Lectures of Evidence

Lectures of Evidence

INDIAN EVIDENCE ACT

RELEVANCY

LECTURE – 1

 

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?

 


 

PAHUJA LAW ACADEMY

INDIAN EVIDENCE ACT

RELEVANCY

LECTURE – 1

 

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 

Lecture 1 - Image 1 

 

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-:

 

Lecture 1 - Image 2

 

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:-

Lecture 1 - Image 3                                                                                                                                                                                                                                                                                                               

 

Part II (On Proof)

Lecture 1 - Image 4

 

 

          

     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:

Lecture 1 - Image 5

  • 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

Lecture 1 - Image 7

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. Unoriginal 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.

 

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)

 

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.

 

PAHUJA LAW ACADEMY

INDIAN EVIDENCE ACT

RELEVANCY

LECTURE – 1

 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.

PAHUJA LAW ACADEMY

INDIAN EVIDENCE ACT

[SECTION- 7]

RELEVANCY

 

Mains Questions

  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?

 

PAHUJA LAW ACADEMY

INDIAN EVIDENCE ACT

[SECTION- 7]

RELEVANCY

Section- 7

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

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

 

  • 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.

  • 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 under section 7 as establishing the cause of the accident.

  • 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.

  • 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.

  • 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 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 or Introductory

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 facts 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 mob 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 rebuts, it will also become relevant. For example, if after absconding, he was arrested in a railway train travelling without ticket or in a shabby dress, this will be relevant as these facts support the inference that he is guilty. It will be equally relevant for him to show that he left home 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 establishes such identity is relevant. The identity of a person can be established by the evidence of persons who know him. Every fact which can help the court to establish the identity in question is relevant.

  • Identification parade belongs investigation stage and if adequate precautions are ensured, the evidence with regard to the test identification parade may be used by the court for the purpose of corroboration.
  • The purpose of test identification parade is to test and strengthen trustworthiness of the substantive evidence of a witness in court.
  • Under supervision of magistrate to eliminate any suspicion or unfairness and to reduce the chances of testimonial error as the magistrate is expected to take all possible precautions.
  • Test identification parade does not constitute substantive evidence.
  • The identification can only be used as corroborative of the statement in court.
  • When accused are not known (previously ) to the witnesses.
  • The test is done to check upon their veracity.
  • Vijay v state of Madhya Pradesh the supreme court held that test identification parade is not substantive evidence.[2010]

 

  1. Facts which fix time and place

 

Whatever facts which help the court to fix the time or place of the happening of the relevant fact can be admitted in evidence e.g. the report of an expert is relevant to fix the time of murder the marks of struggle on the ground are relevant to fix the place of crime.

 

  1. Relation of parties

Facts which show the relation of parties by whom a fact in issue or a relevant fact was transacted are relevant e.g. in case of defamation the pre existing relationship of the parties is relevant.

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 inconsistent 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 scene of the offence 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 makes 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.


 

PAHUJA LAW ACADEMY

INDIAN EVIDENCE ACT

[SECTION- 7]

RELEVANCY

Pre- Questions

  1. Motives of preparation and conduct are relevant

(a) under section 6 of Evidence Act

(b) under section 7 of Evidence Act

(c) under section 8 of Evidence Act

(d) under section 9 of Evidence Act.

 

  1. Under section 8 of Evidence Act

(a) motive is relevant

(b) preparation is relevant

(c) conduct is relevant

(d) all the above.

 

  1. For conduct to be relevant under section 8 of Evidence Act, it

(a) must be previous

(b) must be subsequent

(c) may be either previous or subsequent

(d) only subsequent & not previous.

 

  1. Facts which are necessary to explain or introduce relevant facts of place, name, date, relationship & identity of parties are relevant

(a) under section 8 of Evidence Act

(b) under section 9 of Evidence Act

(c) under section 10 of Evidence Act

(d) under section 11 of Evidence Act.

 

  1. Under section 9 of Evidence Act

(a) the identification parades of suspects are relevant

(b) the identification parades of chattels are relevant

(c) both (a) & (b) are relevant .

(d) only (a) & not (b) is relevant.

 

  1. Identification of a suspect by photo is

(a) admissible in evidence

(b) not admissible in evidence

(c) section 9 of Evidence Act excludes identification by photo

(d) section 8 of Evidence Act excludes identification by photo.

 

  1. Things said or done by a conspirator in reference to the common design is relevant

(a) under section 12 of Evidence Act

(b) under section 6 of Evidence Act

(c) under section 10 of Evidence Act

(d) under section 8 of Evidence Act.

 

  1. A confession made by a conspirator involving other members is relevant against the co-conspirator jointly tried with him and is admissible

(a) under section 8 of Evidence Act

(b) under section 10 of Evidence Act

(c) under section 30 of Evidence Act

(d) both (b) & (c).

 

  1. Alibi is governed by

(a) section 6 of Evidence Act

(b) section 8 of Evidence Act

(c) section 12 of Evidence Act

(d) section 11 of Evidence Act.

 

  1. 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.

 

 

PAHUJA LAW ACADEMY

              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.

PAHUJA LAW ACADEMY

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. If 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.

Stephen defines that confession is an admission made at any time by a person charged with crime , stating or suggesting the inference that he committed that 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.

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. read with section 281 of 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, if 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, even though contains some confessional statement, will still lead to acquittal, is no confession.

In the case of Palvinder Kaur 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 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.

Allahabad High Court in the case of Emperor v. Balmukund

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 same rule applies in the case of confession.

  1. v McGregor
  2. v. Storey

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 Keshoram 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:-
  • Extra Judicial Confession:-

 

  • 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 maker. 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 material , wordly or temporal benefit or be in avoidance of any evil of temporal nature.
  • 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.
  • 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.
  • Whether the communication must reach to the accused to make the confession inadmissible.
  • 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:-
  • A village Mukhia
  • The president of village Panchayat.
  • Pradhan of village.
  • Whether a senior military officer is person in authority.
  • Whether a private person can be a person in authority.
  • v. Gibbons
  • Is it mandatory to give warning to the accused before recording confession?
  • Not person in authority:-
  • Master of mistress
  • Oridinary( but Calcutta High Court has taken contrary view)
  • 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.
  • Position under English law is not clear.

 

  • 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.
  • Mere moral or spiritual inducements or exhortations will not vitiate a confession.
  • 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.
  • Section 28 is an exception to section 24.
  • O.P that the original impression is completely removed is on the person who desires to have the second confession declared relevant.

CONFESSION TO POLICE:-

  • As per S.25, 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 proved in evidence, the police would 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.
  • The power of investigation is considered as most important symbol of police power for it is which establishes a direct relationship with the prohibition enacted in section 25.
  • Police Officers:-
  • Excise Inspector.
  • Sub- Inspectors
  • Police Patil
  • No Police Officers:-
  • State Reserve police force not vested with the powers of investigation.
  • 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 free, fair 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.
  • Sita ram v. state

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.
  • 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.

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 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.
  • 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.
  • 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, held 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.29 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 Bhubani Sahu 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 confession 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.[ Prakash Dhawal v. State of Maharashtra]

 

PAHUJA LAW ACADEMY

  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

(a) when the inducement, threat or promise comes from a person in authority

(b) when the inducement is of a temporal kind

(c) when the inducement is spiritual or religious

(d) only (a) & (b) are correct.

 

  1. A confession made to a police officer is inadmissible under

(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. A confession to be inadmissible under section 25 of Evidence Act

(a) must relate to the same crime for which he is charged

(b) must relate to another crime

(c) may relate to the same crime or another crime

(d) only (a) is correct and (b) is incorrect.

 

  1. Which of the following is not given by section 25 of Evidence Act

(a) confessions made to custom officers

(b) confession made to a member of Railway Protection Force

(c) confession made to an officer under FERA

(d) all the above.

 

  1. A retracted confession

(a) can be made solely the basis of conviction

(b) cannot be made solely the basis of conviction under any circumstances

(c) can not be made solely the basis of conviction unless the same is corroborated

(d) 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.

 

PAHUJA LAW ACADEMY

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?

 2. 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

PAHUJA LAW ACADEMY

      EVIDENCE ACT

      PRELIMINARY

 

  1. ‘Necessity rule’ as to the admissibility of evidence is contained in

(a) section 31 of Evidence Act

(b) section 32 of Evidence Act

(c) section 60 of Evidence Act

(d) section 61 of Evidence Act.

 

  1. Necessity rule as to the admissibility of evidence is applicable, when the maker of a statement

(a) is dead or has become incapable of giving evidence

(b) is a person who can be found but his attendance can not be procured without unreasonable delay or expenses

(c) is a person who cannot be found

(d) all the above.

 

  1. Under section 32 of Evidence Act, a statement of a person who is dead, to be admissible

(a) must relate to the cause of his own death

(b) may relate to the cause of someone else’ death

(c) may relate to the cause of his own death or someone else’ death

(d) both (b) & (c) are correct.

 

  1. The person whose statement is admitted under section 32 of Evidence Act

(a) must be competent to testify

(b) need not be competent to testify

(c) may or may not be competent to testify

(d) only (a) is correct and (b) & (c) are incorrect

 

  1. A dying declaration is admissible

(a) only in criminal proceedings

(b) only in civil proceedings

(c) in civil as well as criminal proceedings both

(d) in criminal proceedings alone & not in civil proceedings.

 

  1. A dying declaration

(a) can form the sole basis of conviction without any corroboration by independent evidence

(b) can form the basis of conviction only on corroboration by independent witness

(c) cannot form the sole basis of conviction unless corroborated by independent witness

(d) only (b) & (c) are correct.

 

 

  1. A dying declaration to be admissible

(a) must be made before a Magistrate

(b) must be made before the police officer

(c) may be made before a doctor or a private person

(d) may be made either before a magistrate or a police officer or a doctor or a private person.

 

  1. Declaration in course of business are admissible

(a) under section 32(1) of Evidence Act

(b) under section 32(2) of Evidence Act

(c) under section 32(4) of Evidence Act

(d) under section 32(7) of Evidence Act.

 

  1. Declaration as to custom are admissible

(a) under section 32(1) of Evidence Act

(b) under section 32(2) of Evidence Act

(c) under section 32(4) of Evidence Act

(d) under section 32(7) of Evidence Act.

 

  1. Under section 32(4) of Evidence Act, the declaration

(a) as to public rights & customs are admissible

(b) as to private rights & customs are admissible

(c) as to both public and private rights and customs are admissible

(d) only as to customs are admissible.

 

PAHUJA LAW ACADEMY

  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.

 

     PAHUJA LAW ACADEMY

  EVIDENCE ACT

PRELIMINARY

    

  1. Opinions of experts are relevant

(a) under section 45 of Evidence Act

(b) under section 46 of Evidence Act

(c) under section 47 of Evidence Act

(d) under section 48 of Evidence Act.

2.Under section 45 of Evidence Act, the opinion of expert can be for

(a) identity of hand writing

(b) identity of finger impression

(c) both (a) & (b)

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

3.Under section 45 of Evidence Act the opinion of expert can be on the question of

(a) Indian law

(b) Foreign law

(c) both (a) & (b)

(d) only (a) & not (b).

4.Opinion of an expert under section 45 of Evidence Act

(a) is a conclusive proof

(b) is not a conclusive proof

(c) is supportive & corroborative in nature

(d) either (a) or (c)

5.A disputed handwriting can be proved

(a) by calling an expert

(b) by examining a person acquainted with the handwriting of the writer of the questioned document

(c) by comparison of the two-admitted & disputed handwritings

(d) all the above.

PAHUJA LAW ACADEMY

Character when Relevant

 

Section 52-55 clears that to what extent is the character (general reputation) of a person relevant in civil or criminal proceedings. In order to take the character of a party into consideration, there must be two distinctions drawn- up between cases.

  1. When character is and is not in issue
  2. When the cause is civil or criminal

 

Section 52- This section aims to establish a general principle that evidence of a party’s character cannot be given for showing that it makes the conduct imputed to him as probable or improbable. So A party cannot give evidence of his good character for the purpose of showing that it is not prable that he should be guilty of the conduct which is imputed to him.

The last line of section 52 Quotes that a fact that “which is otherwise relevant cannot be excluded from evidence only because it incidentally exposes a party’s character.

 

Section 53 says “In criminal cases the fact that the person accused of a good character is relevant. The basic purpose of this section to make it certain same extent that is goodness is proved it leads to presumption against the crime, Because normally it is presumed that a person of good character and reputation will not commit a crime.

 

In Bhagwan Swarup vs. State has been decided that evidence of character is a weak evidence. It cannot outweigh the positive evidence in regard to the guilty of a person.

 

Section 53A- According to the demand of time there must be positive changes in our laws so that justice should be done in any condition. In order to make law effective and convenient section 53A has been inserted by criminal law Amendment Act 2013 On the basis of recommendation by Justice J. S. Verma.

 

This new section obstructs the leading of evidence of the character of a victim or previous sexual offence with any person on the issue of consent given by victim, and this section makes it (consent) irrelevant. There are the sections namely. 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D 376E of Indian Penal Code which have been covered under this newly inserted section.

 

Section 54- According to section evidence related to the badness of the party’s character in criminal proceedings may not be received unless evidence has been given that he has a good character.

 

So prosecution cannot lead evidence of the bad character of the accused. He can produce evidence of bad character only in reply to the accused showing his good character.

 

 

There are the exceptions to this section, which allow the evidence of the bad characters of an accused, there are as:-

  1. To disprove prior evidence of good character (section 54)
  2. When character is itself a fact in issue
  3. Previous conviction is relevant as evidence of bad character.

 

Section 55: The section states that character which affects the amount of the damages, which he ought to be received in relevant in civil cases. The evidence of good or bad character of the defendant in irrelevant to damages but the character of the plaintiff is relevant.

 

The word character which is used in section 52, 53, 54 and 55 includes both reputation and disposition, but in section 54, evidence may be given only of general character.

 

Section 55: According to section 55 the character which affects the amount of the damages, which he ought to receive is relevant in civil cases.

 

Reputation:- this is the general credit which a man has obtained in the opinion of public. Simply, this is belief or opinion that is held about someone generally. A wide spread belief that someone has a particular characterstics.

 

Disposition:- A person is inherent qualities of mind and character are called by the name disposition. This is the usual mood or attitude of a person.

 

  • Character when Relevant

Meanings: Character is a combination of quality distinguishing a person, the individuality of which is the product of nature, habits and environment.

 

  • Relevancy of character in civil cases:-

It may be laid down as a general rule that in civil action evidence of character of any person concerned is not admissible for the purpose of raising an inference as to his conduct. In other words and a party did or did not act may not, established in civil actions, by showed that his character is such as to pre- dispose him to one course or to the —– [ Section 52]

 

  • Relevancy of character in criminal cases. The fact of good character may be proved in criminal cases, as it affirm a presumption against the commission of crime. In criminal proceedings a — character is often a matter of important in explaining his conduct and in judge his innocence or criminality. [ Section 53 ]

 

  • Previous bad character:-

The general evidence of good character of accused is always relevant. This is not so with regard to general evidence of bad character. In criminal cases, bad character is irrelevant and can’t be proved.

 

  • When previous had character relevant:-

Previous bad character is relevant in the following cases:-

  • When the accused has adduced evidence that he has been of good character, the prosecution can lead evidence in reply, that he has been of bad character.
  • Where bad character is itself a fact in issue.
  • Where the previous conviction is relevant as evidence of bad character.

 

  • Character as affecting damages:-

According to Section 55, character as used in Section 52 – 54 and 55 includes reputation and disposition. As for evidence of character, evidence may be given only of general reputation.

 

As seen before Section 52, lays that in civil cases character of a party is not relevant. Section 55 provides an exception, as character is relevant in civil cases, when it affects the amount of damages to be recovered.

PAHUJA LAW ACADEMY

Facts Need not be Proved

 

Section 56 lays down that when a fact, which is relevant in a case, is of such a nature that the court must take judicial notice of it, no evidence in proof of it should be given.

The Supreme Court has held that the court can take judicial notice of alternative sources.

 

Section 57 gives a list of facts of which the court must take judicial notice. Thus, when both the sections taken together it means that when controversy arises with regards to the facts enumerated in section 57, the parties when assert their existence, need not produces any evidence to prove the existence of such fact.

The judge may resort to any source of information which he finds handy and helpful. Thus, he might consult any book, or obtain information from any person.

  • Judicial Notice can be taken of the following facts:-
  • Notification issued by government or any competent authority in the exercise if any delegated power of legislation.
  • Many blind persons have achieved academic distinctions.
  • In a particular state the government is of one particular party and in other particular state the government is running by two political parties.
  • Custom in terms of section 57, if the custom has been repeatedly recognized by the courts, the same need not be proved.

No Judicial Notice:-

  • A Notification issued by any authority in the exercise of its executive functions.
  • The court cannot take judicial notice of the fact that a report has been sent under section 157 Cr.P.C.

Facts admitted need not be proved. Section 58- lays down that if the parties to a proceeding to their agents 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 they are deemed to have admitted by their pleadings, it need not be proved by the opposite party.

e.g. A Sends a notice , to B in writing that B is a tenant in his house and he had not paid the rent for 6 months and so he should pay the rent and vacate the house. B sends a notice in reply that he is tenant of A but has paid the rent up to date afterwards A files a suit against B for ejectment and arrears of rent, denies the contract of tenancy between the parties. Here, B has admitted the fact of tenancy in writing before the hearing and so A may rely only on the notice and need not adduce any other evidence to prove the contract of tenancy.

 

Criminal cases:- it has been suggested that the section applies to civil suits only. Though it is not in terms  strictly limited to the suggestion receives support from the phraseology employed which is more suitable to civil than to criminal proceedings in criminal cases the rules of evidence are subject to the general principles of jurisprudence that it is the duty of the prosecution to prove the case against the accused and that they should not rely upon the admissions made by him in the course of trial for convicting him.

It is a well established principle of criminal law that the prisoner can consent to nothing. It is an elementary rule that except by a plea of guilty admissions dispensing with proof are not permitted in a criminal trial no consent or admission by the prisoner to his counsel can dispense with proof.

Section 17 – Extra judicial admissions

Section 58 – judicial admissions 

 

 

PAHUJA LAW ACADEMY

LECTURE NOTES EVIDENCE

ORAL EVIDENCE

According to Section 59, All facts except the contents of documents may be proved by oral evidence. This section lays down that where written documents exists, they shall be produced as being the best evidence of their own contents and no oral evidence can be adduced to prove as to what is wrong in the document.

Example: A and B enter into a contract that B shall be supplying 20 maunds of wool to A every month. This contract was reduced into writing. 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. The document must be produced before the court.

  • Oral Evidence must be direct:-

Section 60 lays down that oral evidence must be direct. By direct it is meant that –

  • If evidence is to be led about a fact which can be heard a witness must be produced who says that he heard it.
  • If the evidence is to be led about the fact which can be seen the witness produced must say that he himself saw it.
  • If the evidence is to be given about a fact which can be perceived by any other sense or in any other manner the witness produced must say that he perceived it himself by that sense or in that manner.
  • If the evidence is to be given about an opinion or as to the ground on which opinion is to be held the witness produced must say that he holds that opinion and in those grounds.

Thus, oral evidence must be direct. This means that a witness can tell the court only a fact of which he has the first hand personal knowledge in the sense that he perceived by any of the fire senses.

If, on the other hand, the statement was not made in has presence or hearing and he subsequently came to know of it through other sources, he cannot appear as a witness. It is nothing but hearsay and it is maxim of law is not admissible.

  • Exclusion of hearsay evidence:-

Section 60 excludes hearsay evidence. Hearsay evidence means the statement of a witness not based on his personal knowledge but on what heard from others.

Thus, in all cases the evidence has to be that of a person who himself

Witnessed the happening of the fact of which he gives evidence in whatever way the fact was capable of being witnessed. Such a witness is called an eye- witness or a witness of fact and the principle is known as that of direct oral evidence or of the exclusion of hearsay evidence.

The general rule is that hearsay evidence is not admissible in proof of fact which has been stated by a third person. This rule has been long established as a fundamental principles, but certain exceptions have been recognised.

  • Res gestae [Section 6]

The statement of a person may be proved through another person who appears as a witness if the statement is a part of the transaction in issue.

In R. vs. 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.

  • Admissions and Confessions:-

An admission of liability or confession of guilt which takes place outside the court is proved through the testimony of the witness, to whom the admission or the confession was made.

Such a witness is not a witness of fact, for he had not seen or observed the main occurrence through any of his senses, but had only heard about it from the mouth of the party who admitted his liability or confessed to his guilt. It follows that admissions and confessions constitute an exception to the hearsay rule. The reasons for this exception have already been noted before.

  • Statements Relevant under Section 32:-

Statements which are admitted under section 32 are mostly the statements of deceased persons or persons who are not available as witnesses. The evidence of their statement in the circumstances mentioned in the section is received through the testimony of persons who heard their statements or otherwise acquired knowledge of the statements. The evidence of such statements is therefore, the evidence of hearsay and is specially declared to be relevant.

  • Statements in public Documents:-

Statements in public documents, such as the Acts of Parliament, official books and registers, can be proved by the production of the document and it is not necessary to produce before the court the draftsmen of the document.

The rule of hearsay may not stand in the way of proving public documents once it is proved that the documents are official records or official correspondence, the court has to raise the presumption under section 114.

  • Evidence in former proceedings:-

Section 33, provides that evidence given by a witness in a proceeding can be used as evidence of the truth of the facts stated in any subsequent proceeding between the some parties or their privies, provided that the witness has died or is for some reasons unavailable.

  • Statements of experts in treatises [section 60, proviso]:-

It says that the opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found or has incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable. Thus, the opinion of an expert can be cited in his absence only if it has been expressed in a book form and the expert himself is either dead or is otherwise unavailable as a witness.

  • Miscellaneous [whether exceptions can be extended]:-

The House of lord in Myres vs. Director of public prosecution, Lord Herschell expressed himself against the desirability of extending the exceptions. It was held that if it is done so, it would be introducing a dangerous uncertainty into the law of evidence.

  • Interested or Partisan witness:-

It happens often enough that an eye- witness is related in some way to the party in whose favour he gives evidence. Such a witness is called an interested or partisan witness. Section 153 permits question to be asked to a witness to show that his testimony is likely to be partial. The principle to be kept in mind in such cases has been re- stated by Supreme Court.

It is well- settled that interested evidence is not necessarily unreliable. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor it can be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated in material particulars. All that is necessary is a careful scrutiny and caution. If on such scrutiny, the interested testimony if found to be intrinsically reliable, or inherently probable, it may be itself be sufficient to base a connection.

PAHUJA LAW ACADEMY

DOCUMENTARY EVIDENCE

 

According to section 3, the expression “documentary evidence” means- All documents produced for the inspection of the court, such documents are, called documentary evidence.

The expression “document” means any matter expressed or described upon any substance by means of letters, figures or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matters.

 

Illustrations :-

A writing is a document

A caricature is a document.

A map or plan is a document.

Words printed, lithographed or

Photographed are documents.

 

Spearing generally, it means anything or matter which contains a permanent record of relevant fact or fact in issue. Thus, a paper on which a contract is written is a document; so is a wall or chattel or stone on which something is inscribed. Photograph is a document. It has been said that the word “document” as used in the law of evidence should not be construed restrictively.

Etymologically, the word means something which shows or teaches and is evidential or informative in its character.

 

Recorded Tapes :-

Whether a mechanical device can be regarded as document? Although a gramophone or tape record is produced, the court cannot read or see any fact on it. It has to be played to the court and the court hears it as spoken words very much as the court hears a witness. For this reason tape recording have not generally been equated with documents. But the evidence of facts recorded in a tape or otherwise is admissible, and as compared with oral testimony, it is more akin to documentary evidence and is, therefore, generally held bound by principles relating to documentary evidence.

With regard to relevancy of a recorded tape, it has been said that there   is “no reason in principle why the recording in some permanent or semi-permanent  manner of human voice or other sounds which are relevant to the issue to be determined, provided it furnishes information, cannot be  a document.

R.M. Malkhani

 

Proof of contents of document:-

According to section 61, the contents of document may be proved either by primary or by secondary evidence. There is no any third method of proving the contents of a document;

 

Primary Evidence :-  (Best evidence) Section 64. The expression “primary evidence” of a document is defined in S.62. The following four are included in the expression “primary evidence”.

  1. The original document itself produced for the inspection of the court.
  2. Where a document is executed in several parts, each part is primary evidence of the document. g; A,B,C, partition deed, one document, three deeds.
  3. Where a document is executed is primary counterparts, each counterpart is primary evidence against the party signing it. E.g; in the case of a cheque, the main cheque is signed by the drawer so it is primary evidence against him and the counterfoil may be signed by the payee so it will be primary evidence against the payee.
  4. 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 contest of document.

The section is based upon the principle that the “best evidence” in the possession of power of the party must be produced. What is the best evidence is, it must depend upon circumstance. Generally spearing, the original document is the best evidence.

 

In a nutsell, the thing prepared by automatic process, such as printing or photography, are primary evidence of the things prepared by such process but they are secondary evidence of the original.

 

Secondary Evidence :-

Secondary evidence of a document is defined in S.63. It included the following.

  1. Certified copies of the original document
  2. Copies which are made from the original by mechanical processes which is themselves assure the accuracy of the copy and copies compared with such copies.
  3. Copies made from and compared with the original
  4. Counterpart of a document is secondary evidence against the party who did not sign it.
  5. Oral document of the contents of a document given by a person who has himself seen the document.

 

NOTE: –  The Allahabad High court held that the list enumerated in S.63. is not exhaustive of all the kinds of secondary evidence. The “term includes” leaves enough scope for cases which do not fall strictly within any of the clauses enumerated therein. The court must, however, be satisfied that the document sought to be produced as secondary evidence is a faithful and accurate reproduction or a draft of the final document whose copy it purports to be.

 

ATTESTED COPY:

An attested, copy was not taken to be a good Secondary Evidence as the person who attested it was not called to prove the accuracy of the contents of the copy.

 

Oral Account of Document :-

The oral evidence of the content of a document can be given if the followi8ng two conditions are satisfied-

  1. Party offering oral evidence must be entitle to give secondary evidence of the document as per section 65.
  2. Oral account of the contest of the document must be that of a person who has himself seen it.

 

Proof of Primary Evidence :

According to S.64, Documents must be proved by primary evidence except in the cases hereinafter mentioned.

Thus, Secondary evidence is allowed only in the circumstance mentioned in the Act. Any one of the grounds on which secondary evidence becomes admissible would have to proved in the first place.

When Secondary evidence can be given. The circumstance in which secondary evidence can be given are strictly regulated by the Act. Such circumstances are listed in S.65.

 

In substance, secondary evidence can be given in the following cases:-

  1. When the original is shown or appears to be in the possession or power-
  2. of a person against whom the document is sought to be proved,. Or
  3. of any person out of reach of, or not subject to the process of the court.
  4. any person legally bound to produce it. And although due notice has been given to him in accordance with the terms of S.66, he does not produce it.
  5. When the existence, condition or content have been proved to be admitted in writing by the party against when the document is to be proved or by his representative in interest.
  6. In this case, only the written admission is admissible.
  7. When the original has been destroyed or lost, or when, the party offering evidence of its contents, cannot for any other reason not arising from his own default or neglect, produce, it in reasonable time.
  8. In this case, any Secondary evidence of the contents of the document is admissible.
  9. When the original is of such a nature as not be easily movable. This would include case of bulky documents.
  10. When the original is a public document within the meaning of S.74..
  11. In this cases, only certified copy is admissible.
  12. 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.
  13. In this cases, only certified copy is admissible.
  14. When the original consists of numerous accounts are other documents which cannot be conveniently examined in the court and the fact to be provided is the general result of the whole collection.

In this case, evidence may be given as to general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

 

Objection as to the proposed evidence should be taken at the trial before the document is marked as an exhibit and admitted on record.

Evidence relating to electronic records:- Section 65A and 65B have been added by information Technology Act, 2000.

Section 65A provides that the contents of electronic records may be proved in accordance with the provisions of S.65B. This prescribes the mode for proof of contest of electronic records.

 

Rules as to notice to produce:- Section 66 requires that the party who has possession of the original, or his attorney or pleader, should be given a notice to produce. Notice should be given a manner as is prescribed by law in the particular case and, if there is no law on the print, such notice should be given as the court considers reasonable under the circumstance of the cases.

Under clause (a) of section 65, where the original document is in the possession of an apparent, he should be given notice to produce the document and, if he fails to comply with the notice, Secondary evidence of the document becomes admissible.

 

When notice not necessary :-

  1. When the document is notice itself.
  2. When the nature of the case itself makes it clear that the party in possession that he will be required to produce it.
  3. When it appears or is proved that the other party has obtained possession of the original by fraud or force.
  4. When the adverse party or his agent has admitted that the original has been lost.
  5. When the adverse party or his agent already has the original in the court.
  6. When the person in possession of the original is out of reach of the court or is not subject to the process of the court, e.g, that he is a foreign ambassador and, therefore, the court has no justification over him.

 

Refusal to produce original after notice effect:-

When the opposite party fails to produce the original when demanded and the court has according admitted the secondary evidence, can the party in possession subsequently produce the- original of his own choice.

This was the question in Deed Thomson V. Hodgson, and the answer given was “No”.

The original receipt for the payment of rents being in the possession of the defendant, he was required to produce them. Upon his refusal Secondary evidence was given of payments. The defendant’s counsel afterwards, as part of his case, produced the original receipts as evidence.

 

The court considered it to be a rule that where he had the opportunity and had declined to produce the writing, he would not afterwards bring forward its contents.

This is a clear provision in S.164. to the  effect that where a party has required to another to produce a document and he has refused to do so, he cannot afterwards use the document as evidence unless he obtains the consent of the other party or the order of the court.

Execution of documents and proof of handwriting (Section 67)

The party who produces a document which be alleges is executed, signed or written by a certain person, has to prove that fact. This section merely requires proof of signature or handwriting of the person alleged to have signed or written the documents produced.

Section 67 of the Act mandates that the signature and handwriting of a person on a written document can be proved only by examining the person concerned. When the person is very much available and alive, an attempt to prove his handwriting or signature by examining a third person as a witness, would have its own drawn back. An inference as provided in clause (g) of S.114. would came into play.

 

Documents required by law to be attested. The principle relating to proof of execution of a document required by law to be attested is stated in S.68. A documents the execution of which is required by law to be attested means a document the signature upon which should be put in presence of two witnesses who themselves add their signatures and addresses in proof of the fact that the document was signed in their presences. They are called attesting witnesses.

The principle laid down in the section is that whenever such as document is produced before a court as evidence, at least one attesting witness shall be called to prove the execution of the document. This principle will apply only if at least one attesting witness is alive, capable of giving evidence and subject to the process of the court. The section further provides in its provision that no attesting witness need be called in the case of document not being a will which has been registered with the Indian registration Act, 1908. But if the party whose signature the document purports to bear has specifically denied it, then at least at least one attesting witness shall have to be called.

Thus, an examination of an attesting witnesses is necessary when the execution of the document specifically denied. If not so denied, the evidence furnished by the certificate u\s 63 of the Registration Act coupled with the presumption under illustration (e) to S.114 of the Evidence Act would be more than sufficient.

 

Where no attesting witness available According to Section 69, where no attesting witness is available or if the doc. is executed in the United Kingdom two things should be proved.

  1. It should be proved that the signature of the person executing the document is in his handwriting
  2. The signature of at least one attesting witness is in his handwriting

 

Admission of execution

Where the party to an attested document has admitted that he executed the document that is sufficient proof of the execution even if the document is required by law to be attested. This is laid down in Section 70.

Where attesting  witness denies  execution. If the attesting witness denies or does not recollect the executes of the document, its execution may proved by other evidence.

Where the attesting witness of a will not produced for the fear that he might go against the claimants interest, the Allahabad High Court held that it could not be said that the witness had denied  knowledge so as to attract the provisions of Section 71.

According to a decision of High Court of Orrisa if one attesting witness is produced, the party has done his duty even if that witness denies or has no recollection of the execution and then other evidence can be offered under Section 71.

 

In order to put on end to uncertainty in this connection, the English evidence Act, 1938 has made this change that except wills and other testamentory instruments, all other documents required by law to be attested, can be proved as if no attesting witness is alive.

The section is attracted when the attesting witness, who is available denies attestation other evidence then

become permissible.

 

Proof of document not required by law to be attested:-

Section 72 declare in simple terms that where a documents, though not required by law to be attested is nevertheless attested, it may be proved as if it was not attested.

 

Comparison of handwriting seal etc. when the court has to satisfy itself whether the signature or seal on a documents is genuinely , that of a person whose signature or seal it purports to be, the court may compare the same with another signature or seal which in admitted or proved to be that of the person concerned. This principle is laid down in Section 73. In doing so the court does not act as an expert.

Power to ask for specimen signature or handwriting .

This section also enables the court to requires the person concerned to entire any words or figures to enable the court to compare them with the words of figures in question. The principle of the section also applies to figure ordinarily, the court should finger impression. In such cases take the help of an expert.

Whether court should do the comparison itself or appoint an expert is a matters of desertion.

 

Proof as to verification of digital signature (Section 73A)

For the purpose of ascertaining whether a digital signature is that of the person by whom it purports to have been affixed the court may direct the person or the controller or the certifying authority to produces the digital signature certificate. The court may also direct any other person to apply the public key listed, in the digital signature certificate and verify the digital signature purported to have been affixed by that person. An explanation to the section says that for this purpose the controller means the controller appointed under section 17(1) of the Information technology Act, 2000.

 

Modes of proof of signature or handwriting

  1. Section 67.
  2. Section 45
  3. Section 47.
  4. Section 73
  5. Section 73 is diss.

PAHUJA LAW ACADEMY

PUBLIC DOCUMENTS

The Evidence Act lays down special rules relating of public documents. To identify the documents which can be regarded as public documents for this purpose, section 74 gives the list.

Section 74. public documents :-

The section places public documents into two kinds :-

  1. Documents forming the acts or records of the act of the sovereign authority.
  2. Private documents which are registered in public offices also become public documents.

 

Narattam Das v/s Masaddar Ali Barbhuiya, (1991):- A private sale deed registered under the Indian Registration Act is not a public documents  and therefore, a certified copy is not admissible in evidence under Section 77 of the Evidence.

 

Black’s Law Dictionary :- Public record are those which a Government unit is required by law to keep or which it is necessary to keep in discharge of duties imposed by law.

State of Maharashtra v. Mohd. Sajid Husain( sc) :- Where the age of the victim flesh trade had to be proved for the purpose of an offence under the Immoral Traffic (Prevention) Act, 1956, it was held that the age recorded in public documents must prevail over any statement in the F.I.R., namely first medical documents of even in her supplementary affidavit.

State V.K. Narasimhachary, (2005):- An order sanctioning prosecution of an officer has been held to be a public document.

 

Mamta Awasthy v. Ajay Kumar Shrivastava,  AIR. 2011 M.P 166:- Documents which are record of acts of court are public documents. A partition deed, in this case, was marked an exhibit. This was an act of the court. The deed became a public document. The court said that merely because a document, is a public documents, it is not per se admissible in evidence. It is required to be stamped.

 

The school leaving certificate is a document which falls within the ambit of section 74. It is admissible per se without formal proof.

 

Examples of public document

  • Charge sheet
  • Arrest warrant
  • Order sheet
  • Judgment of court
  • Administrative report
  • Marriage register
  • Electoral roll
  • Records of nationalized banks
  • Publication of feasibility reports on interlinking of rivers
  • Private waqf deed
  • Memorandum and articles of association of a company registered with registrar of companies

Examples  of private documents

  • An application for licence
  • Post mortem report
  • An insurance policy
  • A private sale deed registered under Indian Registration act
  • Panchanama
  • Plaint or written statement
  • Income tax return

 

Section. 75 [Private Documents]:– section 75 closes the list of public documents by declaring close on the heels of section 74 that all other documents are private.

PROOF OF PUBLIC DOCUMENTS

The special rule of evidence to proof of public documents is that they can be proved by producing certified copies. It means that public documents are always provable by secondary evidence.

SECTION 76. Certified copies of public documents :- Section 76 provides that certified copies which are issued by the custodian of the documents may be proved in proof of the contents of the public document.

SECTION 77. Proof of document by production of certified copies :- section 77 tries to be more particular and gives the manner of proving certain kinds of public document.

A certified copy of the Hindu Marriage Register has been held to be a public document within the meaning of ss. 74, 65(e), (f) and s. 114(e). It is admissible as secondary evidence under section 65(e) and section 65(f). It carries the presumption under section 114(e).

SECTION 78. Proof of other official documents

PRESUMPTION AS TO DOCUMENTS

The law raises certain presumptions about genuineness of documents. They are given in section 79 to 90A and are as follows:

Section 79. (GENUINENESS OF CERTIFIED COPIES)

When a certified copy of a documents is produced before the Court as evidence of the original in circumstance in which secondary evidence is admissible the law presumes that is copy is a genuine reproduction of the original. This presumption is raised by section 79. A birth certificate issued by a Municipality is the ultimate document for proof of date of birth. It carries the presumption as to its genuineness and is admissible in evidence.

The effect of the presumption is that if anybody alleges that the certified copy is not genuine, the burden of proving that facts lies on him, for the Court presumes genuineness.

The court also presume that the officer who signed or certified document held that official character which he claims in such paper.

Section 80 (Records of evidence):- when a person has appeared before a court of law and has recorded his testimony or confession and his statement being relevant in a subsequent case, a certified copy is produced, the court shall presume the genuineness of the copy.

It is necessary for this presumption to arise that a person should have recorded his evidence before a court of law or before any officer authorized by law to take such evidence, or that person accused of any crime has recorded his confession in accordance with the law, and a copy of the statement has been signed by the judge, magistrate or other officer before whom the statement was recorded. When these conditions are fulfilled, the court shall presume that the document is genuine, that the confessional statement is truly recorded and that such evidence, statement or confession was duly recorded in accordance with the law.

Section 81. (Gazettes, newspaper, private Acts of parliament etc.):-Under section 81, official Gazettes, newspaper, or journals and copies of the Acts of parliament are presumed to be genuine.

Section 81A. (Gazette in Electronic Form):- the court has to presume the genuineness of any electronic record purporting to be the official Gazette or purporting to be the electronic record directed by law to be kept by a person. it is necessary that the electronic record is substantially kept in accordance with the form required by the law and is produced from proper custody.

Section 82. Documents admissible in England without proof of seal or signature

Section 83. (Presumption as to maps or plans made by authority of Government)

Raghunath Ramchandra Suryavanshi v. Mohan, A.I.R 2008:- Any defect or infirmly can be overcome only be offering the maker of the survey reports come before the court and testify to the accuracy.

Adhunik Grah Nirman Sahakari Samiti ltd. v. State of Rajasthan, A.I.R 1989:- Where the site plan and inventory prepared on behalf of a former ruler was not produced in its original state, the Supreme court did not allow any objections to be raised about the matter in the Supreme Court.

SECTION 84. Collection  of laws and reports:- The court presumes the genuineness of every book purported to be printed of published under the authority of the Government of any country, and which contains any of the laws of that country. The same presumption is raised in reference to book published by the state which contain reports of decided cases. Section 84 provides for his presumption.

Section 85. Presumption as to power of attorney:-

Re K.K Ray (P.) Ltd. A.I.R 1967 Cal. 636:- The presumption created by the section applies with equal force in reference to document authenticated by notaries functioning in other countries.

Mohan Murti v. Deutsche Ranco GMBH, A.I.R 2014:- Where a power of attorney was executed before it was authenticated by the Assistant Consular Officer of the High Commission of Indian in U.K., the court was held to be bound to presume its validity under section 85 and 57.

Section 85A. [ELECTRONIC AGREEMENT]:- Where an electronic record purports to be an electronic agreement made through digital signatures, the Court has to presume that the agreement was concluded as it purports to be, namely, by affixing the digital signatures of the parties.

Section  85B. (Electronic Records and Electronic Signature):- Where any proceeding involves a secure digital signature, the court has to make the following two presumptions:

  1. That the secure digital signature was affixed by the subscriber with the intention of signing or approving the agreement.
  2. That the presumption will apply only to secure electronic record or secure digital signature and that there is to be no presumption under the section relating to authenticity and integrity of the electronic record or digital signature. There can be evidence to the country.

A secure system is defined in Section 2(ze) of the  I.T. Act.

 

Section 85C (Electronic signature certificates):- The court has to presume that the information listed in  a  digital signature certificate is correct if the certificate was accepted by the subscriber.

 

Section 86 (Foreign judicial record):- The court is given the judicial discretion to presume that certified copies of foreign judicial records are genuine. The first eight presumption noted above are compulsory presumption in the sense that the judge is bound to raise the presumption in question. But the presumption as to foreign judicial records and the two presumption that follow are in the direction of the court in the sense that the court may or may not draw the presumption.

 

Section 87( Books maps and charts):- Often books, charts, maps etc. are produced before the court in proof of fact-in-issue or a relevant fact and which appears from the book etc. The court may or may not make the presumption as it is influenced by the authenticity of the book in question.

 

Section 87 is the authority for this presumption.

 

Section  88. Telegraphic Messages:- In reference to messages transmitted through telegrams, the court may presume that the message delivered to the addresses corresponds with the message handed over to the post office and that the message was meant for person whom it is purported to be delivered.

 

Abba Astavas v. Suresh, A.IR. 1984 DEL:- A telegram is a primary evidence of the facts that the same was delivered to the addresses on the date indicated therein.

 

SECTION 88A. (Electronic messages):- The court is not authorized to make any presumption as to the person by whom such matter was sent.

The explanation to be the section talks about the meaning of the terms addressee and originator.

An addressee means a person who is intended by the originator to receive the electronic record but does not include any intermediary.

An originator means a person who sends, generates stores on transmits any electronic message or cause any electronic message to be sent, generated stored or transmitted to any other person, but does not include an intermediary.

 

Section 89. [Documents not produced]:- Where a document has been called for but not produced before the court, the court shall presume that the documents in question was duly signed, stamped and attested. The presumption is that the document was in all respects in accordance with the law. The presumption is compulsory and is not in the discretion of the court.

 

Section 90. [Documents thirty years old]:- A documents which is thirty years old is presumed to be genuine. It is presumed to be genuine in all respects. But the presumption is in the discretion of the court. The court may, but is not bound, to presume that a thirty-years old document is genuine.

The section lays down two conditions for this presumption to arise. In the first place, the document should be thirty years old and, secondly, it should be produced from custody which appears to the court in the particular case to be proper.

 

Thirty years old :- The document should be thirty years old.  What is the meaning of its being thirty years old. The date on the face of the instrument is prima facie evidence of its age.

Proper Custody  :- The second condition for the presumption to apply is that the instrument should be produced from proper custody. The meaning of proper custody is given in the explanation. According to the explanation, proper custody means:-

  • The place where the document in question would naturally be
  • Was under the care of a person with whom it would naturally be
  • Any custody which is proved to have had legitimate origin
  • Under the circumstances of the case the custody from which the instrument is produced is probable.

Meath(Bishop) v Winchester(Marquis)- Certain documents which belonged to a deceased bishop by virtue of his office were produced from the custody of his family and from among his personal papers. The custody was held to be proper, although the most proper custody shall have been that of his successor.

A deed relating to the affairs of a family produced from the custody of the mother, a record of settlement produced from the custody of the settlement office, a mortgage deed produced from the custody of one of the mortgagees, in all these cases the custody was held to be proper.

The mere fact that a document is produced from a court does not by itself mean that it was in proper custody. There must be something to account for origin of the court custody.

Gazette Notification

Rohit Singh v State of Bihar, A.I.R. 2007 S.C. 10-The Supreme Court said that the court below should have presumed the regularity of the issue of the Notification leaving it to the defendant to rebut the presumption.

No presumption as to correctness etc.

It is open to the parties to raise a plea to the contrary within the limits permitted under section 91 and 92.

No presumption as to copies

The presumption is about the original document and not about a copy of the original, even if the copy is such that it is admissible as a secondary evidence of the document.

Wills-

Statements and declarations

The presumption under the section is permissible only in respect of signature, execution or attestation of a document, as to its genuineness.

Desh raj v Bodh Raj A.I.R. 2008 S.C. 632 –There was dispute as to the caste of an election candidate. His father’s application for school admission was produced showing the caste. It carried the father’s thumb mark. It being 30 years old, it attracted Section 90. The Court said that the mere fact that there was difficulty in reading one figure in the date, could not be ground for rejecting the document.

Miscellaneous Presumption

Apart from these are few other presumptions about documents. For example, where a document has been altered, the presumption is that the alteration was made before execution and in the case of will that it was altered after execution. For example, Doed Tatum v. Catomore. In this case the deed on which the plaintiff’s title depended, when produced, appeared to have an interlining and erasure in parts not material. Objection was made that the deed was void unless the plaintiff gave evidence to show when the alternation was made. The learned judge left it to the jury to say whether the alteration was made before the execution of the deed, and it was found that they were. “It is to be presumed, that an interlining, if contrary is not proved, was made at the time of making the deed.”

Section 90-A (Five years old electronic records)

Where an electronic record purports to be or is proved to be five years old and is produced from any custody which the court considers proper in the particular case, the court may presume that the electronic signature which purports to be the electronic signature of any person was so affixed by him or by any person authorized by him in that behalf.

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

(a) where the non-production of primary evidence has not been accounted for

(b)where the non-production of primary evidence has been accounted for

(c) irrespective of whether the non-production of primary evidence has been accounted for or not

(d) both (a) & (c) are correct

2.Oral account of the contents of a document is admissible

(a) when given by a person who has seen & read the document

(b) when given by a person who has seen but not read the document

(c) when given by a person to whom the document was read over

(d) 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

(a) by calling both the attesting witnesses

(b)by calling at least one of the attesting witnesses

(c) by calling none of the attesting witnesses but by calling some other person who has the knowledge of the contents

(d) 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

(a) when the document other than a will is registered under the Indian Registration Act, 1908

(b) when the document including Will is registered under the Indian Registration Act, 1908

(c) when the document irrespective of whether it is a Will, is registered under the Indian Registration Act, 1908

(d) both (b) & (c) are correct.

5.A will is required to be proved by calling at least one attesting witness

(a) when it is registered

(b) when it is unregistered

(c) when it is admitted

(d) all of the above.

6.Public documents are mentioned in

(a) section 72 of Evidence Act

(b) section 73 of Evidence Act

(c) section 74 of Evidence Act

(d) section 75 of Evidence Act.

7.Documents which are not covered under section 74 of Evidence Act are called

(a) semi-public documents

(b) quasi-public documents

(c) private documents

(d) all the above.

8.Maxim ‘omnia proesumuntur rite esse acta’ means

(a) all acts are presumed to be rightly done

(b) all acts are presumed to be not rightly done

(c) all acts are presumed to be wrongly done

(d) all acts are presumed to be not wrongly done.

9.Admissibility of electronic record has been prescribed under

(a) section 65 of Evidence Act

(b) section 65A of Evidence Act

(c) section 65B of Evidence Act

(d) section 66 of Evidence Act.

10.Principle of ‘onmia proesumuntur rite esse acta’ is contained in

(a) section 78 of Evidence Act

(b) section 79 of Evidence Act

(c) section 80 of Evidence Act

(d) section 81 of Evidence Act.

 

 

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