Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

Study Material

Law of Evidence- I

B.A.LL. B (HONS) V SEMESTER

Unit- 4

STATEMENT BY A PERSON WHO CANNOT BE CALLED AS WITNESS WHEN IT

RELATES TO THE CAUSE OF DEATH.

Justification for relevance of dying declarations.

Judicial standards for appreciation of evidentiary value of dying declarations.

Distinction between Indian and English law of dying declaration

Section 32, Cases in which statement of relevant fact by person who is dead or cannot be

found, etc., is relevant:

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot

be found, or who has become incapable of giving evidence, or whose attendance cannot be

procured without an amount of delay or expense which, under the circumstances of the case,

appears to the Court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death:

When the statement is made by a person as to the cause of his death, or as to any of the

circumstances of the transaction which resulted in his death, in cases in which the cause of that

person’s death comes into question. Such statements are relevant whether the person who made

them was or was not, at the time when they were made, under expectation of death, and

whatever may be the nature of the proceeding in which the cause of his death comes into

question.

(2) Or is made in course of business:

When the statement was made by such person in the ordinary course of business, and in

particular when it consists of any entry or memorandum made by him in books kept in the

ordinary course of business, or in the discharge of professional duty; or of an acknowledgment

written or signed by him of the receipt of money, goods, securities or property of any kind; or

of a document used in commerce written or signed by him; or of the date of a letter or other

document usually dated, written or signed by him.

(3) Or against interest of maker:

When the statement is against the pecuniary or proprietary interest of the person making it, or

when, if true, it would expose him or would have exposed him to a criminal prosecution or to

a suit for damages.

(4) Or gives opinion as to public right or custom, or matters of general interest:

When the statement gives the opinion of any such person, as to the existence of any public right

or custom or matter of public or general interest, of the existence of which, if it existed he

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

would have been likely to be aware, and when such statement was made before any controversy

as to such right, custom or matter had arisen.

(5) Or relates to existence of relationship:

When the statement relates to the existence of any relationship [by blood, marriage or adoption]

between persons as to whose relationship [by blood, marriage or adoption] the person making

the statement had special means of knowledge, and when the statement was made before the

question in dispute was raised.

(6) Or is made in will or deed relating to family affairs:

When the statement relates to the existence of any relationship [by blood, marriage or adoption]

between persons deceased, and is made in any will or deed relating to the affairs of the family

to which any such deceased person belonged, or in any family pedigree, or upon any tombstone,

family portrait, or other thing on which such statements are usually made, and when such

statement was made before the question in dispute was raised.

(7) Or in document relating to transaction mentioned in section 13, clause (a):

When the statement is contained in any deed, will or other document which relates to any such

transaction as is mentioned in section 13, clause (a).

(8) Or is made by several persons, and expresses feelings relevant to matter in question:

When the statement was made by a number of persons, and expressed feelings or impressions

on their part relevant to the matter in question.

Illustrations:

(a) The question is, whether A was murdered by B; or

A die of injuries received in a transaction in the course of which she was ravished. The question

is, whether she was ravished by В; or

The question is, whether A was killed by В under such circumstances that a suit would lie

against В by A’s widow.

Statements made by A as to the cause of his or her death, referring respectively to the murder,

the rape, and the actionable wrong under consideration, are relevant facts.

(6) The question is as to the date of A’s birth,

An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating

that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Calcutta on a given day.

A statement in the diary of a deceased solicitor, regularly kept in the course of business, that,

on a given day, the solicitor attended A at a place mentioned, in Calcutta, for the purpose of

conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written

by a deceased member of a merchant’s firm, by which she was chartered, to their

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

correspondents in London to whom the cargo was consigned, stating that the ship sailed on a

given day from Bombay harbour, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land.

A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and

held it at A’s orders, is a relevant fact.

(f) The question is, whether A and В were legally married.

The statement of a deceased clergyman that he married them under such circumstances that the

celebration would be a crime is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day.

The fact that a letter written by him is dated on that day, is relevant.

(h) The question is, what was the cause of the wreck of a ship.

A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way.

A statement by A, a deceased headman of the village, that the road was public, is a relevant

fact.

(j) The question is, what was the price of grain on a certain day in a particular market. A

statement of the price, made by a deceased banуа in the ordinary course of his business is a

relevant fact.

(k) The question is, whether A, who is dead, was the father of S. A statement by A that В was

his son, is a relevant fact.

(I) The question is, what was the date of the birth of A.

A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a

relevant fact.

(m) The question is, whether, and when, A and В were married.

An entry in a memorandum-book by C, the deceased father of. B, of his daughter’s marriage

with A on a given date, is a relevant fact.

(n) A sues В for a libel expressed in a painted caricature exposed in a shop window. The

question is as to the similarity of the caricature and its libellous character. The remarks of a

crowd of spectators on these points may be proved.

Comments:

Statement and object:

Sections 32 and 33 of the Evidence Act are exceptions to the general rule that hearsay evidence

is not admissible. Hearsay evidence is not entertained by the courts on the ground that the

evidence given by a person who does not have first-hand knowledge about the facts of the case.

Because, according to Section 60 of this Act oral evidence must always be direct, that is, the

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

person who has got first-hand knowledge about the facts of the case being entitled only to prove

the facts.

For ends of justice the law always demands best evidence to be produced before the court of

justice. The best evidence means evidence of the person who has made a statement or has

written a document by himself. This is a best evidence of the person who has got first-hand

knowledge about facts or original documents. When a witness appears before the court, he is

required to take oath and is subjected to cross-examination by the opposite party.

A second hand or hearsay evidence means derivative evidence. Hearsay evidence, according

to Taylor, “all the evidence which does not derive its value solely from the credit given to the

witness himself, but which rests also in part on the veracity and competence to some other

person.” When the person or document (best evidence) cannot be available in the court, then

the “other person” may be allowed by the court, who is not required to take oath or is put to

cross-examination, to testify the contents of the documents prepared by the person who is not

available for reasoned mentioned in Section 32. Thus, the hearsay evidence, is relevant when:

(i) there is necessity and (ii) the special circumstances guaranteeing genuineness and

trustworthiness. Section 32 is an exception to the hearsay rule. Unlike English law the Indian

law does not make it wholly inadmissible.

Principle:

Under section 32 evidence given by a person in a judicial proceeding or before a person

authorized by law to take evidence is relevant for the purpose of proving in a subsequent

judicial proceeding the truth of the facts stated therein. It imposes restrictions upon the

admissibility of statements made by persons who cannot be brought before the court to give

evidence. As there is no better evidence available the statements made under this section are

admitted as principle of necessity.” In other words, written or verbal statements of relevant

facts made by a person: —

(i) Who is dead;

(ii) Who cannot be found;

(iii) Who has become impossible of giving evidence; or

(iv) Whose attendance cannot be procured without unreasonable delay or expense, are relevant

under the following circumstances of the case:

1. When it relates to the cause of his death, or

2. When it is made in course of business, or

3. When it is made against the pecuniary or proprietary interest of the maker, or

4. When it gives opinion as to right, custom or matters of general interest, or

5. When it relates to the existence of any relationships, or

6. When it is made in will or deed or other document to family affairs or

7. When it is made in document relating to transaction mentioned in Section 13, Clause (1), or

8. When it is made by several persons, and expresses feelings to the matter in question.

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

Necessity of Section 32:

This section comes into operation when any statement of a person who is either dead or cannot

be found, or incapable to give evidence, or whose attendance is not possible without delay or

expenses. Before any previous statement of any one of such persons can be admitted under

section 32, at least one condition mentioned in clauses 1 to 8 must be fulfilled. In such

circumstances the court may admit the statement of other persons “who are in the court to

testify the previous statements of one of those above-mentioned persons.

When a previous evidence given by a witness is intended to be proved, the facts must be proved

strictly. In civil case the party can waive the proof, but in criminal cases strict proof must be

given that the witness is incapable of giving evidence. In the present days the dying declaration

has assumed much importance. But, the question as to how much weight can be attached to a

dying declaration is a question of fact.

Before admitting evidence under section 32 the court must be satisfied the reasons mentioned

in clauses (i) to (iv). If the person is dead, then the death must be proved. If the person making

a statement survives, then the statement cannot be used as a dying declaration. If a person is

not found after making certain statement, the court must be satisfied that all efforts of searching

were made and exhausted. Similarly, a witness after making statements became physically unfit

and totally invalid to depose before the court.

If that happens the court has to be satisfied by producing true evidence as to his permanent

incapacity. Sometimes it may happen that the witness is living in a foreign country and his

appearance before the court cannot be possible without unreasonable delay or expense. In these

circumstances relevant documents must be produced to satisfy the court that his abode in

foreign country is permanent. It may also happen that certain original document is in possession

of a person who is in abroad, the production of such document cannot be possible without delay

or expenses. In such situations Section 32 is also applicable.

1. Statement of a dying person (Clause 1):

A statement of a dying person is generally called dying declaration. A dying declaration is a

statement made by a person who is at the point of death and every hope of his life in the world

is gone; that is, when the declarant is under the expectation of death and there should be no

chance of operation of worldly motives. For example, A was assaulted and immediately

afterwards died. Before his death A made a statement that “B had assaulted him.” The statement

of A is admissible as to the cause of his death.

The death, whether it is the result of homicide of suicide is of no matter and the dying

declaration may be written or oral or may be partly written and partly oral. In some cases, it

may be neither written nor oral, but may be consist of some signs or gesture made by the

deceased. A dying declaration is, therefore, the last statement of the declarant who as under

“settled and hopeless expectation of death.” It is admitted in evidence because it is presumed

that no person who is immediately going into the presence of his maker, will do so with a lie

on his lip.” The Supreme Court while admitting the maxim, nemo moriturus proesumitur

mentisi (a man will not meet his maker with a lie in his mouth) as the basis of dying declaration,

held:

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

“The general principle on which the species of evidence is admitted is that they are declarations

made in extremity, when the party is at the point of death, and when every hope of this world

is gone, when every motive to falsehood is silenced and mind induced by most powerful

consideration to speak the truth; situation so solemn that law considers the same as creating an

obligation equal to that which is imposed by a positive oath administered in a court of justice.”

Thus, the following conditions must be fulfilled before accepting a declaration as dying

declaration or not:

(a) The person who made the statement must be died.

(b) The statement must relate to the cause of his death or any circumstances of the transaction

which resulted in his death.

(c) The proceeding must be one in which the deponent’s cause of death was in question.

(d) The proceeding may be civil or criminal.

Dying declaration in English and Indian Laws:

Although the dying declaration under Indian law is founded on English law there are

differences between the two legal systems:

1. Under English law the dying declaration in civil cases is not admissible. It is admissible in

civil cases in India.

2. In English law the dying declaration is admission in homicide case “where the death of the

deceased is the subject of the charge and circumstances of the death, the subject of the dying

declaration.” Under Indian Law if the cause of death of the deponent comes in question his

dying declaration is relevant irrespective of the nature of proceeding. There should be nexus

between the circumstances stated by the victim and his/her death.

3. In English law it is necessary that the declarant had been in actual danger of death after

receiving injuries and he should have abandoned all hopes of recovery. But, “if the declarant

failed to complete his statement and died, the dying declaration is inadmissible.” In India the

declarant’s death must have been ensured. It is immaterial whether the declarant was in actual

danger and he had abandoned all hopes of life. If the declarant had been alive, he would have

been a competent witness.

If the maker of a dying declaration was present in the court, making a statement stating the

facts contained in the declaration, with the difference that the declaration is not a statement on

oath and the maker thereof be subjected to cross-examination.

Statement relating to dying declaration:

Section 32(1) of the Evidence Act provides that the statement of the deceased may amount to

a dying declaration provided the statement either relates to cause of death or exhibits the

circumstances of transaction which resulted in his death. The statement of the declarant as to

the cause of death or circumstances leading to death would be relevant in a case in which the

cause of his death is the point of issue. If the statement is a reliable piece of evidence it can

form the basis of a conviction. “The veracity, reliability and truthfulness of the dying

declaration would be tested only after the evidence was recorded in court and if on proper

evaluation of such evidence, the court came to conclusion that the dying declaration was

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

truthful version then there is no question of any further corroboration as the conviction could

be based on such dying declaration only. The deceased stated that the accused poured kerosene

on her and set her on fire. Statement were recorded by the magistrate after the doctor found her

to be in position to give statement. Doctor endorsed the declaration. The conviction of the

accused was proper.

“The circumstances of the transaction which resulted in death” are wider in scope in application

than the expression “cause of death.” The proximity of the statement with the actual occurrence

has been found in the leading decision of the Privy Council in Pakala Narayana Swami v.

Emperor. Their Lordships held:

“The statement related to the circumstances of transaction which resulted in his death and so it

was relevant. They also held that, the statement made by the deceased that he proceeding to the

spot where he was killed or as to his reason for the proceeding or that he was going to meet a

particular person or that he had been invited by such person to meet him would each of them

be circumstances of the transaction and would be so whether the person unknown or was not

the person accused. ‘Circumstances of the transaction is a phrase no doubt that conveys some

limitations.

It is not as broad as the analogous use in ‘circumstantial evidence’ which includes evidence of

all relevant facts. It is on the other hand narrower than ‘res gestae.’ Circumstances must have

some proximate relation to the actual occurrence and must be of the transaction which resulted

in death of the declarant, though as for instance in case of prolonged poisoning they may be

related to dates at a considerable distance from the date of the actual total date.

It is not necessary that there should be a known transaction other than that the death of the

declarant has ultimately been caused, for the condition of the admissibility of the evidence is

that the cause of (the declarant) death comes into question.”

The Privy Council expressed the opinion that the statement of the accused was partly

confession and party an explanation for his innocence. By giving him benefit the Privy Council

set aside the conviction of the accused. But the statement made by the victim that “he was

proceeding to the spot where he was killed or as to his reason for so proceeding or that he was

going to meet a particular person or that he had been invited by such particular person to meet

him would each of them be circumstances of transaction.” The words statement as ‘to any of

the circumstances’ are by themselves capable of expanding the contours of the scope of

admissibility. When the word ‘circumstances’ is linked to ‘transactions’ which resulted in his

death the sub-section casts the net in a very wide dimension”. The principles laid down by the

Privy Council on dying declaration were accepted by the Supreme Court in Khushal Rao v

State of Bombay

Cases:

When the statement is the result of the replies to certain questions, it is not possible to assess

fully the value of the replies without knowing what the questions were, since the replies are

always given with reference to the questions put. It is, therefore, essential to record the

questions in the precise words in which the questions are put, and take down the answers in the

actual words in which the answers are given, when the statement is the result of questions put

and answers given. (Sherinath Durgaprasad v. State, 59 Bom. L.R. 221)

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

The Supreme Court had held that if a deceased fails to complete the main sentence (as for

instance, the genesis or motive for the crime) a dying declaration would be unreliable.

However, if the deceased has narrated the full story, but fails to answer the last formal question

as to what more he wanted to say, the declaration can be relied upon. (Kusa v. State of Orissa,

(1980) 2 S.C.C. 207)

In Kusa v. State of Orissa (above), the Supreme Court also laid down that if a dying declaration

is believed by the Court, a conviction can be based upon it without any further corroboration.

In another case decided by the Supreme Court, the deceased who had made the dying

declaration was seriously injured, but was conscious throughout when making the statement.

The Court held that minor incoherence in his statement with regard to facts and circumstances

would not be sufficient ground for not relying on his statement, which was otherwise found to

be genuine. (State of U. P. v. Suresh, (1981) 3 S.C.C. 635)

The Guwahati High Court has held that when the interested witnesses were attending on the

deceased when he was making a dying declaration, and because of the injuries, the deceased

was neither physically or mentally fit, no reliance could be placed on the dying declaration, in

the absence of evidence to show that the deceased was physically and mentally capable of

making the dying declaration, and was not the victim of any tutoring. (Gopal Chandra Bardhan

v. State, 1980 Cr. C.J. NOC 30).

Grounds for Admitting Dying Declaration:

The three main grounds on which dying declarations are admitted are:

(1) Death of the declarant;

(2) Necessity: The victim being generally the only eye-witness to the crime, the exclusion of

his statement would tend to defeat the ends of justice; and

(3) The sense of impending death, which creates a sanction equal to the obligation of an oath.

The general principle on which dying declarations are admitted is that they are declarations

made in extreme conditions, when the party is at the point of death, and when every hope of

this world is gone, when every motive to speak falsehood is silenced, and the mind is induced

by the most powerful considerations to speak the truth; a situation so solemn and so lawful is

considered by the law as creating an obligation equal to that which is imposed by a positive

oath administered in a Court of justice.

The reason for admitting dying declarations is well-reflected by Shakespeare in Richard II,

where he said—

“Where words are scarce, they are seldom spent in vain,

They breathe the truth that breathe their words in pain”.

The same theory is reflected in Mathew Arnold’s “Sohrab and Rustom” where he says—

“Truth sits upon the lips of dying men.”

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

Method of Proving Dying Declaration:

Statements relating to dying declarations, whether oral or written, must be duly proved. If the

statement is oral, persons who heard the statement should depose what they have heard. In the

case of written statements, it must be proved by the evidence of the person who recorded it.

If a dying declaration is made to a Magistrate, whether such a statement itself can be admitted

as evidence without calling the Magistrate as a witness, has been subjected to a great deal of

controversy. The more accepted view is that Section 80 of the Indian Evidence Act is not

applicable to a dying declaration made to a Magistrate. Therefore, the Magistrate must be called

to prove it.

It was observed, in one Calcutta case, that the writing made by a Magistrate could not be

admitted to prove the statement made by the deceased. The statement must have been proved

in an ordinary way by a person who heard it made. It was further observed, in another Calcutta

case, that the statement is not admissible in evidence when made in the absence of the accused.

The oral statement of the deceased, and not the record of such a statement, must be proved by

the person who recorded it or heard it made. But in an Allahabad case, it was held that a dying

declaration recorded by a Magistrate can be tendered in evidence without the Magistrate who

recorded it, being called, by virtue of Section 80 of the Indian Evidence Act. But this view of

the Allahabad High Court has not been generally accepted by other High Courts.

Section 32(2) makes a statement of a person who had died relevant, only when that statement

is made by a person as to the cause of his death, or as to any of the circumstances of the

transaction which resulted in his death, in cases in which the cause of that person’s death comes

into question.

When the person making the statement is not proved to have died as a result of the injuries

received in the incident, his statement cannot be said to be the statement as to the cause of his

death or as to any of the circumstances of the transaction which resulted in his death. (Moti

Singh v. State of U.P., A.I.R. 1964 S.C. 900)

If the statement made by the deceased does not relate to his death, but to the death of another

person, it is not relevant. (Ratan Gond v. State of Bihar, A.I.R. 1959 S.C. 18)

It may also be noted that a dying declaration cannot be proved, unless the death of the person,

who made the declaration is also proved. (See Section 104)

The Evidentiary Value of Dying Declaration:

In Ramnath v. State, (1953 S.C. 420), the Supreme Court has observed that it is a settled law

that it is not safe to convict an accused person merely on the evidence furnished by a dying

declaration, without further corroboration, because such a statement is not made on oath, and

is not subject to cross-examination, and because the maker of such a statement might be

mentally and physically in a state of confusion and might well be drawing upon his imagination

when he was making the declaration.

However, these observations of their Lordships in the above case were held to be in the nature

of ‘obiter dicta’ in Khusal Rao v. State of Bombay, (A.I.R. 1958S.C.22), and the following

principles were laid down:

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

(1) It cannot be laid down as an absolute rule of law that a dying declaration cannot form the

sole basis of conviction, unless it is corroborated.

(2) Each case must be determined on its own facts, keeping in view the circumstances in which

the dying declaration was made.

(3) It cannot be laid down as a general proposition that a dying declaration is a weaker kind of

evidence than other pieces of evidence.

(4) A dying declaration stands on the same footing as any other piece of evidence, and has to

be judged in the light of surrounding circumstances and with reference to the principles

governing the weighing of evidence.

(5) A dying declaration which has been recorded by a competent Magistrate, in the proper

manner, that is to say, in the form of questions and answers, and as far as practicable, in the

words of the maker of the declaration, stands on a much higher footing than a dying declaration

which depends upon oral testimony, which may suffer from all the infirmities of human

memory and human character.

(6) In order to test the reliability of a dying declaration, the Court has to keep in view several

circumstances, like the opportunity of the dying man for observation, etc. Hence, in order to

pass the reliability test, a dying declaration has to be subjected to a very close scrutiny, keeping

in view the fact that the statement has been made in the absence of the accused, who had no

opportunity of testing the veracity of the statement by cross-examination. But once the Court

has come to the conclusion that the dying declaration was the truthful version as to the

circumstances of the death and assailants of the victim, there is no question of further

corroboration.

If, on the other hand, the Court after examining the dying declaration in all its aspects and

testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers

from an infirmity, then, without corroboration, it cannot form the basis of a conviction, Thus,

the necessity for corroboration arises, not from any inherent weakness of a dying declaration

as a piece of evidence, but from the fact that the Court, in a given case, has come to the

conclusion that a particular dying declaration was not free from the infirmities referred to above

or from other infirmities as may be disclosed in evidence in that case. [This view was

reaffirmed by the Supreme Court in Harbans Singh v. State of Punjab, (A.I.R. 1962 S.C. 439)].

It has also been held, in Pompiah v. State of Mysore, (A.I.R. 1965 S.C. 939), that if the Court

finds that the declaration is not wholly reliable, and that an integrate portion of the deceased’s

version of the entire occurrence is untrue, the Court may, having regard to all the circumstances

of the case, consider it unsafe to convict the accused on the basis of the declaration alone

without further corroboration.

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

Relevancy of Judgments: General principles (Sec.40-44)

• Admissibility of judgments in civil and criminal cases

• Fraud and Collusion (Sec.44)

Section 40, Previous judgments relevant to bar a second suit or trial: The existence of any

judgment, order or decree which by law prevents any Courts from taking cognizance of a suit

or holding a trial is a relevant fact when the question is whether such Court ought to take

cognizance of such suit, or to hold such trial.

Section 41, Relevancy of certain judgments in probate, etc., jurisdiction: A final judgment,

order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or

insolvency jurisdiction which confers upon or takes away from any person any legal character,

or which declares any person to be entitled to any such character, or to be entitled to any

specific thing, not as against any specified person but absolutely, is relevant when the existence

of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof—

That any legal character, which it confers accrued at the time when such judgment, order or

decree came into operation;

That any legal character, to which it declares any such person to be entitled, accrued to that

person at the time when such judgment, order or decree declares it to have accrued to that

person;

That any legal character which it takes away from any such person ceased at the time from

which such judgment, order or decree declared that it had ceased or should cease;

And that anything to which it declares any person to be so entitled was the property of that

person at the time from which such judgment, order or decree declares that it had been or

should be his property.

Section 42, Relevancy and effect of judgments, orders or decrees, other than those

mentioned in Section 41: Judgments, orders or decrees other than those mentioned in Section

41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such

judgments, orders or decrees are not conclusive proof of that which they state.

Illustration:

A sues В for trespass on his land. В alleges the existence of a public right of way over the land,

which A denies.

The existence of a decree in favour of the defendant, in a suit by A against С for a trespass on

the same land in which С alleged the existence of the same right of way, is relevant, but it is

not conclusive proof that the right of way exists.

Section 43, Judgments, etc., other than those mentioned in Sections 40 to 42, when

relevant: Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42,

are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is

relevant under some other provisions of this Act.

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

Illustrations:

(a) A and В separately sue С for a libel which reflects upon each of them. С in each case says,

that the matter alleged to be libellous is true, and the circumstances are such that it is probably

true in each case, or in neither.

A obtains a decree against С for damages on the ground that С failed to make out his

justification. The fact is irrelevant as between В and C.

(b) A prosecutes В for adultery with C, A’s wife.

В denies that С is A’s wife, but the court convicts В of adultery.

Afterwards, С is prosecuted for bigamy in marrying В during A’s lifetime. C, says that she

never was A’s wife.

The judgment against В is irrelevant as against C.

(c) A prosecutes В for stealing a cow from him, B, is convicted.

A afterwards sues С for the cow, which В had sold to him before his conviction. As between

A and C, the judgment against В is irrelevant.

(d) A has obtained a decree for the possession of land against В, C, B’s son, murders A in

consequence.

The existence of the judgment is relevant, as showing motive for a crime.

(e) A is charged with theft and with having been previously convicted of theft. The previous

conviction is relevant as a fact in issue.

(f) A is tried for the murder of В. The fact that В prosecuted A for libel and that A was convicted

and sentenced is relevant under section 8 as showing the motive for the fact in issue.

Section 44, Fraud or collusion in obtaining judgment, or incompetency of Court, may be

proved: Any party to a suit or other proceeding may show that any judgment, order or decree

which is relevant under sections 40, 41 or 42 and which has been proved by the adverse party,

was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Section 40 to Section 44 of the Indian Evidence Act, 1872 lay down the provisions relating to

judgements of Court of Justice, when relevant. Section 40 deals with the previous judgements

to bar a suit or trial. Section 41 deals with the relevancy of certain judgements in probate etc.

jurisdiction. Section 42 deals with relevancy and effect of judgements orders or decrees other

than those mentioned in Section 41. Section 43 relates to judgements etc. Other than those.

Mentioned in Sections 40 to 42, when relevant. Section 44 speaks about fraud or collusion in

obtaining judgement or incompetence of Court, may be proved.

The object of the provision of this chapter is to avoid multiplicity of the suit and to save

precious time of the Court. There should be end of litigation in the interest of justice S.11 of

C.P.C deals with Doctrine of res Judicata which signifies that when a matter of fact has been

finally and conclusively resolved by a competent court. the same matter cannot be re-litigated

once again.

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

Kinds of Judgements

Judgements are classified into two types –

i) Judgement in Rem; and

ii) Judgement in Personam

i) Judgement in Rem:

Judgements affecting the legal status of some subject matters, persons or things are called

'Judgments in rem’. e.g. Divorce Court Judgement, grant of probate or administration etc. Such

judgements are conclusive evidence against all the persons whether parties to it or not.

ii) Judgement in Personam:

Judgements in personam are all the ordinary judgements not affecting the status of any subject

matter, any person or anything. In such judgements, the rights of the parties to the suit or

proceedings are determined.

Under section 40 to 44, a Judgement is not relevant to prove that the plaintiff has filed a false

case. (hassan Abdullah vs. State of Gujarat, AIR 1962 Guj214: 1962(2) Cr.LJ 55)

Distinction Between Judgement in Rem and Judgement in Personam

No. Judgment in rem Judgment in Personam

1) Judgment in rem is

adjudication pronounced

upon the status of a

person or a thing by a

competent court to the

world generally.

Judgments in Personam are all

the ordinary judgments not

affecting the status of any

subject matter, any person or

anything.

2) Judgment of a court in

exercise of probate,

matrimonial or

insolvency jurisdiction

confirming or taking

away any legal character

are judgments in rem

The judgments of the civil court

are the judgments in Personam.

3) It is binding on all

persons, whether they are

parties to those

proceedings or not.

It is binding on the parties to the

suit only.

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

Relevancy of Judgment

A) Previous Judgements relevant to bar a second suit or trail (Section 40)

The existence of any judgment, order or decree which by law prevents any court from taking

cognizance of a suit or holding a trial, is a relevant fact when the question is, whether such

Court ought to take cognizance of such suit or to hold such trail.

Section 40 permits evidence of the previous judgement, order or decree which by law prevents

any Court from taking cognizance Of a Suit or holding a trial, when the question arises whether

such Court oath to take cognizance of such suit to hold such trial.

The object of the provision is to avoid multiplicity of the suits and to save the precious time of

the Court. In Civil Procedure Code Section 11 provides rule of Res Judicata and in Cr.P.C and

constitution it is provided that no one shall be punished for the same offense twice, based on

the maxim nemo debet bis vexari pro una et eadem causa, i.e. rule of double jeopardy.

B) Relevancy of certain judgements in probate, etc., jurisdiction (Section.41)

A final judgment, order or decree of a Competent Court, in exercise of probate, matrimonial,

admiralty or insolvency jurisdiction, which confers upon or to take away from any person any

legal character, or which declares any person to be entitled to any such character, or to be

entitled to any specific thing not as against any specified person but absolutely, is relevant

when the existence of any legal character, or the title of any such person to any such thing, is

relevant.

Such judgment, order or decree is conclusive proof –

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

decree come into operation;

ii) That any legal character to which it declares and such person to be entitled, accrued to that

person at the time when such judgment, order or decree declares it to have accrued to that

person;

iii) That any legal character to which it takes away from any such person ceased at the time

from which such judgment, order or decree declared that it had cased or should cease.

iv) And that anything to which it declares any person to be so entitled was the property of that

person at the time from which such judgment, order or decree declares that it had been or should

be his property.

Section 41 deals with what is known as judgement in rem, which not only bind the parties

at the representatives to it, but also are binding as against the whole world.

For a judgement to be binding and conclusive proof under section 41 the following conditions

have to be satisfied –

1) The judgement must be a final judgement.

2) The court delivering the judgement must be competent.

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

3) The judgement must have been delivered by the court in the exercise of Probate, size of

Matrimonial, Admiralty or Insolvency jurisdiction.

4) The judgement must confer on or take away from any person any legal character or declare

that any person is entitled to such legal character or declared that any person is entitled to any

specific thing absolutely.

C) Relevancy and effect of judgements, orders or decrees, other than those mentioned in

Section 41 (Section 42)

According to Section 42, Judgments, orders or decrees other than those mentioned in Section

41, are relevant if they relate to matters of a public nature relevant to the inquiry; nut such

judgments, orders or decrees are not conclusive proof of that which they state.

Illustrations:

A sues B for trespass on his land, B alleges the existence of a public right of way over the land,

which A denies.

The existence of a decree in favour of the defendant, in a suit by A against C or a trespass on

the same land, in which C alleged the existence of the same right of way, is relevant, but it is

not conclusive proof that the right of ways exists.

D) Judgements etc other than those mentioned in Sections 40 to 42, when relevant (Section

43)

Section 43 Provides, that Judgments, orders or decrees other than those mentioned in Sections

40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in

issue, or is relevant, under some other provision of this Act.

Illustrations:

a) A and B separately sue C for a libel which reflects upon each of them C in each case says

that the matter alleged to libellous is true and the circumstances are such that it is probable true

in each case, or in neither.

A obtains a decree against C for damages on the ground that C filed The Orient Tavern make

out his justification. The fact is irrelevant as between B and C.

b) A prosecutes B for adultery with C, A’s wife.

B denies that C is A’s wife, but the court convicts B of adultery.

Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. CC says that she

never was A’s wife.

The judgment against B is irrelevant as against C.

c) A prosecuted B for stealing a cow, from him, B is convicted.

A, afterwards, sues C for cow, Which B had sold to him before his conviction. As between A

and C, the judgment against B is irrelevant.

d) A has obtained a decree for the possession of land against A, C, B’s son murders A in

consequence.

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

The existence of the judgment is relevant, as showing motive for a crime.

e) A is charged with theft and with having been previously convicted of theft. The previous

conviction is relevant as a fact in issue.

f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted

and sentenced is relevant under Section 8 as showing the motive for the fact in issue.

The purpose of this Section is to prohibit the judgements from being given in evidence which

are neither enter parts nor a judgement in rem nor a judgement relating to matters of public

nature. Section 43 provides that judgement, orders or decrees other than those mentioned in

Section 40, 41 and 42 are irrelevant and cannot be proved unless the existence of Such

judgement, order or decree is a fact in issue is relevant under some other provision of the act.

E) Fraud or collusion in obtaining judgement, or incompetency of court, may be proved

(Section 44) –

The general rule is, a judgement of a competent court shall be binding on the parties operating

as Res Judicata in subsequent proceedings between the same parties. Section 44 contains

exception to this rule. According to Section 44, a judgement is liable to be annulled /impeached

on the ground of a) of want of Jurisdiction; b) fraud; and c) collusion. It runs as follows...

Any party to a suit or other proceeding may show that any judgment, order or decree which is

relevant under Section 40,41 or 42 and which has been proved by the adverse party, was

delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

The chapter of Judgement of Court of Justice, when relevant from Section 40 to Section 44

based on Doctrine of Res Judicata and Doctrine of autre fois convict, means same person

cannot be convicted for the same offense twice. It is also known as doctrine of double

geopardy as contemplated under article 22(ii) of the Indian Constitution. Section 41 deals with

doctrine of judgement in rem, which not only binds the parties and their representatives to it,

but also are binding against the whole world. Section 42 provides that judgements, orders or

decrees other than those mentioned in Section 40 and Section 41 are admissible if they relate

to matters of public nature relevant to inquiry. Section 43 provides that judgements orders or

decrees other than those mentioned in Section 40, 41 and 42 are irrelevant and cannot be proved

unless the existence of such judgement, order or decree is a fact in issue or is relevant under

some provision of this act. Section 44 provides the procedure for the purpose of getting a

judgement annulled on the ground of want of jurisdiction, fraud and collusion.

Suggested Readings:

1. Indian Evidence Act, 1872 (Relevant Statutory Provisions)

2. Monir: Law of Evidence

3. Batuk Lal: Law of Evidence

4. Ratan Lal & Dhiraj Lal: Law of Evidence

5. Avtar Singh: Principles of Law of Evidence

6. Tandon: Indian Evidence Act

7. R. Dayal: Indian Evidence Act

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

8. Dr. Satish Chandra: Indian Evidence Act