No one would make a statement against their interest unless it were
true
Parties cannot reasonably object to the use in evidence against of
their own statements
Definition of Admission [S.17]
An admission is a statement
oral or documentary
which suggests an inference
as to any fact in issue or relevant fact
made by a person
in certain circumstances
**
it is an out of court statement tendered to prove the truth of the statement. For
example, if a husband sues his wife for divorce on the grounds of adultery, and
she states out of court that she has had affairs, her statement is an
admission. Any admission made by a party is admissible evidence in a court
proceeding, even though it is technically considered hearsay (which is normally
inadmissible). Lawyers tell their clients not to talk to anyone about their
case or about the events leading up to it in order to prevent their clients
from making admissions.
The term
admission is usually applied to civil transactions, and to matters of fact in
criminal cases, where there is no criminal intent the term confession is
generally considered as an admission of guilt.
The
admissibility and effect of evidence is considered generally, with respect to
the nature and manner, of the admission itself and, secondly, with respect to
the parties to be affected by it.
In the
first place, as to the nature and manner of the admission; it is either made
with a view to evidence; or, with a view to induce others to act upon the
representation; or, it is an unconnected or casual representation.
As an
instance of admission made with a view to evidence may be mentioned the case
where a party has solemnly admitted a fact under his hand and seal, in which
case he is, estopped, not only from disputing the deed itself, but every fact
which it recites.
Instances
of thing second class of admissions which have induced others to act upon them
are those where a man has cohabited with a woman, and treated her in the front
of the world as his wife, or where he has held himself out to the world in a
particular character he cannot in the one case deny her to be his Wife when
sued by a creditor who has supplied her with goods as such, nor in the other
can he divest himself of the character be has assumed.
Where the
admission or declaration is not direct to the question pending, although
admissible, it is not in general conclusive evidence; and though a party may by
falsifying his former declaration, show that he has acted illegally and
immorally, yet if he is not guilty of any breach of good faith in the existing
transaction, and has not induced others, to act upon his admission or
declaration, nor derived any benefit from it against his adversary, be is not
bound by it. The evidence in such cases is merely presumptive, and liable to be
rebutted.
Secondly,
with respect to the parties to be affected by it. 1. By a party to a suit. The
admissions of the party really interested, although he is no party to the suit,
are evidence.
Oral or Documentary Admissions
oral or documentary admissions contained in any previous
pleadings, depositions, petitions
deeds, account books, horoscopes
roadcess returns, returns to collector
arbitration proceedings, first information reports
deeds of compromise
even statements in cancelled or invalid instruments
or unstamped documents are receivable.
Oral Admissions [S.22]
as to contents of document are relevant
when the party tendering evidence
succeeds for the reception of secondary evidence
**Admissions
Are Express Or Implied. An express admission is one made in direct terms. An
admission may be implied from the silence of the party, and may be presumed. As
for instance, when the existence of the debt, or of the particular right, has
been asserted in his presence, and he has not contradicted it. And an
aquiescence and endurance, when acts are done by another, which if wrongfully
done, are encroachments, and call for resistance and opposition, are evidence,
as a tacit admission that such acts could not be legally resisted.
Admission
can be form al and informal.**
Made by a Person
parties to a suit or proceeding [S.18]
an agent authorised by such party [S.18]
by suitor in representative character [S.18]
parties having proprietary or pecuniary interest [S.18(1)]
predecessor-in-title [S.18(2)]
persons whose position is in issue [ S.19]
statements by referees [S. 20 ]
**An admission is the testimony which the party admitting bears to the
truth of a fact against himself. It is a voluntary act, which he acknowledges
as true the fact in dispute.**
Admission is the best evidence against the party making it [S.21]
Exception to the Rule
when it is of such a nature that if the person making it were dead, it
would be relevantas between third
persons under section 32
when it consists of a statement of the existence of any state of mind
or body, relevant or in issue, made at or about the time when such state of
mind or body existed, and is accompanied by conduct rendering its falsehood
improbable
if it is relevant otherwise than as an admission.
Mode of Proof of Admissions
It is a substantive piece of evidence
The maker of the admission need not be called as a witness
Admissions without prejudice [S.23]
In
Practice. It, frequently occurs in practice, that in order to save expenses as
to mere formal proofs, the attorneys on each side consent to admit,
reciprocally, certain facts in the cause without calling for proof of them.
These are
usually reduced to writing and the attorneys shortly add to this effect,
namely, ' We agree that the above facts shall on the trial of this cause be
admitted, and taken as proved on each side;' and signing two copies now called,
'admissions ' in the cause, each attorney takes one.
Evidentiary Value of Admission
Admission is the best evidence against the party making it
Admission is relevant but not conclusive
An admission which amounts to estoppel is conclusive in nature [S.31]
The Evidence Act, originally passed by the British parliament in 1872, contains a set of
rules and allied issues governing admissibility of any evidence in the courts
of law. The enactment and adoption of the Evidence Act was a path-breaking
judicial measure introduced in British India, which changed the entire system of
concepts pertaining to admissibility of evidences in the courts of law. Up to
that point of time, the rules of evidences were based on the traditional legal
systems of different social groups and communities of British India and were
different for different persons depending on his or her caste, religious faith
and social position. The Evidence Act removed this anomaly and differentiation,
and introduced a standard set of law applicable to all citizens.
The Evidence Act of 1872 is mainly based upon the firm work by Sir James Fitzjames Stephen, who could be
called the founding father of this comprehensive piece of legislation. The
Evidence Act, identified as Act no. 1 of 1872, and called the Evidence Act, 1872, has eleven chapters and
167 sections, and came into force on 1st September1872. Over a period of
approximately 140 years since its enactment, the Evidence Act has basically
retained its original form except certain amendments from time to time.
When Pakistan and India gained independence on 14th and 15th August1947 respectively, the Act
continued to be in force throughout the Republic of Pakistan
and India except the state of Jammu and
Kashmir. After the Independence of Bangladesh in 1971, the Act
continues to be in force in Bangladesh, however it was repealed in Pakistan in
1984 by the Evidence Order 1984 (also known as the
"Qanun-e-Shahadat"). It also applies to all judicial proceedings in
the court , including the court martial as well. However, it does not apply to
affidavits and arbitration.
Law in Bangladesh ( British India) has
evolved from religious prescription to the current constitutional and
legal system we have today, traversing through secular legal systems and the
common law.
Secular law in British India varied widely from region to region and
from ruler to ruler. Court systems for civil and criminal matters were
essential features of many ruling dynasties of ancient India. Excellent secular
court systems existed under the Mauryas (321-185 BCE) and the Mughals (16th
– 19th centuries) with the latter giving way to the current common
law system.
Law
in British-ruled India
The common law system – a system of law
based on recorded judicial precedents- came to British India with the British
East India Company. The company was granted charter by King George I in 1726
to establish “Mayor’s Courts” in Madras, Bombay and Calcutta (now Chennai,
Mumbai and Kolkata respectively). Judicial functions of the company expanded
substantially after its victory in Battle of Plassey and by 1772 company’s
courts expanded out from the three major cities. In the process, the company
slowly replaced the existing Mughal legal system in those parts.
Following the First War of Independence in 1857, the control of company
territories in India passed to the British Crown. Being part of the empire it saw
the next big shift in the Indian legal system. Supreme courts were established
replacing the existing mayoral courts. These courts were converted to the first
High Courts through letters of patents authorized by the Indian High Courts Act
passed by the British parliament in 1862. Superintendence of lower courts and
enrolment of law practitioners were deputed to the respective high courts.
During the Raj, the Privy Council acted as the highest court of appeal.
Cases before the council were adjudicated by the law lords of the House of
Lords. The state sued and was sued in the name of the British sovereign in her
capacity as Empress of India.
During the shift from Mughal legal system, the advocates under that
regimen, “vakils”, too followed suit, though they mostly continued their
earlier role as client representatives. The doors of the newly created Supreme
Courts were barred to Indian practitioners as right of audience was limited to
members of English, Irish and Scottish professional bodies. Subsequent rules
and statutes culminating in the Legal Practitioners Act of 1846 which opened up
the profession regardless of nationality or religion.
Coding of law also began in earnest with the forming of the first Law
Commission. Under the stewardship of its chairman, Thomas Babington Macaulay,
the Indian Penal Code was drafted, enacted and brought into force by 1862. The
Code of Criminal Procedure was also drafted by the same commission. Host of
other statutes and codes like Evidence Act (1872) and Contracts Act (1872).
Confusion in the Beginning
There was at first confusion as to the
applicable law of evidence in the Courts of India. It was because of
introduction of English law from 1773 to 1783 through Regulations in the three
presidencies and the pre existing Muslim and Hindu Law. There were differences
of opinion regarding the different statutes of English law prior to 1726;
whether they were applicable to British residents only or to natives also.
The Law in The Presidency Towns
It is claimed by some of the authors that
English law prevailed in the Presidency towns from 1726. Some rules were found
in subsequent statutes which expressly extended to India. An initiative was
taken by the British government to introduce English law in India in 1773. In
pursuance of the Regulating Act of 1773 the Supreme Court was established by
Royal Charter dated 26 March,1774 in Calcutta.
The Regulating Act of 1781 which was passed to explain and amend the Act of
1773 mentioned in the preamble that, “inhabitants should be maintained and
protected in the enjoyment of all their ancient laws, usages, rights and
privileges.” The Muslims and Hindus were to be ruled by their personal law for
contractual matters, inheritance rights etc. Section 17 of the same Act
provided thatthe Supreme Court might
frame and execute rules, which would accommodate the religion and manners of
the natives, so far as the same might consist with due execution of laws and
attainment of justice. 1781 is also the year of termination of many confusion
as the era of independent Indian legislation started. A uniform system of legislation prevailed only
at the close of 1807.(Within the
Presidency towns of Calcutta, Bombay and Madras, the courts established by
Royal Charter followed the English rules of Evidence.)
The Law in the Mufassil
Outside the Presidency towns there was no
fixed rules of Evidence. The law was vague and indefinite. Customary law also
prevailed The Mufassil Courts used to be guided by occasional directions and a
few rules of evidence and procedurecontainedin the Regulations made
between 1793-1834 for the Presidency towns. CJ Peacock observed in the case of R v.
Khairulla that
English Law of Evidence was not the law of
the mufassil courts and it was further held that Hindu and Muslim laws were not
also applicable to those courts. There being no fixed and definite rules of
evidence, the administration of the law of evidence was far from being
satisfactory. A vague customary law of evidence, partly drawn from Hidaya and
decision of Muslim law officers, partly from English text-books and arguments
of the English barristers and partly from lectures delivered since 1855 in the
Presidency towns.In 1871 in the
proceedings of the Legislative Council on 18 April, Fitzjames Stephen, when
introducing the Bill on Evidence Act, expressed his views that it would be
exceedingly difficult to say precisely to what extent the English law of
evidence appears to be in force in British India. Till 1864 the Judges were
assisted by the Maulvis.
Regulations and Acts
A series of Regulations and Acts were
passed for a period of 77 years in matters relating to evidence and witness
testimony. All laws passed after 1781 saw a greater understanding of the
existing law of the country.
Admissibility of a non-Muslim witness in
criminal casesin Bengal (Section 56, Bengal Regulation IX of 1793)
All persons are competent witnesses who
have arrives at years of discretion and are of sane mind ( Section XXXIII, Cl.
First, Bombay
Regulation IV of 1827) The Court may entertain evidence of a witness who
isa convict, or relative, or inimical
or interested, if it seems conducive to the endsof justice (Section XXXIII, Cl. Second, Bombay
Regulation IV of 1827)
The above rule extended to criminal cases
(Section XXXV, Cl. First, Bombay Regulation XIII of 1827)
Accomplice could be pardoned on his
promising fully and faithfully to disclose all the circumstances within his
knowledge and to give his evidence throughout the trial without prevarication
or fraud in a case of murder or other offence of highly atrocious nature. The
pardon could only be granted if it appeared that the prosecution would fail
altogether and it is necessary to procure the conviction or apprehension of
criminal/s. (Section XXXIV, Cl. First, Bombay Regulation XII of 1827)
The evidence of an accomplice shall operate
against a prisoner if it corroborates with other witnesses or strengthens
impressions produced by the circumstances. Section XXXV, Cl. Second, Bombay
Regulation XII of 1827)
The pardon to an accomplice in treason
cases will be directed by the government. Section XXXVI,Bombay
Regulation XII of 1827)
In a criminal trial, the judge shall direct
the examination of a witness if he is a non Muslim, or police officer, or a
government officer or of any other descriptiondespite the objection raised by the Muslim law officer which objection
if seems to be unreasonable or insufficient to him. Section VIII, Madras
Regulation I of 1825)
Evidence Admissible of convicted persons in
civil or criminal cases (Act XIX of 1837, Act VII of 1844)
relatives are competent witnesses(Section
3, Act XIX of 1853)
interested witnesses are competent to
testify (Act IX of 1840, Act VII of 1844, Section 3, Act XIX of 1853)
parties both competent and compellable
(Sections 2, Act XV of 1852 and 3, Act XIX of 1853)
Initially husband and wife were declared
not to be compelled to give evidence for or against each other. ( Section 4,
Act XV of 1852) Later the rule was relaxed in Bengal. The exception was
extended to communications between married persons, which were considered to be
privileged unless the marriage was in dispute (Section 4, Act XIX of 1853)
Act XIX of 1853 was applicable to Bengal
only.
Act II of 1855 contained a substantive part
of the law of evidence before 1872 was
passed. Some of the above rules of competency were re declared by this Act. For
example
no interested witness or relative is incompetent to testify (S. 18)
parties to the suit are competent, may be
compelled to testify and produce documents (S. 19)
husband and wife are competent witnesses
for or against each other in civil suits. Communication during marriage are
considered as privileged matter unless the marriage is in dispute (S. 20)
Child under seven who is incapable of
understanding and giving rational answers is incompetent to testify (S. 14,
cl.1)
a person of unsound mind is incompetent to
testify ( S. 14 cl. 2)
solitary witness shall have full credit
except in cases of treason, perjury and accomplice testimony. (S.28)
Dying declaration is a good piece of
evidence even when there is subjective hope ofrecovery. (S. 29)
Admissibility of documentary evidence (Ss.
39-44)
Judicial Notice (Ss. 2, 6, 11)
Authentic documents ( Ss. 7-10,13)
What may be proved (Ss. 12, 35, 36, 37, 49)
primafacie
evidence of a certain fact ( Ss. 5, 38)
presumption of documents (S. 50)
Thought to Enact Law
Attentive and anxious consideration was
given to enact law for the land which will follow English rule but once enacted
it will be the law of India on the subjects it embraced.
Reason could be
a system of law was necessary to safeguard
English landowners in the Mufassil towns.
Three Presidency towns formed only a little
portion of the vast empire where the right of the British landowners were safeguarded.
The rest of the Mufassil towns were ruled
by the Islamic, Hindu and customary law. The English traders were exempt from
the application of Islamic criminal law and decisions of the native judges.
A system of law was necessaryfor the future administration of the country
for prospective business.
Debate in Benthamite England to re arrange
existing law could be a reason.
Enactment Process
At length a code of evidence was drawn up
and passed into law under the auspices of Fitzjames Stephen. The commissioners
were appointed in Englandto prepare a substantive law for India.
Accordingly they framed a draft code of the law of evidence containing 39
sections. In the fifth report on the draft code of evidence in 1868 the
commissioners admitted that much of the English practice was unsuited to the
various states of society and different forms of property which were to be met
with in India. In October, 1868, after adding two more sections, this draft
code was introduced by Sir Henry Summer Maine, and referred to a Select
Committee, as a Bill to define, and amend the law of evidence. This Bill was
published in a Gazette and circulated to local authorities for general
information but it never got beyond the first reading. It was circulated for opinion to local
governments, and was pronounced by every legal authority to which it was
submittedto be unsuitable to the wants
of the country.The chief objection to
it was not sufficiently elementary for the officers for whose use it was
designed, and that it assumed an acquaintance on their part with the law of
England, which could scarcely be expected of them.
A new Bill of 163 sections in a form
different from the present Evidence Act of 1872 was prepared by Fitzjames
Stephen. The new Bill was printed, circulated and is claimed by English writers
to have been very freely criticised. It
is not clear if it was criticised by the people of the country for whom the law
was to be passed most of whom, even the elites did not know English.
Fitzjames Stephen recast it and it
ultimately passed as Act I of 1872.
Exceptions to the
Rule of Hearsay Evidence - Policy for
such Rule
Necessity
Peculiar Means of
Knowledge
Exceptions to the
Rule that Hearsay is not Admissible [S.32]
Statements made
orally or in writing by a person
who is dead
who cannot be found
who has become incapable of giving evidence
whose attendance cannot be procured without an amount of delay or
expense
are relevant for
Dying
Declarations DD [S.32 (1)]
Statements
made in the course of duty [S.32(2)]
Statements
against Interest [S.32(3)]
Statements
as to Public Rights [S. 32(4)]
Statements
as to pedigree [S.32(5)]
Statements
as to Genealogy [S.32(6)]
Statements
as to transaction [S.32(7)]
Statements
made by several persons [S.32(8)]
Dying Declarations
DD [S.32 (1)]
In trials for death
of the declarant
the declarant made
statement
as to the cause of his death
with or without expectation of death
the declaration
may be in answer to leading
questions;
may be oral, written or by signs;
must be confined to the circumstances
which led to his death;
must be confined to such evidence as the declarant would have been
competent to give had he lived.
To Whom DD Should be Made
- Magistrate, Doctor, Police, any person
Mode of recording DD
- In writing, in his own words, in question answer form
Proof of Dying Declarations - similar to any other evidence
must be scrutinised closely
in the light of surrounding
facts and circumstances
bearing in mind that the
deceased has not been examined on oath
and he has not been cross
examined
Evidentiary Value of
DD - Conviction may follow if found, true,
consistent, correct observation by deceased. made at the earliest opportunity, no
tutoring of interested parties
if the declarant
survived
as a witness under examination
the statement will be considered as corroborative evidence u/s. 157
Statements
made in the course of duty [S.32(2)]
Statements made in the
ordinary course of business in particular
any entry or memorandum made by him in books kept in the ordinary
course of business or in discharge of professional duty;
an acknowledgement written or signed by him of receipt of money, goods,
securities of property of any kind;
a document used in commerce written or signed by him;
the date of a letter of other documents usually dated, written or
signed by him.
Statements
against Interest [S.32(3)]
Statements
against pecuniary or proprietary interest of maker
if true, expose him to a criminal prosecution or to a suit for damages
Statements
as to Public Rights [S. 32(4)]
Opinion,
as to the existence ofany
public right or custom or matter of public or general interest
of which he is aware
made before any controversy as to such right, custom or matter had
arisen.
Statements
as to pedigree [S.32(5)]
Statements
as to existence of any relationship by blood, marriage or adoption
made before the question in dispute was raised
made by person had special means of knowledge
Statements
as to Genealogy [S.32(6)]
Statements as to existence of any relationship by blood, marriage or
adoption between persons deceased made
in any will, or deed of family affairs
in any family pedigree
upon any tombstone, family portrait or other thing
on which such statements are usually made
before the question in dispute was raised
Statements
as to transaction [S.32(7)]
Statements
contained in any deed, will or other document
relates any transaction by which the right or custom in question was
created, claimed, modified, recognized, asserted or denied, or which was
inconsistent with its existence
Statements
made by several persons [S.32(8)]
Statements
made by a number of persons
expressed feelings or impressions
relevant to matter in question.
