Res Gestae

Section 6 of the Indian Evidence Act: ‘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 time and place.’

The Latin term for this doctrine is Res Gestae, which translates to “things done.” It explains a spontaneous
statement made by someone soon after an occurrence before the human mind has a chance to make up a
fake story. A statement made under Res Gestae is one that is made on the spot, that is, during or
immediately after the conduct of the crime. There is extremely little opportunity for uncertainty or doubt
as a result. Res Gestae is a doctrine that places a proclamation in such proximity to the event’s
commission that there is almost no opportunity for confusion or incorrect interpretation.

‘Res Gestae’ basically means a transaction (thing done/ subject matter).

The test of admissibility of evidence – as a part of Res Gestae is whether the Act, declaration or
exclamation is intimately interwoven or connected with the principal facts.
‘Facts forming part of same transaction’ – This includes both physical acts and words spoken whether by
person doing such acts, the person to whom such acts, the person to whom such acts are done or any other
person(s).
It is a general rule – The evidence of connected precedent or surrounding circumstances is proper to show
the probability that the principal fact has happened in all cases where it may naturally be assumed that a
connection exists between main fact and subordinate fact.
The act or transmission may be completed in a moment of time or may extend through a period of days or
weeks, or even months.
Pre-Conditions to Res Gestae:

Statement must explain and characterize the incident in some manner.

Statement must be a statement of fact and not opinion.
Statement must be spontaneous and not merely narrative of the past.
Statement must include participants of transaction; In criminal: Victim, accused, eyewitness; In civil:
Attesting witnesses and concerned parties
Statements made by bystanders provided their presence on the spot is established.
Note: Filing of FIR forms part of Res Gestae.

A TRANSACTION
The term “transaction,” as used in this section, is defined by a single name as any unlawful act, contract,
wrongdoing, or other possible area of inquiry. A suitable distance from the time, pace, and cause and
effect, it includes both the immediate cause and effect of an act or event as well as its collection of
pertinent circumstances, the other required antecedents of its occurrence, connected with it.13The
proximity of time, unity or proximity of place, continuity of acts, and community of purpose or design are
reliable indicators of what kind of transaction it is.

BYSTANDER
All the people present at the time of the incident are referred to as bystanders in section 6. When several
others arrived at the scene shortly after a murder and were informed by the eyewitnesses who the two
perpetrators were, their testimony is important. Therefore, the declaration must try to show and explain the
event at issue and be mostly contemporaneous with it.

TEST FOR ADMISSION OF EVIDENCE UNDER RES-GESTAE

The judge’s first consideration is whether the likelihood of fabrication or distortion can be discounted. The
judge must first consider the circumstances surrounding the specific statement in order to be convinced
that the incident was so extraordinary, jarring, or fanatical as to dominate the victim’s thoughts and that
the victim’s utterance was an instinctive response to that incident, leaving no real room for thoughtful
reflection. If the statement was delivered under circumstances of approximate but not exact
contemporaneity, the judge would be permitted to draw the conclusion that the event’s involvement or
pressure would rule out any possibility of fabrication or distortion.

STATEMENT SHOWING MOTIVE AND INTENTION

The declaration of someone’s intention to do something is not admissible as proof that they really did it.
Investigating what someone says he is intending to do to determine if he carried out his claimed intention
is a completely different subject from examining what someone says when his intention is at stake. In
order to establish the motivation behind a behavior, evidence of the comments that accompany the
behavior may be provided. Because the declaration may change his opinion between the declaration and
the act, statements that are not contemporaneous with the act cannot identify the motivation behind it.

Expansion of the Doctrine of Res Gestae

Courts have gradually expanded this section’s application to include situations including domestic abuse,
kid witnesses, etc. Domestic abuse and assault cases invariably have a shocking event, which frequently
involves the problem of ecstatic speech. Only the victims in these situations can name the suspected
offender. Therefore, it is necessary to accept such victim evidence. Rape cases typically happen alone.
Therefore, there is no eyewitness to such an event. Rape and domestic violence cases are distinct from all
other crimes.

Gentela Vijayavardhan Rao v. State of A.P., (1996) 6 SCC 241:

The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae
recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so
connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This
rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The
rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account
of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is
necessary that such fact or statement must be a part of the same transaction. In other words, such
statement must have been made contemporaneous with the acts which constitute the offence or at least
immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough
for fabrication then the statement is not part of res gestae. In R. v. Lillyman [(1896) 2 QB 167 : (1895-99)
All ER Rep 586] a statement made by a raped woman after the ravishment was held to be not part of the
res gestae on account of some interval of time lapsing between the act of rape and the making of the
statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as
an exemption to the inhibition against hearsay evidence, has observed in Teper v. R. [(1952) 2 All ER 447]

In Bishna vs State of West Bengal AIR 2006 SC 302, where the two witnesses reached the place of
occurrence immediately after the incident had taken place and found the dead body of Prankrishna and
injured Nepal in an unconscious state. One of them found the mother of Prannkrishna and Nepal weeping
and heard about the entire incident from an eye-witness and the role played by each of the appellants, their
testimony was held to be admissible under section 6 of the Evidence Act. In all the cases mentioned above
the test applied to make the evidence admissible was to consider that was the statement was made at the
spur of the moment without an opportunity to concoct and fabricate anything.

“The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on
the propositions that the human utterance is both a fact and a means of communication and that human
action may be so interwoven with words that the significance of the action cannot be understood without
the correlative words and the dissociation of the words from the action would impede the discovery of the
truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely
contemporaneous with the action or event, at least so clearly associated with it that they are part of the
thing being done, and so an item or part of the real evidence and not merely a reported statement.”

Conclusion:
When evidence cannot be presented under another part of the Indian Evidence Act, it is typically presented
under res gestae. Legislators wanted to prevent unfairness, or cases being rejected for lack of proof. Any
statement that is not accepted under Section 6 may nonetheless be admitted under Section 157 as
corroboration.

This doctrine shouldn’t ever be extended to infinity, according to court precedent. Because of this, Indian
courts have always taken into account the “continuity of the transaction” test. According to section 6 of
the evidence statute, no statement that was made a long time after the incident and that wasn’t in response
to it is admissible. However, because there was adequate evidence that the victim was still experiencing
tension and excitement following the purchase, the courts allowed some statements that were made a
significant amount of time after the transaction had taken place. As a result, whatever was said was a
response to the event. Sec. 6’s strength is in how ambiguous it is.
Admission and Confession
Admission under Indian Evidence Act
Statements that attribute liability based on relevant facts are known as admissions. Admissions need to be
conclusive and unambiguous, leaving no room for doubt. The Supreme Court established this principle in
the case of Chikham Koteswara Rao v C Subbarao. Admissions serve as prima facie evidence. Still, they
are not considered as conclusive proof.

Admissions can take the form of either formal or informal statements.

Formal admissions, also called judicial admissions, are made during legal proceedings. On the other hand,
informal admissions occur in the ordinary course of life. Judicial admissions are admissible under Section
58 of the relevant Act and carry substantive weight.

They serve as a waiver of proof, meaning that further evidence is not required to establish their validity
unless specifically requested by the court. In Nagindas Ramdas v Dalpatram Ichharam, the Supreme Court
explained that if admissions are true and unambiguous, they hold significant evidentiary value as the best
proof of the facts admitted.

Informal or casual admissions encompass any written or oral statements made by the involved party
regarding the facts of the case.

Moreover, a person’s conduct can also be considered as an admission. In the Australian case of Mayo v
Mayo, a woman registered the birth of her child without disclosing the father’s name or profession. The
court inferred that either she was unaware of the father’s identity or acknowledged the child’s illegitimacy.
In either scenario, there is an admission of adultery, which constitutes admissible evidence.

Sections 18, 19 & 20 of the Indian Evidence Act

Parties to the Suit (Section 18)
Any statements made by parties involved in the lawsuit that infer a relevant fact or a fact in question are
considered relevant. However, in the case of defendants, the admission of one defendant does not bind the
co-defendants, as it would be unjust for the plaintiff to succeed against all defendants based solely on the
admission of one. Conversely, in the case of plaintiffs who share a common interest, the admission of one
plaintiff is binding on the co-plaintiffs, as established in the case of Kashmira Singh v State of MP4.

Agents of Parties
Actions performed by an agent in the ordinary course of business are treated as if they were performed by
the principal themselves (qui facit per alium, facit per se) according to the principles of agency law.
Therefore, if an agent is explicitly or implicitly instructed to make an adverse statement, that statement
becomes relevant. It is important to note that this section does not include lawyers.

Statements in Representative Character

Individuals who sue or are sued in a representative capacity, such as trustees, administrators, executors,
etc., are subject to this provision. Statements made in their personal capacity are not considered
admissions, but if made in their representative capacity, they are deemed admissions.

Statements of Third Parties

a) Persons with a proprietary or financial interest in the subject matter: Statements made by individuals
who possess a direct interest, either proprietary or financial, in the subject matter are relevant, provided
that their statements are related to their specific interest.

b) Predecessor in the title: If the parties involved in the lawsuit have derived their interest in the subject
matter from a previous owner, the statements made by that previous owner are admissible regarding the
property itself but not concerning the parties or the new owner.

Section 21
This section pertains to the proof of admission. It states that an admission, evidence against the party who
made it, cannot be proved by that party but must be proved against them. In the case of Rv Petcherini,
Crompton J explained this concept further.
He stated that declarations made by an individual accompanying an act can be considered as evidence.
Still, declarations made days or weeks before the relevant transaction cannot be used as evidence.
Allowing such declarations as evidence would enable individuals to create grounds for escaping the
consequences of their wrongful acts through strategic declarations.

However, an admission can be proved in favour of the party who made the statement if that party has
deceased. This falls under Section 32 of the Indian Evidence Act, and the deceased party’s representatives
can prove the statement. Additionally, if the statement relates to a bodily feeling or state of mind, the
person making the admission can also provide proof of it.

The state of mind should be substantiated with appropriate conduct since a person genuinely experiencing
pain would behave differently from someone faking it. Furthermore, certain other relevant statements can
be proved by the party making them, such as when the statement itself is a fact in issue or part of the res
gestae.

Sections 22 and 22A

Section 22, in conjunction with Section 65 and the addition of Section 22A through the Information
Technology Act, 2000, establishes that oral admissions regarding the content of documents or electronic
records are irrelevant unless the question pertains to the authenticity or forgery of the document or record.

Section 23
In civil cases, it is considered irrelevant when a statement or admission is made without prejudice. This
means that both parties have agreed to treat that admission as confidential, and no evidence needs to be
presented regarding it.

The purpose of this section is to encourage compromise between parties and avoid litigation. It safeguards
any admissions made under the without prejudice principle, whether expressly or impliedly stated. They
cannot be disclosed in court without the consent of both parties involved in the suit.
In the case of Paddock v Forrester, a letter written by one party was marked without prejudice. Although
the reply to the letter was not explicitly marked as such, it was deemed inadmissible by the court. Only
those admissions falling under the scope of Section 126 are required to be disclosed by lawyers.

Confession under Indian Evidence Act

The term “confession” is not explicitly defined in the Indian Evidence Act. However, confessions fall
under the broader category of “admission” defined in Section 17 of the Act. Therefore, the definition of
admission provided in Section 17 also applies to confessions. In civil cases, a relevant statement is
considered an admission, while in criminal cases, a relevant statement is regarded as a confession.

In the case of Palvinder Kaur v State of Punjab, the Supreme Court upheld the decision of the Privy
Council in Pakala Narayan Swami v Emperor and highlighted two essential points regarding confessions.

Firstly, a confession must either admit guilt explicitly or substantially admit to all the facts.
Secondly, a statement that contains a mixture of confessional and exculpatory statements, where the
exculpatory part leads to an acquittal, cannot be considered a valid confession.
The court cannot selectively remove the exculpatory part from a statement and base its decision solely on
the inculpatory part.

Similar to admissions, confessions can be either judicial or extra-judicial. In the case of Sahoo v State of
UP, the accused was heard confessing to the murder of his own daughter while speaking to himself. This
was deemed a relevant confession that could be admitted as evidence.

Section 24
Section 24 of the Indian Evidence Act identifies certain confessions as irrelevant. These include
confessions obtained as a result of inducement, threat or promise, particularly when made to a person in
authority.
To be admissible, a confession must meet certain criteria: it must pertain to the charge in question and
offer some worldly benefit or advantage. Confessions that are not freely given are considered false under
the law.

A government official is regarded as a person in authority due to their ability to influence the course of
prosecution, as established in the case of R v Middleton, 1974 QB 191 CA. The promised benefit must be
reasonable and capable of convincing the accused that they would gain an advantage from it, while any
threatened harm should be temporal.

Sections 25 to 30 of the Indian Evidence Act specifically address confessions made to the police.

Section 25
Section 25 of the Indian Evidence Act states that no confession made to a police officer is provable or
relevant. This provision is in place to safeguard the rights of the accused, as confessions obtained under
police custody may be coerced or extracted through torture.

However, if a person confesses in the presence of someone other than a police officer, it is not rendered
irrelevant solely due to the presence of a policeman. This section only applies to confessional statements,
whether orally or in a First Information Report (FIR). Other admissions can still be presented as evidence
to establish facts or facts.

Section 26
Section 26 is similar to the preceding section and asserts that no confession made by a person in police
custody is admissible as evidence. This provision recognises that false confessions may be obtained under
duress or fear, not limited to interactions with police officers alone.

Police custody encompasses not only confinement within the walls of a police station but also situations
where the police exercise control over an individual in their home, car or public places. The only
exception to this rule is when the person makes a confession in the presence of a Magistrate, in which case
it becomes admissible.

Section 27
Section 27 establishes an exception to Section 26. It states that if a statement leads to discovering a fact
related to the crime, it becomes admissible as evidence, even if it was obtained through coercion.

To validate the authenticity of such recoveries, they should occur in the presence of witnesses. In the case
of Mohan Lal v Ajit Singh, the accused indicated the location of stolen goods upon arrest, and the items
were found within six days. The court deemed this statement relevant, and the accused was held liable for
murder and robbery based on the evidence obtained.

However, a statement made by an accused cannot be used against other co-accused, as determined in the
case of Satish Chandra Seal v Emperor.
A confession is binding on co-accused individuals, whereas this is not the case with admissions. While a
third party can make an admission, a confession is made by the person who committed the crime. Finally,
admission is not considered conclusive proof, but a confession is generally considered satisfactory
evidence of the accused’s guilt.
 Burden of proof
iNTRODUCTION
Every legal proceeding seeks to establish some sort of right or liability. These commitments and rights are
predicated on facts that must be convincingly established in court. Who must submit the case’s evidence
and persuade the court of its validity is specified in Sections 101 to 111. While Sections 101 to 103 discuss
the duty of proof broadly, Sections 104 to 111 deal with situations where the burden of proof falls on a
specific party. These principles are referred regarded as the “Burden of Proof” rules.

MEANING
The phrase “burden of proof” is not defined under the Indian Evidence Act. The legal duty or obligation
for the parties to establish the facts that will help the court rule in their favour, however, is known as the
burden of proof. The Burden of Proof refers to the responsibility in litigation to establish a fact.

If the person on whom the burden is passed fails to provide any evidence, the issue must be decided
against him, according to the strict definition of the word “burden of proof” (onus probandi). Chapter VII
of the Indian Evidence Act addresses the burden of proof requirements.

BURDEN OF PROOF (Section 101)

The “Burden of proof” is discussed in Section 101 of the Indian Evidence Act of 1872. According to this
clause, a person must establish the existence of any facts he claims in order for the court to rule on his
legal rights or obligations based on such facts. The burden of proof is stated to be on a person when they
have a responsibility or obligation to establish a fact.

E.g.: If Ram is of the opinion that Shyam has committed a crime and that he must be punished for the
same, then it is upon him to prove that Shyam has committed the said crime.

ON WHOM BURDEN OF PROOF LIES (Section 102)

Section 102 of the Indian Evidence Act, of 1872 speaks about, “On whom the burden of proof lies”.
Section 102 fixes the burden of proving the facts in any suit or proceeding on that person who would fail
in case no evidence is given on either side.

E.g.: Sunil has filed a case stating that the land which is in possession of Anil belongs to him. Here, the
burden of proof is on the one who will suffer if he/she does not prove the fact. Hence, if Sunil does not
prove that the land belongs to him then Anil will continue to have possession of the land and Sunil will
suffer by losing his land.

BURDEN OF PROVING A PARTICULAR FACT (Section 103)

The “Burden of proof as to particular fact” is discussed in Section 103 of the Indian Evidence Act of 1872.
According to this clause, the burden of proof for a specific fact rests with the party seeking the court’s
belief in its existence unless the legislation expressly states that the burden of proof rests with a certain
party.

Accordingly, this section states that the burden of proof is on the party asserting the affirmative or
negative of a certain fact, unless the evidence law or another applicable legislation expressly states
otherwise. This clause therefore states that the maker of an assertion must provide evidence to support it.

The distinction between this section and Section 101 is that in Section 101, the person asserting a truth has
the burden of demonstrating whether it is positive or negative, affirmative or denial, but in this section, the
person asserting a fact has the burden of proving whether it is affirmative or denial.

E.g: Chirag says that at the time of his neighbour’s murder, he was not at home and was at his uncle’s
place. In this case, it is upon Chirag to prove that he was at his uncle’s place.

In Kamini Sahuani v. Purna Chandra Sahoo, a married woman who was maltreated by her in-laws and
driven out of her matrimonial home filed a case for recovering her jewellery and other articles. Her in-
laws pleaded that she had already taken these articles away, the court held that there cannot be any
presumption that she has taken away any of her articles, and the burden of proof would be upon the in-
laws to prove that she has taken away her jewellery and other articles.
Every person is required by Section 39 of the Criminal Procedure Code to report certain offences that they
are aware of or appear to have committed to the nearest police officer or magistrate. If he fails to
accomplish it, he is responsible for providing a justifiable explanation. The Indian Evidence Act’s second
part, which reads, “if the law itself provides that the burden of proof lies on any particular person,” applies
in this instance. The burden of proof, in this case, is with the party who failed to provide information to
the nearest police officer or magistrate as required by law (in this case, Section 39 of the CrPC).

PARTICULAR CASES WITH REFERENCE TO THE BURDEN OF PROOF

These principles are called the rule of the convenience of the burden of proof which is covered under
Sections 104-113 and Sections 113A and 114A.

BURDEN TO PROVE TO MAKE EVIDENCE ADMISSIBLE (Section 104)

The “Burden of proving fact to be proved to make evidence admissible” is mentioned in Section 104 of
the Indian Evidence Act, of 1872. According to this provision, it is the responsibility of the person who
intends to provide evidence for the latter fact to establish the earlier fact when it is required to do so in
order for them to provide evidence for the latter fact.

Illustration: – A wishes to prove a dying declaration by B. A must prove B’s death. This illustration says
that the fact necessary to be proved is the dying declaration of B and the fact necessary to prove the dying
declaration is that B is dead. Mahboob Sab v. Union of India, (2011) In this case, the Railways’ contention
was that the person who died by falling from a train was not a bonafide passenger being without a ticket,
the court said that it was for the Railways to prove that fact.

BURDEN TO PROVE THAT THE ACCUSED COMES WITHIN EXCEPTION (Section 105)

Section 105 of the Indian Evidence Act, of 1872 speaks about the “Burden of proving that the case of the
accused comes within exceptions”.
The burden of establishing the existence of all circumstances bringing a case under any of these
exceptions shall be on the accused when, under this section, an accused relies in his defence on any of the
Exceptions provided in the Indian Penal Code or in any other statute defining the offence. A presumption
that such circumstances don’t exist will be made by the court.

When making an exemption under Section 105, the level of proof required of the accused is far lower than
it would be for the prosecution in a comparable situation. It may not be necessary for an accused person to
present evidence to demonstrate their innocence. However, an accused person alone has the burden of
proving that his specific circumstances fall under an exception to the said clause.

General presumption: According to the general premise, the accused is presumed innocent unless proven
guilty, and the burden of proof rests with the prosecution to do so. Once guilt has been proven, the burden
of proof shifts to the accused, who may then raise an I.P.C. general exceptions defence.

This overall burden is always on the prosecution and it never changes. An essential exception to this
general rule is Section 105. The approach outlined in Section 103 is applied in this section and even
extended. The specific responsibility placed on the accused under Section 105 does not conflict with the
general burden, which always falls on the prosecution and never changes.

BURDEN TO PROVE FACT ESPECIALLY WITHIN KNOWLEDGE (Section 106)

The Indian Evidence Act of 1872 mentions the “burden of proving a fact, especially within knowledge” in
Section 106. The exception to Section 101 is Section 106. According to this provision, the onus of proof
rests with the individual who, in particular, has knowledge of the fact in question. It states that when a fact
is specifically within the knowledge of a person, that person is responsible for establishing that fact. The
reasoning behind this Section is that such a person is in a better position to show the reality, especially
when it is within his knowledge, and it is challenging or nearly impossible for the opposing side to do so..

Illustration: – The body of B was found in the house of A. The onus is upon A to establish that even if the
body of the deceased was recovered from his house, his involvement in the crime is negligible. The
inmates of the house are also required to provide an explanation. If the defendant fails to provide a viable
explanation and fails to establish his innocence, this would form a chain of circumstantial evidence
establishing the guilt of the accused.

Section 106 applies only to the parties to a suit or proceeding. It is designed to meet certain exceptional
cases in which it would be impossible or very difficult for the prosecution to establish facts that are
especially in the knowledge of the accused.

Ram Gulab Chaudhury v. State of Bihar (2001) In this case, a dead body was not found but there was a
clear witness by the eyewitness that the victim was killed by the accused before they took away the body.
No explanation was given by the accused as to the disappearance of the dead body. The court said that it
can convict the accused people by drawing the presumption that the accused people had a reason to take
away the dead body and the reason being that the death was caused by them.

BURDEN TO PROVE THE DEATH OF PERSON (Section 107)

Section 107 of the Indian Evidence Act, of 1872 speaks about, the “Burden of proving the death of a
person known to have been alive within thirty years”.

This section provides that where there is a question whether a man is alive or dead and if it is shown that
he was alive within a period of 30 years, the burden of proving that he is dead is on the person who
affirms it. Once it is shown or proved that a man was alive within a period of thirty years a presumption is
allowed to be raised under this provision as to the continuance of life of such person.

In Surjit Kaur v. Jhujhar Singh, a person was shown to be alive in the year 1960 and was presumed by
the court to be alive upto 30 years from that date. The evidence of his wife that her husband had gone to
Indonesia and more than 7 years had elapsed and he neither had any communication nor was heard of by
anyone since then, was held to be not sufficient to rebut the presumption under Section 107
BURDEN TO PROVE THAT PERSON IS ALIVE (Section 108)
The “burden of proving that a person is alive who has not been heard of for seven years” is mentioned in
Section 108 of the Indian Evidence Act, of 1872. According to this section, the burden of proving that a
man is alive shifts to the person who affirms that he is alive when it is disputed whether he is alive or dead
and it is established that those who would ordinarily have heard of him had he been alive did not do so for
a period of seven years.

Independent proof is required because there is only a basic presumption of death and not of the time of
death. The person claiming a right for the establishment of which such fact is necessary bears the burden
of establishing that death occurred at a specific moment within the span of 7 years.

BURDEN OF PROOF TO RELATIONSHIP (Section 109)

Section 109 of the Indian Evidence Act, of 1872 speaks about, the “Burden of proof as to relationship in
the case of partners, landlord, and tenant, principal and agent”. According to this clause, the law presumes
that any relationship or condition of affairs between individuals who have acted as partners, landlords and
tenants, or principals and agents will continue to exist unless the contrary is established. When it is proven
that people were in the aforementioned relationships—partners in a partnership business, landlord and
tenant, or principal and agent—and that they have been functioning in those capacities—a presumption
may be made that they are still in those relationships. The burden of demonstrating that they do not stand
or cease to stand in such a relationship is on those who wish to refute this presumption.

BURDEN OF PROOF TO OWNERSHIP (Section 110)

“Burden of proof as to ownership” is a concept mentioned in Section 110 of the Indian Evidence Act of
1872. When a person is demonstrated to be in possession of any property, Section 110 permits to raise a
presumption that he is the owner of such property and the burden of demonstrating that he is not the owner
is on the person who affirms that he is. Possession is the primary indicator of ownership, hence anyone
wishing to dispose of the possessor must prove that they have the legal authority to do so. The rule will
not hold true if the possession was obtained through deception or force. The term “possession” in this
clause must be construed as an actual current possession rather than a legal one.
Under this clause, a presumption may be raised in relation to both mobile and immovable property, as well
as by the government. But in cases where there is a statutory presumption of ownership in favour of the
government, it will not be applicable.

PROOF OF GOOD FAITH IN TRANSACTIONS (Section 111)

According to this clause, the duty of demonstrating the good faith of a transaction lies with the party who
is in a position of active confidence with the other party whenever a doubt regarding the transaction’s
good faith arises between the parties.

When two parties enter into a transaction while on equal footing, it is presumed that both parties have
good faith; however, when they are on unequal footing and one party is in a position of active confidence
over the other, it is their responsibility to demonstrate that both parties have good faith.

PRESUMPTION AS TO CERTAIN OFFENCES (Section 111-A)

Under this provision, where a person is accused of committing an offence under

(a) Section 121 (Waging or attempting to wage War or abetting Waging of war against the Govt. of India),

(b) Section 121-A (Conspiracy to commit an offence of waging or abetting to wage a War against the
Govt. of India),

(c) Section 122 (Collecting arms etc., with the intention of waging war against the Govt of India) and

(d) Section 123 (Concealing with intent to facilitate design to Wage War) of the Indian Penal Code in any:
1. 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; or

2. area in which there has been, over a period of more than one month, extensive, disturbance of public
peace, and when it is shown that such person had been at a place in such area at the time 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, the court shall
presume that such person had committed such offence unless contrary is shown child. The same
presumption arises where the marriage was dissolved and the child was born within 280 days after
dissolution, the mother remaining unmarried in the meantime.

The essential conditions for the presumption to arise are:

1. The child should have been born during the continuance of a valid marriage, or if the marriage was
dissolved, within 280 days after its dissolution, the mother remains unmarried.

2. The parties to the marriage should have had access to each other at any time when the child could have
been begotten.

PRESUMPTION AS TO ABETMENT OF SUICIDE BYA MARRIED WOMAN (Section 113-A)

By virtue of this clause, the court may assume that a woman’s suicide was encouraged or that she was
exposed to cruelty by her husband or any of his family if it occurs within seven years of the date of their
marriage. The husband or his kin is required to provide evidence to overcome the assumption.

In Arvind Kumar v. State of M.P, where the deceased wife committed suicide by setting herself on fire
because of harassment, humiliation and torture caused by the accused husband for bringing insufficient
dowry, the fact that the accused though present in the house at the time of the incidence made no attempt
to save the victim by not calling the doctor and not bothering to call a doctor, the presumption provided
under Sec. 113-A would be applicable.

PRESUMPTION AS TO DOWRY DEATH (Section 113-B)

When the question arises whether a person has caused the dowry death of the woman, if it is shown that
prior to the death of such woman, she had been subjected by such person to cruelty or harassment for or in
connection with the dowry demand, the court shall raise a death.

An adverse presumption that the accused was responsible for the dowry death in question may be raised
against him if the court determines that there are sufficient circumstances to demonstrate that the victim of
the dowry death was subjected by the accused to cruelty or harassment prior to her marriage. The phrase
“shall presume” in Section 113B requires the court to raise the presumption that the accused is to blame
for the dowry death. The burden of proof is to disprove the presumption referred to in the Section and
demonstrate that there are no circumstances that would indicate the putative victim of dowry death.

PRESUMPTION AS TO ABSENCE OF CONSENT IN CERTAIN PROSECUTION FOR RAPE

(Section 114-A)

The new rule has the effect of giving the court a presumptive answer when determining whether sexual
activity between a man and woman occurred with or without consent when the woman testifies in court
that it did not occur with her consent. The onus of demonstrating consent is now placed on the accused.
He commits a crime if he is unable to demonstrate that there was consent.

In re: State of Assam, Bipul Medhi The onus would then shift to the accused to demonstrate that his sexual
act with the prosecutrix was with her consent when sexual intercourse between the accused and the
prosecutrix is established to have occurred and the prosecutrix in such a case claimed in her testimony
before the court that she had not consented to the sexual act.
The following conditions have to be satisfied in order to raise an adverse presumption against the accused
for rape as to the absence of consent:

1. The fact of sexual intercourse between the accused and the victim must be proved.

2. The question must be before the court whether such inter-course was with or without the consent of the
alleged victim.

3. The statement of the victim before the court that she had not consented.
 Examination of witness
Examination of witnesses (Section 136-140, 143-153 and 155)
Section 136 of Evidence Act “Judge to decide as to admissibility of evidence”
If any party proposes to offer evidence of some fact, the judge may ask the party proposing to give
the evidence in what way the alleged fact would have been significant if it had been proven; and the
judge shall accept the evidence if he finds that it would have been relevant if it had been proved, and
not otherwise.

If the truth proposed to be proven is one of which evidence is admissible only on the basis of proof of
some other fact, the latter must be identified before the first evidence is presented, unless the party
undertakes to provide proof of that fact and the Court is pleased with that undertaking.

If the relevance of one of the alleged facts depends on whether another of the alleged facts is first
proven, the Judge may, in his discretion, either allow proof of the first facts to be presented before
the second facts are established, or order evidence of the second facts before the first facts are
established.[1]

137. Examination-in-chief.
The examination of a witness, by the party who calls him, shall be called his examination-in-chief.
Cross-examination- The examination of a witness 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.

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.
The examination and cross-examination must relate to relevant facts but the cross- examination need not
to be confined to the facts 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 by permission of the Court, introduced in re- examination, the adverse party may further cross-
examine upon that matter.

*Cross-Examination- Cross examination of plaintiff without conducting examination in chief of plaintiff

is not permissible. Under section 138 cross-examination follows chief-examination but not without chief-
examination.
Related Case- Smt. Shardamma v. Kenchamma 2007

ection 139 of Evidence Act “Cross-examination of person called to produce a document”

A individual summoned to produce a document does not become a witness by the simple fact that he
produces it and cannot be cross-examined unless and until he is called as a witness.

Section 140 of the Evidence Act “Witnesses to character”

Witnesses to characters can be cross-examined and re-examined.

Holt C.J. claimed in Haagen Swendress that a man is not born a jack, that there must be time to make him
so, or that he will be discovered shortly after he becomes one. A man will be considered a competent man
this year, and then be a beggar the next, it is tragic that a lot of men are going to happen, and this former
reputation would mean little to him in this case.[3]
 Who shell be witnesss
Introduction
The witness is considered an important part of criminal and civil cases. Justice is declared in the Court
based on the evidence required to be produced by the witness. A witness is considered to be a person who
has personally witnessed an event taking place. The Indian Evidence Act describes certain provisions
regarding persons capable of giving evidence in a Court of Law and its admissibility.

Section 118 of the Evidence Act described that a competent witness is that whom have an understanding
and ability to answer the questions that are asked to him by the court. Any individual can become a
witness. There is no curtailment on who can be witnessed. Any person such as a male, female, child or old
person can be considered as a witness. Only the limitations that the person must be competent to furnish a
reasonable answer in a Court. If a person can do this, it will not be considered as a witness.

An outstanding English scholar, Jurist Jeremy Bentham has given his opinion about the definition of
witnesses by considering the “witness as the ear and eye of justice”.

The witness is the person who is called to the Court by the higher authorities and whatever he has seen or
heard related to any case, he tells the Court so that the accused should be punished for his mistake and in
the interest of right by the Court, the decision can be taken. The witness is considered different from the
accused because it plays an important role in getting justice. Witnesses, therefore, play a vital role in
assisting the court in separating facts from allegations and claims made by both the parties in criminal and
civil cases.

As from the case, Madhuranatha vs State of Karnataka the phrase word has been defined is defined as a
person who is capable of providing information regarding relevant facts through oral statements and
written statements, that has been asked in the Court of law.

Importance of Witnesses
1. The witness is considered an integral part of the evidence.
2. Witnesses play an important role in functioning the just and fair trial in the Criminal Justice System.

3. In India, the judge can arrive at a conclusion in the context of the case with the help of the arguments
and evidence given by the prosecution and the defence.

4. State of Gujrat v. Anirudh Singh, the Supreme Court held the necessity and significance of witnesses
by asserting that “it is the important duty of every witness who knows about any crime to come to the
court to give evidence and help in taking the right decision”.

5. In the case of Mrs Neelam Katara v. Union of India & others, Justice Gita Mittal and Justice J.R.
Mirdha stated that the administration of justice depends on the witness, as he comes forward and gives his
testimony without any fear and pressure so that the right decision can be taken. If the witness gives his
statement out of fear, due to which the right decision will not be taken, then the administration of justice
becomes weak and despised.

Types of Witnesses

Interested Witness
Interested witnesses are those witnesses who wish to give relevant information to the Court in respect of
any matter to make the offender punishable. A willing witness wants that the accused to be behind the
prison for the crime he has committed.

For Example, X is a family friend of Y and Y has committed many crimes but Y was never caught by the
police. X always takes care of Y and is fully aware of what happened to Y. Suddenly Y was caught by the
police for committing a crime and was put in jail. X is considered a willing witness if he wants to make a
statement in court to prove that Y is a habitual offender. X is an interested witness and the motive is to
make the offender punishable.

State of Haryana vs Shakuntal, in this case the Court elucidate the term witness, The interesting witness
is that one who wants to give information about an accused can have many reasons, first, he has enmity
with him or there may be some other motive behind doing so. It is an uncontroversial fact that the
testimony of the intending witness may lack credibility and confirmation is essential for its acceptance.
Further, it is well settled that the intending witness wants the conviction of the accused, hence it is
necessary to exercise caution in the judicial approach while taking such testimony into account.

Chance Witness
Any person who is accidentally present at the crime scene or is passing through the crime scene and has
seen the incident happening, then it is called the chance witness.

For instance, A and B, famous businessmen are dealing drugs in an old house where no one lives or it can
be said that no one usually goes. And R is a news reporter passing through that street who was told about
the meeting to be held there. Suddenly R went to that place for a general inspection and saw that P who is
there, had a gun in his hand and wanted to kill Q, whereas R suddenly came here on the crime scene and
saw the incident with his own eyes. That’s why here news reporter R will be considered as chance witness.

The Namdev V. State of Maharashtra, through this case the Court had set a clear distinction between
natural witness or chance witness. Both these witnesses have to be trusted, provided their evidence is
credible and admissible by the law. But whatever chance witness and natural witness are saying, it will be
necessary to check their statement that whatever they are saying is reasonable or not. Its reliability should
be checked before trusting them that justify the law.

Stock Witness
Stock is defined as something that is kept or preserved as per availability for future use. A stock witness is
a person who stays on the back foot of the police and comes to testify in Court as per the directions of the
police. The testimony of a stock witness is not considered credible and the court tried not to rely on the
testimony made by such witness. While the judges dislike this kind of witness. Instead of relying on a
stock witness, the court must look at another piece of evidence to deliver a verdict in a case.

For instance, X will work as a witness for the police, whatever crime has been committed. Suppose an act
has been committed where the police and prosecution do not have enough evidence proof to justify their
case. Then here the police invite A to testify against the accused as a witness and A will say that he saw the
accused committing the crime. But this type of witness testifies only in favour of the prosecution, so the
court does not consider such a witness.

Ramesh Kumar vs State of Himachal Pradesh, in this case, Justice RL Khurana on the matter observed
that since the person was arrested under the Narcotic Drugs and Psychotropic Substances Act 1985, the
person had to undergo rigorous imprisonment for 10 years and a fine of Rs 1 lakh in default of payment,
the person had to undergo further imprisonment for one year. Independent witnesses did not appear during
the investigation and trial of the case and only stock witnesses appear in the case. No evidence was
presented by the accused and for that matter, in the absence of evidence, it could not be proved that the
stock witness provided by the policemen would be credible and hence the appeal was dismissed.

Eye Witness
Eyewitness means any person who is present at the crime scene and sees with his own eyes what
happened at the crime scene so such a person is called an eyewitness. Any person such as a stranger or
relative can be an eyewitness. It is commonly said that anything can deceive but the eyes cannot. From
the point of view of the evidence, eyewitnesses are considered important evidence in solving any case.
The Court must examine the witness strictly by the law. If the testimony is found to match with other
evidence, there is no harm in admitting such a witness.

For instance, Suppose A is a shopkeeper and has kept his shop open during midnight. One day B and his
cousin have made up a mentality to take revenge on C. So B and his cousin reached C’s house and beat
him so badly that his head started bleeding. B and his cousin thought that B’s condition was critical, then
ran away from the place and left B alone. This scene of the incident was witnessed by the shopkeeper. So
here the shopkeeper is considered an eyewitness because the incidents have happened in front of the
shopkeeper.

In Pratap Chauhan v Ram Naik, the Supreme Court held that the statement of an eyewitness need not be
ignored and it is important to examine the eyewitness with due care and care. The court further held that
the testimony of an eyewitness cannot be quashed on the ground of minor alterations.
In the landmark judgment of Vikas Kumar Roorkewal v State of Uttarakhand Ors, the Supreme Court
declared that that witness plays an important role in the criminal justice system and that every legislative
measure concerning witnesses contributes to the fundamental principle of a fair trial.

Related Witness
A person who is called a related witness is the one who has been called by his relative to be a witness or to
be produced as a witness. Any person’s statement shall not be discarded or rejected neither it can be said
that he’s biased in the case, due to the reason that he is the relative of the person who has called him to be
the witness. A related witness will always favour his relative and not the truth this should not be presumed
on their own. There is a condition in which related witness evidence must be appreciated in court that is
after strict scrutiny, it is found that his witness is something on which they can rely upon, and gives a hint
of trustworthiness and credibility of giving testimony.

Now the question arises who can be the concerned witness, for example, any person such as wife,
husband, brother, sister, father, mother or any relative of the individual. The statement of a person who
belongs to the party should be rigidly constructed, and every action should be put together to draw the
truth, this is done by common conscience when the person belongs to the party.

In the case of Bishan Das v. Crown, it was held that the mere fact that the evidence given by the wife
against her husband was accepted in the Court of Session without any objection, was taken by or on behalf
of the husband. Section 122 takes away the bar made by the IEA.

Material Witness
The witness who talks related to the critical facts or related issues in the suit or prosecution is known as a
material witness. Non-fulfillment to analyzing material witnesses in civil cases, hamper the conditions of
success of parties. Non-successful in analyzing the material witness by the pursuit in criminal cases might
turn out in clear acquittal of the accused. Individuals who are connected to the affair in civil matters,
needed to be brought as witnesses after all the analysis of those witnesses is compulsory. A material
witness is an observer in connection to the subject form of the litigation and it doesn’t signify medium
about parties.
Mohit vs the State of Haryana, the court observed that the material witness was not analyzed by the
pursuit through he was connected with the enquiry. In the time of evaluation of evidence, he was
summoned. His points were given up by pursuit as he succeed in the case. The prosecution doesn’t have to
analyze all witnesses connected to specific circumstances. But, the probative points of a few other
witnesses are not at all impacted due to it.

Official Witness
When an individual belongs to the police force and gives his statement in the Court of law, it will consider
as an official witness. The person on duty gives evidence in favour of the prosecution that’s why it is
termed as an official witness. It is said that the evidence of a police witness should not be rejected simply
because a person belongs to the police force, and hence he may be biased towards the prosecution to make
the case stronger. As such, their credibility cannot be doubted. The Court must examine the witness strictly
by the law, and if his testimony is matched by other evidence, there is no harm in admitting it. If the
official witness is credible and trustworthy, there is no reason to deny it.

For instance, suppose A is a police officer performing his night duty. Suddenly, A saw a man who is drunk
and running towards a street. A follows that man. When A reaches the place he saw that the man was
trying to kill his wife with a knife. So here A is considered as the official witness because the crime scene
took place in front of A.

Child Witness
If a child has the intellectual capacity to grant reasonable testimony relating to any case and the court is
satisfied with his statement, then that evidence shall be considered. Any child can testify in court within a
reasonable sound.

Algupandi v State of Tamil Nadu, Court proclaimed that a child is considered as a qualified witness but
the testimony of such a child witness tends to be reasonable, valid and verified by additional case
evidence. There is not any harm in accepting evidence given by the child witness.
It was held in the case of Ramu Alias Ram Kumar V. State, the Court must record the evidence of a child
witness in the form of question and answer, even if no procedure has been prescribed concerning how the
testimony of a child witness is recorded.

Defence Witness
In a criminal proceeding, the defence contests the validity and veracity of the prosecution’s case. At the
request of the defence, a witness is called to be known as a defence witness.

Right of Witness in India

Right to refuse to testify if the accused is a relative of a witness.
It has given the right to testify in a language familiar to the witness.
Witness has the right to seek legal aid.
Witness also has the right to see the fees for any expenses.
It is important to have a safe waiting area during court proceedings.
Witness Should have the right to know the status of investigation and prosecution of crime.
Witness has the right to be dealt with compassion and honour.
Witness has the right to be protected from harm and threat.
Witness has an important right to give evidence while remaining anonymous.
Right to stay in a safe place and transport.

Conclusion
In the evidence of the above, discussions victims and witnesses play a significant function in bringing
justice. They have important obligations and duties in the criminal justice system, and truth testimonies
are much expected of them. And only because of these, the accused get punished, as it has been learned
from the above discussion that there are different types of witness but all the witness has only one purpose
to punish the criminal so that there is fair and just treatment in the society. If possible, be afraid of doing
any other wrong to the victim. The right decision is taken only because of witnesses. The witness is in an
oral and documented form
Case law
Case No. 1

Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159: 1952 SCR 526

(Fazl Ali, B.K. Mukherjea and Bose JJ.)

(Judgment by Bose J.)

The appellant was convicted of the murder of a small boy of 5 years and sentenced to death. On the facts,
the Supreme Court allowed the appeal filed with special leave, and acquitted him of the charge of murder
and kidnapping. He was, however, convicted of an offence under section 201 following Begu v. The King
Emperor AIR 1925 PC 130: 52 IA 191. The Court pointed out, that where the murder committed is
particularly a cruel and revolting one, it is necessary to examine the evidence with more than ordinary
care, lest the shocking nature of the crime might prevent a dispassionate judicial scrutiny of the facts and
law.

Note.- This does not mean that in every case of delay the sentence must be reduced to imprisonment for
life. The death sentence may be maintained notwithstanding, delay, if the murder is brutal. Babu v. State,
AIR 1965 SC 1467.

2-Judgment in Pakala Narayana Swami v King Emperor

The Privy Council in Pakala Narayana Swami v King-Emperor rendered its opinion, asserting that the
statement provided by the accused was a mixture of confession and an attempt to explain his innocence. In
light of granting the benefit of doubt, the Privy Council overturned the accused’s conviction, elucidating
the following observations:
The term “confession” can be derived from an accused’s statement implying the inference that he
committed the crime.
A confession, by definition, either expressly admits to the offence or, at the very least, substantially admits
all the facts constituting the offence.
An admission of gravely incriminating facts, even if not conclusively incriminating, cannot be classified
as a confession.
A statement containing self-explanatory matter cannot qualify as a confession; it must either be accepted
in its entirety or rejected.
The statement of the deceased to his wife was recognised as a dying declaration and deemed admissible
under Section 32(1).