LAW OF EVIDENCE
UNIT - I
1. Procedural law is about how the law gets passed and enforced: who has jurisdiction over whom, and what coercive processes they may use to bring suspected lawbreakers to justice. The famous Miranda lines "you have the right to remain silent" generally uttered in the U.S. when you are arrested are a species of U.S. federal procedural law. Procedure usually starts in a given case with a great deal of uncertainty and tries to reduce that uncertainty by fairly gathering and evaluating evidence, interpreting the law, and applying those facts to the law to reach legal conclusions.
But Substantive law involves every law that is not procedural: it is what
we normally discuss when talking about law or politics, namely the laws
defining and restricting rights and duties for their own sake, not primarily
for the sake of enforcing other laws.
Thus for example modern property, contract, tort, family, and criminal law are substantive legal areas, as are environmental, workplace, traffic, and most other regulations. On the other hand, the laws defining who may sue whom and where, and what does and does not constitute proper arrest, interrogation, and search of criminal suspects, are procedural laws. Historically, just to confuse things a bit, property rights sometimes included rights of coercive procedure, for example the lord who had jurisdiction over his unfree tenants. This made property law in some cases part of the procedural law as well as a substantive law of economic property.
Computer protocols work in layers: wires carry bits of information, and bits of information carry text, pictures, and so on. The raw bits of information are a lower level protocol that carries the text and pictures in a higher level protocol. Language works like this too: at the lowest level, paper has letters written on it. Letters are a lower-level protocol that carries words in a higher level protocol. You can think of the distinction between substantive and procedural law in the same way: the procedural layer is a lower layer that "carries" the substantive law by specifying how it is to be enforced.
We can also think of government and government-like entities as lower levels of the legal protocol. Indeed, it is very useful to study political structures alongside procedural law. Think of coercive entities like police and courts as the paper and pencil, procedural law as the letters, and substantive law as the words and sentences we want to make out of these raw materials.
2. "While the distinction between substance and procedure is not always easy to draw, it is well recognized nonetheless.
The function of substantive law is to define, create or confer substantive legal rights or legal system. Procedural law provides the process that a case will go through (whether it goes to trial or not). The procedural law determines how a proceeding concerning the enforcement of substantive law will occur. Substantive law defines how the facts in the case will be handled, as well as how the crime is to be charged. In essence, it deals with the substance of the matter. Even though both are affected by Supreme Court opinions and subject to constitutional interpretations, each serves a different function in the criminal justice system.
Procedural law is exactly what the name implies. It sets out the procedure for how a criminal case will proceed. Every state has its own set of procedures which are usually written out in a set of rules called a code of criminal procedure. The basic rules which most jurisdictions follow include:
Punishment Systems Differ
How much detail is required for each phase of the criminal procedures will vary depending on the nature of your charges and what agency is prosecuting you. For example, Texas has a bi-furcated trial system where first you must be found guilty, and then the jury can hear punishment evidence. A jury is given a range of punishment to assess in your case. The range of punishment for a first degree felony is not less than five years and up to ninety-nine years or life. This is in stark contrast to the federal procedural law. Federal judges assess punishment and are required to utilize federal sentencing guidelines instead of a wide range system. A federal defendant's criminal history will be researched and summarized in a report by a federal probation officer. It's much easier to predict what your sentence will be in the federal system because the punishment procedures are based on a point system.
3. Substantive law, on the other hand, deals with the "substance" of your charges. Every charge is comprised of elements. Elements are the specific acts needed to complete a crime. Substantive law requires that the prosecutor prove every element of a crime in order for someone to be convicted of that crime. What elements are required will depend on the crime with which you are charged and the state's substantive laws. For example, for a felony driving while intoxicated charge, most states require prosecutors to prove that:
In New Mexico,
the prosecutor must show that you have previously been convicted three times
for driving while intoxicated, while substantive law in Texas only requires the
prosecutor to prove two prior convictions.
Because substantive law and procedural laws vary by state, and sometimes even by county, make sure you consult with an experienced criminal law attorney in your jurisdiction if you are charged with a crime. They will be more familiar with the rules and can help you invoke the protections outlined in the procedural and substantive laws of your state.
4. Substantive law is concerned with the ends which the administration of justice seeks.Procedural law deals with the means and instruments by which those ends can be achieved.
5. Substantive law determines the conduct and relation of litigants in respect of the matters litigated. But Procedural law regulates the conduct and relations of courts and litigants in respect of the litigation itself.
6. Substantive law regulates the affairs controlled by judicial proceedings. But Procedural law regulates the conduct of affairs in the judicial the conduct of affairs in the judicial proceedings.
7. Substantive law deals with the ends which the administration of justice seeks. But Procedural law deals with the means and instruments by which the administration of justice.
8. Substantive law is related and connected with public at large. But Procedural law is connected with the parties before the court.
9. The abolition of capital punishment is an alteration of the substantive law. But the abolition of imprisonment for debt is merely an alteration in the law of procedure as the imprisonment for debt is merely an instrument to enforce payment.
10. Substantive law relates to matters outside the court. But Procedural law deals with matters inside courts.
11. Substantive law provides substance of law in the shape of statute. But Procedural law is the law of actions meanings by actions.
12. Procedural law is that branch of the law which governs the process of litigation. But the entire residue is substantive law.
13. Substantive law is supreme in nature. But Procedural law is subordinate in nature.
Justice has emanated from nature. Therefore, certain matters have passed into custom by reason of their utility. Finally the fear of law, even religion, gives sanction to those rules which have both emanated from nature and have been approved by custom.'
The linkages between people and nature are as old as humans themselves. Long before the rise of modern global society, communities throughout the world prospered by husbanding natural resources in an attempt to adapt to the local natural environment. In the process, a wide-ranging body of knowledge, innovations and practices evolved, inextricably linked to the use of natural resources. It enabled most communities to live within the limits of their local environment and contributed to shaping their cultural and spiritual identity as well. Any effort to conserve nature and ecosystems, therefore, must take into consideration the interface between nature and culture.
Local communities, representing a significant part of India's population, are rooted in their immediate environment and their social organization is woven round the management of their environment with their culture elaboration taking place primarily through interaction with the immediate natural environment. These communities depend on local natural habitats for their biomass needs and natural resources. They have depended on their immediate natural environment for their survival for long and consequently developed a stake in conserving the local resources base.
a result of long and continuous usage of natural resources, these communities have acquired a broad know-ledge base of the behaviour of complex ecosystems of their locality. 'This cumulative body of knowledge and beliefs handed down through generations by cultural transmission about the relationship of living beings, including humans, with one another and with their natural environment,' is the indigenous knowledge. The indigenous knowledge and belief system determined the cultural ethos, value system and worldview of the community. This worldview, treating man as a strand in the web of life, was naturally conducive for nature conservation. This is indigenous wisdom.
But the entire process had its origin in the 'usage' of natural resources. Law, which is the product of a rather complex process of socio-political organization was unknown, at any rate in its present sense in the 'primitive' ages when society was not, as at present, a collection of individuals but an aggregate of families. There was no king or sovereign to frame rules or set laws for families. One family was independent of another and followed its own head, whose will or pleasure was 'law' unto its own members. Only when the families expanded and evolved into a 'community' and 'community' into 'society' were rules and principles established for the guidance of members. And most of these rules and principles had their origin in the 'usage' or 'practice' of natural resources of the community. The long and continuous usage by the community of the natural resources of the locality evolved into customary practices. And when customary practice from long usage obtained the force of law, it becomes customary law. A clear understanding of this 'process' led the Roman thinker and philosopher Cicero to trace the origin of most of the social laws to nature.
India was (and continues to be) a biomass-based civilization. The local communities of the independent 'village republics' of the 19th century had a locally defined physical environment and natural resources of their own to protect, care for, improve and sustainably use. People's links to earth were simple and harmonious and the common natural resources were regulated through diverse decentralized community control systems.
The forest was the home of compact tribal communities, like the Nilgiri Todas. Rural communities' dependant on subsistence agriculture lived in organized villages. These agriculture based rural people depended on their neighborhood forests for a variety of products and services. It was a case of harmoniously integrating the domesticated rural economy with that of the natural ecosystems for the subsistence survival of the rural folks.
Forests and other natural ecosystems were considered to be social commons of the locality. But the taking over of their forests and other village commons by the colonial forces resulted in depriving the community access to and control over their 'neighborhood nature-catchments reserves. Most of these forests were treated as reserve forests under the Indian Forest Act and the people found inside the forests were termed trespassers; further, the trespass was punishable under the said act. However, notwithstanding the statutory ban and bar, local communities continued to live in the forest and depended on non- timber forest produce for their survival. People were governed and guided by certain ground rules in the exploitation of non-timber forest produce. Traditional and customary practices in the usage of natural resources shaped the ground rules of sustainable use.
On the rural-agricultural front, it was a subsistence economy. And for the compact forest communities it was more than mere survival dependence on their habitat, the forests. These communities had to use their terrestrial, marine and aquatic bioresearches for a variety of economic, cultural and religious purposes. The rich oral library of indigenous knowledge and cultural control processes had co-evolved with the customary use of natural resources, helping most of the communities avoid over-exploitation and live within the limits imposed by their availability.
Self-imposed limitations on forest clearance, restriction on hunting, taboos on hunting or harvesting certain species, protection of sacred groves for religious reasons, rotational use of catchments areas (hunting and fishing reserves), lineal ownership of nature zones and use of appropriate local technologies which lower the impact of use or even increase biodiversity, are some examples of cultural controls. Traditional and customary practices of local communities in the usage of natural resources, on the whole, were conducive to the conservation of natural environment with minor exceptions.
Ancient custom is generally regarded as providing a foundation for many laws in most systems of jurisprudence and for reasons grounded in principle and justice. In Indian jurisprudence, immemorial custom is not merely an adjunct of ordinary law but a constituent part of it. In Hindu law, immemorial custom has proprio vigore, the efficiency of law. Custom has its origin in usage. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality is entitled to exercise specific rights against certain other persons in the same locality.
There can be usage without custom, but no custom without usage. Usage is inductive, based on consent of persons in a locality. Custom is deductive, making established local usage a law. They are often used interchangeably though custom was originally confined to local usages immemorially existing.
Custom, if the law is to uphold it as right, should be immemorial in origin, certain, reasonable in nature and continuous in use. Both national and international courts play an important role in the application of custom. The court by its imprimatur will attest the 'jural quality' of the custom. When a customary right is upheld by the court it becomes customary law. But to obtain that legal status, the custom must be ancient, certain and reasonable and, in derogation of the general rules of law, be construed strictly.
A custom must be ancient, immemorial: The court of law recognizes only those customs that are prevalent from ancient times. A custom, in order to be binding must derive its force from the fact that by long usage it has obtained the force of law. But the rigid standard of the English common law are not strictly applied to Indian conditions. All that is necessary to prove is that the usage has been in practice for a long period and with such invariability that it has by common consent been submitted to as the established governing rule of a particular locality. The right must be proved by clear evidence showing a continuous user as of right, nec ni nec clam nec procario. It should not have been exercised under permission. In a Madras case, the right to catch fish in a tidal river at a certain place by putting stakenets across the river was claimed on the basis of a custom and was held established as customary right of the locality on proof of thirty years use.
Custom must be reasonable: A custom derives its validity from being reasonable at inception and present exercise. The Indian decisions are in harmony with the English authorities. Menoor v. Denne and Tyson v. Smith, which elaborate on the reasonableness of customs. A customary right, namely the right to take earth for making pots, was claimed by the kumbhar community of a village and upheld in the Nagpur case of Bhiku v. Shooram, though it was a case of profits. In State of Bihar v. Subodh Gopal (AIR 1968), the Supreme Court held that a customary right in the exercise of which the residents of a locality were entitled to excavate stones for purposes of trade (and not for domestic or agricultural purposes) would ex facie be unreasonable, because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the right. The custom was therefore unreasonable.
Custom must be certain and invariable: The court will not recognise a custom as valid unless it is certain in its extent and mode of operation. The requirement that a custom should be certain is also expressed by saying that it should be definite, or that it should be invariable.
Other features: (i) Customary rights are not public rights. Public rights are in favour of the general public at large, but a customary right is in favour of a limited section of the public, like the inhabitants of a village or members of a community. The way in which a public right arises is known as 'dedication'. (ii) Customary rights are rights partaking of some of the characteristics of an easement, but are not easements in the proper sense; customary rights are not appurtenant to a tenement but exist in gross, i.e., they are not for the beneficial enjoyment of a dominant heritage but exist for a personal benefit. Easements are private rights belonging to a particular person while customary rights are public in nature annexed to the place in general. Customary right are specifically excluded from the purview of the Indian Easement Act, 1882.
When the courts in India recognised customary rights based on long usage, they become customary laws. These customary laws were the creation of Indian courts. Customary rights, by definition cannot be the creature of a written instrument. Neither were the principles of customary laws codified nor were the said customs listed out separately by legislation in India. However, customary rights were recognised as early as 1872, when the Indian Evidence Act was enacted. Section 13 of the act deals with the facts relevant for the proof of customary law. The Indian Forest Act 1927, under Sections 12 to 16 recognises rights to pasture and forest produce at the stage of settling rights before a given area of forest is classified as reserve forest. These rights are, no doubt customary rights. But these rights were seldom transformed into customary rights in the field. The reasons were twofold. Either the forest dependant communities were ignorant about their rights or the settlement officers, with their narrow and rigid pre-establishment mindset, were not inclined to grant such rights to the people. However, it should be admitted that the early colonial legislations enacted over a century ago did recognize customary rights, though such legislations were very few.
The Constitution of India, under Article 13, treats customary law along with other branches of civil law. A custom or usage if proved would be law in force under this article. These customary rights having the force of law can be taken judicial notice by courts under Section 57 of the Indian Evidence Act 1872.
During the colonial era, Indian courts attempted to formulate a more rational legal framework into which the customary rights could be integrated. In the absence of guidance from any substantial legislative law, it was left to the courts to develop customary laws as a new branch of civil law. However, most of the decisions rendered by the courts in the context of customary laws related to either hereditary offices or religious ceremonies. Though areas like community commons, community conservation and the corresponding traditional resource rights (TRR) clearly came under the purview of customary rights, these issues were seldom brought before courts for adjudication. The reasons were not far to seek. All disputes relating to the issues were sorted out in community panchayats. Also, the community did not recognize the jurisdiction of any outside institution to preside over their community resource disputes. And on their part, the colonial courts, with their Anglo-Saxon jurisprudence orientation in respect of ownership issues, were unable to understand the complex issues of community ownership and the custodial association related with ownership.
Custodial association is much more than community conservation of natural resources. Compact communities of India still have a concept of 'custodial association' with their community controlled natural commons. This man-nature relationship of custodial association represents the 'best and highest' in community conservation. This customary practice of local communities is well illustrated by the Toda tribe of the Nilgiris. The ancient pastoral Todas have lived on the upper plateau of the Nilgiris for centuries. They believe that they and their unique hill buffaloes were created on the Nilgiri hills (of Western Ghats) by their great Goddess Tokissay. The rolling mountain grassland with the shola forests in their fold was the homeland of Todas where they have grazed their buffaloes for generations. Many of the high peaks, shola forests and streams are in one way of another enshrined in their myths and legends and are sacred to the tribe. Therefore, the Todas, who are vegetarians, would neither hunt animals nor till the earth for agriculture. Their association with their habitat was 'custodial' in nature.
Their custodial association is a contribution of 'custodial responsibility' and 'custodial right' with endowments of nature. This custodial association is deeply rooted in their ethical philosophy. It would be incorrect to project this association only in terms of control over resources. Nature is not just an ensemble of resources; it is much more. This association is in the nature of custodial relationship among the members of a family. Todas are part of their habitat, a strand in the web of nature. This unique relationship was reflected in their use of natural resources and manifested in their traditional and customary practices.
For the Todas it was more a 'customary duty' than a 'customary right'. Little wonder, even the rigid Englishmen who set their foot on the Nilgiris, later recognised the customary rights of the Todas to their homeland. These rights were incorporated in the Tamil Nadu Forest Act 1882 as Toda Patta Lands by the colonial legislators, a right exercised by the unique Todas even today. Is there any scope for revival of customary law, which in turn can create some more space for community based conservation?
The Convention on Biological Diversity (CBD) adopted at the Earth Summit (1992) brought conservation of biodiversity to global centre stage. The convention, which has been ratified by India, ordains that nations should respect, preserve and maintain knowledge, innovations and practices of local communities relevant for conservation and sustainable use of biodiversity. The Rio Declaration on Environment and Development, Agenda 21 and Forestry Principle - other soft declarations adopted at the Earth Summit - also encourage the promotion of customary practices conducive to conservation.
The Constitutional 73rd and 74th Amendments are giant steps in regard to community conservation based on customary law. They pave the way for self-rule for local governments. Under Article 243G, state governments are required to devolve power and authority to local governments to enable them to function as institution of self-government with reference to matters in the 11th Schedule of the Constitution. Subjects, including social and farm forestry, soil and water conservation are listed out in the said schedule. The Panchayats (Extension to Schedule Areas) Act of 1996 mandates that states shall not make any law under (Part IX of the Constitution), which is inconsistent with customary law, social and religious practices, and traditional management practices of community resources.
The Supreme Court in M.C. Mehta v. Kamal Nath and others (1997-ISCC 388) had ruled that the 'doctrine of public trust' applies to natural ecosystems and the government as public trustee should protect the same for the benefit of the society at large and that private commercial and industrial establishments should not be allowed to misappropriate them. The judgement is a reassurance of peoples right to their commons. The common-land case of Karnataka represents another case of people's resistance to the take-over of common property resources by the state for the benefit of commercial corporations.
The nineteenth century witnessed several significant changes in the rules of evidence by the English civil courts. In summary, the long-standing rules concerning testimonial competence were abolished, the rules of admissibility, particularly regarding hearsay, that had begun to develop in the eighteenth century developed yet further, and there was an increasing convergence of the rules of evidence between the different civil courts. Most of these changes appear to have occurred between approximately 1825 and 1875. The first and second of these changes have been examined in Chris Allen's history of Victorian evidence law. The third change has recently been discussed briefly by Remco van Rhee, in relation to the broader question of whether there is a European procedural ius commune.My interest here is not in the detail of the changes in these rules of evidence, but in the broader picture of developments in the principles that
British Academy Postdoctoral Fellow, University of Oxford this paper is part of research that I am undertaking on the Principles of Civil Evidence, funded by the British Academy. This is an historical part of a piece of evidence research, not an evidence part of a piece of historical research.
The task of extracting principles from rules is not straightforward, for any branch of law, and there is no established method for such a project. In addition, there are two further challenges specific to the identification of principles of civil evidence. The first is that nineteenth century civil evidence has received relatively little attention, and most of the work that has been done has focussed on evidence in the common law courts.5 It is therefore necessary to do some ground work to establish what evidence law was, and how it developed, in the various civil courts in the course of the nineteenth century. The second challenge is that the rules of evidence overlap with the rules of procedure. Indeed, in many continental countries, such as France, the rules on evidence will be held in the procedural code. The nineteenth century is a period of significant procedural reform everywhere. There is therefore always a possibility that what may appear to us to be an evidential reform was really just incidental on a broader procedural
Article 6(1) ECHR provides that 'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...' Convention rights should be applied consistently across member states, subject to a margin of appreciation. However, there are particular difficulties in the application of Article 6 ('the right to a fair trial'), since there is no consistent understanding of how evidence law should function
Article 65(c) EC enables the Council to adopt 'Measures in the field of judicial cooperation in civil matters having cross-border implications. in so far as necessary for the proper functioning of the internal market'. These measures 'shall include:. (c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States'. The concept of civil procedure should almost certainly be taken here in a broad sense to include evidence law, if only because this is the way in which the majority of member states classify evidence law domestically.
Mindful of these challenges, this paper is divided into two sections. The first is a summary of the main changes to evidence rules, taking snapshots of practice in 1825 and 1875, and looking at a period of significant change during the 1850s. The second section considers what developments in evidential principles, if any, might explain these rule changes. In particular, it examines the relationship between evidential and procedural reform. Four evidential principles are proposed that may have developed in the course of the century: first, cases should be decided on all available evidence that is relevant and reliable; secondly, parties should assist the court in achieving the accurate determination of facts; thirdly, oral party cross-examination is the most effective way to test the reliability of evidence; fourthly, the tribunal of fact should be suited to the type of facts involved. The origins of these principles, and their possible justifications, are discussed in the second half of the paper.
The main change to evidence rules
Let us begin by taking three snapshots of the rules of evidence in England in the nineteenth century. First, I take 1825 as an example of evidential practice at the start of the century, before the evidence reforms of the 1830s. I then consider 1875, straight after the implementation of the Supreme Court of Judicature Acts 1873 and 1875 ('the Judicature Acts'), the last major change before the end of the century. My third snapshot is of the changes that occurred in the 1850s. This third snapshot is particularly important because it seems to be common to ascribe most of the evidential and procedural changes to the 1870s Acts. For example, Chorus has recently suggested that 'the new forms of process [under the Judicature Acts]. must be regarded as the triumph of chancery, and thus the
In 1825, actions at Common Law were commenced by a writ, which usually gave rise to 'special pleading'. The parties would seek to identify a single factual issue on which the case would turn. Pleadings, which were not under oath, contained facts stated according to their legal effect and operation, rather than as they actually existed. Once the single factual issue had been identified, this could be put to a jury, with supporting evidence. But by 1825, it had become common to bring an action under the more flexible legal fiction of a writ of trespass or ejectment.This fiction allowed 'general pleading', which meant that parties did not have to narrow the issues, and could bring a whole factual argument to trial.
Evidence was given orally in open court before a jury, and witnesses were examined and cross-examined by the parties. The rules of admissibility had begun to take shape in the eighteenth century, and continued to develop in the nineteenth. Like admissibility, cross-examination was relatively new, developing in civil process in the final decades of the eighteenth century. The most striking feature of civil evidence at this time is that evidence could not be received under oath from parties to the action, their spouses, or those with any interest in the outcome of the case.
The rules of evidence and procedure in the Court of Chancery in 1825 had been adapted from the Roman-canon tradition. Summary Roman canon procedure was still used at this time in the ecclesiastical and admiralty courts. The plaintiff in Chancery issued a Bill, under oath, which would combine a statement of the facts on which relief was sought, interrogatories directed to the defendant, and requests for the disclosure of relevant documents. The defendant could issue a statement in response, and a counter-bill. The parties would then progressively respond to each other's statements and interrogatories. This practice, known as 'scraping the defendant's conscience', would either lead the opponent to admit the weakness of the case, and settle, or else reduce the number of facts in issue. The facts still in issue would then be put to witnesses, who would be examined in secret by an Examiner or Commissioner using pre-prepared interrogatories. Evidence would be recorded as depositions, which were all published together at the end of the evidence gathering phase.
From 1875, under the Judicature Acts, an action commenced 'by a writ of summons, which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action'. This was a simple statement, unlike the Chancery Bills that had gone before. Initially, there appears to have been some concern that this would mean that a writ would be accompanied by a detailed setting out of the facts, in the fashion of a Chancery Bill. Griffith, on the other hand, 17 saw this as simply a restatement of the unsuccessful provisions of section 2 of the Common Law Procedure Act 1852.However; it became clear that in practice the writ was the simple statement of facts that was intended. One important change under the Judicature Acts from the practice of Chancery Bills was that the plaintiff was no longer required to answer on oath.
The rules of evidence were fundamentally those of common law. Unless the parties agreed otherwise, witness testimony would be taken 'vivâ voce and in open court', using the common law practice of cross-examination. The use of juries was optional in all types of case, and a judge could refer a matter to a
The old common law rules of admissibility applied. The judge did however retain a discretion 'for sufficient reason' to order that any particular fact be proved by affidavit. Discovery under the Rules of Court 1875 were a modified form of those previously existing at Common Law rather than in Equity. For example, following the Common Law practice, a judge could disallow an interrogatory unless he was satisfied that it was relevant, while in Equity the party was bound to answer unless he could show that the discovery sought was 'immaterial'. Common law arguments about whether an interrogatory was relevant were made without oath in chambers rather than before the court.23 While in Equity discovery was a lengthy process, that ran as part of Bill pleading, at Common Law it was a separate event, as it had been at canon law.
The evidence rules of the Judicature Acts and the Rules of Court 1875 did not represent a dramatic break from common law and equitable evidential traditions. Rather, they built on reforms that had already been attempted in the 1850s. These reforms were largely inspired by attempts to make available to all courts those elements of procedure that were thought to represent what we might now call 'best practice'. For example, in 1851 an anonymous writer in Charles Dickens'
A simplified common law writ system had been introduced in 1832 and 1833. At the same time, the New Pleading Rules of Hilary Term 1834 replaced general pleading with special pleading. This was a response to a concern that general pleading was requiring parties to prepare too many legal and factual issues for trial, and so adding to expense and delay. The concern was a valid one, but the remedy was ill-conceived, and civil justice rapidly became bogged down in baroque minutiae of special pleading. In 1852 the Common Law Procedure Act was therefore passed to reform the process, practice and mode of pleading. It effectively allowed a return to general pleading, and required parties to plead the actual facts of the case, rather than the facts required to have the necessary legal effect
In the thirty years between 1825 and 1855, the rules on testimonial competence were also radically reformed. Lord Denman's Act of 1843 made substantial inroads into the rule against people testifying who had an interest in the outcome of the case, and also abolished the rules disqualifying people with certain criminal convictions. The Evidence Amendment Act 1851 ('Lord Brougham's Act') made parties to civil proceedings competent in most cases. This reform was one of the most important in nineteenth century evidence law,
(ii) In Chancery
Meanwhile, in Chancery, the Court of Chancery Act 1852 sought to end the verbose nature of Bills, by requiring that every bill shall contain as concisely as possible a narrative of the 'material facts, matters and circumstances' upon which the plaintiff relied.38 The Act also reformed the taking of evidence. Depositions were replaced in 1852 by a system of oral testimony or affidavits.39 Oral examination took place in the presence of parties, counsel, solicitors or agents. In practice, however, parties agreed to use affidavits. Cross-examination and re-examination on an affidavit took place before an examiner in much the same way as had happened with depositions
The 1852 Act enabled a judge in chambers to seek the assistance of experts. It may have been, as Beuscher has suggested, that the Act simply incorporated an existing power. This 1852 provision may be the power to which Sir Page-Wood, Vice-Chancellor, was referring when he said in 1860 that 'in many cases he had availed himself of the privilege which was accorded to judges of the Chancery Court, of calling in disinterested witnesses in matters of
Lord Cairn's Act of 1858 gave Chancery the power to award damages as an alternative to specific performance. For this purpose, it introduced juries; at the discretion of the judge in the individual case. This measure was not widely adopted.
There was also significant civil evidence reform in the civilian courts of Probate and Admiralty in the 1840s and 1850s. The probate jurisdiction of the ecclesiastical courts was transferred to the new Court of Probate in 1857. The rules of evidence in Probate became those of the other courts at Westminster. This represented a marked change of practice, giving weight to evidence effectively excluded before, by the two witness rule, while excluding other evidence under admissibility rules. As with the Divorce Act 1857 (s 43), parties were entitled to use affidavits but rarely did so. The judge decided whether he would hear the case alone or with a jury.
Evidence reform of the Admiralty Court had begun earlier than in the Ecclesiastical courts. This may have been because Admiralty was in a neglected
Developing principles
What principles, if any, lay behind the evidence rule reforms of the nineteenth century? With the possible exception of Bentham, contemporary law reformers seemed to have difficulties enunciating their guiding principles. For example, in 1850 John George Phillimore, wrote a History and Principles of the Law of Evidence. The book is an unstructured and largely anecdotal manifesto for evidence reform. When Phillimore does come to identify his principles, he stumbles, and never manages to produce a list. James Fitzjames Stephen fared a bit better in his 1872 Principles of Judicial Evidence,but kept finding that he could not formulate any effective rules, for example about hearsay, that were not either too tight or too loose. This difficulty might have been resolved if Stephen had had access to a conceptual distinction between rules and principles.
From studying the developments in the rules of evidence across jurisdictions in the course of the nineteenth century, I should like to propose four principles for civil evidence that developed in England at this time: first, cases should be
Before exploring these principles, I should like to consider briefly my earlier methodological difficulty that many of these changes in the rules of evidence are fundamentally bound up with debate and changes surrounding questions of procedure and jurisdiction. By the 1840s, it was clear that there were conceptual and practical difficulties with having multiple jurisdictions and forms of evidence and procedure. Parties had become adept at moving cases between courts in order to benefit from their different features. Thus many of the 1850s reforms were concerned with resolving procedural anomalies. These procedural reforms were not as effective as might have been hoped, and so the 1870s went further, and merged jurisdictions. This appears to have been almost a foregone conclusion by 1869, when the first report of the Judicature Commissioners appeared, analyzing the arguments, and proposing the solution, in a mere twenty pages. In part, the Judicature Commissioners were able to draw on the experience of the increasingly successful county court system:
England was not unique in these difficulties. In 1848, the state of New York created a new supreme court, in which the jurisdictions of common law and equity were merged. This was principally work of the law reformer David Dudley Field. The 'Field Code' was based on extensive comparative research both in North America and Europe.A particular source for Field was the Louisiana Civil Codes of 1808 and 1825, which was strongly influenced by Spanish (and probably not French) civil law.
In India, a Code of Civil Procedure in 1859 made no distinction between common law and equity, and the judge sat without a jury. The Code of Civil Procedure in India replaced a far more complex system than existed in England, since there were both Royal and East India courts, and the applicable law depended on the ethnic origin of the parties. American commentators would appear to have seen the Indian code as influenced by the New York code, but this is surely wrong, as the Indian Code was extensively civilian in its nature. Trials consisted of judges taking evidence, over a series of hearings, and producing
New York and India appear, however, to have had little practical influence on English reform, despite Lord Brougham's enthusiasm.The first report of the Judicature Commissioners, for example, referenced these reforms very much in passing. This suggests that they did not form a central part of the Commissioners' deliberations. Phillimore suggested, as an aside to his general discussion of the need for law reform, that
The Benthamites argued that no evidence should be excluded except where this was required to avoid preponderant delay, vexation and expense. For Bentham, writing on evidence in the 1820s, the unwarranted exclusion of evidence was a fundamental corruption in the legal system. Bentham was cynical about lawyers, who he depicted as operating together as 'Judge & Co', arguing for the need for more lawyers. Bentham was not the only person at this time to suspect that much of the procedural mechanics of civil justice was driven by vested interests rather than higher goals such as truth and justice. For example, when it came to reforming the civil court system in the 1870s, the main arguments were over the number, responsibilities and remuneration of the judge.
Chris Allen has rightly shown that Bentham's role in nineteenth century evidence reform has often been exaggerated. That does not mean that it can be completed ignored. Some reformers, such as Lord Denman, were directly influenced by Bentham. Others may have been indirectly influenced, through the diffusion of ideas via Benthamite reformers, such as Cairns and Brougham, although whether Brougham should be considered a true Benthamite is questionable. Bentham's influence was perhaps greater in North America.
There are at least three possible explanations for admitting more evidence, through removing the rules on testimonial competence. The first is that people (presumably including parties and witnesses) were believed to be more truthful than they used to be. This reason, which may seem to us rather extraordinary, was given by Phillimore in his 1850 History of the Law of Evidence. The second reason is that people are able to evaluate facts more effectively than lawyers often give them credit for, and we can see this in the type of evidence that people rely on for everyday decisions. This is the reason given by Bentham. The third reason is that modern civil litigation requires us to take greater risks that an action will wrongly succeed. We might see this re-assignment of risk as a utilitarian argument, that is to say it is in the interests of society as a whole that we increase the likelihood of a defendant occasionally wrongly losing her case.
The Roman-Canon position appears to have been that it is better to take the risk that there is an injustice in the world between individuals than it is for the court to risk wrongly exercising its authority over an individual. This would adversely affect the dignity of both the court and the wronged individual. Thus, in the Roman-canon tradition there were a lot of evidential burdens that one had to overcome in order for the court to reach a verdict. In particular, the court required full proof before it would act and it would be very cautious about what counted as
At the start of the nineteenth century, Common Law and Equity had markedly different ways of ensuring the reliability of evidence. At Common Law, only those with no interest in the case could testify under oath, and this testimony was oral, in open court, and subject to viva voce cross-examination. In Equity, the parties provided sworn evidence through Bill pleading. The examination of witnesses was then taken in secret before trial, and published to the parties and the court once all the evidence was collected. Full cross-examination was a relatively late development in the common law courts, perhaps coming at the end of the eighteenth century. However, from the end of the eighteenth century, in England and the United States, there seems to have been a consensus that cross-examination was the most effective way of getting to the truth. As early as 1789, the United States Congress mandated that Equity adopt the common-law approach to presenting testimony orally in open court. Bentham, seemingly critical of almost every other provision of English evidence law, thought that against erroneous or mendacious testimony, the grand security is cross-examination...'For Starkie it was 'absolutely essential to the ascertainment of truth.' Wigmore, writing in 1904, thought cross-examination to be 'the greatest legal engine ever invented for the discovery of truth', but was also aware of its ability, when misused, to defeat the discovery of truth.Cross-examination was
Section 2A. Conditions in the printout
A printout of entry or a copy of printout referred to in sub-section (8) of section 2 shall be accompanied by the following, namely:-
(1) A certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and
(2) A certificate by a person in-charge of computer system containing a brief description of the computer system and the particulars of:-
(A) The safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorised persons;
(B) The safeguards adopted to prevent and detect unauthorised change of data;
(C) The safeguards available to retrieve data that is lost due to systemic failure or any other reasons;
(D) The manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electro-magnetic data storage devices;
(E) The mode of verification in order to ensure that data has been accurately transferred to such removable media;
(F) The mode of identification of such data storage devices;
(G) The arrangements for the storage and custody of such storage devices;
(H) The safeguards to prevent and detect any tampering with the system;
(I) any other factor which will vouch for the integrity and accuracy of the system
(3) A further certificate from the person in-charge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data.
Subject to the provisions of this Act, a certified copy of any entry in a Banker's book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise.
If the entries on the books of account produced by bank are corroborated by Branch Manager and other bank officials, it is sufficient proof of loan transaction.
(1) On the application of any party to a legal proceeding the Court or a Judge may order that such party be at liberty to inspect and take copies of any entries in a Banker's Book for any of the purposes of such proceeding, or may order the bank to prepare and produce, within a time to be specified in the order, certified copies of all such entries, accompanied by a further certificate that no other entries are to be found in the books of the Bank relevant to the matters in issue in such proceeding, and such further certificate shall be dated and subscribed in manner herein before directed in reference to certified copies.
(2) An Order under this or the preceding Section may be made either with or without summoning the Bank and shall be served on the Bank three clear days (exclusive of Bank holidays) before the same is to be obeyed, unless the Court or Judge shall otherwise direct.
(3) The Bank may at any time before the time limited for obedience to any such order as aforesaid either offer to produce their books at the trial or give notice of their intention to show cause against such Order, and thereupon the same shall not be enforced without further order.
Important points
(i) The bank has a statutory right under section 6 of the Act to object to any order directing inspection of their books though the order is made under section 91 of the Code of Criminal Procedure, 1973.
(ii) The words "party to a legal proceeding" would enable inspection to be made only if such inspection was necessary for the "purpose of such proceeding". In other words, there should be a main proceeding in which the Court might come to the conclusion that such inspection was necessary and it would only in such a proceeding that order could be passed for inspection.
Order of Court to be construed to be order made by specified officer. In the application of sections 5, 6 and 7 to any investigation or inquiry referred to in sub-clause (iii) of clause (4) of section 2, the order of a Court or a Judge referred to in the said sections shall be construed as referring to an order made by an officer of a rank not lower than the rank of a Superintendent of Police as may be specified in this behalf by the appropriate Government. In this section, "appropriate Government" means the Government by which the police officer or any other person conducting the investigation or inquiry is employed.
Section 77. Proof of documents by production of certified copies
Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
Section 78. Proof of other official documents
The following public documents may be proved as follows -
(1) Acts, orders or notifications of the General Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government. By the records of the departments, certified by the heads of those departments respectively, or By any document purporting to be printed by order of any such Government or as the case may be, of the Crown Representative;
(2) The proceedings of the Legislatures by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting The Orient Tavern are printed by order of the Government concerned;
(3) Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty's Government, By copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer;
(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country. By journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;
(5) The proceedings of a municipal body in a State, By a copy of such proceedings certified by the legal keeper thereof of by a printed book purporting to be published by the authority of such body,
(6) Public documents of any other class in a foreign country, by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of an Indian consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original and upon proof of the character of the document according to the law of the foreign country.
Section79. Presumption as to genuineness of certified copies
The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized there to by the Central Government: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper.
Section 80. Presumption as to documents produced as records of evidence
Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be statement or confession by any prisoner or accused person taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.
Section 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents
The Court shall presume the genuineness of every document purporting to be the London Gazette, or any official Gazette or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of private Act of Parliament of the United Kingdom printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.
Section 82. Presumption as to document admissible in England without proof of seal or signature
When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine and that the person signing it held at the time when he signed it, the judicial or official character which he claims; and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.
Section 83. Presumption as to Maps or Plans made by authority of Government
The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate, but maps or plans made for the purposes of any cause must be proved to be accurate.
Section 84. Presumption as to collections of laws and reports of decisions
The Court shall presume the genuineness of every book purporting to be printed and published under the authority of the Government of any country, and to contain any of the laws of that country; and of every book purporting to contain reports of decisions of the Courts of such country.
Section 85. Presumption as to powers of attorney
The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Consul or Vice-Consul, or representative of the , was so executed and authenticated.
"Fact" means and includes:
(1) Anything, state of things, or relation of things, capable of being perceived by the senses;
(2) Any mental condition of which any person is Conscious.
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something is a fact.
(c) That a man said certain words is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation is a fact. "Relevant." One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
The expression "facts in issue" means and includes-- any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, 1* any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.
Illustrations
A is accused of the murder of B. At his trial the following facts may be in issue that A caused B's death; that A intended to cause B's death; that A had received grave and sudden provocation from B; that A, at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature.
Proved
A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
Disproved
A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
Relevancy of facts
Section 6. Relevancy of facts forming part of same transaction
Facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact.
(b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
(d) The question is whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.
Position of Res Gestae at common law
Res Gestae is a term whose precise doctrinal significance at common law has remained unclear, and there have been repeated calls for deleting the phrase from legal nomenclature. This is mainly because the term itself is not definitive and thus tells us nothing about the rules of evidence concerning matters that form part of the transaction.[8] The rationale of this hearsay exception is that such statements may have great probative value in establishing or understanding the events in question, and that the emotional involvement of the speaker in the event provides a guarantee of sincerity.[9]
The res gestae principle can be admitted under four accepted categories of common law. These are:
(1) Spontaneous exclamations,
(2) Contemporaneous statements of physical sensation,
(3) Statements accompanying and explaining an act, and
(4) Statements as to the declarant's state of mind or emotion.
In Ratten's case,
The appellant was charged with the murder of his wife with a shotgun wound. The prosecution sought to introduce the evidence of the individual who had telephoned the residence on receipt of a report that an ambulance had been called to the residence. There was some doubt as to the time of this call and the appellant's account of what had occurred immediately after the shooting. While stating that it was impossible to lay down a precise rule as to the nature of proof required, the appeal was dismissed on the ground that this evidence was exempted from the rule against hearsay and was therefore admissible as evidence of a fact relevant to the issue. The fact that the deceased woman had made an agitated call a few minutes prior to her death suggested that res gestae as an exception to the rule against hearsay would definitely apply. The proper test laid down in this case was whether the statement was so clearly made in circumstances of spontaneity and involvement in the event that the possibility of concoction or fabrication would be disregarded. Where the speaker has had time for reflection on the event so as to be able to concoct or construct his account of it, the statement should be disregarded.
Here, the Privy Council speaking through Lord Wilberforce captured the essence of the exception of hearsay stating:
"Hearsay evidence may be admitted if the statement providing it is made in such conditions of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or disadvantage of the accused.
Under the second principle res gestae admits statements in which a person asserts his contemporaneous physical sensations, such as sickness or pain. Now these statements must be "confined to contemporaneous symptoms" and nothing in the nature of a narrative is admissible as to who caused them, or how they were caused. This idea was first stated in the case of Aveson v. Lord Kinnaird where the issue was whether the plaintiff's wife was in good health at the time of taking out a life insurance policy. It was held that the evidence of a friend who had visited the wife around that time and heard her making statements about her ill health over the last ten days was admissible. This shows that since health and bodily sensations are very often not transient events, but extend over a period of time, thus the rule of contemporaneity cannot be very strict.
Statements accompanying and explaining relevant facts:
Where the doing of an act is a fact in issue, then a statement by the actor which accompanies and explains the act is admissible as evidence of what is stated. Such statements must be so intertwined with the act to become part of res gestae. These must be contemporaneous with the act and made by a person performing the relevant act. Also, the act must be independently relevant. Thus in the case of R v. Kearley it was seen that hearsay evidence by police officers receiving calls at an alleged drug dealer's house, of requests for drugs, were not admissible on the ground that the telephone calls were not independently relevant.
This principle is substantially what is exemplified in S.6 of the Indian Evidence Act. The common law tradition has been followed in India and a substantial catena of Indian case law has applied the principles of the United Kingdom. The following chapter will deal with this aspect in detail.
Declarations of state of mind:
The rationale behind this is that no better evidence of a person's past state of mind is available than the person's own statements at the time, and such statements may be the only evidence if there are no other actions from which inferences can be drawn. Though it seems clear that such statements amount to hearsay yet questions of intention, knowledge, emotion, belief and opinion, can all be proved in this manner.
The important fact that must be kept in mind in such an instance is that only where the state of mind of the declarant is of "direct and immediate" relevance that such statements could be admissible.
Res Gestae
Sir James Stephen is often referred to as the founder of the Indian Evidence Act, and as a result, the Act contains a number of similarities with common law while at the same time standing as a unique enactment. The idea of res gestae in Indian law appears to be narrower because this term does not find mention in the statute but has been interpreted under Section 6 of the Act. There has also been some interpretation of the principle under other sections of the Act, which will be discussed below.
Section 7. Facts which are occasion, cause or effect of facts in issue
Facts Which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.
Illustrations
(a) The question is, whether A robbed B. The facts that, shortly before the robbery B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant.
(b) The question is, whether A murdered B. Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.
(c) The question is, whether A poisoned B. The state of B's health before the symptoms ascribed to poison and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts.
Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
1. The word "conduct" in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
2. When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
Illustrations
(a) A is tried for the murder of B.
The facts that, A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.
(b) A sues B upon a bond for payment of money. B denies the making of the bond.
The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, it relevant.
(c) A is tried for the murder of B by poison.
The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant.
(d) The question is, whether a certain document is the will of A.
The facts that not long before the date of the alleged will A made inquiry into matters to which the provisions of the alleged will relate that he consulted vakils in reference to making the will, and that he caused drafts or other wills to be prepared of which he did not approve, are relevant.
(e) A is accused of a crime.
The facts, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favorable to himself, on that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.
(f) The question is, whether A robbed B.
The facts that, after B was robbed, C said in A's presence - "the police are coming to look for the man who robbed B" and that immediately afterwards A ran away, are relevant.
g) The question is, whether A owes B rupees 10,000.
The fact that, A asked C to lend him money, an that D said to C in A's presence and hearing "Advice you The Orient Tavern to trust A, for he owes B 10,000 rupees" and that A went away without making any answer, are relevant facts.
(h) The question is, whether A committed a crime.
The facts that, A absconded after receiving a litter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.
(i) A is accused of a crime
The facts that, after the commission of the alleged crime, he absconded or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.
The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made, are relevant.
The facts that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.
(k) The question is whether A was robbed
The fact that, soon after the alleged robbery, he made a complaint, relating to the offence, the circumstances under which, and the terms in which the complaint was made, are relevant.
The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.
Ground for rejection of testimony of eye witness
The conduct of an eye witness in non-disclosing the incident to anybody for a number of days, is highly unnatural one and is sufficient to reject his testimony. It is well settled that the conduct of a witness in not disclosing the incident to person(s) whom he must have met after the incident is indicative of the fact that he had not seen the accident.
Role of motive in an offence
If motive is proved, the case of prosecution becomes easier to connect accused to the alleged incident.
When motive is not sine qua non
Where the ocular evidence is very clear and convincing and the role of the accused person in the crime stands clearly established, establishment of motive is not a sine qua non for proving the prosecution case.
It is well settled that where the direct evidence regarding the assault is worthy of the credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes the motive is shrouded in the mystery and it is very difficult to locate the same. If, however, the evidence of eye witnesses is credit-worthy and is believed by the court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant.
Motive is a thing primarily known to the accused himself and it may not the possible for the prosecution in each and every case to find out the real motive behind the crime. It is well established that where there is an eyewitness account regarding the incident, the motive loses all its importance.
Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.
Illustrations
(a) The question is, whether a given document is the will of A. The state of A's property and of his family at the date of the alleged will may be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libelous is true. The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue. The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.
(c) A is accused of a crime. The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 8, as a conduct subsequent to and affected by facts in issue. The fact that, at the time when he left home he had sudden and urgent business at the place to which he went is relevant, as tending to explain the fact that he left home suddenly.
The details of the business on which he left are not relevant except in so far as they are necessary to show that the business was sudden and urgent.
Identification accused
(i) If the test identification parade regarding accused was not conducted properly and suffered from unexplained delay, he is entitled to benefit of doubt;
(ii) The possibility of wrong identification due to loss of memory cannot be discounted;
(iii) When conviction was based on evidence of eye witness and not on identification parade it cannot be set aside on ground that identification was not reliable;
(iv) In dacoity case where all witnesses identified suspects as culprits without margin of error creating doubt in mind of court, such identification is liable to be set aside;
(v) Where both the trial court and the Appellate Court had assessed the evidence in the proper perspective and attached much importance to the evidence in regard to the identification of the appellant in finding him guilty, the Supreme Court would not re-assess that evidence in absence of an exceptional ground necessitating such re-assessment
(vi) If there is unexplained and unreasonable delay in putting up the accused persons for a test identification the delay by itself detracts from the credibility of the test;
(vii) The test identification parade conducted three and a half months after the dacoity took place, it would be wrong to convict the accused on single testimony;
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose showing that any such persons was a party to it.
Illustration
Reasonable grounds exist for believing that A has joined in a conspiracy to wage war against the Government of India. The facts that, B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D Persuaded persons to join the conspiracy in Bombay. E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.
Existence of conspiracy
If prima facie evidence of existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all.
Object
Section 10 has been deliberately enacted in order to make acts and statements of a co-conspirator admissible against the whole body of conspirators, because of the nature of crime.
Significance of "common intention"
The words "common intention" signify a common intention existing at the time when the thing was said, done or written by the one of them. It had noting to do with carrying the conspiracy into effect.
Facts not otherwise relevant are relevant.
(1) If they are inconsistent with any fact in issue or relevant fact;
(2) If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
Illustrations
(a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by B, C or D is relevant.
Where the question is as to existence of any right or custom, the following facts are relevant:
(a) Any transaction by which the right or custom in question was created, claimed modified, recognized, asserted or denied, or which was inconsistent with its existence;
(b) Particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted, or departed from.
Illustrations
The question is whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father irreconcilable with the mortgage particular instances in which A's father exercised the right or in which the exercise of the right was stopped by A's neighbors, are relevant facts.
Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.
1. A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally but in reference to the particular matter in question.
2. But where, upon the trail of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this Section, the previous conviction of such person shall also be a relevant fact.
Illustration
(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article. The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen.
(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew each and all of the articles of which he was in possession to be stolen. The fact that, at the time of delivery A was possessed of a number of other pieces of counterfeit coin, is relevant. The fact that, A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.
(c) A sues B for damage done by a god of B's which B knew to be ferocious. The facts that, the dog had previously bitten X, Y and Z and that they had made complaints to B are relevant.
(d) The question is, whether A, the acceptor of a bill of exchange, knew that the name of payee was fictitious. The fact that, A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person is relevant as showing that A knew that the payee was a fictitious person.
(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B. The fact of previous publications by A respecting B, showing ill-will on the part of A towards B is relevant, as proving A's intention to harm B's reputation by the particular publication in question. The facts that, there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.
There is a question whether an act was accidental or intentional, 1 or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrence, in each of which the person doing the act was concerned, is relevant.
Illustrations
(a) A is accused of burning down his house in order to obtain money for which it is insured. The fact that, A lived in several houses successively each of which he insured, in each of which he insured, in each of which a fire occurred, and after each of which fires A received, payment from a different insurance office, are relevant, as tending to show that the fires were not accidental.
(b) A is employed to receive money from the debtors of B. It is A's duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive. The question is, whether his false entry was accidental or intentional. The facts that, other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant.
(c) A is accused of fraudulently delivering to B a counterfeit rupee. The question is, whether the delivery of the rupee was accidental. The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant, as showing that the delivery to B was not accidental.
An admission is a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.
Admissibility is substantive evidence of the fact
Admissibility is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness.
Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to made them, are admissions.
By suitor in representative character
Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character. Statements made by:
(1) By party interested in subject matter
Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested; or
(2) By person from whom interest derived
Persons, from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.
Statements made by persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against the made if they are made whilst the person making them occupies such position or is subject of such liability.
Illustration
A undertakes to collect rent for B. B sues A for not collecting rent due from C to B. A denies that rent was due from C to B. A statement by C that he owned B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.
Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.
Illustration
The question is, whether a horse sold by A to B is sound A says to B "Go and ask CC knows all about it" C's statement is an admission. In eviction suit where person having power of attorney for tenant admits arrears of rent tenant subsequently cannot resile from such admission;
Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they con not be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases.
(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead it would be relevant as between third person under section 32.
(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.
Illustrations
(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine nor con B Prove a statement by himself that the deed is gorged.
(b) A the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statement, because they would be admissible between third parties, if he were dead under Section 32, Clause (2).
(c) A is accused of a crime committed by him at Calcutta. He produces a letter written by him and dated at Lahore on that day, and bearing the Lahore post-mark of that day. The statement in the date of the letter is admissible, because if A were dead it would be admissible under Section 32, Clause (2).
(d) A is accused of receiving stolen goods knowing them to be stolen. He officers to prove that he refused to sell them below their value. A may prove these statements though they are admissions, because they are explanatory of conduct influenced by facts in issue.
(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit. He offers to prove that he asked a skilful person to examine the coins as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine. A may prove these facts for the reasons stated in the last proceeding illustration.
Oral admissions as to the contents of a document are not relevant unless and until the party proposing them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.
In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given
Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under Section 126.
UNIT - II
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.
Extra judicial confession
Extra-judicial confession made to village Administrative Officer by accused is admissible. Shiv Kumar v. State by Inspector of Police, AIR 2006 SC 653. It is difficult to rely upon the extra judicial confession as the exact words or even the words as nearly as possible have not been reproduced. Such statement cannot be said to be voluntary so the extra judicial confession has to be excluded from the purview of consideration for bring home the charge. The extra-judicial confession cannot be sole basis for recording the confession of the accused, if the other surrounding circumstances and the materials available on the record do not suggest his complicity.
An extra-judicial confession, if it is voluntary truthful, reliable and beyond reproach, is an efficacious piece of evidence to establish the guilt of the accused and it is not necessary that the evidence of extra-judicial confession should be corroborated on material facts.
Where confession was not disclosed to the wife of deceased but it was disclosed to the police officer and was not corroborated, the extrajudicial confession is not reliable. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extra-judicial confession.
It is well settled now that a retracted extra-judicial confession, though a piece of evidence on which reliance can be placed, but the same has to be corroborated by independent evidence. If the evidence of witness before whom confession made was unreliable and his conduct also doubtful and there is no other circumstance to connect accused with crime, conviction based solely on retracted extra-judicial confession is not proper and the accused is entitled to acquittal. The extra-judicial confession not trustworthy cannot be used for corroboration of any other evidence.
Where confessional statement is inconsistent with medical evidence, conviction of accused solely based on extra-judicial confession is not proper. Tape-recording of confession denotes influence and involuntariness. Accused is entitled to be acquitted. The confessional statement recorded by 1st Class Magistrate rightly held to be correct.
The general trend of the confession is substantiated by some evidence, tallying with the particulars of confession for conviction of the accused.
When statement Amounts to confession
A statement in order to amount to a 'confession' must either admit in terms of offence, or at any rate substantially all the facts which constitute the offence
No confession made to police officer shall be proved as against a person accused of any offence.
Admissibility
Any confessional statement given by accused before police is inadmissible in evidence and cannot be brought on record by the prosecution and is insufficient to convict the accused.
Scope
If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited.
Section 26. Confession by accused while in custody of police not to be proved against him
No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure.
The confession made while in custody is not to be proved against the accused as the provisions of sections 25 and 26 do not permit it unless it is made before a magistrate.
Section 27. How much of information received from accused may be proved
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
Applicability
For the application of section 27 the statement must be split into its components and to separate the admissible portion. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected.
Condition for operation
The condition necessary to bring the section 27 into operation is that the discovery of a fact in a consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved.
Discovered fact
A fact discovered in information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered from the accused which was not within the knowledge of the police before recording the disclosure statement of the accused. Where a witness was related to deceased and resident of another place, even then his evidence regarding recovery of weapons and clothes cannot be discarded
Scope
Under section 27 it is not necessary that a disclosure statement must be signed by maker of the same or that thumb impression must be affixed to it. A confession made by an accused person while he is in custody must be excluded from evidence and permits the admission of such a confession under the condition prescribed by this section.
Section 28. Confession made after removal of impression caused by inducement, threat or promise, relevant
If such a confession as is referred to in Section 24 is made after the impression caused by any inducement, threat or promise has, in the opinion of the Court been fully removed it is relevant.
Section 29. Confession otherwise relevant not to become irrelevant because of promise of secretary etc.
If such a confession is otherwise relevant, it does not become it was made under a promise of secrecy. or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to question which he need not have answered, whatever may have been the form of those question, or because he was not warned that he was bound to make such confession, and that the evidence of it might be given against him.
Section 30. Consideration of proved confession affecting person making it and others jointly under trail for same offence
When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. "Offence" as used in this Section, includes the abutment of, r attempt to commit, the offence.
Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said - "B and I murdered C". The court may consider the effect of this confession as against B.
(b) A is on his trail for the murder of C. There is evidence to show that C was murdered by A and B, and that B said, "A and I murdered C". The statement may not be taken into consideration by the Court against A as B is not being jointly tried.
Accused's confession cannot be used against co-accused
The statement of the accused leading to the discovery, or the informatory statement amounting to confession of the accused, cannot be used against the co-accused with the aid of section 303.
Statements by persons who cannot be called as witnesses
Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases -
(1) When it relates to cause of death
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.
(2) Or is made in course of business
When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods securities or property of any kind; or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him.
(3) Or against interest of maker
When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true it would expose him or would have exposed him to criminal prosecution or to a suit for damages.
(4) Or gives opinion as to public right or custom, or matters of general interest
When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest of the existence of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
(5) Or relates to existence of relationship
When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6) Or is made in will or deed relating to family affairs
When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
(7) Or in document relating to transaction mentioned in section 13, Clause (a).
When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).
(8) Or is made by several persons and express feelings relevant to matter in question
When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.
Illustrations
(a) The question is, whether A was murdered by B ; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.
(b) The question is as to the date of A's birth. An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A's mother and delivered her of a son, is a relevant fact.
(c) The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that, on a given day, the solicitor attended A at a place mentioned, in Calcutta , for the purpose of conferring with him upon specified business, is a relevant fact.
(d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchant's firm, by which she was chartered, to their correspondents in London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.
(e) The question is, whether rent was paid to A for certain land. A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders, is a relevant fact.
(f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.
(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.
(h) The question is what the cause of the wreck of a ship was. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.
(i) The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.
(j) The question is, what the price of grain was on a certain day in a particular market. A statement of the price, made by a deceased banya in the ordinary course of his business is a relevant fact.
(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact.
(l) The question is, what the date of the birth of A. was A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.
Admissibility of dying declaration
It would be very unsafe and hazardous to sustain the conviction of the accused charged for offences under section 302 read with section 34 IPC on the basis of dying declaration recorded by special executive magistrate and police officer separately.
Where there were infirmities in declaration regarding state of deceased to make oral dying declaration and unnatural conduct of witness to whom dying declaration was allegedly given by the deceased which was disclosed to the police after two days of death of deceased, accused was entitled to the benefit of doubt. Where father of deceased son lodged F.I.R. after admitting him in hospital and mentioned about oral dying declaration with necessary details, such dying declaration given to interested persons is reliable.
Where deceased victim knew assailants and gave their names to his family members at first opportunity, his dying declaration could be relied upon.
Admissions are not conclusive
There is no doubt that admissions are a good piece of evidence and they can be used against its maker. Admissions are, however, not conclusive and unless they constitute estoppel, the maker is at liberty to prove that they are mistaken or are untrue.
That the FIR as well as the statement given by the injured to the investigating officer is not admissible as dying declaration under section 32 Of the Act.
Dying declaration must be made by deceased only
The declaration made by the deceased cannot be called dying declaration because it was not voluntary and answers were not given by her, it was her husband who was answering. If the court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration.
When dying declaration does not require further corroboration
Once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
When more than one dying declarations
In case of two conflicting dying declarations one recorded by doctor in the presence of two more doctors and second by a person attested by Sarpanch, in second one being not proved by competent witness cannot be relied upon. Where there are more than one dying declarations and they are inconsistent there it is not possible to pick out one such declaration wherein accused is implicated and base the conviction on the sole basis of that dying declaration.Among three dying declarations recorded by doctor, police and Magistrate with no infirmity in any, the fact that third declaration was not in question and answer form is not material.
33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated
Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a letter stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept our of the way by the adverse party or if his presence cannot be obtained without, an amount of delay of expense which, under the circumstances of the case, the Court considers unreasonable. Provided -
1. That the proceeding was between the same parties or their representatives in interest;
2. That the adverse party in the first proceeding had the right and opportunity to cross examine;
3. That the questions in issue were substantially the same in the first as in the second proceeding. A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
Relevancy of evidence given by witness
Evidence given by a witness in a judicial proceeding is relevant for the purpose of proving a particular fact in later stage of the same judicial proceeding, when the witness cannot be found or is dead.
Section 34. Entries in books of account including those maintained in an electronic form when relevant
Entries in books of accounts including those maintained in an electronic form regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
Illustration
A sues B for Rs. 1,000, and shows entries in his account-books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt.
Admissibility
Entries in account books regularly kept in the course of business are admissible though they by themselves cannot create any liability Unbound sheets of paper are not books of account and cannot be relied upon. Books of account being only corroborative evidence must be supported by other evidence.
Section 35. Relevancy of entry in public [record or an electronic record] made in performance of duty
An entry in any public or other official book, register or 1[record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or 1[record or an electronic record] is kept, is itself a relevant fact.
Relevancy of Baptism certificate
It has been held regarding proof about legitimacy of child that the Birth Certificate proceeding on the basis of Baptism Certificate, containing fact that Baptism record was read and checked before the god parents and signed by person along with god parents, such certificate is valid. Thus, Birth Certificate proceeding on basis of Baptism Certificate, legally recognised legitimacy.
Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of 1the Central Government or any State Government, as to matters usually represented or stated in such maps, charts, or plans are themselves facts.
Section 37. Relevancy of statement as to fact of public nature, contained in certain Acts or notifications
When the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any Act of Parliament of the United Kingdom or in any Central Act, Provincial Act, or a State Act or in a Government notification or notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any Dominion, colony or possession of His Majesty is a relevant fact.
Section 38. Relevancy of statements as to any law contained in law books
When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant.
Section 39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers
When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.
40. Previous judgments relevant to bar a second suit or trail
The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is, whether such Court ought to take cognizance of such suit or to hold such trail.
Section 41. Relevancy of certain judgments in probate etc., jurisdiction
A final judgment, order or decree of a Competent Court, in exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or to take away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing not as against any specified person but absolutely, is relevant when the existence of any legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof -
1. That any legal character which it confer accrued at the time when such judgment, order or decree come into operation;
2. That any legal character to which it declares and such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;
3. That any legal character to which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had cased or should cease.
4. And that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.
Section 42. Relevancy and effect of judgment, order or decrees, other than those mentioned in Section 41
Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the inquiry; nut such judgments, orders or decrees are not conclusive proof of that which they state.
Illustrations
A sues B for trespass on his land, B alleges the existence of a public right of way over the land, which A denies.
The existence of a decree in favour of the defendant, in a suit by A against C or a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of ways exists.
Section 43. Judgment etc., other than those mentioned in Section 40 to 42 when relevant
judgments, orders or decrees other then those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant, under some other provision of this Act.
Illustrations
(a) A and B separately sue C for a libel which reflects upon each of them C in each case says that the matter alleged to libelous is true and the circumstances are such that it is probable true in each case, or in neither. A obtains a decree against C for damages on the ground that C filed The Orient Tavern make out his justification. The fact is irrelevant as between B and C.
(b) A prosecutes B for adultery with C, A's wife. B denies that C is A's wife, but the court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. CC says that she never was A's wife. The judgment against B is irrelevant as against C.
(c) A prosecuted B for stealing a cow, from him, B is convicted. A, afterwards, sues C for cow. Which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.
(d) A has obtained a decree for the possession of land against A,C,B's son murders A in consequence. The existence of the judgment is relevant, as showing motive for a crime.
(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.
(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under Section 8 as showing the motive for the fact in issue
Section 44. Fraud or collusion in obtaining judgment, or incompetence of Court may be proved
Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
45. Opinions of experts
When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of persons especially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant.
Conflict of opinion of Experts
When there is a conflict of opinion between the experts, then the Court is competent to form its own opinion with regard to signatures on a document.
Expert opinion admissibility
Requirement of expert evidence about test firing to find out whether double barrel gun is in working condition or not, not necessary. The evidence of a doctor conducting post mortem without producing any authority in support of his opinion is insufficient to grant conviction to an accused.
Opinion to be received with great caution
The opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution.
46. Facts bearing upon opinions of experts
Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts when such opinions are relevant.
Illustrations
(a) 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.
(b) The question is, whether an obstruction to a harbour is caused by a certain seawall. The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time is relevant.
Admissibility
The science of identification of footprints is not a fully developed science and therefore if in a given case, evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence.
Section 47. Opinions as to handwriting, when relevant
When the Court has to form an opinion as to the person by whom document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received document purporting to be written by that person in answer to documents written by himself to under his authority and addressed to that person, or when in the ordinary course of business document purporting to be written by that person have been habitually submitted to him.
Illustrations
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. G 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 thee letters purporting to be written by A for the purpose advising with him thereon. The opinions of B,C and D on the question, whether the letter is in the handwriting of A, are relevant though neither B, C or D ever saw A, write
Section 48. Opinion as to existence of right or custom when relevant
When the Court has to form an opinion as to existence of any general custom or right, the opinions as to the existence of such custom or rights, of persons who would be likely to know of its existence if it existed, are relevant. The expression "general custom or right" includes customs or right common The Orient Tavern any considerable class of persons.
Illustrations
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.
Section 49. Opinion as to usage's, tenants, etc., when relevant
When the Court has to form an opinion as to - the usage's and tenants of any body of men or family, the constitution and government of any religious or charitable foundation, or the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon, are relevant facts.
Section 50. Opinion on relationship, when relevant
When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
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.
UNIT - III
Character when relevant
In civil cases, the fact that the character of any person concerned is such as to render probable or improbably any conduct imputed to him, is irrelevant except in so far as such character appears from facts otherwise relevant.
Section 53. In criminal cases, previous good character relevant
In criminal proceedings the fact that the person accused is of good character, is relevant.
Section 54. Previous bad character not relevant except in reply
Previous bad character not relevant, except in reply.- In criminal proceedings the fact that the accused person had a bad character is irrelevant, unless evidence has been given that he has a character in which case it becomes relevant.
1. This section does not apply to cases in which the bad character of any person is itself a fact in issue.
2. A previous conviction is relevant as evidence of bad character
Section 55. Character as affecting damages
In civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant. In Section 52,53,54 and 55, the word "character" includes both reputation and disposition; but except as provided in Section 54, evidence may be given only a general reputation and general disposition and not of particular acts by which reputation or disposition was shown.
Section 56. Fact judicially noticeable need not be proved
No fact of which the Court will take judicial notice need be proved. Judicial notice of fact that many blind persons have acquired great academic distinctions, can be taken by court; Jai Shankar Prasad v. State of Bihar, AIR 1993 Pat 22
Section 57. Facts of which Court must take judicial notice
The Court shall take judicial notice of the following facts;
1. All laws in force in the territory of India;
2. All public Acts passed or hereafter to be passed by Parliament of United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;
3. Articles of War for the Indian Army, Navy of Air force;
4. The course of proceeding of parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the Legislature established under any law for the time being in force in Province or in the States;
5. The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;
6. All seals of which English Courts take judicial notice; the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown representative; the seals off Court of Admiralty and Maritime jurisdiction and of Notaries Public and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India;
7. The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any state, if the fact of their appointment to such office is notified in any official Gazette;
8. The existence, title and national flag of every State or Sovereign recognized by the Government of India;
9. The divisions of time, the geographical divisions of the world, and public festivals, facts and holidays notified in the Official Gazette;
10. The territories under the dominion of the Government of India;
11. The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons;
12. The names of the members and officers of the Court, and of their deputies and subordinate officers and assistants and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;
13. The rule of the road, on land or at sea.
In all these cases, and also on all matters of public history, literature, science or art, the Court may report for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.
What court may take judicial notice
Court may take judicial notice of widespread malaise of illegal immigration and exploitation of young-ones by unauthorised recruiting agents; M.D.K. Immigration Consultant, Chandigarh v. Union of India, 2000 Cr LJ 252 (P&H).
No fact need be proved in any proceeding, which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings; Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.
Implied admission
Implied admission in written statement cannot be allowed to be withdrawn. However, the plaintiff can be insisted upon to prove his case.
All facts, except the contents of documents, may be proved by oral evidence
Section 60. Oral evidence must be direct
Oral evidence must, in all cases, whatever, be direct; that is to say. If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it, If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds -
Provided that the opinion of 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 treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable. Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
Documentary evidence
Section 61. Proof of contents of documents
The contents of documents may be proved either by primary or by secondary evidence.
Admission of contents
Admission of documents amounts to admission of contents but not its truth.
Section 62. Primary evidence
Primary evidence means the 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. Where a document is executed in counterparts, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
2. Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
Illustration
A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
Section 63. Secondary Evidence
Secondary evidence means and includes.
1. Certified copies given under the provisions hereinafter contained;
2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;
3. Copies made from or compared with the original;
4. Counterparts of documents as against the parties who did not execute them;
5. Oral accounts of the contents of a document given by some person who has himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photo graph or machine copy of the original, is secondary evidence of the original.
Admissibility
Application moved for permission to lead secondary evidence based on ground of loss of document. Presence of document proved from the facts pleaded - Allowing secondary evidence not illegal. Certified copies of money lender's licences are admissible in evidence;
Section 64. Proof of documents by primary evidence
Documents must be proved by primary evidence except in the cases hereinafter mentioned.
Section 65. Cases in which secondary evidence relating to documents may be given
Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) 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;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1India to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collections. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
When attesting witness not necessary
In case the document is registered then except in the case of a will it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed.
Section 66. Rules as to notice to produce
Secondary evidence of the contents of the documents referred to in Section 65, Clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, 1or to his attorney or pleader such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case. Provided that such 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 fit to dispense with it:
1. When the document to be proved 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 or is proved that the adverse party has obtained possession of the original by fraud or force;
4. When the adverse party or his agent has the original in Court;
5. When the adverse party or his agent has admitted the loss of the document;
6. When the person in possession of the document is out of reach, or not subject to, thee process of the Court.
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 hand writing.
Admissibility
Non-examination of executants of receipt, admissibility of receipts not proper.
Section 68. Proof of execution of document required by law to be attested
If a document is required by law to be attested it shall not be sued as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to he process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied.
Endorsement by Sub-Registrar
Endorsement by Sub-Registrar that executants had acknowledged execution before him amounts to attestation,
Scope
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.
Section 69. Proof where no attesting witness found
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.
Section 70. Admission of execution by party to attested document
The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.
Section 71. Proof when attesting witness denies the execution
If the attesting witness denies or does not recollect the execution of the document its execution may be proved by other evidence.
Object
Section 71 is in the nature of a safeguard to the mandatory provisions of section 68, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. Aid of section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence.
Section 71 is meant to lend assistance and came to the rescue of a party who had done his best, but driven to a state of helplessness and impassibility cannot be left down without any other means of proving due execution by "other evidence" as well.
Section 72. Proof of document not required by law to be attested
An attested document not required by law to be attested may be proved as if it was unattested.
Section 73. Comparison of signature, writing or seal with others admitted or proved
In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which s to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also with any necessary modifications, to finger-impressions.
Power of court
The court is entitled to make comparison of disputed and admitted signature for just conclusion as a rule of prudence expert opinion can be obtained. Reasons necessary to reach conclusion. It is within jurisdiction of court to instruct a party to submit his writing or signature, enabling court to compare and decide a case, if the instructions are not followed court is free to presume what is most closer to the justice.
It is not open for court to compare a handwriting and/or a signature of its own, services of experts are liable to be taken for this purpose. Under the law the court has power to compare signatures/handwriting strengthening its finding based on other cogent material and evidence on record.
Public documents
Section 74. Public documents
The following documents are public documents:-
(1) Documents forming the acts, or records of the acts:
(i) Of the sovereign authority,
(ii) Of official bodies and tribunals, and
(iii) Of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth], or of a foreign country;
(2) Public records kept in any State of private documents
Section 75. Private documents
All other documents are private.
Section 76. Certified copies of Public Documents
Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
Explanation
Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
Section 77. Proof of documents by production of certified copies
Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
Section 78. Proof of other official documents
The following public documents may be proved as follows -
(1) Acts, orders or notifications of the General Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government.
By the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government or as the case may be, of the Crown Representative;
(2) The proceedings of the Legislatures - by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting The Orient Tavern be printed by order of the Government concerned;
(3) Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty's Government,
By copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer;
(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country -
By journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;
(5) The proceedings of a municipal body in a State,
By a copy of such proceedings certified by the legal keeper thereof of by a printed book purporting to be published by the authority of such body,
(6) Public documents of any other class in a foreign country,
by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of an Indian consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original and upon proof of the character of the document according to the law of the foreign country.
Section 78A. Copies of public documents, to be as good as original documents in certain cases
Notwithstanding anything contained in this Act or any other law for the time being in force, where any public documents concerning any areas within West Bengal have been kept in Pakistan, then copies of such public documents shall, on being authenticated in such manner as may be prescribed from time to time by the State Government by notification in the Official Gazette, be deemed to have taken the place of and to be, the original documents from which such copies were made and all references to the original documents shall be construed as including references to such copies."
Section 79. Presumption as to genuineness of certified copies
The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized there to by the Central Government:
Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper.
Section 80. Presumption as to documents produced as records of evidence
Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be statement or confession by any prisoner or accused person taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume, that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.
Section 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents
The Court shall presume the genuineness of every document purporting to be the London Gazette, or any official Gazette or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of private Act of Parliament of the United Kingdom printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.
Section 82. Presumption as to document admissible in England without proof of seal or signature
When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine and that the person signing it held at the time when he signed it, the judicial or official character which he claims; and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.
Section 83. Presumption as to Maps or Plans made by authority of Government
The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate, but maps or plans made for the purposes of any cause must be proved to be accurate.
Section 84. Presumption as to collections of laws and reports of decisions
The Court shall presume the genuineness of every book purporting to be printed and published under the authority of the Government of any country, and to contain any of the laws of that country; and of every book purporting to contain reports of decisions of the Courts of such country.
Section 85. Presumption as to powers of attorney
The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.
Section 87. Presumption as to Books, Maps and Charts
The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts, and which is produced for its inspection, was written and published by the person, and at the time and place, by whom or at which it purports to have been written or published.
Section 88. Presumption as to Telegraphic Messages
The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.
Section 89. Presumption as to due execution etc., of documents not produced
The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.
Section 90. Presumption as to documents thirty years old
Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
Illustrations
(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.
(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.
(c) A, a connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper.
Presumption
Assuming that the document is more than thirty years old and comes from propercustody, there would be no presumption that contents of the same are true.
Exclusion of oral by documentary evidence
Section 91. Evidence of terms of contracts, grant and other dispositions of property reduced to form of documents
When the terms of a contract, or of a grant, or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.
1. When a public officer is required by law to be appointed in writing, and when it is shown that any particular person had acted as such officer, the writing by which he is appointed need not be proved.
2. Wills admitted to probate in India may be proved by the probate.
3. This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.
4. Where there are more originals than one, one original only need be proved.
5. The statement, in any documents whatever of a fact other than the facts referred to in this section shall not preclude the admission of oral evidence as to the same fact.
Illustrations
(a) If a contract be contained in several letter, all the letters in which it is contained must be proved.
(b) If a contract is contained I a bill of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
(d) A contracts, in writing with B, for the delivery of indigo upon certain terms. The contract mentioned the fact that B had paid A the price of other in contracted for verbally on another occasion. Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.
(e) A gives B a receipt for money paid by B. Oral evidence is offered of the payment.
When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
1. Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law:
2. The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:
3. The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:
4. The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:
5. Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:
6. Any fact may be proved which shows in what manner the language of a document is related to existing facts.
Illustrations
(a) A policy of insurance is effected on goods "in ships from Calcutta to London". The goods are shipped in a particular ship which is lost. The fact that that particular ship was orally excepted from the policy, cannot be proved.
(b) A agrees absolutely in writing to pay B Rs. 1,000 on the 1st March, 1873. The fact that, at the same time, an oral agreement was made that the money should not be paid till the thirty-first March, cannot be proved.
(c) An estate called "the Rampure tea estate" is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed, cannot be proved.
(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B's as to their value. This fact may be proved.
(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.
(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.
Deed of collateral security: manner of execution
If it is a deed of collateral security of defendant, then the defendant would have had to execute a deed in favour of plaintiff and not vice versa, where the plaintiff has executed the mortgage the plea of evidence of collateral security offered by defendant appears not to fit into a situation. Inference can be drawn regarding proof of document by admission of parties either oral or other evidence.
Position of stranger
The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being, evidence is admissible.
Section 93. Exclusion of evidence to explain or amend ambiguous document
When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.
Illustrations
(a) A agrees, in writing, to sell a horse to B for "Rs. 1,000 or Rs. 1,500". Evidence cannot be given to show which price was to be given.
(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled.
Section 97. Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies
When the language used applies partly to one set of existing facts and, partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.
Illustration
A agrees to sell to B "my land to X in the occupation of Y." A has land at X, but not in occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence may be given of facts showing which he meant to sell.
Section 98. Evidence as to meaning of illegible characters, etc.
Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local or provincial expressions, of abbreviations and of words used in a peculiar sense.
Illustration
A, a sculptor, agrees to sell to B, "all my moods" A has both models and modeling tools. Evidence may be given to show which he meant to sell.
Section 99. Who may give evidence of agreement varying term of document
Person who are not parties to document, or their representatives in interest may give evidence of any fact tending to show a contemporaneous agreement varying the terms of the document.
Illustration
A and B make a contract in writing that B shall sell certain cotton, to be paid for on delivery. At the same time they made an oral agreement that "three months" credit shall be given to A. This could not be shown as between A and B, but it might be shown by C if it affected by his interests.
UNIT - IV
Section 101. Burden of Proof
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustration
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies to be true. A must prove the existence of those facts.
Joint family property
Merely because some of properties continue to stand in the name of plaintiff that by itself cannot lead to any conclusion that the property purchased by any one member of the family would necessarily be a part of joint family property and when evidence shows that the person who has purchased property had been engaged in an independent business for a sufficient long period.
Reasonable proof of ownership
In absence of any reasonable proof that defendant was the actual owner of the property, and plaintiff was only a name given does not prove that respondent was owner and plaint maker was only a name given to the property.
What to be proved by prosecution
It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court on its own make out a new case for the prosecution and convict the accused on that basis.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustration
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.
Section 103. Burden of proof as to particular fact
The burden of proof as to any particular fact lies on that 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.
Illustration
A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
Plea of alibi
Plea of alibi taken by accused, it is he who has to prove it.
Section 104. Burden of proving fact to be proved to make evidence admissible
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Illustrations
A wish to prove a dying declaration by B.A must prove B's death. B wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.
Section 105. Burden of proving that case of accused comes within exceptions
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 upon him, and the Court shall presume the absence of such circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind he did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.
(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances bringing the case under section 335 lies on A.
Plea of self-defence
When the prosecution has established its case, it is incumbent upon the accused, under section 105 to establish the case of his private defence by showing probability. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record.
Section 106
When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had ticket is on him.
Section 108. Burden of proving that person is alive who has not been heard of for seven years
Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is 2shifted to the person who affirms it.
Section 109. Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent
When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it.
Section 110. Burden of proof as to ownership
When the question is, whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
Illustrations
(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.
Presumption as to certain offences.- (1) Where a person is accused of having committed any offence specified in sub-section (2), in-
(a) any area declared to be disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or
(b) any area in which there has been, over a period of more than one month, extensive disturbance of the public peace,
and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contary is shown, that such person had committed such offence.
(2) The offences referred to in sub-section (1) are the following, namely -
(a) an offence under section 121, section 121-A, section 122 or Section 123 of the Indian Penal Code (45 of 1860);
(b) Criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860).
Section 112. Birth during marriage, conclusive proof of legitimacy
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
Conclusive evidence' and 'conclusive proof' not different
There is no difference between 'conclusive evidence' and 'conclusive proof', the aim of both being to give finality to the establishment of the existence of a fact from the proof of another.
DNA Test
The DNA test cannot rebut the conclusive presumption envisaged under section 112 of the Indian Evidence Act. The parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof.
Presumption of proof
Refusal by wife on a genuine ground, to go to Delhi and get hers and her child's blood got tested there, does not support drawing an adverse inference against her.
In absence of dislodging of presumption by proof a husband cannot derive much help from her admission that when she met him, she was in period of menses and after that she gave birth to a child who is an illegitimate one, born validly out of wedlock of hers with her husband.
Scope
Section 112 read with section 4 really have the effect of completely closing and debarring the party from leading any evidence with respect to the fact which the law says that to be the conclusive proof of legitimacy and paternity of child covered by 112. The Parties to the marriage had no access to each other and to test blood group violates right under article 21 of Constitution.
Section 113 Proof of session of territory
A notification in the Official Gazette that any portion of British territory has before the commencement of Part III of the Government of India Act,1935, (26 Geo. 5 Ch. 2) been caddied to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.
Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a women 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 of her husband has subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code. Relevant portion of section 498A of the Indian Penal Code, (45 of 1860), is reproduced below:
For the purpose of this section, "cruelty" means:-
(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limit or health (whether mental or physical);
(b) harassment of the woman where such harassment is with a view to view concerning her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.
For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code. Husband being the direct beneficiary can be inferred to have caused life of wife so miserable that she was compelled to commit suicide.
Relevant portion of section 304B of the Indian Penal Code, (45 of 1860), is reproduced below:
Illustration
The Court may presume:
(a) That a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particular;
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;
(e) That judicial and official acts have been regularly performed;
(f) That the common course of business had been followed in particular cases;
(g) That evidence which could be and is not produced would, if produced be unfavorable to the person who withholds it;
(h) 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;
(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it :
(a) A shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;
(b) A, a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;
(b) A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;
(c) A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was young and ignorant person, completely under A's influence;
(d) It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;
(e) A judicial act, the regularity of which is in question, was performed under exceptional circumstances;
(f) The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
(g) A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;
(h) A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
(i) A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.
Presumption
(i) Presumption is rebuttable. If there is any such circumstance weakening such presumption, it cannot be ignored by the court; Sobha Hymavathi Devi v. Setti Gangadhara Swamy, AIR 2005 SC 800.
(ii) When oral and other reliable evidences are satisfactorily giving evidence that the pair lived together as husband and wife, merely because family register does not show them as husband and wife is not a clinching evidence to deny their relationship of husband and wife.
(iii) Execution of will made under fraud and under influence not denied. Evidence not adduced in support of allegation inference drawn that will is valid.
(iv) Genuine and correctness of document have to be proved by a person believes upon it by cogent and direct evidence.
(v) A court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder; Mukund alias Kundu Mishra v. State of Madhya Pradesh, (1997) 4 Supreme 359.
(vi) The recovery made some days after the dacoity does not raise a presumption under section 114(a) in respect of the offence of dacoity.
Presumption as to absence of consent in certain prosecutions for rape.- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual inter course by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
The Doctrine of Election' is a branch of rule of estoppel. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them.
Effect of estoppel
(i) An estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it.
(ii) It is settled canon of law that equity follows the law. Equity would tilt in favour of law and not against violation thereof. To claim equity, the petitioner must explain previous conduct; Bhopal Singh v. Chatter Singh, AIR 2000 P&H 34.
(iii) In terms of compromise name of tenant is deleted, order reached to finality. Dispute regarding tenancy in the subsequent proceeding are estopped.
(iv) The party in one hand volunteered before the Arbitration for extension of time and opposed to extension of time, the plea reverse to such conduct cannot be said to be good; F.C.I. v. Dilip Kumar, AIR 1999 Cal 75.
(v) The petitioner did not raise the print that the State Transport Authority was not properly constituted at the time of consideration of her petition, thereby taking a chance of succeeding in the proceedings before it. Therefore, she is now debarred by her own conduct from raising the contention before the Court.
(vi) Where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights.
Object
The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Therefore, when one person makes a misrepresentation to the other about a fact he would not be shut out by the rule of estoppel if that other person knew the true state of facts and must consequently not have been misled by the misrepresentation; Maddanappa v. Chandramma, AIR 1965 SC 1812.
Promissory Estoppel
Doctrine of promissory estoppel is not applicable to ultra vires decisions.
When plea of estoppel does not arise
If the statutory requirements for grant of lease are not fulfilled, the question of raising any plea of estoppel would not arise.
No tenant of immovable property of person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and not person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person has a title to such possession at the time when such license was given.
Tenant can contest title of landlord
If old tenancy continues, notwithstanding attornment, tenant can always contend that plaintiff who claims to be landlord had not really derived title from original inductor.
No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority of draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or license commenced, authority to make such bailment or grant such license.
(1) The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.
(2) If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.
UNIT - V
Section 118. Who may testify?
All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind, or any other cause of the same kind. A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
Reliability of witness
Testimony of a relation or a friend normally would not falsely implicate a person thereby shielding the actual culprit. It is true that by itself the evidence of a chance witness may not necessarily be false but as has often been said that it is unsafe to be relied upon; Ganpat Kondiba Chavan v. State of Maharashtra, (1997) 2 Crimes 38 (Bom).It is thoroughly unsafe to rely on the evidence of the tutored witness.
Relative or interested witnesses are not necessarily unreliable witnesses. No doubt, an approver in the eye of law is a competent witness. Evidence of child witness is not reliable who is under the influence of tutoring.
Testimony of independent witness
It is true that there is no immutable rule of appreciation of evidence that the testimony of independent witnesses should be ipso facto accepted but all the same the circumstance that witnesses are independent goes miles and miles to ensure their truthfulness. Criminal Courts decide cases and the question of acceptance of evidence of witnesses on sound common sense and when they find witnesses to be wholly independent they endeavour to fathom the reason as to why their evidence should not be accepted. Ordinarily it is a safe and sound rule of appreciation of evidence to accept the testimony of an independent witness provided it is in consonance with probabilities. It is better if it is corroborated by inbuilt guarantees which ensure the truthfulness of the prosecution case, such as a prompt F.I.R., recoveries at the instance of accused person and the presence of injured eyewitnesses, etc.
A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.
Where the witness is dumb, recording of his evidence should be of his signs and not interpretation of signs; Prakash Chand v. State of Himachal Pradesh, 1999 (1) Crimes 675 (HP).
Section 120.Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial
In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.
No Judge or Magistrate shall, except upon the special order of some Court of which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to any thing which came to his knowledge in Court as such Judge or Magistrate but he may be examined as to other matters which occurred in his presence whilst he was so acting.
Illustrations
(a) A, on his trail before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer question as to this, except upon thee special order of a superior Court.
(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B, cannot be asked what A said, except upon the special order of the superior Court.
(c) A is accused before the Court of Session of attempting to murder a police-officer whilst on his trail before B, a Session Judge. B may be examined as to what occurred.
No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except wit the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
Information as to commission of offences.- No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.
"Revenue officer" in this section means an officer employed in or about the business of any branch of the public revenue
No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure:
(1) Any such communication made in furtherance of any 1[illegal] purpose;
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, attorney or vakil was or was not directed to such fact by or on behalf of his client. The obligation stated in this section continues after the employment has ceased.
Illustrations
(a) A, a client, says to B, an attorney-"I have committed forgery, and I wish you to defend me". As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
(b) A, a client, says to B, an attorney-"I wish to obtain possession of property by the use of a forged deed on which I request you to sue". This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A's account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.
Section 127. Section 126 to apply to interpreters etc.
The provisions of Section 126 apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.
If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126, and if any party to a suit or proceeding calls any such barrister, 1pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.
No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has give, but not others.
Section 130. Production of title-deeds of witness, not a party
No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.
Section 131. Production of documents or electronic records which another person, having possession, could refuse to produce
Production of documents or electronic records which another person, having possession, could refuse to produce.- 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 such last-mentioned person consents to their production.
A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:
Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Accomplice need not be judged by independent evidence
Every detail of the story of the accomplice need not be confirmed by independent evidence although some additional independent evidence must be looked for to see whether the approver is speaking the truth and there must be some evidence, direct or circumstantial which connects the co-accused with the crime independently of the accomplice.
Importance of corroboration
On reading section 133 with illustration (B) to section 114. It is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respect so as to implicate the accused and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice.
Every approver comes to give evidence in some such manner seeking to purchase his immunity and that is why to start with he is an unreliable person and the rule of caution calling for material corroboration is constantly kept in mind by the court by time-worn judicial practice.
The evidence of approver in regard to complicity of accused appellant in the conspiracy lacks corroboration on certain material particulars necessary for connecting the appellant.
Section 134. Number of witness
No particular number of witness shall in any case be required for the proof of any fact.
Merit of the statement is important
It is well known principle of law that reliance can be based on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. The courts are concerned with the merit of the statement of a particular witness. They are not concerned with the number of witnesses examined by the prosecution. The time-honoured rule of appreciating evidence is that it has to be weighed and not counted.
Requirement
The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony of a single witness, the court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court as to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness; Lallu Manjhi v. State of Jharkhand, AIR 2003 SC 854.
Section 135. Order of production and examination of witness
The order in which witness are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law, by the discretion of the Court.
Section 136. Judge to decide as to admissibility of evidence
When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.
If the relevancy of the alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved or acquire evidence to be given of the second fact before evidence is given of the first fact.
Illustrations
(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32. he fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.
(b) It is proposed to prove, by a copy, the contents of a document said to be lost. His fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been stolen. This proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.
(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.
The examination of a witness, by the party who calls him, shall be called his examination-in-chief.
Cross-examination
The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination
The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
Section 138. Order of examinations
Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts but the cross-examination need not to be confined to the facts which the witness testified on his examination-in-chief.
Direction of re-examination
The re-examination shall be directed to the explanation of matters referred to in cross-examination, and if new matter by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
Scope
Section 138 lays down the manner of examining a particular witness and creates three distinct rights viz., examination-in-chief, cross-examination and re-examination so far as the examination of a witness is concerned. The right of cross-examination available to opposite party is a distinct and independent right. When accused declined to cross-examine witness and thereafter the said witness is not available for cross-examination, the evidence of such witness recorded is admissible in evidence but that will have to be true to that account; Nandram v. State of Madhya Pradesh, 1995 FAJ 1 (MP).
Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed or which have, in its opinion, been already sufficiently proved.
Section 144. Evidence as to matters in writing
Any witness may be asked whilst under examination, whether any contract, grant or other disposition of property as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. Explanation - A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration
The question is, whether A assaulted B. C deposes that he heard A, say to D - "B wrote a letter accusing me of theft, and I will be revenged on him. "This statement is relevant as showing A's motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.
Cross-examination as to previous statements in writing. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matter in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
Effect of contradiction
Two statements sought to be contradicted in addition should be drawn to previousstatement; Mohanlal Ganga Ram Gehani v. State of Maharashtra, AIR 1982 SC 839. If a contradiction is put to witness and it is denied by him even then it will not amount putting contradiction to witness;
When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend-
(1) To test his veracity,
(2) To discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character.
Weapon of cross-examination is a powerful weapon by which the defence can separate truth from falsehood piercing through the evidence given by the witness, who has been examined in examination-in-chief. By the process of cross-examination the defence can test the evidence of a witness on anvil of truth; Nandram v. State of Madhya Pradesh, (1995) FAJ 1 (MP).
Section 148. Court to decide when question shall be asked and when witness compelled to answer
If any such question relates to matter not relevant to the suit or proceeding, except in so far it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion the Court shall have regard to the following considerations;
(1) Such questions are proper if they are of such nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.
(2) Such questions are proper if they are of such nature that he truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.
(3) Such questions are improper if there is a great disproportion between the importance of the imputations made against the witness's character and the importance of his evidence.
(4) The court may if it sees fit, draw from the witness's refusal to answer, the in ference that the answer if given would be unfavorable.
No such question as is referred to in Section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.
Illustrations
(a) A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.
(b) A pleader is informed by a person in court that an important witness is a dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dakait.
(c) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a dakait.
(d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a dakait.
If the court is of opinion that any such question asked was without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney report the circumstances of the case to the High court or other authority to which barrister, pleader, vakil or attorney is subject in the exercise of his profession.
Section 151. Indecent and scandalous questions
The Court may forbid any question or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court unless they relate to fact in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.
The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.
When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him, but if he answers falsely, he may afterwards be charged with giving false evidence.
1. If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.
2. If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.
Illustrations
(a) A claim against an underwriter is resisted on the ground of fraud. The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim. The evidence is inadmissible.
(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it. Evidence is offered to show that he was dismissed for dishonesty. The evidence is not admissible.
(c) A affirms that on a certain day he saw B at Lahore. A is asked whether he himself was not on that day at Calcutta. He denies it. Evidence is offered to show that A was on that day at Calcutta. The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore. In each of these cases the witness might, if his denial was false, be charged with giving false evidence.
(d) A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.
The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.
Grounds
Mere possibility of not supporting case by person without any positive indication is no ground to invoke section 154 and permit cross-examination. More so, when said person is not yet examined as witness; Rehana Begum v. Mirza M. Shaiulla Baig (Dead) by L.Rs., AIR 2005 Kant 446.
Cross-examination of own witness
Grant of permission by court to cross examine his own witness by a party should be judicially exercised deposition in opposition, permission by court to declare him hostile not proper.
In a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto; Pandappa Hanumappa Nanamar v. State of Karnataka, (1997) 3 Supreme Today 63.
Evidence of hostile witness
The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused; Lella Srinivasa Rao v. State of Andhra Pradesh, AIR 2004 SC 1720.
Reliability of hostile witness
It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence.
The entire evidence of a prosecution witness, who turns hostile and is cross-examined by the Public Prosecutor with the leave of the court, is not to be discarded altogether as a matter of law. Cross-examination of a hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.
The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him:-
(1) By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has 1[accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.
Illustrations
(a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B. Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B. The evidence is admissible.
(b) A is indicted for the murder of B. C says the B, when dying, declared that A had given B the wound of which he died. Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence. The evidence is admissible.
When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fat which he testifies.
Illustration
A, an accomplice, gives an account of robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.
In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
Section 158. What matters may be proved in connection with proved statement relevant under Section 32 or 33
Whenever any statement relevant under Section 32 or 33 is proved, all matters may be proved either in order to contradict or to corroborate, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.
Section 159. Refreshing memory.
A witness may, while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person and read by the witness within time aforesaid, if when he read it he knew it to be correct When witness may use copy of document to refresh his memory. Whenever a witness may refresh his ness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document. Provided the Court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treatises.
Objection to check records not legal
Objection to check records or entries by investigating officer is not legal and liable to be rejected; State of Karnataka v. K. Yanappa Reddy, 2000 Cr LJ 400.
A witness may also testify to facts mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
Illustration
A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.
Section 161. Right of adverse party as to writing used to refresh memory
Right of adverse party as to writing used to refresh memory.- Any writing referred to under the provisions of the two last preceding Sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness there upon.
Section 162. Production of document
A witness summoned to produce a document shall, if it is in his possession or power, bring it to the Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.
The Court, if it sees, fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. Translation of documents. If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence: and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).
When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
Section 164. Using, as evidence, of document, production of which was refused on notice
When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.
Illustration
A sues B on an agreement and gives B notice to produce it. At the trail, A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.
The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, The Orient Tavern cross-examine any witness upon any answer given in reply to any such question provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.
Provided also that this Section shall not authorize an Judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.
In cases tried by jury or with assessors, the jury or assessors may put any question to the witnesses, through or by leave of the Judge, which the judge himself might put and which he considers proper.
This improper admission or rejection of evidence shall not be ground of itself for a new trail or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.
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