MODULE 7

MODULE 7: INDIAN EVIDENCE ACT, 1872 [SEC. 32-60]
STATEMENT BY A PERSONS WHO CANNOT BE CALLED AS

WITNESSES

Section 32-33
Cases In which Statement of Relevant Fact by person who is dead or
cannot be found is relevant: Section 32
A statement of relevant facts made by a person-
a) who is dead;
b) who cannot be found;
c) who has become incapable of giving evidence;
d) whose attendance cannot be procured without unreasonable delay or

expense, is relevant under the following circumstances:
i) When it relates to the cause of his death.

ii)When it is made in the course of business, such as an entry in books, or
acknowledgment of the receipt of any property, or date of a document.

iii) When it is against the pecuniary or proprietary interest of the person
making it or when it would have exposed him to a criminal prosecution.

iv) When it gives opinion as to a public right or custom or matters of general
interest and it was made before any controversy as to such right or custom
had arisen.

v)When it relates to the existence of any relationship between persons as to
whose relationship the maker had special means of knowledge and was
made before the question in dispute arose.

vi) When it relates to the existence of any relationship between persons
deceased and is made in any will or deed or family pedigree, or upon any
tombstone or family-portrait, and was made before the question in dispute
arose.

vii) When it is contained in any deed, will or other document. This clause,
however, does not allow introduction of parole evidence.

vii) When it is made by a number of persons and expresses feelings relevant to
the matter in question.
Section 60 of the Indian Evidence Act, 1872 says that oral evidence must be
direct. But, Section 32 and 33 are exceptions to the general rule as laid down in
section 60. Hearsay evidence is excluded on the ground that it is always
desirable in the interest to get the person, whose statement is relied upon into
court, for his examination in the regular way i.e. Cross-examination and re-
examination.
The exceptions to the hearsay evidence have been directed due to necessity.
This rule excluding the hearsay evidence is relaxed so far as the statements
contained in Sections 32 and 33 are concerned, because a dead person cannot
come into the court to give his testimony.
Dying-Declaration
Words "dying declaration" mean a statement, written or verbal, of relevant
facts made by a person who is dead. It is dealt under clause (1) of Section 32 of
the Indian Evidence Act, 1872. Generally, it relates to the cause of death of the
declarant. "Dying declaration" can be proved by the person who records it. A
dying declaration is not complete unless full names and addresses of the
persons involved are given in it.

Admissibility of dying declaration
The Supreme Court has laid down, in several judgments, the principles
governing dying declaration, which can be summed up as under:
i) There is neither rule of law nor of prudence that the dying declaration cannot
be acted upon without corroboration.
ii)the court is satisfied that the dying declaration is true and voluntary, the
conviction can be based on it, without corroboration.
ii) The court has to scrutinize the dying declaration carefully and must ensure
that the declaration is not the result of tutoring, prompting or imagination. The
deceased had opportunity to observe and identify the assailants and was in a fit
state to make the declaration
iv) Where dying declaration is suspicious, it should not be acted upon without
corroborative evidence.
v) Where the deceased was unconscious and could not make any dying
declaration, the evidence with regard to it is to be rejected.
vi) A dying declaration which suffers from infirmity cannot form the basis of a
conviction.
vii) Merely because a dying declaration does not contain the details as to the
occurrence, it is not to be rejected.
viii) Equally, merely because it is a brief statement it is not to be discarded, on the
contrary, the shortness of the statement itself guarantees truth.
ix) Normally, the court in order to satisfy whether deceased was in a fit mental
condition to make the dying declaration look up to medical opinion. But,
where the eyewitness has said that the deceased was in a fit and conscious
state to make the dying declaration, the medical opinion cannot prevail.

x) Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon.
In the case of Kamla vs. State of Punjab, AIR 1993, the Supreme Court had to
deal with a dying declaration with stated two stab injuries when medical report
showed only one injury. The inconsistency between these two destroyed the
value of the dying declaration.
RELEVANCY OE CERTAIN EVIDENCE FOR PROVING IN
SUBSEQUENT PROCEEDING, THE TRUTH OF FACTS THEREIN
STATED: SECTION 33
Evidence given by a witness (i) in a judicial proceeding, or (ii) before any
person authorized by law to take it, is relevant in a subsequent judicial
proceeding or a later stage of the same proceeding-
a) When the witness is dead,
b) When he cannot be found,
c) When he is incapable of giving evidence,
d) When he is kept out of the way by the adverse party, or
e) When his presence cannot be obtained without an amount of delay or
expense which the court considers unreasonable.
But, such evidence will be admissible only-
a) If the proceeding was between the same parties, or their representatives in
interest;
b) If the adverse party, in the first proceeding, had the right and opportunity to
cross-examine; and
c) If the question in issue were substantially the same in the first as in the
second proceeding.

Evidence of depositions in former trials is admissible as it forms an exception
to the hearsay rule. Depositions are, in general, admissible only after proof that
the persons who made them cannot be produced before the court to give
evidence.
It is only in cases where the production of primary evidence is beyond the
party's power that secondary evidence of oral testimony is admissible. Non-
compliance with the provision of this section is not cured by the fact that
counsel for the accused gives his consent.
JUDGMENT OF COURTS OF JUSTICE, WHEN RELEVANT
[SECTION 40-44]
PREVIOUS JUDGMENTS RELEVANT TO BAR A SECOND SUIT OR
TRIAL: SECTION 40
i) the existence of any (a) judgment, (b) order or (c) decree
ii) which by law prevents any Court from (a) taking cognizance of a suit or

(b) holding a trial
iii) is a relevant fact
iv) when the question is (a) whether such court ought to take cognizance of

such suit or (b) to hold such trial.
The existence of a judgment, decree or order is a relevant fact, if by law it has
the effect of preventing any Court from taking cognizance of a suit, or holding
a trial (the doctrine of res- judicata).
Sections 40 to 43 deal with the subject of relevancy of judgments. Judgment,
other than those mentioned in section 40, 41 and 42, may be relevant under
Section 43, if their existence is a fact in issue or is relevant under some other
provision.

Res-Judicata

The doctrine of res-judicata, in its wider sense, which includes a bar on the

subsequent litigation, not only on all issues resolved in the earlier proceedings,

but, also of every point which properly belongs to the subject - matter of the

litigations, applies only when the course of action or issue is/or remains

between the same parties or their predecessors in title and does not extend to

those not themselves party to the earlier proceedings (Vide-Section 11 Civil

Procedure 1908).

RELEVANCY OF CERTAIN JUDGMENTS IN PROBATE, ETC.

JURISDICTION: SECTION 41

A final judgment of a court exercising (1) probate, (2) matrimonial, (3)

admiralty (4) insolvency jurisdiction which - i) confers upon or takes away

from any person any legal character, or (ii) declares any person to be entitled to

(a) any such character, or (b) any specific thing absolutely, is relevant when (a)

the existence of any such legal character, or (b) the title of any such person to

any thing is relevant.

Such judgments are known as judgments in rem. Such judgment is a

conclusive proof of:

i) That any legal character, which it confers, accrued at the time when such

judgment came into operation.

ii)That any legal character to which it declares any person to be entitled accrued

at the time mentioned in the judgment.

iii) That any legal character which it takes away from any person ceased at

the time mentioned in the judgment.

iv) That any thing to which it declares a person to be entitled was the

person's property at the time at which the judgment declares it is to be his.

This Section consists of two parts. The first part makes the final judgment,
order or decree of a competent Court in the exercise of probate, matrimonial,
admiralty or insolvency jurisdiction relevant; the second part makes the
judgment conclusive proof in certain matters.
The Section deals with what are usually called judgments in rem, i.e.
judgments which are conclusive not only against the parties to them, but also
against the whole world. A judgment in rem has been defined to be an
adjudication pronounced, as its name indeed denotes, upon the status of some
particular subject matter, by a tribunal having competent authority for that
purpose.
RELEVANCY AND EFFECT OF JUDGMENTS, ORDERS OR
DECREES, OTHER THAN THOSE MENTIONED IN SECTION 41:
SECTION 42
This section declares judgments relating to matters of a public nature relevant,
whether between the same parties or not. It also forms an exception to the
general rule that no one shall be affected or prejudiced by judgments to which
he is not a party or privy. The exception stated is allowed in favor of verdicts,
judgments, and other adjudications upon subjects of a public nature, such as
customs, prescriptions, tolls, boundaries between parishes, countries or manors,
right of ferry liabilities to repair roads, or seawalls and like.
The effect of the adjudication, when admitted, will so far vary that, if the
parties be the same in both suits, they will be bound by the previous judgment
but, if the litigants in the second suit be strangers to the parties in the first, the
judgment though admissible, will not be conclusive.

JUDGMENTS, ETC., OTHER THAN THOSE MENTIONED IN
SECTIONS. 40 TO 42, WHEN RELEVANT: SECTION 43
Judgments, the existence of which, is a fact in issue or is relevant under some
other provision of the Evidence Act, are relevant under Section 43. A judgment
is, generally speaking, admissible to show its date and its legal consequences.
So far as regards the truth of the matter decided, a judgment is not admissible
evidence against one who is a stranger to the suit.
Lakshman v. Amrit, (1900) Bom LR
To have the effect of res-judicata, a judgment inter parties alone can be
admitted in evidence, but for other purposes where judgments are sought to be
used to show the conduct of the parties, or show particular instances of the
exercise of a right or admissions made by ancestors, or how the property was
dealt with previously, they may be used under Section 11 and 13 as exceptions
recognized under this section, as relevant evidence.
Anil Behari v. Latika Bala Dasi, AIR 1955 SC
A judgment in a criminal case cannot be received in a civil action to establish
the truth of facts upon which it is rendered.
Emperor v. Nazir Ahmad, AIR 1945 PC
The Privy Council has held that the findings in a civil proceeding are not
binding in a subsequent prosecution founded upon the same or similar
allegations.
S.P. E. Madras v. K. V. Sundravelu, AIR 1978 SC
It was held by the Supreme Court that a previous acquittal can be cited in a
fresh prosecution over the same matter, but it cannot be used to prevent a new
trial.

OPINION OF THIRD PERSONS WHEN RELEVANT [SECTION 45-51]
OPINION OF EXPERT: SECTION 45
This section is an exception to the rule as regards the exclusion of opinion
evidence. Opinions of experts are relevant upon a point of (a) foreign law, (b)
science, (c) art, (d) identity of hand writing (e) finger impressions.
Forest Range Officer v. P. Mohammed Ali, AIR 1994 SC
The Supreme Court held that expert opinion is only opinion evidence and is not
helpful to the Court in interpretation of law.
It is a general rule that the opinion of witness possessing peculiar skill is
admissible, whenever the subject-matter of enquiry is such that inexperienced
person are unlikely to form a correct judgment upon it without the assistance of
an expert.
FACTS BEARING UPON OPINION OF EXPERTS: SECTION 46
The opinion of an expert is open to the corroboration or rebuttal of other
evidences. All the evidence which supports or rebuts the opinion of expert is
admissible and relevant.
Ram Karan Mal v. State, 1990 CrLJ
Where the ocular evidence was that a number of assailants surrounded the
person and continuously subjected him to injuries and the medical report
showed knife injuries, it was held that the eye-witness account stood nullified.
OPINION AS TO HANDWRITING WHEN RELEVANT: SECTION 47
i) The Court has to form an opinion as to the person by whom any document was
written, or signed
ii) the opinion of the person acquainted with the handwriting of the person
by whom a document is written or singed is relevant.
A person is said to be acquainted with the handwriting of another person when

a) he has seen that person write
b) 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
c) in the ordinary course of business documents purporting to be written by
that person have been habitually submitted to him.
When the Court has to form an opinion as to the handwriting of any person, the
opinion of a person acquainted with the handwriting of such person is
admissible in evidence.
OPINION AS TO EXISTENCE OF RIGHT OR CUSTOM, WHEN
RELEVANT: SECTION 48
1) when the Court has to form an opinion as to existence of
a) any general custom or
b) right
2) the opinion, as to the existence of such custom or right, of persons who
would be likely to know of its existence if it existed
3) are relevant
4) the explanation makes it clear that the expression "general custom or right
includes customs or rights common to any considerable class of persons.
Opinions of persons who are in a position to know of the existence of a custom
or usage in their locality are admissible.

OPINION AS TO USAGES, TENETS, ETC. WHEN RELEVANT:
SECTION 49
Opinion of persons having special means of knowledge regarding-
i) usages and tenets of a body of men or family,
ii) the constitution and government of any religious or charitable

foundation;
iii) the meaning of words or terms used in particular districts or by particular

classes of people are relevant under Section 49.
This section should be read with Section 51. Section 51 says that whenever the
opinion of the living person is relevant, the grounds on which such opinion is
based are also relevant.
OPINION OF RELATIONSHIP, WHEN RELEVANT: SECTION 50
When the Court has to ascertain the relationship of one person to another, the
opinion of any person having special means of knowledge, as expressed by
conduct, is admissible in evidence. The opinion may be of a member of the
family or an outsider, but he must have special means of Knowledge. Evidence
of general reputation, which is a cumulation of perception testimonies, heard
and gathered and reduced to an assertion to Court, is not admissible.
GROUND OF OPINION, WHEN RELEVANT: SECTION 51
Where the opinion of an expert is receivable, the ground or reasoning upon
which such opinion is based may also be inquired into. Opinion is no
evidence, without assigning the reason for such opinion. The correctness of the
opinion can better be estimated in many instances when the reasons upon
which it is based are known. If the reasons are frivolous or inconclusive, the
opinion is worth nothing.

CHARACTER WHEN RELEVANT [SECTION 52-55]
IN CIVIL CASES CHARACTER TO PROVE CONDUCT IMPUTED,
IRRELEVANT: SECTION 52
1) In civil cases, no party can prove-
a) that the character of the person concerned is such as to render any conduct

probable
b) that the character of the person concerned is such as to render any conduct

improbable
2) Exception: It is relevant when character is fact in issue itself.
In civil cases, evidence of the character of any party to the suit to prove the
probability or improbability of any conduct imputed to him is irrelevant. The
general exclusion of character evidence is based on grounds of public policy
and fairness of justice.

IN CRIMINAL CASES PREVIOUS GOOD CHARACTER RELEVANT:
SECTION 53
i) an accused is being tried for an offence
ii) the fact that he is a person of good character
iii) is relevant
Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC
It was held by the Supreme Court that character evidence is a very weak
evidence, it cannot outweigh positive evidence in regard to the guilt of a
person.

PREVIOUS BAD CHARACTER IS NOT RELEVANT EXCEPT IN
REPLY: SECTION 54
Evidence of bad character of an accused person (of whose good character
evidence has not been given) is not relevant under this section for the purpose
of raising a general inference that the accused is likely to have committed the
offence charged. Such evidence is irrelevant and cannot be legally admitted in
evidence elicited by the prosecution or by the defence.
Ram Lakhan v. U.P., AIR 1977 5C
The description of the accused as a lawbreaker announced to evidence of
character, the Supreme Court excluded it.
Saroh Kumar Chakrabarti v. Emperor, (1932) Cal.
If the evidence is otherwise relevant, it is not rendered inadmissible under this
section, merely because it shows bad character or the commission of offences
other than the offence with which the accused is charged.
CHARACTER AS AFFECTING DAMAGES: SECTION 55
It is in the civil cases, where the question of amount of damages to be awarded
to the plaintiff is concerned, then the character of the plaintiff becomes relevant
(Vide: D. Shastri v. K.B. Saltex 1983 Pat.).
In civil cases, good character, being presumed, may not be proved in
aggravation of damages, but, bad character is admissible in mitigation of
damages, for example:
i) In cases of defamation, the bad reputation of the plaintiff may be proved. The
argument in favour of considering reputation is that the person shown not be
paid for the loss of which he never had.
ii) In cases, of breach of promise of marriage, the plaintiff's general character for
immorality is relevant.

iii) In cases of seduction, evidence of the general character for immorality on the
part of the person seduced is relevant.

CHAPTER III
FACTS WHICH NEED NOT BE PROVED [SECTION 56-58]
FACT JUDICIALLY NOTICEABLE NEED NOT BE PROVED:
SECTION 56
All facts in issue and relevant facts must be proved by evidence, either oral or
documentary. To this rule there are two exceptions:
a) facts judicially noticeable, and
b) facts admitted
"Take judicial notice" means recognition without proof of something as
existing or as being true, for example, the Court taking judicial notice that the
law and order situation has deteriorated over the years and continues to be
worsening fast and, therefore, it is an important time to think of reconsidering
death penalty (Shashi Nayar v. Union of India, AIR 1992 SC). Judicial Notice
is based upon very obvious reasons of convenience and expediency. The
Supreme Court has held that Court can take judicial notice of alternative
sources (Assistant Collector of Central Excise V. Dunlon Indian Ltd., AIR
1985 DC).
FACTS OF WHICH COURT MUST TAKE JUDICIAL NOTICE:
SECTION 57
Section 57 enumerates thirteen facts of which the Court is bound to take
judicial notice. These facts are not exhaustive. It is for the sake of convenience
that the Courts are allowed to take judicial notice of certain facts which are so
clearly established that the evidence of their existence is unnecessary.
FACTS ADMITTED NEED NOT BE PROVED: SECTION 58

Admissions by the parties before suit are dealt in Section 17. This section deals
with admissions at or before the hearing. No proof need be given of facts which
the parties or their agents agree to admit at the hearing, or which, before the
hearing, they agree to admit by writing under their hands, or which, by any rule
of pleading in force at the time, they are deemed to have admitted by their
pleadings.
Every allegation of fact in the plaint, if not denied specifically or by necessary
implication, or state to be admitted in the pleading of the defendant, shall be
taken to be admitted.
CHAPTER IV
OF ORAL EVIDENCE [SECTION 59-60)
PROOF OF FACTS BY ORAL EVIDENCE: SECTION 59
i) All facts may be proved by oral evidence
ii) Exception: The contents of the document cannot be proved by oral

evidence.
Oral evidence has been defined by the Act to be all statements which the Court
permits or requires to be made before it by witnesses in relation to matters of
fact under inquiry (Section 3). All facts, except the contents of documents may
be proved by oral evidence.
ORAL EVIDENCE MUST BE DIRECT: SECTION 60
This section, subject to the proviso excludes opinions given at second-hand.
The use of word "must" in the first clause of the Section imposes a duty on the
Court to exclude all oral evidence that is not "direct", whether the party against
whom it is tendered objects or not. The word "direct” is opposed to mediate or
derivative or "hearsay".
Meaning of Hearsay Evidence

The word "hearsay" is used in various senses. Sometimes it means whatever a
person is heard to say, sometimes it means whoever a person declares on
information given by someone else, sometime it is treated as nearly
synonymous with "irrelevant.