the Indian Registration Act, 1908 (16 of 1908), unless its execution
by the person by whom it purports to have been executed is specifically
denied.]
69. Proof where no attesting witness found
70. Admission of execution by party to attested
document
71. Proof when attesting witness denies the
execution
72. Proof of document not required by law
to be attested
73. Comparison of signature, writing or seal
with others admitted or proved
The court may direct any person present in
Court to write any words or figures for the purpose of enabling the Court
to compare the words or figures so written with any words or figures alleged
to have been written by such person.
30[This section applies also, with any necessary
modifications, to finger - impressions.]
PUBLIC DOCUMENTS
74. Public documents
(1) documents forming the acts, or records
of the acts -
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial
and executive, 48[of any part of India or of the Commonwealth ] or of a
foreign country;
(2) Public records kept 49[ in any State
] of private documents.
75. Private documents
All other documents are private.
76. Certified copies of public documents
Explanation - Any officer who, by the ordinary
course of official duty, is authorised to deliver such copies, shall be
deemed to have the custody of such documents within the meaning of this
section.
77. Proof of documents by production of certified
copies
78. Proof of other official documents
(1) Acts, orders or notifications of 50[the
Central Government] in any of its departments, 51[or of the Crown Representative]
or of any State Government or any department of any State Government,--
by the records of the departments, certified
by the heads of those departments respectively, or by any document purporting
to be printed by order of any such Government 51[or as the case may be,
of the Crown Representative];
(2) the proceedings of the Legislatures,--
By the journals of those bodies respectively,
or by published Acts o abstracts, or by copies purporting to be printed
52[by order of the Government concerned];
(3) proclamations, orders or regulations
issued by 53 Her Majesty or by the Privy Council. Or by any department
of 53Her Majesty's Government,--
by copies or extracts contained in the London
Gazette, or purporting to be printed by the Queen's printer;
(4) the acts of the Executive or the proceedings
of the Legislature of a foreign country,--
by journals published by their authority,
or commonly received in that country as such, or by a copy certified under
the seal of the country or sovereign, or by a recognition thereof in some
54[Central Act];
(5) the proceedings of a municipal body in
55[a State],--
by a copy of such proceedings, certified
by the legal keeper thereof, or by a printed book purporting to be published
by the authority of such body;
(6) Public documents of any other class in
a foreign country,-
by the original , or by a copy certified
by the legal keeper thereof, with a certificate under the seal of a Notary
Public, or of 56[an India Consul] or diplomatic agent that the copy is
duly certified by the officer having the legal custody of the original,
and upon proof of the character of the document according to the law of
the foreign country.
PRESUMPTIONS AS TO DOCUMENTS
79.Presumption as to genuineness of certified
copies
Provided that such document is substantially
in the form and purports to be executed in the manner directed by law in
that behalf.
The Court shall also presume that any officer
by whom any such document purports to be signed or certified held when
he signed it, the official character which he claims in such paper.
80. Presumption as to documents produced
as record of evidence
that the document is genuine; that any statement
as to the circumstances under which it was taken, purporting to be made
by the person signing it, and that such evidence, statement or confession
was duly taken.
81. Presumption as to Gazettes, newspapers,
private Acts of Parliament and other documents
82. Presumption as to document admissible
in England without proof of seal or signature
and the document shall be admissible for
the same purpose for which it would be admissible in England or Ireland.
83. Presumption as to maps or plans made
by authority of Government
84. Presumption as to collections of laws
and reports of decisions
and of every book purporting to contain reports
of decisions of the courts of such country.
85. Presumption as to powers-of-attorney
86. Presumption as to certified copies of
foreign judicial records
71[An Officer who, with respect to 72[***]
any territory or place not forming part of 24[India or Her Majesty's dominions,
is a Political Agent therefor, as defined in section 3, 73[clause (43),
of the General Clause Act, 1897, shall, for the purposes of this section,
be deemed to be a representative of the 64[Central Government] 74[ in and
for the country] comprising that territory of place.
87. Presumption as to books, maps and charts
88. Presumption as to books, maps and charts
89. Presumption as to due execution, etc.,
of documents not produced
90. Presumption as to documents thirty years
old
Explanation - Documents are said to be in
proper custody if they are in the place in which, and under the care of
the person with whom, they would naturally be; but no custody is improper
if it is proved to have had a legitimate origin, or the circumstances of
the particular case are such as to render such an origin, probable.
This explanation applies also to section
81.
Illustrations
(a) A has been in possession of landed property
for a long time. He produces from his custody deeds relating to the land
showing his titles to it. The custody is proper.
(b) A produces deeds relating to landed property
of which he is the mortgagee. The mortgagor is in possession.
(c) A, a connection of B, produces deeds
relating to lands in B's possession, which were deposited with him by B
for safe custody. The custody is proper.
Indian Evidence Act, 1872
CHAPTER VI : OF THE EXCLUSION OF ORAL BY
DOCUMENTARY EVIDENCE
91. Evidence of terms of contracts, grants
and other dispositions of property reduced to form of document
Exception 1. - When a public officer is required
by law to be appointed in writing, and when it is shown that any particular
person has acted as such officer, the writing by which he is appointed
need not be proved.
Exception 2. - Wills 75[ admitted to probate
in 40[India] may be proved by the probate.
Explanation 1- This section applies equally
to cases in which the contracts grants or dispositions of property referred
to are contained in one document and to cases in which they are contained
in more documents than one.
Explanation 2-Where there are more originals
than one,one original only need be proved.
Explanation 3. - The statement, in any document
whatever, of a fact other then the facts referred to in this section, shall,
not preclude the admission of oral evidence as to the same fact.
Illustration
(a) If a contract be contained in several
letters, all the letters in which it is contained must be proved.
(b) If a contract is contained in a bill
of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in set
of three, one only need be proved.
(d) A contracts, in writing, with B, for
the delivery of indigo upon certain terms. The contract mentions the fact
that B had paid A the price of other indigo contracted for verbally on
another occasion.
Oral evidence is offered that no payment
was made for the other indigo. The evidence is admissible.
(e) A gives B receipt for money paid by B.
Oral evidence is offered of the payment.
The evidence is admissible.
92. Exclusion of evidence of oral agreement
Provision (1) - Any fact may be proved which
would invalidate any document, or which would entitle any person to any
decree or order relating thereto; such as fraud, intimidation, illegality,
want of due execution, want of capacity in any contracting party, 76[want
or failure] of consideration, or mistake in fact or law.
Proviso (2) - The existence of any separate
oral agreement as to any matter on which a document is silent, and which
is not inconsistent with its terms, may be proved. In considering whether
or not this proviso applies, the Court shall have regard to the degree
of formality of the document.
Proviso (3). - The existence of any separate
oral agreement, constituting a condition precedent to the attaching of
any obligation under any such contract, grant or disposition of property,
may be proved.
Proviso (4). - The existence of any distinct
subsequent oral agreement to rescind or modify any such contract, grant
or disposition of property, may be proved, except in cases in which such
contract grant or disposition of property is by law required to be in writing,
or has been registered according to the law in force for the time being
as to the registration of documents.
Proviso (5) - Any usage or custom by which
incidents not expressly mentioned in any contract are usually annexed to
contracts of that description, may be proved.
Provided that the annexing of such incident
would not be repugnant to, or inconsistent with the express terms of the
contract.
Proviso (6).-Any fact may be proved which
shows in what manner the language of a document is related to existing
facts.
Illustration
(a) A policy of insurance is effected on
goods "in ships from Calcutta to London". The goods are shipped in a particular
ship which is lost. The fact that that particular ship was orally excepted
from the policy cannot be proved.
(b) A agrees absolutely in writing to pay
B Rs. 1,000 on the first March, 1873. The fact that, at the same time an
oral agreement was made that the money should not be paid till the thirty-first
March cannot be proved.
(c) An estate called "the Rampore tea estate"
is sold by a deed which contains a map of the property sold. The fact that
the land not included in the map had always been regarded as part of the
estate and was meant to pass by the deed cannot be proved.
(d) A enters into a written contract with
B to work certain mines, the property of B, upon certain terms. A was induced
to do so by a misrepresentation of B's as to their value. This fact may
be proved.
(e) A institutes a suit against B for the
specific performance of a contract, and also prays that the contract may
be reformed as to one of its provisions, as that provision was interested
in it by mistake. A may prove that such a mistake was made as would be
law entitle him to have the contract reformed.
(f) A orders goods of B for the specific
performance of a contract, and also prays that the contract may be reformed
as to one of its provisions, as that provision was inserted in it by mistake.
A may prove that such a mistake was made as would be law entitle him to
have the contract reformed.
(g) A sells B a horse and verbally warrants
him sound. A gives B a paper in these words "Bought of A a horse Rs. 500".
B may prove the verbal warranty.
(h) A hires lodgings of B, and gives B a
card on which is written - "Rooms, Rs. 200 a month". A may prove a verbal
agreement that these terms were to include partial board.
A hires lodgings of B for a year, and a regularly
stamped agreement, drawn up by an attorney, is made between them, it is
silent on the subject of board, A may not prove that board was included
in the term verbally.
(i) A applies to B for a debt due to A by
sending a receipt for the money. B keeps the receipt and does not send
the money. In a suit for the amount, A may prove this.
(j) A and B make a contract in writing to
take effect upon the happening of a certain contingency. The writing is
left with B, who sues A upon it. A may show the circumstances under which
it was delivered.
93. Exclusion of evidence to explain or amend
ambiguous document
Illustrations
(a) A agrees, in writing, to sell a horse
to B for "Rs. 1,000 or Rs. 1,500".
Evidence cannot be given to show which price
was to be given.
(b) A deed contains blanks. Evidence cannot
be given of facts which would show how they were meant to be filled.
94. Exclusion of evidence against application
of document to existing facts
Illustrations
95. Evidence as to document unmeaning in
reference to existing facts
Illustrations
A sells to B, by deed, "my house in Calcutta"
A had no house in Calcutta, but it appears
that he had a house at Howrah, of which B had been in possession since
the execution of the deed.
These facts may be proved to show that the
deed related to the house at Howrah.
96. Evidence as to application of language
which can apply to one only of several persons
Illustrations
(a) A agrees to sell to B, for Rs. 1,000,
"my white horse". A has two white horses. Evidence may be given of facts
which show which of them was meant.
(b) A agrees to accompany B to Haidarabad.
Evidence may be given of facts showing whether Haidarabad in the Deckhand
or Haidarabad in Sindh was meant.
97. Evidence as to application of language
to one of two sets of facts, to neither of which the whole correctly applies
Illustration
A agrees to sell to B "my land at X in the
occupation of Y". A has land at X, but not in the occupation of Y and he
has land in the occupation of Y but it is not at X. Evidence may be given
of facts showing which he meant to sell.
98. Evidence as to meaning of illegible characters,
etc.
Illustration
A, a sculptor, agrees to sell to B, "all
my mods" A has both models and modelling tools. Evidence may be given to
show which he meant to sell.
99. Who may give evidence of agreement varying
terms of document
Illustration
A and B make a contract in writing that B
shall sell A certain cotton, to be paid for on delivery. At the same time
they make an oral agreement that three months' credit shall be given to
A. This could not be shown as between A and B, but it might be shown by
C, if it affected his interests.
100. Saving of provisions of Indian Succession
Act, relating to wills
Indian Evidence Act, 1872
PART III : PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER VII : OF THE BURDEN OF PROOF
101. Burden of proof
When a person is bound to prove the existence
of any fact, it is said that he burden of proof lies on that person.
Illustrations
(a) A desires a Court to give judgement that
B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime.
(b) A desires a Court to give judgment that
he is entitled to certain land in the possession of B, by reason of facts
which he asserts, and which B denies, to be true.
A must prove the existence of those facts.
102. On whom burden of proof lies
Illustrations
(a) A sues B for land of which B is in possession,
and which, as A asserts, was left to A by the will of C, B's father
If no evidence were given on either side,
B would b entitled to retain his possession.
Therefore the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, by
B says that it was obtained by fraud, which A denies.
If no evidence were given on either side,
A would succeed, as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B.
103. Burden of proof as to particular fact
Illustration
78[(a)] A prosecutes B for theft, and wishes
the Court to believe that B admitted the theft to C, A must prove the admission.
B wishes the Court to believe that, at the
time in question, he was elsewhere. He must prove it.
104. Burden of proving fact to be proved
to make evidence admissible
Illustrations
(a) A wishes to prove a dying declaration
by B. A must prove B's death.
(b) A wishes to prove, by secondary evidence,
the contents of a lost document.
A must prove that the document has been lost.
105. Burden of proving that case of accused
comes within exceptions.
Illustrations
(a) A, Accused of murder, alleges that, by
reason of unsoundness of mind, he did not know the nature of the act
The burden of proof is on A..,
(b) A, accused of murder, alleges that, by
grave and sudden provocation, he was deprived of the power of self control.
The burden of proof is on A.
(c) Section 325 o the Indian Penal Code 45
of 1860 provides that whoever, except in the case provided for by section
335 voluntarily causes grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous
hurt under section 325.
The burden of proving the circumstances bringing
the case under section 335 lies on A.
106. Burden of proving fact especially within
knowledge
Illustrations
(a) when a person does an act with some intention
other than that which the character and circumstances of the act suggest,
the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway
without a ticket. The burden of proving that he had a ticket is on him.
107. Burden of proving death of person known
to have been alive within thirty years
108. Burden of proving that person is alive
who has not been heard of for seven years
109. Burden of proof as to relationship in
the cases of partners, landlord and tenant, principal and agent
110. Burden of proof as to ownership
111. Proof of good faith in transactions
where one party is in relation of active confidence
Illustrations
(a) The good faith of a sale by a client
to an attorney is in question in a suit brought by the client. The burden
proving the good faith of the transaction is on the attorney.
(b) The good faith of a sale by a son just
come of age to a father is in question is a suit brought by the son. The
burden of proving the good faith of the transaction is on the father.
81[111A. Presumption as to certain offences
(a) any area declared to be a disturbed area
under any enactment, for the time being in force, making provision for
the suppression of disorder and restoration and maintenance of public order;
of
(b) any area in which there has been, over
a period of more than one month, extensive disturbance of the public peace,
and it is shown that such person had been
at a place in such area at a time when firearms or explosives were used
at or from that place to attack or resist the members of any armed forces
or the forces charged with the maintenance of public order acting in the
discharge of their duties, it shall be presumed, unless the contrary is
shown, that such person had committed such offence.
(2) The offences referred to in sub-section
(I) are the following, namely:-
(a) an offence under section 121, section
121 A, section 122 or section 123 of the Indian Penal Code (45 of 1860);
(b) criminal conspiracy or attempt to commit,
or a betment of, an offence under section 122 or section 123 of the Indian
Penal Code (45 of 1860).]
112. Birth during marriage, conclusive proof
of legitimacy
113. Proof of cession of territory
83[113A. Presumption as to abetment of suicide
by a married women
Explanation - For the purposes of this section,
"cruelty" shall have the same meaning as in section 498 A of the Indian
Panel Code (45 of 1860).
84[113B. Presumption as to dowry death
Explanation.- For the purposes of this section,
"dowry death" shall have the same meaning as in section 304B of the Indian
Penal Code(45 of 1860).]
114. Court may presume existence of certain
acts
Illustrations
The Court may presume-
(a) That a man who is in possession of stolen
goods soon after the theft is either the thief or has received the goods
knowing them to be stolen, unless he can accounts for his possession.
(b) That an accomplice is unworthy of credit,
unless he is corroborated in material particulars;
(c) That a bill of exchange, accepted or
endorsed, was accepted or endorsed for good consideration.
(d) That a thing or state of things which
has been shown to be in existence within a period shorter than that within
which such things or states of things usually cease to exist, is still
in existence;
(e) That judicial and official acts have
been regularly performed;
(f) That the common course of business has
been followed in particular cases;
(g) That evidence which could be and is not
produced would, if produced, be unfavourable to the person withholds it.
(h) That if a man refuses to answer a question
which he is not compelled to answer by law, the answer, if given would
be unfavourable to him;
(i) That when a document creating and obligation
is in the hands of the obligor, the obligation has been discharged.
But the Court shall also have regard to such
facts as the following, in considering whether such maxims do or do not
apply to the particular case before it:-
As to illustration (a) -A shop- keeper has
in his till a marked rupee soon after it was stolen, and cannot account
for its possession specifically, but is continually receiving rupees in
the course of his business;
As to illustration (b)-A person of the highest
character is tried for causing a man's death by an act of negligence in
arranging certain machinery. B, person of equally goods character, who
also took part in the took part in the arrangement, describes precisely
what was done, and admits and explains the common carelessness of A and
himself;
As to illustration (b)-A person of the highest
character is tried for causing a man's death by an act of negligence in
arranging certain machinery B, person of equality goods character, who
also took part in the arrangement, describes precisely what was done, and
admits and explains the common carelessness of A and himself;
As to illustration (b)-A crime is committed
by several persons. A, B and C, three of the criminals, are captured on
the spot and kept apart from each other. Each gives an account of the crime
implicating D, and the accounts corroborate each other in such a manner
as to render previous concert highly improbable;
As to illustration (c) - A, the drawer of
a bill of exchange, was a man of business. B, the acceptor, was young and
ignorant person, completely under A's influence;
As to illustration (d) - It is proved that
a river ran in a certain course five years ago, but it is known that there
have been floods since that time which might change its course.
As to illustration (e) - A judicial Act,
the regularity of which is in question, was performed under exceptional
circumstances;
As to illustration (f) - The question is,
whether a letter was received, it is shown to have been posted, but the
usual course of the post was interrupted by disturbances;
As to illustration (g) - A man refuses to
produce a document which would bear on a contract of small importance on
which he is sued, but which might also injure the feeling and reputation
of his family;
As to illustration (h) - A man refuses to
answer a question which he is not compelled by law to answer, but the answer
to it might cause loss to him in matters unconnected with the matter in
relation to which it is asked;
As to illustration (i) - A bond is in possession
of the obligor, but the circumstances of the case are such that he may
have stolen it.
85[114 A. Presumption as to absence of consent
in certain prosecutions for rape
Indian Evidence Act, 1872
CHAPTER VIII : ESTOPPEL
115. Estoppel
Illustration
A intentionally and falsely leads B to believe
that certain land belongs to A, and thereby induces B to buy and pay for
it.
The land afterwards becomes the property
of A, and A seeks to set aside the sale on the ground that, at the time
the sale, he had not title. He must not be allowed to prove his want to
title.
116. Estoppel of tenant; and of licence of
person in possession
117. Estoppel of acceptor of bill of exchange,
bailee or licensee
Explanation 1. - The acceptor of a bill of
exchange may deny that the bill was really drawn by the person by whom
it purports to have been drawn.
Explanation 2.- If a bailee delivers the
goods bailed to a person other than the bailor, he may prove that such
person had a right to them as against the bailor.
Indian Evidence Act, 1872
CHAPTER IX : OF WITNESSES
118. Who may testify
Explanation - A lunatic is not incompetent
to testify, unless he is prevented by his Lunacy from understanding the
questions put to him and giving rational answers to them.
119. Dumb witnesses
120. Parties to civil suit, and their wives
or husbands, Husbands or wife of person under criminal trial
121. Judges and Magistrates
Illustrations
(a) A, on his trial before the Court of Session,
says that a deposition was improperly taken by B' the Magistrate. B cannot
be compelled to answer questions as to this, except upon the special order
of a superior Court.
(b) A is accused before the Court of Session
of having given false evidence before B, a Magistrate, B cannot be asked
what A said, except upon the special order of the superior court.
(c) A is accused before the Court of Session
of attempting to murder a police officer whilst on his trial before a Session
Judge. B may be examined as to what occurred.
122. Communications during marriage
123. Evidence as to affairs of State
124. Official communications
86[125. Information as to commission of offences
Explanation - "Revenue-officer" in this section
means any officer employed in or about the business of any branch of the
public revenue.]
126. Professional communication
Provided that nothing in this section shall
protect from disclosure -
(1) Any such communication made in furtherance
of any 87[illegal] purpose.
(2) Any fact observed by any barrister, pleader,
attorney or vakil, in the course of his employment as such, showing that
any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of
such barrister, 88[pleader], attorney or vakil was or was not directed
to such fact by or on behalf on his client.
Explanation - The obligation stated in this
section continues after the employment has ceased.
Illustrations
(a) A, a client says to B, an attorney-"I
have committed forgery and I wish you to defend me".
As the defense of a man known to be guilty
is not a criminal purpose, this communication is protected from disclosure.
(b) A, a client, says to, B, an attorney-"I
wish to obtain possession of [property by the use] of forged deed on which
I request you to sue".
This communication, being made in furtherance
of a criminal purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains
B, an attorney, " to defend him. In the course of the proceedings B observes
that an entry has been made in A's account book, charging A with the sum
said to have been embezzled, which entry was not in the book at the commencement
of his employment.
This being a fact observed by B in the course
of his employment, showing that a fraud has been committed since the commencement
of the proceedings, it is not protected from disclosure.
127. Section 126 to apply to interpreters
etc.
128. Privilege not waived by volunteering
evidence
129. Confidential communications with legal
advisers
130. Production of title-deeds of witness
not a party
131. Production of documents which another
person. having possession, could refuse to produce
132. Witness not excused from answering on
ground that answer will criminate
Proviso - Provided that no such answer, which
a witness shall be compelled to give, shall subject him to any arrest or
prosecution, or be proved against him in any criminal proceeding, except
a prosecution for giving false evidence by such answer.
133. Accomplice
134. Number of witnesses
Indian Evidence Act, 1872
CHAPTER X : OF THE EXAMINATION OF WITNESSES
135. Order of production and examination
of witnesses
136. Judge to decide as to admissibility
of evidence
If the fact proposed to be proved is one
of which evidence is admissible only upon proof of some other fact, such
last-mentioned fact must be proved before evidence is given of the fact
first mentioned, unless the party undertakes to give proof of such fact,
and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends
upon another alleged fact being first proved, the Judge may, in his discretion,
either permit evidence of the first fact to be given before the second
fact is proved, or require evidence to be given of the second fact before
evidence is given of the first fact.
Illustrations
(a) It is proposed to prove a statement about
a relevant fact by a person alleged to be dead, which statement is relevant
under section 32.
The fact that the person is dead must be
proved by the person proposing to prove the statement, before evidence
is given of the statement.
(b) It is proposed to prove, by a copy, the
contents of a document said to be lost.
The fact that the original is lost must be
proved by the person proposing to produce the copy, before the copy is
produced.
(c) A is accused of receiving stolen property
knowing it to have been stolen.
It is to prove that he denied the possession
of the property.
The relevancy of the denial depends on the
identity of the property. The Court may, in its discretion, either require
the property to be identified before the denial of the possession is proved,
or permit the denial of the possession to be proved before the property
is identified.
(d) It is proposed to prove a fact (A) which
is said to have been the cause or effect of a fact in issue. There are
several intermediate facts (B, C and D) which must be shown to exist before
the fact (A) can be regarded as the cause or effect of the fact in issue.
The Court may either permit A to be proved before B, C or D is proved,
or may require proof of B, C and D before permitting proof of A.
137. Examination in chief
Cross-examination- The examination of a a
witnes by the adverse party shall be called his cross-examination.
Re-examination- The examination of a witness,
subsequent to the cross-examination by the party who called him, shall
be called his re-examination.
138. Order of examinations
The examination and cross - examination must
relate to relevant facts but the cross -examination need not be confined
to the facts to which the witness testified on his examination -in-Chief.
Direction of re-examination - The re-examination
shall be directed to the explanation of matters referred to in cross-examination
; and , if new matter is, by permission of the Court, introduced in-re-examination,
the adverse party may further cross-examine upon that matter.
139. Cross-examination of person called to
produce a document
140. Witnesses to character
141. Leading questions
142. When they must not be asked
The Court shall permit leading questions
as to matters which are introductory or undisputed, or which have, in its
opinion, been already sufficiently proved.
143. When they may be asked
144. Evidence as to matters in writing
Explanation - A witness may give oral evidence
of statements made by other persons about the contents of documents if
such statements are in themselves relevant facts.
Illustration
The question is, whether A assaulted B.
C deposes that he heard A say to D-"B wrote
a letter accusing me of theft, and I will be revenged on him". This statement
is relevant, as showing A's motive for the assault, and evidence may be
given of it, though no other evidence is given about the letter.
89[145. Cross-examination as to previous
Statements in writing
146. Questions lawful in cross-examination
(1) to test his veracity.
(2) to discover who he is and what is his
position in life, or
(3) to shake his credit, by injuring his
character, although the answer to such questions might tend directly or
indirectly to criminate him or might expose or tend directly or indirectly
t expose him to a penalty or forfeiture.
147. When witness to be compelled to answer
148. Court to decide when question shall
be asked and when witness compelled to answer
(1) such questions are proper if they are
of such a nature that the truth of the imputation conveyed by them would
seriously affect the opinion of the Courts as to the credibility of the
witness or the matter to which testifies;
(2) Such questions are improper if the imputation
which they convey relates to matters so remote in time, or of such a character,
that the truth of the imputation would not affect, or would affect in a
slight degree, the opinion of the Court as to the credibility of the witness
on the matter to which he testifies;
(3) such questions are improper if there
is a great disproportion between the importance of the imputation made
against the witness's character and the importance of his evidence;
(4) the Court may, if it sees fit, draw,
from the witness's refusal to answer, the inference that the answer if
given would be unfavourable.
149. Question not to be asked without reasonable
grounds
Illustration
(a) A barrister is instructed by an attorney
or vakil that an important witness is a dakait. This is reasonable ground
for asking the witness whether he is a dakait.
(b) A pleader is informed by a person in
Court that an important. Witness is a dakait. The information being questioned
by the pleader, gives satisfactory reason for his statement. This is a
reasonable ground for asking the witness whether he is a dakait.
(c) A witness of whom nothing whatever is
known, is asked at random whether he is a dakait. There are here no reasonable
grounds for the questions.
(d) A witness, of whom nothing whatever is
known, being questioned as to his mode of life and means of living, gives
unsatisfactory answers. This may be a reasonable ground for asking him
if he is a dakait.
150. Procedure of Court in case of question
being asked without reasonable grounds
151. Indecent and scandalous questions
152. questions intended to insult or annoy
153. Exclusion of evidence to contradict
answers to questions testing veracity
Exception -1 If a witness is asked whether
he has been previously convicted of any crime and denies it, evidence may
be given of his previous conviction.
Exception 2- If a witness is asked any question
tending to impeach his impartiality, and answers it by denying the facts
suggested, he may be contradicted.
Illustrations
The claimant is asked whether, in a former
transaction, he had not made a fraudulent claim. He denies it, Evidence
is offered to show that he did make such a claim.
The evidence is inadmissible.
(b) A witness is asked whether he was not
dismissed from a situation for dishonesty. He denies it.
Evidence is offered to show that he was dismissed
for dishonesty.
The evidence is not admissible.
(c) A affirm that on a certain day he saw
B at Lahore.
A is asked whether he himself was not on
that day at Calcutta. He denies it.
Evidence is offered to show that A was on
that day at Calcutta.
The evidence is admissible, not as contradicting
A on a fact which affects his credit, but as contradicting the alleged
fact that B was seen on the day in question in Lahore.
In each of these cases the witness might,
if his denial was false, be charged with giving false evidence.
(d) A is asked whether his family has not
had a blood feud with the family of B against whom he gives evidence.
He denies it. He may be contradicted on the
ground that the question tends to impeach his impartiality.
154. Question by party to his own witness
155. Impeaching credit of witness
(1) by the evidence of persons who testify
that they, from their knowledge of the witness believe him to be unworthy
of credit;
(2) by proof that the witness has been bribed,
or has 90[accepted] the offer of a bride, or has received any other corrupt
inducement to give his evidence;
(3) by proof of former statements inconsistent
with any part of his evidence which is liable to be contradicted;
(4) When a man is prosecuted for rape or
an attempt to ravish, it may be shown that the prosecutrix was of generally
immoral character.
Explanation - A witness declaring another
witness to be unworthy of credit may not, upon his examination-in-chief,
give reasons for his belief, but he may be asked his reasons in cross-examination,
and the answers which he gives cannot be contradicted, though, if they
are false, he may afterwards be charged with giving false evidence.
Illustrations
(a) A sues B for the price of goods sold
and delivered to B. C says that he delivered the goods to B.
Evidence is offered to show that, on a previous
occasion, he said that he had delivered goods to B.
The evidence is admissible.
(b) A is indicated for the murder of B.
C says that B, when dying, declared that
A had given B the wound of which he died.
Evidence is offered to show that, on a previous
occasion, C said that the wound was not given by A or in his presence.
The evidence admissible.
156. Questions tending to corroborate evidence
of relevant fact, admissible
Illustration
A, an accomplice, gives an account of a robbery
in which he took part. He describes various incidents unconnected with
the robbery which occurred on his way to and from the place where it was
committed.
Independent evidence of these facts may be
given in order to corroborate his evidence as to the robbery itself.
157. Former statements of witness may be
proved to corroborate later testimony as to same fact-
158. What matters may be proved in connection
with proved statement relevant under section 32 or 33
159. Refreshing memory
The witness may also refer to any such writing
made by any other person, and read by the witness within the time aforesaid,
if when he read it he knew it to be correct.
When witness may use copy of document to
refresh memory- Whenever a witness may refresh his memory by reference
to any document, he may, with the permission of the Court, refer to a copy
of such document:
Provided the Court be satisfied that there
is sufficient reason for the non - production of the original.
An expert may refresh his memory by reference
to professional treatises.
160. Testimony to facts stated in document
mentioned in section 159
Illustration
A book- keeper may testify to facts recorded
by him in books regularly kept in the course of business, if he know that
the books were correctly kept, although he has forgotten the particular
transactions entered.
89[161. Right of adverse party as to writing
used to refresh memory
162. Productions of documents
The Court, if it sees fit, may inspect the
document, unless it refers to matters of State, or take other evidence
to enable it to determine on its admissibility.
Translation of documents - If for such a
purpose it is necessary to cause any document to be translated, the Court
may, if it thinks fit, direct the translator to keep the contents secret,
unless the document is to be given in evidence : and, if the interpreter
disobeys such direction , he shall be held to have committed an offence
under section 166 of the Indian Penal Code (45 of 1860).
163. Giving, as evidence, of document called
for and produced on notice
164. Using, as evidence, of document production
of which was refused on notice
Illustration
A use B on an agreement and gives B notice
to produce it, At the trial A calls for the document and B refuses to produce
it. A gives secondary evidence of its contents. B seeks to produce documents
itself to contradict the secondary evidence given by A, or in order to
show that the agreement is not stamped. He cannot do so.
165. Judge's power to put questions or order
production
Provided that the judgement must be based
upon facts declared by this Act to be relevant, and duly proved.
Provided also that this section shall not
authorize any Judge to compel any witness to answer any question or to
produce any document which such witness would be entitled to refuse to
answer or produce under sections 121 to 131, both inclusive , if the question
were asked or the document were called for by the adverse party; nor shall
the Judge ask any question which it would be improper for any other person
to ask under section 148 or 149; nor shall he dispense with primary evidence
of any document, except in the cases herein before excepted.
166. Power of jury or assessors to put questions
CHAPTER XI : OF IMPROPER ADMISSION AND REJECTION
OF EVIDENCE
167. No new trial for improper admission
or rejection or evidence
[THE SCHEDULE repealed by the Repealing Act,
1938]
Indian Evidence Act, 1872
Foot Notes
1. Dated 15th. March 1872.
2. This Act has been extended to Berar by
the Berar Laws Act, 1941 and has been declared to be in force in the Sonthal
Parganas by the settlement Parganas Settlement Regulation, 1872 (3 of 1872);
in Panth Piploda by the Panth Piploda Laws Regulation, 1929; in the Khondmals
Districts by the Khondmals Laws Regulation, 1936; and in the Angul District
by the Angul Laws Regulation, 1936; also by notification under the Scheduled
Districts Act, 1874; in the following Scheduled Districts, namely the Districts
of Hazaribagh, Lohardaga (now the Ranchi District-see Calcutta Gazette,
1899. Pt. I, p. 44) and Manbhum and Pargana Dhalbhum and the Kolhan in
the District of Binghabhum - see GOI, 1881, Pt. 1, p. 504 (the Lohardaga
or Ranchi District included at this time the Palamau District, separated
in 1894); and the Tarai of the Province of Agra, ibid., 1876, Pt. 1, p.
505; Gajnam and Vizagapatam-see GOI, 1899, Part 1, p. 720. This Act has
been extended also to Dadra and Nagar Haveli by Reg. 6 of 1963; to Pondichery
by Reg. 7 of 1963; to Goa, Daman and Diu by Reg. 11 of 1963, and to Laccadive,
Minicoy and Amindivi Islands by Reg. 8 of 1965.
3. Substituted by Act No. 3 of 1951, for
the words "except Part B States".
4. Inserted by Act No. 18 of 1919, see also
section 127 of the Army Act.
5. Inserted by Act No. 35 of 1934.
6. The words "that Act as modified by" omitted
by the A.O. 1950.
7. See now the Navy Act, 1957.
8. Inserted by Act No. 10 of 1927.
9. Substituted by Act No. 3 of 1951 for the
definition of "State" and "States".
10 See now the Code of Civil Procedure, 1908.
11 Substituted by the A.O. 1950, for the
word "Queen".
12. Substituted by Act No. 3 of 1891, for
the earlier Explanation .
13. Substituted by Act No. 3 of 1891, for
the earlier illustration (b).
14. Inserted by Act No. 3 of 1891.
17. A Coroner has been declared to be Magistrate
for the purposes of this section, see section 10 of the Coroners Act, 1871.
18. Inserted by Act No. 3 of 1891.
19. The words "or in Burma" omitted by the
A.O. 1937.
20. See now the Code of Criminal Procedure,
1898.
21. Inserted by Act No. 3 of 1891.
22. Inserted by Act No. 18 of 1872.
23. Substituted by the A.O. 1948 for the
words "any Government in British India".
24. Inserted by the A.O. 1950.
25. Substituted for the words "Act of the
Governor General of India in Council or of the Governors in Council of
Madras or Bombay, or of the Lieutenant Governor in Council of Bengal, or
in notification of the Government appearing in the Gazette of India, or
in the Gazette of any L.G. or in any printed paper purporting to be the
London Gazette or the Government Gazette of any colony or possession of
the Queen, is a relevant fact" successively by Act No. 10 of 1914, A.O.
1937, A.O. 1948 and A.O. 1950.
26. Substituted by Act No. 3 of 1951 for
the words "an Act of the Legislature of a Part A State or a Part C State".
27. Certain words omitted by Act No. 10 of
1914.
28 Inserted by Act No. 18 of 1872.
29. Inserted by Act No. 3 of 1891.
30. Inserted by Act No. 5 of 1899.
31. Inserted by Act No. 18 of 1872.
32. Substituted by Act No. 3 of 1891.
33. Inserted by Act No. 3 of 1891.
34. Substituted by the A.O. 1950.
35. Inserted by the A.O. 1950.
36. Substituted by the A.O. 1950 for the
words "Her Majesty's".
37. Substituted by Act No. 10 of 1927 for
the words "or Navy".
38. Substituted by the A.O. 1950.
39. Substituted by the A.O. 1948 for the
words "Courts of British India".
40. Substituted by Act No. 3 of 1951 for
the words "the States".
41. Substituted by the A.O. 1937, for the
words "the G. G. or any L. G. in Council".
42. Substituted by the A.O. 1950, for the
words "any Act of Parliament of other".
43. Substituted by the A.O. 1937, for the
words "the Gazetted of India, or in the Official Gazette of any L.G.".
44 Substituted by the A.O. 1950, for the
words "the British Crown".
45. Inserted by Act No. 18 of 1872.
46. Inserted by Act No. 18 of 1872.
47. Inserted by Act No. 31 of 1926.
48. The words "whether of British India,
or of any other part of Her Majesty's dominions" have successively been
amended by the A.O. 1948 and the A.O. 1950.
49. Substituted by the A.O. 1950, for the
words "in any province".
50. Substituted by the A.O. 1937, for the
words "the Executive Government of British India"
51. Inserted by the A.O. 1937.
52. Substituted by the A.O. 1937 for the
words "by order of Government".
53. The words "Her Majesty" stand unaltered,
see the A.O. 1950.
54. Substituted by the A.O. 1937., for the
words "public Act of the Governor General of India in Council".
55. Substituted by the A.O. 1950, for the
words "a Province".
56. Substituted by the A.O. 1950, for the
words "a British Counsel".
57. Inserted by the A.O. 1948.
58. The words beginning from "in British
India" and ending with the words "to be genuine" have been successively
amended by the A.O. 1937, A. 1948 and A.O. 1950.
59. Substituted by Act No. 3 of 1951 for
the words "in a Part B State".
60. Substituted by the A.O. 1937 for the
words "the Gazette of India, or the Government Gazette of any L.G. or".
61. The word "Government" has successively
been amended by the A.O. 1937, A.O. 1948, Act No. 40 of 1949 and the A.O.
1950.
62. Substituted by the A.O. 1950 for the
words "British".
63. The words "of Her Majesty or" omitted
by the A.O. 1950.
64. Substituted by the A.O. 1937, for the
words "G.of I.".
65. Substituted by the A.O. 1950 for the
words "any country not forming part".
66. The words "a Part B State or of "omitted
by Act No. 3 of 1951.
67. The words "Her Majesty or of" omitted
by the A.O. 1950.
68. Substituted by Act No. 3 of 1891 for
the words "resident in" Substituted by Act No. 3 of 1951 for the words
"such Part B State or country".
69. Substituted by Act No. 3 of 1951 for
the words "such Part B State or country".
70. Substituted by Act No. 3 of 1951 for
the words "that State of country".
71. Substituted by Act No. 5 of 1899 for
the former paragraph which had been inserted by Act No. 3 of 1891.
72. The words "a Part B State or" omitted
by Act No. 3 of 1951.
73. Substituted by the A.O. 1950 for the
words, figures and brackets "clause (40)".
74. Substituted by Act No. 3 of 1951 for
the words "in and for that Part B State or country".
75. Substituted by Act No. 18 of 1872 for
the words "under the Indian Succession Act".
76. Substituted by Act No. 18 of 1872 for
the words "for want of failure".
77. See now the Indian Succession Act, 1925.
78. Sic. In the Act as published in Gazette
of India, 1872, Pt. IV, P. 1, there is no Illustration (b).
79. Substituted by Act No. 18 of 1872 for
the words "When".
80. Substituted by Act No. 18 of 1872 for
the words "on".
81. Inserted by Act No. 61 of 1984.
82. Inserted by the A.O. 1937, w.e.f. 1st.
April 1937.
83. Inserted by Act No. 46 of 1983.
84. Section 113B inserted by the Dowry prohibition
(Amendment) Act, 1986 dated 8th September 1986.
85. Inserted by Act No. 43 of 1983.
86. Substituted by Act No. 3 of 1887 for
the earlier section 125.
87. Substituted by Act No. 18 of 1872 for
the words "criminal".
88. Inserted by Act No. 18 of 1872.
89. See also section 172 of the Code of Criminal
Procedure, 1898.
90. Substituted by Act No. 18 of 1872 for
the words "had".
3. Interpretation clause
In this Act the following words and expressions
are use in the following sense. Unless a contrary intention appears from
the context-
Words printed, Lithographed or photographed
are documents;
A map or plan is a document;
an inscription on a metal plate or stone
is a document;
A caricature is a document.
"Evidence" - "Evidence" means and includes
Whenever it is provided by this Act that
Court may presume a fact, it may either regard such fact as proved, unless
and until it is disproved, or may call for proof of it:
Indian Evidence Act, 1872
Evidence may be given in any suit or proceeding
of the existence or non-existence of every fact in issue and of such other
facts as are hereinafter declared to be relevant, and of no others.
Facts which, though not in issue, are so
connected with a fact in issue as to form part of the same transaction,
are relevant, whether they occurred at the same time and place or at different
times and places.
Facts which are the occasion, cause, or
effect, immediately or otherwise, of relevant facts, or facts in issue,
or which constitute the state of things under which they happened, or which
afforded an opportunity for their occurrence or transaction, are relevant.
Any fact is relevant which shows or constitutes
a motive or preparation for any fact in issue or relevant fact.
Facts necessary to explain or introduce
a fact in issue or relevant fact, or which support or rebut an inference
suggested by a fact in issue or relevant fact, or which establish the identity
of any thing or person whose identity is relevant, or fix the time or place
at which any fact issue or relevant fact happened, or which show the relation
of parties by whom any such fact was transacted, are relevant in so far
as they are necessary for that purpose
Where there is reasonable ground to believe
that two or more persons have conspired together to commit an offence or
an actionable wrong, anything said, done or written by any one of such
persons in reference to their common intention, after the time when such
intention was first entertained by any one of them, is a relevant fact
as against each of the persons believed to be so conspiring, as well for
the purpose of proving the existence of the conspiracy as for the purpose
of showing that any such person was a party to it.
Illustration
Facts not otherwise relevant are relevant-
In suits in which damages are claimed, any
fact which will enable the Court to determine the amount of damages which
ought to be awarded, is relevant.
Where the question is as to the existence
of any right or custom, the following facts are relevant.
Facts showing the existence of any state
of mind, such as intention, knowledge, good faith, negligence, rashness,
I will or good-will or good-will towards any particular person, or showing
the existence of any state of body or bodily feeling, are relevant, when
the existence of any such state of mind or body or bodily feeling, is in
issue or relevant.
When there is a question whether an act
was accidental or intentional, 14[ or done with a particular knowledge
or intention,] the fact that such act formed part of a series of similar
occurrences, in each of which the person doing the act was concerned, is
relevant.
No fact of which the Court will take judicial
notice need be proved.
The Court shall take judicial notice of
the following facts:-
No fact need to be proved in any proceeding
which the parties thereto or their agents agree to admit at the hearing,
or which, before the hearing, they agree to admit by any writing under
their hands, or which by any rule of pleading in force at the fine they
are deemed to have admitted by their pleadings:
Indian Evidence Act, 1872
All facts, except the contents of documents,
may be proved by oral evidence.
Oral evidence must, in all cases whatever,
be direct; that is to say-
Indian Evidence Act, 1872
The contents of documents may be proved
either by primary or by secondary evidence.
Primary evidence means the documents itself
produced for the inspection of the Court.
Secondary evidence means and includes-
Documents must be proved by primary evidence
except in the cases hereinafter mentioned.
Secondary evidence may be given of the existence,
condition, or contents of a documents in the following cases:-
Secondary evidence of the contents of the
documents referred to in section 65, clause (a), shall not be given unless
the party proposing to give such secondary evidence has previously given
to the party in whose possession or power the document is, 46[or to his
attorney or pleader,] such notice to produce it as is prescribed by law,
and if no notice is prescribed by law, then such notice as the Court considers
reasonable under the circumstances of the case:
If a document is alleged to be signed or
to have been written wholly or in part by any person, the signature or
the handwriting of so much of the document as is alleged to be in that
person's handwriting must be proved to be in his handwriting.
If a document is required by law to be attested,
it shall not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution, if there be an attesting
witness alive, and subject to the process of the court and capable of giving
evidence :
If no such attesting witness can be found,
or if the document purports to have been executed in the United Kingdom,
it must be proved that the attestation of one attesting witness at least
is in his handwriting, and that the signature of the person executing the
document is in the handwriting of that person.
The admission of a party to an attested
document of its execution by himself shall be sufficient proof of its execution
as against him, though it be a document is in the handwriting of that person.
If the attesting witness denies or does
not recollect the execution of the document, its execution may be proved
by other evidence.
An attesting document not required by law
to be attested may be proved as if it was unattested.
In order to ascertain whether a signature,
writing, or seal is that of the person by whom it purports to have been
written or made, any signature, writing, or seal admitted or proved to
the satisfaction of the Court to have been written or made by that person
may be compared with the one which is to be proved, although that signature,
writing, or seal has not been produced or proved for any other purpose.
The following documents are public documents
:-
Every public officer having the custody
of a public document, which any person has a right to inspect, shall give
that person on demand a copy of it on payment of the legal fees therefor,
together with a certificate written at the foot of such copy that it is
a true copy of such document of part thereof, as the case may be, and such
certificate shall be dated and subscribed by such document of part thereof,
as the case may be, and such certificate shall be dated and subscribed
by such officer with his name and his name and his official title, and
shall be sealed, whenever such officer is authorised by law to make use
of a seal; and such copies so certified shall be called certified copies.
Such certified copies may be produced in
proof of the contents of the public documents or parts of the public documents
of which they purport to be copies.
The following public documents may be proved
as follows:-
The Court shall presume 57[to be genuine]
every document purporting to be a certificate, certified copy or other
document, which is by law declared to be admissible as evidence of any
particular fact and which purports to be duly certified by any officer
58[of the Central Government or of a State Government, or by any officer
59[in the State of Jammu and Kashmir] who is duly authorised thereto by
the Central Government] :
Whenever any document i.e. produced before
any Court, purporting to be a record or memorandum of the evidence, or
of any part of the evidence, given by a witness in a judicial proceeding
or before any officer authorised by law to take such evidence or to be
a statement or confession by any prisoner or accused person, taken in accordance
with law, and purporting to be signed by any Judge or Magistrate or by
any such officer as aforesaid, the Court shall presume -
The Court shall presume the genuineness
of every document purporting to be the London Gazette or 60[any Official
Gazette, or the Government Gazette ] of any colony, dependency or possession
of the British Crown, or to be a newspaper or journal, or to be a copy
of a private Act of Parliament 24[of the United Kingdom] printed by the
Queen's Printer and of every document purporting to be a document directed
by any law to be kept by any person, if such document is kept substantially
in the form required by law and is produced from proper custody.
When any document is produced before any
Court, purporting to be a document which, by the law in force for the time
being in England or Ireland, would be admissible in proof of any particular
in any Court of justice in England or Ireland, without proof of the seal
or stamp or signature authenticating it, or of the judicial or official
character claimed by the person by whom it purports to be signed, the Court
shall presume that such seal, stamp or signature is genuine, and that the
person signing it held, at the time when he signed it, the judicial or
official character which he claims,
The Court shall presume that maps or plans
purporting to be made by the authority of 61[ the Central Government or
any State Government ] were so made, and are accurate; but maps or plans
made for the purposes of any cause must be proved to be accurate.
The Court shall presume the genuineness
of every book purporting to be printed or published under the authority
of the Government of nay country, and to contain any of the laws of that
country.
The Court shall presume that every document
purporting to be a power-of- attorney, and to have been executed before,
and authenticated by, a notary public, or any Court, Judge, Magistrate,
62[Indian] Consul or Vice- Consul, or representative 63[***] of the 64[Central
Government], was so executed and authenticated.
The Courts may presume that any document
purporting to be a certified copy of any judicial record of 65[66[***]
any country and not forming part of India or] of Her Majesty's dominions
is genuine and accurate, if the document purports to be certified in any
manner which is certified by any representative of 67[***] the 64[Central
Government ] 68[in or for] 69[such country] to be the manner commonly in
use in 70[that country] for the certification of copies of judicial records.
The Courts may presume that any book to
which it may refer for information on matters of public or general interest,
and that any published map or chart, the statements of which are relevant
facts and which is produced for its inspection, was written and published
by the person and at the time and place, by whom or at which it purports
to have been written or published.
The Court may presume that a message, forwarded
from a telegraph office to the person to whom such message purports to
be addressed, corresponds with a message delivered for transmission at
the office from which the message purports to be sent ; but the Court shall
not make any presumption as to the person by whom such message was delivered
for transmission.
The Court shall presume that every document,
called for and not produced after notice to produce, was attested, stamped
and executed in the manner required by law.
Where any document, purporting or proved
to be thirty years old, is produced from any custody which the Court in
the particular case considers proper the Court may presume that the signature
and every other part of such document, which purports to be in the handwriting
of any particular person, is in that person's handwriting, and, in the
case of document executed or attested, that it was duly executed and attested
by the persons by whom it purports to be executed and attested.
When the terms of a contract, or of a grant,
or of any other disposition of property, have been reduced to the form
of a document, and in all cases in which any matter is required by law
to be reduced to the form of a document, no evidence shall be given in
proof of the terms of such contract, grant or other disposition of property,
or of such matter, except the document itself, or secondary evidence of
its contents in cases in which secondary evidence is admissible under the
provisions hereinbefore contained.
When the terms of any such contract, grantor
other disposition of property, or any matter required by law to be reduced
to the form of a document have been proved according to the last section,
no evidence of any oral agreement of statement shall be admitted, as between
the parties to any such instrument or their representatives in interest,
for purpose of contradicting, varying, adding to, or subtracting from,
its terms;
When the language used in a document is,
on its face, ambiguous or defective, evidence may not be given of facts
which would show its meaning or supply its defects.
When language used in a document is plain
in itself, and when it applies accurately to existing facts, evidence may
not be given to show that it was not meant to apply to such facts.
A sells to B, by deed, "my estate at Rampur
containing 100 bighas". A has an estate at Rampur containing 100 bighas.
Evidence may not be given of the fact that the estate meant to be sold
was one situated at a different place and of a different size.
When language use in a documents is plain
it itself, but is unmeaning in reference to existing facts, evidence may
be given to show that it was in a peculiar sense.
When the facts are such that the language
used might have been meant to apply to any one, and could not have been
meant to apply to more than one, of several persons or things, evidence
may be given of facts which show which of those persons or things its was
intended to apply to.
When the language used applies partly to
one set of existing facts, and partly to another set of existing facts,
but the whole of it does not apply correctly to either, evidence may be
given to show to which of the two it was meant to apply.
Evidence may be given to show the meaning
of illegible or not commonly intelligible characters, of foreign, obsolete,
technical, local and provincial expressions, of abbreviations and of words
used in a peculiar sense.
Persons who are not parties to a document,
or their representatives in interest, may give evidence of any facts tending
to show a contemporaneous agreement varying the terms of the document.
Nothing in this Chapter contained shall
be taken to affect any of the provisions of the Indian Succession Act77
(10 of 1865) as to the construction of wills.
Whoever desires any Court to give judgement
as to any legal right or liability dependent on the existence of facts
which he asserts, must prove that those facts exist.
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 burden of proof as to any particular
fact lies on that person who wishes the Court to believe in its existence,
unless it is provided by any law that the proof of that fact shall lie
on any particular person.
The burden of proving any fact necessary
to be proved in order to enable any person to give evidence of any other
fact is on the person who wishes to give such evidence.
When a person is accused of any offence,
the burden of proving the existence of circumstances bringing the case
within any of the General Exceptions in the Indian Penal Code 45 of 1860,
or within any special exception or proviso contained in any other part
of the same Code, or in any law defining the offence, is upon him, and
the Court shall presume the absence of such circumstances.
When any fact is especially within the knowledge
of any person, the burden of proving that fact is upon him.
When the question is whether a man is alive
or dead, and it is shown that he was alive within thirty years, the burden
of proving that he is dead is on the person who affirms it.
79[Provided that when ] the question is
whether a man is alive or dead, and it is proved that he has not been heard
of for seven years by those who would naturally have heard of him if he
had been alive, the burden of proving that he is alive is 80[shifted to]
the person who affirms it .
When the question is whether persons are
partners, landlord and tenant, or principal and agent, and it has been
shown that they have been acting as such, the burden of proving that they
do not stand, or have ceased to stand, to each other in those relationships
respectively, is on the person who affirms it.
When the question is whether any person
is owner of anything of which he is shown to be in possession, the burden
of proving that he is not the owner is on the person who affirms that he
is not the owner.
Where there is a question as to the good
faith of a transaction between parties, one of whom stands to the other
in a position of active confidence, the burden of proving the good faith
of a transaction between parties, one of whom stands to the other in a
position of active confidence, the burden of proving the good faith of
the transaction is on the party who is in a position of active confidence.
(1) Where a person is accused of having
committed any offence specified in sub-section (2), in -
The fact that any person was born during
the continuance of a valid marriage between his mother and man, or within
two hundred and eighty days after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is the legitimate son of that
man, unless it can be shown that the parties to the parties to the marriage
had no access to each other at any time when he could have been begotten.
A notification in the official Gazette that
any portion of British territory has 82[before the commencement of Part
III of the Government of India, Act, 1935] been coded to any Native State,
Prince or Ruler shall be conclusive proof that a valid cession of such
territory took place at the date mentioned in such notification.
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 circumstance s of the case, that such suicide
had been abetted by her husband or by such relative of her husband.
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.
The court may presume the existence of any
fact which it thinks likely to have happened, regard being had to the common
course of natural events, human conduct and public and private business,
in their relation to the facts of the particular case.
In a prosecution for rape under clause (a)
or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of
sub-section (2) or section 376 of the Indian Penal Code, (45 of 1860) where
sexual intercourse by the accused is proved and the question is whether
it was without the consent of the woman alleged to have been raped and
she states in her evidence before the Court that she did not consent, the
Court shall presume that she did not consent.]
When one person has, by his declaration,
act or omission, intentionally caused or permitted another person to believe
a thing to be true and to act upon such belief, neither he nor his representative
shall be allowed, in any suit or proceeding between himself and such person
or his representative, to deny the truth of that thing.
No tenant of immovable property or person
claiming through such tenant, shall, during the continuance of the tenancy,
be permitted to deny that the landlord of such tenant had, at the beginning
of the tenancy, a title to such immovable property; and no person who came
upon any immovable property by the license of the person in possession
thereof, shall be permitted to deny that such person had a title to such
possession at the time when license was given.
No acceptor of a bill of exchange shall
be permitted to deny that the drawer had authority to draw such bill or
to endorse it; nor shall any bailee or licensee be permitted to deny that
his bailor or licensor had, at the time when the bailment or licence commenced,
authority to make such bailment or grant such licence.
All persons shall be competent to testify
unless the Court considers that they are prevented form understanding the
question put to them, or from giving rational answers to those questions,
by tender years, extreme old age, disease, whether of body or mind, or
any other cause of the same kind.
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.
In all civil proceedings the parties to
the suit, and the husband or wife of any party to the suit, shall be competent
witnesses. In criminal proceedings against any person, the husband or wife
of such person , respectively, shall be a competent witness.
No Judge or Magistrate shall, except upon
the special order to some Court to which he is subordinate, be compelled
to answer any questions as to his own conduct in Court as such Judge or
Magistrate, or as to anything which came to his knowledge in Court as such
Judge or Magistrate; but he may be examined as to other matters which occurred
in his presence whilst he was so acting.
No person who is or has been married shall
be compelled to disclose any communication made to him during marriage
by any person to whom he is or has been married ; nor shall he be permitted
to disclose any such communication , unless the person who made it, or
his representative in interest, consents, except in suits between married
persons, or proceedings in which one married person is prosecuted for any
crime committed against the other.
No one shall be permitted to give any evidence
derived from unpublished official records relating to any affairs of State,
except with the permission of the officer at the head of the department
concerned, who shall give or withhold such permission as he thinks fit.
No public officer shall be compelled to
disclose communications made to him in official confidence, when he considers
that the public interests would suffer by the disclosure.
No Magistrate or Police -Officer shall be
compelled to say whence he got any information as to the commission of
any offence, and no Revenue- Officer shall be compelled to say whence he
got any information as to the commission of any offence against the public
revenue.
No barrister, attorney, pleader or vakil
shall at any time be permitted, unless with his client's express consent,
to disclose any communication made to him in the course and for the purpose
of his employment as such barrister, pleader, attorney or vakil, by or
on behalf of his client, or to state the contents or condition of any document
with which he has become acquainted in the course and for the purpose of
his professional employment, or to disclose any advice given by him to
his client in the course and for the purpose of such employment:
The provision of section 126 shall apply
to interpreters, and the clerks or servants of barristers, pleaders, attorneys
and vakils.
If any party to a suit gives evidence therein
at his own instance or otherwise, he shall not be deemed to have consented
thereby to such disclosure as is mentioned in section 126; and if any party
to a suit or proceeding calls any such barrister, 88[ pleader], attorney
or vakil as a witness, he shall be deemed to have consented to such disclosure
only if he questions such barrister, attorney or vakil or matters which,
but for such question, he would not be at liberty to disclose.
No one shall be compelled to disclose to
the Court any confidential communication which has take place between him
and his legal professional adviser, unless he offers himself as a witness,
in which case he may be complete to disclose any such communication as
may appear to the Court necessary to be known in order to explain any evidence
which he has given, but no others.
No witness who is not a party to a suit
shall be compelled to produce his title-deeds to any property, or any document
in virtue of which he holds an property as pledges or mortgagee or any
document the production of which might tend to criminate him, unless he
has agreed in writing to produce them with the person seeking the production
of such deeds or some person through whom he claims.
No one shall be compelled to produce documents
in his possession, which any other person would be entitled to refuse to
produce if they were in his possession, unless such last -mentioned person
consents to their production.
A witness shall not be excused from answering
any question as to any matter relevant to the matter in issue in any suit
or in any civil or criminal proceeding, upon the ground that the answer
to such question will criminate, or may tend directly or indirectly to
criminate, such witness, or that it will expose, or tend directly or indirectly
to expose, such witness to a penalty or forfeiture of any kind:
An accomplice shall be a competent witness
against an accused person; and a conviction is not illegal merely because
it proceeds upon the uncorroborated testimony of an accomplice.
No particular number of witnesses shall
in any case be required for the proof of any fact.
The order in which witness are produced
and examined shall be regulated by the law and practice for the time being
relating to civil and criminal procedure respectively, and, in the absence
of any such law, by the discretion of the Court.
When either party proposes to give evidence
of any fact, the Judge may ask the party proposing to give the evidence
in what manner the alleged fact, if proved, would be relevant; and the
Judge shall admit the evidence if he thinks that the fact, if proved, would
be relevant, and not otherwise.
The examination of a witness by the party
who calls him shall be called his examination in-chief.
Witnesses shall be first examined-in-chief,
then (if the adverse party so desires) cross -examined, then (if the party
calling him so desires) re-examined.
A person summoned to produce a document
does not become a witness by the mere fact that he produces it and cannot
be cross examined unless and until he is called as a witness.
Witnesses to character may be cross-examined
and re-examined.
Any question suggesting the answer which
the person putting it wishes or expects to receive is called a leading
question.
Leading questions must not, if objected
to by the adverse party be asked in an examination-in-chief, or in a re-examination,
except with the permission of the Court.
Leading questions may be asked in cross-
examination.
Any witness may be asked, whilst under examination
whether any contract, grant or other disposition of property, as to which
he is giving evidence, was not contained in a document, and if he says
that it was, or if he is about to make any statement as to the contents
of any document, which, in the opinion of the Court, ought to be produced,
the adverse party may object to such evidence being given until such document
is produced, or until facts have been proved which entitle the party who
called the witness to give secondary evidence of it.
A witness may be cross- examined as to previous
statements made by him in writing or reduced into writing or reduced into
writing, and relevant to matters in question, without such writing being
shown to him, or being proved; but, if it is intended to contradict him
by the writing, his attention must, before the writing can be proved, be
called to those parts of its which are to be used for the purpose of contradicting
him.
When a witness is cross-examined, he may,
in addition to the questions herein before referred to be asked any questions
which tend-
If any such question relates to a matter
relevant to the suit or proceeding, the provisions of section 132 shall
apply thereto.
If any such question relates to a matter
not relevant to the suit or proceeding, except in so far as it affects
the credit of the Witness by injuring his character, the Court shall decide
whether or not the witness shall be compelled to answer it, and may, if
it thinks fit, warn the witness that he is not obliged to answer it. In
exercising its discretion, the Court shall have regard to the following
considerations:-
No such question as is referred to in section
148 ought to be asked, unless the person asking it has reasonable grounds
for thinking that the imputation which it conveys is well-founded.
If the Court is of opinion that any such
question was asked without reasonable grounds. It may, if it was asked
by any barrister, pleader, vakil or attorney, report the circumstances
of the case to the High Court or other authority to which such barrister,
pleader, vakil or attorney is subject in the exercise of his profession.
The Court may forbid any questions or inquiries
which it regards as indecent or scandalous, although such questions or
inquiries may have some bearing on the questions before the Court, unless
they relate to facts in issue, or to matters necessary to be known in order
to determine whether or not the facts in issue exited.
The Court shall forbid any question which
appears to it to be intended to insult or annoy, or which, though proper
in itself, appears to the court need lessly offensive in form.
When a witness has been asked and has answered
any question which is relevant to the inquiry only in so far as it tends
to shake his credit by injuring his character, no evidence shall be given
to contradict him; but, if he answers falsely, he may afterwardas be charged
with giving false evidence.
(a) A claim against an underwriter is resisted
on the ground of fraud.
The Court may, in its discretion, permit
the person who calls a witness to put any questions to him which might
be put in cross examination by the adverse party.
The credit of a witness may be impeached
in the following ways by the adverse party, or, with the consent of the
Court, by the party who calls him:-
When a witness whom it is intended to corroborate
gives evidence of any relevant fact, he may be questioned as to any other
circumstances which he observed at or near to the time or place at which
such relevant fact occurred,if the Court is of opinion that such circumstances,
if proved, would corroborate the testimony of the witness as to the relevant
fact which he testifies.
In order to corroborate the testimony of
a witness, any former statement made by such witness relating to the same
fact at or about the time when the fact took place, or before any authority
legally component to investigate the fact, may be proved.
Whenever any statement, relevant under section
32 or 33, is proved, all matters may be proved either in order to contradict
or to corroborate it, or in order to impeach or confirm the credit of the
person by whom it was made, which might have been proved if that person
had been called as a witness and had denied upon cross -examination the
truth of the matter suggested.
A witness may, while under examination,
refresh his memory by referring to any writing made by himself at the time
of the transaction concerning which he is questioned, or so soon afterwards
that the Court considers it likely that the transaction was at that time
fresh in his memory.
A witness may also testify to facts mentioned
in any such document as is mentioned is section 159, although he has no
specific recollection of the facts themselves, if he is sure that the facts
were correctly recorded in the document.
Any writing referred to under the provisions
of the two last preceding sections must be produced and shown to the adverse
party if he requires it; such party may, if he pleases, cross-examine the
witness thereupon.
A witness summoned to produce a document
shall, if it is in his possession or power, bring it to Court, notwithstanding
any objection which there may be to its production or to its admissibility.
The validity of any such objection shall be decided on by the Court.
When a party calls for a document which
he has given the other party notice to produce, and such document is produced
and inspected by the party calling for its production, he is bound to give
it as evidence if the party producing it requires him to do so.
When a party refuses to produce a document
which he has had notice to produce, he cannot afterwards use the document
as evidence without the consent of the other party or the order of the
Court.
The Judge may, in order to discover or to
obtain proper proof of relevant facts, ask any question he pleases, in
any form, at any time, of any witness, or of the parties about any fact
relevant of irrelevant; and may order the production of any document or
thing; and neither the parties nor their agents shall be entitled to make
any objection to any such question or order, nor, without the leave of
the Court, to cross-examine any witness upon any answer give in reply to
any such question:
In cases tried by jury or with assessors,
the jury or assessors may put any questions to the witnesses, through or
by leave of the Judge, which the Judge himself might put and which he considers
proper.
Indian Evidence Act, 1872
This improper admission or rejection of
evidence shall not be ground of itself for a new trial or reversal of any
decision in any case, if it shall appear to the court before which such
objection is raised that, independently of the evidence objected to and
admitted, there was sufficient evidence to justify the decision, or that,
if the rejected evidence had been received, it ought not to have varied
the decision.