111. Burden of proving that person is alive who has not been heard of for seven years.—
When
the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven
years by those who would naturally have heard of him if he had been alive, the burden of proving that he
is alive is shifted to the person who affirms it.
112. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal
and agent.—When the question is whether persons are partners, landlord and tenant, or principal and
agent, and it has been shown that they have been acting as such, the burden of proving that they do not
stand, or have ceased to stand, to each other in those relationships respectively, is on the person who
affirms it.
113. Burden of proof as to ownership.—When the question is whether any person is owner of
anything of which he is shown to be in possession, the burden of proving that he is not the owner is on
the person who affirms that he is not the owner.
114. Proof of good faith in transactions where one party is in relation of active confidence.—
Where there is a question as to the good faith of a transaction between parties, one of whom stands to the
other in a position of active confidence, the burden of proving the good faith of the transaction is on the
party who is in a position of active confidence.
Illustrations.
(a) The good faith of a sale by a client to an advocate is in question in a suit brought by the client.
The burden of proving the good faith of the transaction is on the advocate.
(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the
son. The burden of proving the good faith of the transaction is on the father.
115. Presumption as to certain offences.—
(1) Where a person is accused of having committed any
offence specified in sub-section
(2), in—
(a) any 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
(b) any area in which there has been, over a period of more than one month, extensive
disturbance of the public peace,
and it is shown that such person had been at a place in such area at a time when 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, it shall be presumed, unless
the contrary is shown, that such person had committed such offence.
(2) The offences referred to in sub-section
(1) are the following, namely:—
(a) an offence under section 147, section 148, section 149 or section 150 of the Bharatiya Nyaya
Sanhita, 2023;
(b) criminal conspiracy or attempt to commit, or abetment of, an offence under section
149 or section 150 of the Bharatiya Nyaya Sanhita, 2023.
116. Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born
during the continuance of a valid marriage between his mother and any man, or within two hundred and
eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the
legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each
other at any time when he could have been begotten.
117. Presumption as to abetment of suicide by a married woman.—When the question is whether
the commission of suicide by a woman had been abetted by her husband or any relative of her husband
and it is shown that she had committed suicide within a period of seven years from the date of her
marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may
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presume, having regard to all the other circumstances of the case, that such suicide had been abetted by
her husband or by such relative of her husband.
Explanation.—For the purposes of this section, “cruelty” shall have the same meaning as in
section 86 of the Bharatiya Nyaya Sanhita, 2023.
118. Presumption as to dowry death.—When the question is whether a person has committed the
dowry death of a woman and it is shown that soon before her death, such woman had been subjected by
such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall
presume that such person had caused the dowry death.
Explanation.—For the purposes of this section, “dowry death” shall have the same meaning as
in section 80 of the Bharatiya Nyaya Sanhita, 2023.
119. Court may presume existence of certain facts.—
(1) The Court may presume the existence of
any fact which it thinks likely to have happened, regard being had to the common course of natural
events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations.
The Court may presume that—
(a) a man who is in possession of stolen goods soon, after the theft is either the thief or has
received the goods knowing them to be stolen, unless he can account for his possession;
(b) an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c) a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) a thing or state of things which has been shown to be in existence within a period shorter than
that within which such things or state of things usually cease to exist, is still in existence;
(e) judicial and official acts have been regularly performed;
(f) the common course of business has been followed in particular cases;
(g) evidence which could be and is not produced would, if produced, be unfavourable to the
person who withholds it;
(h) if a man refuses to answer a question which he is not compelled to answer by law, the answer,
if given, would be unfavourable to him;
(i) when a document creating an obligation is in the hands of the obligor, the obligation has been
discharged.
(2) The Court shall also have regard to such facts as the following, in considering whether such
maxims do or do not apply to the particular case before it:—
(i) as to Illustration
(a)—a shop-keeper has in his bill a marked rupee soon after it was stolen,
and cannot account for its possession specifically, but is continually receiving rupees in the course of
his business;
(ii) as to Illustration
(b) —A, a person of the highest character, is tried for causing a man's death
by an act of negligence in arranging certain machinery. B, a person of equally good character, who
also took part in the arrangement, describes precisely what was done, and admits and explains the
common carelessness of A and himself;
(iii) as to Illustration
(b) —a crime is committed by several persons. A, B and C, three of the
criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime
implicating D, and the accounts corroborate each other in such a manner as to render previous
concert highly improbable;
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(iv) as to Illustration
(c)—A, the drawer of a bill of exchange, was a man of business. B, the
acceptor, was a young and ignorant person, completely under A's influence;
(v) as to Illustration
(d)—it is proved that a river ran in a certain course five years ago, but it is
known that there have been floods since that time which might change its course;
(vi) as to Illustration
(e)—a judicial act, the regularity of which is in question, was performed
under exceptional circumstances;
(vii) as to Illustration
(f)—the question is, whether a letter was received. It is shown to have been
posted, but the usual course of the post was interrupted by disturbances;
(viii) as to Illustration
(g)—a man refuses to produce a document which would bear on a contract
of small importance on which he is sued, but which might also injure the feelings and reputation of
his family;
(ix) as to Illustration
(h)—a man refuses to answer a question which he is not compelled by law
to answer, but the answer to it might cause loss to him in matters unconnected with the matter in
relation to which it is asked;
(x) as to Illustration
(i)—a bond is in possession of the obligor, but the circumstances of the case
are such that he may have stolen it.
120. Presumption as to absence of consent in certain prosecution for rape.—In a prosecution for
rape under sub-section
(2) of section 64 of the Bharatiya Nyaya Sanhita, 2023, where sexual intercourse
by the accused is proved and the question is whether it was without the consent of the woman alleged to
have been raped and such woman states in her evidence before the Court that she did not consent, the
Court shall presume that she did not consent.
Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in
section 63 of the Bharatiya Nyaya Sanhita, 2023.
CHAPTER VIII
ESTOPPEL
121. Estoppel.—When one person has, by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.
Illustration.
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to
buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on
the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
122. Estoppel of tenant and of licensee of person in possession.—No tenant of immovable
property, or person claiming through such tenant, shall, during the continuance of the tenancy or any time
thereafter, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a
title to such immovable property; and no person who came upon any immovable property by the licence
of the person in possession thereof shall be permitted to deny that such person had a title to such
possession at the time when such licence was given.
123. Estoppel of acceptor of bill of exchange, bailee or licensee.—No acceptor of a bill of
exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor
shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the
bailment or licence commenced, authority to make such bailment or grant such licence.
Explanation 1.—The acceptor of a bill of exchange may deny that the bill was really drawn by the
person by whom it purports to have been drawn.
Explanation 2.—If a bailee delivers the goods bailed to a person other than the bailor, he may prove
that such person had a right to them as against the bailor.
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CHAPTER IX
OF WITNESSES
124. Who may testify.—All persons shall be competent to testify unless the Court considers that
they are prevented from understanding the questions put to them, or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the
same kind.
Explanation.—A person of unsound mind is not incompetent to testify, unless he is prevented by his
unsoundness of mind from understanding the questions put to him and giving rational answers to them.
125. Witness unable to communicate verbally.—A witness who is unable to speak may give his
evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such
writing must be written and the signs made in open Court and evidence so given shall be deemed to be
oral evidence:
Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of
an interpreter or a special educator in recording the statement, and such statement shall be videographed.
126. Competency of husband and wife as witnesses in certain cases.—
(1) In all civil proceedings
the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.
(2) In criminal proceedings against any person, the husband or wife of such person, respectively,
shall be a competent witness.
127. Judges and Magistrates.—No Judge or Magistrate shall, except upon the special order of some
Court to which he is subordinate, be compelled to answer any question as to his own conduct in Court as
such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or
Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so
acting.
Illustrations.
(a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the
Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a
superior Court.
(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B
cannot be asked what A said, except upon the special order of the superior Court.
(c) A is accused before the Court of Session of attempting to murder a police officer whilst on his
trial before B, a Sessions Judge. B may be examined as to what occurred.
128. Communications during marriage.—No person who is or has been married, shall be
compelled to disclose any communication made to him during marriage by any person to whom he is or
has been married; nor shall he be permitted to disclose any such communication, unless the person who
made it, or his representative in interest, consents, except in suits between married persons, or
proceedings in which one married person is prosecuted for any crime committed against the other.
129. Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of State, except with the permission of the officer at
the head of the department concerned, who shall give or withhold such permission as he thinks fit.
130. Official communications.—No public officer shall be compelled to disclose communications
made to him in official confidence, when he considers that the public interests would suffer by the
disclosure.
131. Information as to commission of offences.—No Magistrate or police officer shall be
compelled to say when he got any information as to the commission of any offence, and no revenue
officer shall be compelled to say when he got any information as to the commission of any offence
against the public revenue.
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Explanation.—“revenue officer” means any officer employed in or about the business of any branch
of the public revenue.
132. Professional communications.—
(1) No advocate, shall at any time be permitted, unless with
his client’s express consent, to disclose any communication made to him in the course and for the
purpose of his service as such advocate, by or on behalf of his client, or to state the contents or condition
of any document with which he has become acquainted in the course and for the purpose of his
professional service, or to disclose any advice given by him to his client in the course and for the purpose
of such service:
Provided that nothing in this section shall protect from disclosure of—
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any advocate, in the course of his service as such, showing that any
crime or fraud has been committed since the commencement of his service.
(2) It is immaterial whether the attention of such advocate referred to in the proviso to
sub-section
(1), was or was not directed to such fact by or on behalf of his client.
Explanation.—The obligation stated in this section continues after the professional service has
ceased.
Illustrations.
(a) A, a client, says to B, an advocate— “I have committed forgery, and I wish you to defend me”.
As the defence of a man known to be guilty is not a criminal purpose, this communication is protected
from disclosure.
(b) A, a client, says to B, an advocate— “I wish to obtain possession of property by the use of a
forged deed on which I request you to sue”. This communication, being made in furtherance of a criminal
purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an advocate, to defend him. In the course of the
proceedings, B observes that an entry has been made in A’s account book, charging A with the sum said
to have been embezzled, which entry was not in the book at the commencement of his professional
service. This being a fact observed by B in the course of his service, showing that a fraud has been
committed since the commencement of the proceedings, it is not protected from disclosure.
(3) The provisions of this section shall apply to interpreters, and the clerks or employees of
advocates.
133. Privilege not waived by volunteering evidence.—If any party to a suit gives evidence therein
at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as
is mentioned in section 132; and, if any party to a suit or proceeding calls any such advocate, as a
witness, he shall be deemed to have consented to such disclosure only if he questions such advocate, on
matters which, but for such question, he would not be at liberty to disclose.
134. Confidential communication with legal advisers.—No one shall be compelled to disclose to
the Court any confidential communication which has taken place between him and his legal adviser,
unless he offers himself as a witness, in which case he may be compelled to disclose any such
communications as may appear to the Court necessary to be known in order to explain any evidence
which he has given, but no others.
135. Production of title-deeds of witness not a party.—No witness who is not a party to a suit shall
be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any
property as pledgee or mortgagee or any document the production of which might tend to criminate him,
unless he has agreed in writing to produce them with the person seeking the production of such deeds or
some person through whom he claims.
136. Production of documents or electronic records which another person, having possession,
could refuse to produce.—No one shall be compelled to produce documents in his possession or
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electronic records under his control, which any other person would be entitled to refuse to produce if they
were in his possession or control, unless such last-mentioned person consents to their production.
137. Witness not excused from answering on ground that answer will criminate.—A witness
shall not be excused from answering any question as to any matter relevant to the matter in issue in any
suit or in any civil or criminal proceeding, upon the ground that the answer to such question will
criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend
directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:
Provided that no such answer, which a witness shall be compelled to give, shall subject him to any
arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution forgiving
false evidence by such answer.
138. Accomplice.—An accomplice shall be a competent witness against an accused person; and a
conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice.
139. Number of witnesses.—No particular number of witnesses shall in any case be required for the
proof of any fact.
CHAPTER X
OF EXAMINATION OF WITNESSES
140. Order of production and examination of witnesses.—The order in which witnesses are
produced and examined shall be regulated by the law and practice for the time being relating to civil and
criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.
141. Judge to decide as to admissibility of evidence.—
(1) When either party proposes to give
evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the
alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact,
if proved, would be relevant, and not otherwise.
(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some
other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned,
unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
(3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the
Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is
proved, or require evidence to be given of the second fact before evidence is given of the first fact.
Illustrations.
(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which
statement is relevant under section 26. The fact that the person is dead must be proved by the person
proposing to prove the statement, before evidence is given of the statement.
(b) It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the
original is lost must be proved by the person proposing to produce the copy, before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove
that he denied the possession of the property. The relevancy of the denial depends on the identity of the
property. The Court may, in its discretion, either require the property to be identified before the denial of
the possession is proved, or permit the denial of the possession to be proved before the property is
identified.
(d) It is proposed to prove a fact A which is said to have been the cause or effect of a fact in issue.
There are several intermediate facts B, C and D which must be shown to exist before the fact A can be
regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B,
C or D is proved, or may require proof of B, C and D before permitting proof of A.
142. Examination of witnesses.—
(1) The examination of a witness by the party who calls him shall
be called his examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his cross-examination.
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(3) The examination of a witness, subsequent to the cross-examination, by the party who called him,
shall be called his re-examination.
143. Order of examinations.—
(1) 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.
(2) The examination-in-chief and cross-examination must relate to relevant facts, but the
cross-examination need not be confined to the facts to which the witness testified on his examination-in-
chief.
(3) The re-examination shall be directed to the explanation of matters referred to in
cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the
adverse party may further cross-examine upon that matter.
144. Cross-examination of person called to produce a document.—A person summoned to
produce a document does not become a witness by the mere fact that he produces it, and cannot be
cross-examined unless and until he is called as a witness.
145. Witnesses to character.—Witnesses to character may be cross-examined and re-examined.
146. Leading questions.—
(1) Any question suggesting the answer which the person putting it
wishes or expects to receive, is called a leading question.
(2) Leading questions must not, if objected to by the adverse party, be asked in an
examination-in-chief, or in a re-examination, except with the permission of the Court.
(3) The Court shall permit leading questions as to matters which are introductory or undisputed, or
which have, in its opinion, been already sufficiently proved.
(4) Leading questions may be asked in cross-examination.
147. Evidence as to matters in writing.—Any witness may be asked, while under examination,
whether any contract, grant or other disposition of property, as to which he is giving evidence, was not
contained in a document, and if he says that it was, or if he is about to make any statement as to the
contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party
may object to such evidence being given until such document is produced, or until facts have been proved
which entitle the party who called the witness to give secondary evidence of it.
Explanation.—A witness may give oral evidence of statements made by other persons about the
contents of documents if such statements are in themselves relevant facts.
Illustration.
The question is, whether A assaulted B. C deposes that he heard A say to D— “B wrote a letter
accusing me of theft, and I will be revenged on him”. This statement is relevant, as showing A's motive
for the assault, and evidence may be given of it, though no other evidence is given about the letter.
148. Cross-examination as to previous statements in writing.—A witness may be cross-examined
as to previous statements made by him in writing or reduced into writing, and relevant to matters in
question, without such writing being shown to him, or being proved; but, if it is intended to contradict
him by the writing, his attention must, before the writing can be proved, be called to those parts of it
which are to be used for the purpose of contradicting him.
149. Questions lawful in cross-examination.—When a witness is cross-examined, he may, in
addition to the questions hereinbefore referred to, be asked any questions which tend—
(a) to test his veracity; or
(b) to discover who he is and what is his position in life; or
(c) to shake his credit, by injuring his character, although the answer to such questions might tend
directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to
a penalty or forfeiture:
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Provided that in a prosecution for an offence under section 64, section 65, section 66,
section 67, section 68, section 69, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 or for
attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible
to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral
character, or previous sexual experience, of such victim with any person for proving such consent or the
quality of consent.
150. When witness to be compelled to answer.—If any such question relates to a matter relevant to
the suit or proceeding, the provisions of section 137 shall apply thereto.
151. Court to decide when question shall be asked and when witness compelled to
answer.—
(1) If any such question relates to a matter not relevant to the suit or proceeding, except in so
far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not
the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not
obliged to answer it.
(2) In exercising its discretion, the Court shall have regard to the following considerations,
namely:—
(a) such questions are proper if they are of such a nature that the truth of the imputation conveyed
by them would seriously affect the opinion of the Court as to the credibility of the witness on the
matter to which he testifies;
(b) such questions are improper if the imputation which they convey relates to matters so remote
in time, or of such a character, that the truth of the imputation would not affect, or would affect in a
slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he
testifies;
(c) such questions are improper if there is a great disproportion between the importance of the
imputation made against the witness's character and the importance of his evidence;
(d) the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the
answer if given would be unfavourable.
152. Question not to be asked without reasonable grounds.—No such question as is referred to in
section 151 ought to be asked, unless the person asking it has reasonable grounds for thinking that the
imputation which it conveys is well-found
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