Law relating to Evidence

A confession, is received in evidence for the same reason as an admission, and like an admission it must be considered as a whole. Further, there can be an admission either in a civil or a criminal proceedings, whereas there can be a confession only in criminal proceedings. An admission need not be voluntary to be relevant, though it may affect its weight; but a confession to be relevant, must be voluntary. There can be relevant admission made by an agent or even a stranger, but, a confession to be relevant must be made by the accused himself. A confession of a co-accused is not strictly relevant, though it may be taken into consideration, under Section 30 in special circumstances.

Confessions are classified as:

(a)judicial, and

(b)extra-judicial.

Judicial confessions are those made before a Court or recorded by a Magistrate under Section 164 of the Criminal Procedure Code, 1973 after following the prescribed procedure such as warning the accused that he need not to make the confession and that if he made it, it would be used against him. Extra-judicial confessions are those which are made either to the police or to any person other than Judges and Magistrates as such.

An extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence. It will have to be proved just like any other fact. The value of the evidence depends upon the truthfulness of the witness to whom it is made.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2022, Q. 6A(i) (Syllabus 2017).

Confessions are classified as: (a) judicial, and (b) extra-judicial. Judicial confessions are those made before a Court or recorded by a Magistrate under Section 164 of the Criminal Procedure Code after following the prescribed procedure such as warning the accused that he need not to make the confession and that if he made it, it would be used against him. Extra-judicial confessions are those which are made either to the police or to any person other than Judges and Magistrates as such.

An extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence. It will have to be proved just like any other fact. The value of the evidence depends upon the truthfulness of the witness to whom it is made.

In Ram Khilari v. State of Rajasthan, AIR 1999 SC 1002, the Supreme Court held that where an extra-judicial confession was made before a witness who was a close relative of the accused and the testimony of said witness was reliable and truthful, the conviction on the basis of extra judicial confession is proper.

In another case, the Supreme Court has further held that the law does not require that the evidence of an extra-judicial confession should be corroborated in all cases.

When such confession was proved by an independent witness who was a responsible officer and one who bore no animus against the accused, there is hardly any justification to disbelieve it. Also, where the Court finds that the confession made by the accused to his friend was unambiguous and unmistakably conveyed that the accused was the perpetrator of the crime and the testimony of the friend was truthful, reliable and trustworthy, a conviction based on such extra-judicial confession is proper and no corroboration is necessary.

Therefore, in the given situation, the Extra-Judicial confession may be relevant.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2021, Q. 6A(iii) (Syllabus 2017).

A fact is said to be logically relevant to another when it bears such casual relation with the other as to render probably the existence or non-existence of the latter. All facts logically relevant are not, however, legally relevant. Relevancy under the Indian Evidence Act, 1872(the Act) is not a question of pure logic but of law, as no fact, however logically relevant, is receivable in evidence unless it is declared by the Act to be relevant. Of course every fact legally relevant will be found to be logically relevant; but every fact logically relevant is not necessarily relevant under the Act as common sense or logical relevancy is wider than legal relevancy. A judge might in ordinary transaction, take one fact as evidence of another and act upon it himself, when in Court, he may rule that it was legally irrelevant. And he may exclude facts, although logically relevant, if they appear to him too remote to be really material to the issue.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2022, Q. 6A(ii) (Syllabus 2017).

Estoppel is based on the maxim ‘allegans contratia non est audiendus’ i.e. a person alleging contrary facts should not be heard. The principles of estoppel covers one kind of facts. It says that man cannot approbate and reprobate, or that a man cannot blow hot and cold, or that a man shall not say one thing at one time and later on say a different thing.

The doctrine of estoppel is based on the principle that it would be most inequitable and unjust that if one person, by a representation made, or by conduct amounting to a representation, has induced another to act as he would not otherwise have done, the person whom the representation should not be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person who acted on it.

(Sorat Chunder v. Gopal Chunder).

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 6(a) (Syllabus 2017).

The facts of the given situation are similar to case of Biju Patnaik University of Tech. Orissa v. Sairam College, AIR 2010 (NOC) 691 (Orissa) decided by High Court of Orissa. In this case one private university permitted to conduct special examination of students prosecuting studies under one time approval policy.

After inspection, 67 students were permitted to appear in the examination and their results declared.

However, university declined to issue degree certificates to the students on the ground that they had to appear for further examination for another condensed course as per syllabus of university. It was held that once students appeared in an examination and their results declared, the university is estopped from taking decision withholding degree certificate after declaration of results.

In the given situation the relevant rule of evidence is doctrine of estoppel. The general rule of estoppel is 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. (Section 115 of Indian Evidence Act, 1872).

It is based on the principle that it would be most inequitable and unjust that if one person, by a representation made, or by conduct amounting to a representation, has induced another to act as he would not otherwise have done, the person who made the representation should not be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person who acted on it (Sorat Chunder v. Gopal Chunder).

In the given situation, doctrine of estoppel can apply and the university can be estopped from further examining the students on additional subjects.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2023, Q. 1(a) (Syllabus 2017).

Section 115 of the Indian Evidence Act, 1872 provides a general rule of estoppel. When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. However, there is no estoppel against the Statute. Where the Statute prescribes a particular way of doing something, it has to be done in that manner only. Other relevant are Sections 116 which is relating to Estoppel of tenants and of licensee of person in possession and 117 which is relating to Estoppel of acceptor of bill of exchange, bailee or licensee.

Principle of Estoppel Estoppel is based on the maxim ‘alleganscontratia non estaudiendus’ i.e. a person alleging contrary facts should not be heard. The principles of estoppel covers one kind of facts. It says that man cannot approbate and reprobate, or that a man cannot blow hot and cold, or that a man shall not say one thing at one time and later on say a different thing.

The doctrine of estoppel is based on the principle that it would be most inequitable and unjust that if one person, by a representation made, or by conduct amounting to a representation, has induced another to act as he would not otherwise have done, the person who made the representation should not be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person who acted on it (Sorat Chunder v. Gopal Chunder).

Estoppel is a rule of evidence and does not give rise to a cause of action. Estoppel by record results from the judgement of a competent Court. It was laid down by the Privy Council in Mohori Bibee v. Dharmodas Ghosh, (1930) 30 Cal. 530 PC, that the rule of estoppel does not apply where the statement is made to a person who knows the real facts represented and is not accordingly misled by it. The principle is that in such a case the conduct of the person seeking to invoke rule of estoppel is in no sense the effect of the representation made to him. The main determining element is not the effect of his representation or conduct as having induced another to act on the faith of such representation or conduct.

In Biju Patnaik University of Tech. Orissa v. Sairam College, AIR 2010 (NOC) 691 (Orissa), one private university permitted to conduct special examination of students prosecuting studies under one time approval policy. After inspection, 67 students were permitted to appear in the examination and their results declared. However, university declined to issue degree certificates to the students on the ground that they had to appear for further examination for another condensed course as per syllabus of university. It was held that once students appeared in an examination and their results declared,the university is estopped from taking decision withholding degree certificate after declaration of results.

Alternate Answer

Section 121 of the Bharatiya Sakshya Adhiniyam, 2023 provides a general rule of estoppel. When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. However, there is no estoppel against the Statute. Where the Statute prescribes a particular way of doing something, it has to be done in that manner only. Other relevant are Sections 122 which is relating to Estoppel of tenants and of licensee of person in possession and 123 which is relating to Estoppel of acceptor of bill of exchange, bailee or licensee.

Principle of Estoppel Estoppel is based on the maxim ‘alleganscontratia non estaudiendus’ i.e. a person alleging contrary facts should not be heard. The principles of estoppel covers one kind of facts. It says that man cannot approbate and reprobate, or that a man cannot blow hot and cold, or that a man shall not say one thing at one time and later on say a different thing.

The doctrine of estoppel is based on the principle that it would be most inequitable and unjust that if one person, by a representation made, or by conduct amounting to a representation, has induced another to act as he would not otherwise have done, the person who made the representation should not be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person who acted on it (Sorat Chunder v. Gopal Chunder).

Estoppel is a rule of evidence and does not give rise to a cause of action. Estoppel by record results from the judgement of a competent Court. It was laid down by the Privy Council in Mohori Bibee v. Dharmodas Ghosh, (1930) 30 Cal. 530 PC, that the rule of estoppel does not apply where the statement is made to a person who knows the real facts represented and is not accordingly misled by it. The principle is that in such a case the conduct of the person seeking to invoke rule of estoppel is in no sense the effect of the representation made to him. The main determining element is not the effect of his representation or conduct as having induced another to act on the faith of such representation or conduct.

In Biju Patnaik University of Tech. Orissa v. Sairam College, AIR 2010 (NOC) 691 (Orissa), one private university permitted to conduct special examination of students prosecuting studies under one time approval policy. After inspection, 67 students were permitted to appear in the examination and their results declared. However, university declined to issue degree certificates to the students on the ground that they had to appear for further examination for another condensed course as per syllabus of university. It was held that once students appeared in an examination and their results declared,the university is estopped from taking decision withholding degree certificate after declaration of results.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2024, Q. 2A(ii) (Syllabus 2017).

Under Section 121 of the Bharatiya Sakshya Adhiniyam, 2023, the general rule of estoppel is that 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. Estoppel is based on the maxim ‘allegans contratia non est audiendus’ i.e. a person alleging contrary facts should not be heard.

The principles of estoppel cover one kind of facts. It says that a man cannot approbate and reprobate, or that a man cannot blow hot and cold, or that a man shall not say one thing at one time and later on say a different thing.

The doctrine of estoppel is based on the principle that it would be most inequitable and unjust that if one person, by a representation made, or by conduct amounting to a representation, has induced another to act as he would not otherwise have done, the person who made the representation should not be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person who acted on it.

Based on above provisions, Bhavesh has a strong legal defence against the eviction suit filed by Arjun's father, primarily relying on the Doctrine of Estoppel. Arjun leased the property, and Bhavesh acted on this by entering a lease agreement and investing substantial money.

Crucially, if Arjun's father (the apparent true owner) remained silent and allowed Bhavesh to renovate and run the business for two and half years without objection, his silence constitutes an "omission" or "acquiescence." Under Section 121, Arjun's father is to be estopped now from denying Arjun's authority to lease the property. He cannot belatedly claim Arjun had "no authority" after allowing Bhavesh to act on that belief for two and half years.

Therefore, Bhavesh should not be asked to evict the premises by Arjun’s father.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2026, Q. 4(b) (Syllabus 2022).

There are some facts of which evidence cannot be given though they are relevant, such as facts coming under Sections 122, 123, 126 and 127 of the Indian Evidence Act, 1872, where evidence is prohibited. They are also referred to as ‘privileged communications’ A witness though compellable to give evidence is privileged in respect of particular matters within the limits of which he is not bound to answer questions while giving evidence. These are based on public policy and are (i) Evidence of a Judge or Magistrate in regard to certain matters(Section 121) (ii) Communications during marriage(Section

122) (iii) Affairs of State(Section 123) (iv) Official Communications(Section 124) (v)

Source of Information of a Magistrate or Police officer or Revenue officer as to commission of an offence or crime(Section 125) (vi) In the case of Professional Communication between a client and his barrister, attorney or other professional or legal advisor (Sections 126 and 129). But this privilege is not absolute and the client is entitled to waive it.

Under Section 122 of the Act, communication between the husband and the wifeduring marriage is privileged and its disclosure cannot be enforced. This provision is based on the principle of domestic peace and confidence between the spouses.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2019, Q. 1(c) (Syllabus 2017).

Under the Indian Evidence Act, 1872(the Act) there are some facts of which evidence cannot be given though they are relevant, such as facts coming under Sections 121 to 129 of the Act, where evidence is prohibited under those Sections. They are also referred to as 'privileged communications'.

A witness though compellable to give evidence is privileged in respect of particular matters within the limits of which he is not bound to answer questions while giving evidence. These are based on public policy.

(1)Evidence of Judges and Magistrates Under Section 121 of the Act, no Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate.

He may be examined as to other matters which occurred in his presence whilst he was so acting.

(2)Communications during marriage Under Section 122 of the Act, communication between the husband and the wife during marriage is privileged and its disclosure cannot be enforced. This provision is based on the principle of domestic peace and confidence between the married couple. The Section contains two parts: the first part deals with the privilege of the witness while the second part of the Section deals with the privilege of the husband or wife of the witness.

(3)Evidence as to affairs of State Section 123 of the Act applies only to evidence derived from unpublished official record relating to affairs of State. According to Section 123, 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.

(4)Official Communications Section 124 of the Act talks about official communications. It states that a public officer cannot be compelled to disclose any communication made to him in official confidence if he believes that such disclosure could harm the public interests.

(5)Secret Informants Section 125 of the Act states that a Magistrate or a Police Officer cannot be compelled to reveal as to how they got any information regarding the commission of a crime.

The section further states that a Revenue Officer cannot be compelled to reveal as to how he got any information regarding the commission of any offence against the public revenue.

(6)Professional communications Section 126 to 129 deal with the professional communications between a legal adviser and a client, which are protected from disclosure. A client cannot be compelled and a legal adviser cannot be allowed without the express consent of his client to disclose oral or documentary communications passing between them in professional confidence. The rule is founded on the impossibility of conducting legal business without professional assistance and securing full and unreserved communication between the two. Under Sections 126 and 127 neither a legal adviser i.e., a barrister, attorney, pleader or vakil (Section 126) nor his interpreter, clerk or servant (Section

128) can be permitted to disclose any communication made to him in the course and for the purpose of professional employment of such legal adviser or to state the contents or condition of any document with which any such person has become acquainted in the course and for the purpose of such employment.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 5(a) (Syllabus 2017).

There are some facts of which evidence cannot be given though they are relevant, such as facts coming under Sections 122, 123, 126 and 127 of the Indian Evidence Act,

1872. These Commutations between parties are known as Privileged Communication.

Section 126 to 129 of the Indian Evidence Act, 1872 deals with the professional communications between a legal adviser and a client, which are protected from disclosure.

A client cannot be compelled and a legal adviser cannot be allowed without the express consent of his client to disclose oral or documentary communications passing between them in professional confidence. The rule is founded on the impossibility of conducting legal business without professional assistance and securing full and unreserved communication between the two.

Under Sections 126 and 127 neither a legal adviser i.e. a barrister, attorney, pleader or vakil nor his interpreter, clerk or servant can be permitted to disclose any communication made to him in the course and for the purpose of professional employment of such legal adviser or to state the contents or condition of any document with which any such person has become acquainted in the course and for the purpose of such employment.

In the present case, the communication made by Ramesh is protected from disclosure.

Evidence given by Ashwin regarding this communication shall not be admissible in the court.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2021, Q. 6A(ii) (Syllabus 2017).

Admissions are define under section 17 of the Indian Evidence Act, 1872(the Act). It states:

An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, mentioned in the Act after section 17.

Sections 24 to 30 of the Act deal with confessions. However, the Act does not define a confession but includes in it admissions of which it is a species. Thus confessions are special form of admissions. Whereas every confession must be an admission but every admission may not amount to a confession.

A confession, however, is received in evidence for the same reason as an admission, and like an admission it must be considered as a whole. Further, there can be an admission either in a civil or a criminal proceedings, whereas there can be a confession only in criminal proceedings. An admission need not be voluntary to be relevant, though it may affect its weight; but a confession to be relevant, must be voluntary.

There can be relevant admission made by an agent or even a stranger, but, a confession to be relevant must be made by the accused himself. A confession of a co-accused is not strictly relevant, though it may be taken into consideration, under Section 30 of the Act in special circumstances.

In view of the above, it can be said that “Every confession must be an admission but every admission may not amount to a confession”.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2023, Q. 6(c) (Syllabus 2017).

(i)Section 17 of the Indian Evidence Act, 1872 provides that an admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, mentioned in Indian Evidence Act, 1872. An admission may be made by a party, by the agent or predecessor-in-interest of a party, by a person having joint propriety of pecuniary interest in the subject matter according to Section 18 or by a “reference” according to Section 20.

Section 20 of Indian Evidence Act, 1872 provides statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.

Illustration to section 20 provides as under:

A says to B––“Go and ask C, C knows all about it”. C’s statement is an admission.

In view of the above it can be said that Statement of C that ‘Horse if Sound’ is admission.

(ii)Section 122 of Indian Evidence Act, 1872 provides that 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.

In view of the above provision, it can be said that A’s wife cannot act witness unless the person who made communication, or his representative in interest, consents.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 6(b) (Syllabus 2022).

Admissions An admission is defined in Section 17 of the Indian Evidence Act, 1872(the Act) as a statement, oral or documentary or contained in electronic form which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances mentioned under Sections 18 to 20 of the Act. Thus, whether a statement amounts to an admission or not depends upon the question whether it was made by any of the persons and in any of the circumstances described in Sections 18-20 and whether it suggests an inference as to a fact in issue or a relevant fact in the case. Thus, admission may be verbal or contained in documents as maps, bills, receipts, letters, books etc. (However, the word ‘statement’ has not been defined in the Act.

Therefore, the ordinary dictionary meaning is to be followed which is “something that is stated.”) An admission may be made by a party, by the agent or predecessor-in-interest of a party, by a person having joint propriety of pecuniary interest in the subject matter (Section 18) or by a “reference”

(Section 20).

Example: The question is, whether a horse sold by A to B is sound. A says to B-”Go and ask C, C knows all about it.” C’s statement is an admission. This is an example of reference.

An admission is the best evidence against the party making the same unless it is untrue and made under the circumstances which does not make it binding on him. An admission by the Government is merely relevant and non-conclusive, unless the party to whom they are made has acted upon and thus altered his detriment. An admission must be clear, precise, not vague or ambiguous. In Basant Singh v. Janky Singh, (1967) 1 SCR 1, the Supreme Court held:

“(1) Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admission. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. However, this admission cannot be regarded as conclusive and it is open to the party to show that it is not true.

(2)All the statements made in the plaint are admissible as evidence. The Court is, however, not bound to accept all the statements as correct. The Court may accept some of the statements and reject the rest.” Admission means conceding something against the person making the admission. That is why it is stated as a general rule (the exceptions are in Section 21), that admissions must be self-harming; and because a person is unlikely to make a statement which is self-harming unless it is true evidence of such admissions as received in Court. These Sections deal only with admissions oral and written. Admissions by conduct are not covered by these sections.

The relevancy of such admissions by conduct depends upon Section 8 and its explanations. Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the record produced is in question.

Distinction between Confessions and Admissions A confession, however, is received in evidence for the same reason as an admission, and like an admission it must be considered as a whole. Further, there can be an admission either in a civil or a criminal proceeding, whereas there can be a confession only in criminal proceedings. An admission need not be voluntary to be relevant, though it may affect its weight; but a confession to be relevant, must be voluntary. There can be relevant admission made by an agent or even a stranger, but, a confession to be relevant must be made by the accused himself. A confession of a co-accused is not strictly relevant, though it may be taken into consideration, under Section 30 in special circumstances.

Confessions are classified as: (a) judicial, and (b) extra-judicial. Judicial confessions are those made before a Court or recorded by a Magistrate under Section 164 of the Criminal Procedure Code, 1973 after following the prescribed procedure such as warning the accused that he need not to make the confession and that if he made it, it would be used against him. Extra-judicial confessions are those which are made either to the police or to any person other than Judges and Magistrates as such. An extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence. It will have to be proved just like any other fact. The value of the evidence depends upon the truthfulness of the witness to whom it is made.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 6A(iv) (Syllabus 2022).

An admission is defined in Section 17 of the Indian Evidence Act, 1872 as a statement, oral or documentary or contained in electronic form which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances mentioned under Sections 18 to 20 of the Indian Evidence Act, 1872. Thus, whether a statement amounts to an admission or not depends upon the question whether it was made by any of the persons and in any of the circumstances described in Sections 18-20 and whether it suggests an inference as to a fact in issue or a relevant fact in the case. Thus admission may be verbal or contained in documents as maps, bills, receipts, letters, books etc. An admission must be clear, precise, not vague or ambiguous.

Sections 24 to 30 of the Indian Evidence Act, 1872 deal with confessions. However, the Act does not define a confession but includes in it admissions of which it is a species. Thus confessions are special form of admissions. Whereas every confession must be an admission but every admission may not amount to a confession.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 2(b) (Syllabus 2017).

According to Section 24 of the Indian Evidence Act, 1872 confession caused by inducement, threat or promise is irrelevant. To attract the prohibition contained in Section 24 of the Evidence Act the following six facts must be established:

1.that the statement in question is a confession;

2.that such confession has been made by an accused person;

3.that it has been made to a person in authority;

4.that the confession has been obtained by reason of any inducement, threat or promise proceeded from a person in authority;

5.such inducement, threat or promise, must have reference to the charge against the accused person;

6.the inducement, threat or promise must in the opinion of the Court be sufficient to give the accused person grounds, which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

To exclude the confession it is not always necessary to prove that it was the result of inducement, threat or promise. It is sufficient if a legitimate doubt is created in the mind of the Court or it appears to the Court that the confession was not voluntary. It is however for the accused to create this doubt and not for the prosecution to prove that it was voluntarily made. A confession if voluntary and truthfully made is an efficacious proof of guilt.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2019, Q. 4(a) (Syllabus 2017).

The term evidence is defined under Section 3 of the Evidence Act, 1872 as follows:

“Evidence” means and includes:

(1)all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2)all documents (including electronic records) produced for the inspection of the Court; such documents are called documentary evidence.

The word evidence in Indian Evidence Act signifies only the instruments by means of which relevant facts are brought before the Court, viz., witnesses and documents, and by means of which the court is convinced of these facts.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2020, Q. 6(a) (Syllabus 2017).

According to Section 3 of the Indian Evidence Act, 1872, “fact” means and includes:

(a)anything, state of things, or relation of things capable of being perceived by the senses;

(b)any mental condition of which any person is conscious.

Thus facts are classified into physical and psychological facts.

Examples:

(a)That there are certain objects arranged in a certain order in a certain place, is a fact.

(b)That a man heard or saw something, is a fact.

(c)That a man said certain words, is a fact.

(d)That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at the specified time conscious of a particular sensation, is a fact.

(e)That a man has a certain reputation, is a fact.

Example (a), (b) and (c), are the examples of physical facts whereas the illustrations

(d)and (e) are the examples of psychological bids

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2022, Q. 6A(iv) (Syllabus 2017).

Under Section 3(1) of the Indian Evidence Act, 1872 oral evidence means statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. The direct evidence means the evidence of the person who perceived the fact to which he deposes. The two broad rules regarding oral evidence are:

(i)all facts except the contents of documents may be proved by oral evidence;

(ii)oral evidence must in all cases be “direct”.

According to Section 60 of the Act, Oral Evidence must be direct means that if evidence is about any fact which is heard, seen, perceived by any sense or by making an opinion. Then as per this section it could be valid only if it has been given by the person who heard, saw, perceived or formed an opinion after a particular incident. However, the basis on which such opinions are held may be proved by the production of such treatises.

Thus, if any oral evidence needs to be admissible, all the conditions under Section 60 of the Indian Evidence Act must be fulfilled. The section states that oral evidence must, in all cases, whatever, be direct; that is to say:

i.if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; ii. if it refers to a fact which could be heard, it must be the evidence of a witness who he says heard it; iii. 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; iv. 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:

However, 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.

Further, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2022, Q. 2(b) (Syllabus 2017).

The Indian Evidence Act, 1872(the Act) recognises some rules as to presumptions. Rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts and circumstances. A presumption is not in itself an evidence but only makes a prima facie case for the party in whose favour it exists. A presumption is a rule of law that courts or juries shall or may draw a particular inference from a particular fact or from particular evidence unless and until the truth of such inference is disproved.

Three categories of Presumptions are as under:

(i)Presumptions of law- It is a rule of law that a particular inference shall be drawn by a court from particular circumstances.

(ii)Presumptions of fact- It is a rule of law that a fact otherwise doubtful may be inferred from a fact which is proved.

(iii)Mixed presumptions- They consider mainly certain inferences between the presumptions of law and presumptions of fact.

The terms presumption of law and presumption of fact are not defined by the Act. Section 4 of the Act only refers to the terms “conclusive proof”, “shall presume” and “may presume”. The term “conclusive proof” specifies those presumptions which in English Law are called irrebuttable presumptions of law. The term shall presume indicates rebuttable presumptions of law; and the term “may presume” indicates presumptions of fact.

In the given situation, a man was stabbed at the back by a knife and was lying on the floor in a pool of blood. Another person was running away from the scene with his hands full of blood. One can easily say that there is a presumption of fact that the man was stabbed at the back by the person running away.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 2(d) (Syllabus 2017).

Generally, opinion of third person is irrelevant. However, in some cases opinion of third person may be treated as relevant. According to Section 41 of Bhartiya Sakshya Adhiniyam, 2023 when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

Therefore, in the given situation, opinion of handwriting expert may be treated as relevant.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2025, Q. 4(a) (Syllabus 2022).

Section 45 of the Indian Evidence Act, 1872 deals with opinions of experts. It provides that when the Court has to form and opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.

Such persons are called experts.

Illustrations

(a)The question is, whether the death of A was caused by poison.

The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.

(b)The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the Act, or that he was doing what was either wrong or contrary to law.

The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.

(c)The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.

The opinions of experts on the question whether the two documents were written by the same person or by different persons are relevant.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2019, Q. 6A(i) (Syllabus 2017).

The general rule is that opinion of a witness on a question whether of fact or law, is irrelevant.

However, there are some exceptions to this general rule under Indian Evidence Act, 1872. These are:

(i)Opinions of experts. (Section 45): As a general rule the opinion of a witness on a question whether of fact, or of law, is irrelevant. Witness has to state the facts which he has seen, heard or perceived, and noted the conclusion, form of observations. The functions of drawing inferences from facts is a judicial function and must be performed by the Court. However, to this general rule, there are some exceptions as indicated in Section 45. Opinions of experts are relevant upon a point of:

(a)foreign law

(b)science

(c)art

(d)identity of hand writing

(e)finger impression special knowledge of the subject matter of enquiry become relevant.

(ii)Opinion of Examiner of Electronic Evidence (Section 45A): When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000, is a relevant fact.

Explanation- For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.

(iii)Facts which support or are inconsistent with the opinions of experts are also made relevant.

(Section 46): The Facts which are not otherwise relevant becomes relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.

(iv)Others: In addition to the opinions of experts, opinion of any other person is also relevant in the following cases:

(a)Opinion as to the handwriting of a person if the person giving the opinion is acquainted with the handwriting of the person in question; (Section 47)

(b)Opinion as to the electronic/digital signature of any person, the opinion of the Certifying Authority which has issued the electronic/digital signature certificate; (Section 47A)

(c)Opinion as to the existence of any general right or custom if the person giving the opinion is likely to be aware of the existence of such right or custom; (Section 48)

(d)Opinion as to usages etc. words and terms used in particular districts, if the person has special means of knowledge on the subject; (Section 49)

(e)Opinion expressed by conduct as the existence of any relationship by persons having special means of knowledge on the subject. (Section 50)

Alternate Answer

The general rule is that opinion of a witness on a question whether of fact or law, is irrelevant.

However, there are some exceptions to this general rule under Bharatiya Sakshya Adhiniyam, 2023.

These are:

(i)Opinions of experts. (Section 39(1)): As a general rule the opinion of a witness on a question whether of fact, or of law, is irrelevant. Witness has to state the facts which he has seen, heard or perceived, and noted the conclusion, form of observations. The functions of drawing inferences from facts is a judicial function and must be performed by the Court. However, to this general rule, there are some exceptions as indicated in Section 39(1). Opinions of experts are relevant upon a point of:

(a)foreign law

(b)science

(c)art

(d)identity of hand writing

(e)finger impression special knowledge of the subject matter of enquiry become relevant.

(f)or any other field

(ii)Opinion of Examiner of Electronic Evidence (Section 39(2)): When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000, is a relevant fact.

Explanation- For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.

(iii)Facts which support or are inconsistent with the opinions of experts are also made relevant.

(Section 40): The Facts which are not otherwise relevant becomes relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.

(iv)Others: In addition to the opinions of experts, opinion of any other person is also relevant in the following cases:

(a)Opinion as to the handwriting and signature of a person if the person giving the opinion is acquainted with the handwriting of the person in question; (Section 41(1))

(b)Opinion as to the electronic/digital signature of any person, the opinion of the Certifying Authority which has issued the electronic/digital signature certificate; (Section 41(2))

(c)Opinion as to the existence of any general right or custom if the person giving the opinion is likely to be aware of the existence of such right or custom; (Section 42)

(d)Opinion as to usages etc. words and terms used in particular districts, if the person has special means of knowledge on the subject; (Section 43)

(e)Opinion expressed by conduct as the existence of any relationship by persons having special means of knowledge on the subject. (Section 44)

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2024, Q. 4A(iii) (Syllabus 2022).

In addition to the opinions of experts, opinion of any other person is also relevant in the following situations under the Indian Evidence Act, 1872:

(i)Facts which support or are inconsistent with the opinions of experts are also made relevant. The Facts which are not otherwise relevant becomes relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. (Section 46)

(ii)Opinion as to the handwriting of a person if the person giving the opinion is acquainted with the handwriting of the person in question; (Section 47)

(iii)Opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate; (Section 47A)

(iv)Opinion as to the existence of any general right or custom if the person giving the opinion is likely to be aware of the existence of such right or custom; (Section 48)

(v)Opinion as to usages etc. words and terms used in particular districts, if the person has special means of knowledge on the subject; (Section 49)

(vi)Opinion expressed by conduct as the existence of any relationship by persons having special means of knowledge on the subject. (Section 50)

Alternate Answer

In addition to the opinions of experts, opinion of any other person is also relevant in the following situations under the BharatiyaSakshyaAdhiniyam, 2023:

(i)Facts which support or are inconsistent with the opinions of experts are also made relevant. The Facts which are not otherwise relevant becomes relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. (Section 40)

(ii)Opinion as to the handwriting and signature of a person if the person giving the opinion is acquainted with the handwriting of the person in question; (Section 41(1))

(iii)Opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate; (Section 41(2))

(iv)Opinion as to the existence of any general right or custom if the person giving the opinion is likely to be aware of the existence of such right or custom; (Section 42)

(v)Opinion as to usages etc. words and terms used in particular districts, if the person has special means of knowledge on the subject; (Section 43)

(vi)Opinion expressed by conduct as the existence of any relationship by persons having special means of knowledge on the subject. (Section 44)

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2024, Q. 4(b) (Syllabus 2017).

The Indian Evidence Act, 1872 provides that, in addition to the opinions of experts, opinion of any other person is also relevant in the following cases:

(a)Opinion as to the handwriting of a person if the person giving the opinion is acquainted with the handwriting of the person in question. (Section 47)

(b)Opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Electronic Signature Certificate. (Section 47A)

(c)Opinion as to the existence of any general right or custom if the person giving the opinion is likely to be aware of the existence of such right or custom. (Section 48)

(d)Opinion as to usages etc. words and terms used in particular districts, if the person has special means of knowledge on the subject. (Section 49)

(e)Opinion expressed by conduct as the existence of any relationship by persons having special means of knowledge on the subject. (Section 50)

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2021, Q. 3(a) (Syllabus 2017).

According to Section 6 of the Bhartiya Sakshya Adhiniyam 2023, any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person, an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Adhiniyam.

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.

Motive means which moves a person to act in a particular way. The substantive law is rarely concerned with motive, but the existence of a motive, from the point of view of evidence would be a relevant fact, in every criminal case. When the question is as to whether a person did a particular act, the fact that he made preparations to do it, would certainly be relevant for the purpose of showing that he did it.

In the given situation:

l Amir had a serious dispute over profits-sharing with Bhanu, which shows a motive for harming Bhanu, making it a relevant fact.

l The fact that Amir purchased a rare poison a week before Bhanu’s death constitutes preparation, which is also a relevant fact under this section.

l Amir’s statement, “He will regret this betrayal,” though not a direct confession, reflects his mental state and conduct, and is therefore relevant.

l After Bhanu’s death, Amir’s act of destroying financial records related to their business constitutes subsequent conduct, which may indicate an attempt to conceal evidence and is relevant to the investigation.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2025, Q. 4(a) (Syllabus 2022).

Section 6 of Indian Evidence Act, 1872 embodies the rule of admission of evidence relating to what is commonly known as Res gestae. Acts or declarations accompanying the transaction or the facts in issue are treated as part of the Res gestae and admitted as evidence. The obvious ground for admission of such evidence is the spontaneity and immediacy of the act or declaration in question. They are the acts talking for themselves.

These facts become relevant due to their association with main transaction which itself is a relevant fact in the nature of fact in issue. Circumstantial facts are admitted as forming a part of Res gestae i.e. it being a part of original proof of what has taken place.

Therefore, whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2021, Q. 3(b) (Syllabus 2017).

“Primary evidence” means the document itself produced for the inspection of the Court (Section 62 of the Indian Evidence Act, 1872). The rule that the best evidence must be given of which the nature of the case permits has often been regarded as expressing the great fundamental principles upon which the law of evidence depends.

The general rule requiring primary evidence of producing documents is commonly said to be based on the best evidence principle and to be supported by the so called presumption that if inferior evidence is produced where better might be given, the latter would tell against the withholder.

“Secondary evidence” is generally in the form of compared copies, certified copies or copies made by such mechanical processes as in themselves ensure accuracy.

Section 63 of the Indian Evidence Act, 1872 defines the kind of secondary evidence permitted by the Act. According to Section 63, “secondary evidence” means and includes.

(1)certified copies given under the provisions hereafter 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 document given by some person who has himself seen it.

Section 65 stipulates the cases in which secondary evidence relating to documents may be given. As already stated, documents must be proved by primary evidence but in certain cases for example, where the document is lost or destroyed or the original is of such a nature as not to be easily, movable, or consists of numerous documents, or is a public document or the original is a document that under the Indian Evidence Act or some law is allowed to be given in evidence by a certified copy, the existence, condition or contents of the document may be proved by secondary evidence.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2020, Q. 2(c) (Syllabus 2017).

Documents produced for the inspection of the Court is called Documentary Evidence.

The contents of a document must be proved either by primary or by secondary evidence.

As per Section 62 of the Indian Evidence Act, 1872, primary evidence means the document itself produced for the inspection of the Court. The rule that the best evidence must be given of which the nature of the case permits has often been regarded as expressing the great fundamental principles upon which the law of evidence depends. The general rule requiring primary evidence of producing documents is commonly said to be based on the best evidence principle and to be supported by the so called presumption that if inferior evidence is produced where better might be given, the latter would tell against the withholder.

Secondary evidence is generally in the form of compared copies, certified copies or copies made by such mechanical processes as in themselves ensure accuracy. Section 63 of the Indian Evidence Act, 1872 defines the kind of secondary evidence permitted by the Act.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 4(a) (Syllabus 2017).

According to Section 63 of the Indian Evidence Act 1872(the Act) secondary evidence means and includes:

(1)certified copies given under the provisions hereinafter contained as per the Act;

(2)copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3)copies made from or compared with the original;

(4)counterparts of documents as against the parties who did not execute them;

(5)oral accounts of the contents of a document given by some person who has himself seen it.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 6(c) (Syllabus 2017).

Section 65A of the Indian Evidence Act, 1872 provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B.

As per Section 65B(1) of the Indian Evidence Act, 1872, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this Section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. The conditions in respect of a computer output related above, have been stipulated under Section 65B (2) of the Evidence Act.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2019, Q. 4(b) (Syllabus 2017).