Lectures of Evidence

Lectures of Evidence

  1. Why there is need of Evidence Act ?
  1. What is the object of Indian Evidence Act, 1872?
  1. What is the nature of Evidence Act?
  1. Whether Evidence Act is exhaustive or not.
  1. Whether evidence act is Lex fori or Lex loci.
  1. What are the key words in the preamble of Evidence act?
  1. Structural representation of Indian Evidence Act 1872.

INDIAN EVIDENCE ACT

RELEVANCY

MAINS

  1. Define the word Evidence and distinguish between oral and documentary evidence and direct and circumstantial evidence?
  1. State briefly the difference between fact in issue and relevant fact?
  1. Explain the expression May presume , Shall presume and conclusive proof.
  1. What is the rule of Res gestae?

Historical Background

Ancient Period – Elaborate discussion on the rules of evidence in the Sanskrit books

Muslim Period– Not much material is available with respect to Law of evidence

1726- Rules of evidence Prevailing under common law and statute law was introduce

1835 and 1855– Eleven enactments were in free which dealt with the subject of evidence.

1868- The draft prepared by Sir Henry Summer Maine was found unsuitable.

1872– The bill of the present Act was prepared by Sir James Stephen.

 

Nature of Evidence Act

Law

 

Substantive Law                       Procedural Law

Basically evidence Act is         procedural law but Doctrine of estoppels is in substantive nature.

 

Exhaustive or not

It is not exhaustive. But if there is express provision in the act, the courts have to follow it and if there is no provision, courts can follow the English law or law of any country.

There are other acts which also consists the provisions for evidence.

  • Banker’ s book evidence Act.
  • P.C O.XXVI.
  • R.P.C, S. 291 & S.292.
  • Registration Act, S.49 & S.
  • P.A. S. 59 & S.123.
  • The Limitation Act, S.19 & S.20.

 

 

Legal System-:

Legal System       Inquistorial System                     Adversary System         (Evidence)

Lex Fori or Lex Loci

The House of Lords observed that Law of evidence is Lex fori which govern the courts. All the questions related to evidence should be determined by the law of the country where the question arises, where the remedy is sought to be enforced and where the court sits to enforce it.

 

Preamble:

Where as it is expedient to consolidate defer and amend the Law of evidence, it is here by enacted as follows:-

Key words:-

  1. Consolidate
  2. Define
  3. Amend

 

Contents:-

Indian Evidence Act, 1872

   Part.1                           Part.2                                Part.3

 

Part 1(Relevancy of facts)                                                                                                                                                                                                

Preliminary                                                                   Relevancy of facts                                                                                (Ch-1 S.1 to S.4)                                                           (Ch-2 S.5 to S.5)

Part II (On Proof)

 

Fact need not be              Oral evidence (Ch-4, S.59 to S60)                              The Exclusion of oral or documentary

(Ch-3, S.56 to 58)                                                                                                  evidence (Ch-5 ,S.91 to S.100)

                                                                                               

 

Documentary Evidence

(Ch-4 ,S.61 to 96 –A)

Part III [Production and effect of Evidence]

                               

The Burden of Proof            Estoppel                                Examination of                 Improper Admise and

(Ch-7 ,S.101 to 114 A)  (Ch-8, S.115 to 117)    witnesses (Ch-10 ,S.135 to 116) rejection of evidence

(Ch-11, S.167)

Witnesses

(CH- 9 ,S 118 to 134)

  

S.1 Short title, extent and commencement:-

The Indian Evidence Act applies to all Judicial proceedings in or before any court including courts martial but it does not apply to :-

(i) Court martial convened under

–  Army Act

–  The Naval Discipline Act.

– The Indian Navy

– Air force Act

(ii) Affidavits

(iii) Proceedings before any arbitrator.

Judicial Proceedings:-

An enquiry is judicial if the object of it is to determine the jural relation between  person and another or a group of persons or between him and the community generally.

According to S.2, Sub- clause (i)., Cr.P.C.1973, a judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken on oath.

 

S.3 Interpretation Clause:-

Court:-

“Court” includes all judges, and Magistrates and all person except arbitrator, legally authorized to take evidence.

  1. Not exhaustive definition.
  2. The definition is only for the purpose of the act and should not be extended beyond its legitimate scope.
  3. It includes both judge and jury.
  4. The authorities under M.P. Madhyasthan, Adhiraran, Adhiniyam, they are court within the meaning of the Act.
  5. A court does not include arbitrators though he is legally authorized to take evidence.

 

 

Facts:-

Facts means and include

 

Anything  state of things or relation of things                      Any mental condition of which any

capable of being perceived by the sense                                                 Person is conscious.

 

  • The fact may be classified into:-
  • Physical and Psychological fact.
  • Positive and Negative fact.
  1. Physical and Psychological fact:- Physical fact refers the external fact and Psychological refers the internal facts. The subject of perception by the five senses in called physical facts.

Facts of which a person is mentally conscious and which cannot be physically observed are know as mental or internal facts.

  1. Positive and Negative facts:– The existence of a certain state of things is positive fact. And the non-existence of it is a negative fact.

 

Evidence:-

Evidence means and include

All statements which the court permits or require to be made before it    All documents, including

By witness, in relation to matter of facts under inquiry such statement   electron records, produced

are called oral evidence or ocular evidence                                                        before court, such documents

called documentary evidence.

This is a statement of kind of evidence rather the definition of the evidence. The definition is a defective definition. It includes only two kinds of evidence but that does not mean that there cannot be any other kind of evidence e.g. when a judge inspects the scene of occurrence and draws a chart of it, that is also an evidence thought it is neither oral statement of a witness nor a document produced by the parties, but in a way it is document. The definition also does not include admission or confessions though the act regards these as relevant evidence. But these can be put either of  category or the other. The above definition of the evidence also does not refer to other kind of evidence which is known in English law as real evidence. This is third category and refers to the material objects produced for the inspection of the court such as photographs, murder weapon, bloodstained clothes etc. when these can be regarded as evidence documents.

 

Classification of Evidence:-

Evidence may be classified under the following heads:-

  • Direct and circumstantial evidence.
  • Real and personal evidence.
  • Original and un-original evidence.
  • Substantive and non-substantive.
  • Prosecution evidence and defense evidence.

 

  1. Direct Evidence:-

It means any fact which without the intervention of any other fact proves the existence of a fact in issue. It is generally of superior cogency. It is generally advantage is that there is only in source of error i.e. fallibility of testimony. e.g. , A is tried for setting fire to the house B deposes that he saw A setting fire to the house.

 

  1. Circumstantial Evidence:-

Circumstantial evidence is that which relates to a series of other facts than the fact in issue, but experience have been found so associate with the fact in issue in relation to cause and effect that it leads to a satisfactory conclusion.  Circumstantial evidence is not to be confused with hearsay or secondary evidence. It is always direct and primary.

In Meria Venkata Rao v. state of A.P. Supreme court held that in the case of circumstance evidence, all the circumstances should be established, by independent evidence and they should from a complete chain, bring hence the guilt of the accused without giving the room to tnay other hypothesis.

Five golden principles of circumstantial evidence:- In Sharad Birdichand Sharda v. state of Maharashtra, the supreme court described five golden principles laid down in Hanumant  v. state of M.P. There rules are as follows:

  • The Circumstances from which the conclusion of guilt is to be drawn should be fully established
  • The facts so established should be consistent only with the hypothesis of the guilt of the accused
  • The circumstances should be of conclusive nature and tendency.
  • They should exclude every possible hypothesis except the one to be proved.
  • There must be chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability that the act must have been done by the accused.

In Padala Veera Reddy v. state of A.P, to S.C Laid down the following tests to be satisfied when a case rests on circumstantial evidence

  • The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
  • Those circumstance should be of a definite tendency unerringly pointing towards guilt of the accused.
  • The circumstance, taken cumulatively should form a chain to complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and non else.
  • The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation t any other hypothesis than that of guilt of the accused and such evidence not only be consistent with the guilt of the accused but should be in consist with his innocence.

 

  1. Real or personal evidence:-

It refers to any matter which the court perceives itself e.g. that a man standing before a judge has got a scare on his face, objects by which the offence is alleged to have been committed etc.

Personal evidence is that which is afforded by human agency.

 

  1. Original Evidence:-

By original evidence is meant the production of the thing proved in its original form e.g. sale deed.

  1. Un Original Evidence:-

It derives its force from other e.g. the copy of sale deed.

 

  1. Substantive and non-substantive:-

Substantive evidence is that on which reliance can be placed for the decision of a case.

A non- substantive evidence is that which corroborates the substantive evidence to increase its credibility or which contradicts the substantive evidence to discredit it.

  1. Positive and negative evidence:-

Positive evidence tends to prove the existence.

Negative evidence proves the non-existence of facts.

  1. Hearsay evidence:-

It is also called the derivative or second hand evidence

The word ‘hearsay’ means whatever a person in information given by someone else or it may be synonyms with irrelevant.

The test to distinguish between direct evidence and hearsay evidence is it is direct evidence if the court to act upon it, had to rely only upon the witness whereas it is hearsay if it has to rely not only upon the witness but some other person also.

It may be noted that hearsay evidence is not admissible even if not objected to or even if consented to the caused has no discretion in this matter except in certain exceptional case.

Exceptions to the hearsay rule:-

  • Res gestae (S.6)
  • Admissions and confession
  • Statements under S.32
  • 34,& S.35
  • Statement of experts in treatises.

Distinction b/w facts and Evidence:-

 

Facts Evidence
1.       Facts can be positive or negative

2.       Facts can be physical or psychological.

3.       Facts are those things which are in existence of which a man is conscious of.

4.       All facts are not evidence unless they are not allowed to be produced before court in any legal proceedings.

1.       Evidence can be oral or documentary.

2.       Evidence are only expressed facts. Psychological facts are evidence only when they are expressed by means of expression.

3.       Evidence are those means by which the relevant facts are brought before court.

4.       All evidence are facts in some way or other.

 

Presumption:-

  • Every facts, on the basis of which a party to the proceeding wants to take judgment must be proved. Court cannot place reliance in facts unless and until it has been proved according to the rules laid down in the evidence Act. But law of evidence has provided that a court can take into consideration certain facts even without calling for proof of them i.e. the court may presume certain facts.
  • The word presumption means things taken for to designate inference affirmative or negative of the existence of sense fact drawn by a judicial tribunal by process of probable reasoning the inferences presumption are based upon the wide experience of connection existing between two facts.

 

Kinds of Presumption:-

 

  1. Presumption of fact:-

 

Presumption of fact are inferences which are naturally drawn from the observation of the causes of nature and the constitution of human mind. e.g. S.114, S.86, S.88, S.90

These presumptions are generally rebuttable

  1. Presumption of Law:-

Rebuttable         Irrebuttable

  • Irrebutable:-

The conclusion or irrebuttable presumption of law are those legal rules which are not over come by any evidence that the fact is otherwise e.g., S.82 IPC, rules of estoppels [S.115-117]

  • Rebuttable presumption:-

Rebuttable presumption of law are those legal rules which define the around of evidence requisite to support a particular allegation but which may be rebutted by the evidence to the contrary. But are conclusive in e.g. A man is presumed innocent until he is proved guilty S.107, 108, 112 are the example of this presumption.

  1. Mixed Presumption: –Mixed Presumption of Law and fact are chiefly confined to the English law of real property so it is not necessary to presume subject here.

According to section 4, presumption can be classified into following types:-

  1. May Presume :- It means that the court may take notice of the fact without call for its proof or may call upon the party to prove that fact. It is the discretion of the court to person do not to presume e.g. S.90, 88 etc.
  2. Shall presume:-

In this case the court has discretion but compelled of take the fact as proved unless and until it is disproved e.g 79-85,105,11-A,113 B.

  1. Conclusive proof:-

If a fact is conclusive proof of another fact, the court has no discretion at all. It cannot call upon any party to prove that nor can it allow the opposite party to adduce evidence to disprove the fact e.g. S.82, IPC, S.112,1158-117 (I.E.A)

 

Presumption and proof distinguished :-

  • Proof is the final stage in a proceeding which is arrived at by evidence or presumption is one of the means of effecting proof.

The Relevancy of facts:-

  • According to section 5 evidence may be given in any suit or proceeding of the existence or non-existence of
  • Fact in issue, and
  • Relevant facts from section 6 to 55 and of no other.
  • Thus it excludes everything which does not fall under any other consideration and confine itself strict to the provisions of the Act and come to conclusion as to relevancy of fact on the interpretation of the relevant provision of the act.
  • Conversely the court cannot on the ground of public policy, exclude evidence relevant under this Act.

 

Distinction between Relevancy and Admissible

 

  • Relevant means, that which is logical probative.
  • Admissibility is not based upon logic but on law and strict rules.
  • In Indian evidence Act the question of relevancy has been dealt with under sections 5 to 55 and that of admissibility under section 56 rewards.
  • Relevancy means what fact may be proved before court the fact that are allowed to the proved under the Indian evidence Act (S.5to 55) are called relevant facts.
  • The admissibility is the means and the method of proving the relevant the facts.

 

  • In Ram Bihari Yadav state of Bihar, the Supreme court held that often the expression relevancy and admissibility are used as synonym but legal implications are different.

 

Admissibility                                                                                       Relevancy

  1. It is based upon strict rules of Law. 1. It is based on logic and probability
  2. The rules of admissibility is 56 onwards 2. The rule of relevancy is described from S. 5 – 55.
  3. The facts which are admissible are 3. The facts which are relevant are not necessarily

necessarily relevant.                                                      admissible.

  1. The rule of admissibility declares whether 4. The rules of relevancy declares what is relevant.

certain type of relevant evidence are

admissible or are to be excluded.

Test to decide Relevancy:

  • The question of relevancy is a question of Law, and should be decided when raised and should not be reserved until the date of judgment in the case. Where court is in doubt about the relevancy of a particular piece of evidence, he should declare in favour of relevancy rather than of non- relevancy. The court in India are bound to exclude evidence of irrelevant facts whether objected to or not.
  • Note:- Irrelevant + relevant = whole rejected. But if relevant material is quite independent of irrelevant material the relevant will be admitted and other part will be rejected.

 

Section: 6,      Res Gestae.

  • Section 6 lays down that the facts which are so connected with the fact in issue that they form part of the some transaction are relevant facts.
  • The principle of this section is that whenever such as a contract or a crime, is a fact in issue, then evidence can be given of every fact which forms the part of the some transaction.
  • The section is quite apparently based upon the English doctrine of res gestae though this word has been avoided by this section.

Basis:-

  • Every case that come before the court of Law has a fact story behind it. Every fact story is made of certain acts, omissions and statements and such acts, omissions and statements throw some light upon the nature of the transaction. To state a fact in isolation without reference to its antecedents in time, place or surrounding circumstances, may render the fact difficult or even impossible to comprehend. Thus, other facts and circumstances may be so closely connected with the fact in issue as to be, in reality, part and parcel of some transaction.
  • The utility of doctrine of res gestae can be better understood in the light of Ratten v. The Queen.

A man was prosecuted for the murder of his wife. He took the defence that she was shot accidentally. But just before her death, the deceased make a call to say, “Get me police please”. Before the operator could connect, the call disconnected. The court held her words and c… relevant, as part of the transaction.

Note:- A transaction is a group of fact. So connected together as to be reference to by a single name, as a crime a contract, a wrong or any other subject of inquiry which may be in issue.

Statement as Res gestae.

  • Statements may also accompany physical happenings. An injured person for example, is naturally bound to cry. But in this application of this principle the courts have been very strict and cautions because statements can be easily connected.
  • In Thempson v. Travanian, it was held that if sufficient time elapsed to allow the invention of a false tale obviously the evidence would be unreliable.
  • The subsequent case of R.V. Bedingfield shows the value of time in this connection. A woman with her throat cut, come, suddenly out of a room, in which she had been injured and shortly before she died, said “Oh dear Aunt see wheat Bedingfield has done to me.” It was held that the statement was not admissible. Anything uttered by the deceased at the time the act was being done would be admissible, as for instance if she had been heard to say something, as “don’t Harry.” But here it was something, stated by her after it was all over.
  • That is why the Privy Council has observed that V. Bedingfield is more useful as a focus of discussion that for the decision on the facts.
  • The decision in Bedingfield’s case was approved by house Lords in R.V. Christies.
  • This was a case of an indecent assault upon a young boy. Shortly after the incident the boy made certain statement to his mother by which he described the offence and the man who assaulted him.
  • It was held not admissible as the boy’s statement was so separated by time and circumstances from the actual commission of the crime that it was not admissible as part of the res gestae.
  • The emphasis of the courts seem to be that “the words should be at lease de recent and not after an interval which should allow time for reflect and concocting a story. The statement should be an exclamation” forced out of a witness by the emotion generated by an event rather that a subsequent narrative.

Res gestae and Hearsay.

  • Hearsay evidence is no evidence in the court of Law. But such evidence can be given if it is a part of the transaction.
  • In R.V. Foster, the witness had only seen a speeding vehicle, but not the accident. The injured person explained him the nature of the accident. He was allowed to give evidence of what the deceased said, although it was only a derived knowledge, it being a part of res gestae. Thus, the doctrine of res gestae constitutes an exception to the principle of hearsay.

Criticism:-

  • According to Prof. Stone “ no evidential problem is so shrouded in doubt and confusion. It was the opinion of Prof. Wigmore that the rule is not only useless but also harmful. It is useless because every part of it is covered by some other rule, for example, declarations as to the state of mind or health.
  • It is harmful because it causes confusion about the limitations of the other rules.

 

 

      RELEVANCY

PRELIMINARY

  1. Indian Evidence Act was drafted by

(a) Lord Macaulay

(b) Sir James F. Stephen

(c) Huxley

(d) Sir Henry Summer Maine.

  1. The law of evidence consists of

(a) ordinary rules of reasoning

(b) legal rules of evidence

(c) rules of logic

(d) all the above.

  1. Relevancy and admissibility under the Indian Evidence Act are

(a) synonymous

(b) co-extensive

(c) neither synonymous nor co-extensive

(d) synonymous & co-extensive both.

  1. Indian Evidence Act applies to

(a) proceedings before tribunals

(b) proceedings before the arbitrator

(c) judicial proceedings in courts

(d) all the above.

  1. Law of evidence is

(a) lex situs

(b) Iex fori

(c) lex loci solutionis

(d) none of the above

  1. Law of evidence is

(a) a substantive law

(b) an adjective law

(c) both (a) & (b)

(d) neither (a) nor (b).

  1. Facts can be

(a) physical facts

(b) psychological facts

(c) physical as well as psychological facts

(d) only physical facts & not psychological facts.

  1. Under the Evidence Act, fact means

(a) factum probandum

(b) factum probans

(c) both factum probandum and factum probans

(d) none of the above.

  1. Fact in issue means

(a) fact, existence or non-existence of which is admitted by the parties

(b) fact, existence or non-existence of which is disputed by the parties

(c) fact existence or non-existence of which is not disputed by the parties

(d) all the above.

  1. Evidence under the Indian Evidence Act means & includes

(a) ocular evidence

(b) documentary evidence

(c) ocular and documentary evidence both

(d) ocular evidence based on documents only.

INDIAN EVIDENCE ACT

                                                                        RELEVANCY

  1. In what cases is it necessary to hold an identification parade. Discuss the precautions to be taken and procedure to be adopted for holding it and value of test identification Parade.

 

  1. X,Y and Z are tried for entering into a conspiracy to commit murder of B. After the murder was committed Z was arrested on the charge of conspiracy. He was examined before a magistrate and there he made a statement to the effect that there was a conspiracy between him, X and Y for murdering B. Prosecution intends to prove this statement against X and Y under section 10 of Indian Evidence Act.

 

  1. Discuss whether in any situation evidence can be led about a fact which is not relevant in the proceedings?

INDIAN EVIDENCE ACT

           RELEVANCY

Section:7

This Section provides for the relevancy of the following kinds of facts:

  • Occasion
  • Cause
  • Effects
  • Opportunity
  • State of thing

(1).Occasion:-

Evidence can always be given of set of circumstances which constituted the occasion for the happening of principal fact.

In R V. Richardson, the deceased girl was alone in her cottage at the time of the murder is relevant as it constituted the occasion for the murder.

(2.) Cause:-

Cause often explains why a particular act was done. It helps the court to connect a person with the act. The word “cause” is broader than the word motive.

In Indian Airlines v. Madhuri Chowdhary that the report of an enquiry commission relating to an air crash is relevant u/s.7 as establishing the cause of the accident.

    (3.) Effects:-

Every act leaves behind certain effects which not only records the happening of the act, but also throw light upon the nature of the act. e.g. foot prints, finger impressions etc.

(4) Opportunity:-

The Circumstance which provided an opportunity for the happening of a fact in issue are relevant. Evidence of opportunity thus becomes important as it shows that the act must have been done by the person who had the opportunity to do it.

In R V. Richardson, the fact that Richardson left his fellow workers at about the time of the murder under the pretence of going to a smith’s shop was relevant as this gave the accused his opportunity.

(5.) State of things:-

This category of facts, would allow evidence of the state of relations between the parties, the state of health of the deceased and his habits, etc.

In Ratten V. Reginam, where the accused was prosecuted for shooting down his wife and he took  to the defence of accident, the fact that the accused was unhappy with his wife and was carrying an affair with another woman  was held to be relevant as it constituted the state of things in which principal facts, namely, the shooting down, happened.

Section-8

Section 8 provides for the relevancy of three principal facts which are very important in connection with every kind of criminal case. They are:-

  1. Motive
  2. Preparation
  3. Conduct
  1. Motive:-

Motive is the moving power which impels one to do an act. It is the inducement for doing the  act. Motive itself is no crime but once a crime has been committed, the evidence of motive becomes relevant.

In R.V Richardson, the fact that the accused was the father of the child of which the deceased was pregnant at the time was held to be relevant, as he might have killed deceased to save his character.

R.V Palmer is another leading illustration the accused partner was financially embarrassed and to overcome his difficulties he borrowed a large sum of money from one of his friends. They used to go to races together one night after attending the races his friend come back to hotel and died soon after midnight  under circumstances which raised a suspicion that he had been poisoned. The fact that the palmer had ………. motive to eliminate his creditor…….. was held to be relevant.

In Natha Singh v. emperor, the Privy Council held that proof of motive is not necessary where there is a clear evidence that a person has committed an offence. If prosecution case is convincing beyond reasonable doubt, it is not necessary for the prosecution to prove motive.

  1. Preparation:-

Preparation by itself  is no crime. But section provides that the facts which show or constitute Preparation of any fact in issue or relevant fact are relevant.

  1. Conduct:-

Guilty mind begets guilty conduct. The conduct of a man is particularly important the Law of evidence, for his guilt or the state of mind is often reflected by his conduct.

 Section.9                                                            

Explanatory Introductory

This section deals with the relevancy of a large number of facts of introductory and explanation nature the section declares the following kind of fact to be relevant.

  • Facts necessary to introduce or explain.
  • Facts which support or rebut an inference.
  • Fact which establish the identify of anything or person
  • Facts which fix time or place.
  • Facts which show the relation of parties.
  1. Introductory or explanatory facts:-

Evidence is always allowed of facts which are necessary to introduce the main fact or some relevant fact e.g. where the question is whether a given document is a ‘will made by a certain person, evidence may be given of the state of his property and of the family at the date of the alleged will as it may be necessary  to introduce the circumstance in which the will became necessary.

Evidence of explanatory facts is allowed for the same reason. Where, for example a person is tried for leading certain people to a riot, marching at the .head of them the cries of the may be given in evidence being explanatory of the nature of the transaction.

  1. Facts which support or rebut inference:-

Evidence can be given of facts which support or rebut an inference suggested by a fact in issue or relevant fact. The fact, that soon after the commission of the crime, the person absconded from his house is relevant under section 8 as a conduct affected by the fact. Such a conduct is relevant because it suggests the inference that he is guilty. Any fact which either supports this inference or rebut or contradicts it will also become relevant. For example, if after absconding, he was arrested in a railway drain transacting without ticket or in shab try dress, this will be relevant as these fact support the inference that he is guilty. If will be equally relevant for him to show that he lift some because he had urgent and sudden business to attend.

  1. Identity of a person.

Where the court has to know the identity of anything or any person any fact which established such identity is relevant. The identity of a person can be established by the evidence of persons who know his. Every fact which can help the court to established the identity is question is relevant.

 

Section -10

The special feature of S.10 is that anything said, done or written by any member of the conspiracy is a evidence against the after member even if they are done in their absence and without their knowledge the only condition being that the act must have reference to their common intention.

The conditions of relevancy under the section are:-

  1. There must be a reasonable ground to believe that two or more person have entered into a conspiracy.
  2. The act in question must have been done after the time when the intention to conspire was first entertained by any of them.
  3. The act must have been done in reference to their common intention.
  • The evidence of such an act can be given for the following two purposes:-
  1. To prove the existence of conspiracy.
  2. To shows that a particular person was party to the conspiracy.

Section 11

Section 11 deals with fact which the facts have nothing to do with the facts of a case and are not in themselves relevant, but they become relevant only by virtue of the fact that they are either inconsistent with any fact  in issue or relevant fact or they make the existence of a fact in issue or a relevant fact either highly probable or improbable .

Plea of alibi:-

This section enables a person charged with crime to take what is commonly called the plea of alibi which means his presence elsewhere at the time of the crime. His presence elsewhere is in consistent with the fact that he should be present at the place of the crime.

The Supreme Court has stated “The plea of alibi postulates the physical impossibility of the presence of the accused at the presence of the by reason of his presence at another place.

Facts showing Probabilities

Evidence can be given of every fact which by itself or in connection with other facts make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable the cases in which some facts are not directly provable the court has to go by the probabilities of the situation.

 

INDIAN EVIDENCE ACT

                                                                     RELEVANCY

  1. Motives of preparation and conduct are relevant
    • under section 6 of Evidence Act
    • under section 7 of Evidence Act
    • under section 8 of Evidence Act
    • under section 9 of Evidence Act.
  2. Under section 8 of Evidence Act
    • motive is relevant
    • preparation is relevant
    • conduct is relevant
    • all the above.
  3. For conduct to be relevant under section 8 of Evidence Act, it
    • must be previous
    • must be subsequent
    • may be either previous or subsequent
    • only subsequent & not previous.
  4. Facts which are necessary to explain or introduce relevant facts of place, name, date, relationship & identity of parties are relevant
    • under section 8 of Evidence Act
    • under section 9 of Evidence Act
    • under section 10 of Evidence Act
    • under section 11 of Evidence Act.
  5. Under section 9 of Evidence Act
    • the identification parades of suspects are relevant
    • the identification parades of chattels are relevant
    • both (a) & (b) are relevant .
    • only (a) & not (b) is relevant.
  6. Identification of a suspect by photo is
    • admissible in evidence
    • not admissible in evidence
    • section 9 of Evidence Act excludes identification by photo
    • section 8 of Evidence Act excludes identification by photo.
  7. Things said or done by a conspirator in reference to the common design is relevant
    • under section 12 of Evidence Act
    • under section 6 of Evidence Act
    • under section 10 of Evidence Act
    • under section 8 of Evidence Act.
  8. A confession made by a conspirator involving other members is relevant against the co-conspirator jointly tried with him and is admissible
    • under section 8 of Evidence Act
    • under section 10 of Evidence Act
    • under section 30 of Evidence Act
    • both (b) & (c).
  9. Alibi is governed by
    • section 6 of Evidence Act
    • section 8 of Evidence Act
    • section 12 of Evidence Act
    • section 11 of Evidence Act.
  10. Relevancy is

(a) question of law and can be raised at any time

(b) question of law but can be raised at the first opportunity

(c) question of law which can be waived

(d) question of procedure which can be waived.

INDIAN EVIDENCE ACT

EVIDENCE OF SIMILAR FACTS

  1. Define Admission. Enumerate the persons whose admission constitute evidence against another person. Distinguish between Admission and Confession
  2. Whether an admission can be used by the maker of admission in his own favour? if so , state the circumstances.
  3. A is accused of receiving stolen goods knowing them to be stolen. He offers to prove that he refused to sell them below their market price. Is this evidence admissible ? Give reasons for your answer.

 

   INDIAN EVIDENCE ACT

        EVIDENCE OF SIMILAR FACTS

A fact is said to be similar to another when it is similar to a fact in issue, e.g. if a doctor is sued for negligently performing a surgical operation, a similar facts would be a negligent operation in other cases.

The problem before the law of evidence is whether evidence of similar facts should be allowed or not. The broad general principle is that the evidence of similar facts is not relevant.

Although the rule of exclusion is not specifically laid down in the Act or in any case decided under the Act, yet it seems to be a part of the law and has some obvious reasons to recommend itself.

  • In the first place, every case has to be decided on the basis of its own facts and not the facts and decisions of other cases.
  • Secondly, similar facts which have no probative value, when presented before the court, are likely to divert attention of the court from the main facts in controversy to the general character of the accused, thus causing great damage and prejudice to his case.
  • Thirdly, by looking at the previous history of criminality of the accused the judge is very likely blindly to jump to the conclusion that the accused should be guilty.

Position under Indian Evidence Act

The Indian Evidence Act, 1872 does not anywhere mention the words “similar facts”. Since the evidence of similar facts is not “Specifically authorised,” the general rule under the Act in essence would be that the evidence of similar facts is not relevant. The courts have been proceeding on this hypothesis. For example, in Emperor v/s PanchuDas, at the trial of certain persons for robbery and murder, the Calcutta High Court refused to receive evidence of other robberies committed by the same accused in the same style.

Exceptions to exclusion of similar fact evidence.

But the law cannot afford to reject such evidence in all cases. To refer, for example Rex v/s Ball, the accused was tried for incest with his sister. The evidence showed that the parties had occupied the same room and the same bed at a hotel.

It was pointed out that though such evidence was not relevant to the proof of mens rea, it was relevant

under one of the recognized exceptions i.e. to over throw the defence of innocent relations.

Further evidence was then tendered to show that, these persons had previously carnally known each other and had a child in 1908. The object was to establish that the defence of innocent living together as brother and sister ought to fail.

The law tries to solve the problem by engrafting upon the main rule with a number of exceptions, which permit evidence of similar facts to be given. The Indian Evidence act contains no provision against the admissibility of the evidence of similar facts, but the exceptions recognized by the English Common Law are all covered, by one or the other section of the act, which are as follows.

  • To prove system or design or to overthrow the defence of accident: (S. 15).

The most important & comprehensive exception is recognized by S. 15 of the Act. The section comes into play two cases :-

  • When the question is whether the act with which a person is charged is accidental or intentional & the defence of accident has been set up.
  • When the question is, whether the act was done with a particular knowledge or intention.

In essence, both of these cases come to the same, for it the act was not accidental, it must have been done intentionally or with knowledge.

  • To prove mental element: [S. 14]

Evidence of similar facts can be given when it will go to establish a state of mind or mensrea, which is either a condition of liability or in otherwise relevant. Such evidence falls both under Sec. 14 & 15. S. 14, renders facts to be relevant if they will prove a particular state of mind which is essential to liability and S. 15 render similar occurrences relevant if they are necessary of show that the act in question was done with a particular knowledge or intention. It is not necessary for the purposes of  this exception the defendant or the accused should have taken the defense of accident.

  • To establish indentity of accused: [S. 9]

Facts which establish the identity of anything or person whose identity is relevant, are relevant in so for as there are necessary for that purpose.

The words of the section do not in terms impose any restriction as to nature of facts relevant under the section & therefore facts showing identity will be relevant even if they bring forth the evidence of similar offences on the part of the accused on other occasions. E.g. Choudhary J. observed in his dissenting judgment in Emperor v/s Panchudas:

It was competent for the prosecution in this case to prove facts showing that the two lived together, had business transactions together, that they had visited rich prostitutes together, one of them introducing himself as a rich Babu & the other as his Durwan, that they were the same person although they had given different names. These facts are relevant under S. 9 of Evidence Act for establishing their identity and association.

In England, the House of Lords in, Thompson v R. in relation to a charge of indecency with boys, admitted evidence of similar facts to establish identity.

Exclusion of similar facts evidence rule of practice, not of law:

In conclusion, it will be worthwhile to note that Viscount Simon L.C. in Harrish v. D.P.P., regarded the relevancy of similar facts not as a rule of law but of practice & observed:-

Noor Mohd. v/s The King, in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If so far as that purpose is concerned, it can in the circumstances of the case, have only trifling weight, the judge will be right to exclude it.

Evidence of modus operandi: Evidence of thief’s modus operandi may be adduced as similar fact evidence to rebut the defence of mistake or accident. The accused even charged with stealing bacon from the shop, this defence was that of mistake. Evidence of similar earlier thefts under the pretence of mistake was allowed, the court saying that there was a sufficient nexus between the offence charged and the earlier offence which served to rebut the defence.

Section 16:  Existence of course of business

The law attaches great evidentiary value to any general course of business or office. The effect of the provision is that if an act is shown to have been done in general course of business, the law draws a presumption that the act must have been done.

The presumption that arises in favour of the existence of things shown to have been done, in the earlier of the business is further fortified by illustration (f) to S. 114, which says that the court may presume that the common course of business has been followed in the particular cases.

Rebuttable Presumption: The presumption is, of course, rebuttable the party against whom it is drawn may deny it.

It was argued before the Supreme Court in Mobarik Ali Ahmad v. State of Bombay that the proof of mere posting of a letter is not presumptive evidence of the receipt thereof by the addresses unless there is also proof that the original has not been returned from the dead.

Letter office: Illustration (b) to S. 16 of the Indian Evidence Act, 1872, is relied on for the purposes and it is urged that the combination of two facts is required to raise such a presumption. We are quite clear that illustration only means that each of these facts is relevant. It cannot be read as indicating that without a combination of these facts no presumption can arise. The presumption applies to all kinds of post, whether registered, ordinary or under certificate of posting.

 

Admissions

Admission plays very important part in judicial proceeding. If one party to a suit or any other proceedings proves that the other party has admitted his case the work of the court becomes easier.

The definition given under S. 17 points out three things. It first defines “admission” in terms of a statement which may be oral or documentary or in electronic form. Secondly, the section says that admission will be relevant only if it is made by any of the person specified in the Act. Thirdly, the section says that it will be relevant only in the circumstances mentioned in the act.

Reasons for admissibility of admissions

  • Admission as waiver of proof. If a party admits a fact, it dispenses with the necessity of proving that fact against him. It operates as a waiver of proof. To a certain extent this principle has been adopted by Indian Evidence Act under Section 58.
  • Admission as statement against interest. The second suggested reason is that an admission being against the interest of maker, becomes highly improbable to be false as no person will make a false statement against his own interest.
  • Admissions as Evidence of Contradictory statement. The another reason for the relevancy of an admission is that it draws the contradiction between the statements of the party and his case. This kind of contradiction discredits his case.
  • Admissions as Evidence of Truth. The last and most plausible and perhaps widely accepted reason that accounts for relevancy of admission is that whatever statements a party maker about the facts of the case, whether they be for or against the interest, should be relevant as representation or reflecting the truth as against him.

Persons whose admissions are relevant Section 18 lays down the list of persons whose admissions constitutes evidence against a party. But the effects of S. 18, 19 and 20 when put together, is that the admission of following parties become relevant.

  • Parties to the suit/ proceeding.
  • Agents of parties.
  • Persons occupying representative character.
  • Statements of third parties.
  1. Persons having pecuniary or proprietary interest.
  2. Persons from whom the parties derived their interest.
  3. Persons whose position is in issue or is relevant.
  4. Persons expressly referred to.

 

  • Parties to Suit or Proceeding: The word “parties” not only includes those who appear on the record in that capacity, but also persons who are actually parties without so appearing persons who are not parties on the record but who are interested in the subject matter of the Suit are considered as real parties to conversely, a party on record who has no beneficial interest in the issue of litigation will not be permitted to effect by admission the substantive rights of one for whom he is acting.

In other words, In all these relations, the substantive interest rather than the form of record is regarded as determining factor.

 

  • Admission by agents: The admissions of agent binds the principal only when it is made during the continuance of agency. Thus, it becomes clear that the fact of agency must be proved before the admissions of the agents are receive in evidence.

The second point which is material for the relevancy of agents admission that the agent must be authorized to make that statement.

The third point to be taken into consideration is that it must be made during the continuance of agency.

 

  • Statements made in representative character: Where a party sues or is sued a representative capacity i.e. as trustee, executor, administrator or the representative is different from the ordinary capacity and only admission made in former quality or capacity are receivable. Statement before or after incumbonce are inadmissible. Conversely his admissions as executor or the like could not be receivable against as a party in his personal capacity.

 

  • Persons having pecuniary or proprietary interest in subject matter. [S. 18(1)]. Whether several persons are jointly interested in the subject matter of the suit, the general rule is that the admissions of any one of these persons are receivable against himself and follows, whether they all be jointly suing or sued, or whether an action be brought in favour of or against any one of more of them separately, provided the admissions put and be made by the declarant in his character of a person jointly interested with the party against when the evidence is tendered. The rule is founded on the legal principle that persons seized jointly are seized of the whole.

 

  • Persons from whom the parties derive interest: Statements made by a persons from whom the parties to the suit have derived their interest in the Subject matter of the suit are admissions provided they are made during the continuance of the interest of the persons making the statements. A person of this kind is called a “predecessor-in-title”. Any statement made by him about the property while he was holding the title is relevant against the parties who acquired the title from him. This category will include statement made by former owner of a property and such statements will be relevant against present owners.

 

  • Persons whose position is in issue: S. 19, deals with statements of persons whose position is in issue, though they are not parties to the case. Where for e.g., the liability of an agent to account to his principal depends upon the liability of the third party with whom the agent contracted on principal behalf, any statement made by third party, about his position is a admission against the parties.

 

  • Admissions by persons expressly referred by party to the suit: S. 20 deals with another class of admission other than the parties. When a party refers to a third person for same information or an opinion on a matter in dispute, the statement made by the third person are receivable an admission against the person referring.

 

  1. 20 is the second exception to the general rule laid down in S. 18. It deals with one class of vicarious admission that demand of persons other than the parties.

 

Proof of admission against the person making them and by him: S. 21, lays down that an admission may be used against a person who makes them or his representative in interest, but generally can’t be used for his own use. Further it gives three exceptions to this general rule which are as follows:

 

  • Admissions falling under S. 32:- According to S. 21(1), an admission by a person 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 S. 32.

 

  • Statement as to bodily feeling or state of mind:– When the admission of man consists of statement of existence of any state of mind or body, becomes relevant to be proved in favour of the person making the admission, but such state of mind or bodily feeling must be existing at or about the time when the statement was made, and it shows also be accompanied by conduct rendering its falsehood improbable.

 

  • Statement relevant otherwise than as admission:- An admission may be proved by or on behalf of the person making it, if behalf of the person making it, if it is relevant otherwise than as an admission. There are many cases in which a statement is relevant not because it is an admission but because it establishes the existence or non-existence of a relevant fact or fact in issue. In all such cases a party can prove his own statements.

 

Oral admissions as to contents of documents: U/S. 22, it has been laid down that, when there has been a document nobody can be allowed to prove admission (oral) about the contents of that document, but there are two exception to this rule:

  • When a person is entitled to give secondary evidence of the contents of same documents, he will be entitled to rely on oral admissions.
  • The genuineness of a document produce is itself in question.

 

Admission in civil cases when relevant: S. 23 is applicable to civil cases, it lays down that, in civil cases of a person admits the liability upon an express condition that evidence of such admission should not be given or if it is made in such circumstances that the court can infer that there was same will not be proved in evidence in a case, such admission will not be relevant and will not be allowed to be proved. Very often for the purpose of buying peace and setting disputes by a compromise people make so many statement. If such statements are allowed to be proved in court, it will become impossible for people to talk of compromise and peace.

Admission and conclusive: Acc. to S. 31, admissions are not conclusive proof of the matters admitted against any party. It is only prima facie evidence against party making the statement shifts the burden of proof.

Admission are not conclusive, and unless they constitute estoppel, the maker is at liberty to prove that they are mistake or untrue.

 

Evidentiary Value:- When the admission is duly proved and the person against whom it is proved does not satisfy the court that it was mistaken, untrue, there is nothing to prevent the court from deciding the case in accordance with it. Admissions are very strong piece of evidence against the party making it unless they are proved to be false.

 

Distinction between Admission and Estoppel:

  • Admission is written or verbal statement which gives inference to nights and liability of parties. But estoppel is rule of evidence and it prevents a person from retreating his earlier representation.
  • Admission is not conclusive evidence and it can be rebutted by positive proof. But estoppel is conclusive.
  • In some circumstances the admission of third person binds the parties to the suit. But estoppel operates only against the person making representatives and his legal representatives.
  • In case of admission, it is not necessary that a party has changed his position on inducement of person making admission. But In case of estoppel, the person to whom representation is made has changed his position to his determent.
  • The rules regarding admissions is laid down under section 17 to 23 and rule regarding estoppel is laid down under S. 115 to 117 of Evidence Act.

 

INDIAN EVIDENCE ACT

EV IDENCE OF SIMILAR FACTS

  1. Under section 15 of Evidence Act, facts showing series of similar occurrences, involving the same person are relevant
    • when it is uncertain whether the act is intentional or accidental
    • when it is certain that the act is with guilty knowledge
    • when it is certain that the act is done innocently
    • either (b) or (c).
  2. Admission has been defined as a statement made by a party or any person connected with him, suggesting any inference as to a fact in issue or relevant fact under certain circumstances, under
    • section 16 of Evidence Act
    • section 17 of Evidence Act
    • section 18 of Evidence Act
    • section 19 of Evidence Act.
  3. Admissions
    • must be examined as a whole and not in parts
    • can be examined in parts
    • can be examined as a whole or in parts
    • both (b) & (c) are correct.
  4. Admissions bind the maker
    • in so far as it relates to facts
    • in so far as it relates to question of law
    • both on questions of facts 8: of law
    • neither (a) nor (b).
  5. Admissions
    • must be in writing
    • must be oral
    • either oral or in writing
    • only in writing & not oral.
  6. Admission to be relevant
    • must be made to the party concerned & not to a stranger
    • must be made to a stranger
    • it is immaterial as to whom admission is made and an admission made to a stranger is relevant
    • it is immaterial to whom the admission is made but must be made to someone intimately connected & not a stranger.
  7. Propositions under Evidence Act are
    1. Statement is a genus, admission is a species & confession is a sub species.
    2. Statement & admission are species & confession is a sub species.
  • Statement & admission are genus & confession is a species.
  1. In this context which of the following is correct
    • I is correct, II & III are incorrect
    • I & II are correct & III is incorrect
    • II & III are correct & I is incorrect
    • III is correct & I & II are incorrect.
  2. Admission can be
    • formal only
    • informal only
    • either formal or informal
    • only formal 8: not informal.
  3. Admissions
    • are conclusive proof of the matters admitted
    • are not conclusive proof of the matters admitted but operate as estoppel
    • are conclusive proof of the matter and also operate as estoppel
    • both (a) & (c) are correct.

LAW OF EVIDENCE

CONFESSIONS

  1. Distinguish between judicial and extra judicial confessions.
  1. Discuss fully the evidentiary value of retracted confession. Illustrate your answer
  1. Explain the relevancy of confession in criminal trial.

 

    PAHUJA LAW ACADEMY

LAW OF EVIDENCE

CONFESSIONS

The terms “confession” is nowhere defined All the provisions relating to confessions occur under the heading of admission. The definition of admission as given in S. 17 becomes applicable to confession also.

  1. 17 defines admission as a statement oral or documentary, which suggest any inference as to any fact in issue or relevant fact. It such a statement is made by a party to a Civil proceeding it will be called an admission and if it is made by a party charged with a crime it will be called confession. The inference that the statement should suggest should be that he is guilty of the crime.

The privy council, in Pakala Narayan Swami v. Emperor, held that A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.

The definition is not contained in the Indian Evidence Act, 1872 and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused suggesting the inference that he committed the crime.

One practical effect of this difference between the definition of an admission and a confession would be that a statement which may not amount to a confession may still be relevant as an admission.

Where the accused confessed that he knew about the conspiracy to commit the murder in question but did not confess that he was a party to the crime, the statement was held to be not relevant as a confession. Where the statements of the accused showed that he joined an assembly when it had already decided to chase the victim and finish him and question was whether the statement amounted to a confession, the supreme court stated the law as follows:-

The fact of discerning whether a statement recorded by a judicial Magistrate u/s. 164 Cr.P.C. is confessional is not by dissecting the statement into different sentences and then to pick out some as not inculpative. The statement must be read as a whole and then only the court should decide whether it contains admissions of his inculpatory involvement in the offence, it the result of that test is positive then the statement is confessional, otherwise not.

Confession carrying inculpatory and exculpatory statement. The definition attempted by the Privy Council has found favour with the Supreme Court in its decision in Palvinder Kaur v. State of Punjab, over two scores.

  • The definition of confession is that it must either admit the guilt in terms or admit substantially all facts which constitute the offence.
  • A mixed up statement which, ever though contains some confessional statement, will still lead to acquittal, is no confession.

In the case of PalvinderKaur v. State of Punjab, palvinder was on trial for the murder of her husband along with another who all the time remained absconding. The deceased’s body recovered from a well after two months decomposition. The post mortem could not reveal the reasons of his death whether it was poison or what. In her statement to the court, the accused

said that her husband was photographer and used to keep photo developing material which is quick poison, that on the occasion he was ill and she kept the medicine nearby the liquid and by mistake the deceased consumed the poison, that she got afraid of it and with the help of her friend packed the body in truck and disposed it off into the well.

The statement thus consisted of partly guilty and partly innocent remarks. It was partly inculpatory in the sense that it confessed to something wrong and partly exculpatory in the sense that if accepted it would totally absolve her of any guilt.

The Supreme Court held that the confession comprised of two elements a) an account of how the accused killed the woman and b) an account his reason for doing so [observation of the full bench of Allahabad High Court in the case of Emperor v. Balmukund with which this hon’ble Court fully concur]. The former being the inculpatory and the latter exculpatory, the question referred to the full Bench was: Can the court if it is of the opinion that the inculpatory part commends itself, and the exculpatory part is inherently incredible, act upon the former and refuse the latter? The answer to the reference was that where there is no evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the court must accept or reject the confession as a whole and can’t accept only the inculpatory element while rejecting the exculpatory element as inherently incredible.

English Law:-

The principle of English Law is that the whole statement must be left to the jury who may attach different weights to different parts of it. The some rule applies in the case of confession.

This principle was established overruling earlier authorities in R. v. McGregor and again in R. v. Storey. In the McGregor case, the court supported the better opinion when it was said. The better opinion seems to be that, as in the case of all other evidence, the whole should be left to the jury to Say whether the facts asserted by the prisoner in his favour are true.

In R. v. Storey, the court held that it is ultimately for the jury to decide whether that explanation was or might be true. Thus, the principle laid down was that a confessional statement should not be rejected merely because it also carries with it exculpatory statements. It should be for the jury to Say what weight shall be given to several parts of the statement, for they may well believe that part which charges the prisoner, and reject that which tends to exculpate him.

Supreme Court takes notice of developments in English Law.

The Supreme Court of India also appears to have influenced by this development. Its decision in Nishi Kant Jha v. State of Bihar, marks the turning point. The accused was charged with murdering his friend while travelling with him in a train. He was seen washing his clothes in a river flowing near the station where the murder was detected. Blood stained clothes, papers and a knife were recovered from him, and the blood on them agreed with the blood of the deceased. He admitted washing blood- stained clothes, but explained the presence of blood by two contradictory statements. In one of them, he explained that the blood spilled over him while a struggle between two persons in the compartment and one of them was killed. In the other version, he said that a herd boy robbed and injured him.

The Supreme Court upheld the conviction and pointed out that there was nothing wrong in relying on a part of the statement and rejecting the rest, and for his purpose the court drew supper from English authorities. The court did not mean to overrule Palvinder, Hanumat or Balmukund but distinguished the present case from them. Here there was enough evidence to reject the exculpatory part. The explanations were inconsistent in themselves and also with other evidence on record, and were, therefore, so obviously false that there was no chance of justice being miscarried in discarding them.

This approach has been adopted by the Supreme Court in Keshooram v. State.

Form of Confession

A confession may occur in any form. It may be made to the Court itself, when it will be known as judicial confession or to anybody outside the case, in which case it is called on extra judicial confession. It may even consist of conservation to oneself, where may be produced in evidence if overheard by another e.g. Sahoo v. State of U.P. The accused who was charged with the murder of his daughter-in-law with whom he was always quarrelling was seen on the day of the murder going out of the home, saying words to the effect: I have finished her and with her all the quarrels.

It was held to be a confession relevant in evidence, as it is not necessary for the relevancy of confession that it should be communicated to some other person.

  • Judicial Confession:- Judicial confessions are those, which are made before a magistrate or in the court, in the due course of legal proceedings. The procedure is prescribed by S. 164 of Cr.P.C. that how the confessional statement be recorded by the magistrate.
  • Extra Judicial Confession:- These are those confessions, which are made by the accused elsewhere than before a magistrate or court. Extra- judicial confession is generally made before private individuals which includes even judicial officer in their private capacity.

A conviction on the basis of extra judicial confession can be based only after Subjecting the evidence of witness, to whom confession was made, to rigorous test on the touchstone of credibility. The extra judicial confession can be accepted and can be the basis of a conviction if it passed the test of credibility.

  • Retracted Confession:- A retracted confession is a statement made by an accused persons before the trial begins, by which he admit to have committed the offence, but which he repudiates at trial. It is unsafe to base the conviction on a retracted confession unless it is corroborated by trustworthy evidence. There is no law that a retracted confession cannot be the basis of connection but it has been laid down as a rule of practice and prudence, no to rely on retracted confession, unless corroborated. Courts can convict person, when they are of the opinion that to confession was made was voluntary consistent and true but the real rules of law about the retracted confession is where retracted confession is to sole evidence it can be of with value especially when made during the competition of pardon which sometimes occur when number of person are suspected of an offence.

The settled view of Supreme Court of India is that as a matter of prudence and caution , which has sanctified itself into a rule of law, a retracted confession cannot be made the sole basis of conviction unless the same is corroborated, but it does not necessarily mean that each and every circumstances mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated, not is it essential that the corroboration must come from the circumstances discovered after the confession was made.

Voluntary and Involuntary confession:- A confession cannot be used against an accused person unless the court is satisfied that it was voluntary. The court has to be satisfied that at the time of making the confession the accused was a freeman and his movements were not controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession.

If the confession comes within the four corner of S. 24 it is irrelevant and cannot be used against the maser. The essential ingredients of S. 24 are as follows:-

  • The confession must be the result of inducement, threat or promise.
  • Inducement, threat or promise should proceed from a person in authority.
  • It should relate to charge in question.
  • It should hold out some wordly benefit or disadvantage.

 

  • Inducement, threat or promise:- A confession should be free and voluntary. If it flows from hope or fear, excited by a person in authority, it is inadmissible.

Where the prisoner is only told to tell the truth without exciting any hope or fear in him, his statement cannot be regarded as being made in response to any three or promise, where a prisioner was told by a constable that he need not to say did say would be taken down and used in evidence against him, it was held that such words did not amount to any threat or promise to induce the prisoner to confess.

But if the expression importing that it would be better for him to do so, it was considered as involuntary as there is threat.

Irrelevant Confessions:- Tell me where the things are and I will be favourable to you.

  • If you do not tell the truth you may get yourself into trouble and I will be worse for you.
  • If you do not tell me I will give you to police.

Note:- The burden of proof lies on prosecution to prove affirmatively that the confession was free and voluntary. It is sufficient for the purpose of excluding a confession that the confession appears to have been the result of an inducement, even if it is not proved that the inducement reached the accused.

  • Person in authority:- The second requirement is that the inducement, threat or promise should proceed from a person in authority.

Every Government official is person in authority about whom the accused thinks that he is capable of influencing the course of prosecution.

Persons in Authority:-

  1. A village Mukhia
  2. The president of village Panchayat.
  • Pradhan of village.

Not person in authority:-

  1. Master of mistress
  2. Oridinary

 

  • Inducement, threat or promise should be in reference to charge. The inducement, threat or promise should be in reference to the charge in question. Thus, it is necessary for the confession to be excluded from evidence that the accused should labour under the influence that in reference to charge in question his position would be bitter or worse according as he confesses or not.

Thus, where a person was charged with murder, was made to confess to a Panchayat which threatened his removal from the caste for life, the confession was held to be relevant, for the threat had nothing to do with the charge.

 

  • Benefit of temporal nature:- The last conditions for section 24 to come into play is that the inducement, threat or promise must be such as is sufficient, in the opinion of the court, to give the accused person grounds, which would appear to him reasonable, for supposing that by moving the confession he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Thus, the evil which is threatened to him or the benefit which is promised to him must be of material, wordly or temporal nature. E.g. where the accused is told, be sure to tell the truth or you have committed one sin, do not commit another and tell the truth, a confession made in response to this is valid. The same is true where the accused is taken to temple or church and is told to tell the truth in the presence of the Almighty.

Confession after removal of impression caused by threat, etc: Section 28 provides that when at the time of confession, the impression created in the mind of the accused by threats etc was no longer there, the confession would be relevant.

CONFESSION TO POLICE:-

As per S.c25, No confession made to a police officer, shall be proved as against a person accused of any offence.

Reason:-

If confessions to police were allowed to be torture the accused and thus force him to confess a crime which he might not have committed. A confession so obtained would naturally be unreliable.

Who is police officer?

A police officer means for this purpose a member of regular police force but SC has held that the expression would include any person who is clothed with the power of a police officer.

Police Officers:-

  1. Excise Inspector.
  2. Sub- Inspectors
  • Police Patil

No Police Officers:-

  1. State Reserve police force not vested with the powers of investigation.
  2. Custom officers
  • Officers under the Narcotic Drugs and Psychotropic Substances Act, 1985.

English Law:-

English law does not discredit confessions to police as a rule. If the judge feels confident that there was no oppression and the statement was fake, free and voluntary, he may admit it.

Effect of police presence:-

The casual presence of policemen will not destroy the voluntary nature of confession. But where that person is secret agent of police deputed for the very purpose of receiving a confession, it will suffer from the blemish of being a confession to police.

Confessional F.I.R.

Only that part of confessional FIR is admissible which does not amount to a confession or comes under the scope of S. 27.

Use of Confessional Statement by accused:- Though the statement to police made by the confessing accused cannot be used in evidence against him, he can himself rely on those statements in his defence.

Note:- A special legislation may change the system of excluding police confessions e.g. TADA.

Confession in police custody:- The section 26, comes into play when the person in police custody is in conversation with any other person than a police officer and confesses to his guilt. This section is also based upon the same fear, as the police may torture to confess someone else than the police officer.

Police Custody:- Police custody means police control even if it be exercised in a home, in an open place, or in the course of journey and not necessarily in the walls of prison.

Presence of Magistrate:- The section recognizes one exception. If the accused confesses while in police custody but in the immediate presence of a Magistrate, the confession will be valid because presence of a Magistrate rules out the possibility of torture thereby making the confession free, voluntary and reliable.

Immediate presence of Magistrate means his presence in the same room where the confession is being recorded. A confession made while the accused is in judicial custody or Lock- up will be relevant, even if the accused is being guarded by policeman.

Confession to police and consequential discoveries:- When the statement leads to a discovery of a fact connected with crime. The discovery assures the truth of statement and makes it reliable even if it was extorted. This is so provided in S. 27.

The relevancy of statement confines to only the extent by which discovery has been done not the whole statement, e.g. A said, “I killed B and hid the knife beneath the bed.” If discovery is done from the same place, then only the part of the statement that I hid the knife beneath is relevant not the whole statement.

The scope of S. 27 was explained by the Privy Council in Pulilkuri Kottaya v. Emperor.

The court held that S. 27 is not artistically worded, provides on exception to the prohibition imposed by the preceding section and enables certain condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from the custody of police officer must be desposed to and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given. Some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. Referring to the facts of the case their lordships held that the whole of statement except the passage. [ I hid the spear and my stick in the village. I will show if you come, is inadmissible.]

Referring to the statement of other accused, that I stabbed Sivayya with a spear. I hid the spear in a yard of my village. I will show you the place, the court held that the first sentence must be omitted.

Constitutional Validity upheld:- In the case of state of U.P. v. DeomanUpadhyay, the supreme court rejected the suggestion that the provisions of S. 16 of the Cr.P.C. and S. 27 of the Evidence Act were discriminatory and violative of Art, 14 of the constitution. U/S. 161, if a person not in police custody has given some information to police in consequence of which something connected with crime is discovered, the information is not provable against him, if he is subsequently prosecuted for the crime. But he were in police custody at the time he gave information, it would have become provable against him. Thus, the classification is between persons not in custody and persons in custody. The Supreme Court held the classification as reasonable.

Place of hiding:- The Supreme Court has given a new meaning to the expression place of hiding. The court said, “ It is a fallacious notion that when recovering of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence. The court held that the crucial question is not whether the place was accessible to others but whether it was ordinarily visible to others. If it is not, then it is immaterial that the place of concealment is accessible to others.

Evidence only against maker of statement:- The Calcutta H.C. in Satish Chandra Seal v. Emperor, that statement under section 27 are not admissible against persons other than the maker of the statement.

Confession made under promise of secrecy etc. [S. 29]

A confession, unlike admission, is relevant even if it is made under promise of secrecy. In addition to this, S.c29 provides for many other things also. The effect of the section is that a confession is relevant even if it is obtained under the following circumstances.

  • By making a promise to the accused that it will be kept secret, or that evidence of it shall not be given against him.
  • By practicing a deception on the accused for the purpose of obtaining his confession.
  • When the accused was drunk.
  • In answer to question which he need not have answered.

Confession of co-accused:- When more than one persons are being jointly tried for one and the same offence or offences they are called co-accused. Any one of them is at liberty to confer to his own guilt and his confession will have full force of evidence against him. But when he confesses by implicating himself as well as other co-accused, that is called confession of co-accused and a question arises what is its value against the other non- confessing co-accused.

Section 30, provides such a confession is relevant if it fulfills the certain conditions.

  1. All the persons must be tried jointly.
  2. Same offence or offences.
  • Confession made by one person must affect himself as well as others.

The section Says nothing about the evidentiary value of the confession of a co-accused. All that section says and was necessary to say is that such confession may be taken into consideration against all of them, leaving the weight of the confession to the discretion of the court.

The Supreme Court accepted the effect of the section. The case before the court was Kashmira Singh v. State of Madhya Pradesh. The apex court held that a man should not be deprived of his life and liberty only on the basis of uncorroborated confession of his co-accused.

The Privy Council in BhubaniSahu v. the King, relating to the evidentiary value of such confession. Their lordships laid down that a confession of co-accused is not evidence as the term is defined in S. 3 of Evidence Act. Such confession is not recorded on oath nor it is given in the presence of the accused and nor its truth can be tested by cross-examination.

Thus, the confession of a co-accused is obviously evidence of a very weak type. It is much weaker type of evidence then the evidence of an approver, which is not subject to any of these affirmities.

Acquittal of confessing co-accused:- Where the confessing co-accused was acquitted of the main offence and the other accused raised the plea that the confers of such accused should cease to be admissible, the Supreme Court held that such plea was not tenable. The confessional statement was recorded as per S. 164 Cr.P.C. and both the accused were jointly tried. Thus, the requirement of S. 30 were satisfied. The evidence becomes relevant and did not cease to be so because of the acquittal.

 

  LAW OF EVIDENCE

  CONFESSIONS

  1. Confession caused by inducement, threat or promise is contained in

(a). section 24 of Evidence Act

(b) section 25 of Evidence Act

(c) section 26 of Evidence Act

(d) section 27 of Evidence Act.

 

  1. Section 24 of Evidence Act applies
    • when the inducement, threat or promise comes from a person in authority
    • when the inducement is of a temporal kind
    • when the inducement is spiritual or religious
    • only (a) & (b) are correct.

 

  1. A confession made to a police officer is inadmissible under
    • section 24 of Evidence Act
    • section 25 of Evidence Act
    • section 26 of Evidence Act
    • section 27 of Evidence Act.

 

  1. A confession to be inadmissible under section 25 of Evidence Act
    • must relate to the same crime for which he is charged
    • must relate to another crime
    • may relate to the same crime or another crime
    • only (a) is correct and (b) is incorrect.

 

  1. Which of the following is not given by section 25 of Evidence Act
    • confessions made to custom officers
    • confession made to a member of Railway Protection Force
    • confession made to an officer under FERA
    • all the above.

 

  1. A retracted confession
    • can be made solely the basis of conviction
    • cannot be made solely the basis of conviction under any circumstances
    • can not be made solely the basis of conviction unless the same is corroborated
    • both (a) & (c) are incorrect.
  1. A confession made by a person while in police custody is inadmissible as per

(a) section 25 of Evidence Act

(b) section 26 of Evidence Act

(c) section 27 of Evidence Act

(d) section 30 of Evidence Act.

  1. A confession made while in police custody is admissible under section 26 of Evidence Act

(a) if made in the presence of a doctor

(b) if made in the presence of a captain of a vessel

(c) if made in the presence of a Magistrate

(d) all the above.

  1. Section 27 control

(a) section 24 of Evidence Act

(b) section 25 of Evidence Act

(c) section 26 of Evidence Act

(d) all the above.

  1. Section 27 applies to

(a) discovery of some fact which the police had not previously learnt from other sources and

was first derived from the information given by the accused

(b) discovery of some fact which the police had previously learnt from other sources

(c) discovery of some fact which the police had previously learnt from other sources and the accused has also given information regarding the same

(d) all the above.

EVIDENCE ACT

MAINS

  1. What is dying declaration? Discuss fully its evidentiary value. Can an accused person be convicted on the basis of dying declaration?

 

  1. If a person making dying declaration happens to live, can the declaration be admitted in evidence? if So, what will be value of such statement in law?

Statements by Persons Who Cannot be Called as Witnesses: Dying Declaration

Cases in which Statements of Relevant Fact by Person who is Dead or Cannot be Found, etc. is Relevant (Sec. 32)

A statement (written or verbal) of relevant facts made by a person (i) who is dead, (ii) who cannot be found, (iii) who has become incapable of giving evidence, or (iv) whose attendance cannot be procured without unreasonable delay or expense, is relevant under the following circumstances:

  • When it relates to the cause of his death.
  • When it is made in the course of business, such as an entry in books, or acknowledgement of the receipt of any property, or date of a document.
  • When it is against the pecuniary or proprietary interest of the person making it or when it would’ve exposed him to a criminal prosecution.
  • When it gives opinion as to a public right/custom/matters of general interest.
  • When it relates to the existence of any relationship between persons as to whose relationship the maker had special means of knowledge.
  • When it relates to the existence of any relationship between persons deceased and is made in any will or deed or family pedigree, etc.
  • When it is contained in any deep, will or other document relating to transaction mentioned in Sec. 13(a).
  • When it is made by several persons and expresses feelings relevant to matter in question.

Sec. 32 provides an exception to the principle of excluding hearsay evidence. The principle behind is that a person who has the first-hand knowledge of the facts of a case, but who, because of death, disability, etc. is not able to appear before the court, then his knowledge should be transmitted to the court through some other person; the person who has shared the knowledge of that person will be considered as the best evidence. Thus, necessity and convenience are the underlying grounds.

Proof of a person’s death, disability, etc. will have to be offered in the first instance to make the evidence relevant under Sec. 32. When a statement is admitted under any of the eight clauses of this section, it is substantive evidence, and has to be considered along with other evidence.

Dying Declaration: Sec. 32 (1)

“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 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”.

Illustration (a): The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.

Statements made by A as to the cause of his or her death referring respectively to the murder, the rape and the actionable wrong under consideration are relevant facts.

Principle

Sec. 32 (1) incorporates the principle of English law relating to what are popularly known as dying declaration. A ‘dying declaration’ means the statement of a person who has died (by way of homicide or suicide) explaining the cause or circumstances of his death. As the person is dead, this statement before the court would be ‘hearsay’ which is excluded for the reasons that party against whom it is used has no opportunity of cross-examining the original source, and it is not delivered under an oath.

Sec. 32 is an exception to the hearsay rule. The three main grounds on which dying declarations are admitted are:

  • Death of the declarant,
  • Necessity (only evidence available under the circumstances): the victim being generally the only eye-witness to the crime, the exclusion of his statement would tend to defeat the ends of justice, and
  • The sense of impending death, which creates a sanction equal to the obligation of an oath. Nemo moriturus presumuntur mentri (no one when about to die is presumed to lie). “Truth sits upon the lips of dying men”.

The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.

The reason for admitting dying declaration is well-reflected by Shakespeare in Richard II, where he said- “Where words are scarce, they are seldom spent in vain; they breathe the truth that breathe their words in pain”. Sec. 32(1) is a salutary provision of law and has helped in securing convictions in dowry death cases and hence contributed to controlling this grave social evil.

Distinction between English and Indian Laws

There are several vital points of distinction between the English and the Indian law on the point of admissibility of dying declaration:

  • Firstly, in England, a dying declaration is relevant only in criminal cases where the cause of death is in question. In India, such statements are admissible both in civil and criminal proceedings; they are admissible even if the trial is not for a person’s death.
  • Secondly, under English law, the dying declaration is admissible only in the single instance of homicide i.e. murder or manslaughter. In India, cases of ‘suicide’ are also covered.
  • Thirdly, under English law, to be relevant, a dying declaration must have been made in expectation of death. The declaration must be made at a time when the maker is under settled and hopeless expectation of ‘death. A declaration made without appreciation of immediate or impending death would not be admitted, however it is not necessary that it should come immediately after the statement. There is no such requirement under the Indian law. If the declarant has in fact died and the statement explains the circumstances surrounding his death, the statement will be relevant even if no cause of death had arisen at the time of the making of the statement.
  • Fourthly, under English law, it is necessary that the deceased should have completed his statement, before dying. In India, if the deceased has narrated the full story, but fails to answer the last formal question as to “what more he wanted to say”, the declaration can be relied upon.

Conditions of Admissibility (Essential requirements of a dying declaration)

  • To whom the-statement is to be made and its form– A statement of dying declaration could be made to any person- a doctor, a magistrate, a friend or near relative, a police officer. However, a statement recorded by a magistrate or doctor is considered more reliable, and that recorded by a police officer or close relative not (require more scrutiny).

No particular form of recording a statement is prescribed. The statement could be written, oral or even verbal (e.g. gestures). In Queen Empress v Abdullah (1885) ILR 7 All 385, where the throat of the deceased girl was cut and she being unable to speak indicated the name of the accused by the signs of her hand, this was held to be relevant as dying declaration.

  • The person making the statement must have died- The death need not occur immediately after the making of the statement (as discussed above). However, the death must occur. If the person making the declaration chances to live, his statement is inadmissible as a ‘dying declaration’, but it might be relied on under Sec. 157 to corroborate his testimony when examined. Such a statement can also be used to contradict him under Sec. 145. Further, it can be used to corroborate the evidence in court under Secs. 6 and 8. The fact that the person is dead must be proved by the person proposing to give evidence of his statement.

Further, the deceased must be proved to have died as a result of injuries received in the incident. Where A made a statement shortly after an injury, and he was admitted in hospital and thereafter discharged, but after 5 days he died of high fever, the statement made by him is not admissible under Sec. 32(1).

  • Statement must relate to the cause of his death or the circumstances of the transaction which resulted in his death– lf the statement made by the deceased does not relate to his death, but to the death of another person, it is not relevant (Ratan Gond v State of Bihar AIR 1959 SC 18). For example, where the wife made a statement that her husband is killed by Z and then she committed the suicide.

The circumstances of transaction resulting in death must bear proximate relation to the cause of death or actual occurrence. The general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of death will not be admissible. But, statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, would each to them be circumstances of the transaction.

In Pakala Narayana Swami v Emperor (AIR 1939 PC 47), the deceased made a statement to his wife that he was going to the accused to collect money from him (the accused being indebted to the deceased). He catch a train for Berhampur, where the accused lived. A couple of days later, his body was found in a trunk which had been purchased on behalf of the accused. It was bed that the statement made by the deceased to his wife was admissible in evidence under Sec. 32(1) as a circumstance of the transaction which resulted in his death.

The Supreme Court in Sharda Birdichand Sharda v State of Maharashtra (AIR 1984 SC 1622), held that proximity depends upon facts and circumstances of each case. In this case, a married woman had been writing to her parents and other relatives about her critical condition at the hands of her in-laws. She lost her life some four months later. Her letters were held to be admissible as dying declaration. The court also pointed out that Sec. 32 (1) is applicable to cases of suicide also.

Thus, the statements made before a person has received any injury or before the cause of death has arisen or before the deceased has any reason to anticipate of being killed are relevant as dying declarations, but such statements should have a direct relation to the cause or occasion of death. Thus, where A committed suicide as a result of the ill-treatment by the accused, that treatment was the cause, though not the direct cause, of the death. The whole affair, ill-treatment and subsequent suicide, being all one transaction, consequently the statement of the deceased was admissible under Sec. 32(1).

  • The cause of death must be in question– The declaration under Sec. 32(1) must relate to the death of the declarant. In Re Dannu Singh v Emperor (25 Cr LJ 574), A and five other persons were charged with having committed a dacoity in a village. A, who was seriously wounded while being arrested, made before his death a dying declaration as to how the dacoity was committed and who had taken part in it. Held that declaration is not admissible in evidence against the other persons, as it does not relate to his death, but it relates to participation of his associates in the dacoity.
  • The statement must be complete and consistent– If the deceased fails to complete the main sentence (as for instance, the genesis or motive for the crime), a dying declaration would be unreliable. However, if the deceased has narrated the full story, but fails to answer the last formal question as to what more he wanted to say, the declaration can be relied upon [Kusa v State of Orissa (1920) 2 SCC 207].

A dying declaration ought not to be rejected because it does not contain details or suffers from minor inconsistencies. Merely because it is a brief statement, it is not to be discharged. Shortness, in fact, guarantees truth (Oza v State of Bihar AIR 1979 SC 1505). Where the bride recorded two declarations, one to a police officer and other to a magistrate, they being similar in material factors, evidence accepted though minor discrepancies were there [Raoji v State of Maharashtra (1994) C r LJ 15 (SC)].

In Kamla v State of Punjab (AIR 1993 SC 374), four dying declarations were made by the deceased. One of them indicated the incident as an accident. The accused (mother-in-law of the deceased) had been convicted on the basis of another declaration implicating her. The court also found glaring inconsistencies as far as naming the culprit was concerned. Held that the conviction  cannot be based upon such declarations.

  • Declarant must be competent as a witness- It is necessary for the relevancy of a dying declaration that the declarant, if he had lived on, would have been a competent witness. Thus, in a prosecution for the murder of a child, aged 4 years, it was proposed to put in evidence, as a dying declaration, what the child said shortly before her death. The declaration was held to be inadmissible [ v Pike (1829) 3 C 86 P 598]; Thus, a dying declaration of a child is inadmissible.
  • Other points – Where the injured person was unconscious, dying declaration should be rejected (Kaka Singh v State of M.P. AIR 1982 SC 1021). Where for some unexplained reasons the person who noted down (scribe) the statement was not produced, the declaration was not accepted as evidence (Govind Narain v State of Rajasthan AIR 1993 SC 2457). Where there are more than one declarations, the one first in point of time should be preferred (Mohan Lal v State of Maharashtra AIR 1982 SC 839).
  • FIR as dying declaration– Where an injured person lodged the F.I.R. and then died, it was held to be relevant as a dying declaration [ Ramachand Reddy v Public Prosecutor (1976) 3 SCC 104]. A report made by the deceased relating as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death shall be relevant as dying declaration (Mahmood Ilahi v State of U.P., 1990 CrLJ 885). Similarly, a ‘complaint’ made to police could be taken as a dying declaration [Jai Prakash v State of Haryana, 1999 CrLJ 837 (SC)].

A dying declaration recorded by police alone is relevant under Sec. 32(1), however, it is better to leave such a statement out of consideration unless the prosecution satisfies the court as to why it was not recorded by a magistrate or a doctor (Lakshmi v Om Prakash AIR 2001 SC 2383). Only because certain names were included in F.I.R. but were not mentioned in dying declaration does not detract from the value of dying declaration and would not by itself prove the falsity of the declaration.

Evidentiary Value of Dying Declarations

There is no rule of law that a dying declaration should not be acted upon unless corroborated. But, ordinarily, it is not considered safe to convict an accused person only on the basis of a dying declaration because of its inherent weaknesses (discussed below):

  • It is hearsay evidence, not made on oath and its veracity cannot be tested by cross-examination in the court.
  • The maker of such a statement might be mentally and physically in a state of confusion and might well be drawing upon his imagination when he was making the declaration.
  • Very often, the dying man takes that last opportunity to implicate all his enemies.
  • In weighing the evidence of dying declaration, various factors or circumstances should be taken into consideration:—
  • Nature of its content, consistency of statements made at different times;
  • Capacity to remember facts; opportunity of dying man for observation viz., availability of light if crime done at night, to identify assailant.
  • Proximity of time between it and the accident; whether the statement made at the earliest opportunity and was not the result of any tutoring or prompting by interested parties (relatives). Thus, the opportunity to consult other persons is an important factor.

In a wife burning case, the wife remained alive for about 8 days after receiving burn injuries, but did not tell to anybody visiting her in the hospital as to how she came to receive the burns. When her uncle visited her she stated that her husband had set her on fire. The Supreme Court held that statement seemed to have been tutored by the uncle (State of Assam v M. Ahmed AIR 1983 SC 274). However, the mere presence of relatives is not in itself sufficient to show that the declarant was tutored (Habib Usman v State of Gujarat AIR 1979 SC 1181). In K.R. Reddy’s case, the deceased did not disclose the name of assailants on the first opportunity he had but until later when he made a declaration before the magistrate. It was held that there was prompting by the cousin of the deceased, who supplied the name.

Thus, it is necessary that the dying declaration must be subjected to a close scrutiny (‘proved beyond reasonable doubt’) in respect of all the relevant circumstances of the case. The declaration must be true and voluntary.

Relevance of Circumstances of Transaction which Resulted In Death

PATEL HIRALAL JOITARAM V STATE OF GUJARAT(AIR 2001 SC 2944)

Facts and Issue- In this case, the statement made by the deceased woman in the FIR, where she wrongly mentioned the 2nd part of the name of the accused had been clarified by her by giving a clarifying statement under Sec.161, Cr. P.C.

The first occasion on which she made the statement was when she talked to a pedestrian, the victim herself was sitting beneath the water column in the railway station frantically trying to get the flames quelled. The sadhus nearby asked her as to who had done it and she answered “Hiralal”. A little later, she narrated the incident to her husband. He stated that she had told him that Hiralal asked her why she was defaming him by spreading the story that he had illicit relations with her sister.

The victim did not mention the name of the assailant to the doctor. Her main dying declaration was given to the executive magistrate in which she clarified that in her earlier statement she mentioned the name of the assailant as “Hiralal Lalchand”, while before the investigating officer she rectified her mistake and that it was “Hiralal Joitaram” and not “Hiralal Lalchand”.

The issue was whether her statement had been covered by Sec. 32(1) of the Evidence Act to be a reliable dying declaration.

Observations- The Apex Court observed: By Sec. 32(1), two categories of statements are made admissible in evidence and further made as substantive evidence. They are (a) statement as to the cause of death (b) statement as to any of the circumstances of the transaction which resulted in death. The second category can include a far wider range of facts than the first category.

The court further observed: The words “statement as to any of the circumstances” are by themselves capable of expanding the width and contours of the scope of admissibility. When the word “circumstances” is linked to “transaction which resulted in his death”, the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub-section. As the possibility of getting the maker of the statement in flesh and blood has been closed once for all, the endeavour should be to include the statement of a dead person within the sweep of relevancy and not to exclude it. Admissibility is the first step and once it is admitted the court has to consider how far it is reliable. Once that test of reliability is found positive the court has to consider the utility of that statement in the particular case.

In Sharad Birdhichand Sarda v State of Maharashtra (1984) 4 SCC 116, a three-judge Bench of this court considered the scope of Sec. 32(1). It was laid down that the legislature has thought it necessary to widen the sphere of Sec. 32 for avoiding injustice. The court observed: “The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case…. Entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death.”

Decision- The court held: Looking at the dying declaration in the above perspective, there is no doubt that her statement is inextricably intertwined with the episode in which she was burnt and eventually died of such burns. Thus, the clarificactory statement made by the deceased under Sec. 161, Cr.P.C. would fall within the ambit of Sec. 32 (1) of the Evidence Act.

Comments- In the above-discussed case, the Supreme Court has emphasized the need for efforts by courts, as far as possible, to include a statement within the scope of Sec. 32(1). Hence, statements as to any of the circumstances of the transaction which resulted in the death would be included.

In Rattan Singh v State of H.P. (AIR 1997 SC 768), the statement of a woman made before the occurrence in which she died that the accused was standing near her with a gun in his hand and this fact being one of the circumstances of the transaction was held to be admissible as a dying declaration being proximate in point of time and space to the happening.

The court observed: When the deceased made the statement that appellant was standing with a gun she might or might not have been under the expectation of death, but that does not matter. The fact spoken by her has subsequently turned out to be a circumstance which intimately related to the transaction which resulted in her death. The collection of the words in Sec. 32(1) “circumstances of the transaction which resulted in his death” is apparently of wider amplitude than saying “circumstances which caused his death”. There need not be direct necessary nexus between “circumstances” and “death”. It is enough if the words spoken by the deceased have reference to any circumstances, which has connection with any of the transaction which ended up in the death of the deceased.

In Dalbir Singh v State of U.P. (AIR 2004 SC 1990), a letter written by the deceased wife prior to her death was held to be admissible in evidence as it disclosed the cause of her death or circumstances which resulted in her death. However, where there was a telephonic conversation between the deceased and one of the witnesses but it did not relate to the cause of his death or to any of the circumstances of the transaction which resulted in his death, it was held that the statement did not come within the purview of Sec. 32(1) [Jayendra Saraswathi Swamigal v State of T.N. (2005) 2 SCC 13].

SUDHAKAR v STATE OF MAHARASHTRA [(2000) 6 SCC 671]

Facts and Issue— In this case, a school teacher aged about 20 years was allegedly raped by the head master and a co-teacher. The prosecutrix narrated the incident to her mother, brother and uncle and two or three days later to her father. The matter was reported to the police 11 days after the incident in which she narrated the whole incident and explained the delay for not lodging the report earlier. The doctor who examined the prosecutrix reported that she had been subjected to sexual intercourse in the recent past. Unable to withstand the humiliation of rape she committed suicide. The autopsy showed that the cause of death was poisoning. The prosecution relied upon the statement made to the police. The courts below also relied upon the aforesaid statement treating it as the dying declaration being admissible in evidence under Sec. 32 of the Evidence Act. The issue related to the admissibility of the aforesaid statement as a dying declaration.

Observations— The court observed that the statement of the prosecutrix (made to the police) does not directly state any fact regarding the cause of her death. At the most, it would be said to relate to the “circumstances of the transaction” resulting in her death. The phrase “circumstances of the transaction” was considered and explained in Pakala Narayan Swami v Emperor (AIR 1939 PC 47):

“The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused.

‘Circumstances of the transaction’ is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in ‘circumstantial evidence’ which includes evidence of all relevant facts. It is on the other hand narrower than ‘res gestae’. Circumstances must have some proximate relation to the actual occurrence: though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that ‘the circumstances’ are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that ‘the cause of (the declarant’s) death comes into qeustion’.”

Decision– In the present case, there is no legal evidence on record that the prosecutrix at or about the time of making the statement had disclosed her mind for committing suicide allegedly on account of the humiliation to which she was subjected to on account of the rape committed on her person. The circumstances stated in the statement made to the police do not suggest that a person making such a statement would under the normal circumstances, commit suicide after more than five-and-a-half months. The High Court was, therefore, not justified in relying upon the aforesaid statement as a dying declaration holding that the said statement was in series of circumstances of the transaction which resulted in the death of the deceased.

Comments- The words “as to any circumstances of transaction which resulted into his death” appearing in Sec. 32 makes it clear that the circumstances resulting in death must have proximate relation to actual occurrence. In other words, the statement of the deceased relating to cause of his death or circumstances of transaction which led to his death must be sufficiently and clearly related with the actual transaction [Kans Raj v State of Punjab AIR 2000 SC 2324].

Dying Declaration can be used as a Sole Basis of Convictions

In Ram Nath Madho Prasad v State of M.P. (AIR 1953 SC 420), the Supreme Court observed: “It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination…”

By subsequent decisions, however, the Court has over-ruled its above ruling.

KHUSHAL RAO v STATE OF BOMBAY (AIR 1958 SC 22)

In this case, the deceased made four separate and identical declarations before the doctor, police inspector, magistrate and to other persons, stating that he has been assaulted by Khushal and one other person. The question was whether the accused could be convicted only on the basis of this declaration, or the declaration needed corroboration. There are divergent views of different High Courts in this regard. According to Bombay High Court, dying declaration is a weaker type of evidence and requires corroboration. According to Calcutta High Court, it is not permissible to accept a declaration in one part and reject the other part. According to Madras High Court, a declaration can be relied without corroboration, if the court is convinced of its truth, i.e., there is no suspicion of its credibility.

The Supreme Court, agreeing with Madras High Court, laid down the following principles:

  • There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated.
  • Each case must be determined on its own facts keeping in view the circumstance in which the dying declaration was made.
  • A dying declaration is not a weaker kind of evidence than any other piece of evidence. It stands on the same footing as any other piece of evidence.
  • A dying declaration cannot be equated with a confession or evidence of approver, as it may not come from a tainted source. If it is made by a person whose antecedents are as doubtful as in the other cases, that may be a ground for looking upon it with suspicion.
  • Necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court in a particular case come to the conclusion that a particular declaration is not free from infirmities.
  • To test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity of the dying man of observation, e.g. whether there was sufficient light if the crime was committed at night; whether the capacity of the declarant was not impaired at the time of the statement; that the statement has been consistent throughout if he had several opportunities for making a dying declaration; and that the statement was made at the earliest opportunity and was not the result of tutoring by interested parties.
  • A dying declaration recorded by a competent Magistrate in a proper manner in the form of questions and answers, and in the words of the maker as far as practicable stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and character.
  • If the court, after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense. The court must, of course, be fully convinced of the truth of the statement, and naturally, it could not be fully convinced if there were anything in the surrounding circumstances to raise suspicion as to its credibility.

Thus, a true and voluntary declaration needs no corroboration?

The statement of the deceased in this case satisfied all these conditions (the declaration was true in all respects e.g. consistent in so far as naming of the two accused) and therefore the appellants should be convicted.

KUSA v STATE OF ORISSA (AIR 1980 SC 559)

In this case, the deceased made a dying declaration before a doctor. It was clear in all respects. However, the appellants challenged it on the following grounds: (1) It did not contain all those names which were included in F.I.R. (2) The account of eye-witnesses is also different (3) The deceased was in a state of shock, thus his statement could not be relied (4) The declaration was incomplete as the deceased did not answered the last question put to him (T 0 wind up the statement the doctor asked the injured if he had anything else to say, he lapsed into unconsciousness without answering this question).

The court observed that only because certain names were included in F.I.R. but were not mentioned in dying declaration does not detract from the value of dying declaration and would not by itself prove the falsity of the declaration. In Surat Singh’s case, the first declaration did not mention the name of eye- witnesses, but the second declaration (which was more detailed) contained it. The court observed that first declaration was a short version of the entire incident and contained true facts when the deceased was under great pain.

The court further observed: The statement of doctor was that deceased became semi-conscious when last question was put to him. Logically it means that prior to that he was fully conscious. The last question was in the nature of a mere formality “What more you want to say”, and all the necessary questions were asked before that formal question. The statement was thus not incomplete.

The court thus held that once the declaration is believed (true, consistent, coherent), it can be relied upon for-conviction, even if there is no corroboration (Khushal Rao v State of Bombay AIR 1958 SC 22). In Lallubhai v State of Gujarat (AIR 1972 SC 1776), a married woman was burnt to death by her in-laws, her dying declaration was accepted and conviction was based solely on the basis of the declaration. It was held that if the truthfulness of a dying declaration is accepted, it can always form the basis of conviction of the accused. The court, in the present case, thus convicted the appellants on the basis of the dying declaration.

F.V. RADHAKRISHNA v STATE OF KARNATAKA (AIR 2003 SC 2859)

In this case of wife-burning, the Apex Court highlighting the utility of dying declaration, observed: “The principle on which a dying declaration is admitted in evidence is indicated in Latin maxim nemo mariturus proemitur mentiri, a man will not meet his maker with a lie in his mouth.” The court further observed that a person on death bed is in a position so solemn and serene that it is equal to the obligation under oath. For this reason, the requirement of oath and cross-examination are dispensed with. The victim being generally the only principal eye witness to the crime, the exclusion of the declaration might defeat the ends of justice.

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an Obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court must be satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. The court has to be on its guard and see for itself that the declaration is voluntary and seems to reflect the truth.

This court has laid down governing principles (precautions) in several judgments, which could be summed up as under:

  • There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. If the court is satisfied that dying declaration is true and voluntary it can base conviction on it without corroboration [State of U.P. v Ram Sagar Yadav AIR 1985 SC 416; State of Karnataka v Shariff AIR 2003 SC 1074].
  • A dying declaration which suffers from infirmity cannot form the basis of conviction.
  • The court has to scrutinize the dying declaration carefully and must ensure that it is not the result of tutoring, prompting or imagination.
  • Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected [Kaka Singh v State of M.P. AIR 1982 SC 1021].
  • Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected (AIR 1981 SC 617).
  • Brief statement not to be discarded. Shortness of the statement itself guarantees truth [Sarajdeo Oza v State of Bihar AIR 1979 SC 1505].
  • Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon [State of U.P. v Madan Mohan AIR 1989 SC 1519].
  • In case of more than one statement, the first in point of time must be preferred. If plurality is trustworthy and reliable it has to be accepted [Mohanlal Gangaram Gehavi v State of Maharashtra AIR 1982 SC 839].
  • Normally the court in order to satisfy whether the deceased was in a fit mental condition (so as to observe and identify the assailant) to make the dying declaration looks up to the medical opinion. But where the eye witness or Magistrate said that the deceased was in a fit and conscious state to make to the dying declaration, the medical opinion cannot prevail. [Laxman v State of Maharashtra (2002) 6 SCC 710].

Regarding the percentage of burns and credibility of statement, this court (in the present case) held that there is no hard and fast rule of universal application in this regard. Much would depend upon the nature of the burn, its effect and impact on faculties (mental abilities). Percentage of burns alone would not determine the probability or otherwise of making of a dying declaration. It was held that the High Court was justified in placing reliance on the dying declaration.

In Narain Singh v State of Haryana (AIR 2004 SC 1616), the Apex Court observed that, dying declaration though an exception to the hearsay rule, but like any other evidence, it has to pass the test of credibility. If found reliable, it can be the basis of conviction. It can be acted upon in reference to one accused though not in reference to others. In Ravi v State of Tamil Nadu (2004) 10 SCC 776, it was held that if the truthfulness of dying declaration cannot be doubted, the same alone can form the  basis of conviction without any corroboration. In R. Mani v State of T.N. (2006) 3 SCC 1661, it was held that a dying declaration must be wholly reliable, and if not wholly true it can be treated only as a piece of evidence but no conviction can be made solely on its basis.

In the “Pramod Mahajan Murder” case (The Times of India, December 18, 2007), the dying declaration played an important part. The victim, Pramod Mahajan, named Pravin Mahajan (his brother and the accused) as the person who shot him while he was being rushed to the hospital. The trial court treated it as a dying declaration since it was made to Gopinath Munde, a former minister and a responsible citizen who was not expected to lie to the court. The ‘conduct of the accused before and after the shooting’ also went in his disfavour. The court took into consideration the fact that the accused had left his home on the morning of the murder with the murder weapon. This indicated that it was a premeditated act. The accused did not try to rush his brother to a hospital if (as claimed by  he had shot him accidentally after a scuffle. Also, the accused came to the victim’s house in the early hours of the morning when the victim was to be most “vulnerable”.

Discrepancy in Dying Declarations: Credibility of Dying Declaration

In Kishan Lal v State of Rajasthan (AIR 1999 SC 3062), certain dying declarations were made by the deceased nearly two months after the incidence of burning. In the first oral declaration made before her relatives, the deceased mentioned the names of the accused. In the second declaration before the magistrate she could not mention the name of the accused on the ground that she could not recognize any accused because of fire darkness coming to her eyes. Second declaration not only giving to conflicting version but there was inter se discrepancy in depositions of witnesses given in support of the oral dying declaration. Also, the medical evidence clearly showed that the deceased died due to some aliments and not due to burn injuries. The court held that in such circumstances the conviction cannot be based on such dying declarations.

The court also observed: Under Indian law, the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. While the English law admits statement/ statements only when it is made when the declarant is in actual danger of death (i.e. full apprehension of danger of death/hopeless condition), and expecting imminent death. Though under Indian law, imminence or danger of death does not affect the admissibility of a dying declaration but it will have effect on its credibility. In the present case, the dying declaration was not at a time when the deceased was expecting imminent death.

In Girdbar Shankar Tawade v State of Maharashtra (AIR 2002 SC 2078), the Apex am observed that it is well settled that dying declarations have to be dealt with due care and admitted as evidence only upon proper circumspection. In Sheikh Mehboob alias Hetak v State of Maharashtra 2005 (3) SCALE 55, the endorsements in medical record mentioned that there was history of ‘accidental burns’ at one place and at another place that there was history of ‘self-inflicted burns’. Dying declaration itself mentioned that the deceased had started to make a statement which suggested of his having poured kerosene oil on himself and set himself  on fire as the accused was demanding interest and beating him. The circumstances raised serious doubts as to the credibility of dying declaration.  Therefore, it was held to be not reliable.

Dying Declaration Made to Police whether Admissible

STATE OF KARNATAKA v SHARIFF (AIR 2003 SC 1074)

In this case, the deceased, wife of the respondent, before succumbing to injuries, made statement to the A.S.I. The question arose whether the dying declaration made before the police office is reliable and admissible as evidence. The court observed that a dying declaration recorded by police cannot be discarded on that ground alone. There is no requirement of law that a dying declaration must he made to a magistrate.

However, this court had laid down that it is better to leave such a statement out of consideration unless the prosecution satisfies the court as to why it was not recorded by a magistrate or a doctor [Dalip Singh v State of Punjab AIR 1979 SC 1173; Lakshmi v Om Prakash AIR 2001 SC 2383]. In Munnu Raja v State of M.P. (1976) 3 SCC 104, this court observed:

“The practice of investigating officers himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always trustworthy, but what we want to emphasise is that better and more reliable methods should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.

In the aforesaid case, the court admitted the statement made to I.O. at the Police Station by the deceased as admissible evidence. In State of Punjab v Amarjit Singh (AIR 1988 SC 2013), it was observed that no hard and fast rule could be laid down in this regard and it all depends upon the facts and circumstances of each case.

In the present case, it was also held that a dying declaration need not be in question-answer form. Very often the deceased is merely asked as to how the incident took place and the statement is recorded in a narrative form. In fact such a statement is more natural and gives the version of the incident as it has been perceived by the victim. In Ram Bihar Yadav v State of Bihar (1993) 4 SCC 517, it was held that a dying declaration which was not in question-answer form can be accepted. It should, however, be in the actual words of the maker of the declaration.

Medical Opinion and Dying Declaration

Normally the court in order to satisfy whether the deceased was in a fit mental condition (so as to observe and identity the assailant) to make the dying declaration looks up to the medical opinion. But where the eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail [Laxman v State of Maharashtra (2002) 6 SCC 710].

In the aforesaid case, the Constitution Bench observed that where the medical certificate indicated that the patient was conscious, it would not be correct to say that as there was no certification as to the state of mind of declarant the statement recorded by the Magistrate was inadmissible. The Magistrate in his evidence had stated that he had put some questions to the victim to find out whether she was able to make statement and on being satisfied he had recorded the statement of the deceased. The court said that what is essentially required is that the person who records the statement must be satisfied that the injured person was in a fit state of mind. Certification or examination by the doctor is only a rule of caution. Thus, a “voluntary and truthful” dying declaration without a doctor’s endorsement that the victim was mentally fit to make the statement could be the basis for convicting an accused.

The court relied upon an earlier decision in Ravi Chander v State of Punjab (1998) 9 SCC 303, wherein it was observed that the Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise.

The court overruled its earlier decision in Paparambaka Rosamma v State of A.P. (1999) 7 SCC 695, wherein it was held that in the absence of a medical certification that the injured person was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration.

In Rambai v State of Chhattisgarh (2002) 8 SCC 83, the court held that dying declaration will not become invalid solely on the ground that it is not certified by the doctor. In Sanmugam alias Kulandai Vellu v State of T.N. (AIR 2003 SC 209), the dying declaration was recorded by the Magistrate within few hours the victim was admitted to the hospital. The Magistrate in his examination stated that victim was conscious. Medical officer present at the time of recording of dying declaration also made endorsement about consciousness of the victim. Held that mere non-examination of doctor in whose presence the dying declaration was recorded does not affect its evidentiary value.

In Gaffar Badshaha Pathan v State of Maharashtra (2004) 10 SCC 589, it was held that a dying declaration could not be rejected on the ground that it does; not contain an endorsement of the doctor of the fitness of the victim to make the statement, as the certificate of the doctor only shows that the victim was in a conscious state.

Statements Made In Course of Business [Sec. 32(2)]

Sec. 32(2) declares relevant statements made by a person in the ordinary course of business and in particular when it consists of an entry/ memorandum in books; or in the discharge of professional duty; or acknowledgement of the receipt of any property; or of the date of a letter/ document usually written or signed by him.

Where the question is as to a person’s date of birth, an entry in the diary of a deceased surgeon regularly kept by him stating that on a certain date he attended that person’s mother and delivered her of a son is relevant [Illust. (b), Sec. 32]. Similarly, where the question is whether a person was in Calcutta on a given date, entries in the diary of a deceased solicitor (regularly kept by him) that he attended that person at a place in Calcutta is relevant [Illust. (c)]. Illust (g) reads: The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.

Statements Against Interest of Maker [Sec. 32(3)]

Under Sec. 32(3), “declarations against interest” include statements against the pecuniary or proprietary interest of the person making it, or when it would have exposed him to a criminal prosecution or suit for damages.

The question is whether rent was paid to A for certain land. A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact [Illust. (e)]. The question is whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant [Illust. (f)].

Sec. 32(3) is based on the ground that what a person says against his own interests is very likely to be true. Thus, a statement made by a deceased in a deed, to the effect that he is governed by the Mitakashara law, is against his proprietary interest and admissible. A statement by a landlord who was dead, that there was a tenant on the land, was a statement against his proprietary interest and was held admissible.

Declaration as to Public Rights [Sec. 32(4)]

Sec. 32(4) deals with declarations of deceased persons as to public right or custom, or matters of general interest. It is necessary that he made the declaration before any controversy as to such right, custom or matter had arisen. If the statement is regarding a private right,“ it cannot be admitted under this clause.

The person making the declaration should be a person of competent knowledge. Illust. (i) to Sec. 32 reads: The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

Declaration as to Relationship or Pedigree [Sec. 32 (5) & (6)]

Sec. 32(5) provides that a statement will be relevant when it relates to the existence of any relationship by blood, marriage or adoption as to whose relationship the maker had special means of knowledge and was made when before the question is dispute arose (i.e. ante litem mortem and not post litem mortem).

Thus, the statements made by deceased members of a family (in a pedigree or horoscope) are admissible in evidence if they are made before there was anything to throw doubt upon them. Illust. (k) to Sec. 32 reads: The question is, whether A, who is dead, was the father of B. A statement by A  that B was his own son, is a relevant fact. Similarly, when the question was whether a certain person was the legitimate child, declaration by his deceased father and mother that he was born before marriage, was held to be admissible.

While Sec. 32(5) refers to statement relating to the existence of relationship between any person (living or dead), Sec. 32(6) is concerned with deceased persons only. Further, while under Sec. 32(5), the evidence is the declaration of a person who is deceased or whose attendance cannot be secured; under Sec. 32(6), the evidence is that of concrete things and is always written e.g. will or deed, tombstone, family pedigree/ portrait, coffin plates, etc.

Illust. (l) reads: The question is, what was the date of birth of A. A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact. Illust. (m) reads: The question is, whether, and when, A and B were married. An entry in a memorandum book by C (B’s deceased father) of B’s marriage with A on a given date, is a relevant fact.

Statements in Documents as to Custom or Right [Sec. 32(7)]

Under this clause, evidence can be given of a statement made in any deed, will, etc. which relates to any transaction by which any right or custom was created, claimed, modified, denied, etc.

Statement of Several Persons Expressing Feelings [Sec. 32(8)]

A statement is relevant if it was made by a number of persons and expressed feelings or impression on their part relevant to the matter in question. This section may be compared with Sec. 14, which deals with expression of feelings by an individual. Illust. (n) to Sec. 32 reads: A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved.

 

EVIDENCE ACT

PRELIMINARY

  1. ‘Necessity rule’ as to the admissibility of evidence is contained in
    • section 31 of Evidence Act
    • section 32 of Evidence Act
    • section 60 of Evidence Act
    • section 61 of Evidence Act.
  2. Necessity rule as to the admissibility of evidence is applicable, when the maker of a statement
    • is dead or has become incapable of giving evidence
    • is a person who can be found but his attendance can not be procured without unreasonable delay or expenses
    • is a person who can not be found
    • all the above.
  3. Under section 32 of Evidence Act, a statement of a person who is dead, to be admissible
    • must relate to the cause of his own death
    • may relate to the cause of someone else’ death
    • may relate to the cause of his own death or someone else’ death
    • both (b) & (c) are correct.
  4. The person whose statement is admitted under section 32 of Evidence Act
    • must be competent to testify
    • need not be competent to testify
    • may or may not be competent to testify
    • only (a) is correct and (b) & (c) are incorrect.
  5. A dying declaration is admissible
    • only in criminal proceedings
    • only in civil proceedings
    • in civil as well as criminal proceedings both
    • in criminal proceedings alone & not in civil proceedings.
  6. A dying declaration
    • can form the sole basis of conviction without any corroboration by independent evidence
    • can form the basis of conviction only on corroboration by independent witness
    • cannot form the sole basis of conviction unless corroborated by independent witness
    • only (b) & (c) are correct.
  7. A dying declaration to be admissible
    • must be made before a Magistrate
    • must be made before the police officer
    • may be made before a doctor or a private person
    • may be made either before a magistrate or a police officer or a doctor or a private person.
  8. Declaration in course of business are admissible
    • under section 32(1) of Evidence Act
    • under section 32(2) of Evidence Act
    • under section 32(4) of Evidence Act
    • under section 32(7) of Evidence Act.
  9. Declaration as to custom are admissible
    • under section 32(1) of Evidence Act
    • under section 32(2) of Evidence Act
    • under section 32(4) of Evidence Act
    • under section 32(7) of Evidence Act.
  10. Under section 32(4) of Evidence Act, the declaration
    • as to public rights & customs are admissible
    • as to private rights & customs are admissible
    • as to both public and private rights and customs are admissible
    • only as to customs are admissible.

 

EVIDENCE ACT

MAINS

  1. What is dying declaration? Discuss fully its evidentiary value. Can an accused person be convicted on the basis of dying declaration?

 

  1. If a person making dying declaration happens to live, can the declaration be admitted in evidence? if So, what will be value of such statement in law?

DYING DECLARATION

  • 32 provides an exception to the principle of excluding hearsay evidence.
  • 104 and Dying declaration.
  • No opportunity of cross examination.
  • Not on oath.

Dying Declaration: Sec. 32 (1)

“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”.

BASIS:

  • Death of the declarant,
  • Necessity (only evidence available under the circumstances): the victim being generally the only eye-witness to the crime, the exclusion of his statement would tend to defeat the ends of justice, and
  • The sense of impending death, which creates a sanction equal to the obligation of an oath. Nemo moriturus presumuntur mentri (no one when about to die is presumed to lie). “Truth sits upon the

lips of dying men”.

  • To whom the dying declaration can be given?
  • Statement must relate to the cause of his death or the circumstances of the transaction which resulted in his death.
  • Pakala Narayana Swami v. Emperor
  • Sharad Birdichand Sarda v. state of Maharashtra
  • Ratan Gond v. State of Bihar
  • What is the relevancy of the statement if the deceased survives after the dying declaration?
  • Short dying declaration.
  • Oza v. State of Bihar
  • Dying declaration with minor discrepancies.
  • Whether the declarant must be a competent witness.
  • What is the form of dying declaration?
  • J .Ramulu state of Andhra Pradesh
  • What is the format of dying declaration?
  • Satish Chandra v.State of Madhya Pradesh
  • Dying declaration and section 60.
  • What is the evidentiary value of dying declaration?

There is no rule of law that a dying declaration should not be acted upon unless corroborated. But, ordinarily, it is not considered safe to convict an accused person only on the basis of a dying declaration because of its inherent weaknesses (discussed below):

  • It is hearsay evidence, not made on oath and its veracity cannot be tested by cross-examination in the court.
  • The maker of such a statement might be mentally and physically in a state of confusion and might well be drawing upon his imagination when he was making the declaration.
  • Very often, the dying man takes that last opportunity to implicate all his enemies.
  • In weighing the evidence of dying declaration, various factors or circumstances should be taken into consideration:—
  • Nature of its content, consistency of statements made at different times;
  • Capacity to remember facts; opportunity of dying man for observation viz., availability of light if crime done at night, to identify assailant.
  • Proximity of time between it and the accident; whether the statement made at the earliest opportunity and was not the result of any tutoring or prompting by interested parties (relatives). Thus, the opportunity to consult other persons is an important factor.

The circumstances which lend strength and assurance to a dying declaration are as follow:

  1. That it was recorded by a competent magistrate after taking all proper precautions.
  2. That it was taken down in the exact words in which it was spoken.
  3. That it was made shortly after the assault when there was no opportunity of it being coloured by impressions received from others.
  4. That the deceased had ample opportunity of observation.
  5. That the incident happened in a sufficiently lightened place.
  6. That the deceased had made more than one statement and all of them were consistent as to the circumstances of the occurrence and the identity of the attackers.
  7. The deceased was not under any fear or pressure at the time of making the statement.

 

In Paniben v. State of Gujrat the Supreme Court on the basis of its own earlier decisions has summed up certain guidelines to be followed by the courts while dealing with the dying declarations:

  1. There is neither rule of law nor of prudence that dying declaration cannot be acted upon with corroboration.
  2. If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
  • The court has to scrutinize the dying declaration carefully and must ensure that it is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
  1. Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
  2. Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it to be rejected.
  3. A dying declaration which suffers from infirmity cannot form the basis of conviction.
  • Merely because the dying declaration does not contain the details as to the occurrence, it is not to be rejected.
  • Equally, merely because it is a brief statement, it is not to be discarded. On the contrary the shortness of the statement itself guarantees truth.
  1. Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
  2. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
  3. Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, i9f the plurality of dying declaration could be held trustworthy and reliable, it has to be accepted.

In Ram Nath Madho Prasad v State of M.P. (AIR 1953 SC 420), the Supreme Court observed: “It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination…”

By subsequent decisions, however, the Court has over-ruled its above ruling.

KHUSHAL RAO v STATE OF BOMBAY (AIR 1958 SC 22)

The Supreme Court, agreeing with Madras High Court, laid down the following principles:

  • There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated.
  • Each case must be determined on its own facts keeping in view the circumstance in which the dying declaration was made.
  • A dying declaration is not a weaker kind of evidence than any other piece of evidence. It stands on the same footing as any other piece of evidence.
  • A dying declaration cannot be equated with a confession or evidence of approver, as it may not come from a tainted source. If it is made by a person whose antecedents are as doubtful as in the other cases, that may be a ground for looking upon it with suspicion.
  • Necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court in a particular case come to the conclusion that a particular declaration is not free from infirmities.
  • To test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity of the dying man of observation, e.g. whether there was sufficient light if the crime was committed at night; whether the capacity of the declarant was not impaired at the time of the statement; that the statement has been consistent throughout if he had several opportunities for making a dying declaration; and that the statement was made at the earliest opportunity and was not the result of tutoring by interested parties.
  • A dying declaration recorded by a competent Magistrate in a proper manner in the form of questions and answers, and in the words of the maker as far as practicable stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and character.
  • If the court, after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense. The court must, of course, be fully convinced of the truth of the statement, and naturally, it could not be fully convinced if there were anything in the surrounding circumstances to raise suspicion as to its credibility.

Thus, a true and voluntary declaration needs no corroboration.

P.V.Radhakrishna v. State of Karnataka

This court has laid down governing principles (precautions) in several judgments, which could be summed up as under:

  • There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. If the court is satisfied that dying declaration is true and voluntary it can base conviction on it without corroboration [State of U.P. v Ram Sagar Yadav AIR 1985 SC 416; State of Karnataka v Shariff AIR 2003 SC 1074].
  • A dying declaration which suffers from infirmity cannot form the basis of conviction.
  • The court has to scrutinize the dying declaration carefully and must ensure that it is not the result of tutoring, prompting or imagination.
  • Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected [Kaka Singh v State of M.P. AIR 1982 SC 1021].
  • Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected (AIR 1981 SC 617).
  • Brief statement not to be discarded. Shortness of the statement itself guarantees truth [Sarajdeo Oza v State of Bihar AIR 1979 SC 1505].
  • Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon [State of U.P. v Madan Mohan AIR 1989 SC 1519].
  • In case of more than one statement, the first in point of time must be preferred. If plurality is trustworthy and reliable it has to be accepted [Mohanlal Gangaram Gehavi v State of Maharashtra AIR 1982 SC 839].
  • Normally the court in order to satisfy whether the deceased was in a fit mental condition (so as to observe and identify the assailant) to make the dying declaration looks up to the medical opinion. But where the eye witness or Magistrate said that the deceased was in a fit and conscious state to make to the dying declaration, the medical opinion cannot prevail. [Laxman v State of Maharashtra (2002) 6 SCC 710].

 

 

 

 

 

Case laws :

  1. Pakala Narayana Swami v. Emperor
  2. Sharad Birdichand Sarda v. state of Maharashtra
  3. Patel Hiralal Joitram State of Gujrat
  4. Sudhakar v. State of Maharashtra
  5. Khushal Rao v. State of Bombay
  6. Kusa v. State of Orissa
  7. V.Radhakrishna v. State of Karnataka

 

EVIDENCE ACT

PRELIMINARY

  1. ‘Necessity rule’ as to the admissibility of evidence is contained in
    • section 31 of Evidence Act
    • section 32 of Evidence Act
    • section 60 of Evidence Act
    • section 61 of Evidence Act.
  2. Necessity rule as to the admissibility of evidence is applicable, when the maker of a statement
    • is dead or has become incapable of giving evidence
    • is a person who can be found but his attendance can not be procured without unreasonable delay or expenses
    • is a person who can not be found
    • all the above.
  3. Under section 32 of Evidence Act, a statement of a person who is dead, to be admissible
    • must relate to the cause of his own death
    • may relate to the cause of someone else’ death
    • may relate to the cause of his own death or someone else’ death
    • both (b) & (c) are correct.
  4. The person whose statement is admitted under section 32 of Evidence Act
    • must be competent to testify
    • need not be competent to testify
    • may or may not be competent to testify
    • only (a) is correct and (b) & (c) are incorrect.
  5. A dying declaration is admissible
    • only in criminal proceedings
    • only in civil proceedings
    • in civil as well as criminal proceedings both
    • in criminal proceedings alone & not in civil proceedings.
  6. A dying declaration
    • can form the sole basis of conviction without any corroboration by independent evidence
    • can form the basis of conviction only on corroboration by independent witness
    • cannot form the sole basis of conviction unless corroborated by independent witness
    • only (b) & (c) are correct.
  7. A dying declaration to be admissible
    • must be made before a Magistrate
    • must be made before the police officer
    • may be made before a doctor or a private person
    • may be made either before a magistrate or a police officer or a doctor or a private person.
  8. Declaration in course of business are admissible
    • under section 32(1) of Evidence Act
    • under section 32(2) of Evidence Act
    • under section 32(4) of Evidence Act
    • under section 32(7) of Evidence Act.
  9. Declaration as to custom are admissible
    • under section 32(1) of Evidence Act
    • under section 32(2) of Evidence Act
    • under section 32(4) of Evidence Act
    • under section 32(7) of Evidence Act.
  10. Under section 32(4) of Evidence Act, the declaration
    • as to public rights & customs are admissible
    • as to private rights & customs are admissible
    • as to both public and private rights and customs are admissible
    • only as to customs are admissible.

 

 

  EVIDENCE ACT

         MAINS

1.Write a short Note on ” Expert Witness”.

  1. Genuineness of a signature on a document was in dispute. Parties produced evidence on the point but did not examine handwriting expert. The trial Judge himself compared the disputed signature with admitted signature of the alleged executant. He held flat the disputed signature was forgery. In appeal this finding was assailed. Decide giving reasons.

 

Expert Evidence and Relevancy of Character

Opinion of Third Persons when Relevant (Secs. 45-51)

The term ‘opinion’ means something more than mere relating of gossip or of hearsay; it means judgment or belief, that is a belief or conviction resulting from what one thinks on a particular question. What a person thinks in respect to the existence or non-existence of a fact is opinian; and whatever is presented to the senses of a witness and of which he receives direct knowledge without any process of thinking and reasoning is nut opinion.

For example, the question is whether a certain injury was caused by a spear. A states that he saw the accused causing the injury by a spear. This is not A’s opinion. But, if a doctor, who did not see the injury being caused, says that he thinks that the injury was caused by a spear, it is his opinion. What one sees, hears, feels by touch, and knows is not opinion and on the contrary what is the conclusion of an individual is his opinion. Opinion is what is formed in the mind of a person regarding a fact situation.

The opinions or beliefs of third persons are, as a general rule, irrelevant, and therefore, inadmissible. Witnesses are to state the facts only i.e. what they themselves saw or heard, etc. It is the function of the judge or to form their own conclusion or opinion on the facts stated.

Thus, the opinion or the impression of a witness that it appeared to him from the conduct of a mob that they had collected for an unlawful purpose is inadmissible to prove the object of the assembly. The witnesses are generally interested in the parties to the litigation and if their opinion were admissible, grave injustice would be caused.

There are, however, cases in which the court is not in a position to form a correct opinion (e.g. when the question involved is beyond the range of common experience or common knowledge), without the help of persons who have acquired special skill or experience in a particular subject. In these cases, the rule is relaxed, and expert evidence is admitted to enable the court to come to a proper decision. The rule admitting ‘expert evidence’ is, thus, founded on necessity. A judge accepts the view which is more objective or probable.

Sec. 45 (Opinion 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 or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art or in questions as to identity of handwriting 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 opinion 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 act, or that he was doing what was wrong or contrary to law. The opinion of experts upon the question of unsoundness of A’s mind, are relevant.

(c)        The question is whether 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.

Sec. 45 permits only the opinions of an expert to be cited in evidence. The term ‘opinion’ means something more than mere relating of gossip or of hearsay; it means judgment or belief, that is a belief or conviction resulting from what one thinks on a particular question. An ‘expert’ witness is one who has devoted time and study to a special branch of learning, and thus is specially skilled on those points on which he is asked to state his opinion. His evidence on such points is admissible to enable the court to come to a satisfactory conclusion. An expert could be qualified by skill and experience as well as by professional qualifications. Thus, an experienced police officer may be permitted to give ‘expert’ evidence as to how an accident may have occurred.

An expert is not a witness of fact. His evidence is really of an ‘advisory’ character. An expert opinion will not be read into evidence unless he is examined before the court as a witness and is subjected to cross-examination. Thus the report submitted by an expert does not go in evidence automatically.

Difference between experts’ testimony and that of ordinary witness

  • An ordinary witness must depose to what actually took place. An expert’s evidence is not confined to what actually took place, but covers his opinions on facts (e.g. a medical man may give his opinion as to the cause of a person’s death).
  • An expert can refer to and rely upon experiments conducted by him in the absence of the other party. Thus, on a charge of arson, evidence of an experiment conducted by an expert subsequent to the fire is admissible to show how the fire may have originated.
  • An expert may quote passages from well-known text books on the subject and may refer to them to refresh his memory.
  • An expert may state facts relating to other cases in pari materia similar to the case under investigation.

On what matters expert opinion can be given

The subjects on which an expert is competent to testify are: foreign law, matters of science, questions of art, identity of handwriting, or of finger impressions. The words ‘science’ or ‘art’ include all subjects on which the course of special study or experience is necessary to the formation of opinion. The matter in question must be of technical nature, for no expert can be permitted to speak on a matter with which the judge may be supposed to be equally well acquainted.

The Supreme Court has held that the opinion of a person that a particular letter was typed on a particular typewriter is not admissible as it does not fall within Sec. 45 (Hanumant v State of U.P. AIR 1952 SC 343). The decision has been criticised and it has been suggested that “the claim of experts that the identity of machine may be established by proving the identity of defects or peculiarities which it impresses on paper should have been considered”.

In State of H.P. v jai Lal (1999) 7 SCC 280, the court held that officer of the Horticultural Department of the State Government might have acquired some experience but is not sufficient to make him an expert in the field and to give the label of “expert evidence” to his testimony.

Proof of Age A doctor’s opinion as to age of a person based on his or her height, weight and teeth does not amount to legal proof of age of that person. But such evidence is relevant. An opinion based on the X- ray plate examination has been held to be admissible (Ram Swaroop v State, 1989 CrLJ 2435 All). However, in Anita v Atal Bihari, 1993 CrLJ 549 (M.P.), held that in ascertaining date of birth, opinion of radiologist cannot be preferred over the entry in the register of births and deaths maintained under the provisions of an Act.

In a case of kidnapping of a girl, the medical evidence showed her age between 17 and 18 years and the documentary evidence showed her to be above 18 years. Held that the medical evidence was not a conclusive proof of age [S.K. Belal v State, 1994 CrLJ 467 (Ori)].

Value of Expert Opinion

The Evidence Act only provides about the relevancy of expert opinion but gives no guidance as to its value. It is often said that there cannot be any more unsatisfactory evidence than that of an expert. The value of expert opinion suffers from various drawbacks:

  • There is the danger of error or deliberate falsehood. “These privileged persons might be half blind, incompetent or even corrupt.”
  • His evidence is after all opinion and “human judgment is fallible. Human knowledge is limited and imperfect”.
  • An expert witness, howsoever impartial he may be, is likely to be unconsciously prejudiced in favour of the side which calls him. Thus, expert witnesses are called witnesses “retained and paid” to support by their evidence a certain view on a scientific or technical question.

These factors seriously reduce the probative value of expert evidence. It would be highly unsafe to convict a person on the sole testimony of an expert. The reliability of such evidence has, therefore, to be tested the same way in which any other piece of evidence is tested. The Supreme Court has laid down following principles in this regard Murari Lal v State of M.P. AIR 1980 SC 531):

  • There is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that the opinion evidence of an expert must never be acted upon, unless substantially corroborated.
  • But, having due regard to the various adverse factors operating in case of expert opinion, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered.
  • In appropriate cases, corroboration must be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an expert may be accepted.
  • The hazard in accepting the expert opinion, is not because experts, in general, are unreliable witnesses- the equality of credibility or incredibility being one which an expert shares with all other witnesses- but because all human judgment is fallible and an expert may go wrong because of some defect of observation, or honest mistake of conclusion. The more developed and more perfect a science, less is the chance of an incorrect opinion. The science of identification of finger prints has attained near perfection and the risk of incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not so perfect and the risk is, therefore, higher. But that is far from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case; however the opinion may be backed by the soundest of reasons.
  • The opinion of expert is not decisive or conclusive of the matter. The court should not surrender its opinion to that of the expert. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of those criteria to the facts proved in evidence.

It is the duty of the court to remove chaff from the grain [Mohan Singh v State of M.P. (1999) 2 SCC 428]. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of an expert witness depends on the reasons stated in support of his conclusions and the data material furnished which form the basis of his conclusions.

Medical opinion Opinion of medical officer cannot be taken as contradicting the positive evidence of the witness of the facts. Where the direct evidence about assault by a particular person is satisfactory and reliable medical evidence cannot override that because the latter is hypothetical (Punjab Singh v State of Haryana AIR 1984 SC 1223). However, where the medical report differed from injuries described by the witnesses, medical evidence should prevail (Amar Singh v State of Punjab AIR 1987 SC 726). Between the opinion of two doctors, the opinion which supports direct evidence should be accepted (Piara Singh v State of Punjab AIR 1977 SC 2274).

In Wilayat Khan v State (AIR 1962 SC 121), it was held that expert opinion is not to be believed upon when it is in conflict with direct evidence. It has been held that medical evidence cannot be decisive of the matter. In case of any conflict between eye-evidence and the medical evidence the court will have to go by the evidence which inspires more confidence. Thus, where the eyewitnesses testified to one lathi blow upon the head of deceased, but the medical evidence recorded four external injuries, the court held that the medical evidence was more trustworthy and it showed that the so-called eyewitnesses had not seen the incident.

In respect of nature of injuries and causes of death, most competent witness is the doctor examining the deceased and conducting post-mortem. Unless there is something inherently defective, the court cannot substitute its opinion in place of the doctor’s (Mafabhai N. Raval v State of Gujarat AIR 1992 SC 2186). Where the doctor failed to give his opinion about the nature of injury, the court cannot substitute its opinion assuming the role of an expert [Babloo v State, 1995 CrLJ 3534 (M.P.)].

In Mohd. Zahid v State of T.N. (1999) 6 SCC 120, it was held that while sufficient weightage should be given to the evidence of the doctor who conducted post-mortem examination, the evidence cannot be accepted if it is self-contradictory. The question in this case was whether death was homicidal, suicidal or accidental. The doctor’s opinion was at variance with statements in text books. The prosecution made suggestion to the doctor on the basis of statements found in authoritative textbook. The doctor conducted the post-mortem examination on a decomposed body eight days after it was buried. While the courts below accepted the evidence of the doctor, the Supreme Court did not.

While expert evidence is relevant from the point of view of weight, it is a very weak type of evidence. The court is not bound by the opinion of the medical expert, but has to form its own opinion. In this case, the medical witness ruled out the possibility of two successive blows by a sharp weapon falling at the same place. The court rejected this opinion and accepted the prosecution version [State of Haryana v Bhagirath (1999) 5 SCC 96]. Reliable direct evidence should not be rejected on the hypothetical medical evidence. Where medical evidence shows that there are two possibilities, the one consistent with the direct evidence should be accepted [Anil Roy v State of Bihar (2001) 7 SCC 318]. Credible ocular testimony was preferable to medical opinion [Ramakant Rai v Madan Rai (2003) 12 SCC 395].

The court should see whether the eye-witness account is consistent with the medical evidence and, if not, whether the accused should not get the benefit. The opinion of the medical officer is to assist the court as he is not a witness of fact and the evidence given by him is really of an advisory character and not annihilatory of the witness of fact [Vishnu v State of Maharashtra (2006) 1 SCC 283].

Admissibility of the result of a scientific test will depend upon its authenticity. Whether the “brain mapping test” is so developed a science that the report should have probative value for enabling the court to rely upon it requires consideration. Since the High Court did not place reliance upon it, the Supreme Court also thought it not necessary to do so [Ranjit Singh Brahamajeet Singh Sharma v State of Maharashtra AIR 2005 SC 2277].

Opinion of text writers Opinion of Text Writers Opinion of text writers may have persuasive value, but cannot be considered to be authoritatively binding. Such opinion cannot be elevated to or placed on a higher pedestal than opinion of experts examined in courts. The trial court in this case held the accused to be guilty on the basis of books on medical jurisprudence. The Supreme Court did not approve this approach [State of M.P. v Sanjay Rai AIR 2004 SC 2174].

Value of opinion of handwriting expert The opinion of an expert in writing is considered as the weakest and the least reliable evidence. It has been held that it is not safe to base conviction upon the opinion of writing expert alone. However, in Ram Narain v State of U.P. (discussed below), solely on the basis of expert evidence the accused was convicted by the court.

The handwriting experts’ opinion simply corroborates the circumstantial evidence. Therefore, it is not possible to accept the contention that the handwriting experts’ opinion being a weak piece of evidence ought not to be relied upon. Opinion of a handwriting expert’ can be relied on when it is supported by other   there is no rule of law that without corroboration opinion evidence cannot be accepted but due care and caution should be exercised and it should be accepted after probe and examination. Even if in some earlier cases court passed some adverse remarks against him, his evidence cannot be on that ground alone. What is necessary to see is if the report relied upon suffers from any infirmity or not [Alamgir v State (NCT) of Delhi (2003) 1 SCC 21]. In this case, a woman met her death in a guest room and the police found two slips of paper and the evidence of the handwriting expert was that the writing on the papers was that of her husband the accused).

LEADING CAASE: RAM NARAIN v STATE OF U.P. (AIR 1973 SC 2200)

In this case, a child was kidnapped. The parent of the child received a handwritten post-card followed by an inland letter demanding Rs.1,000/- and Rs. 5,000/- respectively as ransom for the child. The author of the letters was traced and a handwriting expert testified the letters to be in the handwriting of the accused. Solely on the basis of this evidence the’ accused was convicted by the lower courts.  Supreme Court upheld the conviction.

The Court said: “Both under Sec. 45 and Sec. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observation. In either case, the court must satisfy itself by such means as are open that the opinion may be acted upon. One such means is to apply its own observation to the admitted or proved writings, not become a handwritings expert but to verify the opinion of the witness. This is not to say that the court may play the role of an export, but to say that the court may accept the fact only when it has satisfied itself on its own observation that it is safe to accept the opinion of the expert or the other witness”.

In this case, Dua J. himself compared the handwriting in question with a proven handwriting of the accused and satisfied himself and held that no further corroboration was necessary.

The court held that if after comparison of disputed and admitted writings by court itself, it is consideration safe to accept the opinion of expert, then the conclusion so arrived at cannot be attacked on special leave merely on the ‘ground that comparison of handwriting is generally considered hazardous and inconclusive. It should be noted that the evidence of experts is not final or conclusive, The court may satisfy itself before relying on the expert opinion. Thus in many cases, their Lordships have come to the contrary opinion and rejected the expert opinion, it is more so in case of handwriting. In State of Gujarat v V.C. Patni (AIR 1967 SC 778), it was pointed out that expert opinion is relevant but is not conclusive.

Nate: In Murari Lal v State of M.P. (AIR 1980 SC 531), the Supreme Court had laid clown some important principles in relation to the value of the opinion of a handwriting expert (discussed earlier). In this case, the court upheld the conviction on the evidence that the piece of writing left behind by the murderer in the room, of the deceased was testified by a handwriting expert to be in the handwriting of the accused. The court also observed that even if no handwriting expert is produced before the court, the court has the power to compare the handwriting itself and decide the matter.

Such exercise of comparison is permissible under Sec. 73 of the Act. Secs. 45 and 73 are complementary to each other [Lalit Popli v Canara Bank (2003) 3 SCC 583].

Sec. 46 (Facts bearing upon opinion of experts)

“Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of expoerts, when such opinions are relevant”.

The effect of the provision is that when the opinion of an expert is relevant and has been cited, any fact which will either support his opinion or contradict it will also become relevant (Res inter alia acta). Thus, where 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.

Sec. 47 (Opinion as to handwriting when relevant)

According to Sec. 47, when the court had to determine the question whether a document is written or signed by a certain person, the court can admit the opinion of a person who is acquainted with that person’s handwriting. The explanation attached to the section gives guidance as to who is considered to be acquainted with another’s handwriting. It includes a person —

  • who has seen that person write, or
  • who has received documents written by that person in answer to documents written by himself or under his authority and addressed to that person, or
  • who has in the ordinary course of business, received documents written by that person or such documents are habitually submitted to him.

Illustration– The question is, whether a given letter is in the handwriting 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. The opinion 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.

In Fakhruddin v State of M.P. (AIR 1967 SC 1326), it was held that handwriting may be proved by evidence of a witness in whose presence the writing was done and this would be direct evidence and if it is available the evidence of any other kind is rendered unnecessary.

Modes of proving handwriting

Secs. 45 and 47 recognise the following modes of proving handwriting:

  • By the evidence of the writer himself.
  • By the opinion of an expert (Sec. 45).
  • By the evidence of a person who is acquainted with the handwriting of the person in question (Sec. 47).
  • Under Sec. 73 by the court itself comparing the handwriting.

Sec. 47A (Opinion as to digital signature when relevant)

When the court has to form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.

Sec. 48 (Opinion as to existence of right or custom)

Sec. 48 makes those opinions relevant which proves the existence of any general custom or right. 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 [Also see Secs. 13 and 32 (4)].

Sec. 49 (Opinion as to usages, tenets, etc.)

Sec. 49 makes opinions of such persons relevant who have special means of knowledge regarding the usages and tenets of a body of men or family, the constitution and government of any religious or charitable foundation, and, the meaning of words or terms used in particular districts or by particular classes of people.

Sec. 50 (Opinion on relationship)

Sec. 50 makes the opinion of a person expressed by his conduct, who as a member of the family or otherwise has special means of knowledge as to the relationship of one person to another, relevant.

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.

(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.

Relationship includes relation by blood, marriage or adoption. It may be noted that under Sec. 32, which also contains provision for proving relationship, the statements of dead persons are relevant; while, under Sec. 50 the opinion of a person alive is relevant. The opinion must have been expressed by conduct, and not merely by words or statements. It is very important to note that Evidence Act does not contain any express provision making evidence of general reputation admissible as proof of relationship. A was the father of C and V is the father of R as stated by witnesses was held not admissible under Sec. 50.

Proviso to Sec. 50- It lays down that in the cases under Secs. 494, 495, 497 and 498 of IPC and a proceeding under the Indian Divorce Act, the evidence of marriage cannot be given by opinion of an expert. In these cases, strict proof of marriage is necessary i.e. witnesses in whose presence the marriage was celebrated must be produced.

Sec. 51 (Grounds of opinion when relevant)

Sec. 51 provides that whenever the opinion of a living person is relevant, the grounds on which his opinion is based shall also be relevant. An expert may give an account of experiments performed by him for the purpose of forming his opinion.

The opinion of an expert by itself may be relevant, but would carry little weight with a court unless supported by a clear statement of what he noticed and upon what he based his opinion.

 

  EVIDENCE ACT

PRELIMINARY

    

  1. Opinions of experts are relevant
    • under section 45 of Evidence Act
    • under section 46 of Evidence Act
    • under section 47 of Evidence Act
    • under section 48 of Evidence Act.
  2. Under section 45 of Evidence Act, the opinion of expert can be for
    • identity of hand writing
    • identity of finger impression
    • both (a) & (b)
    • neither (a) nor (b).
  3. Under section 45 of Evidence Act the opinion of expert can be on the question of
    • Indian law
    • Foreign law
    • both (a) & (b)
    • only (a) & not (b).
  4. Opinion of an expert under section 45 of Evidence Act
    • is a conclusive proof
    • is not a conclusive proof
    • is supportive & corroborative in nature
    • either (a) or (c).
  5. A disputed handwriting can be proved
    • by calling an expert
    • by examining a person acquainted with the handwriting of the writer of the questioned document
    • by comparison of the two-admitted & disputed handwritings
    • all the above.

EVIDENCE ACT

MAINS

 

  1. Discuss the legal provisions regarding relevancy of character in criminal or civil proceedings.

 

CHARACTER WHEN RELEVANT

(Secs. 52-55)

To what extent is the character, general reputation of a person relevant in civil or criminal proceedings has been made clear by Secs. 52-55. Character is “a combination of peculiar qualities impressed by nature or by the habit of the person, which distinguish him from others”. In respect of the character of a party, two distinctions must be drawn, namely between the cases when the character is in issue and is not in issue and when the cause is civil or criminal.

Sec. 52 (In Civil cases character to prove conduct imputed, irrelevant)

Sec. 52 lays down the broad general principle that “the evidence of a party’s character cannot be given for the purpose of showing that it renders the conduct imputed to him as probable or improbable.” Thus, a party cannot give evidence of his good character for the purpose of showing that it is improbable that he should be guilty of the conduct imputed to him. For example, if a person is charged with negligent driving he cannot give evidence of the fact that his character and conduct has been such that he could not have been guilty of negligence. Similarly, his opposite party cannot give evidence of the fact that his character and conduct had been so bad that he must have been negligent.

The reason is that the court has to try the case on the basis of its facts for the purpose of determining whether the defendant should be liable or not. The court has not to try the character of the parties and the evidence of character will not only prolong the proceedings but will also unnecessarily prejudice the mind of the judge one way or other. Further, in civil cases, the previous convictions of the defendant are irrelevant.

Sec. 52, however, also lays down that a fact, which is otherwise relevant, cannot be excluded from evidence only because it incidentally exposes or throws light upon a party’s character. This is an exception to the general principle laid in Sec. 52. The court may form its own conclusions as to the character of a party to a suit as exhibited by the relevant facts proved in the case, and draw an inference that he might probably have been guilty of the conduct imputed to him.

There are other exceptions to the general principle laid in Sec. 52:

  • 55 says “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”. The evidence of good or bad character of the defendant is irrelevant to damages. But the character of the plaintiff is relevant. In an action for damages, for seduction or rape, evidence of bad character of the plaintiff is allowed as it is likely to affect the damages that the plaintiff ought to receive.
  • Evidence can be given of a party’s character when his character is itself a fact in issue. Where, for example, an action is brought for divorce on the ground of cruelty, the cruel character of defendant, being a fact in issue, the plaintiff can lead evidence of it. The character of a female chastity has been received in evidence in action for breach of promise for marriage.

See. 53 (in Criminal cases previous good character relevant)

Sec. 53 says that “in criminal cases, the fact that the person accused is of a good character is relevant”. Normally, we presume that a person of good character and reputation will not generally resort to any criminal act. Thus, goodness if proved, leads to presumption against the commission of a crime.

Evidence of good character is always admissible. But in any case, the character evidence is a weak evidence; it cannot outweigh the positive evidence in regard to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favour of the accused (Bhagwan Swarup v State AIR 1965 SC 682).

Sec. 54 (Previous bad character not relevant, except in reply)

According to Sec. 54, “evidence may not be received regarding the badness of party’s character in criminal proceedings, unless evidence has been given that he has a good character, in which case it becomes relevant.” In other words, the prosecution cannot lead evidence of the bad character of accused as part of its original case. They can produce evidence of bad character only in reply to the accused showing his good character.

Criminal cases also admit of certain exceptions. There are certain cases in which evidence of a prisoner’s bad character can be given:

  • To rebut prior evidence of good character (Sec. 54).
  • The character is itself a fact in issue (Explanation 1 to Sec. 54). For example, in a prosecution for rape, the bad character of prosecution (raped woman) may be a fact in issue for it may afford a defence to the accused. Under Sec. 110, Cr.P.C., a person is to be bound down if he is by habit a robber, a housebreaker, etc.
  • A previous conviction is relevant as evidence of bad character in criminal cases (Explanation 2 to Sec. 54). Under Sec. 71, IPC if it is proved that a person is a previous convict he shall be sentenced to much longer term of imprisonment than would ordinarily have been awarded to him.

Sec. 55 (Character as affecting damages)

Sec. 55 says, “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”. The evidence of good or bad character of the defendant is irrelevant to damages. But the character of the plaintiff is relevant. In an action for damages, for seduction or rape or libel, evidence of bad character of the plaintiff is allowed, as it is likely to affect the damages that the plaintiff ought to receive.

Explanation– It states that the word “character” used in Secs. 52-55 includes both reputation and disposition; except as provided in Sec. 54, evidence may be given only of general character and not of particular acts by which the character is shown.

‘Reputation’ means what is thought of a person by others and is constituted by public opinion. It may be noted that the evidence of those, who know the man and his reputation is admissible. Evidence of those who do not know the man but have heard of the reputation (hearsay evidence) is not admissible. ‘Disposition’ implies one’s own individual opinion of another person’s character.

 

EVIDENCE ACT

Pre -Questions

  1. Propositions under Evidence Act are
  2. In civil cases, character evidence is inadmissible unless the character of a party is a fact in issue.
  3. In criminal cases, the evidence of good character is admissible generally.

III. In criminal proceedings, evidence of bad character is inadmissible unless the same is a fact in issue.

  1. In criminal proceedings evidence of bad character is admissible when evidence of good character has been given.

In relation to the above propositions which of the following is correct statement

(a) all the four (I, II, III & IV) are correct

(b) I, II & III are correct but IV is incorrect

(c) I & II are correct but III & IV are incorrect

(d) I & III are correct but II & IV are incorrect

(e) I, ll & IV are correct but III is incorrect

(f) II, III & IV are correct but I is incorrect.

 

  1. ‘A’ is accused of having stabbed ‘B’. At the trial of ‘A’ for the above crime the following fact shall not be relevant:

(a) That ‘A’ purchased a knife a few days earlier

(b) That ‘A’ was seen trying to conceal a knife under mud near his house two days after the incident

(c) That ‘A’ is a known bad character of the locality

(d) That ‘A’ absconded immediately after the incident

 

  1. Character to prove conduct imputed, is irrelevant in ……. ..

(a) Civil cases

(b) Criminal cases

(c) Both (a) and (b)

(d) None of the above

 

  1. In criminal proceedings, the fact that the accused is of good character, is

(a) Relevant

(b) Irrelevant

(c) Depends

(d) None of the above

 

  1. Previous good character is relevant under section ……………… ..of the Indian Evidence Act.

(a) Section 50

(b) Section 51

(c) Section 52

(d) Section 53

 

EVIDENCE

MAINS

  1. Write a short note on judicial notice?

Facts Requiring No Proof & Oral / Documentary Evidence

Facts which Need Not be Proved (Secs. 56-58)

The general rule is that all facts in issue and relevant facts must be proved by evidence, either oral or documentary. To this rule, there are two exceptions: (a) facts judicially noticeable (Secs. 56-57), (b) facts admitted (Sec. 58).

Sec. 56 reads: “No fact of which the court will take judicial notice need be proved”.

Sec. 57 enumerates thirteen facts of which the court is bound to take the judicial notice:

  • All laws in force in the territory of India.
  • All Acts of the British Parliament.
  • Articles of War for the Indian Army, Navy or Air Force.
  • The course of proceedings of the British Parliament, of the Constituent Assembly of India, and of Parliament and Legislatures.
  • The accession and the sign manual of the sovereign of U.K. and Ireland.
  • All seals of which English courts take judicial notice; the seals of all the courts in India, etc. and all the seals which a person is authorised to use by the Constitution or an Act.
  • The accession to office, names, titles, functions, and signatures of Gazetted officers.
  • The national flag of every country recognized by the Government of India.
  • The division of time, the geographical divisions of the world and public festivals, facts and holidays notified in the official gazette.
  • The territories under the dominion of the Government of India.
  • The commencement, continuance or termination of war between the Government of India and any other country.
  • The names of court officials and of all advocates, pleaders, etc. authorised by law to appear or act before the court.
  • The rule of the road, on land or at sea.

The provision is supplemented by two declarations at the end of the section. One of them says that in all these matters, and also on matters of public history, literature, science or art, the court may consult the appropriate books or documents of reference. The second declaration is that if a party calls upon the court to take the judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as the court may consider necessary to enable it to take judicial notice.

Judicial facts— The expression ‘take judicial notice’ means recognition without proof of something as existing or as being true. Judicial notice is based upon very obvious reasons of convenience and expediency; and the wisdom of dispensing with proof of matters within the common knowledge of every one. Judicial notice is the cognizance taken by the court itself of certain matters which are so notorious or clearly established, that the evidence of their existence is deemed unnecessary. Judicial notice takes the place of proof, and is of equal force. As a means of establishing facts, it is therefore superior to evidence.

The matters enumerated in Sec. 56 do not form an exhaustive list. The court could take judicial notice of other facts, not to be found in the list. The court cannot take judicial notice of facts stated in a newspaper, as a statement of facts in it is merely a hearsay and, therefore, inadmissible in evidence unless proved otherwise. The Supreme Court in Shashi Nayar v Union of India (AIR 1992 SC 395) took judicial notice that the law and order situation had deteriorated over the years and continues to be worsening fast and, therefore, it is an opportune time to think of reconsidering death penalty.

In one interesting English case [McQuaker v Goddard (1940) 1 KB 687], the question was whether the court ought to take judicial notice that a camel is not a wild animal. The court took judicial notice of the fact that it is not a wild animal. Commenting on this decision, it has been remarked that since an English court has taken judicial notice of the fact that the camel is a domestic animal, it would now require an Act of the British Parliament to make it a wild animal.

Admitted facts— Another set of facts which need not be proved are facts which have been admitted. Sec. 58 lays down this principal. Sec. 58 lays down that “if the parties to a proceeding agree to admit a fact at the hearing, or which they agree to admit by writing before the hearing, or which by any rule of pleading in force deemed to be admitted, it need not be proved by the opposite party”.

Averments made in a petition which have not been controverted by the respondent carry the effect of a fact admitted. Facts which have been admitted on both sides are not in issue and, therefore, no proof need be offered of them. A files a suit against B for Rs. 1,000 on the basis of pronote. B admits to have borrowed the debt but pleads the payment of debt. In this case, A need not prove the execution of the pronote as that has been admitted by B on the hearing.

However, Sec. 58 also provides that the court may in its discretion require some other proof of an admitted fact. It may be noted that this section applies to civil suits only. It is an elementary rule that except by a plea of guilty, admissions dispensing with proof are not permitted in a criminal trial.

 

EVIDENCE

  1. Facts of which the judicial notice is to be taken are stated in
    • section 56 of Evidence Act
    • section 57 of Evidence Act
    • section 58 of Evidence Act
    • section 55 of Evidence Act.
  2. List of facts of which the judicial notice has to be taken under section 57 of Evidence Act
    • is exhaustive
    • is illustrative only
    • is both (a) & (b)
    • is neither (a) nor (b).
  3. Facts which need not be proved by the parties include
    • facts of which judicial notice has to be taken
    • facts which have been admitted by the parties at or before the hearing
    • both (a) & (b)
    • neither (a) nor (b).
  4. The court may in its discretion call for proving the facts
    • of which judicial notice has to be taken
    • which have been admitted otherwise than such admissions
    • both (a) & (b)
    • neither (a) nor (b).

EVIDENCE ACT

MAINS

  1. Define the word “Evidence and distinguish between oral and documentary evidence and direct and circumstantial evidence.
  1. “Oral Evidence in all cases must be direct” explain this Rule with illustration and exceptions?

 

MODES OF PROOF

A fact may be proved either by oral evidence of the fact or by documentary evidence, if any. Thus, there are two methods of proving a fact, one is by producing witnesses of fact (oral evidence), and the other, by producing a document (including electronic records) which records the fact in question (documentary evidence).

[A] Oral Evidence (Secs. 59-60)

All statements which the court permits or requires to be made before it by witnesses in relation to the matters of fact under inquiry are called ‘oral evidence’. In general, the evidence of witnesses is given orally, and this means oral evidence. A witness who cannot speak may communicate his knowledge of the facts by signs or by writing and in either case it will be regarded as oral evidence.

Sec. 59. Proof of facts by oral evidence– All facts except the contents of documents, may be proved by oral evidence.

Oral evidence, if worthy of credit, is sufficient without documentary evidence to prove a fact or title. However, as per Sec. 60, where written documents exist, they shall be produced as being the best evidence of their own content and no oral evidence can be produced to prove as to what is wrong in the document. A and B enter into a written contract that B shall be supplying 20 mounds of wool to A every month. If controversy arises between the parties about the terms of the contract it can be proved only by the document. Oral evidence will not be allowed.

In Virendra Nath v Mahd. Jamil (AIR 2004 SC 3856), the person in possession of land was shown in the revenue records to be a mortgagee but the mortgagor could not produce the unregistered mortgage deed because it was in possession of the mortgagee. Held that oral evidence could be admitted for the collateral purpose of ascertaining the nature of possession of the person claiming to be in adverse possession.

Sec. 60. Oral evidence must be direct — Oral evidence must, in all cases, whatever, be direct, i.e.

“If it refers to a fact which could be seen (or heard or perceived by any other senses), it must be the evidence of a witness who says he saw (or heard or perceived it by that sense) it;

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 opinion of an expert can be cited in his absence if it has been expressed in a book form and the expert himself is either dead or is otherwise unavailable as a witness. 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.”

Thus, oral evidence must be direct. This means that a witness can tell the court of only a fact of which he has the first hand knowledge (eye-witness) in the sense that he perceived the fact by any of the five senses. If, on the other hand, the statement was not made in his presence or hearing and he subsequently came to know of it through some other source, he cannot appear as a witness, for his knowledge is a derived knowledge and is nothing but a “hearsay’ and it is a maxim of law that hearsay evidence is not relevant.

Hearsay Evidences

The word ‘hearsay’ mean whatever a person is heard to say (rumour or gossip) or whatever a person declares on information given by someone else, or it may be synonymous with irrelevant. A statement, oral or written, by a person not called as a witness (or statements made out of court) comes under the general rule of hearsay. Sec. 60 of Evidence Act., is directed against avoiding or excluding hearsay evidence.

The test to distinguish between direct evidence and hearsay is: It is direct evidence if the court, to act upon it, has to rely only upon the witness, whereas it is hearsay if it has to rely not only upon the witness, but some other person also. Thus, if X is charged with Y’s murder, and if Z, in his evidence, states that “I saw X stabbing Y with a knife”, it would a direct evidence. Instances of hearsay evidence would be the evidence of A that “Z told me that he had seen X stabbing Y” or that “Z wrote a letter to me stating that he had seen X stabbing Y” or that “I read in the newspaper that X had murdered Y”.

It may be noted that hearsay evidence is not admissible even if not objected to or even if consented to. The court has no discretion in this matter, except in certain exceptional cases. The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and- accuracy of the person whose words are spoken to by another witness cannot be nested by cross-examination. It is always desirable, in the interest of justice, to get the persons whose statements are relied upon, into court for examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be best brought to light and exposed.

Thus, its admission tends to open the door for fraud which might be practised with impunity. It is second-hand evidence; the person giving such evidence does not have any sense of responsibility. There is a tendency that truth will be diluted and diminished with each repetition and the frauds may be practiced under its cover. Further, its admission tends to prolong trials unduly by letting in statement, the probative value of which is very slight.

Exceptions to the hearsay rule

People’s memories are fragile and short. Subsequent publicity, discussions and suggestive questioning all exert their influence. This may lead to exclusion of evidence which is superior in trustworthiness to evidence which is freely admitted (i.e. direct evidence). In Sharda Birdichand Sarda v State (AIR 1984 SC 1622), the testimony of persons who had seen the pitiable condition of a young woman in her-laws’ home where she lost her life was, thus, held to be relevant.

The courts have modified the rigid rule as to direct evidence by a number of exceptions:

  • Res gestae (Sec. 6) — A statement made by a person who is not a witness becomes relevant and admissible if the statement is part of the transaction in question.
  • Admissions and confessions– An admission of liability or confession of guilt which takes place outside the court through the testimony of a witness to whom the admission or the confession was made. Such a witness is not a witness of fact.
  • Statements relevant under Sec. 32 – These are mostly the statements of deceased person or persons who are not available as witnesses. Such statements include dying declarations, declaration as to public rights, etc. .
  • Entries in books of account kept in the course of business (Sec. 34); Entries in public registers (Sec. 35).
  • Statements of experts in treatises- According to Sec. 60, proviso, the opinion of an expert can be cited in his absence if it has been expressed in a book form and the expert himself is either dead or is otherwise unavailable as a witness.
  • Sometimes, a slanderous statement made by a third person and heard by the witness will be relevant, not regarding the truth of the contents of the statements, but regarding the fact of the statement being made.

[B] Documentary Evidence (Secs. 61-90)

Documentary evidence means all documents produced for the inspection of the court. Documents are denominated as ‘dead proof,’ as distinguished from witnesses who are said to be ‘living proofs.’ Documentary evidence is superior to oral evidence in permanence, and in many respects, in trustworthiness.

Sec. 61. Proof of contents of documents- The contents of documents may be proved either by primary or by secondary evidence.

There is no third method of proving the contents of a document. The contents need not be proved by the author of document, and can be proved by any other evidence.

In the absence of the documentary evidence which could have been available, the plaintiff was not allowed to rest his case on oral evidence which was against the record produced by the defendants (Banarsi Das v Maharaja Sukhjit Singh AIR 1998 SC 179).

Primary Evidence (Sec. 62)

The expression ‘primary evidence’ includes:—

  • The original document itself produced for the inspection of the court.
  • Where a document is executed in several parts (e.g. duplicate, triplicate- required when there are several partners), each part is primary evidence of the document. Where a document is executed in counterparts, each counterpart is primary evidence against the party signing it (Explanation 1).

For example, in the case of a cheque, the main cheque is signed by the drawer so that it is a primary evidence against him, and the counterfoil may be signed by the payee of the cheque so that it will be a primary evidence against the payee. Similar is the case of patta (executed by lessor/ landlord) and the qabuliat or muchilka (executed by lessee/ tenant).

  • Where a number of documents are all made by one uniform process, as for example, by printing, lithography or photography, each is primary evidence of the contents of document. But, where they are all of copies of a common original, they are not primary evidence of the contents of the original (Explanation 2).

Primary evidence is the best or highest evidence, or in other words, it is the kind of proof which, in the eyes of the law, affords the greatest certainty of the fact in question. Primary evidence of a transaction, evidenced by writing, is the original document itself, which should be produced in original to prove the terms of the contract, if it exists and is obtainable.

Secondary Evidence (Sec. 63)

The expression ‘secondary evidence’ includes:-

  • Certified copies of the original document (i.e. public documents certified by a public officer).
  • Copies which are made from the original by mechanical processes (e.g. printing, lithography, photography), which in themselves assure the accuracy of the copy; and copies compared with such copies (e.g. a photograph of an original, a carbon copy).

A Photostat copy of a document is admissible as secondary evidence ii it is proved to be genuine; it has to be explained as to what were the circumstances under which the Photostat copy was preferred and who was in the possession of the original document at the time its photograph was taken. It can be permitted to be given in evidence when it is proved that the original document was in possession of adversary (Ashok v Madho Lal AIR 1975 SC 1748; Govt. of A.P. v karri Chinna Venkata Reddy AIR 1994 SC 591).

An uncertified photocopy of a Government order cannot be given in secondary evidence (Union of India v Nirmal Singh AIR 1987 All 83). Generally speaking, “copy of a copy” is not admissible as secondary evidence but the copies prepared by a mechanical process and copies of a copy compared with the original are secondary evidence.

  • Copies made from or compared with the original. If a copy is prepared word-to-word from the original it is secondary evidence.
  • Counterpart of a document as against the party who did not sign it. Thus, a patta will be a secondary document against the lessee (tenant), as he did not execute it; and qabuliat will be a secondary document against the landlord, as he did not execute it.
  • Oral account of the contents of a document given by a person who has himself seen (i.e. read) the document. An oral account of a copy compared with the original is not a secondary evidence.

Proof by primary evidence (Sec. 64)

According to Sec. 64, a document must be proved by its primary evidence except in the cases hereinafter mentioned.

When secondary evidence relating to documents may be givens (Sec. 65)

In the following cases, the secondary evidence may be given of the existence, condition, or contents of a document:

  • When the original is shown or appears to be in the possession or power of a person against whom the document is sought to be proved (adversary party), or of any person out of reach of or not subject to the process of court, or any person legally bound to produced it, and although due notice has been given to him in accordance with the terms of Sec. 66, he does not produce It.
  • When the existence, condition or contents have been proved to be admitted in Writing by the party against whom the document is to be proved.
  • 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, ***** it in reasonable time.
  • When the original is of such a nature as not to be easily movable (e.g. bulky documents).
  • When the original is a public document within the meaning of Sec. 74.
  • When the original is a document of which the Evidence Act or any other law of the country permits certified copies to be given in evidence.
  • When the original consists of numerous accounts or other documents which cannot be conveniently examined in the court and the fact to be provided is the ‘general result’ of the whole collection.

It may be noted that secondary evidence of the contents of a written instrument cannot be given, unless there is some legal excuse for non-production of the original evidence). Further, secondary evidence can only be given when the primary evidence or the document itself is admissible. Secondary evidence cannot be given of a document when the original is found to be inadmissible. If a deed of gift is inadmissible in evidence for want of registration, no secondary evidence of the deed can be given in a suit to recover the gifted property.

Where the document is in the possession of a party who does not (even after notice) produce it, or when the original has been lost or destroyed or when it is bulky, any kind of secondary evidence of the contents can be given. When the contents of document have been admitted by the party against whom it has to be proved, his written admission can be given as a secondary evidence of document. In case of public documents, only certified copies can be given.

Call records of cellular phones are stored in huge servers, which cannot be easily moved and produced in courts. Hence, secondary evidence of such records should be allowable under Secs. 63 and 65 [State (NCT of Delhi) v Navjot Sandhu (2005) 11 SCC 600].

Objection as to secondary evidence when can be raised

Objection must be taken at admission and not at a later stage [Dayamathi Bai v K.M. Shaffi (2004) 7 SCC 107]. Objection can be classified as: (i) objection that the document sought to be proved is itself inadmissible, and (ii) objection not directed against the admissibility of document but against the mode of proof on the ground of irregularity or insufficiency.

Objection under(i) ground can be raised even after the document has been marked as an exhibit or even in appeal or revision. Objection under (ii) ground can be raised when the evidence is tendered but not after the document has been admitted in evidence and marked as an exhibit [R.V. Venkatachala Gounder v A. Viswearaswami (2003) 8 SCC 752].

Secs. 65A/ 65B (Admissibility of Electronic Records in Evidence)

Secs. 65A and 65B have been added by the Information Technology Act, 2000. Sec. 65A lays down that the contents of electronic records may be proved in accordance with the provisions of Sec. 65B.

Sec. 65B lays down that “notwithstanding anything contained in this Act, information in an electronic record which is printed on a paper, stored, recorded or copied in a computer shall be deemed to be a document and shall be admissible in any proceedings (without further proof or production of the original) as evidence of the contents of the original or of any fact stated therein of which direct evidence would be admissible.”

It is further laid down that the following conditions have to be satisfied in relation to a “computer output”:

  • Information was produced during the regular course of activities by the person having lawful control over the computer’s use.
  • Information has been regularly fed into the computer in the ordinary course of the said activities.
  • Throughout the material part of the said period, the computer was operating properly, or the improper operation was not such as to affect the electronic record or the accuracy of its contents.
  • Information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of activities.

Sec. 65B then lays down that for the purpose of evidence, a certificate identifying the electronic record containing the statement and describing the manner in which it is produced by a computer and satisfying the conditions mentioned above, and signed by an officer in charge of the operation or management of the related activities, shall be the evidence of any matter stated in the certificate; it Shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

 

EVIDENCE ACT

 

  1. Oral evidence under section 60 of Evidence Act may be
    • direct only
    • hearsay
    • both (a) & (b)
    • either (a) or (b).

 

  1. Contents of a document under section 59 of Evidence Act
    • can be proved by oral evidence
    • can not be proved by oral evidence
    • may or may not be proved by oral evidence
    • can only be proved by oral evidence under the order of the court.

 

  1. Contents of a document may be proved under section 61 of Evidence Act
    • by primary evidence
    • by secondary evidence
    • either by primary or by secondary evidence
    • Only by primary evidence & not by secondary evidence.

 

  1. Secondary evidence of a document means
    • copies of that document
    • oral account of the contents of the documents
    • both (a) & (b)
    • only (a) & not (b).

 

  1. Secondary evidence of a document is admissible as a substitute for
    • admissible primary evidence
    • inadmissible primary evidence under certain circumstances
    • inadmissible primary evidence under all the circumstances
    • Both (a) & (b) are correct.

EVIDENCE

PRELIMINARY

MAINS

  1. How writing on a document or execution of document can be proved in court?
  2. A contracts in writing with B for delivery of wheat upon certain terms. The contract mention the facts that B had paid A the price of other wheat contracted for verbally on another occasion . Oral evidence is offered that no payment was made for the other wheat . Is the evidence admissible?

 

(SECS. 79-90)

Secs. 79-90 are founded on the maxim omnioprosumuntur rite esseacta which means that ‘all acts are presumed to be rightly done’. But, these presumptions are not conclusive but only prima facie presumptions and if the documents are incorrect, evidence can be led to disprove them.

Presumptions under Secs. 79-85 and Sec. 89 are “compulsory” one in the sense that the judge is bound to raise the presumption in question.The presumptions under Secs. 86-88 and Sec. 90 are in the “discretion” of the court in the sense that the court may or may not draw presumptions.

Sec. 79 (Presumption as to Genuineness of Certified Copies)

According to Sec. 79, when a certified copy of a document is producedbefore the court as evidence of the original the law presumes that thecopy is a genuine reproduction of the original. However, it is necessarythat the copy should have been certified by an officer of the Central/State Government (including an officer in State of J &K authorized byCentral Govt.) and the document should be substantially in the formprescribed by law and should also purport to be executed in that manner.

The court also presumes that the officer who signed or certified thedocument held the official character which he claims in such paper. It isnot necessary to call such an officer in evidence.

Sec. 80 (Presumption as to Documents produced as Records of Evidence)

According to Sec. 80, when a person has appeared before a Court of lawand has recorded his testimony or confession (taken in accordance with lawand purporting to be signed by a judge, etc.) and his statement beingrelevant in a subsequent case, the court shall presume the genuineness ofsuch certified copy and that such evidence, statement, etc. was duly recorded.

This section is based on the principle that acts presumed to havebeen done rightly and regularly in course of judicial proceedings will beaccepted in evidence.

Sec. 81 (Presumption as to Gazettes, Newspapers, Private Acts of Parliament)

Under Sec. 81, Official Gazettes, newspapers or journals, copies of theprivate Act of Parliament of U.K., and other documents kept in accordancewith the law are presumed to be genuine.

In spite of this presumption, it has been held that newspaper reportsdo not constitute admissible evidence of their truth. The presumption ofgenuineness attached under Sec. 81 to a newspaper report cannot betreated as a proof of the facts reported therein [Laxmi Raj Shetty v State of T.N. AIR was SC 1274; B. Singh (Dr.) v Union of India (2004) 3 SCC 363]. The statement of a fact contained in a newspaper is merely a‘hearsay’ and is, therefore, inadmissible in evidence (Ramswaroop v State of Rajasthan AIR 2002 Raj 27).

Sec. 81A (Presumption as to Gazettes in Electronic Forms)

The Court shall presume the genuineness of every electronic recordpurporting to be the Official Gazette,or purporting to be electronicrecord directed by any law to be kept by any person in the form requiredby law and is produced from proper custody.

Sec. 82 (Presumption as to Document admissible in England without proof of seal or signatures)

Under Sec. 82, when a document is produced before a court whichaccording to the laws of England or Ireland would be admissible withoutproof of seal, signature, etc. the court shall presume that such seal, etc.is genuine and also that the person signing the document held at the timeof signing it, the judicial/ official character which he claims.

Sec. 83 (Presumption as to Maps or Plans)

According to Sec. 83, maps or plans purporting to be made with theauthority of the Central/ State Government arc presumed to be accurate.But, maps or plans made for the purpose of any cause must be provedto be accurate.

Sec. 84 (Presumption as to Collection of Laws and Reports of Decisions)

According to Sec. 84, the Court presumes the genuineness of every book,printed or published under the authority of the Government of anycountry, which contains laws of that country. Similar is the case with abook published by the State which contains report of decided cases.It may be noted that Sec. 57 authorizes the Courts to take judicialnotice of the existence of all laws and statutes in the territory of Indiaand U.K. Sec. 74 recognizes statutory records to be ‘public records’. Sec.78 lays down the method of proving the Statutes/ Acts passed by thelegislature.

Sec. 85 (Presumption as to Power of Attorney)

A ‘power of attorney’ is a document by which an agent isgiven the powerto act for his principal. According to Sec. 85, a power of attorney dulyexecuted before and authenticated by a notary public or any judge/court/Indian Consul/Vice-Counsel/representative of Central Government arepresumed to be genuine. The presumption also applies to documentsauthenticated by notaries functioning in other countries.

Sec. 85A/ 85B/ 850 (Presumption as to Electronic Agreements, Records, etc.)

Sec. 85A raises a presumption as to ‘Electronic Agreements’: The Courtshall presume that every electronic record purporting to be an agreementcontaining the digital signatures of the parties was so concluded by affixingthe digital signature of the parties.

Sec. 85B raises a presumption as to a ‘secure electronic record’(that it has not been altered since the specific point of time to which thesecure status relates), and a ‘secure digital signature’ (that it is affixed bysubscriber with the intention of signing or approving the electronic record).Except in these cases, there is no presumption relating to authenticity, etc.of the electronic record or any digital signature. Sec. 85C raises apresumption as to ‘Digital Signature Certificates’.

Sec. 86 (Presumption as to Certified Copies of Foreign Judicial Record)

Under Sec. 86, the court is given the judicial discretion to presume thatthe certified copies offoreign judicial records are genuine.

Sec. 87 (Presumption as to Books, Maps and Charts)

According to Sec. 87, when books, maps, charts, etc. are produced beforethe Court in proof of a fact in issue or a relevant fact, the Court maypresume that any such book, map, etc. was written or published by theperson whose name is shown as that of the author or publisher and waspublished at the place where it was published.

Sec. 88 (Presumption as to Telegraphic Messages)

According to Sec. 88, in reference to telegraphic messages, the Court maypresume that the message delivered to the addressee corresponds with themessage handed over to the post office and that the message was meantfor the person whom it is purported to be delivered. But, the court shallnot make any presumption as to the sender of the message since telegraphicmessages can be sent by unauthorized persons. The court may treattelegraphic messages received, as if they were the ‘originals’ sent. Atelegram is a primary evidence of the fact that the same was delivered tothe addressee on the date indicated therein.

Sec. 88A (Presumption as to Electronic Messages)

The court may presume that an electronic message forwarded by theoriginator through an electronic mail server to the addressee to whom themessage purports to be addressed corresponds with the message as fedinto his computer for transmission; but the court shall not make anypresumption as to the person by whom such message was sent.

Sec. 89 (Presumption in relation to Documents Not Produced)

The court shall presume that every document, called for and notproduced after notice to produce, was attested, stamped and executed inthe manner required by law.

Sec. 90 (Presumption as to Documents Thirty Years Old: Ancient Documents)

Sec. 90 lays down that where a document is purported or proved to be30-year old and is produced from any custody which the court in particularcase considers proper, the court may presume that signature and everypart of document is in that person’s handwriting, and in case of documentattested or executed that it was duly attested or executed by the personby whom it purports to be attested or executed.

The basis of the section is that as time passes, the executants,vendors, witnesses may not be available to prove title, etc. The documents which are thirty years old, prove themselves. It may be noted that the presumptionrelates to the execution of the document (signature, attestation, etc.), inother words, its genuineness, but not to the truth of its contents (Ramakrishna v Gangadhar AIR 1958 Qri 26). Also, there is no presumption that theexecutants had the authority to do or not what the document purportsto do. Further, the presumption can be raised only with reference tooriginal documents and not to copies thereof.

Explanation to Sec. 90: According to the explanation, “proper custody”means: (a) the place where the document would normally be; (b) wasunder the care of a person with whom it would naturally be; (c) anycustody which is proved to have had legitimate origin; and (d) under thecircumstances of the case the custody from which the instrument isproduced is probable.

Illustrations

  • A has been in possession of landed property for a long time. Heproduces from his custody deeds relating to the land, showing histitle to it. The custody is proper.
  • A produces deeds relating to landed property of which he is themortgagee, the mortgagor is in possession. The custody is proper.
  • A, a connection of B, produces deeds relating to land in B’spossession which were deposited with him by B for safe custody.The custody is proper.

Because a document purports to be an ancient document and to comefrom proper custody, it does not follow that its genuineness is to beassumed. If there are reasonable grounds for suspecting its genuineness,and the party relying upon it fails to satisfy the court of its due execution,its genuineness will not be presumed. The presumption under Sec. 90 isof discretionary nature; the court may refuse to draw it and require thedocument to be proved in the ordinary manner. A party who has attemptedto prove the document by direct evidence cannot afterwards rely on thepresumption [Chandabai v Anwarkhan AIR 1997 M.P. 238].

In Gangamma v Shivalingaiah (2005) 9 SCC 359, the Apex Courtheld: Sec. 90 nowhere provides that authenticity of the recitals containedin the document is to be presumed. Even when the formal execution ofthe document is proved, this by itself does not lead to the presumptionthat the recitals contained in the document are also correct. It is open tothe parties to raise a plea to the contrary within the limits permitted underSecs.91 and 92.

Sec. 90A (Presumption as to Electronic Records Five Years Old)

Where any electronic record, purporting or proved to be 5-year old, isproduced from a proper custody, the court may presume that the digitalsignature which purports to be the digital signature of any particularperson was so affixed by him or any person authorized by him in thisbehalf.

7

Exclusion of Oral by Documentary Evidence

Where both oral as well as documentary evidence are admissible, thecourt may go by the evidence which seems to be more reliable. There isnothing in the Act requiring that the documentary evidence should prevailover the oral evidence. The provisions as to exclusion of oral bydocumentary evidence are based on the rule of ‘best evidence’. Wherethe fact to be proved is embodied in a document, the document (primary or secondary evidence of it) is the best evidence of the fact. The maximof law is whatever is in writing must be proved by the writing. Secs.91and 92 of the Evidence Act incorporate this principle.

Best Evidence Rule

The main object of the law of evidence is to restrict the investigationmade by courts within the bounds prescribed by general convenience.Thus, the evidence must be confined to the matter in issue, hearsayevidence must not be admitted, and, the best evidence must be given inall cases.

The ‘best evidence’ rule means that the best evidence of which thecase in its nature is susceptible must always be produced. The rule doesnot require the production of the greatest possible quantity of evidence,but it is framed to prevent the introduction of any evidence which raisesthe supposition that there is better evidence behind it, in possession orunder control of the party by which he might prove the same fact, andwhich is withheld by the party.

It is one of the cardinal rules of the law of evidence that the bestevidence in possession of the party must always be given, i.e., if a factis to be proved by oral evidence, the evidence must be that of a personwho had directly perceived the fact to which he testifies. Otherwise, itwould be impossible to test, by cross-examination, the truth of the testimony;and the law rejects the evidence which cannot adequately be tested. Thus,hearsay evidence is not evidence; it is only in exceptional cases that suchevidence is admissible.

Similarly, where the transaction sought to be proved is primarily evidenced by a writing the writing itself must be produced or accountedfor. It is only in the absence of best or primary evidence (originaldocument) that the court will accept what is known as secondary evidence(copy of the original document). Secondary evidence will never be receiveduntil the party tendering it proves that it is out of his power to obtainthe best evidence.

Further, it is a well-established rule of law that whenever writteninstruments are involved, any other evidence (e.g. oral) is excluded frombeing used, either as a substitute for such instrument or to contradictsuch instrument (Rule of exclusion of oral evidence by documentaryevidence). The written instruments are entitled to more credit than parole(or oral) evidence. However, in certain exceptional cases, oral evidencecan be given regarding the documents.

Evidence of Terms of Contracts, Grants, etc. Reduced to Document (Sec.91)

According to Sec. 91, “when the terms of a contract, grant or some otherdisposition of property is reduced to the form of a document or isrequired by law to be reduced to a document, no evidence shall be givenfor the proof of the terms of such contract, etc. except the primary orsecondary evidence of the writing itself”.

This section merely forbids proving the contents of a writingotherwise than by writing itself. It incorporates rule of “best evidence”which in reality declares a doctrine of substantive law, namely, that in thecase of a written contract all proceedings and contemporaneous oralexpressions of the thing are merged in the writing or displaced by it [Roop Kumar v Mohan Thedani (2003) 6 SCC 595].

The section extends to both types of transactions, namely, whichhave voluntarily been made by writing and for which writing is compulsory;it does not apply to oral contracts. Thus, writing becomes its own evidenceand excludes all other kinds of evidence. The writing excludes oral evidencealtogether. The matters required by law to be in writing are public andjudicial records such as judgments, examination of witnesses, deeds ofconveyance of lands such as sale-deeds or mortgage-deeds of Rs.100 ormore, a partition-deed, etc. Where registration of a document is compulsoryunder the Registration Act, the document if unregistered will be inadmissiblein evidence and no other evidence of the contents of it can be received.

For example, A leases his house to B via a written lease. Later, A files a suit for arrears of rent and for ejectment. A alleges that thetenancy was from month to month, while B contends that it ran fromyear to year. In this case, the terms of the contract between the partieshaving been reduced to document, none of them will be allowed toadduce oral evidence in the court. The document will have to be producedin the court.

A sues B for the possession ofa certain house alleging that itbelongs to him and B is a trespasser. B contends that the house belongsto him and alleges that there was previous civil litigation between thesame parties for the same house and it was decided that the housebelongs to him. The contents of that previous judgment must be provedby the copy of the judgment. Oral evidence is shut out.

It may be noted that an oral account of the contents of documentis not an oral evidence. Further, the rule contained in Sec.91 applies tothe terms and not to the factum (or existence) of a contract, and evidencein proof of a factum of a contract is not excluded.

Exception 1, Sec.91 – Where the appointment of a public officer isrequired by law ‘ ‘ i to be made by writing and the question is whether anappointment was made, if it is shown that a particular person has actedas such officer, that will be sufficient proof and the writing need not beproved. When the question is whether A is a High Court Judge, thewarrant of appointment need not be proved, the only fact that he isworking as a High Court Judge will be proved. Similar is the case whenA appears before the court as a witness and says that he is a civil surgeon.

Exception 2, Sec.91– Wills admitted to probate in India may be provedby the probate. The document containing the will need not be produced.The word ‘probate’ means the copy of a will certified under the seal ofthe court of competent jurisdiction with a grant of administration to theestate of the testator.

Explanation 1, Sec.91 – This section applies equally to cases in which thecontracts, etc. are contained in one document or more than one. If acontract is contained in several letters, all the letters must be proved[Illust. (a)].

Explanation 2, Sec.91– Where there are more originals than one, oneoriginal only need be proved.

Illustrations: If a contract is contained in a bill of exchange, the billof exchange must be proved. (c) If a bill of exchange is drawn in a setof three, one only need be proved.

Explanation 3, Sec.91– Where in addition to the terms of the contract,etc. a document refers to any other fact also, as to that fact oral evidence, is always allowed. For example, a contract for sale of goods mentions thatthe goods supplied on earlier occasions have been paid for. Since this isnot a term of the contract, it is an extraneous fact and, therefore, oralevidence can be offered to show that no such payment was ever made[Illust. (d)]. A gives B a receipt for money paid by B. Oral evidence isoffered of the payment. The evidence is admissible [Illust.(e)].

Exclusion of Evidence of Oral Agreement (Sec.92)

The provision in Sec. 91 is’fi1rther supplemented by Sec. 92 by providingthat once any such contract, grant or disposition has been proved by thewriting, then no evidence can be given of any oral agreement to contradictor change the terms of the contract. In other words, no oral evidencecan be given to qualify the terms of the document.

Sec. 92 precludes only the parties to the document and theirrepresentatives-in-interest from giving oral evidence concerning the contentsof document. Other parties (or strangers) are left free to give suchevidence. Further, evidence can be given of any oral agreement whichdoes not contradict, vary, add or subtract from the terms of the document.

It may be noted that Sec. 91 lays down a universal rule and is notconfined to the executant or executants of the document. It is after thedocument has been’ produced to prove its terms under Sec.91 that theprovisions of Sec.92 come into operation. Both the sections would beineffective without each other. Sec. 91 applies to both unilateral andbilateral documents, while Sec. 92 applies only to bilateral one (i.e. doesnot apply to third persons/persons). In Roop Kumar v Mohan Thedani(2003) 6 SCC 595, it was held that Secs.91 and 92 are based on therecognition of the jural act of integration in the case of written instrumentsand applies even to a third party seeking to establish a contract.

Suppose A borrows Rs.200 from B and executes a pronote inwhich the interest rate is given 1 per cent. B files suit for recovery ofthe principal and interest at the rate of 1 per cent. The pronote is filedand proved in the court. A wants to lead evidence to the effect that theinterest settled between the parties was ½ percent. Now, this evidencecannot be allowed as it contradicts the terms of the pronote.

The rationale behind Sec. 92 is that the parties having made acomplete memorial of their agreement, it must be presumed that theyhave put into writing all that they considered necessary to give fullexpression to their meaning and intention;further, the reception of oraltestimony would create mischief and open the door to fraud (RajkumarRajendra Singh v State of H.P. AIR 1990 SC 1833).

If, for example, a policy of insurance applies to ships leaving Calcutta.One of the ships is lost. It is sought to be proved that by an oralagreement the particular ship was excepted from the policy. Such evidenceis inadmissible [illustration (a) to Sec. 92]. Similarly, a written agreement topay a sum of money on a certain day cannot be contradicted by provingthat the day in question was changed by an oral agreement. A agreesabsolutely in writing to pay B Rs.1000 on 1stMarch 1873. The fact that,at the same time, an oral agreement was made that the money should notbe paid till the 31stMarch cannot be proved [illustration (b) to Sec. 92].

An estate called “Rampur Tea Estate” is sold by a deed whichcontains a map of the property sold. The fact that land not included inthe map had always been regarded as part of the estate and was meantto pass by the deed cannot be proved [Illust.(c)].

Exceptions – when Oral Evidence can be given regarding a Document

There are various exceptions to the general rule of exclusion of evidenceof oral agreement-

  • Validity of document (proviso 1, Sec. 92) – The evidence can begiven of any fact which would invalidate the document in questionor which would entitle a parry to any decree or order relating tothe document. The validity of a document may be questioned onthe grounds of fraud, intimidations, illegality, failure ofconsideration, mistake in fact or law.

For example, A enters into a written contract with B to work certainmines of B, upon certain terms. A was induced to do so by amisrepresentation of B’s as to their value. This fact may be proved [Illust.(d)]. A institutes a suit against B for the specific performance of acontract, and also prays that the contract may be reformed as to one ofits provisions – inserted by mistake. A may prove that such a mistake wasmade as would bylaw entitle to have the contract reformed [Illust.(e)].

The owner of a house borrowed a sum of money and executed a nominal sale-deed and rent note. She was allowed afterwards to provethat the documents were not intended to be acted upon and that the rentpaid by her represented interest on the loan (Gangabai v Chabbubai AIR1922 SC 20).

  • Matters on which document is silent (proviso 2, Sec. 92) – Evidencecan be given of an oral agreement on a matter on which the document is silent. But the oral agreement should not be inconsistent with the terms stated in the document. The separate oral agreement should be on a distinct collateral matter, althoughit may form a part of the transaction. In considering whether acase falls under this exception, the formality of the document isan important consideration. The more formal the document, thegreater will be the court’s reluctance to admit oral evidence.

The illustrations to Sec. 92 make clear the point. A written agreement, forexample, is silent as to the’ time of payment of the price. If there is anyoral agreement regarding this, it may be proved [Illust.(f)]. A sells B ahorse and verbally warrants him sound. A gives B a paper in these words:“Bought of A a horse for Rs.500”. B may prove the verbal warranty[Illust(g)]. Where a room is hired in a lodging on a fixed rent per monthby a written agreement, but the agreement does not make it clear whetherthe amount reserved was for lodging only or included boarding also. Ifthere was any oral agreement on the point the samemaybe proved [Illust. (h)].

In Brij Kishore v LakhanTiwari (AIR 1978 All. 374), the documentin question was one by which the existence of a deed was acknowledgedand it was on a stamp paper. The document was silent about the interestpayable and, therefore; oral evidence was offered on the point. Thequestion was whether the document was so formal as to shut out oralevidence. The court allowed the evidence.

The court observed: When the document is such that one mayreasonably believe that the entire terms and conditions agreed were soughtto be put into the document, then oral evidence should not be allowed.Generally speaking, mere acknowledgment of debt, even though stamped,cannot be deemed to be such a formal document as to incorporate allthe terms and conditions of the borrowing. It is basically an acknowledgmentof liability not mentioning the terms and conditions on which theborrowing was contracted. In that sense, it differs from a formal pronotewhich incorporates the terms and conditions of loan.

  • Condition precedent (proviso 3, Sec. 92) – The existence of anyseparate oral agreement constituting condition precedent to theattaching of any obligation under the document may be proved.This exceptionmeans that where there is a separate oral agreementthat the terms of a written contract are not to take effect untila condition precedent has been fulfilled or a certain event hashappened, oral evidence is admissible to show that as the eventdid not take place, there is no written agreement at all. This rulewould never apply to a case where the written contract has beenperformed or acted upon for some time.

If a receipt for payment has been sent on an oral understanding that thereceipt was to apply only when payment was made, this fact may beproved [Illust.(i)]. Similarly, where the parties to a promissory note payableon demand, orally agreed that payment would not be demanded for fiveyears, the court allowed the oral agreement to be proved (Naraindas v Papammal AIR 1967 SC 333). A and B make a contract in writing to takeeffect upon the happening of a certain contingency. The writing is leftwith B, who sues A upon it. A may show the circumstances under whichit was delivered [Illust.(j)].

  • Rescission or modification (proviso 4, Sec. 92) – Where after executinga document, the parties orally agree to treat it as cancelled or tomodify some of its terms, such oral agreement may be proved.However, where the contract is one which is required by law tobe in writing, or where it has been registered lawfully, then proofcannot be given of any oral agreement by which it was agreedeither to rescind the contract or to modify its terms.
  • Usages or custom (proviso 5, Sec. 92) – Under this exception, oralevidence is admissible to explain or supply terms in commercialtransactions on the presumption that the parties did not intendto put into writing the whole of their agreement, but tacitly(impliedly) agreed that their contract was to be interpreted orregulated by established usages and customs, provided they arenot inconsistent with the terms of such contract. Thus, oralevidence may be offered that by the custom of the trade theseller had to arrange for wagons (Bejoy Krishna v N.B. Sugar Mills Co. AIR 1949 Cal 490).
  • Relation of language to facts (proviso 6, Sec. 92) – Any fact maybe proved which shows in what manner the language of adocument is related to existing facts. This exception comes intoplay when there is latent ambiguity in a document i.e. when thereis a conflict between the plain meaning of the language used andthe existing facts. In such cases, evidence of the surroundingcircumstances may be admitted to ascertain the real intention ofthe parties. Thus, the conduct of the parties can also be takeninto account so as to find out what they might mean by theirwords.

Where, for example, a person transfers the whole of his property, butdoes not describe or state what his property is. In such cases the propertyto which the document relates can be proved by oral evidence. A makesa will of his property to his children. He does not name them. Evidencemay be given to prove as to who are his children. Oral evidence is alsoreceivable to throw light upon the nature of a document.

  • Appointment of a public officer (exception 1, Sec. 91) – See above.
  • Wills (exception 2, Sec. 91) – See above.
  • Extraneous facts (explanation 3, Sec. 91) – See above.

Case Law

In Sam Veeraswami v TalluriNarayya (AIR 1949 PC 32), the appellant soldsome property through a registered sale deed in 1932. It was an outrightsale. But simultaneously, there was an oral agreement for sale and rightto re-conveyance if sale price was repaid within five years. The questioninvolved in dispute is whether the document is a sale with or without rightto re-conveyance as per oral agreement and benefit of proviso to Sec.92 is available? According to operating part of Sec. 92, written agreementwill prevail over oral agreement. But proviso 2, Sec. 92 makes a difference.In this case, it is necessary to see whether oral agreement as to the re-conveyance of property sold, contradicts, varies, adds to or subtractsfrom the term of sale document. The answer lies in the truth of theagreement.

The real issue was whether the transaction of sale and re-conveyanceare a single transaction or two separate ones? There can be differentagreements of sale and then resale or re-conveyance relating to the samesubject-matter. The Privy Council held that, there were two differenttransactions. The determining factor is the ultimate shape of the agreementrather than the process by which it is reached. An oral stipulation maybe purely collateral to the written agreement which it has induced, and,both written as well as oral agreement can be separate transactions thoughtouching on a common subject-matter.

Such was the character of transactions in this case and the oralagreement did not contradict, vary and subtract from the terms of saledeed (if the agreement was in truth a mortgage the oral agreement wouldobviously contradict the terms of the sale deed). On the contrary, it leftthose terms and the interest passing thereunder to the purchaser entirelyunaffected. Can it then be said to have added to the terms of the saledeed? The words ‘adding to’ which are part of Sec. 92 must receive theirdue weight, but they do not suffice to exclude the oral agreement reliedon by the appellants. It is of course, literally correct to say that as theagreement for re-conveyance related to the lands sold, it added a furtherstipulation respecting those lands. That, however, is not an appropriatetest of the applicability of Sec. 92 which is concerned to defeat themodification of a particular document. It is not enough to ask if the oralagreement relates to what has been sold. To be excluded it must bear, insome one or more of the ways specified in the section, upon the termsof sale as contained in the instrument. To add a stipulation which is quiteunconnected with the terms of sale is not an addition of the kind struckat by the section. Thus, proviso 2 to Sec. 92 is applicable and oralagreement is a valid separate transaction which will prevail. The appellantswill succeed.

LEADING CASE: ROOF KUMAR v MOHAN THEDANI [(2003) 6 SCC 595]

Facts and Issue– In this case the scope and ambit of Secs.91 and92 were in issue. The jural positions of these two sections wasanalyzed by the court.

Before the High Court the parties agreed that the basicquestion which required consideration was whether relationshipbetween the respondent and the appellant was that of licensorand licensee or it was that of lessor or lessee. The Trial Judgehad held that the transaction between the respondent and appellantevidenced by an agreement dated 15-5-1975 amounts to licenceand not sub-letting. There was a finding recorded by the trialcourt to the effect that the appellant was a party to earlierejectment proceeding which was not factually correct. The HighCourt held that the agreement dated 15-5-1975 was entered intobetween them with mutual consent and the appellant-defendant signed the same voluntarily and out of his free will; it was nota sham document; was in fact acted upon; the appellant-defendantwas an accounting party in terms of the agreement.

The question was whether the particular document wasintended by the parties to cover certain transactions betweenthem and, therefore, to deprive of legal effect all other utterances.

Observations and Decision– The Apex Court held that the HighCourt was justified in rejecting the plea of sub-tenancy. It observedthat every jural act may have the following four elements:

  • the enaction or creation of the act;
  • its integration or embodiment in a single memorialwhen desired;
  • its solemnization or fulfillment of the prescribed forms, if any; and
  • the interpretation or application of the act to theexternal objects affected by it.

The first and fourth are necessarily involved in every jural act,and second and third may or may not become practicallyimportant, but are always possible elements. The integration ofthe act consists in embodying it in a single utterance or memorial- commonly, of course, a written one. When a jural act isembodied in a single memorial all other utterances of the partieson the topic are legally immaterial for the purpose of determiningwhat are the terms of their act. This rule is based upon anassumed intention on the part of the contracting parties, evidencedby, the existence of the written contract, to place themselvesabove the uncertainties of oral evidence and on a disinclinationof the courts to defeat this object.

The court cited Thayen’sPreliminary Law on Evidence (pp.397-398); Phipson on Evidence, 546 (7th Edn.); Wigmore’s Evidence,2406; Mckeivey’sEvidence, 294; Greenlear’s Evidence, 563, whereit is stated that one of the matters with which the best evidencerule is exclusively associated is the rule that when the contentsof a writing are to be proved, the writing itself must be producedbefore the court or its absence accounted for before testimonyto its contents is admitted.

The Apex Court observed: Sec. 91 relates to evidence ofterms of contract, grants and other disposition of propertiesreduced to form of document. It merely forbids proof of thecontents of a writing otherwise than by the writing itself; it iscovered by the ordinary rule of law of evidence. In Sec. 92, thelegislature has prevented the oral evidence being adduced for thepurpose of varying the contract as between the parties to thecontract; but, no such limitations are imposed under Sec. 91.Secs.91 and 92 apply only when the document on the face ofit contains or appears to contain all the terms of the contract.Sec. 91 is concerned solely with the mode of proof of adocument while limitations imposed by Sec. 92 relate only to theparties to the document. After the document has been producedto prove its terms under Sec. 91, provisions of Sec. 92 comeinto operation for the purpose of excluding evidence of any oralagreement or statement for the purpose of contradicting, varying,adding or subtracting from its terms. Secs.91 and 92 in effectsupplement each other. Sec. 91 would be inoperative without theaid of Sec. 92 and vice versa.

The two sections, however, differ in some materialparticulars. Sec. 91 applies to all documents, whether they purportto dispose of rights or not; whereas Sec. 92 applies to documentswhich can be described as dispositive. Sec. 91 applies todocuments, which are both bilateral and unilateral, unlike Sec.92, the application of which is confined to only bilateral documents.Both the sections are based on the “best evidence rule”, thusdeclaring a doctrine of substantive law. It would be inconvenientthat matters in writing made by advice and on consideration, andwhich finally import the truth of the agreement should becontrolled by the party’s memory. Even a third party if he wantsto establish a particular contract between certain others whensuch contract has been reduced to writing can only prove suchcontract by the production of such writing.

The grounds of exclusion of extrinsic evidence are: (i) toadmit inferior evidence when law requires superior would amountto nullifying the law, and (ii) when parties have deliberately puttheir agreement into writing, it is conclusively presumed, betweenthemselves and their privies, that they intended the writing toform a full and final statement of their intentions, and onewhich should be placed beyond the reach of future controversy,bad faith and treacherous memory.

This court in Gangabai v Chhabubai (AJR 1982 SC 20) andIshwarDassjain v SohanLal (AIR 2000 SC 426) with referenceto Sec. 92(1) held that it is permissible to a party to adeed tocontend that the deed was not intended to be acted upon, butwas only a sham document. The bar under Sec. 92 arises onlywhen the document is relied upon and its terms are sought tobe varied or contradicted. Oral evidence is admissible to showthat the document executed was never intended to operate as anagreement and that some other document was entered into betweenthe parties].

Comments– In IshawarDass Jain case (above), a mortgagor filed asuit for redemption. Oral evidence was sought to be given toprove that the mortgage deed, though executed, was not intendedto be acted upon and that it was a sham document executed onlyas a collateral security. Held that it would not amount to varyingor contradicting the terms of the document and would not behit by Sec.92.

In Parvinder Singh v Rena Gautam (2004) 4 SCC 794, it hasbeen held that oral evidence in departure from the terms of awritten deed is admissible to show that what is mentioned in thedeed was not the real transaction between the parties but that itwas something different. In R. Janakiraman v State (2006) 1 SCC697, the Apex Court clarified that Sec. 92 applies when a partyto the instrument seeks to disprove its terms, it does not applywhen anyone including a party to the instrument, seeks to establishthat the instrument itself is sham and fictitious, or nominal notintended to be acted upon. In Savitree Devi v State of Bihar (AIR1989 Pat. 327), the Patna High Court observed that effectivenessof a gift depends upon the fact that whether it has been actedupon. Hence, oral evidence can be given to show whether a giftdeed has been acted upon or not.

In S. Saktivel v M. VenugopalPillai (AIR 2000 SC 2633), thecourt observed that a disposition conferring title to property isrequired by law to be reduced to writing in order to ensure itsefficacy and effectiveness. The parties to the document cannotunder Sec. 92, proviso 4 be permitted to adduce oral evidenceto prove a subsequent agreement which has the result ofmodifying the written document especially when the documenthas been registered.

In Ramachandran v Y. ThevaNesomAmmal (AIR 2003 Mad.262), the sale-deed of property mentioned an amount ofconsideration. The vendor was not allowed to prove that realconsideration was agreed to be much more than what wasmentioned. In Bishwanath Prasad Singh v Rajendra Prasad (2006) 4SCC 432, in a sale of property with the condition of re-conveyancewithin a specified time, the seller failed to exercise the optionwithin the time delimited. He was not afterwards allowed to saythat the transaction was in essence a mortgage and he should beallowed to redeem it.

AMBIGUOUS DOCUMENTS

When a document is ambiguous i.e. either its language does not show theclear sense of the document or its application to facts creates doubts, howfar oral evidence can be allowed to clarify the language or to remove thedefect? Sections 93-98 lay down the rules as to interpretation of documentswith the aid of such ‘extrinsic evidence’ (evidence from the outside).

Ambiguities are of two kinds: ambiguitas patens i.e. patent ambiguity(Secs.93-94) and ambiguitaslatens i.e. latent ambiguity (Secs.95-97). Apatent ambiguity means a defect which is apparent on the face of thedocument. In such cases the principle is that oral evidence is not allowedto remove the defect. A latent defect implies a defect which is notapparent on the face of the record, but is in the application of thelanguage (used in the document) to the facts stated in it. The generalprinciple is that evidence can be given to remove such defects.

Sec. 93 (Exclusion of Evidence to Explain or Amend Ambiguous Document)

“When the language used in a document is, on its face, ambiguous ordefective, evidence may not be given of facts which would show itsmeaning or supply its defects.”

Illustrations: (a) A agrees, in writing, to sell a horse to B for Rs.1,000 orRs.1,500. Evidence cannot be given to show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of factswhich would show how they were meant to be filled.

The reason for the exclusion of evidence in such cases is that thedocument being clearly or apparently defective, this fact must be orcould’ve been known to the parties and if they did not care to removeit then it is too late to remove it when a dispute has arisen.

If the document had mentioned no price at all, oral evidence ofthe price could be allowed under Sec. 92 (2ndproviso). While no extrinsicevidence can be given to remove patent defect, the court may, if it ispossible, fill up the gaps or blanks in a document with the help of theother contents of the document (e.g. where a lease deed left blanks at theplace of date, but in mother part it said that the first installment of rentwould be paid on a certain date).

Sec. 93 deals with the rules for construction of document with thehelp of extrinsic evidence or in other words with the interpretation ofdocuments by oral evidence.

Sec. 94 (Exclusion of Evidence against Application of Document to Existing Fact)

“When language used in a document is plain in itself, and when it appliesaccurately to existing facts, evidence may not be given to show that it wasnot meant to apply to such facts.”

Illustration: A sells to B, by deed “my estate at Rampur containing 100bighas.” A has an estate at Rampur containing 100 bighas. Evidence maynot be given of the fact that the estate meant to be sold was one situatedat a different place and of a different size.

Sec. 95 (Evidence as to Document Unmeaning In Reference to Existing Facts)

According to Sec. 95, when the language of a document is plain but inits application to existing facts it is meaningless, evidence can be given toshow how it was intended to apply to those facts. It is based on themaxim falsademonstratio non necet.

Illustration: A sells to B, by deed, “my house in Calcutta”. A had no housein Calcutta, but it appears that he had a house at Howrah, of which Bhad been in possession since the execution of the deed. These facts maybe proved to show that the deed related to the house at Howrah.

Sec. 95 is an instance of latent ambiguity. According to ‘Stephen’sDigest, evidence to show that common words, whose meaning is plain,not appearing from the contract to have been used in a peculiar sense,have been in fact so used, is not admissible. In North Eastern Railway v Hastings (1900) AC 260, it was held that written instruments if they areplain and unambiguous, must be construed according to the plain andunambiguous language of the instruments themselves.

Sec. 96 (Evidence as to Application of Language which can apply to One only of Several Persons)

According to Sec. 96, when the language of a document is clear and isintended to apply to only one thing or person, but in its application to theexisting facts it is difficult to say to which particular thing or person it wasintended to apply, evidence can be offered to clarify this matter.

Illustrations: (a) A agrees to sell to B, for Rs.1,000 “my white horse”. Ahas two white horses. Evidence may be given of the facts which showwhich of them was meant.

(b) A agrees to accompany B to Hyderabad. Evidence may be givenof facts showing whether Hyderabad in the Deccan or in the Sind wasmeant.

Where a pronote mentioned a date according to the local calendarand also according to the international calendar, the evidence could beoffered to show which date was meant. In one case, a Vakalatnama didnot contain the name of the pleader after the word “Mr.” in the printedform but bore the signature of the party as well as the pleader. Held thatthe ambiguity in the document was not patent but latent which could becleared up by extrinsic evidence under Sec. 96.

Sec. 97 (Evidence as to Application of Language to One of Two Sets of Facts)

According to Sec. 97, when the language of a document applies partly toone set of facts and partly to another, but does not apply accurately toeither, evidence can be given to show to which facts the document wasmeant to apply.

Illustration: A agrees to sell to B “my land at X in the occupation of Y.”A has land at X, but not in the occupation of Y, and he has land in theoccupation of Y, but it is not at X. Evidence may be given of factsshowing which he meant to sell.

Sec. 98 (Evidence as to Meaning of illegible Characters, etc.)

According to Sec. 98, evidence may be given to show the meaning ofillegible or not commonly intelligible characters of foreign, obsolete,technical, local and provincial expression, of abbreviations and of wordsused in a peculiar sense.

Illustration: A, a sculptor, agrees to sell to B, “all my models”, A has bothmodels and modelling tools. Evidence may be given to show which hemeant to sell. Thus, oral evidence is permissible for the purpose ofexplaining artistic words and symbols used in a document.

Sec. 99 (Evidence by Non-Parties)

“Persons who are not parties to document, or their representative-in-interest, may give evidence of any fact tending to show a contemporaneousagreement varying the terms of the document”. It may be noted that theparties to a document or their representative-in-interest cannot give evidenceof a contemporary agreement varying the terms of the document (Sec.92). But, Sec. 99 provides that a third party can give evidence of suchan oral agreement if he is affected by it.

Illustration: A and B make a contract in writing that B shall sell A certaincotton, to bepaid for on delivery. At the same time, they make an oralagreement that 3 months’ credit shall be given to A. This could not beshown as between A and B, butit might be shown by C, if it affectedhis interests.

Sec. 100 (Saving of Provisions of Indian Succession Act relating to Wills)

“Nothing in this Chapter contained shall be taken to affect any of theprovisions of the Indian Succession Act (X of 1865) as to the constructionof wills.”

It may be noted that Indian Succession Act, 1865 has been replacedby the Act of 1925.

 

EVIDENCE

PRELIMINARY

  1. Secondary evidence is admissible
    • where the non-production of primary evidence has not been accounted for
    • where the non-production of primary evidence has been accounted for
    • irrespective of whether the non-production of primary evidence has been accounted for or not
    • both (a) & (c) are correct.
  2. Oral account of the contents of a document is admissible
    • when given by a person who has seen & read the document
    • when given by a person who has seen but not read the document
    • when given by a person to whom the document was read over
    • when given by any of the above.
  3. A document required by law to be attested can be proved under section 68 of Evidence Act only
    • by calling both the attesting witnesses
    • by calling at least one of the attesting witnesses
    • by calling none of the attesting witnesses but by calling some other person who has the knowledge of the contents
    • all of the above are correct.
  4. The calling of at least one attesting witness to prove a document under section 68 is not necessary
    • when the document other than a will is registered under the Indian Registration Act, 1908
    • when the document including Will is registered under the Indian Registration Act, 1908
    • when the document irrespective of whether it is a Will, is registered under the Indian Registration Act, 1908
    • both (b) & (c) are correct.
  5. A will is required to be proved by calling at least one attesting witness
    • when it is registered
    • when it is unregistered
    • when it is admitted
    • all of the above.
  6. Public documents are mentioned in
    • section 72 of Evidence Act
    • section 73 of Evidence Act
    • section 74 of Evidence Act
    • section 75 of Evidence Act.
  7. Documents which are not covered under section 74 of Evidence Act are called
    • semi-public documents
    • quasi-public documents
    • private documents
    • all the above.
  8. Maxim ‘omnia proesumuntur rite esse acta’ means
    • all acts are presumed to be rightly done
    • all acts are presumed to be not rightly done
    • all acts are presumed to be wrongly done
    • all acts are presumed to be not wrongly done.
  9. Admissibility of electronic record has been prescribed under
    • section 65 of Evidence Act
    • section 65A of Evidence Act
    • section 65B of Evidence Act
    • section 66 of Evidence Act.
  10. Principle of ‘onmia proesumuntur rite esse acta’ is contained in
    • section 78 of Evidence Act
    • section 79 of Evidence Act
    • section 80 of Evidence Act
    • section 81 of Evidence Act.

BURDEN OF PROOF

MAINS QUESTIONS

Ques.1. On whom does lie the burden of proof in criminal cases? Is the standard of proof in civil and criminal cases the same?

Ques.2 What are the rules of burden of proof? What is the nature of burden of proof on an accused under Section 105 of the Evidence Act?

 

BURDEN OF PROOF

The burden of proof means the obligation to prove a fact. The strict meaning of the term burden of proof (onus probandi) is this, that if no evidence is given by the party on whom the burden is passed the issue must be found against him.

The word “burden of proof” has not been defined in Evidence Act. In criminal case, It is accepted principle of criminal jurisprudence that burden of proof is always on prosecution. It never changes. This conclusion is derived from fundamental principle that, the accused should be presumed to be innocent till he is proved guilty beyond reasonable doubt and accused has got right to take benefit of some reasonable doubt.

Section 101 of the evidence act, illustrates the burden of proof in the sense of proving a case. It lays down that whoever wants a court to give judgment in his favour as to any legal right or liability dependent on the existence of some facts, must prove the existence of those facts. The burden of proving a case remains throughout the entire case on the party on whom the pleadings originally place it. It never shifts, the party, whether, plaintiff or defendant, who substantially, asserts the affirmative of the issue has this burden of proof. It is on him at the beginning of the case; it continues on him throughout the case.

Dectrine of Reverse burden. In a large number of statutes, the doctrine of reverse burden is applied. Except those cases where parliamentary statutes apply the doctrine of reverse burden, the courts should not employ the same which per se would not only be violative of Art. 12 of Universal declaration of Human Rights (fair Trial) but also the fundamental right of an accused envisaged under Art. 21 of the constitution. Presumption of innocence is a human right. Such a legal principle cannot be thrown aside under any situation.

Burden of proof in civil cases:- In civil cases the burden of proof in the sense of proving a case is discharged by more preponderance of probability. The standard of proof applies in all the civil cases. The court has to strike the balance of probability. The accused need not prove his case beyond doubt. It is enough for him to show, like a civil case, preponderance of probabilities in his favour.

Burden of proof in criminal cases:- In criminal cases of the accused beyond a reasonable doubt. Also probable preponderance of probability could not do. In criminal cases, the burden of proof even in the sense of establishing a case is always on the prosecution. The prosecution has to stand on its own legs. It has to prove the guilt of the accused on its own evidence. The weakness of the defence will not help the prosecution.

On whom burden of proof lies (S.c102). S.102, Evidence Act deals with “burden of proof” in the sense of adducing evidence. It lays down that the burden of adducing the evidence rests upon the party who would fail if no evidence at all or no more evidence, as the case may be were adduced by either party. The burden of proof in the sense of the burden of introducing evidence may and constantly does shift duecing the trial.

Burden of Proof as to particular fact . There is difference between S. 101 & S. 103 under Section 101 the party has to prove all the facts which he alleges to entitle him to a judgment when the burden of proof is on him. But S. 103 provides for the proof of some one particular fact and not whole of the facts.

Burden of proving fact, to be proved to make evidence admissible . (S.104). Whenever it is necessary to prove any fact, in order to render evidence of any other fact admissible, the burden of proving that fact is on the person who wants to give such evidence, e.g; A wishes to prove a dying declaration by B. A must prove B’s death.

Burden of proving that case of accused comes within exceptions. (S. 105) . This section is an extension of S. 103. Now according to this section, the burden of proof is upon the accused of showing existence if any, of circumstances of which bring the offence charged within any of the general exceptions or proviso contained in any part of the penal code or any law defining the offence.

The meaning of this section is that it is not for the prosecution to examine all possible defences which might be put forward on behalf of an accused person.

NOTE:- Under English Law, there is distinction between the burden on the prosecution and burden on the accused. When the burden is on the prosecution,. The case must be proved beyond reasonable doubt. But when the burden is on the accused, he is not, in general, called upon to prove it beyond reasonable doubt, it is sufficient if he succeeds in proving a prime facie case for then the burden is shifted to the prosecution.

In India the same principle has been applied.

Burden of proving fact especially within Knowledge (S. 106) .

Section 106 lays down that where the subject matter of the allegation peculiarly lies within the knowledge of one party, that party must prove it, whether it may be of affirmative or negative character e.g. A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.

Principle of S. 107 & S. 108 . It has been laid down that under S. 107 of the evidence Act that if a person is proved to have been living within 30 years, it shall be presumed that he is alive and the burden of proving that he is dead lies on the person who affirms that he is dead.

Section 108 on the other hand lays down that when it is proved that a person is not heard of for 7 years by those who would have naturally heard of him if he had been alive the burden of proving that he is living is shifted to the person who affirms it.

In Darshan Singh and others v. Gujjar Singh J. who was not heard of for more than seven years cannot be considered to be dead only on the date on which the suit was filed. There is no presumption to exact date of death. The burden is on plaintiff to prove the date of death.

The burden of proof as to relation in cases of partners etc. (S. 109) .

This section declares that once it is shown that a person stands in relationship of partners of a firm, landlord and tenant, or principal and agent, it shall be presumed that they continue in such relationship unless it is proved that they had ceased to stand so.

The Burden of Proof as to ownership . (s.110). possession is prima facie proof of title S. 110, lays down that when the question is whether any person is the owner of any property and it is shown that one person is in possession of it, then it shall be presumed that the person in possession is the owner of it and burden of prove lies on the person who affirms that he is not the owner.

The proverb polio rest condition possidents embodies the principle of S. 110. This principle does not apply when the possession has been obtained by force or fraud.

Proof of good faith in transaction where are party is in relation of active confidence (S. 111). The burden of proving good faith of the transaction is on the party who is in a position of active confidence. E.g. the good faith of a sale by a client to attorney is in question in a suit brought by the client. The burden of proving good faith of the transaction is in the attorney.

The examples of such transactions are contracts from children, from wife to husband, from chela to Guru and from paradanashin lady, and so on. In all such transactions the dominating party is to prove that the transaction was fair and bonafide.

 

BURDEN OF PROOF

PRE-QUESTIONS

 

  1. Which of the following sections of the Indian Evidence Act deals with ‘on whom the burden of proof lies’?

(a) Section 99

(b) Section 100

(c) Section 101

(d) Section 102

  1. As per section 102 of the Indian Evidence Act, the burden of proof in a suit or proceeding lies on the person ………………

(a) Who files the case

(b) Who would fail if no evidence at all were given on either side

(c) Against whom it is filed

(d) None of the above

  1. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. This is contained in section ………….. ..of the Indian Evidence Act.

(a) Section 103

(b) Section 100

(c) Section 101

(d) Section 102

  1. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860) or within any special exception or proviso contained in any , other part of the same Code, or in any law defining the offence, is on the ……………

(a) Prosecution

(b) Accused

(c) Police

(d) None of the above

  1. Which of the following sections of the Indian Evidence Act deals with ‘burden of proving, that the case of the accused comes within exceptions’?

(a) Section 105

(b) Section 106

(c) Section 107

(d) Section 108

EVIDENCE ACT

                MAINS

  1. Write a short note on the followings
  • Hostile witness
  • Leading questions
  1. Can a witness be excused from answering a question on ground that it would criminate him?

Reliance upon testimony of hostile witness [Sub-Section (2)]. This sub section has been added by the Criminal Law Amendment Act, 2005, when a party cross-examination with permission of the court his own witness it naturally means that the witness has gone against the interest of the party who called him. If the answer given in the cross-examination do not help the interest of such party, the question arose whether such party could rely upon the earlier evidence of the witness. The present amendment has the effect of allowing such party to rely upon the earlier statement of the witness. So far as the testimony is concerned, the courts have always held that the testimony prior to the cross- examination is not washed off and that the court can use it as evidence.

Impeaching the Credit of witness. The credit of a witness is generally impeached by the opposite party. But when the witness has become hostile, his credit may be impeached, with the permission of the court, by the very party who has called him.

Impeaching the credit of a witness means exposing his real character to the court. So that the court may not trust him. The ways in which the credit of a witness may be impeached are indicated in S. 155. The section permits the following methods for the purpose.

  • Unworthy of Credit:- By producing witnesses who testify from their personal knowledge of the witness that he is unworthy of credit such a person should have personal knowledge of the witness.
  • Corrupt Inducement:- By showing that the witness has either taken bribe or has accepted the offer of a bribe or some other corrupt inducement for giving his evidence. Such a witness is not an independent witness but a hired witness. He is often known as pocket witness. If this fact is proved, the witness completely loses his credit.
  • Former inconsistent statement:- By showing earlier statements of the witness which contradict his present statement. Such contradictory statement can be cited only to the extent to which S. 153 would permit such contradiction.

The Supreme Court has held that the previous contradictory statements of a witness can be used to discredit only his testimony and not that of other witnesses.

  • Immoral character of prosecutrix for rape:- When a woman is being prosecuted for rape or an attempt to ravish, it may be shown that prosecutrix is generally a woman of immoral character.

Section 145 and S. 155(3):- Under S. 145 a witness can be cross-examined and confronted with that previous statement which was made in writing or reduced to writing. This section (S. 145) does not apply to oral previous statements but S. 155(3) is so worded that statements, written or verbal, may be used to impeach the credit under it but where the previous statement is in writing the provision of S. 145 should be found.

Question tending to corroborate [S. 156]: when the evidence of a witness requires to be corroborated, he may be questioned apart from the main event, as to any other circumstances which he observed at or near to the time or place where the main fact happened. The court will permit this kind of question if the court is of the opinion that such circumstances, if proved, would corroborate the testimony of the witness with reference to the relevant facts.

Former Statements as Corroboration:- Section 157 allows a witness to be corroborated by proof that he said the something on the previous occasion, the only condition being that his previous statement shall have been made either about the time of the occurence or before a competent authority. The force of any corroboration by means of previous consistent statement evidently depends upon the truth of the proposition that he who is consistent deserves to be believed.

Conditions for admitting statements: the previous statements made under either of the two following conditions may be admitted for corroboration under this section.

  • The statement must have been made at or about the time when the fact took place, or
  • It must have been made before any authority legally competent to investigate the fact.

At or about the time:- This section provides an exception to the general rule of excluding hearsay evidence and so in order to bring a statement within the exception the duty is cast on the prosecution to establish by clear evidence to the proximity of time between the taking place of fact and the making of the statement. There can be no hard and fast rule. The main test is whether the statement was made as early as can reasonably be expected under the circumstances of the case, and before there was an opportunity of tutoring or concoction.

Before any authority competent to investigate the fact:- If the former statement was not made at or about the time when the fact took place, it must be shown to have been made before any authority legally competent to investigate the fact.

Note:- If a person survives after making a dying declaration u/s. 32(1), his statement is relevant u/s. 157 as corroboration.

Refreshing memory [S. 159]: Section enables a witness to look at the following types of paper for the purpose of refreshing memory.

  • A writing made by him either at the time of happening or within so short a time after the happening that the court considers that the happening must have been still fresh in his mind when he was recording it.
  • Any writing made by any other person about the transaction and which was read by the witness within the time mentioned in point number 1.
  • Any professional books where the witness is an expert.

When a witness is being questioned in a court, he is permitted to refresh his memory by referring to any writing made by himself at the time when the fact of which he gives evidence happened. Thus witnesses are permitted to consult their former written statements. This is known as refreshing memory.

The witness is also permitted to refer to any such writing even if made by another person provided that the witness read it within the above mentioned time and knew it to be correct. Expect witnesses are permitted to refresh their memory by consulting professional books.

It is no necessary that the writing should be admissible in evidence. Even where the panchnama is not admissible in evidence, it may be used for refreshing memory if it otherwise satisfies the spontancity requirement of the section as after having been made by the police, it was read over to the panch who admitted it to be correct.

Note:- An investigating officer was allowed to refresh his memory about the matter on which he was testifying by looking at the contemporaneous record made by him.

A medical man is also allowed to refresh his memory by referring to a report prepared by him in his post mortem examination.

A police officer may use his special diary to refresh his memory.

Testimony to facts stated in document mentioned in S. 159:- Unlike S.159 under Section 160, it is not necessary that the witness looking at the written instrument should have an independent or specific recollection of matters stated therein. They might have completely slipped from his memory. Even then he may testify to the facts referred to in it, if he recognizes the writing or signature and feels sure that the contents of the documents were correctly recorded.

Right of adverse party as to writing used to refresh memory [S. 161]: This section awards to the adverse party a right to the production and inspection of and cross-examination upon all that is made use of for the purpose of refreshing the memory of the witness.

Production of documents [S.162]: The section makes it obligatory on the witness to produce the document summoned by the court and he has no right to decide whether the document shall be produced.

The validity of any objection made by the person producing the document shall be decided by the court.

But the section precludes the court from inspecting any document which refers to matters of state.

Giving, as evidence, of document called for and produced on notice [S. 163]: The section lays down that if party to the proceeding summons a document from the other party and inspects if he cannot refuse to produce it in the case if the party producing the paper so desires. This section applies not only to civil cases but to criminal cases.

Using, as evidence, of document production of which was refused on notice [S. 164]: If the opponent, having a document in his possession, refuses to produce it when called upon at the hearing to do so, he is not at liberty afterwards to give the document in evidence for any purpose.

Judge’s power to put questions or order production [S. 165]: A judge’s right to put questions to witnesses expressly recognized by S. 165,. The judge has been given the power to ask any question to a witness or to a party. Such question may be asked at any time and may take any form and the question itself may relate to a relevant, or an irrelevant fact. The court may also order the production of any document or thing. No party or his agent shall be entitled to raise any objection to such questions nor without the permission of the court, the witness shall be cross-examined as to any order that he may give.

Improper Admission and Rejection of Evidence

Section 167 lays down that improper admission or rejection of evidence is not a ground for reversal of judgment or for a new trial of the case if the court considers that independently of the evidence improperly admitted, there was evidence enough to justify the decision or that, if rejected evidence had been admitted it ought not have varied the decision.

Note:- The section applies to both the civil and criminal cases.

 

EVIDENCE ACT

PRELIMINARY

  1. Under section 118 who amongst the following are competent witnesses
    • child
    • accused
    • lunatic
    • all the above.
  2. A person is competent to testify
    • if he understands the question put to him
    • if he is able to give rational awareness to those questions
    • if has both (a) & (b)
    • if has (a) only and not (b).
  3. A dumb person -is a competent witness as provided under
    • section 118 of Evidence Act
    • section 119 of Evidence Act
    • section 120 of Evidence Act
    • section 121 of Evidence Act.
  4. Husband & wife both are competent witness for & against each other
    • in civil proceedings
    • in criminal proceedings
    • in both civil & criminal proceedings
    • neither in civil nor in criminal proceedings.
  5. Section 121 of Evidence privilege in respect of
    • husband & wife
    • judges & magistrates
    • affairs of the state
    • official communication.
  6. Privilege in respect of judges &: magistrates under section 121 of Evidence Act relates to
    • questions which a witness cannot be compelled to answer
    • question which a witness cannot be permitted to answer
    • both (a) & (b)
    • neither (a) nor (b).
  7. Privilege under section 121 of Evidence Act
    • is available to an arbitrator
    • not available to an arbitrator
    • may or may not be available to an arbitrator
    • both (b) & (c) are correct.
  8. Privilege in respect of husband 8: wife under section 122 of Evidence Act relates to
    • question which a witness cannot be compelled to answer
    • question which a witness cannot be permitted to answer
    • both (a) & (b)
    • only (b) & not (a).
  9. Admissibility of the evidence under section 122 of Evidence Act has to be adjudged
    • in the light of the status on the date when the communication was made
    • in the light of the status, on the date when the communication is sought to be tendered in court
    • in the light of the status, on the date when the evidence is to be given in the court
    • either (a) or (b) or (c).
  10. A communication made to the spouse during marriage, under section 122 of Evidence Act
    • remains privileged communication after the dissolution of marriage by divorce or death
    • does not remain privileged after the dissolution of marriage by divorce or death
    • does not remain privileged after the dissolution of marriage by divorce, but remains privileged even after death
    • remains privileged after the dissolution of marriage by divorce but not so on after death.

 

 

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Free Demo Class Every Sunday - 10 AM & Every Wednesday - 04 PM                                    Free Demo Class Every Sunday - 10 AM & Every Wednesday - 04 PM