38. Relevancy of statements as to any law contained in law-
books.––When the Court has to form
an opinion as to a law of any country, any statement of such law contained in a book purporting to be
printed or published under the authority of the Government of such country and to contain any such law,
and any report of a ruling of the Courts of such country contained in a book purporting to be a report of
such rulings, is relevant.
HOW MUCH OF A STATEMENT IS TO BE PROVED
8
[39. What evidence to be given when statement forms part of a conversation, document,
electronic record, book or series of letters or papers.––When any statement of which evidence is given
1. Subs. by Act 21 of 2000, s. 92 and the Second Schedule, for “entries in the books of account” (w.e.f. 17-10-2000).
2. Subs. by s. 92 and the Second Schedule, ibid., for “record” (w.e.f. 17-10-2000).
3. Subs. by the A.O. 1948, for “any Government in British India”.
4. Ins. by the A. O. 1950.
5. The original words were “Act of the Governor General of India in Council or of the Governors in Council of
Madras or Bombay, or of the Lieutenant Governor in Council of Bengal, or in a notification of the Government
appearing in the Gazette of India, or in the Gazette of any L.G., or in any printed paper purporting to be the
London Gazette or the Government Gazette of any colony or possession of the Queen, is a relevant fact”. This
was amended first by the Repealing and Amending Act, 1914 (10 of 1914), and then by the A.O. 1937, the A.O.
1948 and the A.O. 1950 to read as above.
6. Subs. by Act 3 of 1951, s. 3 and the Schedule, for “an Act of the Legislature of a Part A State or a Part C State”.
7. The “last paragraph” omitted by Act 10 of 1914, s. 3 and the Second Schedule.
8. Subs. by Act 21 of 2000, s. 92 and the Second Schedule, for “s. 39” (w.e.f. 17-10-2000).
25
forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a
document which forms part of a book, or is contained in part of electronic record or of a connected series
of letters or papers, evidence shall be given of so much and no more of the statement, conversation,
document, electronic record, book or series of letters or papers as the Court considers necessary in that
particular case to the full understanding of the nature and effect of the statement, and of the circumstances
under which it was made.]
JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT
40. Previous judgments relevant to bar a second suit or trial.––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 trial.
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 1[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, 1[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, 1[order or decree] declares that it had been or should be his property.
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 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 for 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
way exists.
43. Judgments, etc., other than those mentioned in sections 40, 41 and 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 provision
of this Act.
1. Ins. by Act 18 of 1872, s. 3.
26
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 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 C for damages on the ground that C failed to 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.
C says that she never was A’s wife.
The judgment against B is irrelevant as against C.
(c) A prosecutes B for stealing a cow from him. B is convicted.
A afterwards sues C for the 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 B. C, B’s son, murders A in
consequence.
The existence of the judgment is relevant, as showing motive for a crime.
1
[
(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.]
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 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.
OPINIONS OF THIRD PERSONS WHEN RELEVANT
45. Opinions of experts.––When the Court has to form an opinion upon a point of foreign law or of
science, or art, or as to identity of handwriting 2[or finger impressions], the opinions upon that point of
persons specially skilled in such foreign law, science or art, 3[or in questions as to identity of handwriting]
2
[or finger impressions] are relevant facts.
Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have
died, are relevant.
1. Ins. by Act 3 of 1891, s. 5.
2. Ins. by Act 5 of 1899, s. 3 for discussion in Council as to whether “finger impressions” include “thumb
impressions” see Gazette of India, 1898, pt.VI, p. 24.
3. Ins. by Act 18 of 1872, s. 4.
27
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of
mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary
to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show
unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of
knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary
to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced
which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person
or by different persons, are relevant.
1
[45A. Opinion of Examiner of Electronic Evidence.—When in a proceeding, the court has to form
an opinion on any matter relating to any information transmitted or stored in any computer resource or
any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in
section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact.
Explanation.—For the purposes of this section, an Examiner of Electronic Evidence shall be an
expert.]
46. Facts bearing upon opinions of experts.––Facts, not otherwise relevant, are relevant if they
support or are inconsistent with the opinions of experts, when such opinions are relevant.
Illustrations
(a) The question is, whether A was poisoned by a certain poison.
The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which
experts affirm or deny to be the symptoms of that poison, is relevant.
(b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall.
The fact that other harbours similarly situated in other respects, but where there were no such
sea-walls, began to be obstructed at about the same time, is relevant.
47. Opinion as to hand-writing, when relevant.––When the Court has to form an opinion as to the
person by whom any document was written or signed, the opinion of any person acquainted with the
handwriting of the person by whom it is supposed to be written or signed that it was or was not written or
signed by that person, is a relevant fact.
Explanation.––A person is said to be acquainted with the hand-writing of another person when he has
seen that person write, or when he has received documents purporting to be written by that person in
answer to documents written by himself or under his authority and addressed to that person, or when, in
the ordinary course of business, documents purporting to be written by that person have been habitually
submitted to him.
1. Ins. by Act 10 of 2009, s. 52 (w.e.f. 27-10-2009).
28
Illustration
The question is, whether a given letter is in the hand-writing of A, a merchant in London.
B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to
be written by him. C, is B’s clerk whose duty it was to examine and file B’s correspondence. D is B’s
broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of
advising with him thereon.
The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant,
though neither B, C nor D ever saw A write.
1
[47A. Opinion as to digital signature, when relevant.––When the Court has to form an opinion as
to the 2[electronic signature of any person, the opinion of the Certifying Authority which has issued the
3
[electronic Signature Certificate] is a relevant fact.]
48. Opinion as to existence of right or custom, when relevant.––When the Court has to form an
opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom
or right, of persons who would be likely to know of its existence if it existed, are relevant.
Explanation.––The expression “general custom or right” includes customs or rights common to any
considerable class of persons.
Illustration
The right of the villagers of a particular village to use the water of a particular well is a general right
within the meaning of this section.
49. Opinion as to usages, tenets, etc., when relevant. –– When the Court has to form an opinion as
to––
the usages and tenets of any body of men or family,
the constitution and government of any religious or charitable foundation, or
the meaning of words or terms used in particular districts or by particular classes of people,
the opinions of persons having special means of knowledge thereon are, relevant facts.
50. Opinion on relationship, when relevant. ––When the Court has to form an opinion as to the
relationship of one person to another, the opinion, expressed by conduct, as to the existence of such
relationship, of any person who, as a member of the family or otherwise, has special means of knowledge
on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian
Divorce Act, 1869 (4 of 1869), or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal
Code (45 of 1860).
Illustrations
(a) The question is, whether A and B, were married.
The fact that they were usually received and treated by their friends as husband and wife, is relevant.
1. Ins. by Act 21 of 2000, s. 92 and the Second Schedule (w.e.f. 17-10-2000).
2. Subs. by Act 10 of 2009, s. 52, for “digital signature” (w.e.f. 27-10-2009).
3. Subs. by s 52, ibid., for “Digital Signature Certificate” (w.e.f. 27-10-2009).
29
(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as
such by members of the family, is relevant.
51. Grounds of opinion, when relevant.––Whenever the opinion of any living person is relevant, the
grounds on which such opinion is based are also relevant.
Illustration
An expert may give an account of experiments performed by him for the purpose of forming his opinion.
CHARACTER WHEN RELEVANT
52. In civil cases character to prove conduct imputed, irrelevant.––In civil cases, the fact that the
character of any person concerned is such as to render probable or improbable any conduct imputed to
him, is irrelevant, except in so far as such character appears from facts otherwise relevant.
53. In criminal cases previous good character relevant.––In criminal proceedings, the fact that the
person accused is of a good character, is relevant.
1
[53A. Evidence of character or previous sexual experience not relevant in certain cases.–– In a
prosecution for an offence under section 354, section 354A, section 354B, section 354C, section 354D,
section 376, 2[section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA,
section 376DB] or section 376E of the Indian Penal Code (45 of 1860) or for attempt to commit any such
offence, where the question of consent is in issue, evidence of the character of the victim or of such
person’s previous sexual experience with any person shall not be relevant on the issue of such consent or
the quality of consent.]
3
[54. Previous bad character not relevant, except in reply.–– In criminal proceedings, the fact that
the accused person has a bad character, is irrelevant, unless evidence has been given that he has a good
character, in which case it becomes relevant.
Explanation 1.––This section does not apply to cases in which the bad character of any person is itself
a fact in issue.
Explanation 2. ––A previous conviction is relevant as evidence of bad character.]
55. Character as affecting damages. ––In civil cases, the fact that the character of any person is
such as to affect the amount of damages which he ought to receive, is relevant.
Explanation. ––In sections 52, 53, 54 and 55, the word “character” includes both reputation and
disposition; but, 4[except as provided in section 54], evidence may be given only of general reputation and
general disposition, and not of particular acts by which reputation or disposition were shown.
PART II
ON PROOF
CHAPTER III.––FACTS WHICH NEED NOT BE PROVED
56. Fact judicially noticeable need not be proved.––No fact of which the Court will take judicial
notice need be proved.
57. Facts of which Court must take judicial notice.––The Court shall take judicial notice of the
following facts: ––
5
[
(1) All laws in force in the territory of India;]
1. Ins. by Act 13 of 2013, s. 25 (w.e.f. 3-2-2013)
2. Subs. by Act 22 of 2018, s. 8, for “section 376A, section 376B, section 376C, section 376D” (w.e.f. 21-4-2018).
3. Subs. by Act 3 of 1891, s. 6 for “section 54”.
4. Ins. by s. 7, ibid.
5. Subs. by the A. O. 1950, for “the clause
(1)”.
30
(2) All public Acts passed or hereafter to be passed by Parliament 1[of the United Kingdom], and
all local and personal Acts directed by Parliament 1[of the United Kingdom] to be judicially noticed;
(3) Articles of War for 2[the Indian] Army 3[Navy or Air Force]
4
[
(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent
Assembly of India, of Parliament and of the legislatures established under any laws for the time being
in force in a Province or in the States]
(5) The accession and the sign manual of the Sovereign for the time being of the United
Kingdom of Great Britain and Ireland;
(6) All seals of which English Courts take judicial notice: the seals of all the 5[Courts in 6[India]]
and of all Courts out of 6[India] established by the authority of 7[the Central Government or the
Crown Representative]; the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries
Public, and all seals which any person is authorised to use by 8[the Constitution or an Act of
Parliament of the United Kingdom or an] Act or Regulation having the force of law in 6[India];
(7) The accession to office, names, titles, functions, and signatures of the persons filling for the
time being any public office in any State, if the fact of their appointment to such office is notified in
9
[any Official Gazette];
10
(8) The existence, title and national flag of every State or Sovereign recognised by [the
Government of India];
(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and
holidays notified in the Official Gazette;
(10) The territories under the dominion of 10[the Government of India];
(11) The commencement, continuance and termination of hostilities between 10[the Government
of India] and any other State or body of persons;
(12) The names of the members and officers of the Court, and of their deputies and subordinate
officers and assistants, and also of all officers acting in execution of its process, and of all advocates,
attorneys, proctors, vakils, pleaders and other persons authorised by law to appear or act before it;
(13) The rule of the road 11[on land or at sea].
In all these cases and also on all matters of public history, literature, science or art, the Court may
resort for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so
unless and until such person produces any such book or document as it may consider necessary to enable
it to do so.
1. Subs. by the A.O. 1950, for “the clause
(2)”.
2. Subs. ibid., for “her Majesty’s”.
3. Subs. by Act 10 of 1927, s. 2 and the First Schedule, for “or Navy”.
4. Subs. by the A.O. 1950, for the Former para.
(4).
5. Subs. by the A.O. 1948, for “Courts of British India”.
6. Subs. by Act 3 of 1951, s. 3 and the Schedule, for “the States”.
7. Subs. by the A.O. 1937, for “the G.G. or any L.G. in Council”.
8. Subs. by the A.O. 1950, for “any Act of Parliament or other”.
9. Subs. by the A.O. 1937, for “the Gazette of India or in the Official Gazette of any L.G.”.
10. Subs. by the A.O. 1950, for “the British Crown”.
11. Ins. by Act 18 of 1872, s. 5.
31
58. Facts admitted need not be proved.––No fact need be proved in any proceeding which the
parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to
admit by any writing under their hands, or which by any rule of pleading in force at the time they are
deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than
by such admissions.
CHAPTER IV.–– OF ORAL EVIDENCE
59. Proof of facts by oral evidence. –– All facts, except the 1[contents of documents or electronic
records], may be proved by oral evidence.
60. Oral evidence must be direct. –– Oral evidence must, in all cases whatever, be direct; that is to
say ––
if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard
it;
if it refers to a fact which could be perceived by any other sense or in any other manner, it must
be the evidence of a witness who says he perceived it by that sense or in that manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of
the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the
grounds on which such opinions are held, may be proved by the production of such treatises if the
author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as
a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other
than a document, the Court may, if it thinks fit, require the production of such material thing for its
inspection.
CHAPTER V. –– OF DOCUMENTARY EVIDENCE
61. Proof of contents of documents. –– The contents of documents may be proved either by primary
or by secondary evidence.
62. Primary evidence. –– Primary evidence means the document itself produced for the inspection of
the Court.
Explanation 1. ––Where a document is executed in several parts, each part is primary evidence of the
document.
Where a document is executed in counterpart, each counterpart being executed by one or some of the
parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2. –– Where a number of documents are all made by one uniform process, as in the case
of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where
they are all copies of a common original, they are not primary evidence of the contents of the original.
1. Subs. by Act 21 of 2000, s. 92 and the Second Schedule, for “Contents of documents” (w.e.f. 17-10-2000).
32
Illustration
A person is shown to have been in possession of a number of placards, all printed at one time from
one original. Any one of the placards is primary evidence of the contents of any other, but no one of them
is primary evidence of the contents of the original.
63. Secondary evidence. –– Secondary evidence means and includes ––
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the
accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been
compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the
contents of the letter, if it is shown that the copy made by the copying machine was made from the
original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary
evidence; but the copy not so compared is not secondary evidence of the original, although the copy from
which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph
or machine-copy of the original, is secondary evidence of the original.
64. Proof of documents by primary evidence.––Documents must be proved by primary evidence
except in the cases hereinafter mentioned.
65. Cases in which secondary evidence relating to documents may be given.––Secondary
evidence may be given of the existence, condition, or contents of a document in the following cases: ––
(a) when the original is shown or appears to be in the possession or power ––
of the person against whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of the Court, or
of any person legally bound to produce it,
and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in
writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its
contents cannot, for any other reason not arising from his own default or neglect, produce it in
reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
33
(f) when the original is a document of which a certified copy is permitted by this Act, or by any
other law in force in 1[India] to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot
conveniently be examined in Court, and the fact to be proved is the general result of the whole
collection.
In cases
(a),
(c) and
(d), any secondary evidence of the contents of the document is admissible.
In case
(b), the written admission is admissible.
In case
(e) or
(f), a certified copy of the document, but no other kind of secondary evidence, is
admissible.
In case
(g), evidence may be given as to the general result of the documents by any person who
has examined them, and who is skilled in the examination of such documents.
2
[65A. Special provisions as to evidence relating to electronic record. ––The contents of electronic
records may be proved in accordance with the provisions of section 65B.
65B. Admissibility of electronic records. ––
(1) Notwithstanding anything contained in this Act,
any information contained in an electronic record which is printed on a paper, stored, recorded or copied
in optical or magnetic media produced by a computer (hereinafter referred to as the computer output)
shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation
to the information and computer in question and shall be admissible in any proceedings, without further
proof or production of the original, as evidence or any contents of the original or of any fact stated therein
of which direct evidence would be admissible.
(2) The conditions referred to in sub-section
(1) in respect of a computer output shall be the
following, namely: ––
(a) the computer output containing the information was produced by the computer during the
period over which the computer was used regularly to store or process information for the
purposes of any activities regularly carried on over that period by the person having lawful
control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the
kind from which the information so contained is derived was regularly fed into the computer in
the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if
not, then in respect of any period in which it was not operating properly or was out of operation
during that part of the period, was not such as to affect the electronic record or the accuracy of its
contents; and
(d) the information contained in the electronic record reproduces or is derived from such
information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of
any activities regularly carried on over that period as mentioned in clause
(a) of sub-section
(2) was
regularly performed by computers, whether––
(a) by a combination of computers operating over that period; or
1. Subs. by Act 3 of 1951, s. 3 and the Schedule, for “the States”.
2. Ins. by Act 21 of 2000, s. 92 and the Second Schedule (w.e.f. 17-10-2000).
34
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever
order, of one or more computers
