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THEORY:

Definition of Confession and Distinction with Admissions

The term confession is not defined under Indian Evidence Act unlike in English Law of Evidence Act. All the provisions relating to confessions dealt under the heading of Admissions which signifies that the legislature didn’t intend to distinguish both. The definition of Admission under section 17 applicable to confession too. Admission is a statement made orally or in written form which suggests an inference to the fact in issue or relevant fact. If the statement is made in civil proceeding it is admission and if it is made in criminal cases it is confession. Thus the confession is a statement made by a person charged with a crime suggesting an inference as to any facts in issue or relevant fact. The inference that the statement should suggest that he has committed the crime. An admission is a genus where as confession is a species of it. One practical effect would be if a statement which cannot be a confession can still be an admission.

Sir Stephen defines confession as an “admission made at any time by a person charged with a crime stating or suggesting that he committed that crime.” The Privy Council in Pakala Narayan Swami V. Emperor, held that “A confession must either be admitted in the context of any offence or in relation with any substantial facts which inaugurate the offence with criminal proceedings. And an admission of serious wrongdoing, even conclusively incriminating fact is not itself a confession”. For example an admission by the person that he is the owner or having the possession of a knife or a gun which caused the death of another person by itself is not a confession.

This definition was approved by Supreme Court in Plavinder Singh v State and held that Firstly, the confession must either admit the guilt in terms or substantially all the facts which constitute the offence. Secondly, a mixed up statements (like mixture of inculpatory and exculpatory Statements) which though contains a confessional element will still lead to acquittal is no confession. It held that a confession must either accept in full or reject in full. It held a confession or an admission must either accept in full or reject in full. The court cannot accept inculpatory statement and convict a person by rejecting the exculpatory statement totally.

However, the Supreme Court in Nishi Kanth Jha v State held that there is no wrong on relying some part of statements confessed by the accused and neglecting the other part, the court has traced out this concept from English Law and when court in its capacity understood that it has enough evidence to neglect the exculpatory part of the confession, then it may rely on the inculpatory part such confession.

Conclusively we can understand that the expression of confession means any statements made by an accused which proves his guilt. And there is just a thin line difference between the two terminologies of the Indian Evidence Act that admission is no other different term than admission as a confession only ends up in admission of guilt by the accused.

Confessions and Admissions Distinguished

Both Confession and Admissions have many common features that all the provisions relating to them occur under Admission. In both the cases the statements suggest an inference as to a fact in issue or a relevant fact. As the definition of admission is also applicable to that of confession and confession comes under the topic of ‘admission,’ it can be inferred that admission is a broader term and it covers confessions. Hence, all confessions are admissions but not all admissions are confessions. However, there are few points which distinguishes them. They are as under:

1. Admissions are genus, where as Confessions are species

2. Section 17 which defines admissions also defines confessions

3. A confession is admission of guilt in reference to a crime and therefore always goes against the interest of the maker. Where as the admission though against the interest of the maker, but under section 21 which provides and exception that admissions by or on behalf of the of the persons making them.

4. The conditions for admissibility of confessions and admissions as evidence are different. The Confessions must by voluntarily made. A confessions made under inducement, threat or promise are n irrelevant under section 24. Similarly a confessions made to a police officer (Sec 25) and made during the police custody (sec 26) cannot be proved against the accused. Admissions however are relevant irrespective of the fact whether made to any person or any ay inducement etc.

5. Confessions made voluntarily are always conclusive proof of the facts admitted and the accused may be convicted on the basis of the same. Where as, Admissions are not conclusive proof of the fact admitted but act as estoppels against the maker.

6. Confessions made by one accused can be considered against a co accused provided both are jointly tried for the same offence. However, admission made by one defendant cannot be considered against the co defendant in the same suit or proceeding as they do not have same interest.

7. Confession made under promise or secrecy is provable. Where as an Admission obtained under the promise of secrecy is not relevant

Dying Declaration and its relevancy

The rules of evidence requires the persons with the knowledge of facts in any case should come personally to the court and depose. Section 32 however, lays down an exception that where a person having the knowledge of facts of the case but due to the reasons mentioned in the section is unable to attend the court and depose, any person to whom such knowledge is transmitted can give evidence and such evidence is held to be relevant.

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

Statements, written or verbal, or 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 expenses which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases

(1) When it relates to cause of death.

(2) Or is made in course of business.

(3) Or against interest of maker.

(4) Or gives opinion as to public right or custom or matters.

(5) Or relates to existence of relationship.

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

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

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

Section 32(1) deals with Dying Declaration:

It runs, “When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.”

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

Section 32 is a pretty long one. It provides an exception to the rule of exclusion of hearsay evidence. It is based upon the principle that the person who has first hand of knowledge of the facts of the case, but who, for the reasons mentioned in the section unable to attend the court, then his knowledge should be transmitted to the court through another person. The law wants best evidence in all the cases.

Dying Declaration:

Statement by a person as to the cause of his death or any circumstances which resulted in his death. Such statements shall become relevant in all the cases in which his death comes in as question. The section further lays down that such statements are relevant whether the person making them was or was not under the anticipation of death and whatever be the nature of the case in which the cause of his death comes in as question.

Difference between Indian law and English law

1. Under English Law, the statement is relevant only in criminal cases of murder or manslaughter (R v Mead). But under Inian Law such statements are relevant in all the cases whether civil or criminal cases where the cause of the death of the person comes in as question

2. Under English law the person who is making the statement must be in expectation of death. ( R v Jennings) . Under Indian Law anticipation of death is not necessary. Statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. ( Pakala Narayana Swamy v Emperor)

Admissibility of Dying Declaration

The concept of dying declaration is based on the Maxim “NEMO MORTURE PRAESUMNTUR MENTIRI” which means that the person who is about to die would not tell lie. The necessity of relying on the dying declaration is that a) victim being the sole eye witness of the crime committed, b) the statements made by a person who is about to die would be nothing but just truth. These are the two principles on which the concept of admissibility of dying declaration it is based upon.

Dying declaration” is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations, courts attach intrinsic value of truthfulness to such statement.

Conditions for its admissibility

1. It may be oral or written or even in the form of gestures ( Queen Empress v. Abdulla)

2. It must be complete

3. Anticipation of death is not necessary ( Pakala Narayana Swamy v. Emperor)

4. Proximity of time between the statement and death. There has to proximate relationship between the death and circumstances of death. (Sharada v State of Maharashtra)

Evidentiary Value of Dying Declaration

Dying declaration can only be taken into consideration when it is

a) Recorded by a competent magistrate (with certain exception),

b) the said statement must be recorded in the exact words,

c) there must not be any scope of influence from the third party, and hence the declaration must be made soon after the incident that is the reason of the death,

d) there must not be any ambiguity regarding the identity of the offender or cause of death.

It is very important to note that such a statement must not be made under the influence of anybody or it must not be given by promoting or tutoring. In case there is such a suspicion, then such dying declaration needs evidence to corroborate.

Some general prepositions: Factors in reliability as laid down by Supreme court in Kusa v State of Orissa, R Mani v State of TN, State v Mohan, Lal, Rambihari Yadav v State

1. There is no absolute rule that DD cannot become the sole basis for conviction unless corroborated it. If the declaration is coherent, consistent, and trustworthy and appears to have been made voluntarily, conviction can be made on the basis of it even if it is not corroborated.

2. Each case must go in its own facts

3. A dying declaration is not a weaker kind of evidence just becaue it was not taken on oath.

4. A properly recorded DD by a competent authority in form of questions and answers as fas as practicable is highly reliable.

5. To test the veracity of DD the court has to keep in view of circumstances like the opportunity of the dying man observation.

6. Delay in recording DD if the person is not in fit condition is of no consequence

If the person making Dying Declaration survives, then it is no longer a dying declaration. As long as the person survives it remains as a document in the investigation. If he survives the statement needs to be corroborated like any other evidence

Relevancy of Previous Evidence [Sec. 33]

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness

1. is dead or cannot be found, or

2. is incapable of giving evidence, or

3. is kept out of the way by the adverse party, or

4. if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable.

Provided,

1. That the proceeding was between the same parties or their representatives in interest;

2. That the adverse party in the first proceeding had the right and opportunity to cross examine;

3. That the questions in issue were substantially the same in the first as in the second proceeding.

Explanation: A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Evidence in one case cannot be considered in another case. S. 33 which is an exception to this rule is applicable to the cases in which evidence given by a witness:

1. in a judicial proceeding, or

2. before any person who is authorized by law to take evidence; and

3. The witness cannot be called to give evidence

(a) before the same Court at a later stage;

(b) before the same or another Court in a subsequent case.

In Judicial Proceedings

The principle is applicable in judicial proceeding and before any person authorized by law. Judicial proceeding means any proceeding where evidence is taken on oath. Evidence given by a witness in a judicial proceeding is relevant for the purpose of proving a particular fact in later stage of the same judicial proceeding, when the witness cannot be found or is dead.

Relevancy of Certain Judgments in Probate Etc., Jurisdiction [Sec. 41]

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.

The general principle is that a person is not bound by any transaction to which he is not a party.

Therefore, judgment between two parties (judgment inter parties) is binding upon a third party.

However, judgments may be either 1. judgments in personam; or

2. judgments in rem.

In the above-mentioned general rule, ‘judgment’ means ‘judgment in personam’. Sec. 41 refers to a judgment in rem.

Judgments In Personam

A judgment in personam is a judgment between the parties to a contract, tort crime. Judgments in personam bind the parties and their representatives-in interest. Such a judgment is not relevant under s. 41, in any subsequent proceeding. Judgments In Rem

A judgment in rem is a judgment against the whole world. Taylor defines ‘judgment in rem as an adjudication pronounced, as its name indeed denotes upon the status of some particular subject-matter, by a tribunal having competent authority for the purpose. A judgment in rem under this section is conclusive in a civil as well as in criminal proceeding. Both the proceedings may run simultaneously. Judgments mentioned in s. 41, viz., judgments of courts exercising probate, matrimonial, admiralty or insolvency jurisdictions, are judgments in rem.

A judgment in rem is conclusive proof of matters showing that:

1. it has conferred legal character; or

2. it has declared that person has such legal character; or 3. it has declared that such legal character has ceased to exist.

‘Legal character’ means a ‘legal status’. To say that a person is not a partner of a firm is not to declare his status or legal character; it is merely to declare his position with respect to the particular firm.

Probate Jurisdiction

Probate jurisdiction means jurisdiction of a court under the Indian Succession Act, 1925 in respect of testamentary and intestate matters. By exercising probate jurisdiction the court can pronounce the genuineness of will of a deceased person and grant letter of probate in favour of a person who may act for the deceased in execution of his will. The court must also satisfy its conscience before it passes an order. A judgment by a probate is a judgment in rem by which legal character of a person is granted. A judgment of a court of probate is conclusive proof and is binding on the entire world. The grant of probate is the decree of a court which no other court can set aside except for fraud or want of jurisdiction.

Matrimonial Jurisdiction

A court having matrimonial jurisdiction can decide matrimonial causes under various Acts. By virtue of this jurisdiction the court can decide the legal status of a person whether she is married or widow or divorcee. The judgment of a Matrimonial court is judgment in rem and is admissible under s. 41. A decree of nullity and divorce under Marriage Law has the same effect.

Admiralty Jurisdiction

Admiralty jurisdiction is exercised by certain High Courts under the Letters Patent. An Admiralty Court decides cases arising out of war claims. The finding of a court of admiralty jurisdiction is a judgment in rem

Insolvency Jurisdiction

A court having insolvency jurisdiction exercised its power under the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920. Now the jurisdiction is exercised under the Insolvency Code. By exercising insolvency jurisdiction the court can determine legal status of a person whether he is insolvent or he is discharged from insolvency or annulment of his insolvency. A judgment of an insolvency court is a judgment in rem and binding on all.

Effect of Judgements in Rem

Such judgment, order or decree is conclusive proof

1. that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;

2. that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment order or decree declares it to have accrued to that person;

3. that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and

4. that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

Relevancy and Effect of Judgments, Orders or Decrees other than those mentioned in Sec. 41 [Sec. 42]

Judgments, orders or decrees other than those mentioned in, sec. 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.

Under s. 42, judgments, orders or decrees other than those mentioned in s. 41 are relevant if they relate to the matters of public nature whether between the same parties or not. Thus, this section is another exception to the general rule that no one should be affected by a judgment to which he is not a party. Under this section, judgments neither inter parties nor in rem are relevant, if they relate to matters of public nature under inquiry.

The words ‘matters of public nature’ means matters affecting entire population or at least a large section of the population. It should be remembered that judgments relating to matters of public nature relevant under s. 42 neither work as res judicata nor they are conclusive as judgment in rem. They can be used as corroborating evidence. Such evidence may not be between the same parties, but they are related only to the matters of public nature relevant to the inquiry.

Relevancy of Judgments other than those mentioned in secs. 40-42 [sec. 43]

Judgments, orders or decrees, other than those mentioned in secs. 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. Sec. 43 provides that if a judgment is not relevant under secs. 40, 41 or 42 it will not be relevant.

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 libelous is true. 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.

However, such judgment may become relevant if the existence of judgment itself is a fact in issue or is relevant under some other provisions of the Act. This section expressly contemplates cases in which a judgment itself is fact in issue or a relevant fact. The illustrations (d) to (f) appended to sec. 43 show that judgments have become relevant under some other provisions (i.e., secs. 6 to 55) of the Act.

Illustrations

(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.

(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 s. 8 as showing the motive for the fact in issue.

Thus, a judgment not inter parties is admissible if its existence is a relevant fact. This section makes it clear that judgments other than those mentioned in Ss. 40, 41 or 42 are of themselves irrelevant. Bombay High Court in Laxshman Govind vs. Amrit Gopal has held a judgment not inter parties is inadmissible to prove the fact stated therein. However, s. 43 provides that the existence of the judgment may become relevant under some other provisions of the Act, in which case, it will be admissible in evidence in a case not inter partes.

A judgment not inter partes is admissible if its existence is a relevant fact. Thus, the findings in civil proceeding are not binding on a subsequent prosecution, and judgment in a criminal case cannot be relied on as binding in civil case. For example, judgment of a Criminal Court would not be relevant in the claim petition under the Motor Vehicle Act.

Fraud or Collision in obtaining Judgment or Lack of Competency of Court [sec. 44]

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under secs. 40, 41 or 42, which has been proved by the adverse party,

1. was delivered by a court not competent to deliver it, or 2. was obtained by fraud or collusion.

Sec. 44 gives an opportunity to the adverse party to raise questions that the judgment obtained under secs. 40, 41 and 42 by the first party in the previous suit or proceeding on the grounds mentioned in sec. 44. Sec. 44 is not applicable to sec. 43.

For Example: though the genuineness of the will cannot be challenged once the probate is issued under section 41, but the judgment can be challenged that it was obtained by fraud or collusion.

The Competency on the part of court means lack of jurisdiction. Thus if any court without jurisdiction gives judgment on any matter it is null and void. It cannot be used as evidence as relevant.

Statements by the Third Persons when Relevant Experts Opinion and the Circumstances when it becomes relevant [Sections 45 -50]

The general principle of law of evidence is that every witness is a witness of a fact not of an opinion. It means that every person who appears before the court has to tell the court only the facts of which he has the first hand knowledge and not his opinion. He has to tell what he has seen or heard or perceived about a fact. Not his beliefs which are irrelevant. The forming of opinion is a judicial function and not of a witness.

Exception: Sections 45 to 50 lays down the exceptions as to when the opinions of the third persons become relevant.

Section 45: Experts Opinion.

This section provides that, “ When the Court has to form and opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, 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.

(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.

The courts seeking opinion of experts has been a long standing practice. The reason is obvious that there are many matters which require technical and professional knowledge, which the court may not possess and it has to rely upon the person who are experts in such fields. Example, the court has to know the reasons of air crash, cause of a ship wreck, cause of a death, effect of poison, nature of art, value of articles, meaning of terms and foreign law etc..

Who is an Expert: The IEA does not define who is expert simply lays down that any person who is specially skilled i.e. has acquired a special knowledge shall be called as expert. A gold smith without any formal education has been considered as an Expert to find out the purity of the gold (Abdul Rahman v. State of Mysore).

When Experts opinion becomes relevant: In the following matters the opinions of Experts become relevant:

1.Foreign Law

2. Matters of Science

3. Question of Art

4. Identity of Hand writing

5. Finger Impressions

1.Foreign Law : Foreign Law means which is not in force in India. The courts may not be conversant with them. When the court has to form an opinion on any point of foreign law, the opinions of the persons who are experts in such law becomes relevant and the courts can seek their opinions. The law in force in India is not a foreign law. Ex. Shia Law is not a foreign Law in India ( Aziz Bhanu v. Mohammad Ibrahim Hussain ). Who is an expert in foreign law.? He should be a practitioner in law (Bristow v Sequeville)

2.Matters of Science of Art: The expression science or art includes all subjects on which a course of special knowledge is necessary for the formation of an opinion. The words science and art are broadly construed. The word science not limited to physical or biological sciences and an area which requires a special knowledge. The word arts does not just include a fine arts. To determine the particular matter of science or art the test to be applied is to see whether a common man could answer or it requires an expert in such fields

3.Identity of Hand Writing & Finger Impressions : When the court has to decide the identity of hand writing of a person or the identity of certain person’s finger impression, it may receive the opinion of the persons who have expertise in such matters. Apart from the persons of professional knowledge even the person who is acquitted with the hand writing of a person, his opinion is also relevant (R v Silverlock).

As far as the reliability of such opinion is concerned, the supreme court in number of cases has held that they are not conclusive by themselves. They required to be corroborated with a clear or direct or circumstantial evidence. Hoverer, finger impression expert’s opinion is given more value because such opinions are based upon exact science and correctness. Because fingerprints of any person remain the same from their birth till death and no two individuals finger impression have been found to have the same pattern.

4. Other technical Matters: The opinion of experts is relevant only on the matters mentioned above.

Evidentiary Value of Experts Opinion

The evidence of expert is not conclusive. The opinion of expert is not binding upon the judge and that is why the court can refuse to rely on such opinion. It is necessary that there are some corroborating or supporting evidences in relation to the matter. It is necessary to show that the expert has some special knowledge and experience and is competent to form an opinion. Credibility and competency of an expert is material question. The reasons in support of the opinion, if convincing makes the opinion admissible and relevant.

Section 45A – Opinion of examiner of electronic evidence- This section provides that opinion of examiner is relevant when the court has to form an opinion on matter or information transmitted or stored in any computer resource or digital form.

Section 46 – Facts bearing upon opinions of experts – This section provides that facts are relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant.

Section 47 – Opinions as to handwriting – the opinion of person acquainted with the handwriting of person in question is a relevant under this section. When the court has to form an opinion as to the person by whom document was written or signed, the opinion of such person is relevant. In the case of State of Maharashtra v. Sukhdeo Singh, the Supreme Court held that two things must be proved beyond any doubt for expert evidence – 1) The genuineness of the specimen or admitted handwriting as that of the suspect must be established. 2) The handwriting expert is a competent, reliable witness whose evidence inspires confidence.

Section 47A – Opinion as to digital signature when relevant – the opinion of certifying authority which issued the digital signature certificate is admissible when the court has to form an opinion on digital signature.

Section 48 – Opinion as to existence of right or custom when relevant – the opinion of persons who would be likely to know about the existence of any right or custom is relevant.

Section 49 – Opinion as to usage’s, tenants, etc., are relevant – the opinions of persons having special means of knowledge about the usage’s and tenants 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 are relevant.

Section 50 – Opinion on relationship, when relevant – the opinion of persons having special means of knowledge about the relationship of one person to another or as a member of family is relevant.

Section 51 – Grounds of opinion are relevant –This section provides that the grounds on which the opinion of living person is based are also relevant.

Modes of Proving Handwriting and Finger Impressions

Section 47 of Indian Evidence Act, 1872 deals with 'Opinion as to handwriting, 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.

A person is said to be acquainted with the handwriting 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

Illustration The question is, whether a given letter is in the underwriting 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 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.

Modes of proving the handwriting

Sections 45 and 47 put together, the following modes of proving the handwriting

1. By the writer himself

2. By the expert opinion

3. By the evidence of the person who is acquainted with the handwriting of the person in question

4. Under section 73 by the court itself by comparing the handwriting in question with the proven handwriting.