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?

 

  1. Explain the meaning of the following:

(i) Proved

(ii) Disproved

(iii) Not proved

 

 

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.

 

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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.

 

PICTURE01

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

    PICTURE01

 

  • 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

LECTURE- 2

[SECTION- 5-11]

RELEVANCY

 

Mains Questions

 

  1. Discuss the following statement- Relevancy and admissibility are neither co-extensive nor interchangeable?

 

  1. What is the rule of Res gestatae?

 

  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- 5-11]

RELEVANCY

Section- 5

the Relevancy of facts:-

  • According to section 5 evidence may be given in any suit or proceeding of the existence or non-existence of
  • (a) Fact in issue, and

    (b) 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 v. state of Bihar, the Supreme court held that often the expression relevancy and admissibility are used as synonym but legal implications are different.
  • PICTURE01

     

    Test to decide Relevancy:

     

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

    Section- 6

      RES -GESTAE

    The rationale behind this is the spontaneity and immediacy of such statement that there is hardly any time for concoction

    So, such statement must be contemporaneous with the acts which constitute the offence or at least immediately thereafter.

     

    Although section 6 doesn’t use the word res gestae but it is based upon the English doctrine of res gestae which means things done. In Bhairon Singh v State of M.P the S.C held that the rule embodied in section is usually known as rule of res gestae. Section 6 lays down that the facts which are so connected with the fact in issue that they form part of the same transaction are relevant facts. It is one of the exception to the hearsay rule. The principle of this section is that whenever a contract or a crime is a fact in issue then evidence can be given of every fact which forms the part of the same transaction.

     

    Sections 6,7,8,9 and 14 give the various ways in which the facts are so related to each other to form component of the principal facts. The word same transaction has not been defined in the evidence act. According to Stephen a transaction is a group of facts, connected together to be referred to by a single legal name crime or a contract or wrong or any other subject of enquiry which may be an issue. To ascertain whether a series of acts are parts of the same transaction, it is essential to see whether they are linked together to present a continuous whole.

     

    The rule of efficient test for determining whether a fact forms part of same transaction or another depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as probable and subsidiary acts to constitute one continuous action.

     

    The question is to what extent such a statement can be regarded as part of same transaction. Some important guidelines in this regard are as follows:-

     

    1. Spontaneous and simultaneous utterance is a part of the transaction.
    1. Statement must be contemporaneous with the fact.
    1. The words must be de recenti.
    1. The statement should be an exclamation.
    1. The statement must be a statement of fact and not an opinion.

     

    Note : They are the acts talking for themselves not what people say when talking about the acts.

     

    1. Ratten v Queen
    1. R v Bedingfield
    1. R v Christie
    1. R v Foster
    1. Sukhar v State of U.P
    1. G. V. Vardhan Rao v State of A.P
    1. State of A.P v Panna Satyanarayan
    1. Sawal Das v State of Bihar
    1. Rattan Singh v State of H.P

     

    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- 5-11]

    RELEVANCY OF FACT

    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. Doctrine of res- gestae is relevant in which provision of evidence-
    2. (a) under section 6 of Evidence Act

      (b) under section 7of Evidence Act

      (c) under section 8 of Evidence Act

      (d) under section 9 of Evidence Act

       

      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

    [LECTURE-3]

    [SECTION 14-16]

    EVIDENCE OF SIMILAR FACTS

    MAINS-QUESTIONS

    1. How are facts showing the existence of a state of mind relevant when the existence of such state of mind is in issue?

     

    1. A is accused of murdering a woman X, It is sought to be proved that two years ago he murdered his wife Y and so had the mens rea to murder X?

     

    1. Answer with reason:

    A sues B for damage done by dog of B. B knows the dog to be ferocious. Whether the fact that

    the dog had previously bitten X,Y,Z and they had made complaint to B is relevant ?

     

    1. How can ‘Books of Account’ kept in regular course of business be proved?

     

    1. Are books of account maintained in the ordinary course of business themselves sufficient to fasten liability upon a defendant in a suit for recovery of moneys? No or yes?

     

                  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 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

    LECTURE-3

    EVEDENCE OF SIMILAR FACTS

    MAINS-QUESTION

     

    1. Facts showing the existence of …………….. is relevant under section 14 of the Indian Evidence Act.

    (a) State of mind

    (b) State of body

    (c) Bodily feeling

    (d) All of the above

     

    1. Which of the following is not covered under section 14 of the Indian Evidence Act?

    (a) Intention and knowledge

    (b) Motive

    (c) Rashness and negligence

    (d) None of the above

     

    1. Under section 14 of the Indian Evidence Act, upon the trial of a person accused of an offence ……..

    (a) The previous commission of an offence by the accused is relevant

    (b) The previous conviction of the accused is relevant

    (c) Both (a) and (b)

    (d) None of the above

     

    1. The question is whether A has been guilty of cruelty towards B, his wife. Expressions of their feeling towards each other shortly before or after the alleged cruelty are relevant facts under section …………. of the Indian Evidence Act.

    (a) Section 113A

    (b) Section 113B

    (c) Section 114A

    (d) Section 14

     

    1. A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved as showing the ………… .. of the letters.

    (a) Knowledge

    (b) Intention

    (c) Motive

    (d) None of the above

     

    1. A is charged with shooting at B with the intent to kill him. The fact of A’s having previously shot at B may be proved to establish the …………. of A.

    (a) Conduct

    (b) Intention

    (c) Motive

    (d) None of the above

     

    1. A series of similar occurrences, in each of which the person doing the act was concerned, is relevant under section…………….. of the India Evidence Act.

    (a) Section 15

    (b) Section 16

    (c) Section 17

    (d) Section 18

     

    1. Section 15 of the Indian Evidence Act deals with the rules of relevancy in cases where the question is whether the act is……….

    (a) Rash or negligent

    (b) Accidental or intentional

    (c) With motive or without motive

    (d) All of the above

     

    1. In order to be relevant under section 15 of the Indian Evidence Act, it is necessary that ………….. ..

    (a) All the acts have to form part of the same transaction

    (b) All the acts have to be part of a series of similar transactions

    (c) The accused has been convicted for similar transactions

    (d) None of the above

     

    1. The question is whether a particular letter was dispatched. The fact that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that the particular letter was put in that place are relevant under section …………. of the Indian Evidence Act.

    (a) Section 15

    (b) Section 16

    (c) Section 17

    (d) Section 18

     

    connect=”586″]

    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.

     

    1. What is the evidentiary value of confession made by an accused in police custody?

     

    1. What are the circumstances when confession of a co-accused may be proved against an accused?

     

     

     

     

              PAHUJA LAW ACADEMY

    LAW OF EVIDENCE

    CONFESSIONS

     

    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?

     

    1. In what case and subject to what conditions are dying declarations admissible in evidence?

     

    1. ‘A’ a woman, whose throat had been cut by some edged weapon, indicated by gesture before her death that ‘B’ was the person who had cut her throat. Is this statement by ‘A’ made by gesture admissible as evidence against ‘B’?

     

    1. Discuss the relevancy and evidentiary value of a dying declaration ?

     

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

     

    PAHUJA LAW AVADEMY

    DYING DECLARATION

      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

     

    SECTION 33

    Generally under section 60 there are several exception to the rule of excluding hearsay evidence. Section 32 and 33 are also exception to that rule. If a person makes a statement in judicial proceeding or before any person authorised by law to take evidence and afterwards he dies or cannot be found or is kept out of the way by adverse party etc and if the fact stated by him becomes relevant at the latter stage of the same proceeding or another subsequent judicial proceeding that previous statement can be proved without calling that person as a witness.

    But the previous statement of such person can be admitted in evidence only when:

    1. The first proceeding was between the same parties or their representative in interest.
    1. That the adverse party in the first proceeding had the right and opportunity to cross examine.
    1. Questions in issue was substantially same in the first and the second preceding.

    Shah Bharat Kumar vs Motilal Gujarat High Court said section 33 will apply when ex Parte decree is set aside.

    But in case of Aziz Ahmed v S A Patel (Andhra Pradesh high court) and Malkhan Singh v Raghubir Singh Allahabad High Court when an ex Parte decree is set aside the evidence recorded becomes illegal. Moreover, defendant had no opportunity to cross examine the witnesses. Therefore, the evidence of plaintiff recorded prior to setting aside decree not relevant under section 33.

    Gujarat High Court did not consider it necessary to recall his evidence when an ex Parte decree set aside and the defendant did not appear even at the Re instituted proceeding. Delhi also comply with the Gujarat High Court.

    CONFLICT BETWEEN SECTION 299 OF CRPC AND SECTION 33 OF INDIAN EVIDENCE ACT.

    Nirmal Singh vs State of Haryana Supreme Court held that on mere perusal of section 299 of CrPC deals with record of evidence in absence of the accused and section 33 of the Indian Evidence Act, It must be concluded that the pre conditions in both the sections must be established by the prosecution. It is only the statement of the witness recorded under section 299 of the CrPC before arrest of the accused can be utilised in evidence in trial after the arrest of such accused if it satisfies the condition mentioned under section 299(1).

    Thus, Section 299 is one of exceptional procedure of section 33 of Indian Evidence Act 1872. Whether evidence recorded by criminal court may be used by civil court.

     

    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. When are the opinions of experts relevant? What is their evidentiary value?

     

    1. What is the relevancy of DNA test evidence in India?

     

    1. When the opinion as to electronic signature is relevant?

     

    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.

     

    PAHUJA LAW ACADEMY

      EVIDENCE ACT

    EXPERT OPINION

    What a person thinks in respect of the existence or non existence on a fact is opinion 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 not opinion. The general principle of law of evidence is that every witness is a witness of fact and not of opinion. This means that a person who appears before a court is entitled to tell the court only the facts of which he has personal knowledge and not his opinion about the fact. He should speak of what he knows and not what he believes.

     

    The Supreme Court of India in Mubarak Ali Ahmed v State of Bombay has preferred to rely upon this reason that if a witness were permitted to express his opinion, it would amount to delegation of judicial function. A witness has to state the facts which he has seen or heard or perceived and not the conclusion which he has formed on observing or perceiving them. The function of drawing inferences is a judicial function and must be performed by the court.

     

    The exception to the rule are more prominent then the rule itself. The courts have been accustomed to act on the opinion of experts from early time. The reason is obvious. There are many matters which require professional or specialised knowledge which the court may not possess and may, therefore, rely on those who possess it.

     

    Section 45 makes the opinion of persons especially skilled in some science,art, foreign law, identity of handwriting and finger impression is relevant, and such person is known as an expert.

     

    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.

     

    State of Maharashtra v Damu Gopinath Shinde ( SC 2000) the sc held that without examining the experts as witness in the court , no reliance can be placed on expert evidence.

     

    PREREQUISITES OF EXPERT EVIDENCE:

     

    Before expert testimony can be admitted two things must be proved namely

     

    1. Expert Opinion when necessary
    2.  

    When the court is able to form its own opinion the expert opinion is not necessary. But wherein some technical question is involved which can be answered only by a person especially skilled, the expert opinion is necessary.

     

    1. The witness in question is really an expert

     

    In order to bring the evidence of a witness as that of an expert, it has to be shown that he made a special study of the subject or acquired a special knowledge of the subject. The section permits only the opinion of an expert to be cited in evidence. Now a question arises who is an expert? The only guidance in the section is that he should be a person especially skilled on the matter. The question of competency of fitness of a witness as an expert is to be decided by the judge. Thus, no formal qualifications are necessary to qualify a witness as an expert. There must be something to show that the expert is a skilled and has an adequate knowledge of the subject.

     

    Subjects on which exports can testify

     

    1. FOREIGN LAW

  • Foreign law means any law which is not in force in India.
  • A law which is in force in India is not foreign law even if it is of foreign origin.
  • Aziz Bano v. Mohammed Ibrahim, the Allahabad High Court observed that shia law is not a foreign law nor such law a science or art within the meaning of section 45.
  • Thus, it is the duty of the courts themselves to interpret the law of the land and apply it and not to depend on the opinion of witnesses however learned they may be.
  • Foreign law is a question of fact.
  •  

    1. Science or art
  • The terms science or art have not to be taken in any technical sense but as including anything that requires a specialised knowledge, skill, study or experience or is otherwise beyond the comprehension of a layman.
  • The word science or art include all subjects on which the course of a special study or experience is necessary to the formation of opinion.
  • 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, All H.C)
  • However, in Anita v Atal Bihari,High court of 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).
  • Medical opinion-
  • 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 1984 SC).
  • However, where the medical report differed from injuries described by the witnesses, medical evidence should prevail (Amar Singh v State of Punjab 1987 SC).
  • Between the opinion of two doctors, the opinion which supports direct evidence should be accepted (Piara Singh v State of Punjab 1977 SC).
  • In Wilayat Khan v State (1962 SC), 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 1992 SC ).
  • In Mohd. Zahid v State of T.N. (1999) SC, 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.
  • 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) SC].
  • 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)SC].
  • Credible ocular testimony was preferable to medical opinion [Ramakant Rai v Madan Rai 2003 SC].
  • 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 SC].
  • BRAIN MAPPING TEST
  • Selvi v state of Karnataka SC 2010
  • DOG TRACKING
  • – Scientific evidence
  • TYPE WRITING
  • – State through CBI New Delhi v S.J.Chaudhary.
  • – The supreme court said that section 45 is sufficient to include that the opinion of a person especially skilled in the use of typewriter and having scientific knowledge of typewriter would be an expert in this science and his opinion about the identity of typewriting for the purpose of identifying particular type writer on which the writing is typed is relevant under section 45 of the act. Further, the type writing is to be read within the meaning of the handwriting in the Act since type has become more common than handwriting on account of ability of the typewriters.

    1. HANDWRITING

    – Mode of proving handwriting

      By the evidence of the writer himself.

      By the opinion of an expert section 45.

      the evidence of a person who is acquainted with the handwriting of the person in question section 47

      Under section 73 by the court itself comparing the hand writing.

     

    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

     

    Relevancy of character in civil cases:-

    Section 52 lays down the broad general principle that evidence of a parties character cannot be given for the purpose of showing that it renders the conduct imputed to him as probable or improbable. The reason is that Court has to try the case on the basis of its facts for the purpose of determining whether the defendant should be liable or not. The court has not to try the character of parties and the evidence of character will not only prolong the proceedings but will also unnecessarily prejudice the mind of the judge on one way or the other. The business of the court is to try the case and not the man. A very bad man may have a very righteous cause.

     

    EXCEPTIONS

    1. Factors affecting damages

    The court is entitled to take note of the character of the plaintiff if it affects the amount of compensation which should be awarded to him. Section 55 Lays down this principle. The evidence of good or bad character of the defendant is irrelevant to damages. His good character cannot go to reduce damages and his bad character cannot aggravate them. It is only the character of the plaintiff which is declared to be relevant and that too when his character affects the amount of compensation which he ought to receive.

    Character of the plaintiff however is not relevant in every case of tort e.g. accidental cases. But in cases of defamation the general reputation of the plaintiff may be proved. In cases of breach of promise of marriage plaintiff’s general character for immorality is relevant. In civil cases good character being presumed the plaintiff may not prove his good character in aggravation of the damages. But the plaintiff’s character is relevant in action for defamation, etc., in mitigation of damages.

     

      When character is in issue

    Evidence can be given of a party’s character when his character is itself a fact in issue. For example an action is brought for divorce on the ground of cruelty, the cruel character of the defendant, being a fact in issue the plaintiff can lead evidence of it. Although there is no direct provision on the point relating to Civil cases, this should follow from section 5 itself which provides that evidence can be given of the facts in issue.

     

    1. When character appears from other relevant evidence

    A fact which is otherwise relevant cannot be excluded from evidence only because it incidentally exposes party’s character. When Hindu widow of a member of a joint family under customary law sues the other members for maintenance and the question is whether she had lost her right to maintenance because of her unchastity evidence of a bad character can be given because it is relevant.

     

    Relevancy of character in criminal cases:

    According to Section 53 in criminal cases good character of the accused is always a relevant fact. Evidence of good character is admitted as it is in compliance with the presumption of Innocence. Evidence of good character is also allowed because of the principle of benefit of doubt. In Habeeb Mohammed vs State of Hyderabad Supreme Court held that under section 53 evidence as to good character of the accused is always relevant in a criminal case for the purpose of showing the state of his mind. In criminal proceeding a man’s character is often a matter of importance in explaining his conduct and in judging his Innocence or criminality. If the case is clearly established against the accused the evidence of good character will not carry any weight but in doubtful cases such evidence is of great significance as it is strengthens the presumption of Innocence and can explain acts and conduct, which are otherwise suspicious and even prima facie criminal. The emphasis of section 54 is that the prosecution cannot lead evidence of the bad character of the accused as part of its original case. They can produce evidence of bad character only reply to the accused showing his good character.

     

    EXCEPTIONS

     

    1. To rebut prior evidence of good character

    Section 54 recognises this exception. It says that evidence of bad character is irrelevant unless evidence has been given that he is a man of good character, in which case it becomes relevant.

     

      When character is an issue

    Where the bad character of the accused itself is a fact in issue the evidence of bad character of the accused may be given. e.g. section 110 of Cr. PC.

     

    Evidence that the accused had committed similar criminal acts previously is admissible upon the issue to decide whether the Act was intentional or accident.

     

    If the evidence of bad character was introduced in order to establish a relevant fact which cannot be proved separately the evidence of that bad character is admissible. Where the previous conviction is relevant as evidence of bad character, evidence of bad character is relevant, e.g. section 75 of IPC.

     

      When otherwise relevant

    Evidence can always be given of facts which are relevant under any of the provisions relating to relevancy give an instruction 6 to 55 even if such facts incidentally involved reveal the character of the accused or of the prosecutor. If his bad character will show an essential state of mind it will be relevant under section 14 and if it is essential to show design or a system to overthrow the defence of accident it will be relevant under Section 15.

     

    0

    The explanation to section 55 gives the meaning of expression character.

    Character includes reputation and disposition.

    Reputation means what is thought of a person by others and is constituted by public opinion.

    When a man says that another has a good character in this sense he gives the result of his own personal experience and observation or his own individual opinion of the person’s character. Disposition As for evidence of character evidence may be given only of general reputation.

     

    PAHUJA LAW ACADEMY

    LECTURE NOTES

    Character when Relevant

     

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

    (a) Civil cases

    (b) Criminal cases

    (c) Both (a) and (b)

    (d) None of the above

     

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

    (a) Relevant

    (b) Irrelevant

    (c) Depends

    (d) None of the above

     

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

    (a) Section 50

    (b) Section 51

    (c) Section 52

    (d) Section 53

     

    1. In criminal proceedings the fact that the accused person has a bad character, is relevant…………….

    (a) When evidence has been given that he has a good character, in which case it becomes relevant

    (b) Cases in which the bad character of any person is itself a fact in issue

    (c) Both (a) and (b)

    (d) None of the above

     

    1. In civil cases, character evidence is inadmissible unless-

    (a) The character of a party is not a fact in issue.

    (b) The character of a party is a fact in issue.

    (c) Either a or b

    (d) Both a and b

     

    1. ‘A previous conviction is relevant as evidence of bad character’. The statement is-

    (a) True

    (b) False

    (c) Partly Correct

    (d) None of the above

     

    1. In civil cases, ‘the fact that the character of any person is such as to affect the amount of damages which he ought to receive is …………..

    (a) Relevant

    (b) Irrelevant

    (c) Depends

    (d) None of the above

     

    1. Part II of the Indian Evidence Act deals with………………

    (a) Relevancy

    (b) Proof

    (c) Burden

    (d) None of the above

     

    1. Which one of the following is/are correct-

    (a) In civil cases, character evidence is inadmissible unless the character of a party is a fact in issue.

    (b) In criminal cases, the evidence of good character is admissible generally.

    (c) Both a and b are correct

    (d) None of the above

     

    1. As per section 54 of the Indian Evidence Act, the previous bad character is not relevant except in…….

    (a) Hearing on sentence

    (b) In reply

    (c) Awarding compensation

    (d) None of the above

     

    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.

    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.

     

    Whether a mechanical device can be regarded as document? Although a gramophone or tape record is produced, the court cannuuot 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.
    1. Where a document is executed in several parts, each part is primary evidence of the document. E.g; A,B,C, partition deed, one document, three deeds.
    1. 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.
    1. 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 docume
    1. 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.
    1. Copies made from and compared with the original
    1. Counterpart of a document is secondary evidence against the party who did not sign it.
    1. 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.
    1. 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-

    a. of a person against whom the document is sought to be proved,. Or

    b. of any person out of reach of, or not subject to the process of the court.

    c. 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.

    1. 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. In this case, only the written admission is admissible.
    1. 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.

    In this case, any Secondary evidence of the contents of the document is admissible.

    1. When the original is of such a nature as not be easily movable. This would include case of bulky documents.
    1. When the original is a public document within the meaning of S.74.. In this cases, only certified copy is admissible.
    1. 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.

    In this cases, only certified copy is admissible.

    1. 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.
    1. When the nature of the case itself makes it clear that the party in possession that he will be required to produce it.
    1. When it appears or is proved that the other party has obtained possession of the original by fraud or force.
    1. When the adverse party or his agent has admitted that the original has been lost.
    1. When the adverse party or his agent already has the original in the court.
    1. 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
    1. 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.
    1. Section 45
    1. Section 47.
    1. Section 73
    1. Section 73 is diss.

     

    PAHUJA LAW ACADEMY

    ORAL EVIDENCE

     

    1. All facts, except the contents of documents or electronic records, may be proved by…………

    (a) Oral evidence

    (b) Documentary evidence

    (c) Either (a) or (b)

    (d) None of the above

     

    1. Which of the following is correct as per section 60 of the Indian Evidence Act?

    (a) Oral evidence may be direct or indirect

    (b) Oral evidence may be direct

    (c) Oral evidence must be direct in all cases

    (d) None of the above

     

    1. Which of the following evidence is excluded by section 60 of the Indian Evidence Act?

    (a) Circumstantial evidence

    (b) Hearsay evidence

    (c) Documentary evidence

    (d) None of the above

     

    1. A says in his deposition that the accused, B, told him that he had a scuffle with the deceased, C. A then spoke to D. Which of the following is direct evidence?

    (a) Testimony of A

    (b) Testimony of D

    (c) Both are hearsay

    (d) None of the above

     

    1. Content of documents may be proved under section 61 of Evidence Act

    (a) by primary evidence

    (b) by secondary evidence

    (c) either by primary or by secondary evidence

    (d) only by primary evidence & not by secondary evidence

     

    1. Secondary evidence of a document means

    (a) Copies of that document

    (b) Oral account of the contents of the documents

    (c) Both (a) & (b)

    (d) Only (a) & not (b)

     

    1. Secondary evidence of a document is admissible as a substitute for

    (a) Admissible primary evidence

    (b) Inadmissible primary evidence under certain circumstances

    (c) Inadmissible primary evidence under all the circumstances

    (d) Both (a) & (b) are correct

     

    1. 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.

     

    1. Content of under section 59 of evidence act

    (a) Can be proved by oral evidence act

    (b) Cannot be proved by oral evidence act

    (c) May or may not be proved by oral evidence act

    (d) Can only be proved by oral evidence under the order the court of law

     

    1. Evidence given by a dumb witness in the court by writing or signs shall be deemed to be………….

    (a) Documentary evidence

    (b) Oral evidence

    (c) Neither oral nor documentary evidence

    (d) None of the above

     

    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.

     

    PAHUJA LAW ACADEMY

    PUBLIC DOCUMENTS

     

    1. Public documents are defined in section…………… of the Indian Evidence Act.

    (a) Section 72

    (b) Section 73

    (c) Section 74

    (d) Section 75

     

    1. Which of the following is a public document?

    (a) Documents forming the acts, or records of the acts of the sovereign authority

    (b) Documents forming the acts, or records of the acts of official bodies and tribunals

    (c) Documents forming the acts, or records of the acts of public officers, legislative, judicial and executive of any part of India

    (d) All of the above

     

    1. Public records of private documents, kept in any State, are……………

    (a) Public documents

    (b) Private documents

    (c) Unofficial documents

    (d) None of the above

     

    1. Private documents are defined in section…………… of the Indian Evidence Act,

    (a) Section 72

    (b) Section ’73

    (c) Section 74

    (d) Section 75

     

    1. Which of the following is a public document?

    (a) FIR

    (b) Charge sheet

    (c) Judgment of a court

    (d) All of the above

     

    1. The modes of proving the contents of various official documents are given in section………….. of the Indian Evidence Act.

    (a) Section 78

    (b) Section 79

    (c) Section 80

    (d) Section 81

     

    1. An Act, order or notification of the State Government may be proved by…………..

    (a) Oral evidence

    (b) Journals publishing those documents

    (c) The records of the departments, certified by the heads of the department or by any document purporting to be printed by an order of the Government

    (d) None of the above

     

    1. Presumption as to genuineness of certified copies is contained in section………. of the Indian Evidence Act.

    (a) Section 78

    (b) Section 79

    (c) Section 80

    (d) Section 81

     

    1. Presumption under section 79 of the Indian Evidence Act contains…………..

    (a) A presumption of fact

    (b) A rebuttable presumption of law

    (c) An irrebuttable presumption of law

    (d) None of the above

     

    1. Presumptions as to documents have been provided in sections……….. of the Indian Evidence Act

    (a) Sections 80-90

    (b) Sections 79-89

    (c) Sections 79- 90A

    (d) None of the above

     

    EVIDENCE

    LECTURE NOTES

    Mains questions

    1. Write note on primary and secondary evidence. State with leading cases?

     

    1. What is Secondary evidence? Under what circumstances it can be given? Is uncertified copy of public document admissible if original has been destroyed?

     

    1. Can the court admit the photocopy of the original Memorandum and what are the requirements which a person must comply before he seeks to lead in evidence the photocopy/secondary evidence such of the memorandum?

     

    1. To prove his title. The complainant produces an unattested Photostat copy of a document on the ground that the original document is lost. Decide whether the document produced by the complainant may be admitted as secondary evidence.

     

    1. ‘A’ sues ’B’ on an agreement and gives ‘B’ notice to produce it. At the trial ‘A’ calls for the document and ‘B’ refuse to produce it. ‘A’ gives secondary evidence of its contents. Can ‘B’, in order to contradict secondary evidence, produce original document as evidence before the court?

     

    PAHUJA LAW ACADEMY

    LECTURE NOTES

     

    DOCUMENTARY EVIDENCE

  • The contents of documents may be proved either by primary or by secondary evidence. [sec.61]
  • The word ‘document’ has been defined in section 3 of the Evidence Act.
  • The contents of documents must be proved either by primary or secondary evidence. It means that there is no other method allowed by law for proving the contents of documents.
  • Primary evidence- Primary evidence means the (original) document itself produced tor the inspection of the court.
  • Primary evidence is that which is called as the best evidence, or that kind of proof which under any possible circumstances, affords the greatest certainty of the fact in question; and it is illustrated by the case of a written document, the instrument itself being always regarded as the primary or best possible evidence of its existence and contents.
  •  

    1. Documents in several parts.— partition deed

     

    1. Documents in counterparts.— patta and qabuliyat, cheque and counterfoil

     

    1. Document made by uniform process.- A files a suit against B for defamation alleging that B published a defamatory statement against him in a newspaper through which a defamatory matter was published to about 2,000 persons. Now in this case A need not prove the contents of all the newspapers. He may prove one copy of newspaper and that document will be the original in respect of the contents of the other newspapers. But when the question arises whether the document on the basis of which the news was published in the paper was written by B the contents of that original document is to be proved. The newspapers, which have been prepared by machine will not be original evidence but will be only secondary evidence of the original document.

     

    SECONDARY EVIDENCE

    1. Certified copies under the provision given in the Evidence Act – Section 76 of the Evidence Act lays down that every public officer having custody of a public document shall give to a person, on demand of, and on payment of legal fees, a copy of it (public document).

    – In Kalyan Singh v. Smt. Chhoti and others, it was held by the Supreme Court that under Evidence Act five kinds of secondary evidences are mentioned. Under sub-section (1) the certified copies of document under Section 79 of Evidence Act is presumed. But other copies should be proved by proper evidences. A certified copy of a sale deed can be presented as a secondary evidence in absence of original copy. But in this case the copy which is presented by the party is not certified copy. It is an ordinary copy. There is no evidence for the contents of original sale deed. The ordinary copy of sale deed cannot be secondary evidence. The court has right and duty to exclude this kind of evidence.

     

    1. Copies made from the original by mechanical process – According to this clause, (a) copies made from the original by mechanical process; (b) copies compared with such copies, are secondary evidence of original.

    – The copies must be made from the original by such mechanical process as in themselves insure the accuracy of the copy for example the printing, lithography or photography.

     

    1. Copies made from or compared with the original

    – If a copy is prepared word to word from the original, it is secondary evidence of the original. A copy prepared from it and compared ‘by it will be secondary evidence of its contents.

    – A copy prepared by another copy but compared with the original is a secondary evidence.

     

    1. Counterparts of documents

    – Patta and Qabuliyat

     

    1. Oral accounts of the contents of a document by some person who has seen it

    – Under this clause it is necessary that the person giving the oral account of the contents of document must have himself seen the original document;

    – It is not enough if he saw a copy of the original, nor shall it suffice, if somebody else saw the original and he described it to the deponent.

    – The word ‘seen’ under this clause means read.

    – Consequently a person who proposes to testify to the contents of a document must have read it. He may not describe its contents merely on the credit what another has told him, even though his informant purports to have read it aloud in his presence. Therefore oral account of one who has merely seen a document but is unable to read it is not secondary evidence.

    Distinction between Primary Evidence and Secondary Evidence

    PRIMARY EVIDENCE AND SECONDARY EVIDENCE

     

    – Section 64 lays down the best evidence rule with reference to documentary evidence. It says that the best evidence of the contents of the document is the document itself i.e., the original document. The contents of the document must be proved by production of original document i.e., primary evidence.

    – The section also lays down that in the cases mentioned under section 65 a secondary evidence of the contents of the document may be given and the court in such cases cannot insist upon the original being brought before it.

    – According to section 65 the secondary evidence about the contents of a document is admissible under the following circumstances:

    (a) (i) Where the original is in possession of adversary Party

    – (ii) When the original is in possession of a person out of reach or not subject to the process of the court.

    – (iii) When the Original is in possession of a person legally bound to produce it. (b) Where the existence or contents of the original have been admitted.

    – In this clause when the existence or contents of the original deed has been proved to be admitted in writing by the person against whom it is sought to be proved or by his representative- in-interest, the original need not be summoned and the contents of a document may be proved by secondary evidence.

    – In Iswar Das (dead) through L.R. v. Sohandas (dead) through L.R., there was question of proof of execution of mortgage deed. The execution of mortgage deed was not specifically denied by the defendant. It was, therefore, not necessary to call attester into witness box. The defendant mortgagee refused to file original deed. Thereupon, the plaintiff filed certified copy as secondary evidence. It was sufficient proof of execution of mortgage deed.

     

    – But if the original deed is inadmissible for want of registration or want of requisite stamp, the written admission will not be admissible under this clause.

     

    (c) When the original has been destroyed or lost or cannot be produced. Proof of loss.

    – In order to claim the benefit of Section 65(c), there should be credible evidence of the loss of the original. Loss can never be proved absolutely oral evidence of the loss of the original which has not been seen for many years satisfies the provision of this clause.

    – There must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all the sources and means, in the search of the document which were available to him.

     

    (d) When the original is not easily movable.

    – When the original is of such a nature as not to be easily movable, the secondary evidence of the contents of the document may be allowed. – In this case secondary evidence is admissible on account of great inconvenience and impracticability of producing the original.

     

    (e) When the original is a public document.

     

    – When the original is a public record, under Section 74 of the Evidence Act, a secondary evidence of its contents are admissible under this clause. In this case secondary evidence is admissible even when the original is in existence. This exception is based upon the consideration of conveniences.

    – In Marwari Kumhar v. Bhagwan Puri Guru Ganesh Puri, it was held by the Supreme Court that Secondary evidence can be led even of public document, if condition laid down under sub-clause (c) are fulfilled. Thus, if original public document has been lost or destroyed, the secondary evidence can be gniven of public document.

     

    (f) Certified copy permitted by the Act.

    – Secondary evidence of the contents of a document is admissible when the original is a document of which a certified copy is permitted by this Act or by any other law enforceable in India.

     

    (g) When the original consists of numerous accounts or huge document.

    – This provision is for the saving of public time.

     

    – Admissibility of the original.- It must be borne, in mind that Section 65 deals with the manner of proof. A distinction must be drawn between the admissibility of evidence and the manner of proof. Secondary evidence can only be given when the primary evidence or the document itself is admissible, when a certain document is inadmissible no secondary evidence is admissible. No secondary evidence can be given of a deed which is inadmissible due to want of registration.

     

    Rules as to notice to produce.

    – section 65, clause (a) that when the original is in possession of the adverse party or, somebody else, ‘a notice will be sent to him to produce the original and if he fails to do so the party wanting to prove the contents of the document will be allowed to adduce secondary evidence. Section 66 only lays down that the secondary evidence under section 65, clause (a) is admitted only when the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his attorney or the pleader a notice to produce it. This section has given few particular cases in which notice is not necessary before giving secondary evidence under section 65, clause (a).

     

    – Notice shall not be required in order to render secondary evidence admissible in any of the following cases or in any other case in which the court thinks it fit to dispense with:-

    (1) when the document to be produced is itself a notice;

    (2) when from the nature of the case the adverse party must know that he will be required to produce it;

    (3) when it appears that the adverse party has obtained possession of the original by force or fraud;

    (4) when the adverse party or his agent has the original in the court;

    (5) when the adverse party or his agent. has admitted the loss of the original;

    (6) when the person possession of the document is out of reach of, or not subject to the process of the court.

     

    (1) When the document is itself a notice.-

    – When the document to be proved is itself a notice, secondary evidence can be given without serving a notice upon the person in possession of the original.

    (2) When the adverse party must know that he will be required to produce it.-

    – In an action in contract, the pleadings imply notice as the orders and letters constituting the contract and so notice to produce the original is not needed.

    – In an action of redemption of a mortgage when the mortgagee is in possession of the mortgage-deed and fails to produce it, secondary evidence is admissible without summoning the original.

    (3) When the adverse party has obtained possession by force or fraud.-

    – The third case in which notice is produced is not necessary, is where the possession of the paper, the production of which is required has been obtained by the adverse party fraudulently or forcibly as where after the suit was brought, he has received it from a witness by fraud.

    (4) When the adverse party has the original in the court.

    – The fourth case in which notice to produce is unnecessary, is when it is proved that the adverse party or his solicitor or vakil has the original instrument in court; for the object of the notice is merely to enable him to produce it, if he likes, at the trial and thus to secure the best evidence of its contents. Where the document is at hand in the court-room in the opponent’s possession an instant demand is sufficient.

    (5) When the adverse party had admitted the loss.

    – The rule requiring the notice to the opponent proceeds on the assumption that the opponent has possession of the document, the object being that if he refuses to produce the original, secondary evidence may be given. It follows that where the document is admitted by the opponent to have been destroyed or lost, or even out of his possession no notice is necessary; for it is no longer a case of opponent's possession, but that of loss.

    (6) When the person in possession is out of reach, etc.

    – Where a person in possession of the original document is out of the jurisdiction of the court a notice of summoning the original is not necessary; secondary evidence may be given straightaway.

    – The court may dispense with notice in a fit case.

    – A court has absolute power when it thinks fit to dispense with a notice.

     

    SECTION 67.- Proof of signature and handwriting of person alleged to have signed or written document produced.- If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.

     

    – The modes of proving a signature are as follows:

    1. By calling a person who signed or wrote a document.
    1. By calling a person in whose presence the document was signed or written.
    1. By calling a handwriting expert.
    1. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written.
    1. By comparison of the court the disputed signature or writing with some admitted signature or writing.
    1. By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it.
    1. By the statement of a deceased professional scribe, made in the diary in course of business, that the signature in the document is that of a particular person.
    1. A signature is proved to have been made if it is shown to have been made at the request of a person by some other person e.g., by the scribe who signs on behalf of the executant.
    1. By the other circumstantial evidence.

    – Objection to the mode of proof should be raised at the time when it is being proved and not afterwards.

     

    PAHUJA LAW ACADEMY

    LECTURE NOTES

    Preliminary questions

     

    The contents of a document can be proved by………….

    (a) Primary evidence only

    (b) Direct evidence only

    (c) Primary or secondary evidence

    (d) None of the above

     

    1. Which of the following sections of the Indian Evidence Act mandates that all facts, except the contents of documents or electronic records, may be proved by oral evidence?

    (a) Section 56

    (b) Section 57

    (c) Section 58

    (d) Section 59

     

    1. Which of the following sections of the Indian Evidence Act mandates that the contents of documents may be proved either by primary or by secondary evidence?

    (a) Section 56

    (b) Section 57

    (c) Section 58

    (d) Section 61

     

    1. Primary evidence means………….

    (a) Documents itself produced the inspection of the court

    (b) Documents produced by person who prepared it

    (c) Either (a) or (b)

    (d) None of the above

     

    1. Which of the following sections the Indian Evidence Act primary evidence?

    (a) Section 60

    (b) Section 61

    (c) Section 62

    (d) Section 63

     

    1. 6. Where a document is executed in several parts, each part is primary evidence of the document. The statement is……….

    (a) True

    (b) False

    (c) Partly Correct

    (d) None of the above

     

    1. Which of the following sections of the Indian Evidence Act defines secondary evidence?

    (a) Section 60

    (b) Section 61

    (c) Section 62

    (d) Section 63

     

    1. Which of the following is/are secondary evidence?

    (a) Certified copies and copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies

    (b) Copies made from or compared with the original and counter- parts of documents as against the parties who did not execute them

    (c) Oral accounts of the contents of a document given by some person who has himself seen it

    (d) All of the above

     

    1. Which of the following has been termed as second-hand secondary evidence by the Supreme Court?

    (a) Dog tracking

    (b) News paper report

    (c) Expert evidence

    (d) None of the above

     

    1. The contents of a document can be proved by…………

    (a) Merely filing it before the court

    (b) By examining the author before the court

    (c) Either (a) or (b)

    (d) None of the above

     

    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.

    &bsp;

    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.

    &bsp;

    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.

    &bsp;

    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.

    &bsp;

    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.

    &bsp;

    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.

    &bsp;

    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.

    &bsp;

    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.

    &bsp;

    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.

    &bsp;

    LECTURE NOTE EVIDENCE

    SECTION 65A AND 65B

    MAINS

     

    1. What are special provisions in the Indian Evidence Act, 1872 regarding admissibility of electronic record? In what circumstances, information contained in electronic record can be accepted in evidence in the proceedings before a Court? Discuss with reference to relevant provisions.

     

    1. Discuss the provisions relating to admissibility of electronic records in evidence as per provisions of Indian Evidence Act, 1872.

     

    1. Write short note on admissibility and appraisal of electronic evidence.

     

    1. Oral admission-as to contents of electronic records and its relevancy.

     

    1. How may contents of electronic records be proved and how it become admissible in any proceedings?

     

    PAHUJA LAW ACADEMY

    SECTION 65A AND 65B

    ADMISSIBILITY OF ELECTRONIC RECORDS:

     

    – The Indian Evidence Act has been amended by virtue of Section 92 of Information Technology Act, 2000 (Before amendment). Section 3 of the Act was amended and the phrase “All documents produced for the inspection of the Court” were substituted by “All documents including electronic records produced for the inspection of the Court”. Regarding the documentary evidence, in Section 59, for the words “Content of documents” the words “Content of documents or electronic records” have been substituted and Section 65A & 65B were inserted to incorporate the admissibility of electronic evidence.

     

    – In Section 61 to 65, the word “Document or content of documents” have not been replaced by the word “Electronic documents or content of electronic documents”. Thus, the intention of the legislature is explicitly clear i.e. not to extend the applicability of section 61 to 65 to the electronic record. It is the cardinal principle of interpretation that if the legislature has omitted to use any word, the presumption is that the omission is intentional. It is well settled that the Legislature does not use any word unnecessarily.

     

    – The main objective to introduce the specific provision has its origin to the technical nature of the evidence particularly as the evidence in the electronic form cannot be produced in the court of law owing to the size of computer/server, residing in the machine language and thus, requiring the interpreter to read the same. The Section 65B of the Evidence Act makes the secondary copy in the form of computer output comprising of printout or the data copied on electronic/magnetic media. This contention is further strengthened by the insertion of Section 65A & 65B and the words “Notwithstanding anything contained in this Act” which is a non-obstante clause, further fortifies the fact that the legislature has intended the production or exhibition of the electronic records by Section 65A & 65B only. A non-obstante clause is generally appended to a Section with a view to give the enacting part of the Section, in case of conflict, an overriding effect over the provision in the same or other act mentioned in the non-obstante clause. It is equivalent to saying that despite of the provisions or act mentioned in the non-obstante clause, the provision following it will have its full operation or the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment or the provision in which the non-obstante clause occurs.

     

      – ANVAR P.V. VERSUS , P.K. BASHEER AND OTHERS

    – In this significant judgment, the Supreme Court has settled the controversies arising from the various conflicting judgments as well as the practices being followed in the various High Courts and the Trial Courts as to the admissibility of the Electronic Evidences. The Court has interpreted the Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary data in CD/DVD/Pen Drive are not admissible without a certificate U/s 65 B(4) of Evidence Act. It has been elucidated that electronic evidence without certificate U/s 65B cannot be proved by oral evidence and also the opinion of the expert U/s 45A Evidence Act cannot be resorted to make such electronic evidence admissible.

     

    – The judgment would have serious implications in all the cases where the prosecution relies on the electronic data and particularly in the cases of anticorruption where the reliance is being placed on the audio-video recordings which are being forwarded in the form of CD/DVD to the Court. In all such cases, where the CD/DVD are being forwarded without a certificate U/s 65B Evidence Act, such CD/DVD are not admissible in evidence and further expert opinion as to their genuineness cannot be looked into by the Court as evident from the Supreme Court Judgment.

    – It was further observed that all these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic records sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

     

    – In the aforesaid Judgment, the Court has held that Section 65B of the Evidence Act being a ‘non obstante clause’ would override the general law on secondary evidence under Section 63 and 65 of the Evidence Act. The Section 63 and Section 65 of the Evidence Act have no application to the secondary evidence of the electronic evidence and same shall be wholly governed by the Section 65A and 65B of the Evidence Act.

    –  To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[(2005), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

     

    – The only options to prove the electronic record/evidence is by producing the original electronic media as Primary Evidence court or it’s copy by way secondary evidence U/s 65A/65B of Evidence Act.

    – Thus, in the case of CD, DVD, Memory Card etc. containing secondary evidence, the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

     

    – The requirement of certification applies only to the secondary electronic evidence and not to the original electronic evidence.

     

    Evidence recorded through video conferencing:

     

    – State of Maharashtra v Praful B. Desai

    – R.M. Malkhani v state Maharashtra

    PAHUJA LAW ACADEMY

    SECTION 65A AND 65B

    ADMISSIBILITY OF ELECTRONIC RECORDS:

     

    1. The contents of electronic records may be proved in accordance with the provisions of section……… of the Indian Evidence Act.

    (a) Section 65B

    (b) Section 66B

    (c) Section 67B

    (d) Section 68B

     

    1. ‘Irrespective of the compliance with the requirements of section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, section 63 and section 65’. The statement is……….

    (a) True

    (b) False

    (c) Partly Correct

    (d) None of the above

     

    1. Which of the following sections of the Indian Evidence Act was inserted by the Information Technology Act, 2000?

    (a) Section 65A

    (b) Section 65B

    (c) Section 64A

    (d) Both (a) and (b)

     

    1. Which of the following shall be deemed to be a document as provided under section 65B of the Indian Evidence Act?

    (a) Any information contained in an electronic record produced by a computer which is printed on a paper

    (b) Any information contained in an electronic record which is stored, recorded or copied in optical or magnetic media produced by a computer.

    (c) Both (a) and (b)

    (d) None of the above

    PAHUJA LAW ACADEMY

    LECTURE NOTES

    MAINS

     

     

     

     

     

    PAHUJA LAW ACADEMY

    LECTURE NOTES

    WITNESSES

     

    According to S. 118, every person is competent to testify unless the court feels that he is not able to understand the question put to him or to give rational answers to them. This may be due to extreme old age, tender years, disease whether of body or mind, or may other cause of some kind. Thus, no person is particularly declared to be incompetent. It is wholly left to the discretion of the court to see whether the person who appears as a witness is capable of understanding the question put to him and of giving rational answers to them.

    Child Witness.:- The privy Council considered the competency of child witness in Mohamade Sugal v. The king, under the Indian Evidence Act, 1872 and the Indian Oaths Act, 1873, a court can receive evidence of person who does not understand the nature of an oath but is otherwise competent to testify, and understanding the questions put and being able to give rational answers. It is sound rule in practice not to act on the uncorroborated evidence of child, whether sworn in or unsworn, but this rule is of prudence and not of law.

     

    The Supreme Court, in State of Karnataka v. Shantappa Madivalappa Galapaji SC 2009 held that the evidence of a child is not to be discarded per se where the child is found to be competent and his evidence reliable, it can be acted upon.

     

    Child Witness’s affidavit not admissible Madras High Court held that a minor is incompetent to swear to an affidavit and cannot affirm statements recorded on the affidavit. Such an affidavit is not admissible under the Oaths Act (S.3 & S.5) and general clauses Act (S.3).

     

    Person of unsound mind:- The explanation to S. 118 makes it clear that the evidence of such a person is not necessarily inadmissible unless he is prevented by the disease of the mind from rationally understanding or answering questions.

    Victim of rape:- In State of Maharashtra v. C.K. Jain,the Supreme Court held that a prosecutrix of a Sex offence cannot be put on par with an accomplice. She is in fact victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted uपबnless it is corroborated in material particulars. She

    is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of violence.

     

    Value of witnesses:-account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudiced making any other evidence, including, medical evidence, as the sole, touch stone for the test of such credibility.

     

    The evidence must be tested for its inherent consistency and the inherent probability of the story. Consistency with the account of other witnesses held to be creditworthy, consistency with the undisputed facts; the credit of the witnesses, their performance in the witness box, their power of observation etc.

     

    Dumb Witnesses:- [S. 119]. A person who by reasons of dumbness or otherwise is unable to speak may give evidence by any means by which he can make himself intelligible, such as, by writing or by signs. Evidence so, recorded shall be regarded as oral evidence.

    Parties to civil suit, and their wives or husbands, Husband or wife of person under criminal trial

    In olden days it was favourite doctrine, that husband and wife were one person in law. Consequently when one of spouse was a party to a judicial proceeding the other was supposed to be a party and therefore, he or she was not allowed to appear as a witness for or against. Section 120 removes this bar and the husband and wife are competent witnesses for and against the other.

     

    Judges and Magistrates. [S. 121]:- Section 121 lays down that a judge or Magistrate cannot be compelled except upon special order of a higher court, to give evidence about his conduct in relation to case tried by him nor can be made to depose anything which he came to know as a court in the course of trial. This privilege cannot be claimed by such persons in respect of facts which they come to know not as court in discharge of their duty but, which is observed by them as ordinary men. It must be borne in mind that the privilege given by this Section is the privilege of witness if he waves such privilege, none else can raise an objection.

     

    Communications during marriage:- According to S. 120, the wife or husband of a party to a proceeding is a competent witness and capable to testify.

     

    According to S. 122, any communication during the wedlock by the husband to his wife or by wife to her husband is prevented from being proved in a court of law.

     

    Exception:-

    1. Acts apart from communications

    – Ram Bharose v State of U.P

    1. Evidence by third parties

    – Wigmore

    – Kerala case

    – M.C.Verghese v T.J.Ponnan

    1. Waiver of privilege
    1. Crimes or suits between married persons

    During the marriage:- It is important to note that this section applies to such matters as have been communicated during marriage. If a communication is made by one person to another after the dissolution of marriage between them or prior to the marriage, then this section does not aply and the husband or wife may be compelled to depose about it.

     

    Consent:- If the person who made the communication or his representative-in-interest consents then the other spouse becomes capable enough to give evidence.

     

    Cases:- In Ram Bharose v. State of U.P. the Supreme Court held that wife is competent to testify the conduct of husband but not the communication made to her by husband the conduct of a spouse is not necessary marital matter. If evidence of non-marital conduct can be given by the wife so should be true of non-marital communications. Ordinary conversation or letters relating to business should not be regarded as privileged.

     

    Evidence as to affairs of State [S.123]: Section 123 protects unpublished state records from being disclosed. The document must be related to the affairs of state and its disclosure must be against affairs of state or against public interest.

     

    The act of grating or refusing permission should not ordinarily be questioned in the court, but the trend of judicial authority is that this section shall be read along with S.162 when read together, the effect is that the final decision whether the permission should be granted or not should be with the court.

     

    Official Communications [S. 124]:- No public officer shall be compelled to disclose communications, made to him in official confidence, when he considers that the public interest would suffer by disclosure.

     

    The section gives a privilege to public officers to refuse to disclose matters which are brought to their knowledge in official confidence. The requisites of this privilege are that.

    (i) There should be a public officer.

    (ii) A communication has been made to him in official confidence.

    (iii) He has the discretion to refuse its disclosure on the ground that public interest would suffer by the disclosures.

     

    Information as to commission of offence [S.125]:-

     

    Section 125 has been enacted to safeguard the interests of such informers. If his name is disclosed the offender would certainly cause him injury and nobody would like to inform the public officer that an office is being committed in his neighbourbood.

     

    Professional Communications [S. 126]:- A man of legal profession, is forbidden from disclosing without his client’s consent.

     

    1. Any communication made to him in course of and for the purpose of his employment, or
    1. The contents of conditions of any document which came to his knowledge in the course of and for the purpose of his employment, or
    1. Any advice by him to his client in the course of and for the purpose of such employment.

    But the communication would not be privileged.

    1. When such communications are for an unlawful purpose having for their object the commission of a crime.
    1. (2) When after employment of the lawyer observes that some crime has been committed.

    This section has been enacted for the protection of the client and not of the lawyer. The lawyer is ,therefore ,bound to claim the privilege unless it is waived by his client.

     

    English and Indian Law:- The law relating to professional communication between the legal practitioner and client is the same in India as in England with the exceptions that in England the words “Criminal purpose” are used for the words “illegal purpose” used in S.126.

    Note:- Barristers, pleaders, mukhtars, vakils and attorneys are all prevented from disclosing the communication.

     

    During the existence of the relationship. If the communication is made during the existence of the relationship the privilege does not get terminated by the termination of the litigation or the death of the parties.

     

    Section 126 to apply to interpreters, etc [S. 127]:- The provision of S.126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.

    Privilege not waived by volunteering evidence [S.128]:- Section 126 lays down that a lawyer is not permitted to disclose a certain kind of communication without the consent of the client the section lays down:-

    (i) That if the client who made some secret communication to a lawyer appears as witness, he does not waive the privilege afforded by section 126. He cannot be cross examined on the subject, nor the lawyer can be called to depose about the communication

    (ii) Mere calling of the lawyer as a witness also does not amount to waiver of the privilege and lawyer cannot disclose the communication.

    But if the client calls the lawyer as a witness and puts him questions in respect of the communication, his consent would be deemed and then the lawyer would be permitted to disclose the communication.

     

    Confidential Communications with legal advisers [S. 129]:-Section 126 prohibits a lawyer from disclosing matters which have come to his knowledge from his client for the professional purpose.S. 129, on the other hand, place the client beyond the range of compulsion as to matters which have been passed between him and his professional legal adviser. The effect of the section is that a person cannot be compelled to disclose any confidential communication which has taken place between him and legal professional adviser.

    But if he offers himself as a witness, he may be compelled by the court to disclose such matters to the extent of which the court thinks it is necessary for the purpose of explaining the evidence which he has given, but not more than that.

     

    Note:- Section 130 provides that a person, who is not a party to a suit, but who has appeared only as a witness, shall not be compelled to produce the title deeds of any property or any document by virtue of which he holds the property as pledgee or mortagee or any document the production of which might tend to criminate him.

    But he can be so compelled if he has agreed to produce any such documents with the person seeking its production.

     

    Production of documents or electronic records which another person having possession, could refuse to produce [S131]

     

    S. 131 was substituted by the Information Technology Act, 2000 for the purpose of accommodating electronic records along with documents. The new section says that no one shall be compelled to produce documents in his possession or electronic records under his control which any other person would be entitled to refuse to produce if they were in his possession or control unless he consents to their production.

    Witness not excused from answering on the ground that answer will criminate. [S. 132].

     

    Where a question puts to a witness is relevant to the matter in issue the witness can be compelled to answer it and he cannot be excused from answering if simply because the answer would tend to criminate him or expose him to any civil or criminal liability or to a penalty or forfeiture

     

    The proviso, however, protects the witness is an important way. It provides that if a witness has been compelled to give an answer, his answer should not be used to Subject him to any arrest or prosecution; nor the answer can be proved against him in any criminal proceeding.

    But if the answer is false, the witness may be prosecuted for giving false evidence.

    Number of witnesses:- Section 134, makes a categorical declaration that no particular number of witnesses shall in any case be required for the proof of any fact.

    Listing the cause for the rule the Supreme Court has observed: The public are generally reluctant to come forward to depose before the court. It is therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurence have not been examined. Nor is it proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.

    The order of producing witnesses:- S. 135 makes it clear that the order in which witnesses are to be produced is generally regulated by the law relating to civil and criminal procedure respectively and if no provision has been given, the matter shall be determined by the court in the exercise of its discretion.

     

    Judge to decide admissibility [S. 136]:- when a party offers evidence of any fact it has to be decided whether the fact, if proved would be relevant. This question is to be decided by the judge. If a fact proposed to be proved is one of which evidence is admissible only upon the proof of another fact, the other fact should be proved before the evidence of the first fact is offered. If a person wants to prove a dying declaration he must prove the death of the person.

     

    Where the relevancy of one alleged fact depends upon the proof of another fact legic requires that the second fact should be proved in the first instance. But here again the court may in its discretion allow the first fact to be proved without proof of the second and may require the second fact to be proved subsequently.

     

    The question of admissibility of evidence should be decided as and when it arises. It cannot be left till the time of judgment. Any doubt about the admissibility of a piece of evidence should be in favour of admissibility.

     

    Examination in chief:- Cross-examination, Re-examination- The testimony of a witness is recorded in the form of answers to questions put to him. Witnesses are not permitted to deliver a speech to the court, but are supposed only to answer questions. Such questions to witness is called his examination.

     

    Every witness is first examined by the party who has called him and this is known as examination-in-chief. The witness is then questioned by the opposite party and this is called cross-examination. If a party who has called the witness seeks to question him again after the cross- examination that is known as re-examination.

     

    The order of examination is laid down, in section 138. According to the first para every witness shall first be examined by the party who has called him, then by the opposite party and then, if the party calling him so desires, be re-examined.

     

    The second para of the section enjoins that the examination-in-chief and the cross-examination must be confined to relevant facts. But, the cross-examination need not be confined to the facts touched in the examination-in-chief.

     

    The purpose of the cross-examination is to expose the truth about the testimony of the witness. But this is not the only method of discrediting a witness.

     

    Direction to Re-examination:- The re-examination shall be directed to the explanation of the matters referred to in cross-examination and if new matter is, by the permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter

     

    Cross- examination of person called to produce a document [S. 139]:- A person who has been called only to produce a document does not thereby become a witness and therefore cannot be cross-examined. He can be cross-examined only when he is called as a witness.

     

    Where the wife of a partner was called upon to produce the deed of dissolution of the firm, she was not permitted to be examined as a witness. Such a person does not become witness because he may either attend the court personally to produce the document or depute any person to do so.

     

    Leading question:- Any questions which suggests to the witness the answer which he is expected to make is known as a leading question. Leading question is not permitted in examination in chief because if such questions are allowed, the larger questioning him would be able to construct through the mouth of a witness a story that suits his client. Thus, it would be opposite to fair trail enshrined in art. 21 of the constitution.

     

    According to S. 141, leading question means any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

     

    Section 142 enjoins that leading questions should not be asked in examination-in-chief or in re-examination if they are objected to by the opposite party. In case the opposite party objects, the court can decide the matter and may in its discretion or disallow it. The section also enjoins the court that it shall permit the leading questions as to matters which are introductory or undisputed, or which have, in the opinion of the court, been already sufficiently proved.

     

    According to S. 143, leading question can always be asked in cross-examination.

     

    The total effect of the provision is that leading questions may be asked in the following cases:-

     

    (i) Where they are not objected to by the opposite party

    (ii) Where the opposite party objects but the court overrules the objection.

    (iii) Where they deal with undisputed or introductory nature or the matter in question has already been satisfactorily proved.

    (iv) Leading question may always be asked in cross-examination.

     

    Evidence as to matters in writing. The purport of S. 144 is that where a witness is under examination he may be asked whether a contract, grant or disposition of property about which he is giving evidence, was not in writing and if he says that it was, the opposite party may object to such evidence being given until the original document is produced or until the party producing the witness is entitled to give secondary evidence of it.

     

    A similar objection can be raised where a witness is about to give oral evidence of the contents of a document.

     

    Cross-examination as to previous written statements.

    Section 138, 140, 147, 148 and 154 of the Evidence Act provide for impeaching the credit of a witness by cross-examination. S. 145 lays down that procedure by which a witness may in cross-examination be contradicted by his previous statement in writing or reduced into writing. Very often a person makes a certain statement which is in writing. After words, in same proceeding he makes a statement contrary to what he has previously stated. Under section 145 the present statement of the witness may be contradicted by previous statement to show that he is not telling the truth.

     

    Use of the previous statement. A previous statement that is used under this section to contradict a witness is not to be used as substantive evidence in the case of the fact contained therein. The only purpose of contradicting with previous statement is to prove that the statement made in the court is reliable.

     

    This section in express terms applies to previous statement in writing or reduced into writing only and does not apply to statements not in writing or not reduced into writing.

     

    Section 145 and S. 161 Cr.P.C. in state of Kerala v. Babu and others, the Supreme Court held that S. 161 Cr.P.C. provides that the police officer investigating a case is entitled to examine any person and reduce the statement of such person in writing. This statement recorded by police officer u/s. 161 Cr.P.C. is considered as previous statement for the purpose of S. 145 of the evidence Act can be used as for the purpose of establishing contradicting or impeaching the credit of witness in the manner provided in S.162 Cr.P.C.

     

    Questions Lawful in cross-examination in the course of cross-examination a witness can of course, be asked all questions relating to relevant facts. But in addition to such questions, the witness can also be questioned as to his character etc.

     

    Thus, a witness can be asked the questions.

    (i) To test his veracity

    (ii) To discover who he is and what is his position in life.

    (iii) To shake his credit by injuries his character.

     

    Such questions can be asked even if the answer might tend directly or indirectly to criminate the witness or to expose him to a penalty or forfeiture.

     

    Testing the veracity of a witness means ascertaining his honesty so as to advise the court. To what extent the witness is creditworthy. Questions can also be asked to find out his position in life, that is who he is, what he does, what is his source of livelihood or whether he is genuine or a professional witness. All this may guide the court as to the creditworthiness of the witness shaking the credit of a witness by injuring his character means to expose his respectability, that is, whether he is respectable man and whether his character and conduct are such that he can be trusted to tell the truth to the court. This kind of questioning of the witness is known as cross-examination as to credit.

     

    Where the question is relevant only for the purpose of affecting the credit of the witness, the court has to decide in accordance with the provision of S. 148 whether the witness will be compelled to answer the question or not and may warn the witness that he is not obliged to answer it. When the question asked is such that it may lead to criminate the witness, he may object to the question on the ground that the question is not relevant to matter in issue.

     

    Section 147, Supplements the provision in S. 146 by providing that if the question put to the witness relates to a relevant fact the provisions of S. 132 evil apply, S. 132, provides that it the questions relates to a relevant fact, the witness shall be bound to answer the question and cannot be excused from answering it only on the ground that the answer will expose him to some civil or criminal liability. But whatever answer the witness shall be compelled to give shall not be used against him as an evidence, except that it the answer is false the witness may be prosecuted for giving false evidence.

     

    Court to decide when question shall be asked and when witness compelled to answer. [S. 148]. S. 148 makes it to the discretion of the court whether questions as to credit shall be asked or not or whether the witness shall be compelled to answer them or not.

     

    Where in the course of cross-examination the question asked to the witness is not relevant to the facts, but is asked only to shake his credit by exposing his character, the court has to decide whether or not the witness shall be compelled to answer it. The court may warn the witness if it thinks necessary, that he is not bound to answer.

     

    In deciding as to whether a witness should be compelled to answer or not the court shall have regard to the following consideration:-

    1. (1) If the court is of the opinion that the imputation could seriously affect the opinion of the court as to credibility of the witness the court should allow the question. The court considers such questions as proper. e.g. in cases of rape, the prosecutix may be cross-examined as to her connection with not only with the accused but with other men.

     

    1. (2) Again the court has to see whether, from remoteness of time or from its character it would affect the veracity of a witness only in a very slight degree the question is improper and it should not be allowed.

     

    1. Where there is the great disproportion between the importance of the imputation conveyed and the importance of the evidence given the question is improper and should be disallowed.
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    1. With a view to such consideration as said above it is further provided that the court may infer from the witnesses refusal to answer, that the answer, if given, would be not bound to do so.

     

    Questions not to be asked without reasonable grounds [S.149].:- No such questions as in referred in S. 148 ought to be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.

     

    e.g. a witness of whom nothing whatever is known is asked at random whether he is dacoit. There are no reasonable grounds for the question.

     

    Procedure of court in case of question being asked without reasonable grounds [S. 150]:- S. 150 is the penalty that may ensue against a reckless cross-examination, if the court is of the opinion that the questions were asked without reasonable grounds. The penalty is, the court may refer the case of such lawyer to the High Court for necessary action.

     

    Indecent and Scandalous question:- Section 151 confers upon the court the power to forbid indecent or scandalous question. The court can prevent such questions from being asked even if the question has some bearing upon the matter in hand. Such questions may be allowed only if they relate to facts in issue or are necessary for determining whether the facts in issue existed.

     

    Questions intended to insult or annoy. Section 152 enables the court to forbid questions which are asked only to insult or annoy the witness. Even if the question is on a proper point, the court may forbid it if it is needlessly offensive.

     

    Contradicting the witness. Another important protection against character assassination is contained in S. 153. If a witness has answered a question as to his credit, whatever be his answer, no evidence is allowed to be given to contradict his answer. The court has to find the facts of the case, not the character of the witness, and therefore, inquiry about the character need not be prolonged. The matter should end with whatever answer the witness has given.

     

    To avoid witness to take any undue advantage of this protection, following methods have been adopted to prevent him from taking liberty with answers.

    1. If the answer given by the witness is false, he may afterwards be prosecuted for giving false evidence. u/s. 193 of I.P.C.
    1. If he denies the previous conviction, evidence may be given of his previous conviction.
    1. If a question is asked to impeach the impartiality of a witness and he denied the suggestion contained in the question, his answer may be contradicted.

     

    Hostile witness: Cross-examination with Court permission.

     

    Where a witness makes statements against the interest of the party who has called him, he is known as hostile witness. This makes it necessary that he should be cross-examined by the very party who has called his so as to demolish his stand. This can only be done with the permission of the court. Section 154, declares that the court may in its discretion permit the party who has called a witness to put his such questions as could have been asked in cross-examination.

     

    The concept of hostile witness has been explained by the Supreme Court in Sat paul v. Delhi Administration-

     

    The court said that a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness is one called by who fails to prove such facts or proves an opposite fact.

     

    The court noted that because these expressions have been a source of uncertainty the authors of Indian Evidence Act avoided them and did not make it necessary that the court can grant permission to a party to cross-examine his own witness only when he became adverse or hostile. The granting of permission u/s.142 for asking leeding question and u/s. 154 for cross-examining a party, won witness, have been left wholly to the discretion of the court. The discretion conferred by S.154 is unqualified and unframetted and is apart from any question of hostility.

     

    Note:- The Supreme Court has laid down that permission for cross-examining one’s own witness should not be granted to the party at the mere asking. The courts are under a legal obligation to exercise discretion vested in them in a judicious manner by proper application of mind. The court said that it was not sufficient for the public prosecutor to proclaim that the witness had adopted a hostile posture.

     

    It is also necessary that the witness should have appeared and made a detrimental statement to the interest of the party who called him and not merely that he appeared in some earlier cases filed by the petitioner’s sister for a similar relief.

     

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

     

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

     

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

     

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

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

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

     

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

     

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

     

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

     

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

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

     

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

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

    Improper Admission and Rejection of Evidence

     

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

     

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

     

    PAHUJA LAW ACADEMY

    LECTURE NOTES

    WITNESSES

     

    1. Which of the following chapters of the Indian Evidence Act deals with ‘witnesses’?

    (a) Chapter VI

    (b) Chapter VII

    (c) Chapter VIII

    (d) Chapter IX

     

    1. A preliminary examination before the chief examination is suggested in the case of………

    (a) Defence witnesses

    (b) Child witnesses

    (c) Expert witnesses

    (d) None of the above

     

    1. The court may dispense with the administration of oath in the case of child witnesses as per

    (a) Section 118 of the Indian Evidence Act

    (b) Section 119 of the Indian Evidence Act

    (c) Section 5 of the Oaths Act

    (d) None of the above

     

    1. In which of the following cases did the Supreme Court hold that leading questions on a material part of evidence by the prosecutor would offend the right of the accused to fair trial, enshrined under Article 21 of the Constitution of India.

    (a) Vincent v State of Kerala

    (b) Varkey Joseph v State of Kerala

    (c) Vijayan v State of Kerala

    (d) Kehar Singh v State

     

    1. The competency of a child witness can be tested by the…………..

    (a) Evidence test

    (b) Voiredire test

    (c) Mcnaughten test

    (d) None of the above

     

    1. What is the minimum number of witnesses required for the proof of any fact?

    (a) No particular number

    (b) At least one eye witness

    (c) Two witnesses with regard to documents

    (d) One party and one witness

     

    1. A lunatic is…………….. witness

    (a) Incompetent witness

    (b) Competent witness

    (c) Competent during lucid intervals

    (d) None of the above.

     

    1. Evidence given by a dumb witness in the court by writing or signs shall be deemed to be………….

    (a) Documentary evidence

    (b) Oral evidence

    (c) Neither oral nor documentary evidence

    (d) None of the above

     

    1. Under which of the following sections of the Indian Evidence Act is the evidence of a dumb witness taken into consideration?

    (a) Section 116

    (b) Section 117

    (c) Section 118

    (d) Section 119

     

    1. No judge or magistrate shall be compelled to answer any questions, as to his own conduct in court as such judge or magistrate, or as to anything which came to his knowledge in court as such judge or magistrate ….

    (a) Under any circumstances

    (b) Except upon the special order of some ‘court to which he is subordinate

    (c) Except in impeachment proceedings

    (d) None of the above

    PAHUJA LAW ACADEMY

    THE INDIAN EVIDENCE ACT

    MAINS

     

    1. Write note on burden of proof?

     

    1. A is charged with travelling on a Railway without ticket. He denies this on whom does the burden lie?

     

    1. In a criminal trial the burden of proof is always on the prosecution. Has this rule any exception?

     

    1. What is meant by “Res Ipsa Loquitur”.

     

    1. 5. When the question is whether a man is alive or dead and it is shown that he was alive within thirty years. On whom the burden lies of proving that the man is dead?

     

    PAHUJA LAW ACADEMY

    THE INDIAN EVIDENCE ACT

    BURDEN OF PROOF

     

  • The burden of proof means the obligation to prove a fact. The strict meaning of the term burden of proof (onus probandi) is that if, no evidence is given by the party on whom the burden is passed the issue must be found against him.
  • The word” burden of proof” has not been defined in evidence Act. In criminal case, it is accepted principle of criminal jurisprudence that burden of proof is always on prosecution it never changes. This conclusion is derived from fundamental principle that the accused should be presumed to be innocent till he is proved guilty beyond reasonable doubt and accused has got night to take benefit of some reasonable doubt.

     

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

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

     

  • Burden of proof in civil cases :-
  • In civil cases, the burden of proof in the sense of proving a case is discharged by more preponderance of probability. The standard of proof applies in all the civil cases. The court has to strike the balance of probability.

     

    The plaintiff need not prove his case beyond doubt. It is enough his to show, like a civil case, preponderance of probabilities in his favour.

     

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

     

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

     

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

     

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

     

  • Burden of proving that case of accused comes within exceptions [S.105]-
  • This section is an extension of S.103. Now according to this Section, the burden of proof is upon the accused of showing existence, if any of circumstances of his bring the offence charged within any of the special as well as of any of the general exceptions or proviso contained in any pact of the penal code or any law defining the offence.

     

  • The meaning of this section is that it is not for the prosecution to examine all possible defenses which might be put forward on behalf of an accused person . Note :- Under English law, there is distinction between the Burden on the prosecution and burden on the accused. When the burden is on the prosecution, the case must be proved beyond reasonable doubt. But when the burden is on the accused, he is not, in general, called, upon to prove it beyond reasonable doubt, it is sufficient if he succeeds in proving a Prima facie case for, than the burden is shifted to the prosecution. In India the same principle has been applied.
  •  

  • Burden of proving fact especially within knowledge [S. 106 ]. –
  • Section 106 lays down that where the subject matter of the allegation peculiarly, lies within the knowledge of not party, that party must prove it, whether it may be of affirmative or negative character e.g, A is charged with travelling on a railway without ticket the burden of proving that he had a ticket is on him .

     

  • Principle of S. 107 & S. 108
  • It has been laid down that under S.107 of the Evidence Act that if a person is proved to have been living within 30 years, it shall be presumed that he is alive and the burden of proving that he is dead lies on the person who affirms that he is dead. Section 108 on the other hand lays down that when it is proved that a person is not heard of for 7 years by those who would have naturally heard of him if he had been alive the burden of proving that he is living is shifted to the person who affirms it.

     

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

     

  • The burden of proof as to relation in cases of partners etc[S. 109]-
  • This section declares that once it is shown that a person stands in relationship of partners of a firm, landlord and tenant or principal and agent , it shall be presumed that they continue in such relationship unless it is proved that they had ceased to stand so.

     

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

    The proverb “potior est conditeis possidents (when the parties are equally at wrong, the condition of the possessor is considered to be better.)” embodies the principle of S 110. This Principle does not apply when the possession has been obtained by force or fraud.

     

  • Proof of good faith in transaction where one party is in relation of active confidence[S 111]-
  • The burden of proving good faith of the transaction is on the party who is in a position of active confidence. e.g. the good faith of a sale by a client to attorney is in question in a suit brought by the client. The burden of proving good faith of the transaction is on the attorney. The examples of such transactions are contracts from children, from wife to husband, from chela to Guru and Guru, from Paradanashin lady, and so on. In all such transactions the dominating party is to prove that the transaction was fair and bonafide.

     

  • Presumption about legitimacy [S. 112]-
  • Maternity admits positive proof , but paternity is a matter of inferences. The connection of a child with his father is a secret which may be ascertained by the subsisting facts. Section 112 lays down the rule for the proof of the paternity of an individual. This section lays down if a child is born during the continuance of valid marriage between the mother and a man or within 280 days after the dissolution of marriage, the mother remaining unmarried it shall be presumed that the child is a legitimate child of that man unless and until it is shown that the parties to the marriage had no access to each other any time when the child would have begotten.

     

    Presumption as to valid marriage or factum of marriage must be proved. In Raghunath Parmeshwar pandit Rao Mali v/s. Eknath Gajanan kulkarni, the Supreme Court laid down very important proposition that in certain circumstances the valid marriage can be presumed. The Supreme Court held that where there was evidence on record to prove staying together as husband and wife for continuous and long period there is presumption of valid marriage

    Access-

    “The word access” in this Section means the actual sexual intercourse. If it is established that the husband was physically incapable of procreating it will mean no access within the meaning of this section. If it is proved that man is impotent the non access will be proved.

    Relevancy or admissibility of DNA or RNA test-

    The result of a genuine DNA Test is said to be scientifically accurate but even that is not enough to escape from the conclusiveness of S. 112 of the Act e.g. if the husband and wife were living together during the time of conception but DNA test reveals that the child was not born to the husband the conclusiveness would remain unrebuttable.

     

  • Presumption of abetment of suicide [S. 113A]-
  • When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative had subjected her to cruelly , the court may presume having regard to other circumstances , that such suicide had been abetted by her husband or by such relative of her husband of by such relative of her husband. Section 113A is retrospective and so it applies to case where offence was committed prior to the insertion of section.[ Gurbachan Singh v Satpal Singh SC 1990] In the above case, the question was about the abetment of suicide by a married woman. The provision is procedural so, it has got retrospective effect also.

     

  • Presumption as to Dowry death [S. 113-B]-
    Under S. 113 B, when it is shown that soon before the death the woman had been subjected to cruelty or harassment by the accused for dowry the court shall presume that the accused had caused the dowry death and the burden is on the accused to rebut the presumption In Tarsem Singh v/s State of Punjab, the Supreme Court held that presumption under section 113 B is one of law. The presumption will be raised only on the proof of following essentials.
  • i. The presumption can be raised only if the accused is being tried for the offence under section 304 B IPC .

    ii. The woman was subject to cruelty by her husband or his relatives .

    iii. Such cruelty or harassment was for or in connection with any demand for dowry.

    iv. Such cruelty or harassment was soon before her death.

     

  • Soon before her death-
  • In Kans Ravi v/s state of Punjab, the Supreme Court explained the term “soon before” which occurs in S. 113B. The Supreme Court held that the term “soon before” is relative term which is required to be considered under specific circumstances of each case and no straight jacket formula can be laid down by fixing any time. This expression is pregnant with the proximity bar. If the cruelty or the harassment of demand of dowry is shown to have persisted, it should be deemed to be soon before the death. The demand of dowry cruelty or harassment based upon such demand shall not be too remote in time which other circumstances be treated as having become stale enough. The expression “Soon before her death” under in section 304-B IPC and S. 113 B of the evidence Act connotes the idea of proximity test. No definite period has been indicated. It has been left to be determined by Courts depending upon facts and circumstances of each case. Normally, it would imply that the interval should not be much between the cruelty or harassment and death in question.

     

    Note-

    The onus on the accused in case of dowry death is heavier than the onus in case of presumption of abetment of suicide by a married woman under S. 113 A of evidence Act.

     

  • Court may presume existence of certain facts[S. 114]-
  • If a fact is likely to have happened in the common course of natural events according to general human conduct according to public and private business in their relation to the facts of the particular case, the court may presume that existence of such fact

    This section gives the Courts very wide power. If a fact must have happened in the ordinary course of events the court may presume it and the party denying its existence has to rebut it e.g. if a letter is posted in the letter box, it nothing unusual happens, it must reach the addressee. So if it is proved in the court that the letter was posted it shall be presumed that it reached the addressee.

    Illustrations –

    The application of this section is very wide. The section not only covers the particular instances given in the illustrations to the section but all sorts of similar cases which are equally amenable to the general principle enunciated by the section. The illustrations are not exhaustive. They merely illustrate the principle of the section.

    Illustration (a)- In a criminal case the burden of proof always lies on the prosecution, for the accused is to be presumed to be innocent. The illustration (a) is an exception to this general rule. This illustration lays down that as soon as it has been established that the prisoner was found in possession of stolen goods shortly after they were stolen , it may be presumed that he is, either a thief or has received the goods knowing them to be stolen, unless he can account for his possession.

     

    The presumption permitted by illustration(a) does not arise until the prosecution has established the following facts-

    i. The ownership of the articles in question.

    ii. Their theft, and

    iii. Their recent possession by the accused.

     

    Note- It must be born in the mind that in order to give rise to presumption under illustration(a) the possession of the accused must be exclusive as well as recent e.g. If the articles stolen were found in a room or house where he lives with others, no definite presumption of his guilt could be made.

    Note- It is also remembered that if the accused gives an account as to how her he lame by the property and that explanation is reasonable no presumption under this clause can be raised and accused is entitled to acquittal.

    e.g, A cycle was stolen from A. After a month it was found in the possession of B. B says that he purchased it from a shopkeeper. He provides a receipt to that effect. He is entitled to an acquittal. Illustration (b) -It lays down that an accomplice is not to be believed unless he is corroborated in material particulars.

    The principle reasons for holding that an accomplice is unworthy of credit are as follows-

    i. An accomplice is a participator in a crime and is consequently an immoral person and therefore he is likely to disregard the sanctity of oath.

    ii. An accomplice is likely to state falsely in order to shift the fault from his shoulders.

    iii. He gives evidence under the promise of pardon and on the condition that if he disclosed all he knows against those with whom he committed crime and this hope may lead him to favour the prosecution. Although as a matter of law corroboration is not necessary to convict an accused person on the evidence of an accomplice, an accomplice should as a rule, be presumed to be unworthy of credit, unless he is corroborated.

     

    Corroboration nature of –

    Independent corroboration does not mean that every detail given by the accomplice must be corroborated by the independent witnesses. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and it is safe to rely on. Corroboration need not be by direct evidence that the accused committed the crime, it is sufficient even though it is merely circumstantial evidence of his connection with the crime.

     

    Illustrates (c)-

    Bill of exchange and promissory notes enjoy the privilege of being presumed prima face to be drawn for valuable consideration. But if the drawer of bill of exchange is a man of business and the acceptor is a young and ignorant man completely under the drawer’s influence there shall be no presumption that the bill was drawn for valuable consideration.

     

    Illustration (d)-

    Presumption of existence from previous and subsequent existence. According to this illustration if it is proved that a thing or state of things existed within a period shorter than that within which such things or state of things usually ceased to exist, the court may presume, that the thing or state of things exist at the time of the trial. The illustration is founded on the presumption in favour of continuance. It is very general presumption founded on the experience of human affairs, that things once proved to have existed in a particular state are to be understood as persisting in continuing in the state, until the contrary is established by evidence either direct or circumstantial.

     

    Illustration (e) the performance of judicial and official acts-

    The illustration says that when it is proved that a judicial or official acts have been done. It may be presumed that it was done regularly. The rule embodied in this illustration is a particular application of the rule that all acts are presumed to have rightly and regularly done. This presumption is chiefly and particularly applied to judicial and official acts.

     

    Illustration (f)- In commercial transaction the presumption is that the usual causes of business was followed by the parties. This illustration should be read with S. 16 which says that when there is a question whether a particular act was done, the existence of any course of business according to which it naturally could have been done is a relevant fact.

    e.g. if a letter containing notice properly addressed is proved to have been put in post office, it is presumed that it reached its destination at the proper time and was received by the addressee.

     

    Illustration (g)-Presumption from with holding evidence –

    This illustration lays down that if evidence which can be put is not produced it may be presumed that if produced it would be unfavorable to the person who with held it. The omission of a party in a proceeding to produce the evidence which he could have produced raised a presumption against his claims. e.g. If the court directs the State Government to produce certain documents and the government does not produce the documents, adverse inference against the govt. may be presumed.

     

    Illustration(h) –
    Refusal to answer- The Court any presume that if a man refuses to answer a question which he is not compelled to answer by law , the answer , if given would be unfavorable to him.

     

    Illustration (i) –
    Documents in hands of oblige- There is a natural presumption that a person discharging his debt will generally protect himself securing the document creating the liability. So, when the bond is produced by the obligor, the presumption is that it has been satisfied.

    Note-
    it must be remembered that if a bond is in possession of obligor but the circumstances of the case are such that he might have stolen it, it may not be presumed that obligation has been discharged.

     

    Presumption about absence of consent in case of rape.[S. 114 A]

    In order to constitute, an offence of rape, under Indian Penal Code 1860 two facts have to be proved-

    i. The accused had sexual intercourse with a woman.

    ii. The rape was committed without her consent.

     

    Thus, according to S. 114 A the prosecution has to prove only that there was sexual intercourse between the accused and prosecutrix. After that if the prosecutrix states that she did not consent, the court shall presume that the sexual intercourse was committed without the consent of the woman then the burden of proof lies of the accused that he committed the sexual interfuses with the consent of woman but if he fails to prove the consent of the woman, he shall be committed for the offence of rape u/s 376 IPC.

     

    PAHUJA LAW ACADEMY

    THE INDIAN EVIDENCE ACT

    BURDEN OF PROOF

     

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

    (a) Section 99

    (b) Section 100

    (c) Section 101

    (d) Section 102

     

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

    (a) Who files the case

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

    (c) Against whom it is filed

    (d) None of the above

     

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

    (a) Section 103

    (b) Section 100

    (c) Section 101

    (d) Section 102

     

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

    (a) Prosecution

    (b) Accused

    (c) Police

    (d) None of the above

     

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

    (a) Section 105

    (b) Section 106

    (c) Section 107

    (d) Section 108

     

    1. Section 109 of the Indian Evidence Act deals with the burden of proof as to relationship in the case of…….. ..

    (a) Partners

    (b) Landlord and tenant

    (c) Principal and agent

    (d) All of the above

     

    1. Burden of proof as to ownership is provided under section………… of the Indian Evidence Act.

    (a) Section 109

    (b) Section 110

    (c) Section 111

    (d) Section 112

     

    1. Presumptions under section 111A are applicable to offences under section …………… of the Indian Penal Code.

    (a) Sections 121, 121A, 122 or 123

    (b) Sections 498A and 304B

    (c) Sections 109 and 306

    (d) All of the above

     

    1. Presumptions under section 113A are applicable to offences under section………. of the Indian Penal Code.

    (a) Sections 121, 121A, 122 or 123

    (b) Section 304B

    (c) Section 306

    (d) Section 498A

     

    1. ‘Even a negative DNA test report cannot help to rebut the presumption drawn under section 112 of the Indian Evidence Act’. The statement is …………

    (a) True

    (b) False

    (c) Partly correct

    (d) None of the above

     

    PAHUJA LAW ACADEMY

    THE INDIAN EVIDENCE ACT

    MAINS

     

    1. Write a short note on estoppel?

     

    1. Write brief explanatory note on waiver.

     

    1. Distinguish between Estoppel and waiver?

     

    1. What is promissory estoppel?

     

    1. What is estoppel? State different kind of estoppel?

     

    PAHUJA LAW ACADEMY

    THE INDIAN EVIDENCE ACT

    Estoppel

    ETOPPEL [Section 115 – 117]

    – Estoppel is a principle of law by which a person is held bound by representation, made by him or arising out of his conduct. If for example, a person made a statement, on which the other person acted and altered his position on the basis of the statement then he will be estopped from denying the truth of his statement. The foundation of the doctrine is that a person cannot approbate and reprobate at the same time.

     

    Kind of Estoppel:-

    1. Estoppel by record.

     

    1. Estoppel by deed

     

    1. Estoppel by Conduct.

     

    1. Estoppel by record:- Estoppel by record is enacted by a final judgment. A party relying on estoppel by record should be able to show that the matter has been determined by judgment in its nature final. The word final here used as opposed to interlocutory. Estoppel by record in the name of res-judicata has been dealt in C.P.C. 1908 Section 40 to 43 of the Evidence Act provide for the admissibility of previous judgments. Thus, the estoppel by record applies to both the judgments i.e. judgment in rem and judgment in personam.

    Section 44 of the Evidence Act lays down that if a judgment of court is filed in a case to prove estoppel it may be shown that the court delivering the judgment had no jurisdiction or that it was obtained by fraud.

     

    1. Estoppel by deed:- Those who make themselves party to a deed, they and their privies cannot deny the factual basis on which the deed was entered into e.g. where a lesses makes a deed of sub- lease / sub- lease will be bound by the period of the original lease, through not mentioned on the sub- lease.

     

    1. Estoppel in pais:- Where one has either by words or conduct made to another a representation of fact, either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself that another would as a reasonable man, understand that a certain representation of fact was intended to be acted on, and that other has acted upon the representation and altered his position, on estoppel arise against the party who made the representation and he is not allowed to cover that the fact is otherwise than he represented it to be.

     

    – Section 115 of the Indian Evidence Act, 1872 deals with estoppel by pair or conduct. So, the main ingredients of estoppel as defined in S. 115 are as follows:-

    (i) There must be some representation.

    (ii) The representation must be made with the intention to be acted upon.

    (iii) The representation must have been acted upon.

     

    1. Representation:- The representation to from the basis of an estoppel may be made either by (i) statement or by (ii) conduct and conduct includes negligence.

    – The existence of estoppel does not depend upon the motive, or on the knowledge of the matter, on the part of the person making the representation. Only the person to whom the representation was made or for whom it was intended can make use of it. A man who receives statement as second hand not meant for him, has no right to act upon such representation.

    – Representation of mere intention cannot amount to an estoppel. In order to find an estoppel the representation must relate to existing facts. If the representation relates to a promises de future it cannot be binding as an estoppel.

    – Representation must be clear and unambiguous.

    – A representation may be representation of facts, although it involves and includes matter of law also. Thus, one who has by fraudulent statement of a legal effect of an instrument, obtained some advantage will not be allowed to retain it.

    – Note:- Where the party effected by the representation had come to know before he acted upon it that the representation was false he cannot avail the rule of estoppel.

     

    1. (2) Intention of being acted upon.

    It is not necessary that the representation should be false to the knowledge of the party making it provided that (i) It is intended to be acted upon in the manner in which it was acted upon or (ii) the person who makes it so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it in that manner.

     

    1. The representation acted upon.

    To invoke the benefit of estoppel it has to be proved that the representation has been acted upon. Estoppel can rise only if a party to proceeding has altered his position on the faith of a representation or promise made by the other.

     

    – Estoppel:- A rule of evidence. An estoppel is only a rule of evidence cause under certain circumstances can be invoked by a party to an action. No cause of action arises on the estoppel itself.

    – No Estoppel against statute and law:- No estoppel against statute means that a person who makes a statement as to the existence of the provisions of a statutory law is not estopped, subsequently, from contending that the statutory provision is different from what he has previously stated.

     

    Promissory Estoppel:-

    – Doctrine of promissory estoppel has been variously called, promissory estoppel, requisites estoppel, quasi estoppel and new estoppel. It is principle evolved by equity to avoid injustice and though commonly named promissory estoppel.

    – The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relationship or effect a legal relationship to arise in future knowing or intended that it would be acted upon by the other party to whom the promise is made and it is in fact so acted by the other party, the promise would be trending on the party making it and would not be entitled to go back.

    Application of Doctrine of promissory estoppel to government.

    – The doctrine of promissory estoppel has also been applied against the government and the defence based upon executive necessity has been categorically negative.

    – The Supreme Court has refused to make any distinction between a private individual and public body so far as the doctrine of promissory estoppel on behalf of the government is unconstitutional and against public policy the question of promissory estoppel against government does not apply.

    – Sri Motilal padampat Sugar Mills v. State of U.P,the state of Uttar Pradesh had decided to give exemption from sales tax for a period of three years to all new industrial units in the state with a view to enabling them to come on firm footing in developing stage. The court applied the promissory estoppel on the government and did not allow them to get back from their promise.

     

    Estoppel of tenant and of licensee of person in possession. (s. 116].

    – Section 116 deals with estoppel

  • Between a tenant and his landlord
  • Licensee and Licensor.
  • – Tenant Cannot deny the title of landlord A tenant cannot dispute the right of his landlord by saying that he had nothing in the property. When tenant enters into tenancy with the landlord and gets the possession of the promise and so long as he continues the possession, he cannot set up that the landlord had no legal title. A tenant cannot deny the right of the person from when he took the tenancy.

    – To be clear, the tenant has to vacate the premises and then he can question the title of the landlord.

    – Similarly, the licensee cannot deny the title of the licensor. The rule of estoppel applies in the similar may as upon that of tenant.

     

    Estoppel of acceptor of bill of exchange, bailee or licensee. [S. 117]

    – This section deals with further instances of estoppel by agreement. Under this section an acceptor of bill of exchange cannot deny that the drawer had authority to draw such bill or to endorse it. But he may deny that the bill was realty drawn by the person by whom it purports to have been drawn. A bailee or licensee cannot deny that his bailor or licenor had, at the commencement of the bailment or license, authority to make the bailment or grant the license. But a bailee, if he delivers the goods bailed to a third person, may prove that such person had a right to them as against the bailor.

     

    PAHUJA LAW ACADEMY

    THE INDIAN EVIDENCE ACT

    Estoppel

     

    1. The doctrine of estoppel is contained in

    (a) section 115 of Evidence Act

    (b) section 114 of Evidence Act

    (c) section 113 of Evidence Act

    (d) section 112 of Evidence Act.

     

    1. The doctrine of estoppel is a

    (a) substantive law

    (b) rule of equity

    (c) rule of evidence

    (d) law of pleadings.

     

    1. Estoppels are binding

    (a) upon litigating parties

    (b) upon privies of the litigating parties

    (c) upon strangers to the lis

    (d) both (a) & (b) only.

     

    1. Estoppel is a rule of

    (a) civil action

    (b) criminal action

    (c) both civil and criminal action

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

     

    1. Estoppel can be

    (a) by matter of record resulting from the judgment of a competent court

    (b) by deed resulting from entering into a solemn engagement as to certain facts

    (c) by pais arising from agreement or contract and from act or conduct of misrepresentation resulting in a change of position

    (d) all the above.

     

    1. The estoppel in section 115 of Evidence Act

    (a) is an estoppel by record

    (b) is an estoppel by deed

    (c) is an estoppel by pais

    (d) all the above.

     

    1. In which of the following there is no estoppel

    (a) on a point of law

    (b) against a statute

    (c) attestation of a deed

    (d) all the above.

     

    1. Estoppel can be

    (a) by silence

    (b) by negligence

    (c) by election

    (d) all the above.

     

    1. Estoppel deals with

    (a) question of facts

    (b) question of right

    (c) both (a) & (b)

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

     

    1. Estoppel

    (a) is a cause of action in itself

    (b) creates a cause of action

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

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

     

     

     

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