Law of Evidence

By Nizam Azeez Sait.

MODULE No. 8

ADMISSIONS IN GENERAL UNDER SECTIONS 15 TO 21 AND 25 OF THE BHARATIYA SAKSHYA ADHINIYAM

This is the 8th Module of the subject ‘Law of Evidence’, which deals with Sections 15 to 21 and 25, in Chapter II of part II which is titled as “Of the Relevancy of Facts” under subheading ‘Admissions’

Here, in the 8th Module of the ‘Law of Evidence’, we shall take you through Sections 15 to 21 and 25 the Bharatiya Sakshya Adhiniyam (corresponding to Ss 17 to 23 and 31 of the Evidence Act) and explain the law/rules relating to Admissions in General. The provisions relating to confessions will be dealt with in the next module ie Module No. 9.

MODULE INDEX

  1. Admission – Introduction
  1. Admission –Definition in the Bharatiya Sakshya Adhiniyam
  1. Persons Whose Statements are Admissions
  1. Forms of admission
  1. Admissions by persons whose position must be proved as against party to suit – Section 17 of the Bharatiya Sakshya Adhiniyam
  1. Admissions by persons expressly referred to by party to suit – Section 18 of the Bharatiya Sakshya Adhiniyam
  1. What Admissions are Relevant – Section 19 of the Bharatiya Sakshya Adhiniyam
  1. Self-harming and Self-serving Statements/Admissions
  1. Exceptions to the Bar under Section 19 of the Bharatiya Sakshya Adhiniyam
  1. When oral admissions as to contents of documents are relevant
  1. “Admission without prejudice” – Section 21
  1. Distinction between Evidentiary Admission under Section 15 to 19 and Formal / Judicial Admission under Section 53 of the Bhartiya Sakshya Adhiniyam.
  2. Section 25 of the Evidence Act–Admissions Are Not Conclusive Proof.
  1. Evidentiary Value of Admission
  2. Admission in Previous Suit or Proceeding

1. Admission – Introduction

Admission in ordinary sense means a voluntary acknowledgement as to the truth of a particular fact.

Generally, statements/admissions made out of court by a party to a judicial proceeding are admissible when offered against him.

Confession is admission of commission of an offence.

It is often said that Statement is genus, admission is the species and confession is the sub species.

Sections 15 – 25 deal with admissions and confessions as substantive evidence and makes admissions generally relevant against the maker and in certain cases provable even by the maker.

Sections 15 to 21 deal with admissions in general; though confession is not as such defined in the Bharatiya Sakshya Adhiniyam, the law as to confessions is embodied in S.22 to 24 of the Evidence Act. (We will deal with the law relating to confessions in the next module). Section 25 states that Admissions are not conclusive proof of the matters admitted but they may operate as estoppels.

2. Admission –Definition in the Evidence Act

Section 15 of the Bharatiya Sakshya Adhiniyam states as follows:

Admission defined

An admission is a statement, [oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

Section 15 is not comprehensive and is incomplete; it only says that those statements which suggest an inference as to any fact in issue or relevant fact are admissions if made by any of the persons and under circumstances mentioned in the subsequent provisions.

The persons whose such statements are treated as admissions and the circumstances under which statements are admissions are covered in Sections 16 to 19.

3. Persons Whose Statements are Admissions

Now let us deal with persons whose statements could be admissions. Sections 16 to 18 are significant in this regard.

Section 16 reads as follows:

Admission by party to proceeding or his agent –

Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.

(2) Statements made by—

(i) parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character; or

(ii) persons who have any proprietary or pecuniary interest in the subject matter of the proceeding, and who make the statement in their character of persons so interested; or

(iii) persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.

(Section 16 of the Bharatiya Sakshya Adhiniyam corresponds to S 18 of the Indian Evidence Act. The Section is restructured without any change in substance)

On an analysis of the above Section 16 (along with Section 15), we could make out that statements suggesting an inference as to any fact in issue or relevant fact made by the following persons are admissions:

  1. Parties to the suit or proceeding.
  2. Agents, that means persons expressly or impliedly authorized by the Parties
  3. Parties to suits suing or sued in a representative character, only while the party making them held that character.
  4. Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding.
  5. Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit.

Now we will see the above referred instances of admissions one by one.

1st -Statements by Parties to the suit or proceeding

 

Statements made by parties to the suit or proceeding, which suggest an inference as to a fact in issue, or a relevant fact can be proved subject to Section 19 of the Bharatiya Sakshya Adhiniyam (section 21 of the Evidence Act). The provision which makes certain admissions relevant is section 19; we will deal with section 19 a little later.

2nd -Statements by Agents of Parties

In general law, acts done through an agent is attributable to the principal. Consequence of such acts shall be binding on the principal if there is an express or implied authority from the principal to the agent to do such acts.  Likewise, a statement made by an agent is an admission and is attributable to the party to the proceeding. In order to make a statement by an agent to be an admission and binding on the party to the proceeding the court must find/regard it, under the circumstance of the case, as expressly or impliedly authorised by the party.

Directors of a company, Manager of Hindu Joint Family, Partners of a firm, Power of Attorney holder etc could be agents within this section.

Admission by Lawyer

Lawyer is an agent of his client. An admission made by a Counsel generally binds a party on matters of fact. But admissions on matters of law or on an issue of mixed questions of law and fact are not binding on the party he represents. Even admissions on matters of law by the parties themselves are not binding.

A Division Bench of Madras High Court, as back as in 1936, in Rangappa Goundan v. Emperor, AIR 1936 Madras 426: 1936 (37) CriLJ 4711 held as follows:

“It is an elementary rule, that except by a plea of guilty, admissions dispensing with proof, as distinguished from admissions which are evidential, are not permitted in a criminal trial. (See Phipson on Evidence, p. 19). Therefore, no consent or admission by the prisoner’s advocates to dispense with the medical witness could relieve the prosecution of proving by evidence the nature of the injuries received by the deceased and that the injuries were the cause of death. The consequence was that an essential element of proof of the crime alleged against the two accused was wanting, and the conviction which has taken place in the absence of this evidence cannot stand.”

It is also a settled proposition that in trials while cross examination suggestions put to witnesses by the Counsel for the parties will not amount to admissions.

In this regard the Madhya Pradesh High Court in Sakariya v. State of M.P, reported in 1991 CriLJ 1925 observed as follows:

“S.18 of the Evidence Act (Section 18 of the Bharatiya Sakshya Adhiniyam) deals with admission by party to proceeding or his agent. Whether a suggestion thrown by the defence counsel to a prosecution witness, amounts to an admission on the part of the accused is a crucial question which requires consideration. It is a common practice to suggest to a witness while he or she is under cross – examination, the case of the defence when such evidence or suggestion is denied, it does not constitute any evidence. Suggestions put are no evidence at all against the accused and on the basis of such suggestion no interference can be drawn against the accused that he admitted the fact suggested in the cross – examination. The proof of guilty required of the prosecution does not depend on the suggestion thrown to a witness.

On the basis of mere suggestion about consent thrown to the prosecutrix, the learned Judge of the trial Court has virtually dispensed with proof of offence of rape. An accused, as has been discussed above, is not bound by such a situation or implied admission made by the counsel.”

3rd -Statements of Parties to suits suing or sued in a representative character

Statements made by the managing director of a company who represents the company in a suit would be admissions binding on the Company.

4th – Statements of Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding

Patna High Court as early as in 1946 in the case of Ramjhari Kuer and Others v. Dayanad Singh, AIR 1946 Pat. 278 held as follows:

‘the principle is that when several persons are jointly interested in the subject – matter of the suit, an admission of any one of these person is receivable not only against himself but also against the other defendants whether they be all jointly suing or sued provided that the admission relates to the subject matter in dispute and is made by the defendant in his character of a person jointly interested with the party against whom the evidence is tendered. The requirement of the identity in legal interest between the joint owners is of fundamental importance.”

It should be noted that admissions of a co-plaintiff or co-defendant cannot be taken against other plaintiffs or defendants unless they share proprietary or pecuniary interest in the subject-matter along with the party admitting.

If the statement was made in his capacity as agent of the co – plaintiffs or co – defendants, it will be binding on them also.

5th -Statements of Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit

In Nirmala and others v. Rukminibai and others reported in AIR 1994 Kar. 247, a division bench of the Karnataka High Court considered an instance of application of section 16 of the Bharatiya Sakshya Adhiniyam (Section 18 of the Evidence Act), relating to statements of Persons from whom the parties to the suit have derived their interest:

In a suit by children from first marriage, for possession of father’s property; Legitimacy of their father’s second marriage was disputed; Admission made by their deceased father that defendant the second wife was legally wedded wife and her children were his legitimate children was proved.

The Court held:

“This statement will be relevant and binding on the plaintiffs under S.18 of the Indian Evidence Act, as the Section lays down that the statement made by persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are the admissions, if they are made during the continuance of the interest of the persons making the statements, and the same will be binding on the persons claiming through such person.”

4. Forms of admission

In S.16 ‘proceedings’ refers to the proceedings in which the earlier statement, which is said to be an admission, is sought to be proved. It is not at all necessary that the earlier statement was made in a proceeding before a Court or any authority.

Such admission could be oral, in informal conversation, in a letter or other document, in account books, in pleadings (Plaint or written Statement) in a former proceedings etc etc.

5. Admissions by persons whose position must be proved as against party to suit – Section 17 of the Bharatiya Sakshya Adhiniyam

Now we will move on to section 17 which makes statements of persons whose position or liability is to be proved as against the parties to the suit or proceedings.

Section 17 along with illustration reads as follows:

Statements made by persons whose position or liability, it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability.

Illustration:

A undertakes to collect rents for B.

B sues A for not collecting rent due from C to B.

A denies that rent was due from C to B.

 A statement by C that he owed B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.

Section 17 ( Section 19 of the Evidence Act) is an exception to the rule that a statement made by a stranger shall not affect a party to the proceeding. Under section 19 such statements/admissions made by persons whose position or liability is to be proved would be relevant as against the parties to the proceedings or suit in a suit brought by or against them.

6. Admissions by persons expressly referred to by party to suit – Section 18 of the Bharatiya Sakshya Adhiniyam

Statements made by person to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.

Illustration The question is whether a horse sold by A to B is sound.

A says to B–“Go and ask C, C knows all about it.” C’s statement is an admission.

Section 18 of the Bharatiya Sakshya Adhiniyam is another exception to the rule that a statement made by a stranger shall not affect a party to the proceeding.

In Hirachand Kothari (dead) by LRs. v. State of Rajasthan, (reported in AIR 1985 SC 998) Supreme Court held thus:

“S.20 (S 18 of the Bharatiya Sakshya Adhiniyam) is the second exception to the general rule laid down in S. 18 (S 16 of the Bharatiya Sakshya Adhiniyam). It deals with one class of vicarious admissions. Where a party refers to a third person for some information or an opinion on a matter in dispute, the statements made by the third person are receivable as admissions against the person referring. The word ‘information’ occurring in S. 20 (S 18 of the Bharatiya Sakshya Adhiniyam) is not to be understood in the sense that the parties desired to know something which none of them had any knowledge of. Where there is a dispute as regards a certain question and the Court is in need of information regarding the truth on that point, any statement which the referee may make is nevertheless information within the purview of S. 20 (S 18 of the Bharatiya Sakshya Adhiniyam) and is admissible. The reason behind admissibility of the statement is that when a party refers to another person for a statement of his views, the party approves of his utterance in anticipation and adopts that as his own. The principle is the same as that of reference to arbitration. The reference under S. 20 (S 18 of the Bharatiya Sakshya Adhiniyam) may be by express words or by conduct.”

In an interesting and strange case, K. M Singh v. Secretary Association of Indian Universities reported in AIR 1992 SC 1356, the plaintiff filed a suit contending that his resignation was involuntary as it was caused by inducement, fraud and coercion. He offered that if the officials of the respondent Association take special oath at Gurudwara and Mandir that the resignation was not involuntary the issue could be dismissed as withdrawn. The officials accordingly took special oath and stated that the resignation of the plaintiff was voluntary. In this context the 3 Judges bench of the Supreme Court held as follows:

“It will be noticed that in the present case the oath was administered as per plaintiff /petitioner’s statement and, therefore, there is thus no manner of doubt that the oath taken by two persons in pursuance of the offer of the petitioner amounted to admission of respondent’s claim on his part within the meaning of S. 20 of the Evidence Act (S 18 of the Bharatiya Sakshya Adhiniyam). The two persons were the nominees of the plaintiff and the statements of the nominees by virtue of S. 20 of the Evidence Act (S 18 of the Bharatiya Sakshya Adhiniyam) would be treated as an admission of the parties.”

7. What Admissions are Relevant – Section 19 of the Bharatiya Sakshya Adhiniyam

Now we will move on to the cardinal provision relating to admissions namely section 21. This provision makes certain admissions relevant. After plainly going through the provision along with illustration we will look into and explain the intricacies of the law contained in the section.

Section 19 along with illustrations (a) to (e)  reads as follows :

Proof of admissions against persons making them, and by or on their behalf –

Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases, namely:—

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 26;

(2) An admission may be proved by or on behalf of the person making it, 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;

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

 Illustrations

 (a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged.

A may prove a statement by B that the deed is genuine, and B may prove a statement by A that deed is forged;

but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged.

(b) A, the captain of a ship, is tried for casting her away.

Evidence is given to show that the ship was taken out of her proper course.

A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course.

A may prove these statements, because they would be admissible between third parties, if he were dead, under clause (b) of section 26.

(c) A is accused of a crime committed by him at Kolkata.

He produces a letter written by himself and dated at Chennai on that day, and bearing the Chennai post-mark of that day.

The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under clause (b) of section 26.

(d) A is accused of receiving stolen goods knowing them to be stolen.

He offers to prove that he refused to sell them below their value.

A may prove these statements, though they are admissions, because they are explanatory of conduct influenced by facts in issue.

(e) A is accused of fraudulently having in his possession counterfeit currency which he knew to be counterfeit.

He offers to prove that he asked a skilful person to examine the currency as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine.

A may prove these facts.

Section 19 has 3 limbs to it and they are:

  1. Admissions are relevant and may be proved as against the person who makes them or his representative in interest,
  2. Generally admissions cannot be proved by or on behalf of the person who makes them or by his representative in interest, and
  3. Three instances of exception to the general rule that admissions cannot be proved by or on behalf of the person who makes them

8. Self-harming and Self-serving Statements /Admissions

In a judicial proceeding generally proof of statements/admissions of the parties relating to the disputed matters (suggesting inference as to a fact in issue or relevant fact) assume significance in the determination of the case.

Self-harming statements are those, which harm or prejudice or injure the interest of the person who makes them.

Whereas, self-serving statements are those, which serve to promote or advance the interest of the person who makes them.

To qualify as an admission a statement need not be self-harming; a self-serving statement can also be an admission as per the definition of admission.

But Section 19 (Section 21 of the Evidence Act) states that, Admissions are relevant and may be proved as against the person who makes them or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, subject to exceptions provided therein.

That means admissions can be proved generally only against the party who made it (by the other party) and not in his favour (by himself.)

Illustration (a) to section 19 of the Bharatiya Sakshya Adhiniyam which we have gone through earlier will easily bring home the idea contained in the provision, the illustration reads as follows:

The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged.

 A may prove a statement by B that the deed is genuine, and B may prove a statement by A that deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged.

We will see another example: ‘A’ files a suit for recovery of Rs. 100000/- against ‘B’, alleging that ‘B’ borrowed the said amount. At the trial ‘A’ intends to prove a letter written by him to ‘C’ stating that he lent Rs. 100000/-, this statement in the letter is self-serving and therefore barred under Section 19 of the Bharatiya Sakshya Adhiniyam (Section 21 of the Evidence Act) and therefore cannot be proved.

But if ‘A’ intends to prove through ‘C’ a letter written by ‘B’ to ‘C’ stating that he borrowed Rs. 100000/- from A and never repaid the same, such letter is relevant under section 19 of the Bharatiya Sakshya Adhiniyam and ‘A’ could get it proved.

 Admissions can be proved against the maker and Self-serving statements cannot be proved by the maker:

The cardinal rules as to the nature/types of admissions which are relevant are laid down in Section 19 (Section 21 of the Evidence Act). It is a fundamental principle pertaining to the law of relevancy of admissions is that generally a party cannot prove his own statements/admissions which are generally referred to as Self-serving statements. Whereas admissions can generally be proved only against the maker of such admissions and not by the maker himself. In a judicial proceeding the opposite party can prove the statements of the other party which suggests any inference as to any fact in issue or relevant fact and thereby disprove/weaken the case of such other party. The first part of Section 19 of the Bharatiya Sakshya Adhiniyam lays down the above general rule thereafter three situations of exceptions to the above rule are provided wherein the maker himself could prove his own admissions. Certain illustrations are also provided to demonstrate the provisions. Relevant admissions are exceptions to the exclusion of “hearsay” rule.

The reason, why self-serving statements/admissions are barred is obvious. If permitted parties could falsely manufacture such admissions easily telling upon the credibility of such admissions.

9. Exceptions to the Bar under Section 19 of the Bharatiya Sakshya Adhiniyam

The section itself provides 3 exceptions to the bar against the self-serving admissions/statements.

Exception 1 is as follows:

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 26.

Section 26 (Section 32 of the Evidence Act) provides that 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 specified cases provided in the section from sub clauses (1) to (8).

Sub clauses (1) of section 26 relates to statement as to cause of death (generally known as dying declaration) and sub clause (2) relates to statements made in the course of business and it reads as follows:

“(2) 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.”

 (We will deal with dying declaration and other provisions in section 26 in detail in a subsequent module)

Illustrations (b) and (c) in section 19 deals with 1st exception and the illustrations reads as follows:

(b) A, the captain of a ship, is tried for casting her away.

 Evidence is given to show that the ship was taken out of her proper course.

A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under clause (b) of section 26.

(c) A is accused of a crime committed by him at Calcutta.

He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day.

The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under , clause (2) of section 32.

Exception 2 is as follows:

An admission may be proved by or on behalf of the person making it, 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.

This exception enables a person to prove his own statement as to his state of mind or body which is a fact in issue or relevant fact.

A person’s state of mind or feeling can be manifested to others only by his countenance, attitude, gesture, by sounds or words, spoken or written.

Evidence before the court that he expressed that intention at the relevant time, is substantive evidence of that fact. Hence, his letters or statements to his family or friends could serve as natural evidence of his state of mind.

The reason why these self-serving admissions are made relevant is that a person in pain or extreme feelings of state of mind is not expected to fabricate.

This exception relating to self-serving admissions as to the state of mind or bodily feeling has to be read along with Section 12 (section 14 of the Evidence Act), which reads as follows:

Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling, is in issue or relevant.

Explanation 1 .–A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.

Explanation 2.– But where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of such person shall also be a relevant fact.

 Illustrations (d) and (e) to section 19 relates to 2nd exception and reads as follows:

(d) A is accused of receiving stolen goods knowing them to be stolen.

He offers to prove that he refused to sell them below their value.

 A may prove these statements, though they are admissions, because they are explanatory of conduct influenced by facts in issue.

 (e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit.

He offers to prove that he asked a skilful person to examine the coin as he doubted whether it was counterfeit or not, and that that person did examine it and told him it was genuine.

A may prove these facts.

(Because they are explanatory of conduct influenced by facts in issue)

Exception 3 is as follows:

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

A statement may be relevant under Sections 4, 6, 9, 11(b), 11 and 28 etc of Bhartiya Sakshya Adhiniyam (Sections 6, 8, 11, 13(b), 14, 34 respectively of the Evidence Act), otherwise than as admission (under section 19 read with section 15).  Such admissions could be proved even by the person making it, that means one can prove one’s own statements.

  1. Section 4 relates to resgeste and reads as:

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

For instance a spontaneous and contemporaneous statement of a victim of a road accident holding the driver of the vehicle as being negligent and responsible for the accident and injurious caused would be relevant and could be proved from the victim’s side as forming part of the incident.

  1. Section 6 relates to motive, preparation and conduct and reads as:

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1.–The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2.–When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

For example, a person injured in a crime ran down a street shouting the name of the assailant. He could prove his own statement as it accompanies conduct explanatory of the fact of injury.

  • Section 9 relates to facts inconsistent with relevant facts and reads as:

Facts not otherwise relevant are relevant–

 (1) if they are inconsistent with any fact in issue or relevant fact;

 (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

For example an accused who takes up a plea of Alibi could prove his own statement stating that he was elsewhere at the relevant time of the commission of the offence.

  1. Section 11 reads as:

Where the question is as to the existence of any right or custom, the following facts are relevant:–

(a) 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:

(b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.

A party can prove his own statement whereby he made a claim as to a right of way or any other right or custom.

  1. Section 12 relating to facts showing the existence of state of mind, reads as under:

Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling, is in issue or relevant.

Explanation 1. —A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.

Explanation 2. — But where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of such person shall also be a relevant fact.

  1. Statements of entries in account books are relevant (though not conclusive) under section 28 of the Bhartiya Sakshya Adhiniyam (section 34 of the Evidence Act). A party to the proceeding can prove the same though it is in the nature of self-serving statements.

10. When oral admissions as to contents of documents are relevant

Now we will move on to Section 20 of the Bhartiya Sakshya Adhiniyam (Section 22 of the Evidence Act) Which reads as follows:

Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

As per 59 of the Bhartiya Sakshya Adhiniyam (section 64 of the Evidence Act) “Primary evidence” means the document itself produced for the inspection of the Court.

Whereas section 60 (section 65 of the Evidence Act) specifies the circumstances in which secondary evidence may be given of the existence, condition or contents of a document.

These provisions are based on the “Best evidence rule”. That means in a judicial proceeding the court should be provided with the best available evidence for it to adjudicate fairly.

Section 20 has to be read along with section 147 of the Bhartiya Sakshya Adhiniyam (section 144 of the Evidence Act) relating to the Examination of the Witness also, which reads as follows:

Section 147: “Any witness may be asked, whilst 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.

So under section 147 the court can prevent statement as to the contents of a document until the same is produced or foundational facts are proved for tendering secondary evidence.

(We will deal with law relating to documentary evidence including primary and secondary evidence in detail in a subsequent module)

11. “Admission with out prejudice” – Section 21

Now we will move on to “Admission without prejudice”

Section 21 of the Bhartiya Sakshya Adhiniyam (Section 23 of the Evidence Act) embodies the rule that in civil cases an admission is irrelevant or not provable if it was made upon an understanding between the parties that evidence of it is not to be given. The provision is based on public policy and is intended to promote amicable and fair settlement of disputes without recourse to or continuation of litigation. Section 21 reads as follows:

“In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.

Explanation. — Nothing in this section shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence under sub-sections (1) and (2) of section 132.

The object of this section is to promote negotiations between parties to disputes without inhibitions thereby promoting settlements of disputes. In the process of such negotiations there could be some give and takes between the parties and several interse statements might be made during the course of such bargains. Section 21 protects such free bargains and prevents the parties from tendering evidence in court of admissions made during the process of such negotiations. Such admissions are generally referred as “admissions without prejudice”.

As per section 21, No admission is relevant in civil cases, if it is made under the following situations:

  • upon an express condition that evidence of it is not to be given, or
  • under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given(here the condition is implied)

Negotiations conducted with a view to settlement should be deemed to be conducted without prejudice and it could be inferred that parties agreed together that no evidence of it should be given.

12. Distinction between Evidentiary Admission under Section 15 to 19 and Formal / Judicial Admission under Section 53 of the Bhartiya Sakshya Adhiniyam.

Now we will see the Distinction between Evidentiary Admission under Section 15 to 19 and Formal / Judicial Admission

Sections 15 to 18 of the Bhartiya Sakshya Adhiniyam (Sections 17 to 20 of the Indian Evidence Act) together define admission and S 19 of the Bhartiya Sakshya Adhiniyam (S.21 of the Evidence Act) declares admission of a party relevant. The admissions referred to in these sections are evidentiary admissions, which are out of Court admissions, generally made prior to the proceeding. They have to be proved in a case just like any other fact, which means that they should be tendered in evidence. To put it differently, those provisions are relevant only in the course of a trial. Evidentiary admissions are not conclusive and they may be shown as wrongly made unless it operates as estoppel.

Whereas, chapter III – Sections 51 to 53 of the Bhartiya Sakshya Adhiniyam (Sections 56 to 58 of the Evidence Act) deals with ‘facts which need not be proved’ and it covers facts which are judicially noticeable and facts which are formally admitted as provided in S.53 (S. 58 of the Evidence Act), which reads as follows:

“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.”

Section 53 expressly provides that facts formally admitted as provided in the section need not be proved.

Section 53 covers only admissions made during the course of proceedings as specified therein and such admissions are often called / referred as formal or judicial admissions.

The Court has to try the points or issues on which the parties are at dispute and not which they agree.

The provision covers three instances of admission of facts by a party.

The first one is the facts which the parties admit at the time of hearing; this could be oral admission before the court and recorded by the court.

The second one is the facts which the parties agree to admit before the hearing, section provides that such admission needs to be in writing.

The third one is the facts which the parties are deemed to have admitted by rules of pleadings.

The proviso to the section makes it clear that the Court is not bound to decide the case on such admissions but in its discretion can call for evidence.

13. Section 25 of the Evidence Act – Admissions Are Not Conclusive Proof,

Now we will move on to section 25 of the Bhartiya Sakshya Adhiniyam (Section 31 of the Evidence Act)

Section 25 reads as:

“Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions hereinafter contained.”

Section 121 of the Bhartiya Sakshya Adhiniyam (Section 115 of the Evidence Act) deals with Estoppel. The Section reads as:

“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.”

Distinction Between Estoppel and Admission

In Treasa Xavier v. Mary Simon and others reported in 2014 (4) KLT 246, a division bench of the High Court of Kerala explained the distinction between Estoppel and Admission. The Court observed:

“There is a clear distinction between estoppel and admission. Estoppels differ from evidence in that estoppels are received as conclusive and preclude all enquiry into the merits of the title, while evidence is merely the medium of establishing facts which do exist or have existed.” (See Corpus Juris Secondum P. 331 Vol.31 2008 Edn). Estoppel creates an absolute bar. But admission is only a piece of evidence to prove a fact and it does not create bar and the party making the admission may always prove that it was erroneous or untrue or mistaken unless it operates as estoppel as provided under Section 31 of the Evidence Act (S.25 of the Bhartiya Sakshya Adhiniyam).”  

In Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai, 1982 KHC 392 : AIR 1982 SC 121 : 1982 (1) SCC 223 : the Supreme Court has considered the requirements to bring a case within the scope of estoppel as defined in S.115 of Evidence Act ( S 121 of the Bhartiya Sakshya Adhiniyam).

“(1) There must be a representation by a person or his authorised agent to another in any form, a declaration, act or omission; (2) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract; (3) the representation must have been meant to be relied upon; (4) there must have been belief on the part of the other party in its truth; (5) there must have been action on the faith of that declaration, act or omission, that is to say, the declaration, act or omission, must have actually caused another to act on the faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) only the person to whom representation was made or for whom it was designed can avail himself of it.”

14. Evidentiary Value of Admission

Proof of Admission is Substantive Evidence and generally it is of substantial worth against the maker in a judicial Proceeding and admissions generally shifts the burden of proof. But a Party will have an opportunity to explain and prove that the admission was erroneous or made under mistake or a wrong impression of fact, unless it operates as estoppel. When a fact is conclusive as in the case of Estoppel Court cannot allow evidence to be given for disproving it. An Admission of a fact is conclusive only when it operates as Estoppel under Section 121 of the Bhartiya Sakshya Adhiniyam (section 115 of the Evidence Act).

In Nathoo Lal v. Durga Prasad, 1954 KHC 479: AIR 1954 SC 355, the Supreme Court held:

“An admission is a substantive piece of evidence. What is admitted by a party to be true must be presumed to be true.”

In Delhi Transport Corporation v. Shyam Lal, reported in  AIR 2004 SC 4271, the Supreme Court held:

“It is open to a party to show that his admission was erroneous or untrue.”

In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, reported in AIR 1960 SC 100, The Supreme Court, observed:

An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.

In Avadh Kishore Das v. Ram Gopal, reported in AIR 1979 SC 861, the Supreme Court, opined:

“It is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong, but they do … shift the burden of proof on to the person making them or his representative in interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted.”

“Phipson on Law of Evidence” opined:

“As the weight of an admission depends on the circumstances under which it was made, these circumstances may always be proved to impeach or enhance its credibility. The effect of admission is that it shifts the onus on to the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established.”

In Union of India v. Ibrahim Uddin and Another reported in 2012 (8) SCC 148 the Supreme Court, reiterated the principle and held:

The question which is needed to be considered is what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross – examination to tender his explanation and clear the point on the question of admission.

15. Admission in Previous Suit or Proceeding

An admission by a party in a previous suit is admissible in evidence in a subsequent suit. The burden is upon the party making it to show that it was wrong on the principle that what a party himself admits to be true may reasonably be presumed to be so, though the party making the admission may give evidence to rebut this presumption. Unless and until that is satisfactorily done, the fact admitted is generally taken as established.

In Thimmappa Rai v. Ramanna Rai, reported in 2007 (14) SCC 63, the Supreme Court held:

“Though it is open to rebuttal in accordance with law, admission contained in a plaint or written statement or in an affidavit or sworn deposition by a party in a previous litigation would be regarded as an admission in a subsequent action.”

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’

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Exercise Questions

  1. What is an Admissions under of the Bhartiya Sakshya Adhiniyam? Elucidate the circumstances in which admissions are relevant?
  2. “Self-serving Statements/Admissions are not generally admissible”. What are the exceptions to this rule? Explain referring relevant provision in the Bhartiya Sakshya Adhiniyam.
  3. ‘Admissions are not conclusive proof of the matters admitted’ Elucidate. Discuss the Evidentiary Value of Admissions.
  4. Differentiate Evidentiary Admission under Section 15 to 19 of the Bhartiya Sakshya Adhiniyam and Formal / Judicial Admission referring relevant provisions in the Evidence Act.
  1. Admissions without prejudice cannot be proved. Comment