A.k. Jain Evidence.pdf

V^fNDIAN EVIDENCE ACT, 1872 T h e object o f every judicial investigation is enforcement of some right or liability which invariably depends upon certain facts. Law of evidence is “a system of rules for ascertaining the controverted questions of facts in judicial inquiries.” The law o f evidence bears the same relation to a judicial investigation as logical to the reasoning. The law o f evidence is basically procedural (adjective) and does not affect substantive right of parties. However, it has overtones of substantive law. For example, the law o f estoppel can defeat a man’s right. The word ‘evidence* is derived from the Latin word evident or evidtrty which means “to show clearly, to discover clearly, to ascertain, to prove**. The object of rules of evidence is to help the courts to ascertain the truth, to prevent protracted (long) inquiries, and to avoid confusion in the minds of judges, which may result from the admission o f evidence in excess. Thus, the Indian Evidence Act, 1872 was passed with the main object of preventing indiscipline m the admission of evidence by enacting a correct and uniform rule of practice. There are three main principles which underlie the law of evidence: (l) Evidence must be confined to the matters in issue. (ii) Hearsay evidence must not be admitted. (iii) The best evidence must be given in all cases. A judge cannot absolutely rely on the rules of evidence. No rule of evidence can guide the judge on the fundamental question of whether evidence as. to a relevant fact should be believed or not, and if believed what inference to be drawn from it as to the main fact. Again, the rules of evidence are not rules o f logic. Rules o f evidence are artificial. The best guide of judge on a question is his own common sense and experience of human nature.

O bjee& iw g a g g j j g a f (Multiple Choice)

1.

The Latin word evident or evldere means (a) to show or discover clearly. (feKTo ascertain. (c) to prove. (d) all of the above.

2.

The Indian Evidence Act came Into effect from: September 1, 1872. (b) October 1. 1972. (c) November 1, 1872. (d) December 15, 1872. [1]

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Scheme of the Indian Evidence Act, 1872 T h e Indian Evidence Act is divided into three main Parts: Relevancy of Facts (Chapter I containing Secs. 1-4 deals with preliminary points; Chapter II deals with ‘what facts may and may not be proved*^ Secs. 5-55). V*” ) Mode of Proof (Chapters III to Vl deals with ‘how are the relevant facts to be proved’, etc. - Secs. 56-10QY Production and Effect of Evidence (Chapters VII to XI deals with ‘by l£JH) whom qnd in what manner must the evidence be produced’ —Secs. 101167)- U } 5 , c b - H . v f l)

PART I RELEVANCY OF FACTS CHAPTER I PRELIMINARY [SECS. 1-4] SEC. I: Short Title, Extent and Com m encem ent

T h e Indian Evidence Act, 1872 extends to the whole of India except the State of [ammu and Kashmir and applies to all judicial proceedings in or before any Court, including courts-martial (except under the Army Act, Naval Discipline Act, Indian Navy (Discipline) Act. 1934 and Air Force Act), b u t not to affidavits presented to any court or officer, nor to proceedings before an arbitrator; and it shall come into force on 1st September 1872 (Sec. 1). Applicability of the Indian Evidence Act, 1872 Section 1 provides for the applicability of the Indian Evidence Act. The Act applies to judicial inquiries only and not an administrative inquiry. An enquiry is judicial if the object of it is to determine a jural relation between the parties. A judicial proceeding is one in the course of which evidence is or may be legally taken on oath [Sec. 2 (i), Cr.P.C]. An execution proceeding is a judicial proceeding, but a contempt proceeding is not. Proceedings under the Income Tax are not judicial proceedings 3.

How many Sections and Chapters are there In the Indian Evidence Act, 18727 (a) {py* (c) (d)

4.

164 167 177 162

Sections Sections Sections Sections

and and and and

10 11 11 10

Chapters. Chapters. Chapters. Chapters.

The Law of Evidence Is basically: Procedural law. (b) Substantive law. (c) Procedural as well as substantive law. (d) A group of laws.

Law o f Evidence

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under this Act, but proceedings before Industrial Tribunal has been held to be judicial proceeding. The Act does not apply to ‘affidavits’ because the deponent's assertion of facts on the basis of his personal knowledge does not constitute Evidence'. An affidavit is, however, use3~as a mode of proof. It can become evidence only by consent of the party or if specifically authorized by any provision of law viz. Order 19, C.P.C; Secs. 295-297, Cr.P.C. Further, arbitrators have to follow the principles of natural justice and not rules o f evidence. Also, the Evidence Act has no application to enquiries conducted by the tribunals, even though they may be judicial in character; such tribunals follow rules of natural justice. * L/x fon>—Law of evidence is the lex fori Le. law of the forum for court) in which a case is tried (‘law of the place of the action1). Whether a witness is competent or not; whether a certain evidence proves a fact or not; that is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced and where the court sits to enforce it. Where evidence is taken in one country in aid of a suit or action (proceeding) in another country, either on ordinary commission or with the assistance o f the local courts, the law applicable to the recording of evidence, would be the law prevailing in the country where the proceeding is going on. SEC. 2: Repeal of Enactm ents

Sec. 2 (1) repealed all rules of evidence which were not contained in any Statute, Act or Regulation in force in any part o f British India. Before passing o f the Indian Evidence Act, the rules of evidence were governed by the rules of English Common Law, Hindu and Mohammedan Laws, and the rules of Equity, Justice and Good Conscience. Sec. 2 (1) repealed all those rules of evidence. The Repealing Act, 1938, has repealed Sec. 2 and Schedule. The Act a Complete Code

The Indian Evidence Act, 1872 is mainly based on the English law of evidence. The Act consolidates, defines and amends the law of evidence. The Act, however, is not exhaustive, i.e. it does not purport to contain all the rules of evidence. For the Objective Questions (Multiple Choice)

5.

Mark the Incorrect statement: (a) The Indian Evidence Act, 1872 is mainly based on the English law of evidence. (b) The Act is exhaustive i.e. it purports to contain all the rules of evidence. (c) The Act deals with the particular subject of evidence and is a ‘special' law. (d) The law of evidence is contained in the Evidence Act and in other Acts and Statutes which make specific provisions on matter of evidence.

6.

Mark the Incorrect statement: (a) (b) (c) (d)

A judge cannot absolutely rely on the rules of evidence. The rules of evidence are not rules of logic. Rules of evidence are artificial. The law of evidence consists of ordinary rules of reasoning.

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interpretation of the sections of the Act, the courts can look to thejrelevant English common law. However, the courts cannot import any principle of English law which is inconsistent with what is laid down by the Act. ^XpKe law of evidence is contained in the Evidence Act and in other Acts and Statutes which make specific provisions on matter of evidence viz. Order XXVI C.P.C.; Secs. 291-292, CrP.C.; Secs. 59 and 123, T.P. Act. It may be noted that the Evidence Act deals with the particular subject of evidence and is a ‘special* law. Hence, no rule about the relevancy of evidence contained in the Evidence Act is affected by any provision in the Cr.P.C. or any other enactment unless it is so specifically stated in the Code or it has been repealed or annulled by another statute. Evidence excluded by the Evidence Act is inadmissible even if it seems essential for ascertainment of truth. Further, parties cannot contract themselves out of the provisions of the Act. Likewise, a court cannot on the ground of public policy, exclude evidence relevant under this Act S EC. 3; Interpretation Clause

I n this Act the following words and expressions arc used in the following sense unless a contrary intention appears from the context: “Court”; “Fact”; “Relevant”; “Facts in Issue”; “Document”; “Evidence”; “Proved”; “Disproved”; “Not Proved”; “India”. Court “Court” includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence. It may be noted that in a trial by jury, the Court includes jury. A Court does not include an arbitrator though he is legally authorized to take evidence. fa ct “Fact” means and includes: (1) any thing, state of things, or relation of things, capable o f being perceived by sens6s^ ' ^ (2) any mental condition of which any person is conscious. Illustrations

(a) That there are certain tilings arranged in a certain order in a certain place, is a fact. 7. Which is not the main principle that underlies the law of evidence? (a) (b) y&y(d)

Evidence must be confined to the matters in issue. Hearsay evidence must not be admitted. Hearsay evidence must be admitted. The best evidence must be given in all cases. [M R CJ. (Prelim.) 1999]

8. The aim of the law of evidence is: (a) (b) (c) i& f

To decide which fact is liable to be proved. How the facts could be proved before the court. To prevent protracted (long) inquiries. All of the above.

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(b) & (c) That a man heard or saw or said something, is a fact (d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulendy, 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. The facts may be physical [I/lusts, (a), (b) and (c)] or psychological [Illus/s. (d) and (e)]. It has been said that “a state of man’s mind is as much a fact as the state of his digestion”. The state of a person’s health is a fact. The psychological facts can only be proved by circumstantial evidence. The facts may be positive or negative. The existence of a certain state of things is a positive fact; the non-existence of it is a negative fact. Facts in Issue1 “Facts in issue” means and includes - (1) any act 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, (2) any fact asserted or denied in answer to an issue of fact recorded under the Civil Procedure Code. ^- — ■■ — '*0' A fact in issue is called the 'principal’ fact or factum probandum. It is the fact which is sought to be proved. Facts, which are in dispute, are facts in issue. Evidence becomes necessary only in reference to such facts. Further, these are the facts which constitute the right or liability. The following illustration makes clear the point: “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 that act which caused B’s death, was, by reason of unsoundness of mind incapable of knowing its nature. Thus, every fact which a plaintiff must prove in order to get an adjudication in his favour, or which a defendant may prove to defeat the suit, becomes a fact in issue. Facts in issue will depend upon the provisions of the substantive law applicable 1. What is a Fact in Issue? Illustrate your answer.

[U.P. PCS (]) J9S4/200C\ Objective Questions (Multiple CHoicc)

9.

The Indian Evidence Act applies to: (a) (b) (c) (d)

10.

Proceedings before tribunals. Affidavits presented to any court or officer. Proceedings before an arbitrator. None of the above.

A statement made on an Affidavit (a) (b) (c) (d)

is evidence. is not an evidence. could be evidence if the court orders. both (b) and (c).

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to the offence. If, for example, the action is for the tort of negligence, such o f the ingredients of liability for negligence, which are in dispute, shall be the facts in issue. Thus, facts in issue depend upon the ingredients of the offence and the state of the parties' pleadings. In criminal matters, the allegations in the charge sheet constitute the facts in issue. In civil matters, the process of ascertaining facts in issue is known as ‘framing' issues. The ‘issue of fact' under C.P.C. is equal to the ‘fact in issue’ of the Evidence Act.2 Relevant Facts “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”, viz. (i) facts logically connected with facts in issue (Ss. 5-16), (ii) admissions and confessions (Ss. 17-31), (iii) statements by non-witnesses (Ss. 32-33), (iv) statements under special circumstances (Ss. 34-37), (v) judgment in other cases (Ss. 40-44), (vi) opinions of third persons (Ss. 45-51), and (vii) evidence as to character (Ss. 52-55). It is to be noted that the section does not define the term “relevant". Rather, it simply indicates when one fact becomes relevant to another. Normally, facts relevant to an issue are those facts which are necessary for proof or disproof of a fact in issue. Thus, relevant facts (or evidentiary facts) or factum probans are those which have a certain degree of probative force. Relevant facts are not themselves in issue, but are foundations of inferences regarding them. For example, “when A is accused of the murder of B”, the ‘relevant facts' are - A had a motive and opportunity to kill B, he had made preparations by buying a knife, etc., or after the murder he was seen running with blood-stained knife in hand. Relevancy implies relationship i.e. any two facts to which it is applied are so related to each other that according to the common course of events one taken by itself or in connection with other facts proves or renders probable the existence or 2. Distinguish between ‘facts in issue' and ‘issues of fact*. From what materials issues are framed? What issues may be tried first? [Raj.J.S. 1994\ 11.

The ‘Court' under the Evidence Act Includes: (a) (b) (c) (d)

12.

Jury. Commissioner under Order 27, Rule 17 of C.P.C. Magistrate. All of the above.

Mark the correct statement: (a) Evidence excluded by the Evidence Act Is Inadmissible even lf.lt. seems essential for ascertainment of truth. (b) Parties cannot contract themselves out of the provisions of the Act. (c) A court cannot on the ground of public policy, exclude evidence relevant under this Act. (d) All of the above.

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non-existence of the other. Thus, circumstantial evidence is evidence that relates to facts, other than those in issue, which by human experience, have been found to be so associated with the fact in issue that the latter may be reasonably inferred therefrom. The word ‘relevant’ has been held to be ‘admissible’ (Lakhmi v Holder, 3 CWN 268). Evidence “Evidence” means and includes: (1) All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry (oral/ ocular evidence). (2) All documents produced for the inspection of the court (documentary evidence). A document is evidence only when it is produced for the inspection o f the court. A writing obtained by the court for the accused for comparison is not evidence as it is not a document produced for the inspection of the court. This is not a real definition of the term “evidence”, but is rather a statement of what the term “evidence” includes. The word ‘evidence’ implies the state o f being evident i.e. plain, apparent or notorious; it means anything by which the alleged matter or fact is either established or disproved. Anything (exclusive of mere argument) that makes the thing in question evident to the court is evidence. The definition of ‘evidence’ given in the Evidence Act is incomplete and defective. It excludes the statements and admissions of the parties, their conduct and demeanour (outward behaviour) before the court, circumstances coming under the direct cognizance of the court, facts of which the court can take ‘judicial notice’ of and the fact which the court must or may presume. The confession/ statement of an accused person is not evidence (as not taken on oath and not subject to crossexamination). Similarly, statements of parties when examined oth^orise—than as witnesses, material objects other than documents, etc. are not evidence according to the definition given in Sec. 3. However, all these are matters which the court may legitimately consider while deciding a case. ‘Whatever is considered by the court is evidence’: circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense (Haricharan Kttrmi v State of Bibar AIR 1964 SC 1184). The definition O b j e c t i v e QtnamtiOMiM (Multiple Choice)

13.

Law of evidence It the lex fori. Thus, where evidence Is taken In country ‘A’ In aid of a suit or action (proceeding) In country ‘B’, the law applicable to the recording of evidence would be the law prevailing In: (a) (b) (c) (d)

14.

Country ‘A'. Country *B\ Either *A' or ‘B*. Both 'A' or *B\

The facts can be: (a) (b) (c) (d)

Physical only. Physical as well as psychological. Positive and negative. Both (b) and (c).

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given in See. 3 is, however, exhaustive in die sense that every kind of evidence can ultimately be reduced either to die category of oral or documentary evidence. \V&7/fercnce between *evidence* and 'proof' - The word ‘evidence* includes all the legal means, exclusive ot mere argument, which tend to prove or disprove any matter or JacJT the truth of which is submitted to judicial investigation. ‘Proof* is the establishment of fact in issue by proper legal means to the satisfaction o f the court. It is the result of evidence, while evidence is only the medium of proof. Different Kinds of Evidence There are several types of evidence: (1) Direct and (2) circumstantial evidence3 - A ‘direct* evidence is the testimony of the witnesses as to the principal fact to be proved e.g. the evidence of a person who says that he saw the commission of the act which constitutes the alleged crime. It also includes the production of an original document. It means any fact which without the intervention of any other fact proves the existence of a fact in issue. The fact of a marriage, for example, may be proved by producing the wedding photographs. Direct evidence is generally o f a superior cogency; its greatest advantage is that diere is only one source of error, namely, fallibility of testimony. Sometimes the facts happen suddenly and do not leave behind much direct evidence. In such cases the main event will have to be reconstructed before the court w’ith the help of the surrounding circumstances such as the cause or the effects of the event. Circumstances sometimes speak as forcefully as does the direct evidence. ‘Circumstantial evidence* includes all the relevant facts. It is not secondary evidence; it is merely direct evidence applied indirectly! A ‘circumstantial evidence* is the testimony of a witness to other relevant facts from which the fact in issue may be inferred. T here must be a chain of independent evidence so complete and unbroken as to show that, within all human probability, the act must h a v e rw nTlonr \w the accused (lHanumant GovincL Narsundfcar v State of M.P. AIR 1952 SC 343). In the absence of direct evidence, a person can be Distinguish between direct and circumstantial evidence. Can a person be convicted on the basis of circumstantial evidence alone? [U.P. PCS (J) 1986\

Write a short note on: Circumstantial evidence - its menaing, necessity and scope. [Delhi J.S.19801 15.

That there are certain things arranged in a certain order In a certain place (a) (b) (c) (d)

16.

is is is is

a fact. a document. an opinion. a motive.

Klshore Is very famous for singing. This Is a: (a) (b) (c) (d)

Fact. Statement. Evidence. Document.

[M.P. CJ. (Prelim.) 2002)

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Law o f Evidence

convicted on the basis of circumstantial evidence alone if the conditions mentioned below are satisfied (IJmedbhai v State of Gujarat M R 1978 SC 424). In State of U.P. v Ravindra Prakash Mittal (AIR 1992 SC 2045)Jt-was held; (i) The circumstances from which the conclusion is drawn should be fully established and conclusive in nature; (ii) All the facts so established should be consistent only with the hypothesis o f guilt and inconsistent with innocence of the accused; (iii) The circumstances should, to a moral certainty, exclude the possibility of guilt o f any person other than the accused. In appreciating a case based on circumstandal evidence, one circumstance by itself may not unerringly point to the guilt of the accused. It is the cumulative result of all the circumstances which could matter (Gade luikshmi Mangraju v State of A .P AIR 2001 SC 2677). Where the circumstantial evidence only showed that the accused and deceased were seen together the previous night, it was held to be not sufficient {Prem Ybakttr v State of Punjab AIR 1983 SC ’446). Unlike direct evidence, the circumstantial evidence suffers from fallibility of inference. The weight of evidence varies according to the number of independent facts supported.' (3) Real/ personal evidence —‘Real’ evidence refers to any matter which the court perceives itself e.g. that a man standing before a judge has got a scar on his face, objects like murder weapon, blood-stained clothes, photographs, etc. ‘Personal’ evidence is that which is afforded by human agency. (4) Hearsay evidence - I t is also called derivative or second-hand evidence. It is the testimony of a witness as to statements made out of court which are offered as evidence of their own truth. Thus, A’s evidence that A heard that a murder had taken place is ‘hearsay' evidence. (5) Primary! feenndnry evident* — The former means the best or original evidence; the latter is an indirect evidence. (6) Positive/ negative evidence - The former tends to prove the existence of a Tact, while the latter non-existence of a fact. A negative evidence is ordinarily no good evidence. (7) Oral evidence. (8) Documentary evidence: '....... .. (9) Conclusive evidence - Where the connection between the principal and evidentiary fact is a necessary conclusion. O b je c tiv e Q u e s tio n s (Multiple Choice)

17.

Linder the Indian Evidence Act, “fact’’ Includes: (a) (b) (c) (d)

18 .

Facts in issue and relevant tacts. Principal facts and evidentiary facts. Factum probandum and factum probans. All of the above.

Every fact which a plaintiff must prove in order to get an adjudication In his favour, or which a defendant may prove to defeat the suit Is: (a) (b) (c) (d)

Fact in issue. Relevant fact. Evidentiary fact. All of the above.

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Document “Document” means any matter expressed or described upon any substance by means oi letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Illustrations —(i) A writing, (ii) words printed, lithographed or photographed, (iii) a map or plan, (iv) an inscription on a metal plate or stone, and (v) a caricature —are all documents. This definition of the word ‘document’ is similar to the one contained in the Indian Penal Code. Stephen defines a ‘document’ as “any substance having any matters expressed or described upon it by marks capable of being read”. Thus, letters imprinted on trees as evidence that they have been passed for removal by the Forest Ranger are documents. The wooden scores on which bakers or milkman indicate by notches the number of loaves of bread or quarts of milk supplied to their customers are also documents - as much as more advanced computerized methods of keeping accounts. A musical composition is also a document. Speaking generally, it means anything or matter which contains a permanent record of a relevant fact or a fact in issue. Thus, a paper on which a contract is written is a document, so is a wall or chattel or stone or ring on which something is inscribed. It has been said that the word ‘document’ as used in the law of evidence ‘should not be construed restrictively’. Etymologically the word means something which shows or teaches and is evidential or informative of its character. O f course, much depends upon the context in which the word ‘document’ is used. India “India” means the territory of India excluding the State of Jammu and Kashmir. Proved, Disproved, Not 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 does exists 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-exisfence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be “tiot^proyed* when it is neither proved nor disproved. It means neither the fact is proveTwith certainty nor the factTs'belidVed to exist. In 19.

When A la accused of the murder of B, the ‘relevant facta’ are: (a) A had a motive and opportunity to kill B. (b) A had made preparations by buying a knife. (c) After the murder A was seen running with blood-stained knife in hand. (d) All of the above.

20.

Evidence under the Indian Evidence means and Includes: (a) (b) (c) (d)

Oral evidence. Documentary evidence. Both (a) and (b). Oral evidence based on documents and Documents.

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other words, the man of ordinary prudence neither believes that the fact exists nor he believes that the fact does not exist. Evidence of fact and proof of a fact are not synonymous terms. Proof is the effect of evidence. Troof *considered as the establishment of material facts in issue in each particular case by proper and legal means to the satisfaction of the court is effected bv: (i) evidence or statements of witnesses, admissions or confessions of the parties, production of documents; (ii) presumptions; (iii) judicial notice; and (iv) inspection. It may be noted that the word “matters” (and not the term evidence) is used in the definition o f the term ‘proved* and ‘disproved*. For instance, a fact may be orally admitted in court; such an admission would not come within the definition of term ‘evidence*, yet it is a matter which the court would have to consider in order to determine whether the particular fact was proved or not proved. It is because of the use o f this wider term that a court can attach due weight to the demeanour of a witness i.e. the manner in which he gives evidence in the court. Sec. 3 of the Act, while explaining the meaning of ‘proved*, etc. deals with the degree or standard of proof. Proof does not mean proof of rigid mathematical demonstration (absolute certainty or accuracy of statements), because that is impossible; it must mean such evidence (such degree of probability) as would induce a prudent/ reasonable man to come to the conclusion. Suspicion cannot take the place of proof, nor moral belief of the judge in the guilt of the accused. The sea of suspicion has no shore and the court that embarks upon it is without rudder and compass. In Babuda v State of Rajasthan (AIR 1992 SC 2091), it was held the accused not to be convicted of theft where there was nothing to show his presence in the house from where the articles supposed to have been stolen from removed, the only evidence being recovery one and half months later from the person to whom the articles were allegedly sold, conviction not to be based upon suspicion. In State of Maharashtra v McL Yakub (AIR 1980 SC 1111), it was pointed that the Word ‘proved* does not draw any distinction between direct or circumstantial evidence. The extent to which a particular evidence aids in proving the fact in controversy is called as the ‘probative force*. What and how much proof is necessary to convince the judge o f the existence of a fact in issue? The answer depends upon many circumstances, as different standards of proof are demanded in civil and criminal cases. In civil cases, a matter is taken to be proved when the balance of probability suggests it, but in criminal cases the court requires a proof beyond reasonable doubt. Objective Questions (Multiple Choice)

21.

Which of the following Is an 'evidence': I.

Affidavit.

II. Anything produced before the court for Inspection. III. Anything of which Judicial notice can be taken. IV. Written statement of an accused. V.

Hearsay evidence. (a) (b) (c) (d)

I, II and V. II, III. IV and V. III and V. All of the above.

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of Law of Evidence in Civil/ Criminal Proceedings3*

JLhe rules of

law of evidence for civil and criminal cases are, in general, the same e.g. the method of proving that a particular person is dead in respect of civil case (person executing the will died or not on a particular date) or criminal case (a person charged with murder). But, there are certain sections of Evidence Act which apply only to the civil cases (e.g. Ss. 115-117 dealing with estoppel) and some only to the criminal cases (e.g. Ss. 24-30 dealing with confessions). The mediod of proving (i.e. burden of proof is on the prosecution /plaintiff) is same in both, but there is a marked difference as to the effect of evidence (or weight of evidence) in civil and criminal cases. The Evidence Act makes no disdnedon between the degree of proof or probability requisite for criminal as distinguished from civil cases. However, as remarked by Best in his book on Evidence, “There is marked difference as to the effect i.e. probative force of evidence, in civil and criminal proceedings. In civil cases, mere preponderance of probability is sufficient; whereas, in criminal cases, issues must be proved beyond any reasonable doubt”. The rule is based upon the maxim of English law laid down by Holroyd J. that “It is better that ten guilty men should escape, rather than one innocent should suffer”. ^ In civil cases, the rule of evidence may be relaxed by consent o f parties or by court’s order e.g. proof of affidavit. It is not so in criminal cases. With regard to proof in 'criminal’ cases, the following general rules have to be observed: (i) The accused is always presumed to be innocent until the prosecution proves him to be guilty. While in civil cases, all that is necessary to insist upon is that the proof adduced in support of a fact is such that should make a prudent man to act upon the supposition that it exists. (ii) The evidence must be such as to exclude every reasonable doubt o f the guilt of the accused. (iii) In case of any reasonable doubt as to the guilt of the accused, the benefit of doubt should always be given to the accused. (iv) There must always~Be clear prooTof corput delicti i.e. the fact o f commission of the crime. (v) The Tiypothesis of delinquency should be consistent writh all the facts proved. 3a. “Rules of evidence are in general the same both in civil and criminal cases.” Comment. [Delhi J.S.1996\ 22.

A Is accused of a child's murder. The following facts are constructed In the case: I. An hour before the murder, A went to the place of murder with the child. II. A alone returned home. III. A's cloth were found to be blood-stained. The evidence which takes Into account the above-mentioned facts Is called: (a) (b) (c) (d)

Direct evidence. Circumstantial evidence. Real evidence. Secondary evidence.

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As regards the standard of proof in civil and criminal cases, Denning J. observed in Baterv B.y “It is true that by our law, there is a higher standard of proof in criminal cases than in civil cases; but this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the chnrgp must \}e prnvpti beyond reasonable doubt,^but there may be degrees of proof within that standard. So also, in 'civil cases, theremay be degrees of probability”. The general rule in civil actions (except matrimonial causes) is that an uncontested case may be established by a minimum of proof, and a contested case by a balance of probabilities. The same evidence which may be sufficient to regard a fact as proved in a civil suit may be considered insufficient for a conviction in a criminal action [Ra%ik Ram v Jaswant Singh (1975) 4 SCC 769]. S E C .V M a y Presum e, Shall Presume and Conclusive Proof

See under the ‘Presumptions* (Secs. 111A —114A). CHAPTER II O F T H E RELEVANCY OF FACTS [SECS. 5-55] 0 W hat Fact May Evidence be Given

“E vidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of relevant facts, and of no others”. Explanation — This section shall not enable any person to give evidence of a fact which he is disentided to prove by any provision of law for the time being in force relating to Civil Procedure. Illustration —A is tried for the murder of B by beating him with a club with the intention of causing his death. At A*s trial the following facts are in issue:- As beating B with a club; A*s causing B*s death by such beating; A*s intention to cause B*$ death. According to Sir James Stephens, the most universal rule of evidence is that evidence adduced should be alike directed and confined to the matters which are in dispute. Anything not directly connected is irrelevant viz. collateral fact. Objectitrc Qtncatioxi* (Multiple Choice)

23.

Which Is considered as the ‘best’ evidence? (a) (b) (c) (d)

24.

Primary evidence. Real evidence. Secondary evidence. Hearsay evidence.

An inscription on a metai plate or stone: (a) (b) (c) (d)

Is Is Is Is

a fact. a document. an opinion. a motive.

[M.P. CJ. {Prelim.) 2002]

14

Law Guide for Judicial Service Examination

Logical and legal relevancy - All facts, which are logically relevant, are not legally relevant. One fact is said to be legally relevant to another only when the one is connected with the other in any of the ways referred to in Secs. 6-55 o f the Act. Whatever is legally relevant is logically relevant. However, only legally relevant facts are considered as relevant facts. A confession made to a police officer may appear to be logically relevant, but it is not legally relevant, for Sec. 25 declares that it cannot be used as evidence against the person making it. The question of relevancy is a question of law to be decided by the Judge. If ^/irrelevant evidence is so mixed up with relevant evidence that it cannot be separated, the whole of the evidence should be rejected. The question of relevancy is a question of law and can be raised at any stage ol the proceeding. The Explanation to Sec. 5 lays down diat if some provision in Gvil Procedure Code disentitles the person to give evidence of a fact, he will not be entided as of right to adduce that evidence in the court. Relevancy and Admissibility4 Relevant means that which is logical probative. Admissibility is not based on logic but on law and strict rules. The terms ‘relevancy* and ‘admissibility* are not co­ extensive or interchangeable terms. Frequendy, the expressions ‘relevancy* and ‘admissibility* are used as synonymous with each other but their legal incidents are different Ilian? Bihari Yadav v State of Bibar (1994) 4 SCC 517]. All admissible evidence is usually relevant, but all relevant evidence is not admissible. Kelevancy (Secs. 5-55) means, “what facts may be proved before a court”. The admissibility (Sec. 56 onwards) is the means and the method of proving the relevant facts. Relevancy is the genus of which admissibility is a species. Very often, public consideration of fairness and the practical necessity for reaching speedy decisions necessarily cause the rejection of much of the relevant evidence, ^ f h u s , privileged communications (during marriage; with a legal adviser; official communications) are protected from the disclosure. Oral statements, which are hearsay, may be relevant, but are not admissible. Likewise, every admissible fact is not necessarily relevant. Thus, the previbus statements to contradict a witness and the facts to impeach the credit of a witness are receivable in evidence but they are not relevant. 4. All admissible evidence is relevant but all relevant evidence is not necessarily admissible. Comment. [U.P. PCS (J) 1986/1992^ Relevancy and admissibility are neither synonymous nor. is the one included in other. Elucidate this statement. [UP. PCS (J) 2000\[DelhiJ.S. J999\ 25 .

In relation to the expressions defined In Sec. 3 of the Evidence Act which of the following statem ents Is not correct? (a) (b) (c) (d)

26.

“ Fact" includes not only physical facts but also psychological facts. “Court" includes arbitrators. An inscription on a stone is a “document". A fact is said to be “not proved" when it is neither proved nor disproved. [M.P. CJ. (Prelim.) 2002]

‘Proof of a fact Implies: (a) (b) (c) (d)

Absolute certainty or accuracy of statements. Degree of probability of the existence of a fact. Artificial probative value assigned to a fact. All of the above.

Law of Evidence

15

Though where the relevancy of a fact is established, there is presumption o f its admissibility and it is for the other side to show that the fact is not admissible. The court is to decide the question of admissibility of an evidence (Sec. 136). Admissibility is a quality standing between relevancy (or probative value) on the one hand and proof (or weight of evidence) on the other hand. Evidence Obtained by Undesirable Methods - Whether AdmissibleT^v C ^

The relevant evidence remains relevant even if it was obtained by improper or unlawful means. “The test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned with how it was ob\2Ane&[J£Aagraj Patodia v R.K. Birla (1970) 2 SCC 889]. *fficC only exception to this rule is that where after the aUeged offence, improper methods have been used to obtain evidence for it and the judge is of the view that the prejudicial effect of such evidence would be out of proportion to its evidentiary value, the judge may exclude it {Pushpadevi v Af.JL Wadkawan AIR 1987 1748). The impact on the fairness of the proceedings is the crucial determining factor. In K v Christou (1992) 4 All ER 559, the police operated for about 3 months by establishing a shop of jewellers and putting up the shady image of being interested in buying ‘stolen property7. The object was to recover stolen goods and to obtain evidence against those involved in theft and handling. All the transactions in the shop were filmed and conversations recorded. The evidence so collected was admitted at the trial. SEfeC^TRelevancy of Facts forming Part of Same Transaction6

“F a c ts 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.” 5. * Can an evidence obtained by committing offence of theft be admitted in a case of criminal nature? Give reason. [Raj.J.S. 1999[ 6. Explain and illustrate the following: “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.” [U.P. PCS (J) 198J\ [Bih*r J.S. 1986\ O b j e c t i v e Q x iC M tio n jf (Multiple Choice)

27.

Mark the Incorrect statement: (a) The Evidence Act makes no distinction between the degree of proof or probability requisite for criminal as distinguished from civil cases. (b) The rules of law of evidence for civil and criminal cases are, in general, the same. (c) There is a higher standard of proof in criminal cases than in civil cases. (d) None of the above.

28.

Evidence may be given In any suit or proceeding of the existence or non-exi9tence of every (a) (b) (c) (d)

fact in issue. relevant fact. both (a) and (b). collateral fact.

Law Guide for Judicial Service Examination

16

Illustrations

(a) A is accused of B’s murder by beating him. Whatever was said or done by A or B or by the by-standers at the beating or so shortly before or after it as to form part o f 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 gaols are broken open. The occurrence o f 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 tor 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. The principle of Sec 6 is that whenever a “transaction” such as a contract or a crime, is a fact in issue, then evidence can be given of every fact which forms part of the same transaction. The acts in a transaction need not occur at the same time and place. Res gestae 6a Facts forming part o f a transaction are described by English and American writers as being part of res gestae, i.e. things done in the course o f a transaction. The illustrations (a) to ^d) above are all instances o f res gestae. The term res gestae is equivalent to the ‘facts’ mentioned in Sec. 6. However, it is also used as equivalent to details o f facts in issue, and, fact in issue and surrounding circumstances. Taylor defines it as including everything that may be fairly considered as an incident of the event under consideration. Thus, res gestae are those circumstances which are the instinctive (automatic) and undersigned incidents o f a particular act. They are the acts talking for themselves not what people say when talking about the acts. Statements often accompany physical happenings. The question is to what extent such statements can be regarded as parts of the transaction. For a statement 6a. Write a short note on: Res gestae. 29.

A relevant fact must be: (a) (b) (c) (d)

30.

[DelhiJ.S. 1990/1996[

Logically relevant. Legally relevant. Both (a) and (b). None of the above.

A Is accused of B’s murder. Which of the following will not be a ‘fact In issue'? (a) (b) (c) (d)

A’s A’s A’s A’s

beating B with a club. causing B’s death by such beating. intention to cause B's death. going to field with a club.

Law of Evidence

17

to be a relevant fact, it must be contemporaneous with the fact i.e. made either during or immediately before or after its occurrence. Thus, A, while running in street, crying that B has stabbed him, is a relevant fact But, statements made during the investigations o f a crime are not relevant facts. Where shordy after the murder, the person suspected of it explained away the absence o f the deceased by saying that he had left the village, held that statement is a relevant fact, being part of the transaction. However, if the statement is made after the act is over and its maker had the time for reflection and deliberation (or a narration o f past events in answer to a question), then it is not relevant. The statement should be an exclamation “forced out of a witness by the emotion generated by an event” (G. Vijayavardban Rao v State of A.P. AIR 1996 SC 2971). The statement must be a statement of fact and not an opinion. A, when reached the murder spot, heard people present there as saying that someone murdered someone. It was not stated that the persons who made above statements were present at the time of murder. It is not a relevant fact. However, if a witness after witnessing the incident goes to the police station and files a FIR, the making of the report is part of the transaction and amounts to res gestae. In another case, A was tried for the murder of B by shooting him with a gun. The facts that the person, who was at that time in the same room with B, saw a man with a gun in his hand pass by a window of that room and thereupon exclaimed “There is the butcher (‘A was known by that name1) wrere held to be relevant. Similarly, in a trial for downry murder of B, the fact that on the alleged murder night the police had received a distress telephonic call from B in which before abrupt disconnection she could only say: “Please help me, I fear immediate harm to myself” were held to be relevant. However, where the raped girl made a statement to her mother after the rape when the culprit had gone away and the girl came home from the scene o f occurrence, held that it is not admissible under Sec. 6. The doctrine of res gestae is applicable to ‘hearsay* evidence also, which is not considered a good piece of evidence. In R. v Foster (1834) 6 C & C, the witness had seen only a speeding vehicle, but not the accident. The injured person explained him the nature of the accident. He was allowed to give evidence of what the deceased said, although it was'only a derived knowledge, it being a part of res gestae. Similarly, collateral facts are res inter aji&sjftfae (i.e. transactions Between "others* for example, statements made behind the accused’s backTm
31.

A Is accused of B’s murder. Which of the following will be a ‘relevant fact'? (a) A’s going to field with a club. (b) A’s saying shortly before the incident that he will take a revenge of his father’s death. (c) A’s fleeing before the police arrived at village. (d) All of the above.

Law Guide for Judicial Service Examination

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According to Professor Stone, “no evidential problem is so shrouded in doubt and confusion”. The rule is useless because every part o f it is covered by some other rule, for example, declarations as to the state or mind or health. The precise limits of res gestae are not easy to defme. Thus, the phrase res gestae has not been included in Indian Evidence Act. And it is left to the judges to find the necessary connection and treat a fact as relevant. «r> 7: Facts which are the O ccasion, Cause or Effect of Facts in Issue7

A ccording to Sec. 7, the following facts are relevant: facts facts facts facts

which are the occasion. cause or effect (immediate or otherwise) of in issue or relevant facts, which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction.

Illustrations 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. 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. 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. Sec. 7 could be explained as follows: Occasion: The fact that the deceased girl was alone in her house at the time of murder is relevant, as it constituted the occasion for the murder. Cause: The fact that the accused was in love with the deceased's wife is relevant, as it constituted the cause for the murder. 7. Are facts which are the occasion, cause or effect of Tact in issue’ relevant? Illustrate your answer. [U.P, PCS (J) 1985\ 32.

Mark the Incorrect statement: (a) The terms ‘relevancy’ and ‘adm issibility’ are co-extensive or interchangeable terms. (b) All admissible evidence is usually relevant, but all relevant evidence is not admissible. (c) Relevancy is the genus of which admissibility is a species. (d) Relevancy and admissibility are neither synonymous nor is the one included in other.

33 .

An evidence obtained by Improper or unlawful means Is: (a) (b) (c) (d)

Relevant. Irrelevant. Relevant and admissible. Irrelevant and inadmissible.

!

Law o f Evidence

19

Effect: Footprints and finger impressions on the scene of the crime; where a person is poisoned the symptoms produced by poison; possession of stolen articles by a person immediately after theft. Opportunity. The fact that accused left his fellow workers at about the time of the murdeF under the pretence of going to a Smith’s shop was relevant as this gave the accused his opportunity. State of tbinoy. e.g. the state of relations between the parties, the state of the health of the deceased and his habits. For example, where the accused was prosecuted for shooting down his wife and he took the defence of accident, the fact that die accused was unhappy with his wife and was carrying an affair with another woman was held to be relevant Mere advantage not enough - The mere fact; however, of a party being so situated that an advantage would accrue to him from the commission of a crime, amounts to nothing or next to nothing, as a proof of his having committed it. SEC. 8: Motive, Preparation and Previous or Subsequent Conduct

A ccording to Sec. 8, “any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Further, the conduct (previous or subsequent) o f a party or his agent or an accused is relevant which influences or is influenced by a fact in issue or relevant fact.” ' 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 (Motive).6 (b) A sues B upon a bond for the payment of money. B denies the making of the bond. The fact that, at die time when the bond was alleged to be made, B required money for a particular purpose is relevant {Motive). 8. A is tried for the murder of B. Are 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, relevant? Give reasons for your answer. [U.P. PCS Q) 198S/&9f) Objective QucmHommm (Multiple Choice)

34.

Sometimes facts which, though not in issue, are so connected with a fact in Issue, as to form part of the same transaction. These facts are relevant and also known by the name of: (a) (b) (c) (d)

35.

Res gestae. Res Judicata. Res nullius. None of the above.

Res gestae implies: (a) (b) (c) (d)

Things done in the course of a transaction. Fact in issue and surrounding circumstances. Acts talking for themselves. All of the above.

20

Law Guide for Judicial Service Examination

(c) A is fried 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 (Preparation). (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 of other wills to be prepared of which he did not approve, are relevant {Preparation). (e) A is accused of a crime —The facts that, 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 favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of witness or suborned persons to give false evidence respecting it, are relevant {Conduct). (h) The question is whether A committed a crime - The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of die letter are relevant {Conduct). (i) A is accused of a crime —The facts diat, after the commission of the alleged crime, he absconded or was in possession of property or proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant {Conduct). Sec 8 could be explained as follows: jfidttve-. Motive is moving power which impels one to do an act. Evidence of motive is always relevant. Crhe evidence of motive assumes special importance when the whole case is built upon circumstantial evidence (Tarseem Kumar v Delhi Admn. AIR 1994 SC 2585). Thus, on the murder of an old widow possessed of wealth, the fact that the accused was to inherit her fortunes on her death was heldto be relevant as it showed thaTthe accused had a motive to dispose her o£~ It may be noted that evidence of motive is not sufficient by itself to lead to conviction nor absence of it to discredit other evidence. When there is a clear evidence that a person has committed an offence, the motive becomes irrelevant. A murder case based on the direct evidence does not become weak just because of the want of a motive. 36. 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 gaols are broken open. A is not present at all of them yet the occurrence of these facts Is relevant because: (a) (b) (c) (d)

They constitute a motive for relevant fact. They show preparation for relevant facts. They are effect of relevant facts. They form part of the general transaction. [M.P. CJ. (Prelim.)2002]

Law of Evidence

21

preparation'. Once an offence has been committed, the evidence of preparation becomes most important for the crime must have been committed by the man who was preparingTor it. Thus, for example, it is relevant to show that the accused hired a revolver a few days before the murder. Conduct. Guilty m ind begets guilty conduct. The conduct of injured or accused rferson or the parties to a suit is relevant The conduct (previous or subsequent) must be such as influences or is influenced by the facts in issue or relevant facts e.g. the defendant turned pale, when arrested; bribing; a defendant charged with wife’s murder^ failed to shed tears; the defendant’s offer to marry the girl who charged him with rape; concealing one’s identity; absconding, etc. Explanations to Sec. 8: Relevancy o f Statements

What is relevant under Sec. 8 is the conduct o f the parties and not their statements. Explanations to Sec. 8 recognize two exceptions when statements may be admitted. 'Explanation 1 —It provides that^mere statements do not constitute ‘conduct’ unless they accompany and explain acts other than statements.’^Illustrations (j) and (k) reads: The question is, whether A was ravished (or robbed). The facts that, shortly after the alleged rape (or robbery), A 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 A said that she had been ravished (or robbed) without making any complaint, is not relevant as conduct under this section, though it may­ be relevant as a dying declaration or as corroborative evidence. Thus, complaints made to a person in authority, shordy after the commissions of the crime are relevant facts. If without making any complaint, the aggrieved party only stated the facts that will not be relevant. Explanation 2 —It provides that^when the conduct of any person is relevant, any statement made to h|m or in his presence and hearing, which affects such conduct, is also relevant.^ lllust. (f)9: 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 and that immediately afterwards A ran away, are relevant, lllust. (g): The question is, whether A owes B Rs.lO,()UO. The facts that A asked C to lend him money, and D said to C in A’s presence and hearing - “I advise you not to trust 9.

A question based on this illustration.

[Raj.J.S. J99I\ O b je c tiv e Q u c a tio n s (Multiple Choice)

37.

Which of the following Is not a res gestae? (a) A, while running in street, crying that B has stabbed him. (b) Statements made during the investigations of a crime. (c) In a trial for dowry murder of B, on the alleged murder night the police received a distress telephonic call from B in which before abrupt disconnection she could only say: "Please help me, I fear immediate harm to myself ’. (d) A was tried for the murder of B by shooting him with a gun. The person who was at that time in the same room with B, saw a man with a gun in his hand pass by a window of that room and thereupon exclaimed “There is the butcher (‘A was known by that name’).

22

Law Guide for Judicial Service Examination

A, for he owes B Rs. 10,000”, and that A went away without making any answer, are relevant facts. * j ^ tften~Himpress v Abdulla h (1885) 7 All 385 (F.B.) - The accused cut the throat of a girl with a razor. She was taken to a hospital where attempts were made to know from her the name of the accused. She answered by signs of her hand. When the accused’s name was mentioned she made an affirmative sign. Held that Sec. 8 was not applicable, as to attract Sec. 8 the conduct must be influenced directly hy the facts in issue/ relevant facts and not by the interposition of words spoken by third persons. The signs of the hand were not influenced by the facts, but by the_guestions asked- The evidence was, however, relevant as n 'dying declaration’ (Mahmood J., however, regarded the conduct to be relevant under Sec. 8. He opined that the deceased would not have acted as she did if it had not been for the action of those who questioned her). ^ jjU Facts N ecessary to Explain or Introduce Relevant Fa^t s 11

Sec. 9 declares the following kinds of facts to be relevant: facts necessary to explain or introduce a fact in issue or relevant fact, 4 C© facts which support or rebut an inference suggested by a fact in issue or (S ift- relevant fact, ” (m ) facts which establish the identity of anything or person, (iv) facts which fix time or place at which any fact in issue or relevant fact happened, and M facts which show the relation of parties. Sec. 9 could be explained as follows: | , Introductory. Where the question is whether a given document is a “wiUjnade by a certain person”, evidence may be given of the state of his property and of family 10.

‘A’, a woman, whose throat had been cut by some sharp-edged weapon, indicated by gestures before her death that ‘B* was the person who had cut her throat. Is this statement of ‘A* made by gestures admissible as evidence against ‘B>? [U.P. PCS (/) 1986\

11. What are facts necessary to explain or to introduce relevant facts, relevant. Discuss and illustrate your answer. [U.P. PCS (J) 1984[ 38.

Under Sec. 7 of the Evidence Act, which of the following facts are relevant? (a) Facts which are the occasion, cause or effect of facts in issue or relevant facts. (b) Facts which constitute the state of things under which they happened. (c) Facts which afforded an opportunity for their occurrence or transaction. (d) All of the above.

Law o f Evidence

23

at the date o f the alleged will as it may be necessary to introduce the circumstances in which the will became necessary [I/lust. (*)]. Similarly, in a suit for libel, the state of parties' relations at the time of the alleged libel [Il/ust. (£)]. Explanatory. The explanatory evidence is not relevant in itself i.e. if considered separately and alone from other evidence it would not amount to anything. Where a person is tried for leading certain people to a riot by marching at the head of them. The cries o f the mob may be given in evidence being explanatory of the nature o f the transaction [I/lust. (J)J12. A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A's wife. B says, as he delivers it —“A says you are to hide this". B’s statement is Televan t as explanatory of a fact which is part of the transaction [Must. (*)]. A sues B for inducing C to break a contract of service made by him with A. C, on leaving A’s service says to A, “I am leaving you because B has made me a better offer". This statement is a relevant fact as explanatory' of C’s conduct [UIusL (d)]. ^Support/ rebut inference. If after absconding, the accused was arrested in a train travcHmgTvithout ticket or in shabby dress, this will be relevant as fact supporting the inference of his guilt. However, if he shows that he left suddenly because of a urgent business work, it will rebut the inference of his guilt [Must. (c)J. Where it was alleged that X murdered Y, after a long chase, the fact that X had undergone a heart surgery' operation and was quite weak before alleged murder is a fact which rebut the inference of X's guilt. Identity of a person/ thing. Personal characteristics such as age, height, complexion, voice, handwriting, manner, dress, distinctive marks, blood-group (including DNA test), occupation, family relationship, education, travel, religion, knowledge of particular people, places or fact and other details of personal history are relevant facts. Various methods like finger/ thumb-impressions, footmarks, comparison of writing, ‘test identification parade' by police are used in this regard. 'SC* “Identification parades"12* are held at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are 12. A question based on this illustration. [U.P. PCS (J) 1992\ 12a. In what cases it is necessary to hold an identification parade. What is the value of an identification parade? [Delhi J.S. 199C[ O b je c tiv e Quemtionm (Multiple Choice)

39.

The question Is whether A murdered B during the course of a struggle. Marks on the ground produced by the struggle at the place of occurrence Is a relevant fact under which section of the Evidence Act? (a) (b) (c) (d)

40.

Sec. Sec. Sec. Sec.

6. 7. 8. 10.

Under Sec. 8 of the Evidence Act, which of the following is relevant? (a) (b) (c) (d)

Motive. Preparation. Conduct (previous or subsequent). All of the above.

24

Law Guide for Judicial Service Examination

the subject matter of alleged offence or the accused persons. The idea is to test the veracity of the witness on the question of capability to identify an unknown person whom the witnesslnay have seen only once. In RamHath v State of T.N. (AIR 1973 SC 1201), held that identification of the accused by the witnesses in the court, when no TI parade has been held before, will be useless evidence. Where the evidence against an accused person is evidence of identification alone, the Magistrate must hold the parade of the accused. WheneverThe accused person disputes the ability of the prosecution witnesses To identify him, the court should direct parade to be held. The holding of Test identification parade* (TI parade) is ;;o/_CQmpulsory: even where the accused demands it the prosecution is not bound to do so (Suretulra Narain v State of U.P. AIR 1998 SC 3031). However, if the prosecution fails to hold it on the plea that the witnesses already knew the accused well and it transpires in Ihe course of trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case (Jadunatb Singh v State of U.P. AIR 1971 SC 363). M Jfl parade should be taken by a Magistrate and the police should not be present at that time. However, it could also be done by the police and any citizen. Identification through a ‘photograph* can take the place ot a formal TI parade (fa xm i Raj Shetty v State of T.N. AIR 1998 SC 1274). TI parade is a weak sort of evidence. Where the only evidence against the accused person is that of identification by one witness, as a rule of prudence it should not be considered sufficient to justify the conviction (Habib v State of Bihar AIR 1972 SC 283). Time/ place of happening. Facts that help to fix the time or place of the happening, *ar? relevant facts. T hereport of an expert is relevant to fix the time o f murder and die marks of struggle on the ground are relevant to fix the place of the crime. Relation of bartier. A large number of cases owe their origin to the p r e - e x i s t in g relations of the parties, such as, for example, those of undue influence and of libel. 10: Relevance of Conspiracy Evidence

__ lere there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said* d o n e o r w ritte n by any one of such persons in reference to their common intention, after die 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 die existence of conspiracy as for the purpose of showing diat any such person was a party' to it”. Illustration - Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India. 41.

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 a: (a) (b) (c) (d)

Relevant fact. Irrelevant fact. Fact in issue. None of the above.

Law of Evidence

25

The facts that B procured arms in Europe for the purpose of 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 the contents of letter written by H giving an account of conspiracy, are each relevant, both to prove the existence of 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 ‘Conspiracy* means a combination or agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. The underlying principle on which Sec. 10 is based is the principle of ‘agency7* which means, if two or more persons conspire together to commit an offence, each is regarded as being die agent of the other and each conspirator is liable for what is done by his fellow conspirator. The conditions of relevancy under Sec 10 are: (1) There shall be prima facie evidence affording a reasonable ground to believe that two or more persons have entered into a conspiracy. ( 2 ^ Anything said, done or written by him should have been said, done or written by him after the time when the intention to conspire was first entertained by any of them. The acts/statements of a conspirator can only be used for the purpose o f proving the existence of conspiracy or that a particular person was a party to i t . ^ cannot be used in favour of the other party or for the purpose of showing^that such a person was not a party to the conspiracy. (A f'' Anything said, done or written may be proved against a conspirator who joined after or left before such thing was said, done or written (i.e. in their absence and without their knowledge). Sec. 10: A Necessary Evil Sec. 10 has a potential to rope in the innocent with the guilty, and to rope in people who have genuinely abandoned and regretted. However, it must be kept in mind that Sec. 10 only makes some facts relevant, appreciation of evidence and giving due weight to it is the function of the court. Explaining the reasons which necessitated the relaxation of the ordinary7rules in cases of conspiracy, B.P. Sinha, J. said: “Sec. 10 has been deliberately enacted in Objective Questions (Multiple Choice)

42.

The question Is, whether A was ravished. The fact that, shortly after the alleged rape, A made a complaint relating to the offence Is a: (a) (b) (c) (d)

43.

Relevant fact showing conduct. Relevant fact showing motive. Fact in issue. None of the above.

The question is, whether A was ravished and thereafter murdered. The fact that, without making a complaint, she said that she had been ravished (a) (b) (c) (d)

is relevant as a conduct. is relevant as a substantive evidence. is relevant as a secondary evidence. may be relevant under Sec. 32 (1) or 157 of Evidence Act. [M R CJ. (Prelim.) 1996/1999)

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26

order to make such acts/statemcnts of a co-conspirator admissible against the whole body of conspirators, because of the nature of the crime. A conspiracy is hatched in secrecy, and executed in darkness. Naturally, therefore, it is not feasible for the prosecution to connect each isolated act/statement of one accused with the acts/statements of the others, unless there is a common bond linking all of them together (Badri Rai v State of Bibar AIR 1958 SC 953). Case t ow Min*a A kbar v Emperor (AIR 1940 PC 176) - In this case, W, the wife ofJX, and her paramour conspired to murder X. W and B hired C for committing the murder of^X. C was caught red-handed in murdering X. B and C were prosecuted for murder and conspiracy to murder. The principal evidence of the conspiracy between W and B consisted of certain letters, in which they expressed deep love towards each other and referred to ‘money* and ‘means’ (most probably in connection with X’s murder). W also made statements before the magistrate after she had been arrested on the charge of conspiracy. Held that the letters were relevant under Sec. 10; they were written at a time when the conspiracy was going on and for the purpose of attaining their object. But the statement to the magistrate was held to be not relevant under Sec. 10 as it was made after the object of the conspiracy had already been attained and had come to an end) Any narrative/statement/ :onfession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist, is inadmissible under Sec. 10. In Emperor v Ganesh Raghunatb (1911) 38 Cal 169, the distinction was righdy drawn from communications between conspirators while the conspiracy was going on and the statement made after arrest or after the conspiracy had ended, by way of descriptions of events then past”. Badri Rai v State of Bibar (AIR 1958 SC 953) — A and B were prosecuted for conspiracy for bribing a police officer. A came to the police station and offered an inspector packet of currency notes. He told the inspector that B had sent the money as a consideration for hushing up the case against him. The issue was whedier the offer of money and the accompanying statement made by A were relevant against B. Held that the statement and the offer of bribe had clear reference to their common intention and relevant against both. Emperor v Vaishampayan (Tamington Road shooting conspiracy case*) (AIR 1932 Bom 56) —A police officer and his wife were wounded by revolver shots, fired by some persons. After several persons were arrested, evidence was sought to be given 44.

The question Is, whether A owes B Rs.10,000. The facts that A asked C to lend him money, and D said to C In A’s presence and hearing - “I advise you not to trust A, for he owes B Rs.10,000”, and that A went away without making any answer Is a: (a) (b) (c) (d)

Relevant fact. Irrelevant fact. Fact in issue. None of the above.

Law o f Evidence

27

of a statement o f an absconding accused to the approver, that the conspirators had shot a police officer, and that a pamphlet should be printed and distributed to start a propaganda in furtherance of the objects of conspiracy. Held that the statement regarding ‘shot’ is a narration of past event and thus inadmissible, but that about pamphlet would be relevant because it furthers the object of conspiracy. In re, N. fkamaratnam (AIR 1944 Mad 302) - A, B and C conspire to blow a railbridge. To achieve their object, they make a plan to place a time bomb below the railway-bridge. The time bomb is placed, but it does not explode. They return back and write a letter to the supplier of the time bomb explaining him the non-explosion of the device and requesting for another time bomb. The letter is intercepted and sought to be used against all accused persons including the supplier under Sec. 10. Held that the letter was written after the common intention of the conspirators had been carried out i.e. after the attempt (crime). As there was no conspiracy to execute, the letter will have reference to ‘past acts’, which is inadmissible. However, this will be so, if the supplier had agreed to supply one time bomb only. If the supplier has not restricted himself to the limit of one bomb, then it should be said that the conspiracy was still going on, and then the letter will be admissible and could be used against the supplier. Difference between English and Indian Law

Under English law, a mere statement about a conspiracy would not be relevant. “While under Indian lav^ it is enough if the act or statement has reference to the common ihtention^But this difference of words does not seem to make a difference of substance also. In interpreting the words of Sec. 10, the Supreme Court had observed that Sec. 10 is on the same lines i.e. based on the theory of agency. Thus, an account o f a conspiracy given by a conspirator in a letter to his friend is not relevant against the others as it is neither in the execution nor in support of the common purpose [R. v Hardy (1974) 24 HS Tr 451J. But, in Bhola Nath v Emperor (AIR 1939 All 567), such letter was held to be relevant. The second suggested difference is based on the illustration appended to Sec 10, according to which anything said, done or,written may be proved against a conspirator who joined after or left befgre^uch thing was said, done or written. Under English law, such a conspirator is protected. When a person has not yet joined or when he has alreadjrleft the conspiracy, there is no common intention in O b je c tiv e Q u e s tio n * (Multiple Choice)

45.

In which ca se the Supreme Court has observed that “the motive, condition of mind, revolution, mood full of revengeful thoughts is neither a crime in itself nor is sufficient to link a criminal with an Incident’*? (a) (b) (c) (d)

Kehar Singh v State. R. v Pa mar. Queen-Empress v Abdullah. None of the above.

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28

reference to him, and therefore, the act in question cannot have reference to anv intention which is common with him. I I: W hen Facts N ot O therw ise Relevant becom e Releva n t13

A ccording to Sec. 11, facts not otherwise relevant are relevant: (i) if they are inconsistent with any fact in issue or relevant fact, (ii) if by themselves or in connection with others facts they made the existence or non-existence o f any fact in issue or relevant fact highly probable or improbable. Inconsistent facts'. The facts which are inconsistent with the main facts, become relevant e.g. the murder occurred in Delhi, the accused on that day was in Calcutta [I/Inst. {o)\. Sec. 11 enables a person charged with a crime to take the plea o f alibi whirh means his pretence elsewhere at the time of the crime. Mis presence is inconsistent with the fact that he should be present at the place of the crime. However, it may be noted that the failure o f the plea o f alibi does not mean that the accused was present at the scene o f the crime. It may be noted that plea o f alibi is irrelevant in the cases of “acting in furtherance o f the common intention”; all would be liable to the whole crime even if they were not present at the scene o f the crime^fSupreme Court judgment. Times of India, Aug. 5, 2002]. Another instance is non-access of the husband to prove illegitimacy o f a child. Similarly, whether A committed a rape; the fact that his genital organs were such as to render the intercourse impossible. Other instances are: Survival o f the alleged deceased (beyond the date of murder); Commission o f the offence by a third person; Self-infliction o f harm (suicide by the deceased). Tacts showing, probabilities: Facts which make the existence or non-existence o f any fact in issue or relevant fact highly probable or improbable (i.c. the connection between such facts and the fact in issue/relevant fact is immediate). 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 either B, C or D is relevant [Il/ust. (£)]. 13. When facts not otherwise relevant, relevant? Illustrate your answer. [UP. PCS (J) t984i 46.

Mark the Incorrect matching: (a) A is accused of committing murder of R. Evidence is sought to be given of the fact that R had murdered A’s brother and A had threatened that he would take revenge (Sec. 8). (b) A DNA report that clearly establishes that the killed child was the son of an Industrialist, who is disinterested in owning the paternity of the child (Sec. 9). (c) The witnesses depose that after hearing the first shot they climbed the boundary wall and saw the accused chasing the victim before the final shoot-out (Sec. 7). (d) After the alleged rape the victim narrated the whole incident to the police over phone (Sec. 8, Explanation 1).

Law o f Evidence

29

Thus, in a case o f false prosecution, the fact that the accused had previously instituted an unfounded prosecution against the same person is relevant. Where the witness testified that he saw the deceased being shot from 25-feet distance, but the medical expert opined that distance cannot be more than a yard considering the n a tu re o f wound, here expert opinion rendered the statement o f witness highly improbable (Santa Singh v State of Punjab AIR 1956 SC 525). In Kalu SUr^a v Emperor (1909) 37 Cal. 91, where the question was whether a person was 1* habitual cneat, the fact that he belonged_to an organization which was formed for the purpose of habitually cheating people was held to be relevant, and it was open to the prosecution to prove .against each person that the members of the gang did cheat people. Where two persons were involved in a murder, and the fingerprints o f only one o f them were found on an almirah and he did not challenge the evidence when produced by the prosecution, it was held that the other accused could not challenge it. He was not heard to say that the absence of his finger impressions was a guarantee o f the fact o f absence from the scene of the crime (Gade Lakshmi Mangraju v State of A..P. AIR 2001 SC 2677). Sec. 11 seems to be very wide in its import —a “residuary” section dealing with relevancy o f facts. However, it makes admissible only those facts which are of great weight (degree o f probability immediate and high) in bringing the court to a conclusion regarding the existence of fact in question. Such ‘collateral facts* arc highly valuable to the accused in support of his defence, and to expose the infirmity o f the prosecution case. However, not much use has been made of this section. Releitaric^and Admissibility o f Tape-recorded Statement13* The tools o f modern technology like Tape records. Video films. DNA tests. Polygraph test (lie detection) etc. make the probability of truth highly certain. It is a general rule o f evidence that all such evidence is admitted which Helpsthe court in arriving at the truth, ^feus, tape recordings can be used as evidence in a court to corroborate the statements of a person who deposes that he had carried on a conversation with

13a. Comment: “If a statement is relevant, an accurate tape-record of it is also admissible.” [Delhi J.S.199V\ O b je c tiv e g u e i t f o a s (Multiple Choice)

47.

Queen-Empress v Abdullah is related to which of the following? (a) (b) (c) (d)

48.

Conduct. Motive. Preparation. Result.

Facts which are necessary to explain or Introduce relevant facts of place, name, date, relationship and Identity of parties are relevant under which section of the Evidence Act? (a) (b) (c) (d)

Sec. Sec. Sec. Sec.

6. 7. 8. 9.

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Law Guide for Judicial Service Examination

a particular person. In the absence of any such evidence, the tape cannot be used as ^vidence in itself {Mahabir Prasad v Suriruler Kaur AIR 1982 SC 1043).*^-' Similarly, if the court is satisfied that there is no ‘trick photography’ and the photograph is above suspicion, it may allow the photograph to be received in evidence. Evidence of “dog-tracking”, even if admissible, is not of much weight (Abdul Ra*ak v State of Maharashtra AIR 1970 SC 283). A previous, statement of a person, which has been tape-recorded, can also be used to test the veracity o£ a_witness and to impeach hisimpartiality \Yusufalli v State of Maharashtra (1967)]. In KM . Malkani v State of Maharashtra (AIR 1973 SC 157), the prosecution case was based solely on the tape-recorded conversation, which clearly proved the appellant’s intention to obtain a bribe. The Supreme Court laid down the law relating to tape-recorded conversation as: (i) Tape-recorded conversation is admissible in evidence provided the conversation is relevant to the matter i n issue, the voice can be properly idcnSTied. and the possibility o f erasing parts o f the tape "(tampering or mutilation) is eliminated. Thus, such evidencemust be received with caution. (ii) When the tape-recording is a contemporaneous record of such conversation (Le. made simultaneously with the facts in issue or relevant facts), it is a relevant fact under Sec 6. It is res gestae. Since it is like a photograph of a relevant incident, it is also admissible under Sec. 7. Such recording is also a ‘document’ under Sec 3. The recording is also admissible under Secs. 8, 9, 10 or 11. f& tf' Even if the tape-recording is obtained unlawfully, it will be admissible in evidence, as “detection by deception” is a form of police procedure. SEC. 12:J?4cts_£nabling Court to D eterm ine A m ount of Damages

“I n suit for damages, any fact which will enable the Court to determine the amount of damages which ought to be awarded, is relevant.” The kind of facts admissible in actions for damages will vary with the nature o f action i.e. whether it is a suit for breach of contract (the relevant facts are —mode and manner of breach, intention of the defaulting party, his riches, mental pain or suffering caused by breach) or a tort action or under ^>ther substantive law.

49.

*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: (a) (b) (c) (d)

As As As As

constituting a motive for fact in issue. conduct influenced by fact in issue. introductory to facts in issue. preparation for fact in issue. [M.P. CJ. (Prelim.) 2002]

Law of Evidence

31

SEC. I 3 * « c t s Relevant when Right/ Custom is in Q uestion 14

“V ^ h ere the question is as to the 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 existence was disputed, asserted or departed from.” Illustration: The question is whether A has a right to fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of it by A’s father, particular instances in which A’s father exercised the right or in which he was stopped by A’s neighbours, are relevant facts. Sec. 13 applies to all kinds of ‘rights’ —public or private, right of full ownership or falling short o f ownership (e.g. rights of easements), a corporeal or incorporeal right (e.g. right o f way). The requisites of a valid ‘custom* are that the same should be ancient, certain and reasonable (should not be opposed to public policy or morality). It is not necessary to prove that the right is being exercised from time immemorial; however, it should have been exercised openly and peaceably. Whether Judgment is a Transaction _ " n

Questions have arisen before the courts whether a previous judgment on the point in issue (not between the same parties) can be regarded as a ‘transaction’ under Sec 13. It has been held that the judgment in a previous suit through not inter partes is admissible in evidence. It is not the correctness of the previous decision but the fact that there has been a previous decision that is established by the judgment. The finding of fact arrived at on the evidence of one case cannot be evidence of that fact in another case. In Tirumala Tirupati Devasthanams v KM . Krisbniab (AIR 1998 SC 1132), held that a judgment in a dispute over the same land between two other persons could be used by a party in a case in which the same land is in dispute through he was not a party to the earlier proceeding. A judgment in which the illegitimacy of a person was recognized was held toJar admissible under Sec 13 where the question of his legitimacy was in issue in a subsequent suit 14. When right or custom is in question, what facts are relevant? Illustrate your answer. [U.P. PCS (J) 1985/t999[ O b j e c t i v e QiMCMtiowiM (Multiple Choice)

50.

A sues B for inducing C to break a contract of service made by him with A. C, on leaving A’s service says to A, “I am leaving you because B has made me a better offer”. This statement Is a relevant fact: (a) (b) (c) (d)

51.

As As As As

explanatory to fact in issue. conduct influenced by fact in issue. introductory to facts in issue. preparation for fact in issue.

Test Identification parade (Tl parade) under Sec. 9 should be taken by whom? (a) (b) (c) (d)

Magistrate. Police officer not below the rank of Sub-inspector. Any person. All of the above.

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Law Guide for Judicial Service Examination

SEC. 14: Facts showing Existence of State of Mind/ Body/ Bodily Feeling

“F a c ts showing the existence of any state of mind, such as intention, knowledge good faith, negligence, rashness, ill-will or good-will towards any particular person; or showing the existence of any state of body or bodily feeling, are relevant.” Explanation I: Evidence^ of Specific Facts, Not General Tendency

“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.” Explanation 1 lays down an important restriction upon the scope "of Sec 14 (See Illustrs. (n), (o) and (p)]. •

t

Illustrations

(a) Fact in Issue-. A is accused o f receiving stolen goods, knowing them to be stolen. He was in possession o f a particular stolen article. Relevant Facts: The fact that, at the same time, he was in possession of many other stolen articles is relevant; he knew such articles to be stolen (Knowledge). (b) Fact in Issue: A sues B for damage done by a dog of B which B knew to be ferocious. Relevant Facts-. The facts that the dog had previously bitten X, Y and Z and that they had made complaints to B, are relevant {Knowledge). (c) Fact in Issue: A is accused of defaming B by publishing an imputation intended to harm the reputation of B. Relevant Facts. The fact of previous publication by A respecting B, showing ill will on A’s part towards B is relevant, as proving A’s intention to harm B’s reputation {Intention). (d) Fact in Issue-. A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C (who was insolvent), suffered loss. Relevant Facts. The fact that, at the time of A’s representation, C was supposed to be solvent by his neighbour and by persons dealing with him, is relevant, as showing that A’s representation was in good faith {Goodfaith). (e) Fact in Issue The question is whether A has been guilty o f cruelty towards B, his wife. Relevant Facts. Expressions of their feeling towards each other shortly before or after the alleged cruelty are relevant facts. 52.

An Important case In relation to Test Identification parade is: (a) (b) (c) (d)

53.

Ramnath v State of T.N. Ram Lochan v State of Bengal. Queen-Empress v Abdullah. All of the above.

Identification of a suspect by a photograph (a) (b) (c) (d)

is admissible in evidence. can take the place of a formal Tl parade. is inadmissible in evidence. both (a) and (b).

Law o f Evidence

(g)

33

Fact in Issue. The question is whether A’s death was caused by poison. Relevant Facts'. Statements made by A during his illness as to his symptoms are relevant facts.

(h) Fact in Issue. The question is what was the state of A’s health at the time an assurance on his life was affected. Relevant Facts. Statements made by A as to the state of his health at or near the time in question are relevant facts. (i) Fact in Issue. A sues B for negligence in providing him with a carriage for hire not fit for use, whereby A was injured. Relevant Facts. The fact that B was habitually negligent about the carriage, which he let to hire, is irrelevant (See Expl. 1 to Sec. 14). (j) Fact in Issue. A is tried for the murder of B by intentionally shooting him dead. Relevant Facts. The fact that A was in the habit of shooting at people with intent to murder them is irrelevant (See Expl 1). (k) Fact in Issue. A is tried for a crime. Relevant Facts.The fact that he said something indicating an intention to commit that particular crime is relevant. The fact that he said something indicating a general disposition to crimes of that class is irrelevant (See E xpl I). Sec. 14 does not seem to lay down any principle. It rather leaves the whole thing at the court’s discretion. The section says in essence that when a state o f mind, etc. has to be proved every fact from which it can be inferred is relevant. An important fact for this purpose is the statement of the affected person respecting the state o f his health or bodily feelings. Explanation 2: Evidence o f Previous Conviction

“When the previous commission by the accused of an offence is relevant, the previous conviction of such person is also a relevant fact.” ' The record o f previous criminality is at best an evidence of bad character and Sec. 54 excludes such evidence. But, Sec. 14 permits evidence of previous offences to be admitted whenever this is necessary to prove a particular state of mind or of body. In fact, such evidence is also relevant under Sec. 8 (as showing motive) and Sec. 11 (Res gestae). Objective Qnc*tJooM (Multiple Choice)

54.

Conspiracy evidence Is provided for In which section of the Evidence Act? (a) (b) (c) (d)

Sec. Sec. Sec. Sec.

11. 10. 9. 8.

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Law Guide for Judicial Service Examination

Evidence of Similar Facts

A fact is said to be similar to another when it is similar to a fact in issue. According to the maxim Res inter alios actate, a fact in issue cannot be proved by showing that facts similar to it, but now part of the same transaction, have occurred at other times. Thus, when the question is whether a person has committed a crime, the fact that he had committed a similar crime sometime ago is irrelevant. The Indian Evidence Act does not anywhere mention the words “similar facts”. There is nothing in the Act declaring that evidence of similar facts cannot be given or that it can be given. The general rule is that such evidence is not relevant unless it has some probative value in reference to the fact in controversy. Further Sec. 15 (See below) is an exception to this general rule. SEC. 15: Facts Bearing on Question whether A ct was Accidental/ Intentional

“VC^hen there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, 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, in each o f which a fire occurred and A received payment from a different insurer, are relevant, as tending to show that the fires were not accidental. (b) A is employed to receive money from the debtors of B. A makes an entry showing that on a particular occasion he received less than he really did receive. The fact that other entries made by A in the same book are false and in A’s favour, are relevant. (c) A is accused of fraudulendy delivering to B a counterfeit rupee. The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant, showing that the delivery to B was not accidental. Sec. 15 is an exception to the general rule that the evidence of similar facts is not relevant. This exception became necessary to prove system or design or to

55. A and B were prosecuted for conspiracy for bribing a police officer. A came to the police station and offered an Inspector packet of currency n otes. He told the Inspector that B had se n t th e money as a consideration for hushing up the case against him. The offer of money and the accompanying statement made by A were relevant against (a) (b) (c) (d)

A only. B only. Both A and B. None of the above.

Law of Evidence

35

overthrow the defence of accident in cases of “habitual crimes” by an offender. Thus, where A falsely represented to B that he was the manager o f a mercantile firm, and obtained money for the purpose of deposit from B, the fact that A had made similar representations to C and D and obtained sums from them, is relevant It may be noted that evidence of similar facts can be given when it will go to establish a state o f mind or mens rea which is either a condition of liability or is otherwise relevant. Such evidence falls both under Secs. 14 and 15. Further, evidence of similar facts is relevant to establish identity of the accused (under Sec. 9) and his modus operands. Thus, “exclusion of similar fact evidence is a rule o f practice and not o f law.” SEC. 16: Existence of Course of Business when Relevant

“W h en there is a question whether a particular act was done, the existence of any course o f business, according to which it naturally would have been done, is a relevant fact.” Illustrations', (a) The question is whether a particular letter was dispatched. The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant (b) The question is whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead Letter Office, are relevant. The effect of Sec. 16 is that if an act is shown to have been done in a general course o f business, the law draws a presumption that the act must have been done. When it is proved that a letter has been posted and has not been returned to the sender, the presumption is that it must have been delivered. When the acknowledgement of a registered letter comes back (to the sender) with a signature purporting to be that of the addressee, there is a presumption of the fact o f ‘service*. The addressee’s refusal to receive is a proof of the fact that the letter was taken to him for delivery.

y

Objective g n g s tf g a s (Multiple Choice)

56.

Which section of the Evidence A^t Is called a ‘‘residuary” section dealing with relevancy of facts? (a) (b) (c) (d)

Sec. Sec. Sec. Sec.

12. 11. 13. 14.

57. 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: (a) (b) (c) (d)

As As As As

a motive for fact in issue. introductory to fact in issue. preparation of relevant fact. it makes the existence of fact in issue highly improbable. (M.P. CJ. (Prelim.) 2002)

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Law Guide for Judicial Service Examination

ADMISSIONS SEC. 17: A dm ission D efined15

“A n 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 a party or any person connected with him, and under the circumstances hereinafter mentioned.” According to Sec 17, an admission is a statement which suggests some inference as to the existence o f a fact in issue or a relevant fact. An ‘admission' is a statement o f fact which waives or dispenses with the production o f evidence by conceding that the fact asserted by the opponent is true. If, for example, a person is sued for the recovery o f a loan and there is an entry in his account book recording the fact o f the loan, that is an admission on his part o f his liability or if he makes any statement to the effect that “he does owes the money” that will also be an admission being a direct acknowledgment o f liability. Reasons for Admissibility o f Admissions

An admission is a relevant evidence. Several reasons have been suggested for receiving admissions in evidence: (i) Admissions a waiver of proof —If a party has admitted a fact, it dispenses with the necessity o f proving that fact against him. (ii) Admissions as statement against interest — It is highly improbable that a person will voluntarily make a false statement against his own interest. However, Sec. 17 does not require that a statement should be a selfharming statement, the definition also includes self-serving statements. (iii) Admissions as evidence of contradictory statements —Another reason for the relevancy o f an admission is that there is a contradiction between the party’s statement and his case. This kind o f contradiction discredits his case. (iv) Admissions as evidence of truth - The most widely accepted reason that accounts for relevancy o f admission is that what a party himself admits to be true may be presumed to be so. 15. Define admission. Who can make admission? [U.P PCS (J) 1984/1992\ [Raj.J.S. 1999[ 58.

The plea of alibi Is governed by which section of the Evidence Act? (a) Sec. 12. (b) Sec. 11. (c) Sec. 13. (d) Sec. 14. 59. Which of the following Is relevant and may be received In evidence? (a) Tape recordings. (b) Dog-tracking. (c) DNA test. (d) All of the above.

Law of Evidence

37

Admissions constitute an exception to the hearsay rule. This is so because an admission, though a hearsay, is nevertheless the best evidence. What is said by a party to the suit is not open to the objection ‘that a party is going to offer worse evidence than the nature o f the case admits’ (the supposition on which rule o f best evidence is founded). Thus, if A sues B on a loan, which B denies and B makes a statem ent to C, a third person, that he had taken the loan, B’s statement is an admission and C may give evidence of it although C was not present at the time o f the loan and had only heard B admit the fact of the loan. Forms o f Admissions

Every written or oral statement by a party about the facts of the case is an admission. Admissions are broadly classified into two categories: (a) judicial or formal admissions, and (b) extra-judicial or informal admissions. It is generally immaterial to whom an admission is made. An admission made to a stranger is relevant. Judicial admissions are made by a party to the proceeding of the case prior to the trial. Such admissions, being made in the case, are fully binding on the party who makes them. In comparison, the evidentiary admissions which are receivable at the trial as evidence, can be shown to be wrong. Informal or casual ie. extra­ judicial admissions are those which do not appear on the record o f the case, and may occur in the ordinary course of life, or in the course of business. However, unlike judicial admissions, they are binding on the party only partially, except in cases where they operate as or have the effect of estoppel Active or passive conduct may in circumstances become evidence of an admission. Silence may amount to admission in certain situations [See illustration (g) to Sec 81. But, silence will amount to admission only if it is natural to expect a denial or reply. SECS. 18-20: Persons W h ose Admissions are Relevant

S ections 18, 19 and 20 makes the statements o f the following persons relevant (i)

a party to the suit or proceeding,

16. “Silence may sometimes amount to an admission”. Explain and illustrate. [U P PCS 0 ) 1985[

O b je c tiv e QuemtioMkM (Multiple Choice)

60.

61.

A leading case on the admissibility of tape-recorded conversation Is: (a) R.M. Malkani v State of Maharashtra. (b) Kalu Mirza v Emperor. (c) Bhola Nath v Emperor. (d) Badri Rai v State of Bihar. Which section of the Evidence Act lay down rules regarding relevant facts when the right or custom is in question? (a) (b) (c) (d)

Sec. Sec. Sec. Sec.

12. 13. 14. 15.

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Law Guide for Judicial Service Examination

(ii) an agent authorized by such party, (iii) a party suing or sued in a representative character making admissions while holding such character (e.g. trustees, executors, etc.), (iv) a person who has a proprietary/ pecuniary interest in the subject m atter o f suit during the continuance o f such interest, (v) a person from whom the parties to suit have derived their interest in the subject-matter o f suit during the continuance o f such interest (predecessorsin-tide) (Sec. IS); (vi) a person whose position it is necessary to prove in a suit, if such statement would be relevant in a suit brought by or against himself (Sec. 19); (vii) a person to whom a party to suit has expressly referred for inform ation in reference to a matter in dispute (Sec. 20). It is important to note that under Sec. 18y an admission by one o f several defendants in a suit is no evidence against another defendant, for otherwise the plaindff can defeat the case o f the other defendants through the m outh o f one of them. So a defendant is bound by his statements only to the extent o f his own interest. So is true o f the statement o f a co-plaintiff. But since every plaintiff has a pecuniary interest in the subject matter o f suit, his statement can fall in that category. The admissions o f an agent are admissible against the principal. Similarly, the acknowledgment o f a debt by a partner is an admission against the firm. Likewise, admissions o f facts made by a pleader in court, on behalf o f his client, are binding on the client But, an admission by a pleader on a point o f law will not bind the client. Sec. 19 deals with statements o f persons whose position is in issue, though they are not parties to the case. The section is based on the principle that where the right or liability o f a party to a suit depends upon the liability o f a third person, any statement by that third person about his liability is an admission against the parties. A undertakes to collect rents 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 owed B rent is an admission, and is relevant fact against A, if A denies that C did owe rent to B (.Wust.). Sec. 20 forms an exception to the rule that admissions by strangers to a suit are not relevant. Thus, the admissions o f a third person are also receivable in evidence against the party who has expressly referred another to him for inform ation in regard to disputed matter. Illust. to this section reads: The question is, whether a

62.

Sec. 13 of the Evidence Act applies to (a) public as well a s private rights. (b) right of full ownership or falling short of ownership. (c) corporeal or incorporeal right. (d) all of the above. 63. Under Sec. 13, right or custom could be proved by: (a) (b) (c) (d)

Opinion of the persons who knew about their existence. Judgments of the courts. Both (a) and (b). None of the above.

Law o f Evidence

39

horse sold by A to B is sound; A says to B —“Go and ask'C, C knows all about it”. C ’s statem ent is an admission. SEC. 21: A g a in s t w hom Adm ission May be Proved17

F ir s t part o f Sec. 21 —“Admissions are relevant and may be proved as against the person w ho m akes them, or his representatives in interest”. Sec. 21 lays down the principle as to proof o f admissions. It is based upon the principle th a t an admission is an evidence against the party who had made the admission and, therefore, it can be proved only against him. N o man should be at liberty to m ake evidence for himself through his own statements (Le. he himself cannot prove his own statements). Granted this facility, every litigant would construct a favourable case by his own statement. Thus, *self-favouring admissions are not permissible. Illustration (a) to Sec. 21 explains the main principle: The question between A and B is, w hether 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 statem ent by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged. A party can prove a self-serving statement only under the exceptions laid down in Sec. 21. W here, however, a person’s self-serving statement subsequendy becomes adverse to his interest, it may be proved against him as an admission. Secondpart o f Sec. 21 (Exceptions to Sec. 21) —Admissions cannot be proved by, or on behalf of, the person who makes them, except in the following three cases: Exception 1 —“W hen it is o f such a nature that, if the person making it were dead, it would be relevant as between third persons under Sec. 32”. Thus, the statem ent should have been relevant as dying declaration or as that o f a deceased person under Sec. 32. Illust. (£) to Sec. 21 is on the point. If the 17. Whether an admission can be used by the maker of the admission in his own favour? If so, in what circumstances? [U.P. PCS (J) 199t\ O b je c tiv e Q ueatioxiM (Multiple Choice)

64.

65.

Facts showing the existence of any state of mind or showing the existence of any state of body or bodily feeling, are relevant under which section of the Evidence Act? (a) Sec. 12. (b) Sec. 13. (c) Sec. 14. (d) Sec. 15. Under Sec. 14, the expression ‘state of mind’ Includes: (a) (b) (c) (d)

Intention. Knowledge. Good faith. All of the above.

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question was whether a ship was lost due to negligence or otherwise and the captain o f the ship was dead, the contents o f his personal diary would have been relevant though they operate in his favour. Illustration (c) is also on the same point. A is accused o f crime committed by him at Calcutta. He produces a letter written by him and dated at Lahore on that day and bearing the Lahore postm ark o f that day. The statem ent in the date o f the letter is admissible, because if A were dead, it would be admissible under Sec. 32 (2). Exception 2 —“W hen the admission consists o f a statement o f the existence o f any state o f mind or body (relevant or in issue) made at or about the time when such a state o f mind or body existed, and is accompanied by conduct rendering its falsehood improbable”. The exception enables a person to prove his statements as to his state o f body or o f mind. If, for example, a person is injured and the question is whether the injury was intentional or accidental, his statement as that time as to the way he was injured can be proved by himself. W here the question is whether a person received a stolen property with knowledge that it was stolen. In order to prove that he did not have guilty knowledge, he offers to prove that he refused to sell the property below its value or natural price. His statement explains the state o f his mind and is accompanied by the conduct o f the refusal to sell. He may thus prove his statement [Illust. {d)]. Similarly, where a person is charged with having in possession a counterfeit coin with knowledge that it was counterfeit. He offers to prove that he consulted a skilful person on the m atter and he was advised that the coin was genuine. He may prove this fact [Illust. « ]• Exception 3 —“An admission may be proved by or on behalf o f the person making it, if it is relevant otherwise than as an admission”. This exception is intended to apply to cases in which the statement is sought to be used in evidence otherwise than as an admission, for instance, as part o f the res gestae, or as a statement accompanying or explaining particular conduct. Where, for example, immediately after a road accident, a person pulled up to the injured who then made a statement as to the cause o f the injury. This statement may be proved by or on behalf o f the injured person, it being a part o f the transaction which injured him (Sec. 6). Where A says to B, “You have not paid back my money”, and B walks away in silence, A may prove his own statement as it has influenced the conduct o f a person whose conduct is relevant (Sec. 8).

66.

A Is accused of defaming B by publishing an imputation intended to harm the reputation of B. The fact of previous publication by A respecting B, showing ill will on A’s part towards B is relevant: (a) (b) (c) (d)

Because it proves the preparation for harming A’s reputation. As it is necessary to explain fact in issue. As proving intention to harm B's reputation. As it is the effect of relevant fact. [M.P. CJ. (Prelim.) 2002]

Law o f Evidence

41

A d m issio n s H ow Far Relevant [Secs. 22-23] SEC. 22 : W h e n O ral Adm issions as to Contents of D ocum ents are Relevant

O r a l admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence o f the contents o f such document under Sec. 65, or unless the genuineness o f the docum ent produced is in question. W hen the question is whether a document is genuine or forged, oral admissions about this fact are relevant. A document can be proved by the primary evidence (original document) or secondary evidence (attested copies or oral account). SEC. 22A: W h en Oral Adm issions as to Contents of Electronic Records are R elevant

“O r a l admissions as to the contents of electronic records are not relevant unless the genuineness of the electronic record produced is in question.*’ SEC. 23: C om m u n ication w ithout Prejudice

“I n civil cases, no admission is relevant, if it is made either upon an express condition that evidence o f 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”. Explanation —Nothing in this section shall be taken to exempt any barrister, pleader or attorney from giving in evidence of any matter of which he may be compelled to give evidence under Sec. 126 (communication made to lawyer in furtherance of a crime). Sec. 23 gives effect to the maxim interest rei pubHcae ut finis htinm (it is in the interest o f the State that there should be an end of litigation). Sec. 23 applies only to civil cases. When a person makes an admission “without prejudice” Le. upon the condition that the evidence of it shall not be given, it cannot be proved against him. Objective Questions (Multiple Choice)

67.

The question Is whether A has been guilty of cruelty towards B, his wife. Expressions of their feeling towards each other shortly before or after the alleged cruelty are: (a) (b) (c) (d)

Relevant facts. Irrelevant facts. Collateral facts. Admissions.

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Law Guide for Judicial Service Examination

The words “without prejudice” simply mean this: “I make you an offer and if you do not accept it, this letter is not to be used against me”. This protection or privilege against disclosure is intended to encourage parties to setde their differences amicably and to avoid litigation if possible. The rule under Sec. 23 applies only if there is a dispute or negotiation with another, or if they are written bona fide. Sec. 23 does not protect all letters merely because they are headed with the words “without prejudice”. An admission made to a stranger, under whatever terms as to secrecy, is not protected by law from disclosure. When letters marked “without prejudice” are tendered in evidence, and the other party admits them (instead o f objecting to them), the admission implied that the other party has waived his privilege, and such letters can then be used in a judicial proceeding. Evidentiary Value o f Admissions

An admission does not constitute a conclusive proof o f the facts admitted (Sec. 31). It is only a primafacie proof; thus, evidence can be given to disprove it. The admissions, thus, constitute a weak kind o f evidence. The person against whom an admission is proved is at liberty to show that it was mistaken or untrue. But until evidence to the contrary is given an admission can safely be presumed to be true. An admission is substantive evidence o f the fact admitted and the admissions duly proved are admissible evidence irrespective o f whether the party making them appears in the witness-box or not and whether that party made a statement contrary to his admissions (Bharat Singh v Bhagirath AIR 1966 SC 405). Sec. 17 makes no distinction between an admission made by a party in his pleading and other admissions. Thus, an admission made by a person in plaint signed and verified by him may be used as evidence against him in other suits. There is no necessary requirement o f the statement containing the admission having to be put to the party because it is evidence proprio vigore (of its own force). Thus, an admission in an earlier suit is a relevant evidence against the plaintiff [Bishwanath Prasad v Dwarka Prasad (1974) 1 SCC 78]. The admissions at best only suggest inferences. The court must examine the statement inside out and before holding a party to his statements must see that the statement is clear, unequivocal and comprehensive. If a party’s admission falls short o f the totality o f the requisite evidence needed for legal proof o f a fact in issue, such an admission would be only a truncated admission.

_______________________________________________ ^ ___________________ 68.

69.

^

A Is tried for the murder of B by Intentionally shooting him dead. The fact that A was In the habit of shooting at people with Intent to murder them Is: (a) Relevant fact. (b) Irrelevant fact. (c) Collateral fact. (d) Admission. Previous conviction of a person Is relevant under: (a) Sec. 14, Explanation 1. (b) Sec. 14, Explanation 2. (c) Sec. 15. (d) Sec. 16.

Law o f Evidence

43

CONFESSIONS D e fin itio n 18

T h e term ‘confession’ is nowhere defined in the Evidence Act. The definition o f ‘admission’ as given in Sec. 17 becomes applicable to confession also. Thus, a confession is a statement made by a person charged with a crime suggesting an inference as to any facts in issue or as to relevant facts. The inference that the statem ent should suggest should be that he is guilty o f the crime. C onfessions Carrying Inculpatory and Exculpatory Sta tem en ts19

The definition o f confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence. A mixed-up statement which, even though contains some confessional statement, will still lead to acquittal, is no confession (PakaJa Narayan Swami v Emperor AIR 1939 PC 47). Thus, if the maker does n o t incriminate him self the statement will not be a confession. A statem ent that contains self-exculpatory matter (e.g. killing done in private defence) which if true would negative the offence, cannot amount to a confession. This is so because a confession must be accepted or rejected as a whole, and the court is n o t com petent to accept only inculpatory part (self-incriminating) and reject exculpatory part (self-defence) {Paivinder Knur v State of Punjab AIR 1952 SC 354). The facts o f the Palvinder’s case could be noted: “Palvinder was on trial for the m urder o f her husband; the husband’s body was recovered from a well The post mortem could not reveal whether death was due to poisoning or what. In her statement to the court, she said that her husband, a photographer, used to keep handy photo developing material which is quick poison; that on the occasion he was ill and she 18. What is confession?

[UP. PCS Q) 1986\ [BihsuJ.S. 199I\

19. W hat do you understand by inculpatory and exculpatory statements of confession? What is the law relating to admissibility of such statements? Can the court convict an accused by admitting inculpatory part and rejecting exculpatory part of confession? [D elhiJ.S. 1982[[UP. PCS Q) 1997\[R*j.J.S. 1999\ Objective Question* (Multiple Choice)

70.

Sec. 1 4 permits evidence of previous offences to be admitted whenever this Is necessary to prove a particular state of mind or of body. Such evidence Is also relevant under: (a) (b) (c) (d)

Sec. 8 (as showing motive). Sec. 11 (Res gestae). Sec. 54 (evidence of bad character). Both (a) and (b).

44

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Law Guide fo r Judicial Sen/ice Examination

brought him some medicine; that the phial o f medicine happened to be kept nearby the liquid developer and the husband while going for the medicine by mistake swallowed the developer and died; that she got afraid and with the help o f the absconding accused packed the body in a trunk and disposed it o f into the well.” The statement, thus, consisted o f partly guilty and partly innocent remarks. In Aghnoo Nagesia v State of Bibar (AIR 1966 SC 119) the court observed: A confession may consist o f several parts, and may reveal not only the actual commission o f the crime but also the motive, preparation, opportunity, provocation, weapons used, intention, concealment o f the weapon, and the subsequent conduct o f the accused. If the confession is tainted, the taint attaches to each part o f it. It is not permissible in law to separate one part and to admit it in evidence as a non­ confessional statement. However, in N isbi Kant Jha v State of Bihar (1959) SCR 1033, the Court pointed out that there was nothing wrong in relying on a part of the confessional statement and rejecting the rest, and for this purpose, the court drew support from English authorities. Under the English law, a confession is not rejected only because o f the exculpatory statements [fL v Storey (1968) 52 Cr. App. R. 334]. When there is enough evidence to reject the exculpatory part o f the appellant’s statement, the court may rely on the inculpatory part (Keshoram v State AIR 1978 SC 1096). In Champa Rani Mondal v State of W.B. (2000) 10 SCC 608, confessional statement that she caused the death to ward off rape, being wholly exculpatory, was held to be not relevant as a confession. . . . In a statement recorded by the Magistrate, the accused did not admit his guilt in terms and merely went on stating the fact o f assault on the deceased by mistake. Held that such statement could not be used against the accused as a confession (State of Haryana v Rajinder Singh, 1996 CrLJ 1875). Where the accused confessed that he knew about the conspiracy to commit the murder in question but did not confess that he was a party to the crime, die statement was held to be not relevant as a confession (Shabad Ptt/la Reddy v State of A.P. AIR 1997 SC 3087). In luokemati Shah v State of W.B. (AIR 2001 SC 1760), the statement o f the accused which showed that he joined an assembly when it had already decided to chase the victim and finish him was regarded as a confession. The Supreme Court observed: “The statement must be read as a whole (instead o f dissecting it into different sentences) and then only the court should decide whether it contains admission o f his inculpatory involvement in the offence. If the result o f that test is positive then the statement is confessional, otherwise not.” 71. A falsely represented to B that he was the manager of a mercantile firm, and obtained money for the purpose of deposit from B, the fact that A had made similar representations to C and D and obtained sums from them, Is relevant under which section of the Evidence Act? (a) Sec. 13. (b) Sec. 14. (c) Sec. 15. (d) Sec. 16.

Law o f Evidence

45

Forms o f C on fession

A

confession may occur in any form. It may be written or oral. It is not necessary

for the relevancy o f a confession that it should be communicated to some other person. It may even consist of conversation to oneself, which may be produced in evidence if overheard by another. So, if the accused goes around the village shouting that he had killed his wife, this would amount to a confession. However, incriminating statements made by a person while “talking in sleep” are not to be admitted. It may be made to the court itself (judicial confession) or to anybody outside the court (extra-judicial confession). While, judicial confession is a good piece o f evidence, the extra-judicial confession is a weak kind of evidence and has to be used with great caution. Extra-judicial C onfession20

It is made to anybody outside the court, and it could be a direct admission o f guilt or in the form o f repentance or in any other way. “An extra-judicial confession to afford a piece o f reliable evidence must stand the test of reproduction o f exact words, the reason and motive for confession and the person selected in whom confidence is reposed” (Rahim Beg v State of UP. AIR 1973 SC 343). Thus, the court rejected the evidence of confession by the accused to another under-trial (Heramba Brahma v State of Assam AIR 1982 SC 1595). Similarly, where the confession sought to be proved was supposed to have been made to a witness for the purpose o f seeking his help to save the accused from harassment, but it was not shown how the witness was in a position to help him, the confession was described to be unreliable (Aiakban Singh v State of Punjab AIR 1988 SC 1705). A confession made to the Municipal Commissioner with whom the accused had no special friendship was held to be not trustworthy. Though extra-judicial confession by its very nature may possess some weakness, the court can act on it if the court believes the testimony of the person about the 20. Distinguish between Judicial and Extra-judicial confession. [U.P. PCS 0 ) [Bihar J.S. 199J\ Write a brief note on: Extra-judicial confession. <

[RajJ.S. 1991\ Objective QucmHomsm (Multiple Choice)

72.

73.

The question Is whether a particular letter reached A. The facts that It w as posted In due course, and was not returned through the Dead Letter Office, are relevant under which section of the Evidence Act? (a) Sec. 14. (b) Sec. 15. (c) Sec. 16. (d) Sec. 17. According to which section of the Evidence Act, an admission Is a statement which suggests some Inference as to the existence of a fact In Issue or a relevant fact? (a) Sec. 14. (b) Sec. 15. (c) Sec. 16. (d) Sec. 17.

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confession. A confession o f a military sepoy to his superior’s as to how he killed his wife and disposed off the dismembered parts o f the body substantiated by recoveries was held to be capable o f supporting conviction for murder without m ore [Vitiayak Shivajirao v State (1998) 2 SCC 233]. It may be noted that law does not require that the evidence o f an extra-judicial confession should in all cases be corroborated. C onfessions w hen Irrelevant: Involuntary C onfessions [Secs. 2 4 -26]21 SEC. 24: C onfession caused by Inducem ent, T hreat or Prom ise

T o attract the provisions o f Sec. 24, the following facts must be established: (a) The confession must have been made by an accused person to a person in authority. (b)

It m ust appear to the court that the confession has been caused or obtained by reason o f any inducement, threat or promise proceeding from a person in authority. (c) The inducement, threat or promise must have reference to the charge against the accused person. (d) The inducement, etc. must be such that it would appear to the court that the accused, in making the confession, believed or supposed that he would, by making it, gain any advantage or avoid any evil o f a temporal nature in reference to the proceedings against him. When these conditions are present, the confession is said to be not free or /oluntary and will not be receivable in evidence. It is necessary that the above conditions must cumulatively exist. A positive/ strict proof o f the fact that there was any inducement, threat, etc. is not necessary. Anything from a barest suspicion to positive evidence would be enough to discard a confession. The question has to be considered from the point o f view o f the confessing accused as to how the inducement, etc. proceeding from a person in authority would operate on his mind. Where the prisoner is only told to tell the truth without exciting any hope or fear in him, his statement cannot be regarded as being made in response to any threat or promise. Similarly, where a constable told a prisoner that he need not say 21. When does a confession become irrelevant?

[UP. PCS Q) 1988\

74.

Mark the Incorrect statement:

75.

(a) Admissions must be examined as a whole and not in parts. (b) Admissions bind the maker in so far as it relates to facts. (c) Admissions bind the maker in so far as it relates to facts or question of law. (d) None of the above. Which of the following statements Is correct7 (a) Admissions could be oral only. (b) Admissions could be documentary only. (c) Admissions could be oral or documentary. (d) Admissions are conclusive proof of the matters admitted. [M.P. C.J. (Prelim.) 2002)

Law o f Evidence

47

anything to criminate himself, but what he did say would be used in evidence against hini. However, where the objectionable words being that ‘it would be better to speak the tru th ’, held that the confession was involuntary. In Satbir Singh v State of Punjab (1977) 2 SCC 263, the officer having stated to the accused that “now that the case has been registered he should state the truth”, held that the statem ent would generate in the accused’s mind some hope or assurance that if he told the truth he would receive his support. In a case, the accused, a postoffice clerk, under suspicion, fell at his departmental inspector’s feet begging to be saved if he disclosed everything, and the inspector replied that he would try his utm ost to save him if he told the truth. The confession was held to be inadmissible, as there was an inducement by the inspector. W here the accused was told by the magistrate, “Tell me where the things are and I will be favourable to you”, or “If you do not tell the truth you may get yourself into trouble and it will be worse for you”, etc, the statements were held to be attracted under Sec 24. However, mere moral or spiritual inducements or exhortations will not vitiate a confession via. where the accused is told, “Be sure to tell the tru th ”, o r “You have committed one sin, do not commit another and tell the tru th ” [jR. v Sleeman (1853) 6 Cox CC 245J. The same is true where the accused is taken to a temple or church and is told to tell the truth in the presence o f the Almighty. Inducement etc. should be in reference to charge — Where a person charged with murder, was made to confess to a Panchayat which threatened his removal from the caste for life, the confession was held to be relevant, for the threat had nothing to do with the charge. Person in authority — The inducement, threat or promise should proceed from a person in authority, Le., one who is engaged in the apprehension, detention or prosecution o f the accused or one who is empowered to examine him viz. government officials, magistrates, their clerks, police constables, wardens and others in custody o f prisoners, prosecutors, attorneys, etc A purely private person/ Panchayat officer cannot be regarded as a person in authority, even if he is able to exert some influence upon the accused.

O b je c tiv e Q u e n U o n s (Multiple Choice)

76.

77.

Admissions (a) are a waiver of proof. (b) could be self-harming as well as self-serving. (c) constitute an exception to the hearsay rule. (d) all are correct. Admissions (a) (b) (c) (d)

should be formal only. should be made to the party concerned. made to a stranger is relevant. both (a) and (b).

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SEC. 25: C on fession to Police22

U n d e r Sec. 25, “no confession made to a police officer can be proved as against an accused”. The object o f it is to prevent the practice o f oppression or torture by the police for the purpose o f extracting confessions from accused persons \Queen Empress v Babu L a i {1884) ILR 6 All 509]. In England, a confession made to a police officer would be relevant evidence; if the Judge feels confident that there was no oppression and the statement was free, fair and voluntary, he may admit it. Sec. 25 absolutely excludes from evidence against the accused a confession made by him to a police officer under any circumstances whatsoever. W hether such person is in police custody or not, whether the statement made during investigation o r before investigation is irrelevant. A series o f conflicting suggestions as to the rational underlying this inflexible statutory bar emerges from the decided cases: (i) An objective and dispassionate attitude cannot confidently be expected from police officers. (ii) T he privilege against self-incrimination has been thought to lie at die root o f the principle. (iii) Im portance has been attached to the discouragement o f abuse o f authority by the police that could erode the fundamental rights o f the citizen. The risk is great that the police will accomplish behind their closed doors precisely what the demands o f our legal order forbid. A jpedal legislation may change the system o f excluding police confessions. For example, under the Terrorists and Disruptive Activities (Prevention) Act fTADA), 1987, confessional statements were not excluded from evidence on the ground that the persons making them were in police custody (Lai Singh v State o f Gujarat AIR 2001 SC 746). Similarly, under the recent Prevention o f Terrorism Act (POTA), 2001, a confession made to a police officer is admissible in evidence. Effect of police presence - Where the confession is being given to someone else and the policeman is only casually present and overhears it that will not destroy the voluntary nature o f the confession. But where that person is a secret agent o f the police deputed

22. Explain and illustrate: *No confession made to a police officer is admissible’. [U.P. PCS (J) 1983/1987\ 78.

Mark the Incorrect statement:

79.

(a) It is necessary that to be relevant an admission must accept liability in toto. (b) Active or passive conduct may in circumstances become evidence of an admission. (c) Silence may amount to admission in certain situations. (d) Admissions could be proved by the witness who has heard them. Admission can be made by (a) (b) (c) (d)

a party to the suit or proceeding. an agent authorized by a party. a party suing or sued in a representative character. all of the above.

Law o f Evidence

49

for the very purpose o f receiving a confession, it will suffer from the blemish of being a confession to police. In S i fa Ram v State (AIR 1966 SC 1906), the accused left a letter recording his confession near the dead body o f the victim with the avowed object that the police should discover it. Held that the confession is relevant, as the letter was addressed to the police officer, but the officer was not nearby when the letter was written or knew that it was being written. Confessional F IR — Only that part o f a confessional First Information Report is admissible which does not am ount to a confession or which comes under the scope o f Sec. 27. T he non-confessional part o f the FIR can be used as evidence against the inform ant accused as showing his conduct under Sec S.23 Who is police officer — A police officer not only includes a member o f the regular police force, b ut also would include any person who is clothed with the powers o f a police officer viz. a chowkidar, a village headmen, a home guard,24 etc Thus, excise inspectors are held to be police officers, but not the custom officers or an officer under the FERA or a member o f the Railway Protection Force It has been held that mere power of arrest, search and investigation are not enough and the police officers should also be empowered to file a charge sheet or lodge a report before a Magistrate.

23. ‘A’ lodges FIR alleging that in morning, he had hacked his aunt with an axe and the dead body was lying in the house. The dead body and blood -stained axe were recovered therefrom by the police. ‘A* is prosecuted for murder. There is no eye -witness or any other evidence against him. Prosecution seeks *A’s conviction for murder on the basis of his version contained in the FIR. Decide. [U.P. PCS (J) 24. W hether extra-judicial confession made before a home guard on duty is admissible in evidence? [Ra/.J.S.. 1989[ Objective Questionm (Multiple Choice)

80 .

81.

Admissions by agents are:,' (a) Always admissible in civil proceedings. (b) Admissible in civil proceedings only if the agent has the authority to m ake admissions. (c) Not admissible in criminal proceedings. (d) Both (b) and (c). Which of th e following admission Is no evidence? (a) An admission by one of the several defendants in a suit against a n o th er defendant. (b) An admission by a guardian ad litem against a minor. (c) An acknowledgment of a debt by a partner against the firm. (d) Both (a) and (b).

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SEC. 26: C onfession in Police C ustody25

U n d e r Sec. 26, “no confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence o f a Magistrate, shall be proved as against such person”. The section will come into play when the person in police custody is in conversation with any person other than a police officer and confesses to his guilt. The section is based on the same fear, namely, that the police would torture the accused and force him to confess, if not to the police officer himself, at least to some one else. Thus the confession is likely to suffer from the blemish o f not being free and voluntary. The word custody does not mean formal custody; it means police control even if be exercised in a home, in an open place or in the course o f a journey and not necessarily in the walls o f a prison (actual arrest). The immediate presence o f police officers is not necessary, so long as the accused persons are aware that the place where they are detained is really accessible to the police. A temporary absence o f the policeman makes no difference. The following confessions are, thus, held to be irrelevant (i) A woman arrested for the murder o f a young boy was left in the custody o f villagers while the chowkidar (watchman) who arrested her left for the police station and she confessed in his absence (Emperor v Jagia AIR 1938 Pat 308). (ii) While the accused being carried on a tonga was left alone by the policeman in the custody o f the tonga-driver and he told o f his criminality to the tonga driver [R v Lester; ILR (1895) 20 Bom 165]. (ui) Where the accused was taken to a doctor for treatment, the policeman standing outside at the door, the accused confessed to the doctor.

25. What is the importance of a confession made by an accused while in police custody? [Bihar J.S. 1991\ A while in police custody makes statement of a fact. During trial, the Public Prosecutor produces evidence of his admission. A objects to it under Sec. 26. Decide. [ U.P. PCS (J) 19971 \Ans. An admission o f a fact not amounting to a confession is not hit by Sec. 26; only a confession is hit by Sec. 26.] 82.

Which of the following admission Is no evidence? (a) Admission of fact made by a plaader in court, on behalf of his client. (b) Admission on a point of law made by a pleader in court, on behalf of his client. (c) Both (a) and (b). (d) None of the above.

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51

(iv)

A confession made to a person, while in police custody, overheard by a police officer.

(v)

A confession to fellow-prisoners, while in jaiL26

However, if the confession was made when the accused was nowhere near the precincts o f a police station or during the surveillance of the police, such confession held not to be hit by Sec. 26. The accused made his confession to two persons of the locality. Later, his confession was reduced to writing inside the police station on the accused being brought there. The Supreme Court said that such extra-judicial confession was n o t hit by Sec 26 [State of A.P. v Gangula Satya Msertby (1997) 1 SCC 272]. Immediate presence o f a Magistrate —Sec. 26 recognizes one exception. If the accused confesses while in police custody but in the immediate presence o f a Magistrate, the confession will be valid. The presence of a Magistrate rules out the possibility o f torture thereby making the confession free, voluntary and reliable. The Magistrate must be present in the same room where the confession is being recorded. A confession made while the accused is in judicial custody or lockup will be relevant, even if policemen are guarding the accused. The mere fact that the accused, after having made a confession before a police officer, subsequently says before a Magistrate that told the police officer that I murdered B” does not render the statement admissible. C onfession w h en R elevant [Secs. 27-29]

The following three types o f confessions are relevant and admissible: SEC. 27: H ow Much o f Information Received from Accused May be Proved

“Vt^hen any fact is deposed to as discovered in consequence o f information received from a person accused o f any offence, in the custody o f a police officer, so much 26. A, an accused, while in police custody makes a confession to his relative B. Is the evidence of B admissible? [Raj.J.S. 1991\ [Ans. No, the evidence is inadmissible.] Objective QuemHoM M M (Multiple Choice)

83 .

Which section is based on the principle that where the right or liability of a party to a suit depends upon the liability of a third person, any statem ent by that third person about his liability is an admission against the parties? (a) Sec. 17. (b) Sec. 18. (c) Sec. 19. (d) Sec. 20.

[Delhi J.S. 2002]

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of such information (whether it amounts to a confession or not) as relates distinctly to the fact thereby discovered, may be proved*’. Under the Evidence Act, there are two situations in which confession to police are admitted in evidence.27 One is when the statement is made in the immediate presence of a Magistrate, and the second, when the statement leads to the discovery of a fact connected with the crime. Sec. 27 is founded on the principle that if the confession of the accused is supported by the discovery of a fact, it may be presumed to be true and riot to have been extracted. Sec. 27 is a proviso or exception to Secs. 25 and 26 of the Act. Normally, the section is brought into operation when a person in police custody produces from some place of concealment some object e.g. a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. The ‘discovery of fact* includes the object found, the place from which it is produced and the knowledge of the accused as to its existence. However, informltion as to the ‘past use* of the object produced is not related to its discovery. The statements admissible under Sec. 27 are not admissible against persons other than the maker of the statement. The discovery must be made by the police as a result o f information given by the accused and not by any other source. Statements made by the accused in connection with an investigation in some other case which lead to the discovery of a fact are also relevant [State oj Rajasthan v Bhup Singh (1997) 10 SCC 675] The scope o f Sec. 27 is explained in Pulukuri Kottaya v Emperor (AIR 1947 PC 67). In this case, the appellants guilty o f murder made some confessions in the police custody. The statement of one of them was: “I, Kottaya, and others beat Sivayya and Subbaya to death. I hid the spear and my stick in the rick of my village. I will show if you come. We did all this at the instance of P. Kottaya”. The relevant article was produced from the place of hiding. 27. State the exception to the rule that confession by an accused in police custody is not admissible in evidence. [U.P. PCS Q) 1986\ A is tried for the murder of B. A says to a police officer, “I have buried the knife with which I committed the murder of B in the field of C.” He tells the place where the knife was buried. The knife is taken out. Discuss whether the above statement of A is admissible either as whole or in part. Refer to decided cases. [DelhiJ.S. 1984/1991/1999[ (U.P PCS (J) 1984\ 84. Admissions of a third person are also receivable In evidence under which section of the Evidence Act? (a) Sec. 18. (b) Sec. 19. (c) Sec. 20. (d) Sec. 21. 85. The question Is, whether a horse sold by A to B Is sound; A says to B - “Go and ask C, C knows all about It”. C's statement Is: (a) An admission. (b) Not an admission. (c) A confession. (d) A presumption.

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The Court observed: Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” docs not lead to the discovery of a knife. It leads to the discovery of a fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of offence, the fact discovered is very relevant But if to the statement the words “with which I stabbed A” are added, these words are inadmissible because they do not relate to the discovery of knife in the house of the informant. The part which relates as to Svhat he did to the object* and not *what he did with the object*, is relevant under Sec. 27, because the latter entails a remote connection with the fact Further, if there is no other evidence connecting the knife with the crime and the only evidence is a statement coming under Sec. 27, then the accused must be acquitted. Referring to the facts of the case, their Lordships held that the whole of the statement except the passage “I hid it (spear) and my stick in the rick in the village. I will show if you come”, is inadmissible. The above passage is admissible as it served to connect the object discovered with the offence charged. The other portions of the statement relates to the past history of the object produced, thus not admissible. In Prabhu v State of U.P. AIR 1963 SC 1113, a statement leading to discovery of bloodstained axe, clothes, etc. was held admissible, but a statement to the police that such clothes belonged to him (accused) and the axe was used in the murder was held inadmissible under Sec. 27. In another case, the accused stated to the police: “I have buried the property stolen by me in the field. I will show it**. The admissible part is “I have buried the property in my field. I will show it**. The inadmissible part is “stolen by me**. The underlying principle is that any self-incriminatory statement or whatever else said by the accused at the time of giving the information by way of giving introduction or narrative or explanation must be rigorously excluded, as it leads to no discovery of facts. Place of Hiding

In Mohd. Inayatullah v State of Maharashtra (AIR 1976 SC 483), the accused, charged with theft, stated: “I will tell the place of deposit of the three chemical drums which I took out from the Haji Bunder on first August” The facts discovered were: chemical drums, the place of deposit of drums, and the accused’s knowledge of such deposit. Held that only the first part of statement, namely, “I will tell the place

Objective QuemtioxLM (Multiple Choice)

86.

An admission is an evidence against the party who had made the admission and It can be proved only against him. Admissions cannot be proved by, or on behalf of, the person who makes them. Which of the following Is an exception to this general rule? (a) Dying declaration. (b) Statements as to his state of body or of mind. (c) Statement sought to be used in evidence otherwise than as an admission. (d) All of the above.

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o f deposit of three chemical drums” was relevant because only this part was the direct cause o f the fact discovered. The rest of the statement was a simple confession (past history) which led to no discovery. It is incorrect to say that when recovery of an incriminating article is made from a place which is open or accessible to others it would vitiate the evidence. The crucial question is not whether the place was accessible to others but whether it was ordinarily visible to others {State of H.P. v Jeet Singh AIR 1999 SC 1293). An article could be concealed beneath dry leaves or tall grass on public places so as to be out of visibility o f others in normal circumstances (State of Maharashtra v Bharat Fakira Dhiwar AIR 2002 SC 16). SEC. 28: Confession made After Removal of Threat, Inducement, etc.

“If such

a confession as is referred to in Sec. 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion o f the court, been fully removed it is relevant”. Sec. 28 deals with the validity of confession which is made after the effect of inducement is already over (e.g. by lapse of time). Thus, a confession, which is rendered irrelevant under Sec. 24, may become relevant under Sec. 28. SEC. 29: Confession Otherwise Relevant Not to become Irrelevant because of Promise of Secrecy, etc. If a confession is otherwise relevant, it does not become irrelevant, merely because it was made — (a) under a promise of secrecy, or (b) in consequences o f a deception practised on the accused person for the purpose o f obtaining it, or (c) when the accused was drunk, or (d) in answer to questions he need not have answered, or (e) when the accused was not warned that he was not bound to make such confession and that evidence of it might be given against him (except in judicial confessions, under Sec. 164, Cr.P.C.) In criminal cases, the public interest lies in prosecuting criminals and not compromising with them. Therefore, where an accused person is persuaded to 87.

Which section of the Evidence Act has been amended by the Information Technology Act, 2000:

(a) (b) (c) (d) 88.

Sec. Sec. Sec. Sec.

22A. 46. 51. 107.

Oral admissions as to the contents of a document are relevant under which section of the Evidence Act?

(a) (b) (c) (d)

Sec. Sec. Sec. Sec.

21. 22. 23. 24.

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confess by assuring him o f the secrecy of his statements or that evidence of it shall not be given against him, the confession is nevertheless relevant. Where the two accused persons were left in a room where they thought they were all alone, but secret tape recorders were recording their conversation, the confessions thus recorded were held to be relevant. A confession secured by intercepting and opening a letter has also been held to be relevant. A confession obtained by intoxicating the accused is equally relevant. SEC. 30: Confession of Co-Accused28 “V ^hen 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.” Explanation —“Offence” as used in this section includes the abetment of or attempt to commit the offence. Illustrations-, (a) A and B are joindy tried for C’s murder. It is proved that A said: “B and I murdered C”. The court may consider the effect of the confession against B. (b) A is on trial for C’s murder. There is evidence to show that C was murdered by A and B, and that B said: “A and I murdered C”. This statement may not be taken into consideration by the court against A as B is not being joindy tried.

28.

W h o is s a id to b e a c o -a c c u s e d u n d e r the E v id e n ce A ct? U n d e r w h a t c irc u m s ta n c e s a conviction can be m ade on the basis o f evidence o f an accused? [D elh i J.S . 1984[[U.P. P C S (J) 1999] A a n d B a re jo intly trie d for C’s m urder. It is proved th a t A said: “B a n d I m u rd e re d C ” . C a n the c o u rt consider the effect o f this confession as a g ain st B. [U.P. P C S (J) 1988/1992\ A a n d B a re c o -a c c u se d o f the crim e o f k idnapping a n d killing a child. A d e n ie s h is g u ilt b u t B confesses th a t he along w ith A has com m itted the crim e. H o w fa r th e s ta te m e n t m ad e by B is relevant against A? [U .P P C S (J) 2000\

Objective Question* 89.

(Multiple Choice) When a person makes an admission without prejudice l.e. upon the condition that the evidence of It shall not be given, It cannot be proved against him. This Is laid down In:

(a) (b) (c) (d) 90.

Sec. Sec. Sec. Sec.

21. 22. 23. 24.

Sec. 23 Is not applicable to:

(a) (b) (c) (d)

Civil cases. Criminal cases. Certain instances under Sec. 126, Evidence Act. Both (b) and (c).

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W hen more than one persons are being jointly tried for one and the same offence or offences they are called ‘co-accused’. The philosophy o f Sec. 30 is that confession o f co-accused affords some sort o f sanction in support o f the truth o f his confession against others and himself. However, it does not necessarily follow that because a man has truly implicated himself, therefore his implication o f another is also true. It is opposed to the principle o f jurisprudence to use a statement against a person without giving him the opportunity to cross-examine the person making the statement. This section is an exception to the rule that the confession o f one person is entirely inadmissible against another. Joint trial fo r the same offence — Under Sec. 30, the statement o f one accused is admissible as against his co-accused only when they are tried joindy. Person originally charged with accused but discharged on withdrawal o f case against him is a competent witness and his confession cannot be used against the other accused. If the person making the confession died and was never brought to trial, his confession is inadmissible under Sec. 30 (it would be admissible if before his death his confession had been put on the record). A, B and C commit murder of D. O ut o f them only A is arrested. B and C abscond. A makes a confession and is tried and convicted. Afterwards B and C are arrested and sent for trial. At their trial the confession o f A cannot be taken into consideration for the simple reason that they are not tried jointly. The confession made at a previous trial will not be relevant. T he expression ‘same offence’ in Sec. 30 means the identical offence and does n o t mean offence o f the same kind. If different offences are committed in course o f the same transaction and many persons are tried jointly for different offences (viz. abduction and rape), the confession o f one o f such persons cannot be used against the others. Where two persons are tried jointly, but one is charged with an offence under Sec. 372, IPC and other under Sec. 373, IPC, a confession made by one o f them cannot be used against the other. Affecting himself and some other — It may be noted that the confession o f co-accused must implicate himself as well as some other accused. The confession must implicate the maker substantially to the same extent as the other accused (Balbir Singh v State o f Punjab AIR 1957 SC 216). The confession must not have been made under force or fraud. Evidentiary value —Sec. 30 does not say that the confession o f one accused will be evidence against the other co-accused. It only says that the court may take into consideration such confession. The confession o f co-accused is no t “evidence”, as it is not recorded on oath, nor it is given in the presence o f the accused and nor its truth can be tested by cross-examination. It is an evidence o f a very weak type.

91.

Admissions are:

92.

(a) Conclusive proof. (b) May operate as estoppels. (c) Always irrelevant. (d) None of the above. Mark the Incorrect statement:

[M.P. CJ. (Prelim.) 1999]

(a) Admissions are of the nature of original evidence. (b) An admission is substantive evidence of the fact admitted and the admissions duly proved are admissible. (c) An admission in an earlier suit is relevant evidence against the plaintiff. (d) None of the above.

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T he confession o f co-accused may only be taken into consideration along with other evidence in the case, and it cannot alone form the basis o f a conviction. It can be used only, if necessary, to corroborate other evidence o f the record. It can only be used to help to satisfy a court that the other evidence is true (Bhuboni Sahu v Emperor A IR 1949 PC 527). Confession o f one co-accused cannot be used for the purpose o f corroborating the confession o f another co-accused (State o f T.N- v Kutty A IR 2001 SC 2778). The court can take into consideration retracted confession against the confessing accused and his co-accused. E videntiary Value o f C onfession

A confession is considered the best and most conclusive evidence, as no person will make an untrue statement against his own interest It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof o f guilt However, the evidentiary value o f a confession is not very great As observed by Best, a confession may be ‘false* due to mental aberration, mistake o f law, to escape physical or moral torture, to escape ignominy o f a stifling enquiry, due to vanity, to endanger others by naming them as co­ offenders, and so on. Therefore, confessions may not always be true. It would be very dangerous to act on a confession put into the m outh o f the accused by a witness and uncorroborated from any other source. It would not be quite safe to base a conviction for murder on a confession by itself. In Sahoo v State of U.P. (AIR 1966 SC 40), held that there is clear distinction between the admissibility o f evidence and the weight to be attached to i t The court must apply a double test: (1) whether the confession was perfeedy voluntary, (2) if so, whether it is true and trustworthy. If the confession appears to be a probable catalogue o f events and naturally fits in with the rest o f the evidence and the surrounding circumstances, it may be relied on. R etracted C onfessions29

When a person, having once recorded a confession which is relevant, goes back upon it at the trial, saying either that he never confessed or that he wrongly confessed or confessed under pressure, that is called a ‘retracted* confession. 29. Discuss fully the evidentiary value of retracted confession. Illustrate your answer. [Delhi J.S. 1996\ [ UP. PCS (J) 1985/200O[ What do you understand by a retracted confession?

[RajJ.S. 1989\ Objective QucmHomsm (Multiple Choice)

93.

Which o f the following statem en ts Is Incorrect In relation to a confession? (a) The definition of confession is that it must either admit the guilt in term s or admit substantially all the facts which constitute the offence. (b) A confession is not necessarily limited to a crime. (c) The term ‘confession’ is nowhere defined in the Evidence Act. (d) The provisions relating to confession are laid down in Secs. 24-30.

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Where an extra-judicial confession was recorded by the village assistant in the presence o f the village administrative officer; the accused made no reference to the confession in his statement recorded by the C.J.M. under Sec. 164, Cr.P.C. and only said that he was innocent and had not committed any offence, it was held that this could not be called a retraction o f the confession [.Pakkirisamy v State of T.N. (1997) 8 SCC 158]. The Supreme Court has held that retraction is too insufficient a reason for overruling a confession (State of T.N. v Kutty AIR 2001 SC 2778). A retracted confession may form the legal basis o f a conviction if the court is satisfied that it was true and voluntarily made. In the case o f a retracted confession, one has only to find out whether the earlier statement which was the result o f repentance, remorse and contrition was voluntary and true or not and it is with that object that corroboration is sought for. Thus, a court shall not base a conviction on such a confession without a general corroboration from independent evidence (Piyare 1m/ v State of Rajasthan AIR 1963 SC 1094). Even if a confession is inculpatory, corroboration is necessary if the confession is retracted. The court can take into consideration retracted confession against the confessing accused and his co-accused. The court upheld a conviction based on a retracted confession because it became supported by discovery o f smuggled articles from different places o f concealment (State v Madhukar Keshav Maity AIR 1980 SC 1224). In Shankar v State of T.N . (1994) 4 SCC 478, conviction on the basis o f retracted confession was held not proper when the statement was inconsistent with the medical evidence. In a case, an accused was tried for murder. At the time o f investigation he made a confession giving full details as to the manner in which he committed the murder. From liim a bloodstained drawer and a banian worn by him were seized. On the information o f the accused, a bloodstained bed-sheet was recovered. At the trial, the accused denied to have made the confession voluntarily. The confession was held to be voluntary, the reason for retraction untrue. O n the above finding and also in the absence o f any other evidence, the evidence o f blood on the drawer, banian and bed-sheet were held to corroborate the confession and his conviction was upheld (Sarvan Singh v State of Madras AIR 1954 SC 4).

94.

In which case, the Supreme Court pointed out that there was nothing wrong In relying on a part of the confessional statement (Inculpatory or self-incriminating) and rejecting the rest (exculpatory part made In self-defence)? (a) (b) (c) (d)

Palvinder Kaur v State of Punjab. Pakala Narayan Swami v Emperor. Aghnoo Nagesia v State of Bihar. Nishi Kant Jha v State of Bihar.

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D istin ction B e tw e e n Admission and Confession30

T h e r e are many com m on features between an admission and a confession. In both there is the acknowledgment of the existence of a fact in issue in the case, which jnay in circum stances be accepted by the courts as a proof o f the truth and accordingly acted upon. But there are obvious points of distinction to a The Act lays down different rules as to their relevancy. (1) Confessions find place in criminal proceedings only. Admissions are generally used in civil proceedings, yet they may also be used in criminal proceedings. (2)

Every confession is an admission, but every admission is not a confession. T he word ‘admission’ is more comprehensive and includes a confession also. A confession is only a species o f admission.

A confession must either admit in terms the offence, or at any rate, substantially all the facts which constitute the offence. While in an admission, there is a mere acknowledgment o f a fact suggesting an inference as to a fact in Issue or a relevant fact An admission o f a gravely/ conclusively incriminating fact is not in itself a confession, for example, an admission that the accused is the owner o f and was in recent possession o f the knife/revolver which caused death with no explanation o f any other m an’s possession. In V'eera Ibrahim v State of Maharashtra (AIR 1976 SC 1167), a person being prosecuted under the Customs Act told the custom officers that he did n o t know that the goods loaded in his truck were contraband, nor they were loaded with his instructions. Held that the statement was not a confession, but it did am ount to an admission o f an incriminatory fact (namely, load o f contraband goods) and was relevant under Secs. 17 and 21. (3) A confession is the admission of guilt and, thus, invariably runs against the interest o f the accused. A confession should necessarily be o f inculpatory nature. The term ‘admission’ includes every statement whether it runs in favour o f or against the party making it. However, there is nothing in Evidence Act which precludes an accused person from relying upon his own confessional statements for his own purposes. 30. Distinguish admission from confession and explain their evidentiary values. Illustrate your answer. [UP. PCS (J) 1984/1992\ Objcctixrc Questions (Multiple Choice)

95.

96.

Mark the Incorrect statement: (a) A confession may occur in any form: written or oral. (b) A confession may even consist of conversation to oneself, which may be produced in evidence if overheard by another. (c) A confession must be made voluntarily. (d) An incriminating statement made by a person while talking in sleep could be admitted. Which of the following confessions Is considered as superior kind of evidence? (a) Confession made to a Magistrate. (b) Confession made to a police officer. (c) Confession made to any person outside the court. (d) Confession made to a religious guru.

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(4)

An admission made to any person whatsoever is relevant whether he be a policeman or a person in authority or whether it was the result of an inducement or a promise. O n the other hand, the confession to a policeman or in police custody is irrelevant Thus, the confession must be free and voluntary. Further, a statem ent may be irrelevant as a confession but it may be relevant as an admission. A statement not admissible as a confession may yet, for other purposes is admissible as an admission against the person who made it. (5) A confession always proceeds from the accused or suspect person, but in reference to admissions, the statements o f certain persons, who are not parties to the case, as admissions against the parties. (6) The confession o f an accused person is relevant against all his co-accused who are being tried with him for the same offence (Sec. 30). In the case o f admissions, statements o f a co-plaintiff or those o f a co-defendant are no evidence against the others. (7) An admission is not a conclusive proof o f the fact admitted, though it may operate as an estoppel against the party making it. A confession is considered a satisfactory proof o f the guilt o f the accused, though as a rule o f prudence, the courts may require corroborative evidence. SEC. 3 1: A d m ission s N o t C onclusive Proof, but they May Estop

“A d m issio n s are not conclusive proof o f the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.” For comments, see under Secs. 23 and 115. \\Y

^ V / , STATEMENTS BY PERSONS WHO X / / CANNOT BE CALLED AS WITNESSES SEC. 32: C ases in w hich S ta te m e n ts o f Relevant Fact by Person w ho is D ead or C an n ot be Found, e tc . is Relevant

A

statement (written or verbal) o f relevant facts made by a person (i) who is dead, (ii) who cannot be found, (iii) who has become incapable o f giving evidence, or (iv) whose attendance cannot be procured without unreasonable delay or expense, is relevant under the following circumstances: (1) When it relates to the cause of his death.

97. A confession caused by an Inducement, threat or promise Is Irrelevant under which section of the Evidence Act?

(a) (b) (c) (d)

Sec. Sec. Sec. Sec.

23. 24. 26. 27.

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(2) W hen it is made in the course of business, such as an entry in books, or acknowledgement of the receipt of any property, or date of a document. (3) W hen it is against the pecuniary or proprietary interest of the person making it or w hen it would’ve exposed him to a criminal prosecution. (4) W hen it gives opinion as to a public right/custom/matters of general interest. (5) W hen it relates to the existence of arty relationship between persons as to whose relationship the maker had special means of knowledge. (6) When it relates to the existence of any relationship between persons deceased and is made in any will or deed orfamily pedigree, etc (7) W hen it is contained in any deed, will or other document relating to transaction mentioned in Sec. 13(a). (8) When it is made ly severalpersons and expressesfeelings relevant to matter in question. Sec. 32 provides an exception to the principle of excluding hearsay evidence. The principle behind is that a person who has the first-hand knowledge of the facts o f a case, but who, because o f death, disability, etc is not able to appear before the court, then his knowledge should be transmitted to the court through some other person; the person who has shared the knowledge of that person will be considered as the best evidence. Thus, necessity and convenience are the underlying grounds. P ro o f o f a person’s death, disability, etc. will have to be offered in the first instance to make the evidence relevant under Sec. 32. When a statement is admitted under any o f the eight clauses o f this section, it is substantive evidence, and has to be considered along with other evidence. S ec. 32 (I): D ying D eclaration31

“W h e n the statement is made by a person as to the cause of his death, or as to any o f the circumstances o f the transaction which resulted in death, in cases in 31. What is a dying declaration? How and by whom it can be recorded? Discuss fully its evidentiary value. Can an accused be convicted on the basis of dying declaration alone? Cite case law. [D elhiJ.S. 1982\ [ U.P. PCS (J) 1985\ [Raj.J.S. 1994\ [BiharJ.S. 1984/1986/199J\ Objective Question* (Multiple Choice)

98.

In which of the following cases, Sec. 24 Is not attracted? (a) A constable told a prisoner that he need not say anything to enminate himself, but what he did say would be used in evidence against him. (b) Where an accused was warned: "It would be better to speak the truth". (c) Where the accused was told by the magistrate, "Tell me where the things are and I will be favourable to you". (d) Where the accused was told by the magistrate, "If you do not tell the truth you may get yourself into trouble and it will be worse for you".

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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 o f the proceeding in which the cause of his death comes into question”. Illustration (a): The question is, whether A was murdered by B; or A dies o f 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. A ‘dying declaration’ means the statement of a person who has died (by way of homicide or suicide) explaining the cause or circumstances of his death. As the person is dead, this statement before the court would be ‘hearsay* which is excluded for the reasons that party against whom it is used has no opportunity of cross-examining the original source, and it is not delivered under an oath. Sec. 32 is an exception to the hearsay rule. The three main grounds on which dying declarations are admitted are: (i) Death of the declarant. (ii)

N e ce ssity (only evid en ce available u n d e r th e circum stances): th e victim Being generally the o n ly eye-w itness to th e crim e, th e exclusion o f his s ta te m e n t w o u ld te n d to d e fe a t th e e n d s o f justice.

(lii) The sense of impending death, which creates a sanction equal to the obligation o f an oath. Nemo moriturus presiminntnr tnentri (no one when about to die is presumed to lie). “Truth sits upon the lips of dying men”. The reason for admitting dying declaration is well reflected by Shakespeare in Richard II, where he said - “Where words are scarce, they are seldom spent in vain; They breathe the truth that breathe their words in pain”. Sec. 32(1) is a salutary provision o f law and has helped in securing convictions in dowry death cases and hence contributed to controlling this grave social evil. Distinction Between the English and Indian Law32

In England, a dying declaration is relevant only in criminal cases where the cause of death is in question" In lndia7sucK~statemcnts are admissible both in civil and criminal proceedings; they are admissible even it the trial is not for a person’s death. Secondly, under English law, the dying declaration is admissible only in the single instance of homicide Le. murder or manslaughter. Tn India, cases of ‘suicide' are also covered. 32.

P o in t o u t fo u r d iffere n ce s b e tw ee n th e E n g lish a n d In d ia n law o f d y in g d e clara tio n . [R u j.J.S . 1999\

99.

A confession made to a police officer Is Irrelevant under Sec. 25. Such a confession: (a) (b) (c) (d)

100.

Must relate to the same crime for which a person is charged. Must relate to another crime. May relate to the same crime or another crime. None of the above.

A confession made to which of the following persons will be hit by Sec. 25: (a) (b) (c) (d)

A A A A

confession confession confession confession

made made made made

to to to to

a a a a

police officer under the POTA, 2001. chowkidar. custom officer. member of the Railway Protection Force.

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Thirdly, under English law, to be relevant, a dying declaration must have been made in expectation of death. A declaration made without appreciation of immediate or impending death would not be admitted. There is no such requirement under the Indian law. If the declarant has in fact died and the statement explains the circumstances surrounding his death, the statement will be relevant even if no cause o f death had arisen at the time of the making of the statement.J2a Fourthly. under English law, it is necessary that the deceased should have completed his statement, before dying. In India, if the deceased has narrated the full storv, but tails to answer the last formal question as to “what more he wanted to say”, the declaration can be relied upon. Conditions o f Admissibility (Essential Requirements o f a Dying Declaration) (1) To whom the statement is to be made and its form — A statement of dying declaration could be made to ary person - a doctor, a magistrate, a friend or near relative,33 a police officer However, a statement recorded by a magistrate or doctor is considered more reliable, and that recorded by a police officer or close relative not. N o particular form o f recording a statement is prescribed. The statement could be written, oral or even verbal (e.g. gestures). In Q ueen Empress v Abdullah (1885) ILR 7 All 385, where the throat of the deceased girl was cut and she being unable to speak indicated the name of the accused by the signs o f her hand, this was TielcTto be relevant as dying declarafion?3* v .s t J u D h l d h . 32a.

D o e s a s ta te m e n t m a d e to S.D.M . by a bride relating to the cause o f her d e ath , b e c o m e a ‘d y in g d e clara tio n ’ th o u g h the bride firmly believed th a t sh e w ould reco v er, b u t d ie d after th ree days o f m aking it? [D e lh iJ .S . 2000]

33.

A a n d B , tw o b ro th e rs w ere attacked; soon after the incident, W (wife o f A) w e n t to th e s p o t w h e re she was told about the in cident by A before h e died. L a te r, D (fa th e r o f A a n d B) ru sh ed to the sp o t a n d B m ad e th e sim ilar s ta te m e n ts a s w ere m a d e by A. B also died. It was co n te n d ed th a t as W a n d D w e re clo se re la tio n s o f the deceased, the dying declaration m ad e before th e m s h o u ld n o t b e m ad e the basis o f conviction b e ca u se th ere w as n o in d e p e n d e n t co rro b o ra tio n . D ecide. [D elh i J .S . 1996J

33a.

A q u e s tio n b a se d o n the facts o f this case.

[B ih a r J .S . 199I\

Objective ffueatjoam (Multiple Choice)

1 0 1 . Confession of an accused Is Irrelevant and Inadmissible when made: (a) In the custody of a police officer but in the immediate presence of a Magistrate. (b) Before a Magistrate, who told him that if he made a full confession, he would be released. (c) At the time when he was drunk. (d) In police custody if it leads to the discovery of any fact. [M.P. CJ. (Prelim.) 1996]

102.

A voluntary confession Is admissible In evidence: (a) (b) (c) (d)

When made to a police officer. To a magistrate having competent jurisdiction. To a village sarpanch with a request to save him from police. Where it leads to no discovery of facts and made to the police officer. [M.P. CJ. (Prelim.) 1996]

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(2)

The person making the statement must have died — The death need not occur immediately after the making o f the statement. If the person making the declaration chances to live, his statement is inadmissible as a ‘dying .declaration*, but it might be relied on under Sec. 157 to corroborate his testimony or to contradict him under Sec. 145. Further, it can h e used to corroborate the evidence- in court "under Secs. 6 and S.34 The fact that the person is dead must be proved by the person proposing to give evidence o f his statement. Further, the deceased must be proved to have died as a result o f injuries received in the incident. Where A made a statement shortly after an injury, and he was admitted in hospital and thereafter discharged, but after 5 days he died o f high fever, the statement made by him is not admissible under Sec. 32(1). (3) Statement must relate to the cause of bis death or the circumstances of the transaction which resulted in bis death —i f the statement made by the deceased does not relate to his death, but to the death o f another person, it is not relevant. For example, where the wife made a statement that her husband is killed by Z and then she committed the suicide. The circumstances o f transaction resulting in death must bear proximate relation to the cause o f death or actual occurrence. Thus, statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, would each to them be circumstance o f the transaction. In Pakala Narayana Swami v Emperor (AIR 1939 PC 47), the statement made by the deceased to his wife that he was going to the accused to collect money from him (the accused being indebted to the deceased), was held to be admissible under Sec. 32(1). vl^Tn Sharda Birdichand Sharda v State of Maharashtra (AIR 1984 SC 1622), a married woman had been writing to her parents and other relatives about her critical condition at the hands o f her in-laws. She lost her life some four months Igter. Her letters were held to be admissible as dying dcclaration. ^Hic court also pointed out that Sec. 32 (1) is applicable to cases o f ‘suicide* also. Thus, the statements made before a person has received any injury or before the cause o f death has arisen or before the deceased has any reason to anticipate o f being killed are relevant as dying 34. ‘A’, who was hit by bullet stated in the hospital in the presence of the Magistrate that ‘B’ had fired at him. But *A’ did not die of this injury. Is the statement of ‘A* admissible in evidence against ‘B’? Can it be of any other use? [UP. PCS (J) 1986/1991/2001^[Delhi J.S. 1984\ 103.

In which of the following cases, a confession could be said to be made in police custody under Sec. 26: (a) While the accused being carried on a tonga was left alone by the policeman in the custody of the tonga-driver and he told of his criminality to the tonga driver. (b) Where the accused was taken to a doctor for treatm ent, the policeman standing outside at the door, the accused confessed to the doctor. (c) A confession made to a person, while in police custody, overheard by a police officer. (d) All of the above.

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declarations, but such statements should have a direct relation to the cause or occasion o f death. (4) The cause o f death must be in question - The declaration under Sec 32(1) must relate to the death of the declarant. In a case, A and five other persons were charged with having committed a dacoity in a village. A, who was seriously wounded while being arrested, made before his death a dying declaration as to how the dacoity was- committed and who had taken part in it Held that declaration is n o t admissible in evidence. -

*

(5)

•

»

•

.

The statement must be complete and consistent - If the deceased fails to complete the main sentence (as tor instance, the genesis or motive for the crime), a dying declaration would be unreliable. However, if the deceased has narrated the full story, but fails to answrer the last formal question as to “what more he wanted to say”, the declaration can be relied upon [Kusa v State o f Orissa (1980) 2 SCC 207]. A dying declaration ought not to be rejected because it does not contain details or suffers from minor inconsistencies. Merely because it is a brief statement, it is not to be discharged (Oqa v State of Bihar AIR 1979 SC 1505). Where the bride recorded two declarations, one to a police officer and other to a magistrate, they being similar in material factors, evidence accepted though minor discrepancies were there. In Kamla v State of Punjab (AIR 1993 SC 374), four dying declarations were made by the deceased. One o f them indicated the incident as an accident. The accused (mother-in-law o f the deceased) had been convicted on the basis o f another declaration implicating her. There were glaring inconsistencies as far as naming the culprit was concerned. Held that the conviction cannot be based upon such declarations. (6) Declarant must be competent as a witness - A dying declaration of a child is inadmissible. (7) Other points - Wliere the injured person was unconscious, dying declaration should be rejected. Where for some unexplained reasons the person who noted down (scribe) the statement was not produced, the declaration was not accepted as an evidence (Govind Narain v State of Rajasthan AIR 1993 SC 2457). Where there are more than one declarations, the one first in point o f time should be preferred (Mohan Lai v State of Maharashtra AIR 1982 SC 839). Objective Questions (Multiple Choice)

104.

105.

What Is not the necessary Ingredient for attracting the provisions of Sec. 27 of the Evidence Act? (a) The person must be accused of an offence. (b) Male or female. (c) He should give information. (d) Discovery of any fact in consequence of information. Under Sec. 27 of the Evidence Act, the ‘discovery of fact' Includes a (a) (b) (c) (d)

the object found. the place from which it is produced. the knowledge of the accused as to its existence. all of the above. (De/?i/ J.S. 2002]

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(8)

FIR as dying declaration - Where an injured person lodged the F.I.R. and then died, it was held to be relevant as a dying declaration \K Ramachand Reddy v Public Prosecutor (1976) 3 SCC 104]. A report made by the deceased relating as to the cause o f his death or as to any of the circumstances o f the transaction which resulted in his death shall be relevant as dying declaration35 (Alabmood llahi v State o f U.P., 1990 CrLJ 885). Similarly, a ‘complaint' made to police could be taken as a dying declaration \]ai Prakash v State of Haryana, 1999 CrLJ 837 (SC)]. A dying declaration recorded by police alone is relevant under Sec 32 (1), however, it is better to leave such a statement out o f consideration unless the prosecution satisfies the court as to why it was not recorded by a magistrate or a doctor (Laksbmi v Om Prakasb AIR 2001 SC 2383). Only because certain names were included in F.I.R but were not mentioned in dying declaration docs not detract from the value o f dying declaration and would not by itself prove the falsity of the declaration. Evidentiary Value o f Dying Declaration

There is no rule o f law that a dying declaration should not be acted upon unless corroborated. But, ordinarily, it is not considered safe to convict an accused person only on the basis o f it: (1) It is a fxarsay evidence, not made on oath and its veracity cannot be tested by cross-examination in the court. (2) The maker of such a statement might be mentally and physically in a state of confision. (3) Very often, the dying man takes that last opportunity to implicate all his enemies. (4) In weighing the evidence o f dying declaration, various factors or circumstances should be taken into consideration: (a) Nature o f its content, consistency o f statements made at different times; (b) Capacity to remember facts; opportunity o f dying man for observation viz. availability of light if crime done at night, to identify assailant. (c) Proximity o f time between it and the accident; whether the statement made at the earliest opportunity and was not the result o f any tutoring 35. ‘A’ comes to the police station and lodges First Information Report that ‘B* has beaten him and has threatened to kill him. After two days, ‘A* is murdered. ‘B* is arrested and prosecuted for the offence of murdering ‘A*. Decide whether the F.I.R. may be admitted as dying declaration? [U.P. PCS (J) 1997\ 106.

Sec. 27 applies: (a) To discovery of some fact which the police had not previously learnt from other sources and was first derived from the information given by the accused. (b) When the person giving information is an accused and is in police custody. (c) Both (a) and (b) are correct. (d) Both (a) and (b) are incorrect. 107. Under Sec. 27: (a) The whole statement is admissible. (b) Only that portion which distinctly relates to the discovery is admissible. (c) Statements made by the accused in connection with an investigation in some other case which lead to the discovery of a fact are also relevant. (d) Both (b) and (c).

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or prom pting by interested parties (relatives). Thus, the opportunity to consult other persons is an important factor. In a wife burning case, the wife remained alive for about 8 days after receiving burn injuries, but did n o t tell to any body visiting her in the hospital as to how she came to receive the burns. When her uncle visited her she stated that her husband had set her on fire. Held that statement seemed to have been tutored by the uncle (State of Assam v M . Ahmed AIR 1983 SC 274). However, the mere presence of relatives is not in itself sufficient to show that the declarant was tutored. Thus, it is necessary that the dying declaration must be subjected to a close scrutiny (‘proved beyond reasonable doubt5) in respect of all the relevant circumstances of the case. The declaration must be true and voluntary. In Khusbal Rao v State of Bombay (AIR 1958 SC 22), the Supreme Court laid down the following principles: (i) There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A true and voluntary declaration needs no corroboration. (ii) A dying declaration is not a weaker kind of evidence than any other piece o f evidence. (iii) A dying declaration cannot be equated with a confession or evidence o f approver, as it may not come from a tainted source. (iv) Necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court in a particular case come to the conclusion that a particular declaration is not free from infirmities. (v) A dying declaration recorded by a competent Magistrate in a proper manner in the form of questions and answers, and in the words o f the maker as far as practicable stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and character. In a very recent judgment (HT, Aug. 28, 2002), a 5-Judge Constitution Bench of the Supreme Court ruled that a ‘Voluntary and truthful” dying declaration without a doctor’s endorsement that the victim was mentally fit to make the statement could

Objective Questions (Multiple Clioice)

108.

Mark the Incorrect statement: (a) It is not necessary under Sec. 27 that the portion of statement which leads to discovery of facts amounts to confession. (b) It is irrelevant under Sec. 27 that the statement was obtained by inducement or threat. (c) Facts discovered in consequence of a joint information are n o t. admissible under Sec. 27 and cannot be used against any of the accused person. (d) Under Sec. 27, information could be given to the Magistrate also.

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be the basis for convicting an accused. A certification by a doctor is essentially a rule o f caution. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state o f mind. 3 2 (2): S ta te m e n ts Made in C ourse o f Business

Sec. 32 (2) declares relevant statements made by a person in the ordinary course o f business and in particular when it consists o f an entry/memorandum in books; or in the discharge o f .professional duty; or acknowledgement o f the receipt o f an) property; or o f the date o f a letter/docum ent usually written or^igned by him. Where the question is as to a person’s date o f birth, an entry in the diary of a deceased surgeon regularly kept by him stating that on a certain date he attended that person’s mother and delivered her o f a son is relevant [Must, (b). Sec. 32]. Similarly, where the question is whether a person was in Calcutta on a given date, entries in the diary o f a deceased solicitor (regularly kept by him) that he attended that person at a place in Calcutta is relevant [Must. (c)]. Must, (g) reads: The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant. S ec. 32 (3): S ta te m e n ts A gainst Interest o f Maker

T Jn d cr Sec. 32 (3), “declarations against interest” include statements against the pecuniary or proprietary interest o f the person making it, or when it would have exposed him to a criminal prosecution or suit for damages. The question is whether rent was paid to A for certain land. A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact [Must. (e)]. The question is whether A and B were legally married. The statement o f a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant [Must. (f)]. Sec. 32 (3) is based on the ground that what a person says against his own interests is very likely to be true. Thus, a statement made by a deceased in a deed, to the effect that he is governed by the Mitakashara law, is against his proprietary interest and admissible. A statement by a landlord who was dead, that there was a tenant on the land, was a statement against his proprietary interest and was held admissible.

109.

In a case under Sec. 27, the accused stated to the police: Ml have burled the property stolen by me In the field. I will show It”. The Inadmissible part of this statement Is: (a) “I have buried the property in my field." (b) "Stolen by me". (c) "I will show it". (d) There is no inadmissible part in the statement. 110. A relevant confession will become Irrelevant when: (a) Made to a police officer. (b) Made under a promise of secrecy. (c) When the accused was drunk. (d) In consequence of a deception practiced on the accused. [M.P. CJ. (Prelim.) 1999]

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Sec. 32 (4): D eclaration as to Public Rights

Sec. 32 (4) deals with declarations of deceased persons as to public right or custom, or matters o f general interest It is necessary that he made the declaration before any controversy as to such right, custom or matter had arisen. If the statement is regarding a private right, it cannot be admitted under this clause. The person making the declaration should be a person of competent knowledge. Must. ® to Sec 32 reads: The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact Sec. 32 (5) & (6): D eclaration as to Relationship or Pedigree

Sec. 32 (5) provides that a statement will be relevant when it relates to the existence of any relationship by blood, marriage or adoption as to whose relationship the maker had special means of knowledge and was made when before the question is dispute arose (i.e. ante litem mortem and not post litem mortem). Thus, the statements made by deceased members of a family (in a pedigree or horoscope) are admissible in evidence if they are made before there was anything to throw doubt upon them. Illust. (k) to Sec 32 reads: The question is, whether A, who is dead, was the father o f B. A statement by A that B was his own son, is a relevant fact. Similarly, when the question was whether a certain person was the legitimate child, declaration by hjs deceased father and mother that he was bom before marriage, was held to be admissible. While Sec. 32 (5) refers to statement relating to the existence o f relationship between any person (living or dead), Sec. 32 (6) is concerned with deceased persons only. Further, while under Sec. 32 (5), the evidence is the declaration of a person who is deceased or whose attendance cannot be secured; under Sec. 32 (6), the evidence is that o f concrete things and is always written e.g. will or deed, tombstone, family pedigree/ portrait, coffin plates, etc. Illust. (1) reads: The question is, what was the date of birth of A. A letter from AJs deceased father to a friend, announcing the birth of A on a given day, is a relevant fact. Illust. (m) reads: The question is, whether, and when, A su}d B were

O bjective Q u estio n s (Multiple Choice)

11 1 .

A confession: (a) (b) (c) (d)

112.

Is considered the best and most conclusive evidence. If voluntarily and truthfully made, is an efficacious proof of guilt May not always be true. It would be quite safe to base a conviction for murder on a confession by itself. Confession of co-accused Is admissible under which section of the Evidence Act? (a) Sec. 30.

(b) Sec. 31. (c) Sec. 32. (d) Sec. 33.

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married. An entry in a memorandum book by C (B’s deceased father) of B’s marriage with A on a given date, is a relevant fact. Sec. 32 (7): Statem ents in Documents as to Custom or Right

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

Sec. 32 (8): Statem ent of Several Persons Expressing Feelings

A

statement is relevant if it was made by a number of persons and expressed

feelings or impression on their part relevant to the matter in question. This section may be compared with Sec. 14, which deals with expression of feelings by an individual, lllust. (n) to Sec. 32 reads: A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved. SEC. 33: Relevancy of Evidence in Prior Judicial Proceedings

■ E vidence given by a witness in a judicial proceeding or before any authorized person, is relevant for the purpose of proving, in a subsequent judicial proceeding 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 out of the way by the adverse party, or cannot be produced without unreasonable delay or expense. Provided that the proceeding was between the same parties; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.” Explanation. A criminal trial or enquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. Evidence of deposition in former trials is admissible, as it forms an exception to the hearsay rule. Sometimes it so happens that a person who has personal knowledge of the facts of a case, did appear before a court and his testimony was 113. What Is not necessary for the confession of a co-accused under Sec. 30: (a) All accused should be tried jointly. (b) Trial should be for the same offence or offences. (c) Statement of the co-accused must amount to confession. (d) It is not necessary that the confession made by a co-accused affect himself. 114. In which of the following cases, a statement made by the accused could be considered under Sec. 30: (a) A and B are jointly tried for C’s murder. It is proved that A said: "B and I murdered C”. (b) A is on trial for C’s murder. There is evidence to show that C was murdered by A and B, and that B said: "A and I murdered C”. (c) Both (a) and (b).

(d) None of the above.

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71

recorded, but at a later stage of the same proceeding or in a subsequent proceeding, he is not available as a witness; in such cases Sec. 33 applies. The section will apply, for example, when an ex parte decree is set aside and a new trial is ordered.

STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES SEC. 34: Entries in Books of Account when Relevant

“Entries in books of account, includingthose maintainedinanelectronic form, regularly kept in the course of business are relevant, whenever they refer to a matter into which the Court has to enquire; but such statements are not alone sufficient evidence to charge any person with liability.” Illustration: A sues B for Rs. 1,000 and show's entries in his account book 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. Entries in the diary (“Jain Hawala Diary Case”) showing certain payments made to a political leader were not admitted as evidence. The diary showed no dates on which the payments were supposed to have been made. Such diary cannot be regarded as a book maintained in the regular course of business [L.K Advatri v CBI, 1997 CrLJ 2556 (Del)]. Entries, even if relevant, are only corroborative evidence Independent evidence, like the evidence of a transaction which brought about the entry, as to the trustworthiness of the entry would be necessary to fasten anybody with liability [CBI v V C. ShuAla (1998) 3 $CC 410], SEC. 35: Relevancy of Entries in Public/ Electronic Record

“An entry in any public or other official book/register/record, or anelectronic 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 especially enjoined by the law of the country in which such book, record, etc. is kept), is itself a relevant fact.”

O bjective Q u estion s (Multiple Choice)

115. “In criminal cases, when the confession of a co-accused Is being tendered In evidence against another accused by the prosecution, and the other evidences on record fall to prove the prosecution then the court should acquit such accused.” In which case it was laid down so? (a) (b) (c) (d)

Md. Abdul Hafeez v State. Haricharan Kurmi v State of Bihar. Mangal Singh v Emperor. None of the above.

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Sec. 35 is based upon the principle that public records maintained in the perform ance o f official duties must carry a prima facie evidentiary value o f their correctness. Thus, a municipal record o f a person’s date o f birth or death is relevant to prove the date o f birth or death o f person concerned. There is, however, no presum ption that such entries reflect only the truth. Though school register is relevant for showing date o f birth, but in the absence of the material on the basis o f which the entry was made, it would not be o f much evidentiary value (Birad M ai Singhvi v. A tiand Pnrohit AIR 1988 SC 1976). A statement o f age in the pleadings of a party has been regarded as an evidence o f his age. SEC . 36: R elevancy o f S ta te m e n ts in Maps, Charts, etc.

A c co rd in g to Sec. 36, statements in maps, plans or charts which are meant for public sale or which are prepared with the authority o f the State do carry prima facie evidentiary value o f the truth o f their contents and, therefore, can be offered in evidence whenever the facts stated in them are in issue or are otherwise relevant. SEC. 37: Relevancy o f S ta te m e n ts in A cts o f Parliam ent o f England or India

“ S tatem ents o f any facts o f a public nature (as to the existence o f which the Court has to form an opinion) made in a recital contained in any Act o f Parliament o f the U.K. or in any Central or Provincial Act or a State Act or in a Government Notification in the Official Gazette are relevant facts.” The Gazetted statements are the best evidence o f facts stated in the Gazette and are entidcd to due consideration but should not be considered as conclusive in respect o f matters requiring judicial adjudication [Vimal Bai v Hira/al Gupta (1990) 2 SCC 22], SEC. 38: Relevancy o f S ta te m e n ts as to Law in Law Books o f a Foreign C ountry

V(7hen the court has to form an opinion as to law o f any country, any statement o f the law o f that country contained in a book printed or published under the authority o f the Government o f such country and any report o f a ruling o f the courts o f such country, is relevant.

116.

Mark the Incorrect statement: (a) The confession of co-accused is not “evidence", as it is not recorded on oath, nor it is given in the presence of the accused and nor its truth can be tested by cross-examination. (b) It is an evidence of a very weak type. (c) The confession of co-accused may only be taken into consideration along with other evidence in the case, and it cannot alone form the basis of a conviction. (d) Confession of one co-accused can be used for the purpose of corroborating the confession of another co-accused.

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HOW MUCH OF A STATEMENT IS TO BE PROVED SEC. 39: W h a t Evidence to be given when Statem ents forms Part of a C on versation , D ocu m en t, etc.

A ccording to Sec. 39, where a long statement/conversation/document/ electronic record/book/series o f letters or papers, is relevant to any proceeding the court may in its discretion require the production of only so much of the statem ent/ conversation/document, etc. as is necessary for a hill understanding of the statement in the particular case. The section has been substituted by the Information Technology Act, 2000 so as to include ‘electronic records’ also.

JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT T h e general principle o f law is that judgments whether previous or subsequent are not relevant in any case or proceeding. Every case has to be decided upon its own facts as they exist between the parties to it and not by reference to the judgments in other cases. A judgment in the criminal trial is not relevant to the civil case except for the purpose o f showing the fact of trial and conviction for it. Thus, in a suit for damages for damaging the plaintiff’s trees, the fact that the defendant was acquitted on the same charge in a criminal prosecution was not admitted in evidence. For the same reason, a civil judgment is not relevant to a criminal trial though arising out o f the same facts. For example, a judgment in a civil suit for defamation is not relevant to a criminal prosecution based upon the same defamatory statement. If an action is started against a manufacturer for supplying defective goods and the court holds the manufacturer to be not liable. Subsequently, another person starts an action against the same manufacturer, for supplying the same kind of defective goods. The previous judgment is not relevant to the subsequent case.

O bjective Q u estio n s (Multiple Choice)

117.

118.

When a person, having once recorded a confession which Is relevant, goes back upon It at the trial, saying either that he never confessed or that he wrongly confessed or confessed under pressure, that Is called a: (a) Truncated confession. (b) Retracted confession. (c) Extra-judicial confession. (d) None of the above. A retracted confession (a) may form the legal basis of a conviction if the court is satisfied that it was true and voluntarily made. (b) requires a general corroboration from independent evidence. (c) both (a) and (b) are correct. (dl onlv (b) is correct.

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Judgments are, however, relevant facts of great importance. Thus, to the general principle that judgments are not relevant, the Act recognizes a few exceptions (Secs. 40-43). SEC. 40: Previous Judgment Relevant to Bar a Second Suit or Trial

U n d e r Sec. 40, ‘the existence of a judgment, decree, or order, is a relevant fact, if it by law has the effect o f preventing any court from taking cognizance o f a suit or holding a trial.’ It is intended to include all cases in which a general law relating to res judicata inter partes applies. Res judicata means a thing upon which the court has exercised its judicial mind and no new action can be brought on the same cause of action and between the same parties (Sec. 11, C.P.C.). However, principle of estoppel or resjudicata does not apply when they would contravene some statutory direction. This is something which cannot be overridden or defeated by a previous judgment between the parties [P.G. Ushwarappa v M. Rudrappa (1996) 6 SCC 96]. Similarly, the Criminal Procedure Code bars a second trial o f a person once tried and convicted {autrefois convict) or acquitted (autrefois acquit). Thus, the judgment by which he was acquitted or convicted will be relevant to every case or proceeding in which he is charged with the same offence. SEC. 41: Relevancy o f Certain Judgments in Probate, etc. Jurisdiction

“A final judgment, order or decree of a court exercising probate (relating to will), matrimonial, admiralty (war claims) or insolvency jurisdiction which confers upon or takes away from any person any legal character, or declares any person to be entitled to any such character or any specific tiling absolutely, is relevant.” Sec. 41 deals with judgments in rem i.e. a kind of declaration about the status of a person (e.g. that he is an insolvent or married or not), and is effective against every body whether he was a party to the proceeding or no t A judgment in personam, on the other hand, means a judgment between the parties (e.g. in a tort or contract action), which binds only the parties and is not relevant in any subsequent case or proceeding. 36.

W h e th e r a ju d g m e n t in a p re v io u s c a s e is a d m is s ib le a s a n e v id e n c e m a s u b s e q u e n t c a s e ? I f so , fo r w h a t p u r p o s e ?

119.

[U .P. P C S Q ) 1999[

Mark the Incorrect statement: (a) Every confession is an admission, but every admission is not a confession. (b) A confession is only a species of admission. (c) Confessions find place in civil as well as criminal proceedings. (d) Admissions are generally used in civil proceedings, yet they may also be used in criminal proceedings. 120. Mark the Incorrect statement: (a) An admission made to a policeman is irrelevant. (b) A statement may be irrelevant as a confession but it may be relevant as an admission. (c) An admission is not a conclusive proof of the fact admitted. (d) A confession is considered a satisfactory proof of the guilt of the accused.

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Sec. 41 further lays down that such judgment is conclusive proof - that any legal character, which it confers, accrued at the time when such judgment came into operation; (ii) that any legal character to which it declares ar *person to be entided or not, accrued or ceased at the time mentioned in the judgrn (m) that any thing to which it declares a person to be entided was that person’s property at the time at which the judgment declares it to be his. SEC. 42: R elevancy and Effect of Judgments, e tc. O ther than those m entioned in S e c . 41

“Judgm ents, orders or decrees other than those mentioned in Sec. 41 are relevant if they relate to matters o f a public nature relevant to the inquiry; but such judgments, etc. are not conclusive proof o f that which they state.” Judgments on such matters are relevant to every case or proceeding in which the matter is again in question, but shall not be conclusive o f the matter. Illustration-. A sues B for trespass on his land; B alleges the existence o f a public right o f way over the land. The existence o f a decree in favour o f the defendant, in a suit by A against C for a trespass on the same land in which C alleged the existence o f the same right o f way, is relevant but it is not conclusive proof that the right o f way exists. SEC. 43: Judgm ents, e tc . O ther than those m entioned in Secs. 40-42 when R elevant

Jud g m en ts, orders or decrees, other than those mentioned in Secs. 40, 41 and 42, are irrelevant, unless the existence of such judgment, etc., is a fact in issue, or is relevant under some other provision o f this Act.” Evidence can be given of a judgment when the existence o f the judgment is itself a fact in issue or is fact otherwise relevant to the case. Thus, if a person is murdered in consequence o f a judgment, the judgment being a cause or motive of the murder, will be a relevant fact. The illustrations appended to Sec. 43 amply show that the existence o f a judgment may become relevant under any of the provisions relating to relevancy (Secs. 6-55). O b je ctiv e QuemHoxta (Multiple Choice)

121.

1 22.

'N ecessity/ convenience rule’ as to the admissibility of evidence, contained In Sec. 32, Is applicable when the maker of a statement: (a) Is dead or cannot be found. (b) Has become incapable of giving evidence. (c) Can be found but his attendance cannot be procured without unreasonable delay or expense. (d) All are correct. The maxim - Nemo morlturus presumuntur menfrf Is applicable to: (a) (b) (c) (d)

Sec. Sec. Sec. Sec.

32 (1). 32 (2). 32(3). 32 (4).

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(a) A prosecutes B for adultery with C, A*s wife. B denies that C is A*s wife, but the court convicts B o f adultery. Afterwards, C is prosecuted for bigamy in marrying B during A*s lifetime. C says that she never was A*s wife. Here, die judgment against B is irrelevant as against C.37 (b) A prosecutes B for stealing a cow from him. B is convicted. A, afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant. (c) A has obtained a decree for the possession o f land against B. C, B*s son, murders A in consequence. Here, the existence o f the judgment is relevant as showing motive for the crime. (d) A is charged with theft and with having been previously convicted o f theft. The previous conviction is relevant as a fact in issue. SEC. 44: Fraud or Collusion in O btaining Judgm ent/ Incom petency o f C ourt (Diminishing o f the Evidentiary Value of Judgments)

“A n y party to a suit or other proceeding may show that any judgment, order or decree, relevant under Secs. 40-42 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.” The existence o f a judgment over a matter which is again in question is a satisfactory piece o f evidence, through, o f course, nothing is said about its evidentiary value in the Evidence Act. The Act only provides that the value o f a judgment may be demolished by showing that it was delivered by a court o f incompetent jurisdiction, or it was obtained by fraud or collusion. Such a judgment does not have the effect o f resjudicata. A judgment obtained by ‘collusion* means that there was no cause o f action between the parties and by collusion o f the parties a cause o f action was feigned thus enabling the court to pass its judgment.

37.

A q u e s t io n b a s e d o n th is illu s tr a tio n .

123.

124.

[U.P. PCS (J) 1988\

A dying declaration, under Sec. 32 (1) (a) must be made by a person as to the cause of his own death. (b) is relevant whether the person who made them was or was not, at the time when they were made, under expectation of death. (c) is relevant whatever may be the nature of the proceeding in which the cause of his death comes into question. (d) all are correct. If the person making the dying declaration chances to live, his statement (a) will be inadmissible as a ‘dying declaration’. (b) can be used to corroborate or contradict his testimony. (c) Both (a) and (b) are correct. (d) Both (a) and (b) are incorrect.

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O P IN IO N OF THIRD PERSONS WHEN RELEVANT T h e term ‘opinion* means something more than mere relating of gossip or of hearsay; it means judgment or belief, that is a belief or conviction resulting from what one thinks o n a particular question. What a person thinks in respect to the existence or non-existence o f a fact is opinion, and whatever is presented to the senses o f a witness and o f which he receives direct knowledge without any process o f thinking and reasoning is not opinion. For example, the question is whether a certain injury was caused by a spear. A states that he saw the accused causing the injury by a spear. This is not A*s opinion. But, if a doctor, who did not see the injury being caused, says that he thinks that the injury was caused by a spear, it is his opinion. What one sees, hears, feels by touch, and knows is not opinion and on the contrary what is the conclusion o f an individual is his opinion. T he opinions o r beliefs o f third persons are, as a general rule, irrelevant, and therefore, inadmissible. Witnesses are to state the facts only Le. what they themselves saw or heard, etc. It is the function of the judge or jury to form their own conclusion o r opinion on the facts stated. Thus, the opinion or the impression of a witness that it appeared to him from the conduct o f a m ob that they had collected for an unlawful purpose is inadmissible to prove the object o f the assembly. The witnesses are generally interested in the parties to the litigation and if their opinion were admissible, grave injustice would be caused. There are, however, cases in which the court is not in a position to form a correct opinion (e.g. when the question involved is beyond the range o f common experience or common knowledge), without the help of persons who have acquired special skill or experience in a particular subject. In these cases, the rule is relaxed, and expert evidence is admitted to enable the court to come to a proper decision. The rule admitting ‘expert evidence* is, thus, founded on necessity.

Objective QtaemtiaMut (Multiple Choice)

125.

126.

A dying declaration Is admissible In: (a) Civil proceedings only. (b) Criminal proceedings omy. (c) Civil as well as criminal proceedings. (d) Marital proceedings only. Telling his wife that P's wife had called him to receive payments due to him, K leaves his house. After two days, his dismembered body Is found In a trunk. In P's trial for murder of K, the statement made by K to his wife is: (a) Inadmissible. (b) Partly admissible. (c) Inadmissible as it does not directly relates to K’s death. (d) Admissible as it relates to the circumstance of the transaction which resulted in K’s death. [M.P. CJ. (Prelim.) 1996]

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SE C . 45: O pinion o f E xperts38

“VC^hen the court has to form an opinion upon a point o f foreign law or of science or art, or as to identity o f handwriting or finger impressions, the opinions upon that p o in t o f persons specially skilled in such foreign law, science or art or in questions as to identity o f handwriting or finger impressions, are relevant facts. Such persons are called experts”. Illustrations

(a) The question is, whether the death o f A was caused by poison. The opinion o f 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 o f unsoundness o f mind, incapable o f knowing the nature o f act, o r that he was doing what was wrong or contrary to law. The opinion of experts upon the question o f unsoundness of A*s mind, are relevant. (c) The question is whether certain document was written by A. Another docum ent is produced which is proved or admitted to have been written by A. The opinions o f experts on the question whether the two documents were written by the same person or by different persons, are relevant. Sec. 45 permits only the opinions o f an expert to be cited in evidence. An ‘expert* witness is one who has devoted time and study to a special branch o f learning, and thus is specially skilled on those points on which he is asked to state his opinion. His evidence on such points is admissible to enable the court to come to a satisfactory conclusion. An experienced police officer may be permitted to give ‘expert* evidence as to how an accident may have occurred. An expert opinion will not be read into evidence unless he is examined before the court and is subjected to cross-examination. 38 .

W h o is a n e x p e r t ? W h e n a r e th e o p i n io n s o f e x p e r t s re le v a n t? W h a t a r e th e d if f e r e n c e s b e tw e e n a n e x p e r t a n d a n o r d i n a r y w itn e s s ? A n a ly z e th e e v id e n tia r y v a lu e o f o p i n io n o f e x p e r t s .

[U .P . P C S (J ) 1 9 8 2 /1 9 8 5 /1 9 9 7 \

W ill t h e fo llo w in g e x p e r t e v id e n c e b e a d m i t te d : E v id e n c e o f a n e x p e r t to g iv e h is o p in io n u p o n th e c o n s tru c tio n o f a d o c u m e n t? W rite a s h o r t n o t e o n : E x p e r t w i t n e s s .

[U P . P C S (J ) 1982] [ D e lh i J .S . 1982]

C o m m e n t : “ H a n d w r i t i n g o f a p e r s o n c a n a ls o b e p r o v e d b y a p e r s o n w h o is q u a li f i e d to e x p r e s s a n o p i n io n .”

[ D e lh i J .S . 1999]

127.

What Is not essential In relation to a dying declaration made by a person? (a) Statement in any form should be relevant. (b) It must relate to the cause of his death or the circumstances of the transaction which resulted in his death. (c) The statem ent may not be complete and consistent. (d) Declarant must be competent as a witness. 128. To be admissible, a dying declaration: (a)

M ust be m ade before a M agistrate.

(b) Must be made before a Police officer. (c) Must be made before a Doctor. (d) May be made to any person - a doctor, a magistrate, friend or near relative, a police officer.

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difference between Experts’ testimony and of Ordinary Witness - An ordinary witness must depose to w hat actually took place. An expert’s evidence is not confined to what actually took place, but covers his opinions on facts (e.g. a medical man may give his opinion as to the cause of a person’s death). An expert can refer to and rely upon experiments conducted by him in the absence of the other party. An expert may quote passages from well-known textbooks on the subject. An expert may state facts relating to other cases in pari materia similar to the case under investigation. Subjects on W hich E xperts Can Give Opinion

The subjects on w hom an expert is competent to testify are: foreign law, matters of science, questions o f art, identity of handwriting, or of finger impressions. The words ‘science* or ‘art* include all subjects on which the course of special study or experience is necessary to the formation of opinion. The matter in question must be o f technical nature, for no expert can be permitted to speak on a matter with which the judge may be supposed to be equally well acquainted. T he Supreme C ourt has held that the opinion of a person that a particular letter was typed on a particular typewriter is not admissible, as it does not fall within Sec 45 (Hannmantv State of U.P. AIR 1952 SC 343). The decision has been criticized and it has been suggested that “the claim of experts that the identity o f machine may be established by proving the identity of defects or peculiarities which it impresses on paper should have been considered’*. Proof o f Age*9 - A doctor’s opinion as to age of a person based on his or her height, weight and teeth does not amount to legal proof o f age of that person. But such evidence is relevant. An opinion based on the X-ray plate examination has been held to be admissible (Ram Swaroop v State, 1989 CrLJ 2435 All). However, in Anita v A t aI Bihari, 1993 CrLJ 549 (M.P.), held that in ascertaining date o f birth, opinion o f radiologist cannot be preferred over the entry in the register of births and deaths maintained under the provisions of an Act.

39.

I n a c a s e , t h e d a te o f b i r th o f th e a c c u s e d is in q u e s tio n . W h e th e r th is m a tte r m a y b e r e f e r r e d to a ra d io lo g is t a s a n e x p e rt u n d e r S ec. 45. G ive r e a s o n s .

[Raj.J.S. 1999[ O b jective Q u estio n s (Multiple Choice)

129.

1 30.

A dying declaration: (a) Always requires corroboration from independent evidence. (b) Can be equated with a confession or evidence of approver. (c) Both (a) and (b) are correct. (d) Both (a) and (b) are incorrect. Where the question Is as to a person’s date of birth, an entry In the diary of a deceased surgeon regularly kept by him stating that on a certain date he attended that person's mother and delivered her of a son Is: (a) (b) (c) (d)

Relevant. Irrelevant. Not relevant under Sec. 32. None of the above.

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In a case o f kidnapping o f a girl, the medical evidence showed her age between 17 and 18 years and the documentary evidence showed her to be above 18 years. Held that the medical evidence was not a conclusive proof o f age [S.K. BelaI v State, 1994 CrLJ 467 (Ori)]. Value o f E xp ert O pinion

T he Evidence Act only provides about the relevancy o f expert opinion but gives no guidance as to its value. It is often said that there cannot be any more unsatisfactory evidence than that o f an expert. The value o f expert opinion suffers from various drawbacks'. There is the danger o f error or deliberate falsehood. “These privileged persons might be half blind, incompetent or even corrupt.” His evidence is after all opinion and “human judgment is fallible”. They are likely to be unconsciously prejudiced in favour o f the side which calls them (witnesses “retained and paid” to support by their evidence a certain view). It would be highly unsafe to convict a person on the sole testimony o f an expert. The reliability o f such evidence has, therefore, to be tested the same way in which any other piece o f evidence is tested. The Supreme Court has laid down following principles in this regard (Murari l^al v State of M.P. AIR 1980 SC 531): (i) There is no rule o f law that the opinion evidence o f an expert must never be acted upon, unless substantially corroborated. In appropriate cases, corroboration must be sought. (ii) But, the approach should be one o f caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. (iii) The hazard in accepting the expert opinion, is not because experts are unreliable witnesses but because all human judgment is fallible. The science o f identification o f fingerprints has attained near perfection and the risk o f incorrect opinion is practically non-existent. The science o f identification o f handwriting is not so perfect and the risk is, therefore, higher. (iv) The opinion o f expert is relevant but not decisive or conclusive o f the matter. The court should not surrender its opinion to that o f the expert. An expert deposes and not decides. Medical opinion - Opinion o f medical officer cannot be taken as contradicting the positive evidence o f the witness o f the facts. Where the direct evidence about assault by a particular person is satisfactory and reliable, medical evidence cannot

131.

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 under: (a) (b) (c) (d)

Sec. Sec. Sec. Sec.

32 32 32 32

(2). (3). (4). (5).

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override that because the latter is hypothetical {Punjab Singh v State of Haryana AIR 1984 SC 1223). However, where the medical report differed from injuries described bv the witnesses, medical evidence should prevail (Amar Singh v State of Punjab AIR 1987 SC 726). Between the opinion o f two doctors, the opinion which supports direct evidence should be accepted {Piara Singh v State of Punjab AIR 1977 SC 221 A). Thus, in case o f any conflict between eye-evidence and the medical evidence the court will have to go by the evidence which inspires more confidence. In respect o f nature o f injuries and causes of death, most competent witness is the doctor examining the deceased and conducting post-mortem. Unless there is something inherendy defective, the court cannot substitute its opinion in place of the doctor’s {Mafabhai N . Raval v State of Gujarat AIR 1992 SC 2186). Where the doctor failed to give his opinion about the nature of injury, the court cannot substitute its opinion assuming the role o f an expert [Babloo v Statey 1995 CrLJ 3534 (M.P.)]. Value o f opinion o f handwriting exp ert - The opinion of an expert in writing is considered as the weakest and the least reliable evidence. It has been held that it is not safe to base conviction upon the opinion of writing expert alone. However, in Ram Narain v State of U.P. (AIR 1973 SC 2200), solely on the basis o f expert evidence the accused was convicted by the lower courts. The Supreme Court upheld the conviction. The Court said: “Both under Sec. 45 and Sec. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis o f familiarity resulting from frequent observation. In either case, the court m ust satisfy itself by such means as are open that the opinion may be acted upon. O ne such means is to apply its own observation to the admitted or proved writings, not become a handwriting expert but to verify the opinion of the witness.” The court held that if after comparison of disputed and admitted writings by court itself, it is considered safe to accept the opinion of expert, then the conclusion so arrived at cannot be attacked on special leave merely on the ground that comparison of handwriting is generally considered hazardous and inconclusive. In Murari L ai v State o f M.P. the Supreme Court observed that even if no handwriting expert is produced before the court, the court has the power to compare the handwriting itself and decide the matter. 40. Examine the admissibility of the evidence of a handwriting expert. [U .P. P C S

(J)

O b je c tiv e Q u e stio n s (Multiple Choice)

132.

A su es B for a libel expressed In a painted caricature exposed in a shop

window. The question is as to the similarity of the caricature and Its libelous character. The remarks of a crowd of spectators on these points may be proved undgr: (a) (b) (c) (d)

Sec. 32 Sec. 32 Sec. 32 Sec. 3 2

(4). (5). (6). (8).

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SEC. 46: Facts Bearing upon Opinion o f Experts

“F a c ts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions o f experts, when such opinions are relevant”. The effect o f the provision is that when the opinion o f an expert is relevant and has been cited, any fact which will either support his opinion or contradict it will also become relevant (Res inter alia acta). Thus, where the question is, whether A was poisoned by a certain poison; the fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms o f that poison, is relevant. SEC. 47: Opinion as to Handwriting w hen Relevant

A ccording to Sec. 47, when the court had to determine the question whether a document is written or signed by a certain person, the court can admit the opinion of a person who is acquainted with that person’s handwriting. The explanation attached to the section gives guidance as to who is considered to be acquainted with another’s handwriting. It includes a person: (i) who has seen that person write, or (ii) who has received documents written by that person in answer to documents written by himself or under his authority and addressed to that person, or (iii) who has in the ordinary course o f business, received documents written by that person or such documents are habitually submitted to him. Illustration - The question is, whether a given letter is in the handwriting o f A, a merchant in London. B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted tfic letters purporting to be written by A. The opinion o f B, C and D on the question whether the letter is in the handwriting o f A are relevant, though neither B, C nor D ever saw A write.41

41.

A q u e s t io n b a s e d o n th is illu s tra tio n .

133.

[R aj.J.S. 199I\

Regarding the relevancy of evidence In prior Judicial proceedings, under Sec. 33, which Is not an essential condition? (a) Proceeding should be between the same parties. (b) Adverse party in the first proceeding had the right and opportunity to cross-examine. (c) The questions in issue should be substantially the sam e in the first as in the second proceeding. (d) This provision is applicable only to civil proceedings.

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In \rakhruddin v State of M.P (AIR 1967 SC 1326), it was held that handwriting may be proved by evidence of a witness in whose presence the writing was done and this would be direct evidence and if it is available the evidence o f any other kind is rendered unnecessary. Modes o f Proving Handwriting42 The E vidence Act recognize the following modes o f proving handwriting:

(i) By the evidence o f the writer himself. (ii) By the opinion o f an expert (Sec. 45). (iii) By the evidence o f a person who is acquainted with the handwriting o f the person in question (Sec 47). (iv)

By the court itself comparing the handwriting (Sec 73).

S ec. 47A : O pinion as to Digital Signature when Relevant

W h en the court has to form an opinion as to the digital signature o f any person, the opinion o f the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact. SEC. 48: O pinion as to Existence o f Right or Custom

S ec 48 makes those opinions relevant which proves the existence of any general custom or right The right o f the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section (Also see Secs. 13 and 32 (4)]. SEC. 49: O pinion as to Usages, Tenets, etc.

Sec. 49 makes opinions of such persons relevant who have special means of knowledge regarding the usages and tenets o f a body of men or family, the constitution and i 42.

H o w is t h e d i s p u t e d h a n d w r itin g o f a p e r s o n p ro v e d ?

[UP. PCS (J) 1987\ [Raj.J.S. 1994\[D clhiJ.S. 1984\ O b je c tiv e Qtxcatiojna (Multiple Choice)

134.

135.

A sues B for Rs. 1,000 and shows entries In his account book showing B to be indebted to him to this amount. (a) The entries are relevant, but are not sufficient, without other evidence, to prove the debt. (b) The entries are relevant as well as sufficient to prove the debt. (c) The entries are irrelevant. (d) None of the above. Regarding the relevancy of entries in public records, under Sec. 35, which is not an essential condition? (a) Entries are to be made by a public servant. (b) Entries to be made in the discharge of his official duty. (c) Entry should be a public record. (d) All of the above.

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governm ent o f any religious or charitable foundation, and, die meaning o f words or terms used in particular districts or by particular classes of people. SEC. 50: O pinion on Relationship

S ec. 50 makes the opinion o f a person expressed by his conduct, who as a member o f the family or otherwise has special means o f knowledge as to the relationship o f one person to another, relevant. Illustrations', (a) - The question is, whether A and B, were married. The fact that they were usually received and treated by their friends as husband and wife is relevant. (b) The question is, whether A was the legitimate son o f B. The fact that A was always treated as such by members o f the family is relevant. Relationship includes relation by blood, marriage or adoption. It may be noted that under Sec. 32, which also contains provision for proving relationship, the statements o f dead persons arc relevant; while, under Sec. 50 the opinion o f a person alive is relevant. The opinion must have been expressed by conduct, and not merely by words or statements. It is very im portant to note that Evidence Act does not contain any express provision making evidence o f general reputation admissible as proof o f relationship. A was die father o f C and V is the father o f R as stated by witnesses was held not admissible under Sec 50. Proviso to Sec. 50 —It lays down that in the cases under Secs. 494, 495, 497 and 498 of IPC and a proceeding under the Indian Divorce Act, the evidence of marriage cannot be given by opinion of an expert. In diese cases, strict proof o f marriage is necessary Lc witnesses in whose presence the marriage was celebrated must be produced. SEC. 51: Grounds o f Opinion w hen Relevant

Sec. 51 provides that whenever the opinion o f a living person is relevant, the grounds on which his opinion is based shall also be relevant. An expert may give an account o f experiments performed by him for the purpose o f forming his opinion. The opinion of an expert by itself may be relevant, but would carry little weight with a court unless supported by a clear statement of what he noticed and upon what he based his opinion.

136.

Mark the Incorrect matching: (a) Relevancy of Statements in Maps, Charts: Sec. 36. (b) Relevancy of Statements in Acts of Parliament of England or India: Sec. 37. (c) Relevancy of Statements as to Law in Law Books of a Foreign Country: Sec. 38. (d) None of the above.

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CHARACTER WHEN RELEVANT T o what extent is the character, general reputation of a person relevant in civil or criminal proceedings has been made clear by Secs. 52-55. Character is “a combination of peculiar qualities impressed by nature or by the habit of the person, which distinguish him from others”. In respect o f the character of a party, two distinctions must be drawn, namely between the cases when the character is in issue and is not in issue and when the cause is civil or criminal. SEC. 52: In Civil C ases C haracter to Prove Conduct Imputed, Irrelevant

Sec. 52 lays down the broad general principle that “the evidence o f a party’s character cannot be given for the purpose o f showing that it renders the conduct imputed to him as probable or improbable”. Thus, a party cannot give evidence o f his good character for the purpose o f showing that it is improbable that he should be guilty o f the conduct imputed to him. For example, if a person is charged with negligent driving he cannot give evidence of the fact that his character and conduct has been such that he could not have been guilty o f negligence. T he reason is that the court has to try the case on the basis o f its facts for the purpose o f determining whether the defendant should be liable or not. The court has n o t to try the character o f the parties and the evidence o f character will not only prolong the proceedings but will also unnecessarily prejudice the mind o f the judge one way o r other. Further, in civil cases, the previous convictions o f the defendant are irrelevant. Sec. 52, however, also lays down that a fact, which is otherwise relevant, cannot be excluded from evidence only because it incidentally exposes or throws light upon a party’s character. This is an exception to the general principle laid in Sec. 52. The court may form its own conclusions as to the character o f a party’ to a suit as exhibited by the relevant facts proved in the case, and draw an inference that he might probably have been guilty o f the conduct imputed to him. Evidence can be given o f a party’s character when his character is itself a fact in issue. Where, for example, an action is brought for divorce on the ground o f cruelty; the cruel character o f defendant, being a fact in issue, the plaintiff can lead Objective Questions (Multiple Choice)

137.

The general principle of law Is that judgments whether previous or subsequent are not relevant In any case or proceeding. However, judgments are relevant In which of the following cases: (a) (b) (c) (d)

Judgments having the effect of res judicata. Judgments if they relate to matters of a public nature. When the existence of the judgment is itself a fact in issue. All of the above.

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evidence of it. The character of a female chastity has been received in evidence in action for breach of promise for marriage. SEC. 53: In Criminal Cases Previous Good Character Relevant Sec. 53 says, “in criminal cases, the fact that the person accused is of a good character is relevant”. Normally, we presume that a person of good character and reputation will not generally resort to any criminal act. Thus, goodness if proved, leads to presumption against the commission of a crime. Evidence of good character is always admissible. But in any case, the character evidence is a weak evidence; it cannot outweigh the positive evidence in regard to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favour of the accused (Bhagwan Swamp v State AIR 1965 SC 682). SEC. 54: Previous Bad Character Not Relevant, Except in Reply43 According to Sec. 54, “evidence may not be received regarding the badness of party’s character in criminal proceedings, unless evidence has been given that he has a good character, in which case it becomes relevant”. In other words, the prosecution cannot lead evidence of the bad character of accused as part of its original case. They can produce evidence of bad character only in reply to the accused showing his good character. Criminal cases also admit of certain exceptions. There are certain cases in which evidence of a prisoner’s bad character can be given: (1) To rebut prior evidence of good character (Sec. 54). (2) The character is itself a fact in issue (Explanation 1 to Sec. 54). For example, in a prosecution for rape, the bad character of prosecution (raped woman) may be a fact in issue for it may afford a defence to the accused. Under Sec. 110, Cr.P.C., a person is to be bound down if he is by habit a robber, a housebreaker, etc. 43.

In a trial for an offence, the p ro se cu tio n a d d u ce s evidence o f b a d c h a ra c te r o f the accu sed . T h e a cc u se d o bjects adm issibility o f p ro se cu tio n e vidence o n the g ro u n d th a t he has n o t given evidence o f his goo d character. D ecide. [U.P. P C S (J) 1997\

138. A prosecutes B for stealing a cow from him. B Is convicted. A, afterwards sues C for the cow, which B had sold to him before his conviction. The Judgment against B Is (a) (b) (c) (d)

139.

relevant as between A and C. irrelevant as between A and C. is without jurisdiction. is conclusive proof against C.

[M.P. CJ. {Prelim.) 1996]

What a person thinks In respect to the existence or non-existence of a fact Is called: (a) (b) (c) (d)

Opinion. Thought. Hearsay. Idea.

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(3) A previous conviction is relevant as evidence of bad character in criminal cases (Explanation 2 to Sec. 54). Under Sec 71, IPC if it is proved that a person is a previous convict he shall be sentenced to much longer term of imprisonment than would ordinarily have been awarded to him.43a SEC. 55: Character as Affecting Damages Sec. 55 says, “in civil cases the fact that the character of any person is such as to affect the amount o f damages which he ought to receive, is relevant”. The evidence of good or bad character of the defendant is irrelevant to damages. But the character of the plaintiff is relevant. In an action for damages, for seduction or rape or libel, evidence o f bad character o f the plaintiff is allowed, as it is likely to affect the damages that the plaintiff ought to receive. Explanation —It states that, the word “character” used in Secs. 52-55 includes both reputation and disposition; except as provided in Sec 54, evidence may be given only of general character and' not o f particular acts by which the character is shown. ‘Reputation’ means what is thought of a person by others and is constituted by public opinion. It may be noted that the evidence of those, who know the man and his reputation is admissible. Evidence of those who do not know the man but have heard o f the reputation (hearsay evidence) is not admissible. ‘Disposition’ implies one’s own individual opinion of another person’s character.

43a.

C o m m e n t: “A previous conviction is relevant as evidence o f b a d c h ara cte r.” [D elh i J .S . 1999[ Objective Q uestions

(Multiple Choice)

140. Opinion of expert* Is relevant under which section of the Evidence Act? (a) Sec. 41. (b) Sec. 43. (c) Sec. 44. (d) Sec. 45. 141. in which of the following cases, the opinion of experts Is not relevant? (a) A point of foreign law. (b) Matters of science or questions of art. (c) Handwriting or finger impressions. (d) A point of Indian law.

 

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PART II ON PROOF CHAPTER III FACTS WHICH NEED NOT BE PROVED [SECS. 56-58] T h e general rule is that all facts in issue and relevant facts must be proved by evidence, either oral or documentary. T o this rule, there are two exceptions: (a) facts judicially noticeable (Secs. 56-57), (b) facts admitted (Sec. 5S).44

SEC. 56: Facts Judicially Noticeable Need Not be Proved S e c. 56 reads: “N o fact o f which the court will take judicial notice need be proved”.

SEC. 57: Facts o f which Court Must take Judicial Notice S e c. 57 enumerates thirteen facts o f which the court is bound to take the judicial notice: (1) All laws in force in the territory o f India.443 (2) All Acts o f the British Parliament. (3) Articles o f War for the Indian Army, Navy or Air Force. (4) T he course o f proceedings o f the British Parliament, o f the Constituent A ssem bly o f India, and o f Parliament and Legislatures. (5) T he accession and the sign manual o f the sovereign o f U.K. and Ireland. (6) All seals o f which English courts take judicial notice; the seals o f all the courts in India, etc. and all the seals which a person is authorized to use by the Constitution or an A ct o f U.K. and India. (7) The accession to office, names, tides, functions, and signatures o f Gazetted officers (8) T he national flag o f every country recognized by the G overnm ent o f India. 44. 44a.

What facts need not be proved?

[U.P. P C S Q) 1988/2000\ [BiharJ.S. 1987\

H ow will you prove a Municipal bye-law?

142.

[D elhi J.S. 1984\1 4 2

In relation to proof of age: (a) Opinion of radiologist is relevant. (b) Entry in the register of births and deaths is relevant. (c) Opinion of radiologist cannot be preferred over the entry in the register of births and deaths. (d) All are correct.

Law o f Evidence

(9)

89

T h e division o f time, the geographical divisions o f the world and public festivals, facts and holidays notified in the official gazette.

(10) T h e territories under the dominion o f the Government o f India. (11)

T h e comm encem ent, continuance and termination o f hostilities between the G overnm ent o f India and any other country.

(12)

T h e nam es o f court officials and o f all advocates, pleaders, etc. authorized by law to appear or act before the court.

(13) T h e rule o f the road on land or at sea. T h e provision is supplemented by two declarations at the end o f the section. O n e o f them says that in all these matters, and also on matters o f public history, literature, science or art, the court may consult the appropriate book s or docum ents o f reference. T h e second declaration is that if a party calls upon the court to take the judicial notice o f any fact, it may refuse to do so unless J*nd until such person produces any such book or document, as the court may consider necessary to enable it to take judicial notice. judicial J'actdXAh — T he expression ‘ take judicial notice’means recognition without p r o o f o f som ething as existing or as being true. Judicial notice is based upon very obvious reasons o f convenience and expediency. It is the cognizance taken by the court itself o f certain matters which are so notorious or clearly established, that the evidence o f their existence is deemed unnecessary. As a means o f establishing facts, it is superior to evidence. T h e matters enumerated in Sec. 56 d o not form an exhaustive list. The court could take judicial notice o f other facts, not to be found in the list. The court cannot take judicial notice o f facts stated in a newspaper, as a statement o f facts in it is merely a hearsay. The Supreme Court in Shashi Nayar v Union o f India (AIR 1992 S C 395) took judicial notice that the law and order situation had deteriorated over the years and continues to be worsening fast and, therefore, it is an opportune time to think o f reconsidering death penalty. 44b.

What is “judicial notice”and o f what facts a court shall take judicial notice? Is “Railway strike”such a fact as that a court is enjoined to take judicial notice o f it? [Delhi J.S. 19821 [Ans. Yes.]1 3 4 O b je c t i v e Q u e s t io n * (Multiple Choice)

143. The question is whether certain document was written by A. Another document is produced which Is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are: (a) Relevant. (b) Irrelevant. (c) Relevant and conclusive proof. (d) None of the above,

144. Opinion o f an expert Is: (a) (b) (c) (d)

Relevant but unsafe. A conclusive proof. Supportive and corroborative in nature. Both (a) and (c).

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SEC. 58: Facts Admitted Need Not be Proved S e c. 58 lays down that “if the parties to a proceeding agree to admit a fact at the hearing, or which they agree to admit by writing before the hearing, o r which by any rule o f pleading in force deemed to be admitted, it need not be proved by the opp osite party”. Averments made in a petition that have not been controverted by the respondent carry the effect o f a fact admitted. Facts, which have been admitted on both sides, are not in issue and, therefore, no p ro o f need be offered o f them. A files a suit against B for Rs. 1,000 on the basis o f pronote. B admits to have borrowed the debt but pleads the payment o f debt. In this case, A need not prove the execution o f the pronote as that has been admitted by B on the hearing. Sec. 58 also provides that the court may in its discretion require som e other p r o o f o f an admitted fact. It may be noted that this section applies to civil suits only. It is an elementary rule that except by a plea o f guilty, admissions dispensing with p r o o f are not permitted in a criminal trial.

CHAPTER IV OF ORAL EVIDENCE [SECS. 59-60] Modes of Proof T h e r e are two m ethods o f proving a fact; one is by producing witnesses o f fact (oral evidence), and the other, by producing a document, which records the fact, in question (documentary evidence).

SEC. 59: Proof of Facts by Oral Evidence “ A i i facts except the contents o f docum ents may be proved by oral evidence”. All statements, which the court permits or requires to be made before it by witnesses in relation to the matters o f fact under inquiry, are called ‘ oral evidence’ . In general, the evidence o f witnesses is given orally, and this means oral evidence. A witness w ho cannot speak may communicate his knowledge o f the facts by signs or by writing and in either case it will be regarded as oral evidence.

145. Under Sec. 47, a disputed handwriting can be proved by: (a) Examining a person who is acquainted w ith th a t p e rs o n ’s handwriting. (b) Calling an expert. (c) Comparison of the handwriting by the court itself. (d) All of the above.

146. Despite having no special skill In a field, a person's opinion could be relevant In which of the following cases: (a) (b) (c) (d)

Question Question Question All of the

of handwriting. of rights. of relationship. above.

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Oral evidence, if worthy o f credit, is sufficient without documentary evidence to prove a fact o r tide. However, as per Sec. 60, where written documents exist, they shall be prod u ced as being the best evidence o f their own content and no oral evidence can be p rod u ced to prove as to what is wrong in the document. A and B enter into a written contract that B shall be supplying 20 m ounds o f w ool to A every month. I f controversy arises between the parties about the terms o f the contract it can be p rov ed only by the document. Oral evidence will not be allowed.

SEC. 60: Oral Evidence Must be Direct45 “O r a l evidence must, in all cases, whatever, be direct, Le. - I f it refers to a fact which could be seen (or heard or perceived by any other senses), it must be the evidence o f a witness w h o says he saw (or heard or perceived it by that sense) it; If it refers to an o p in ion o r to the grounds on which that opinion is held, it must be the evidence o f the person w ho holds that opinion on those grounds. Provided that the opinion o f an expert can be cited in his absence if it has been expressed in a b o o k form and the expert himself is either dead or is otherwise unavailable as a witness. Provided also that, if oral evidence refers to the existence or condition o f any material thing other than a document, the court may, if it thinks fit, require the produ ction o f such material thing for its inspection.” Oral evidence m ust be direct. This means that a witness can tell the court o f only a fact o f which he has the first hand knowledge (eye-witness) in the sense that he perceived the fact by any o f the five senses. If the statement was not made in his presence o r hearing and he subsequently came to know o f it through som e other source, he cannot appear as a witness, for his knowledge is a derived knowledge and is nothing but a “hearsay”evidence which is considered not relevant.

45.

“Oral evidence must in all cases be direct.”Explain fully the said rule with illustration. Is there any exception to the rule? [DelhiJ.S. 1999\[U.P. PCS Q) 1983/1984/1992\ [Bihar J.S. 1987\ Objective Qeieationm (Multiple Choice)

147. Which section of the Evidence Act makes the opinion of a person

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

148.

(a) (b) (c) (d)

Sec. Sec. Sec. Sec.

46. 47. 49. 50.

(a) (b) (c) (d)

Cases of offences against marriage. Proceedings under the Indian Divorce Act. Both (a) and (b). None of the above.

In which of the following cases, the evidence of marriage cannot be given by opinion of an expert:

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H earsay Evidence46 T h e word ‘ hearsay* mean whatever a person is heard to say (rumour or gossip) or whatever a person declares on information given by som eone else, or it may be synonym ous with irrelevant A statement, oral or written, by a person not called as a witness (or statements made out o f court) com es under the general rule o f hearsay. Sec. 60 o f Evidence Act is directed against avoiding or excluding hearsay evidence. T he test to distinguish between direct evidence and hearsay evidence is: It is direct evidence if the court, to act upon it, has to rely only upon the witness, whereas it is hearsay if it has to rely not only upon the witness, but som e other person also. Thus, if X is charged with Y ’ s murder, and if Z, in his evidence, states that “I saw X stabbing Y with a knife”, it would a direct evidence. Instances o f hearsay evidence would be the evidence o f A that “Z told m e that he had seen X stabbing Y ”o r that “Z wrote a letter to m e stating that he had seen X stabbing Y” o r that “I read in the newspaper that X had murdered Y”. It may be noted that hearsay evidence is not admissible even if not objected to, or even if consented to. The court has no discretion in this matter, except in certain exceptional cases. The rule against the admission o f hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy o f the person w hose words are spoken to by another witness cannot be tested by cross-examination. It is a second-hand evidence; the person giving such evidence d oes not have any sense o f responsibility. There is a tendency that truth will be diluted and diminished with each repetition and the frauds may be practiced under its cov et Further, the litigation is likely to be prolonged. Exceptions to the Hearsay Rule

People’ s memories are fragile and short. Subsequent publicity, discussions and suggestive questioning all exert their influence. This may lead to exclusion o f evidence which is superior in trustworthiness to evidence which is freely admitted (i.e. direct evidence). In Sharda Birdichand v State (AIR 1984 SC 1622), the testimony o f persons who had seen the pitiable condition o f a young woman in her-laws* home where she lost her life was, thus, held to be relevant. 46.

‘ Hearsay evidence is no evidence*. Explain the reasons for the exclusion o f hearsay evidence. To what extent has the principle o f exclusion o f hearsay evidence been adopted in the Indian Evidence Act? State the exceptions. [U P P CS (J) 1986/1987/200C\ [Raj.J.S. 1991/19991 149. When does a person's character becom e relevant? (a) (b) (c) (d)

The character of that person is a fact in issue. The character becomes evident from other relevant facts. The character affects the amount of damages. All of the above.

150. Mark the Incorrect statement: (a) In civil cases, character evidence is inadmissible unless the character of a party is a fact in issue. (b) In criminal cases, the fact that the person accused is of a good character is irrelevant. (c) A previous conviction is relevant as evidence of bad character in criminal cases. (d) In criminal proceedings, evidence of bad character is admissible when evidence of good character has been given.

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The courts have modified the rigid rule as to direct evidence by a number o f exceptions; (i)

Res gestae (Sec. 6) —A statement made by a person who is not a witness b e c o m e s relevant and admissible if the statement is part o f the transaction in question.

(ii) Admissions and confessions - An admission o f liability or confession o f guilt which takes place outside the court through the testimony o f a witness to w h om the admission or the confession was made. Such a witness is n ot a witness o f fact (iii)

Statements relevant under Sec. 32 —These are mostly the statements o f deceased person (dying declarations) or persons who are not available as witnesses.

(iv)

Entries in books o f account kept in the course o f business (Sec. 34); Entries in public registers (Sec. 35).

(v)

Statements o f experts in treatises — See first proviso to S ec 60.

(vi)

Sometim es, a slanderous statement made by a third person and heard by the witness will be relevant, not regarding the truth o f the contents o f the statements, but regarding the fact o f the statement being m ad e

CHAPTER V OF DOCUMENTARY EVIDENCE [SECS. 61-90]

SEC. 61: Proof o f Contents of Document “ T h e contents o f docum ents may be proved either by primary or by secondary evidence”. D ocum entary evidence means aU documents produced for the inspection o f die court. D ocu m en ts are denominated as “ dead p r o o f”, as distinguished from witnesses w h o are said to be “living proofs”. Documentary evidence is superior to oral evidence in permanence, and in many respects, in trustworthiness. There is n o

O b jective g a e f t f o a s

(Multiple Choice)

151.

In criminal cases, the good character Is relevant under which section o f the Evidence Act? (a) (b) (c) (d)

152.

Sec. Sec. Sec. Sec.

51. 52. 53. 54.

Mark the Incorrect statement: (a) To prove good or bad character, the evidence can be given of both reputation and disposition. (b) To prove bad character, evidence can be given of previous conviction. (c) Evidence may be given only of general character and not of particular acts by which the character is shown. (d) Good character is also relevant in civil proceedings.

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third m ethod o f proving the contents o f a document. The contents need not be proved by the author o f document, and can be proved by any other evidence.

SEC. 62: Primary Evidence47 A c c o r d in g to Sec. 62, the expression ‘ primary evidence’includes: (i) The original document itself produced for the inspection o f the court. (ii) Where a document is executed in several parts (e.g. duplicate, triplicaterequired when there are several partners), each part is primary evidence o f the document. Where a docum ent is executed in counterparts, each counterpart is primary evidence against the party' signing it (Explanation 1). For example, in the case o f a cheque, the main cheque is signed by the drawer so that it is a primary evidence against him, and the counterfoil may be signed by the payee o f the cheque so that it will be a primary evidence against the payee. Similar is the case o f patta (executed by lessor/ landlord) and the qabuliat or mnehilka (executed by lessee/ tenant). (iii) Where a number o f documents are all made by one uniform process, as for example, by printing, lithography or photography, each is primary evidence o f the contents o f document. But, where they are all o f copies o f a com m on original, they are not primary evidence o f the contents o f the original {Explanation 2). Primary evidence is the best or highest evidence, or in other words, it is the kind o f proof which, in the eyes o f the law, affords the greatest certainty o f the fact in question. Primary evidence o f a transaction, evidenced by writing, is the original document itself) which should be produced in original to prove the terms o f the contract, if it exists and is obtainable

SEC. 63: Secondary Evidence48 T h e expression ‘ secondary evidence’includes: (i) Certified copies o f the original document (i.e. public documents certified by a public officer). , i 47. What is primary evidence? 48. Explain ‘ secondary evidence’ .

[Ruj.J.S.199I\ [UP. PCS (J) 19S7\ [Raj.J.S. 1989\

153. Which of the following facts need not be proved? (a) (b) (c) (d)

Relevant facts. Facts judicially noticeable. Admitted facts. Both (b) and (c).

154. Which of the following Is the fact of which the court Is not bound to take the judicial notice under Sec. 57: (a) (b) (c) (d)

War between India and Pakistan. All Acts of the British Parliament. Rule of the road on land or at sea. Facts stated in a newspaper.

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(ii) Copies which are made from the original by mechanical processes (e.g. printing, lithography, photography), which in themselves assure the accuracy o f the copy; and copies compared with such copies (e.g. a photograph o f an original, a carbon copy). A Photostat copy o f a document is admissible as secondary evidence if it is proved to be genuine; it has to be explained as to what were the circumstances under which the Photostat copy was preferred and who was in the possession o f the original document at the time its photograph was taken. It can be permitted to be given in evidence when it is proved that the original document was in possession o f adversary (Ashok v Madho Lai AIR 1975 SC 1748; Govt, of A.P. v Karri Chinrta Venkata Reddy AIR 1994 SC 591).49 An uncertified photocopy o f a Government order cannot be given in secondary evidence (Union o f India v Nirmal Singh AIR 1987 All 83). Generally speaking, “copy o f a copy”is not admissible as secondary evidence but the copies prepared by a mechanical process and copies o f a copy compared with the original are secondary evidence. (iii) Copies made from or compared with the original. If a copy is prepared word-to-word from the original it is secondary evidence. (iv) Counterpart o f a document as against the party who did not sign it. Thus, a patta will be a secondary document against the lessee (tenant), as he did not execute it; and qabuliat will be a secondary document against die landlord, as he did not execute it. (v) Oral account o f the contents o f a document given by a person who has himself seen (i.e. read) the document. An oral account o f a copy compared with the original is not a secondary evidence.

49. To prove his tide, the complainant produces an unattested Photostat copy of a document on the ground that the original one is lost. Decide whether the document produced by the complainant may be admitted as a secondary evidence? [U.P. PCS (f) 1997\ Objective Q uestion*

(Multiple Choice)

155. The court may In its discretion call for proving the facts (a) (b) (c) (d)

of which judicial notice has to be taken. which have been admitted by the parties. both (a) and (b). none of the above.

156. All facts except the contents of documents may be proved by oral evidence. This Is laid down In:

(a) (b) (c) (d)

Sec. 56. Sec. 58. Sec. 59. Sec. 60.

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I

SEC. 64: Proof of Documents by Primary Evidence A c c o r d in g to Sec. 64, “a docum ent must be proved by its primary evidence except in the cases hereinafter mentioned.”

SEC. 65: When Secondary Evidence Relating to Documents May be Given50 I n the following cases, the secondary evidence may be given o f the existence, condition, or contents o f a document: (a) When the original is show n or appears to be in the possession or power o f a person against w hom the docum ent is sought to be proved (adversary party), or o f any person out o f reach o f or not subject to the process o f ' court, or any person legally bound to produced it, does not produce it despite due notice. (b)

When the existence, condition or contents have been proved to be admitted in writing by the party against w hom the docum ent is to be proved.

(c) W hen the original has been destroyed or lost, or when the party offering evidence o f its contents, cannot for any other reason not arising from his ow n default o r neglect, produce it in reasonable time. (d) When the original is o f such a nature as not to be easily movable (e.g. bulky documents). (e) W hen the original is a public document within the meaning o f Sec. 74. (f) W hen the original is a docum ent o f which the Evidence Act or any other law o f the country permits certified copies to be given in evidence. (g)

When the originals consists o f numerous accounts or other documents, which cannot be conveniently examined in the court and the fact to be provided, is the ‘ general result’o f the whole collection.

It may be noted that secondary evidence o f the contents o f a written instrument cannot be given, unless there is som e legal excuse for non-production o f the original (primary evidence). Further, secondary evidence can only be given when the 50.

D iscuss the circumstances in which a secondary evidence is admissible. [UP. P C S (J) 1987\ 157. Oral evidence: (a) (b) (c) (d)

Must be direct. Can be hearsay. Can be circumstantial. All are correct.

158. According to Sec. 60, the oral evidence must be direct except In the ca se of: (a) (b) (c) (d)

Statements of experts in treatises. Hearsay evidence. Admissions. All of the above.

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primary evidence or the document itself is admissible (If a deed o f gift is inadmissible in evidence for want o f registration, no secondary evidence o f the deed can be given in a suit to recover the gifted property). When the contents o f docum ent have been admitted by the party against whom it has to be proved, his written adm ission can be given as a secondary evidence o f document.

SECS. 65A/ 6SB: Admissibility of Electronic Records in Evidence Secs. 65A and 65B have been added by the Information Technology Act, 2000. Sec. 65A lays d ow n that the contents o f electronic records may be proved in accordance with the provision s o f Sec. 65B. Sec. 65B lays d ow n that “notwithstanding anything contained in this Act, inform ation in an electronic record which is printed on a paper, stored, recorded or cop ied in a com pu ter shall be deemed to be a document and shall be admissible in any proceedin gs (without further p ro o f or production o f the original) as evidence o f the contents o f the original or o f any fact stated therein o f which direct evidence w ou ld be admissible.” It is further laid dow n that the following conditions have to be satisfied in relation to a “com pu ter output”: (a)

Inform ation was produced during the regular course o f activities by the person having lawful control over the computer’ s use.

(b)

Inform ation has been regularly fed into the computer in the ordinary course o f the said activities.

(c)

T hrou ghou t the material part o f the said period, the com puter was operating properly, or the improper operation was not such as to affect the electronic record or the accuracy o f its contents.

(d)

Inform ation contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course o f activities.

Sec. 65B then lays dow n that for the purpose o f evidence, a certificate identifying the electronic record containing the statement and describing the manner in which it is p rod u ced by a com puter and satisfying the conditions mentioned above, and Objective Questions

(Multiple Choice)

159.

Hearsay evidence Implies: (a) (b) (c) (d)

160.

Rumour or gossip. Whatever a person declares on information given by someone else. Statements made out of court. All o f the above.

If X Is charged with Y’ s murder, which of the following will be a hearsay evidence? (a) (b) (c) (d)

Z, in his evidence, states that "I saw X stabbing Y with a kn ife ". Evidence of A that “Z told me that he had seen X stabbing Y \ Both (a) and (b). None of the above.

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signed by an officer in charge o f the operation or management o f the related activities, shall be the evidence o f any matter stated in the certificate; it shall be sufficient for a matter to be stated to the best o f 'the knowledge and belief o f the person stating it. SEC. 66: Rules as to N otice to Produce Sec. 66 lays down that a notice (to produce a document) must be given before secondary evidence can be received under Sec. 65 (a). The notice is to be given to the party who has possession o f the original document, or to his attorney or pleader. Notice should be given in a manner as is prescribed by law, and if there is no law on die point, such notice should be given as the court considers reasonable under the circumstances o f the case. Provided that such notice shall not be required in 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 die nature o f the case, the adverse party (Le. party in possession o f document) must know that he will be required to produce it. (3) When it appears or is proved that the adverse party has obtained possession o f the original by fraud or force. (4) When the adverse party or his agent already has the original in court. (5) When the adverse party or his agent has admitted that the original has been lost. (6) When the person in possession o f the document is out o f reach of, or not subject to, the process o f the court (viz. a foreign ambassador). A question arises: when the opposite party fails to produce the original when demanded and the court has accordingly admitted secondary evidence, can the party in possession subsequendy produce the original o f his own choice, 'fhe answer is “N o ”. Sec. 164 clearly lays down that where a party has required to another to produce a document and he has refused to do so, he can’ t afterwards use the document as evidence unless he obtains the other party’ s consent or the court’ s order. The requirement o f notice under Sec. 66 is to be strictly complied with. The other party cannot be restrained from producing the original where the notice to produce has not been given, nor can secondary evidence be given in such case. 161. Hearsay evidence is generally Inadmissible. However, in certain cases It Is admissible. Which of the following Is such a case? (a) (b) (c) (d)

Res gestae. Admissions and confessions. Dying declaration. All of the above.

162. The contents of documents may be proved by: (a) (b) (c) (d)

Primary evidence only. Secondary evidence only. Primary or secondary evidence. Oral evidence.

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SEC. 67: Proof of Signature aod Handwriting of Perron aileged to ha.e Signed or Written Document Produced “I f a docum ent is alleged to be signed or written by any person, the signature or the handwriting o f so much o f the document as is alleged to be in that person’ s handwriting must be proved to be in his handwriting.”

SEC. 67A: Proof as to Digital Signature “ E x c e p t in the case o f a secure digital signature, if the digital signature o f any

subscriber is alleged to have been affixed to an electronic record the fact that such signature is the digital signature o f the subscriber must be proved.” Sec. 67 does not prescribe any particular mode o f proof o f signature or handwriting o f a person. However, the following modes o f proving a signature or writing are recognized by the Act, viz. (1) by calling the person who signed or wrote the document; (2) by calling a person in whose presence the document was signed or written; (3) by calling a handwriting expert (Sec. 45); (4) by calling a person acquainted with the handwriting o f the person executing the document (Sec. 47); (5) by comparing in court the disputed signature/writing with some admitted signature/writing (Sec. 73); (6) by p r o o f o f admission by the person who is alleged to have signed or written the document, that he signed or wrote it; or (7) by statement o f a deceased professional scribe, made in the ordinary course o f business, that the signature on the document is that o f a particular person. (8) Any other circumstantial evidence.

Objective Questions

(Multiple Choice).

163. Which is considered as the source of superior evidence? (a) (b) (c) (d)

Dead proof. Living proofs. Oral proof. None of the above.

164. Primary evidence Includes: (a) (b) (c) (d)

Original document itself produced for the'inspection of the court.. Duplicate, triplicate of a document, when executed in several parts. Each counterpart of a document, when executed in counterparts. All of the above.

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SEC. 68: Proof of Execution of Document Required by Law to be Attested T o attest is ‘ to bear witness to a fact’ . A document the execution o f which is required by law to be “attested” means a document the signature upon which should be put in the presence o f two witnesses who themselves add their signatures and addresses in p ro o f o f the fact that the document was signed or executed in their presence. They are called ‘ attesting witnesses’ . Attestation does not imply that the attesting witnesses have admitted to the contents o f a document. Sec. 68 lays down that if a document required by law to be attested is produced as evidence, at least one attesting witness shall be called to prove the execution o f the document. This principle will apply only if at least one o f the attesting witnesses is alive, capable o f giving evidence and subject to the process o f the court. Sec. 68 further provides that no attesting witness need be called in the case o f document (not being a will), which has been registered under the Indian Registration 1 Act, 1908, and the person executing it does not specifically deny its execution. If there is a denial, then, an attesting witness have to be called.

SEC. 69: Proof where No Attesting Witness Found “I f no such attesting witness can be found, or if the document is executed in the United Kingdom, it must be proved that the attestation o f one attesting witness at least is in his handwriting, and that the signature o f the person executing the document is in the handwriting o f that person.”

SEC. 70: Admission of Execution by Party to Attested Document Sec. 70 lays down that ‘ where the party to an attested document has admitted that he executed the document that is sufficient proof o f the execution even if the document is required by law to be attested’ . This ‘ admission’relates only to the execution and to be made in the course o f the trial o f a suit or proceeding. It must be distinguished from the admission mentioned in Secs. 22 and 65 (b), which relate to die contents o f a document. The admission must be unqualified. Thus, if a person admits his signature on a mortgage-bond, but denies that the attesting witnesses were present at that time, the bond will have to be proved under Sec. 68, by calling the attesting witnesses. 165. Secondary evidence Includes: (a) (b) (c) (d)

Certified copies of the original document. Negatives of a photograph. Oral account of the contents of a document. All of the above.

166. If on the carbon copies of a letter written on a typewriter, signature have been put on the first letter then other copies: (a) (b) (c) (d)

Will also be primary evidence. Will be secondary evidence. Will be no evidence. None of the above.

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SEC. 71: Proof when Attesting Witness Denies the Execution Sei. 71 lays down that ‘ if the attesting witness denies or does not remember the execution o f the document, its execution should be proved by other evidence’ . Thus, the fate o f an attested document does not lie at the mere)’o f an attesting witness; if he turns hostile, other evidence may be given; such a document may then be proved in the same manner as documents not required to be attested. If one attesting witness is produced, the part)' has done his duty (under Sec. 63) even if that witness denies or does not remember the execution o f the document, and then other evidence can be offered under Sec. 71 [Chaitan Cbaran v Mahesbmr Panda AIR 1991 Ori. 125]. The court distinguished the case from a decision o f the Bombay High Court to the effect that on the failure o f one attesting witness to prove execution, the other attesting witness, if available, should be produced and on his failure also, Sec. 71 can be used to bring in any other evidence. Where the attester was an illiterate person and he attested by putting his thumb impression, he was not bound by the document unless it could be shown that the document was read out to him and he understood it [Badri Narayanan v Kajabajyathammal (1996) 7 SCC 101].

SEC. 72: Proof of Document Not required by Law to be Attested “ A n attested document, not required by law to be attested, may be proved as if it was unattested.”T o prove an attested document, one must prove (i) attestation, and (ii) signature. To prove an unattested document, one has to prove execution only.

SEC. 73: Comparison of Signature, Handwriting, etc. by the Court A ccordin g to Sec. 73, when the Court has to satisfy itself whether the signature, writing or seal on a document is genuinely that o f a person whose signature, etc it purports to be, the Court may compare the same with another signature, etc which is admitted or proved to be that o f the person concerned although that signature, etc. has not been produced or proved for any other purpose. This section applies also, with necessary modifications, to finger impressions. Objective Questions

(Multiple Choice)

167. Mark the Incorrect statement: (a) Documents should be proved by primary evidence. (b) Oral account of the contents of a document is admissible only when given by a person who has seen and read the document. (c) A witness who has given oral evidence is not entitled to give documentary evidence. (d) Copy of a copy if has not been compared with the original is neither a primary nor a secondary evidence.

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Sec. 73 also enables the court to require any person present in the Court to write any w ords o r figures to enable the court to compare them with the words or figures alleged to have been written by such person (Tower to ask for specimen handwriting*). W hether the Court should d o the com parison itself or appoint an expert is a matter o f discretion. In Mttrttrilal v State o f M.P. (AIR 1980 SC 531), it observed that the argument that the Court should not venture to com pare writings itself, as it w ould thereby assume to itself the role o f an expert is entirely without force. It is the plain duty o f die court to com pare die writings and com e to its ow n conclusions. W here there are expert opinions, they will aid the court. Where there is none, the cou rt will have to seek guidance from authoritative textbooks and the court’ s own experience and knowledge.503 However, the court should be slow in making self-comparison (particularly w here the signature with which com parison is to be made is in itself not an admitted signature). T h e court can attempt a comparison, but in the case o f slightest doubt, should rely upon the w isdom o f experts {Ajit Savant v State A IR 1997 SC 3255). T h e court cannot substitute its opinion for that o f an expert. Weak expert opin ion may be corroborated by the cou rt’ s opinion under the section. Sec. 73 d oes not make any difference between civil and criminal proceedings. It is not limited to parties to the litigation. By virtue o f the expression “any person” used in Sec. 73, die court can direct even a stranger to give a specim en o f his handwriting. It may be noted that where the case is still under investigation and no proceedin gs are pending before the court, a person present in the court cannot be com pelled to give his specim en handwriting.

SEC. 73A: Proof as to Verification of Digital Signature “I n order to ascertain whether a digital signature is that o f the person by w hom it purports to have been affixed, the court may direct (a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate; (b) any other person to apply the public key fisted in such Certificate and verify the digital signature.” 50a.

Genuinenes o f a signature on a docum ent was in dispute. Parties produced evidence on the point but did not examine handwriting expert. The trial judge him self com pared the disputed signature with admitted signature o f the alleged executant. H e held that the disputed signature was forgery. In appeal this finding was assailed. Decide. [D elhi J.S. 1990[ 168.

A witness who Is unable to speak, gives his evidence by writing In open court, evidence so given shall be deem ed to be: (a) (b) (c) (d)

169.

Oral evidence. Documentary evidence. Primary evidence. Secondary evidence.

[M.P. C.J. {Prelim.) 20 0 0 ]

Secondary evidence can be given: (a) (b) (c) (d)

When there Is some legal excuse for non-production of the original. As a substitute for primary evidence. Both (a) and (b) are correct. None of the above.

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P U B L IC D O C U M E N T S T h e Act recogn izes tw o kinds o f documents, viz. public and private; it lays dow n special rule relating to p r o o f o f public documents. SEC. 74: P ublic D o c u m e n t s 51 T h e follow ing docu m en ts are public documents: (1) D ocu m en ts form in g the acts, or records o f the acts: (i) o f the sovereign authority (namely, the Parliament and Legislative Assemblies); (ii) o f official bodies and tribunals; and (iii) o f public officers, legislative, judicial and executive, o f any part o f India o r o f the Commonwealth, or o f a foreign country. (2) Public records kept in any State o f private documents. Private documents, which are registered in public offices, also become public documents. For example, the memorandum and articles o f a company registered with the Registrar o f Companies; a private Waqf deed; etc. The following have been held not to be public documents: An application for a licence, a post-mortem report, an insurance policy, a private sale-deed registered under the Indian Registration Act, a pumbanamu prepared by a police officer., A charge-sheet, arrest-warrant, judgment o f court, affidavit, administrative report, etc. are public documents. A ‘ public record* is one required by law to be kept, or necessary to be kept in the discharge o f a duty im posed by law, or directed by law to serve as a memorial and permanent evidence o f something written, said or done. Thus, an original receipt executed by any individual and registered under the Registration Act is not a public record as the original has to be returned to the party. Entries made by a police officer in the site inspection map and site map have been held to be public documents (Rajasthan S.RT.C. v Nand Kishore AIR 2001 Raj 334).

51. What are public documents?

[Ruj.J.S. 1989\ O b je c tiv e Q u estio n e

(Multiple Choice)

170.

In which of the following cases, can secondary evidence of the contents of a document not be given? (a) (b) (c) (d)

When When When When

the the the the

original original original original

is a public document. has been destroyed. has been found to be inadmissible. is not easily movable. [M.P. CJ. (Prelim.) 1996]

171. The provisions relating to admissibility of Electronic Records In evidence are contained In: (a) (b) (c) (d)

Sec. Sec. Sec. Sec.

65A. 65A and Sec. 65B. 66. 67.

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SEC. 75: Private Documents

“An

other docum ents are private”.

SEC. 76: Certified Copies of Public Documents A c c o r d in g to Sec. 76, every public officer having the custody o f a public docum ent (which any person has a right to inspect) must, on demand and payment o f legal fees therefor, give a copy o f it with a certificate (dated, signed and sealed) at the fo o d diat it is a true copy. A copy so certified is called a 4certified copy’ .

SEC. 77: Proof of Documents by Production of Certified Copies A c c o r d in g to Sec. 77, ‘ the contents o f public docum ents may be proved by the production o f their certified copies\ The w ord ‘ may* in this section denotes another m ode o f p r o o f (optional to the party), viz. production o f the original. An electoral role has been held to be a public docum ent and, therefore, certified copy is admissible under Sec. 77. The deposition o f a witness is a part o f the record o f the acts o f an official tribunal, and a statement made in it can be proved by a certified copy.

SEC. 78: Proof of Other Official Documents T h e follow ing public docum ents may be proved as follows: (1) Acts, orders and notifications o f the Central/State Government or their departments may be proved by the records o f the department as certified by the head or by any docum ent purporting to be printed by the department’ s order. (2) The proceedings of the Legislatures may be proved by the journal o f the legislature concerned or by published Acts or abstracts, or by copies purporting to be printed by the G overnm ent’ s order. (3) Proclamations, orders or regulations issued by H er Majesty/Privy Council can be proved by copies or extracts contained in the London Gazette, etc. (4) Acts o f the executive or the proceedings o f the Legislature o f foreign country can be proved by journals/certified copies, or by recognition o f die same in Central A ct 172. Mark the Incorrect statement In relation to Sec. 66: (a) When the original document is in the possession o f adversary party, then secondary evidence can be given only when a notice has been given to that party or to his attorney or pleader. (b) Such notice shall not be required when the document to be proved is itself a notice. (c) Such notice shall not be required when the adverse party or his agent already has the original in court. (d) All are correct.

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(5)

Proceedings o f a municipal body in a State may be proved by a certified co p y o f such proceedin gs or an authoritative printed book.

(6)

Public docu m en ts o f any other class in a foreign country may be proved by the original o r by a certified copy issued by the legal keeper o f the docum ent with a certificate under the seal o f a notary public/Indian consul or diplom atic agent. P R E S U M P T IO N S AS T O D O C U M E N T S

Secs. 79-90 are fou nded on the maxim omnio prosumuntur rite esse acta which means that ‘ all acts are presum ed to be righdy done’ . But, these presumptions are not conclusive but only prima facie presumptions and if the documents are incorrect, evidence can be led to disprove them. Presumptions under Secs. 79-85 and Sec. 89 are “ compulsory”one in the sense that the judge is bound to raise the presumption in question. The presumptions under Secs. 86-88 and Sec. 90 are in the “ discretion”o f the court in the sense that the court may or may not draw presumptions.

SEC. 79: Presumption as to Genuineness of Certified Copies A cco r d in g to Sec. 79, when a certified copy o f a document is produced before the court as evidence o f the original the law presumes that the copy is a genuine reproduction o f the original. However, it is necessary that the copy should have been certified by an officer o f the Central/State Government (including an officer in State o f J&K authorized by Central G ovt) and the document should be substantially in the form prescribed by law and should also purport to be executed in that manner. T he court also presumes that the officer who signed or certified the docum ent held the official character which he claims in such paper. It is not necessary to call such an officer in evidence.52 52. Whether it is necessary to prove the signatures o f a gazetted officer by calling him in evidence? [Raj.J.S. 1991\ H ow will you prove a certificate o f registration?

[Delhi J.S. 1984\

\Ans. N o formal proof is required to prove such a certificate.] O b je c t i v e Q u e s t io n * (Multiple CHoice)

173.

How d o es the signature and handwriting of a document could be proved? (a) By calling the person who signed or wrote the document. (b) By calling a person in whose presence the document was signed or written. (c) By calling a handwriting expert. (d) All o f the above.

174.

Mark the correct statement In relation to a certificate given by a doctor: (a) It Is a hearsay evidence. (b) It must be proved by the doctor himself. (c) The doctor is required to give evidence that certificate has been written by him. (d) It can be proved only after the giving of evidence.

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SEC. 80: Presumption as to Documents Produced as Records of Evidence A c c o r d in g to See. 80, when a person has appeared before a Court o f law and has recorded his testimony or confession (taken in accordance with law and purporting to be signed by a judge, etc.) and his statement being relevant in a subsequent case, the court shall presume the genuineness o f such certified copy and that such evidence, statement, etc. was duty recorded.

SEC. 81: Presumption as to Gazettes, Newspapers, Private Acts of Parliament U n d e r Sec. 81, Official Gazettes, newspapers or journals, copies o f the private Act o f Parliament o f U.K., and other docum ents kept in accordance with the law are presum ed to be genuine. In spite o f this presumption, it has been held that newspaper reports d o not constitute admissible evidence o f their truth. The presumption o f genuineness attached under Sec. 81 to a newspaper report cannot be treated as a p r o o f o f the facts reported therein (Laxm i Raj Shefty v State of T.N. AIR 1988 SC 1274). The statement o f a fact contained in a newspaper is merely a ‘ hearsay’and is, therefore, inadmissible in evidence (Ramswaroop v State of Raijasthan AIR 2002 Raj 27).

SEC. 81A: Presumption as to Gazettes in Electronic Forms T h e Court shall presum e the genuineness o f every electronic record purporting to be the O fficial Gazette, or purporting to be electronic record directed by any law to be kept by any person in the form required by law and is produced from proper custody.

SEC. 82: Presumption as to Docum ent Admissible in England without Proof of Seal or Signatures U n d e r Sec. 82, when a docum ent is produced before a court which according to die laws o f England or Ireland would be admissible without p r o o f o f seal, signature, etc, die court shall presume that such seal, etc. is genuine and also that the person signing the docum ent held at the time o f signing it, the judicial/official character which he claims. 175.

176.

How many w itnesses are required to attest a document? (a) (b) (c) (d)

One. Two. Three. Four.

Mark the Incorrect statement: (a) A document required by law to be attested can be proved under Sec. 68 only by calling at least one of the attesting witnesses if alive. (b) Attesting witnesses add their signatures and addresses In proof of the fact that the document was signed or executed In their presence. (c) No attesting witness need be called in the case of document (not being a will), which has been registered under the Indian Registration Act, 1908, and the person executing it does not specifically deny its execution. (d) None of the above.

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SEC. 83: Presum ption as to Maps or Plans A c c o r d in g to Sec. 83, maps or plans purporting to be made with the authority o f the Central/State G overnm ent are presumed to be accurate. But, maps o r plans made for the p u rp ose o f any cause must be proved to be accurate.

SEC. 84: Presum ption as to Collection of Laws and Reports of Decisions A c c o r d in g to Sec. 84, the Court presumes the genuineness o f every’book, printed or published under the authority o f the Government o f an£ country, which contains laws o f that country. Similar is the case with a book published by the State which contains report o f decided cases. It may be noted that Sec. 57 authorizes the Courts to take judicial notice o f the existence o f all laws and statutes in the territory o f India and U.K. Sec. 74 recognizes statutory records to be ‘ public records*. Sec. 78 lays down the m ethod o f proving the Statutes/Acts passed by the legislature.

SEC. 85: Presumption as to Power of Attorney A ‘ pow er o f attorney’is a docum ent by which an agent is given the power to act for his principal. A ccording to Sec. 85, a power o f attorney duly executed before and authenticated by a notary public or any judge/court/Indian Consul/ViceCounsel/ representative o f Central Government are presumed to be genuine. The presum ption also applies to documents authenticated by notaries functioning in other countries.

SEC. 85A/85B/85C: Presumption as to Electronic Agreements, Records, etc. Sec. 85A raises a presumption as to ‘ Electronic Agreements’ : The Court shall presume that every electronic record purporting to be an agreement containing the digital signatures o f the parties was so concluded by affixing the digital signature o f the parties.

O b jective QuestioiMM

(Multiple Choice)

177.

For proving execution of a registered Will It shall (a) (b) (c) (d)

178.

be necessary to call be necessary to call not be necessary to be necessary to call

at least two attesting witnesses. at least one attesting witness. call any attesting witness. the Registrar. [M.P. CJ. (Prelim.) 1 9 9 6 ]

If no attesting witness can be found It must be proved that: (a) Attestation of one attesting witness at least Is in his handwriting. (b) Signature of the person executing the document is in the handwriting of th a t person. (c) Both (a) and (b). (d) None of the above.

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

SEC. 86: Presumption as to Certified Copies of Foreign Judicial Record T Jn der Sec. 86, the court is given the judicial discretion to presume that the certified copies o f foreign judicial records are genuine.

SEC. 87: Presumption as to Books, Maps and Charts A c c o r d in g to Sec. 87, when books, maps, charts, etc. are produced before the Court in p r o o f o f a fact in issue or a relevant fact, the Court may presume that any such book, map, etc. was written or published by the person w hose name is shown as that o f the author o r publisher and was published at the place where it was published.

SEC. 88: Presumption as to Telegraphic Messages A c c o r d in g to Sec. 88, in reference to telegraphic messages, the Court may presume that the m essage delivered to the addressee corresponds with the m essage handed over to the p o st office and that the m essage was meant for the person w hom it is purported to be delivered. But, the court shall not make any presumption as to the sender o f the m essage since telegraphic m essages can be sent by unauthorized persons. T he court may treat telegraphic m essages received, as if they were the ‘ originals* sent. A telegram is a primary evidence o f the fact that the same was delivered to the addressee on the date indicated therein.

SEC. 88A: Presumption as to Electronic Messages T h e court may presume that an electronic m essage forwarded by the originator through an electronic mail server to the addressee to w hom the m essage purports 179. Mark the Incorrect statement: (a) Where the party to an attested document has admitted th a t he executed the document that is sufficient proof of the execution even if the document is required by law to be attested. (b) If the attesting witness denies or does not remember the execution of the document, its execution could not be proved by other evidence. (c) If one attesting witness is produced, the party has done his duty (under Sec. 68) even if that witness denies or does not remember the execution of the document, and then other evidence can be offered. (d) An attested document, not required by law to be attested, may be proved as if It was unattested.

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to be addressed corresp on d s with the message as fed into his com puter for transmission; but the court shall not make any presumption as to the person by w hom such m essage was sent.

SEC. 89: Presumption in Relation to Documents Not Produced T h e court shall presum e that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.

SEC. 90: P resu m p tion as to D ocum ents Thirty Years O ld (Ancient Docum ents)53 Sec. 90 lays d ow n that where a document is purported or proved to be 30-year old and is p rod u ced from any custody which the court in particular case considers proper, the cou rt may presume that signature and every part o f docum ent is in that person’ s handwriting, and in case o f document attested or executed that it was duly attested o r executed by the person by whom it purports to be attested or executed. T he basis o f the section is that as time passes, the executants, vendors, witnesses may not be available to prove tide, etc. The documents which are thirty years old, prove themselves. It may be noted that the presumption relates to the execution o f the docum ent (signature, attestation, etc.), in other words, its genuineness, but not to the truth o f its contents (Ramakrishna v Gangadhar A IR 1958 Ori 26). Also, there is no presum ption that the executants had the authority to d o or not what the docum ent purports to do. Further, the presumption can be raised only with reference to original docum ents and not to copies thereof. Explanation to Sec. 90: According to the explanation, “proper custody”means: (a) the place where the docum ent would normally be; (b) was under the care o f a person with whom it would naturally be; (c) any custody which is proved to have had legitimate origin; and (d) under the circumstances o f the case the custody from which the instrument is produced is probable.

53. What d o you know about ‘ Documents thirty years old*?

[Ra/.J.S. 1994\

O b je c t i v e QucatioMMM (Multiple Choice)

180.

Under which section of the Evidence Act, the court Itself can compare the handwriting of a person? (a) (b) (c) (d)

181.

Sec. Sec. Sec. Sec.

72. 73. 75. 76.

Which docum ents are public documents as per Sec. 74: (a) Documents forming the acts, or records of the acts of the sovereign authority. (b) Documents forming the acts, or records of the acts of official bodies and tribunals. (c) Public records kept in any State of private documents. (d) All o f the above.

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Illustrations

(a)

A has been in p o ssessio n o f landed property for a lon g time. H e produces from his custody deeds relating to the land, show ing his title to it. The custody is proper.

(b)

A p rod u ces deeds relating to landed property o f which he is the mortgagee, the m o rtga go r is in possession. T h e custody is proper.

(c)

A, a conn ection o f B, produces deeds relating to land in B ’ s possession which were deposited with him by B for safe custody. T he custody is proper.

Because a docum ent purports to be an ancient document and to com e from proper custody, it d oes not follow that its genuineness is to be assumed. If there are reasonable grounds for suspecting its genuineness, and the party relying upon it fails* to satisfy the court o f its due execution, its genuineness will not be presumed. The presum ption under Sec. 90 is o f discretionary nature; the court may refuse to draw it and require the docum ent to be proved in the ordinary manner. A party who has attempted to prove the docum ent by direct evidence cannot afterwards rely on the presum ption [Cbandabai v AnwarkJjan A IR 1997 M.P. 238].

SEC. 90A: Presumption as to Electronic Records Five Years Old W here any electronic record, purporting o r proved to b e(5-year old, is produced from a p rop er custody, the court may presum e that the digital signature which purports to be the digital signature o f any particular person was so affixed by him o r any person authorized by him in this behalf. CHAPTER VI

OF TH E EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE [SECS. 91-100] VC^here both oral as well as docum entary evidence are admissible, the court may g o by the evidence which seem s to be m ore reliable. There is nothing in the Act requiring that the docum entary evidence should prevail over the oral evidence. The provisions as to exclusion o f oral by docum entary evidence are based on the rule of ‘ best evidence’ . W here the fact to be proved is em bodied in a document, the 182. Which of the following Is not a public document: »

183.

(a) (b) (c) (d)

Affidavit. Judgment of Court. Arrest-warrant. Will.

Which of the following Is a public document: (a) (b) (c) (d)

A post-mortem report. An insurance policy. A panchanama prepared by a police officer. A private Waqf deed.

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docum ent (primary or secondary evidence o f it) is the best evidence o f the fact. The maxim o f law is whatever is in writing must be proved by the writing. Secs. 91 and 92 o f the Evidence Act incorporate this principle.54

Best Evidence Rule T h e main o b ject o f the la,w o f evidence is to restrict the investigation made by courts within the bounds prescribed by general convenience. Thus, the evidence must be con fin ed to the matter in issue, hearsay evidence must not be admitted, and, the best evidence must be given in all cases. The ‘ best evidence’rule means that the best evidence o f which the case in its nature is susceptible must always be produced. The rule does not require the production o f the greatest possible quantity o f evidence, but it is framed to prevent the introduction o f any evidence which raises the supposition that there is better evidence behind it, in possession or under control o f the party by which he might prove the same fact, and which is withheld by the party. It is on e o f the cardinal rules o f the law o f evidence that the best evidence in possession o f the party must always be given Le. if a fact is to be proved by oral evidence, the evidence must be that o f a person who had directly perceived the fact to which he testifies. Otherwise, it would be impossible to test, by cross-examination, the truth o f the testimony; and the law rejects the evidence which cannot adequately be tested. Similarly, where a writing primarily evidences the transaction sought to be proved, the writing itself must be produced or accounted for. It is only in the absence o f best or primary evidence (original document) that the court will accept what is known as secondary evidence (copy o f the original document). Secondary evidence will never be received until the party tendering it proves that it is out o f his pow er to obtain the best evidence.

54.

Explain and illustrate: *What is in writing shall only be proved by the writing*. [UP. PCS (J) 198J\ O bjective Q u estio n s

(Multiple Choice)

184.

Documents uncovered by Sec. 74 are: (a) (b) (c) (d)

Private documents. Quasi-public documents. Both (a) and (b). None of the above.

185. A certified copy of a public document must be: (a) (b) (c) (d)

Dated. Signed. Sealed. All o f the above.

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SEC. 91: Evidence of Terms of Contracts, Grants, etc. Reduced to Document A ccordin g to Sec. 91, “ when the terms o f a contract, grant or some other disposition o f property is reduced to the form o f a document or is required by law to be reduced to a document, no evidence shall be given for the proof o f the terms o f such contract, etc. except the primary or secondary evidence o f the writing itself”. The section extends to both types o f transactions, namely, which have voluntarily been made by writing and for which writing is compulsory; it does not apply to oral contracts. The matters required by law to be in writing are public and judicial records such as judgments, examination o f witnesses, deeds o f conveyance o f lands such as sale-deeds or mortgage-deeds o f Rs. 100 or more, a partition-deed, etc. Where registration o f a document is compulsory under the Registration Act, the document if unregistered will be inadmissible in evidence and no other evidence o f the contents o f it can be received. For example, A leases his house to B via a written lease. Later, A files a suit for arrears o f rent and for ejectment. A jalleges that the tenancy was from month to month, while B contends that it ran from year to year. In this case, the terms o f the contract between the parties having been reduced to document, none o f them will be allowed to adduce oral evidence in the court. The document will have to be produced in the court. A sues B for the possession o f a certain house alleging that it belongs to him and B is a trespasser. B contends that the house belongs to him and alleges that there was previous civil litigation between the same parties for the same house and it was decided that the house belongs to him. The contents o f that previous judgment must be proved by the copy o f the judgment. Oral evidence is shut out. It may be noted that an oral account o f the contents o f document is not an oral evidence. Further, the rule contained in Sec. 91 applies to the terms and not to the factum (or existence) o f a contract, and evidence in proof o f a factum o f a contract is not excluded. Exception 1, Sec. 91 - Where the appointment o f a public officer is required by law to be made by writing and the question is whether an appointment was made, if it is shown that a particular person has acted as such officer, that will be sufficient proof and the writing need not be proved. When the question is whether A is a High Court Judge, the warrant o f appointment need not be proved, the only fact

186. The public documents could be proved by: (a) Certified copies. (b) Oral evidence. (c) Evidence of person who has written the certified copy. (d) All of the above. 187. The proceedings of the Legislatures may be proved by: (a) (b) (c) (d)

Journal of the legislature concerned. Published Acts or abstracts. Copies purporting to be printed by the Government's order. All of the above.

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that he is working as a High Court Judge will be proved. Similar is the case when \ appears before the court as a witness and says that he is a civil surgeon. Exception 2, Sec. 91 - Wills admitted to probate in India may be proved by the probate. The document containing the will need not be produced. The word ‘ probate’ means the copy o f a will certified under the seal o f the court o f competent jurisdiction with a grant o f administration to the estate o f the testator. Explanation 1, Sec 91 —This section applies equally to cases in which the contracts, etc. are contained in one document or more than one. If a contract is contained in several letters, all the letters must be proved [Illnst. (a)]. 2, Sec 91 —Where there are more originals than one, one original only need be proved. Illustrations: (b) If a contract is contained in a bill o f exchange, the bill o f exchange must be proved, (c) If a bill o f exchange is drawn in a set o f three, one only need be proved. Explanation 3, Sec 91 - Where in addition to the terms o f the contract, etc. a document refers to any other fact also, as to that fact oral evidence is always allowed. For example, a contract for sale o f goods mentions that the goods supplied on earlier occasions have been paid for. Since this is not a term o f the contract, it is an extraneous fact and, therefore, oral evidence can be offered to show that no such payment was ever made [IHust. (d)]. A gives B a receipt for money paid by B. Oral evidence is offered o f the payment. The evidence is admissible [lllust. (e)].5S

E x p la n a tion

SEC. 92: Exclusion of Evidence of Oral Agreement T h e provision in Sec. 91 is further supplemented by Sec. 92 by providing that once any such contract, grant or disposition has been proved by the writing, then no evidence can be given o f any oral agreement to contradict or change the terms o f the contract. In other words, no oral evidence can be given to qualify the terms o f the document.56 ' 55. A question based on this illustration.

_

- [U.P. PCS (J) 1992[

56. Can evidence of the intention of the parties to a document be given to contradict the express terms of the document? [U.P PCS (J) I986\ Objective ffueatiojn*

(Multiple Choice) 188. Sections 79-90 are founded on the maxim omnfo prosumuntur rite esse

acta which means: (a) (b) (c) (d)

189.

All acts are presumed to be rightly done. All acts are presumed to be conclusively done. Both (a) and (b). None of the above.

Mark the Incorrect matching:

(a) Presumption as to Genuineness of Certified Copies: Sec. 79. (b) Presumption as to Documents Produced as Records of Evidence: Sec. 80. (c) Presumption as to Gazettes, Newspapers. Private Acts of Parliament: Sec. 81. (d) Presumption as to Maps or Plans: Sec. 82.

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Sec. 92 precludes only the parties to the document and their representativesin-intcrest from giving oral evidence; other parties (or strangers) are left free to give such evidence. Further, evidence can be given o f any oral agreement which does not contradict, vary, add or subtract from the terms o f the document. It may be noted that Sec. 91 lays down a universal rule and is not confined to the executant or executants o f the document. It is after the document has been produced to prove its terms under Sec. 91 that the provisions o f Sec. 92 com e into operation. Both the sections would be ineffective without each other. Sec. 91 applies to both unilateral and bilateral documents, while Sec. 92 applies only to bilateral one. Suppose A borrows Rs. 200 from B and executes a pronote in which the interest rate is given 1 per cent. B fdes suit for recovery o f the principal and interest at the rate o f 1 per cent. The pronote is filed and proved in the court. A wants to lead evidence to the effeef that the interest setded between the parties was Vi percent. Now, this evidence cannot be allowed as it contradicts the terms o f the pronote. The rationale behind Sec. 92 is that the parties having made a complete memorial o f their agreement, it must be presumed that they have put into writing all that they considered necessary to give full expression to their meaning and intendon; further, the reception o f oral testimony would create mischief and open the door to fraud (Rajkumar Rajendra Singh v State o f H.P. AIR 1990 SC 1833). If, for example, a policy o f insurance applies to ships leaving Calcutta. One o f die ships is lost. It is sought to be proved that by an oral agreement that the particular ship was excepted from the policy. Such evidence is inadmissible [Illnsl. (a)\. Similarly, a written agreement to pay a sum o f money on a certain day cannot be contradicted by proving diat the day in question was changed by an oral agreement. A agrees absolutely in writing to pay B Rs.1000 on 1st March 1873. The fact that, at the same time, an oral agreement was made that the money should not be paid till the 31st March cannot be proved [I/hist. (b)].57 An estate called “Rampur Tea Estate”is sold by a deed which contains a map o f the property sold. The fact that land not included in the map had always been regarded as part o f the estate and was meant to pass by the deed cannot be proved [lllnst. (c)].

57. A question based on this illustration.

[U P PCS 0) 1992[

190. Mark the Incorrect statement; (a) Sec. 57 authorizes the Courts to take judicial notice of the existence of all laws and statutes in the territory of India and U.K. (b) Sec. 64 recognizes statutory records to be 'public records’. (c) Sec. 78 lays down the method of proving the Statutes/Acts passed by the legislature. (d) According to Sec. 84, the Court presumes the genuineness of every book, printed or published under the authority of the Government of any country, which contains laws of that country.

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Exceptions “When Oral Evidence Can be Given Regarding a Document Xherc arc various exceptions to the general rule o f exclusion o f evidence o f oral agreement:

(1)

Validity of document (Proviso 1, Sec. 92) - The evidence can be given o f any fact which would invalidate the document in question or which would entitle a party to any decree or order relating to the document. The validity o f a document may be questioned on the grounds o f fraud, intimidations, illegality, failure o f consideration, mistake in fact or law

For example, A enters into a wntten contract with B to work certain mines o f B, upon certain terms. A was induced to do so by a misrepresentation o f B’ s as to their value. This fact may be proved [I/lust. (d)].58 A institutes a suit against B for the specific performance o f a contract, and also prays that the contract may be reformed as to one o f its provisions - inserted by mistake. A may prove that such a mistake was made as would by law entide to have the contract reformed [lllust. (e)]. The owner o f a house borrowed a sum o f money and executed a nominal sale-deed and rent note. She was allowed afterwards to prove that the documents were not intended to be acted upon and that the rent paid by her represented interest on the loan (Gangabai v Chabbubai AIR 1982 SC 20). (2) Matters on which document is silent (Proviso 2, Sec. 92) - Evidence can be given o f an oral agreement on a matter on which the document is silent. But the oral agreement should not be inconsistent with the terms stated in the document. The separate oral agreement should be on a distinct collateral matter, although it may form a part o f the transaction. Further, the formality o f the document is important; the more formal the document, the greater will be the court’ s reluctance to admit oral evidence. A written agreement, for example, is silent as to the time o f payment o f the price. If there is any oral agreement regarding this, it may be proved [lllust. (f)]. A sells B a horse and verbally warrants him sound. A gives B a paper in these words: “Bought o f A a horse for Rs. 500”. B may prove the verbal warranty [lllust. (g)].59 58. A question based on this illustration.

[UP. PCS Q)1992[

59. A question based on this illustration.

[UP. PCS Q)1984\ Objective Questions

(Multiple Choice)

191. Mark the Incorrect statement: (a) According to Sec. 83, maps or plans purporting to be made with th£ authority of the Central/State Government are presumed to be accurate. 1 (b) According to Sec. 83, maps or plans made by private persons are presumed to be accurate. (c) Presumption as to books, maps and charts under Sec. 87 could be raised in respect of a private publisher. (d) None of the above.

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W here a room is hired in a lodging on a fixed rent per month by a written agreement, but the agreement d oes not make it clear whether the amount reserved was for lodgin g only or included boarding also. If there was any oral agreement on the point the same may be proved [Must. (h)]. In Bnj & shore v LakJjnn Tiwari (AIR 1978 A ll 374), the docum ent in question was o n e by which the existence o f a deed was acknowledged and it was on a stamp paper. T h e docum ent was silent about the interest payable and, therefore, oral evidence was offered on the point. T he question was whether the docum ent was so form al as to shut out oral evidence. T he court allowed the evidence. It observed: W hen the docum ent is such that one may reasonably believe that the entire terms and condition s agreed were sought to be put into the document, then oral evidence 1 should n ot be allowed. Generally speaking, mere acknowledgment o f debt, even though stamped, cannot be deem ed to be such a formal docum ent as to incorporate all the terms and conditions o f the borrowing. (3)

Condition precedent (Proviso 3, Sec. 92) — This exception means that where there is a separate oral agreement that the terms o f a written contract are not to take effect until a condition precedent has been fulfilled or a certain event has happened, oral evidence is admissible to show that as the event did n ot take place, there is no written agreement at all. This rule would never apply to a case where the written contract has been perform ed or acted upon for som e time.

I f a receipt for payment has been sent on an oral understanding that the receipt was to apply only when payment was made, this fact may be proved [li/ust. (i)]. Similarly, where the parties to a prom issory note payable on demand, orally agreed that payment w ould not be demanded for five years, the court allowed the oral agreement to be proved (.Naraindas v Papammal AIR 1967 SC 333). A and B make a contract in writing to take effect upon the happening o f a certain contingency. T h e writing is left with B, w ho sues A upon it. A may show the circumstances under which it was delivered [Ii/nst. (j)]. (4) Redssion or modification (Proviso 4, Sec. 92) —Where after executing a document, the parties orally agree to treat it as cancelled or to m odify som e o f its terms, such distinct and subsequent oral agreement may be proved. However, where the contract is one which is required by law to be in writing, or where it has been registered lawfully, then p r o o f cannot be given o f any oral agreement by which it was agreed either to rescind the contract o r to m odify its terms. 192. Presumption a s to the genuineness of Electronic Agreements, Records, etc. Is contained In: (a) (b) (c) (d)

Sec. 85A. Sec. 85B. Sec. 85C. All of the above.

193. Sec. 88 provides for: (a) Presumption as to the telegraphic messages delivered to the addressee corresponds with the message handed over to the post office. (b) Presumption that the message was meant for the person whom it is purported to be delivered. (c) Presumption as to the sender of the message. (d) Both (a) and (b).

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(5)

117

Usages or customs (Promo 5> S e c 92) - Under this exception, oral evidence is adm issible to explain or supply terms in commercial transactions on the presum ption that the parties did not intend to put into writing the whole o f their agreement, but tacidy (impliedly) agreed that their contract was to be interpreted o r regulated by established usages and customs, provided they are n ot inconsistent with the terms o f such contract. Thus, oral evidence may be offered that by the custom o f the trade the seller had to arrange for w agon s (Bejoy Krishna v N.B. Sugar Mills Co. AIR 1949 Cal 490).

(6) Relation o f language to facts (Proviso 6t S ec 92) - Any fact may be proved which show s in what manner the language o f a document is related to existing facts. T his exception com es into play when there is latent ambiguity in a docu m en t i.e. when there is a conflict between the plain meaning o f the language used and the existing facts. In such cases, evidence o f the “surrounding circumstances”may be admitted to ascertain the real intention o f die parties. Thus, the conduct o f the parties can also be taken into account s o as to find out what they might have meant by their words. Where, for example, a person transfers the whole o f his property, but does not describe o r state what his property is. In such cases the property to which the docum ent relates can be proved by oral evidence. A makes a will o f his property to his children. H e d oes not name them. Evidence may be given to prove as to who are his children. Oral evidence is also receivable to throw light upon the nature o f a document. (7) Appointment o f a public officer (Exception 1, Sec. 91) - See above. (8)

W ills (Exception 2, Sec. 91) - See above.

(9) Extraneous facts (Explanation 3, Sec. 91) - See above.

AMBIGUOUS DOCUMENTS W h e n a docum ent is ambiguous i.e. either its language does not show the clear sense o f the docum ent or its application to facts creates doubts, how far oral evidence can be allowed to clarify the language or to remove the defect? Sections 93-98 by down the rules as to interpretation o f documents with the aid o f such ‘ extrinsic evidence’ (evidence from the outside). O b jective Q u estio n s

(Multiple Choice)

194. Sec. 88A provides for: (a) Presumption as to the electronic messages forwarded corresponds with the message as fed in the computer. (b) Presumption as to the sender of the message. (c) Both (a) and (b). (d) None of the above.

195. A document is said to be in the handwriting of ‘ A’ . That docum ent Is produced from proper custody. If the document Is purporting or proved to b e __years old, the court may presume that It Is In ‘ A’ s handwriting. (a) (b) (c) (d)

Thirty. Fifteen. Twenty. Twelve.

[M.P. CJ. (Prelim.) 2000}

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Ambiguities are o f two kinds: a/nbiguitas patens i.e. patent ambiguity (Secs. 93-94) and a/nbiguitas latens i.e. latent ambiguity (Secs. 95-97). A patent ambiguity means a defect which is apparent on the face o f the document. In such cases the principle is that oral evidence is not allowed to remove the defect. A latent defect implies a defect which is not apparent on the face o f the record, but is in the application o f the language (used in the document) to the facts stated in it. The general principle is that evidence can be given to remove such defects.60

SEC. 93: Exclusion of Evidence to Explain or Amend Ambiguous Document “V vhcn the language used in a document is, on its face, ambiguous or defective, evidence may not be given o f 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 o f facts which wo show h ow they were meant to be filled. T he reason for the exclusion o f evidence in such cases is that the document being clearly or apparently defective, this fact must be or couldVe been known to the parties and if they did not care to remove it then it is too late to remove it when a dispute has arisen. If the docum ent had mentioned no price at all, oral evidence o f the price could be allowed under Sec. 92 (2nd proviso). While no extrinsic evidence can be given to remove patent defect, the court may, if it is possible, fill up the gaps or blanks in a docum ent with the help o f the other contents o f the document (e.g. where a lease deed left blanks at the place o f date, but in another part it said that the first installment o f rent would be paid on a certain date).

SEC. 94: Exclusion of Evidence against Application of Document to Existing Fact “ VC^hen language used in a document is plain in itself^ and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts” 60.

Distinguish between patent and latent ambiguities. Give examples o f such ambiguities. Can evidence be led to explain them? [U.P. PCS (J) J986\ [R*)JS. 1994\ 196.

Mark the Incorrect statement In relation to Sec. 90: (a) The presumption can be raised only with reference to original documents and not to copies thereof. (b) Sec. 90 applies to both testam entary and non-testam entary documents. (c) Presumption relates to the execution of the document and not to the truth of its contents. (d) A party who has attempted to prove the document by direct evidence can afterwards rely on the presumption.

**

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Illustration. A sells to B, by deed “my estate at Rampur containing 100 bighas.”A has an estate at Rampur containing 100 bighas. Evidence may not be given o f the fact that the estate meant to be sold was one situated at a different place and o f a different size.

SEC. 95: Evidence as to Document Unmeaning in Reference to Existing Facts A c c o r d in g to S e c 95, when the language o f a document is plain but in its application to existing facts it is meaningless, evidence can be given to show how it was intended to apply to those facts. Illustration. A sells to B, by deed, “ my house in Calcutta”. A had n o house in Calcutta, but it appears that he had a house at Howrah, o f which B had been in p ossession since the execution o f the deed. These facts may be proved to show that the deed related to the house at Howrah.

SEC. 96: Evidence as to Application of Language which can Apply to One only of Several Persons A c c o r d in g to Sec. 96, when the language o f a document is clear and is intended to apply to only on e thing or person, but in its application to the existing facts it is difficult to say to which particular thing or person it was intended to apply, evidence can be offered to clarify this matter. Illustrations-, (a) A agrees to sell to B, for Rs. 1,000 “ my white horse”. A has two white horses. Evidence may be given o f the facts which show which o f them was meant.61 (b) A agrees to accompany B to Hyderabad. Evidence may be given o f facts show ing whether Hyderabad in the Deccan or in the Sind was meant. Where a pronote mentioned a date according to the local calendar and also according to the international calendar, the evidence could be offered to show which date was meant. In one case, a I 'akalatnama did not contain the name o f the

61. A question based on this illustration.

[U.P. PCS (J) I98S/2000\ O bjective Quemtionm

(Multiple Choice)

197. The presumption under Sec. 90 (a) is a presumption of fact. (b) is of discretionary nature; the court may refuse to draw it and require the document to be proved in the ordinary manner. (c) both (a) and (b) are correct. (d) both (a) and (b) are incorrect.

198. The period of thirty years under Sec. 90 Is to be reckoned from (a) the date on which the document is relied upon. (b) the date on which the document is filed in the court. (c) the date on which the document is tendered In evidence, when its genuineness is in issue. (d) none of the above.

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pleader after the word “Mr.”in the printed fortn but bore the signature o f the party as well as the pleader. Held that the ambiguity in the docum ent was not patent but latent which could be cleared up by extrinsic evidence under Sec. 96.

SEC. 97: Evidence as to Application of Language to One of Two Sets of Facts A c c o r d in g to Sec. 97, when the language o f a document applies partly to one set o f facts and partly to another, but does not apply accurately to either, evidence can be given to show to which facts the document was meant to apply. Illustration. A agrees to sell to B “my land at X in the occupation o f Y.”A has land at X, but not in the occupation o f Y, and he has land in the occupation o f Y, but it is not at X. Evidence may be given o f facts showing which he meant to sell.

SEC. 98: Evidence as to Meaning of Illegible Characters, etc. A c co r d in g to Sec. 98, evidence may be given to show the meaning o f illegible or not com m only intelligible characters o f foreign, obsolete, technical, local and provincial expression, o f abbreviations and o f words used in a peculiar sense. Illustration. A, a sculptor, agrees to sell to B, “ all my models”, A has both models and modelling tools. Evidence may be given to show which he meant to selL Thus, oral evidence is permissible for the purpose o f explaining artistic words and symbols used in a document

SEC. 99: Evidence by Non-Parties “P e rso n s who are not parties to document, or their representative-in-interest, may give evidence o f any fact tending to show a contemporaneous agreement varying the terms o f the document”. It may be noted that the parties to a document or their representative-in-interest cannot give evidence o f a contemporary agreement varying the terms o f the document (Sec. ^2). But, Sec. 99 provides that a third party can give evidence o f such an oral agreement if he is affected by it. Illustration: A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery. At the same time, they make an oral agreement that 3 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 his interests.

199. According to the Explanation to Sec. 90, “ proper custody”means (a) (b) (c) (d)

the place where the document would normally be. was under the care of a person with whom it would naturally be. any custody which is proved to have had legitimate origin. all of the above.

200. Under Sec. 90A, the presumption as to Electronic Records Is for the records: (a) (b) (c) (d)

2-year old. 3-year old. 5-year old. 10-year old.

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121

SEC. 100: Saving o f Provisions of Indian Succession Act relating to Wills “N otiling in this Chapter contained shall be taken to affect any o f the provisions o f the Indian S u ccession Act (X o f 1865) as to the construction o f w ills'1 It may be n oted that Indian Succession Act, 1865 has been replaced by the Act o f 1925.

PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII OF THE BURDEN OF PROOF [SECS. 101-114A] E v e r y judicial proceedin g has for its purpose, to ascertain som e right or liability. These rights and liabilities arise out o f facts which must be proved to the satisfaction o f the court. Sections 101 to 111 lays down provisions regarding w ho is to lead evidence and prove the case. These rules are called rules relating to ‘ Burden o f Proof*.

SEC. 101: Burden of Proof “W h oever desires any court to give judgment as to any legal right or liability dependent o n the existence o f facts which he asserts, must prove that those facts exist. W hen a person is bound to prove the existence o f any fact, it is said that the burden o f p r o o f lies on that person.** Illustrations-, (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 com m itted the crime. \ (b) A desires a court to give judgment that he is entitled to certain land in the possession o f B, by reason o f facts which he asserts, and which B denies, to be true. A must prove the existence o f those facts.

O b je c tiv e Q u e s tio n s

(Multiple Choice)

201.

Where both oral as well as documentary evidence are admissible: (a) (b) (c) (d)

202.

The court may go by the evidence which seems to be more reliable. The documentary evidence should prevail over the oral evidence. Both (a) and (b) are correct. Both (a) and (b) are incorrect.

The provisions a9 to exclusion of oral by documentary evidence under Secs. 91 and 92 are based on the rule of. '

(a) (b) (c) (d)

Best evidence. Hearsay evidence. Both (a) and (b) are correct. Both (a) and (b) are incorrect.

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Similarly, where a landlord seeks eviction on the ground of bona fide personal need, burden lies upon him to establish that he is genuinely in need of accommodation (SJE B ernier v Velayudhan AIR 1998 SC 746).

SEC. 102: On Whom Burden of Proof Lies42 “1 he burden o f proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” (a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will o f C, B’ s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden o f proof is on A. Illustrations-,

(b) A sues B for money due on a bond. The execution o f 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. Similarly, in cases o f insanity, burden o f proving that fact lies on the person who wants to rely on it. Where the issue was whether the document in question was genuine or sham or bogus, the part)' who alleged that fact had to prove nothing till the part)- relying upon the document established its genuineness in the first place (Subhra M nkberjee v Bharat Coking C oa l Ltd. AIR 2000 SC 1203). In an action for damages for negligence, if the defendant alleges contributory negligence on the part o f the plaintiff, he must prove this fact, for his case would fail if no evidence were given on either side. This principle also verifies the fact that the burden o f proof lies upon the party who affirms a fact rather than upon one who denies it. A person claiming the benefit of adoption must prove valid adoption. Where the Government totally prohibits certain kinds o f trade, it would be for it to show that the prohibition is in the nature o f reasonable restriction on trade liberty. Ordinarily, however, burden of proof is on the party who challenges the constitutional validity of an Act or Rule (Amrit Banaspati Co. v U O I AIR 1995 SC 1340).

62. On whom does the burden of proof lie in civil and criminal cases? [UP. PCS (]) 1987\

203. Sec. 91: (a) Applies to transactions which under the law must be in writing or are reduced Into writing voluntarily. (b) Prohibits admission of oral evidence to prove the contents of a document, where the writing Is a fact In Issue. (c) Applies to the terms 8nd not to the factum (or existence) of a contract, and evidence In proof of a factum of a contract Is not excluded. (d) All are correct.

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SEC. 103: Burden o f Proof as to Particular Fact ■ ‘ T h e burden o f p roof 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.” Illustrations', (a) A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C A must prove the admission.

(b) B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it. Similarly, a person who signed a loan document admitted the loan and if he says that he signed a blank paper, the burden would lie upon him to prove that fact Meaning o f Burden o f P ro o f3

The burden o f p roof means the obligation to prove a fact. Every party has to establish facts which go in his favour or against his opponent. The strict meaning of the term ‘ burden o f proof’(onus probandt) is that if no evidence is given by the party on whom the burden is passed the issue must be found against him. The phrase “ hurden o f proof”has two distinct meanings: (1) Barden o f p r o o f as a matter o f law and pleading - i.e. the burden o f proving all the facts or establishing one’ s case. This burden rests upon the same party, whether plaintiff or defendant, who substantially asserts the affirmative o f the issue. It is fixed, at the beginning of the trial, by the statements of pleadings, and it is settled as a question of law, remaining unchanged under any circumstances whatever (Sec. 101). (2) Barden o f p ro o f as a matter o f adducing evidence - either at the beginning or at any particular stage o f the case. It is always unstable and may shift constantly throughout the trial (Secs. 102-103). It lies at first on the party who would be unsuccessful if no evidence at all was given on either side. The burden must shift as soon as he produces evidence which prim a fade gives rise to a presumption in his favour. It may again shift back on him, if the rebutting evidence produced by his opponent preponderates. This being the position, 63. What do you mean by butden of proof?

\U.P. PCS (J) 1987\ Objective Queation* (Multiple Choice)

204. In which of the following cases, oral evidence cannot be given? (a) A leases his house to B via a written lease. Later, A files a suit for arrears of rent and for ejectment. A alleges that the tenancy was from month to month, while B contends that It ran from year to year. (b) A sues B for the possession of a certain house alleging that it belongs to him and B is a trespasser. B contends that the house belongs to him and alleges that there was previous civil litigation between the same parties for the same house and It was decided that the house belongs to him. (c) Both (a) and (b). (d) Only (a).

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the question as to the onus o f proof is only a rule for deciding on w h om the obligation rests o f goin g further if he wishes to win. There is an essential distinction between “burden o f p r o o f ” and “onus o f p r o o f ”. Burden o f p r o o f lies on the person w ho has to prove a fact and it never shifts, but the onus o f p r o o f shifts. Such a shifting o f onus is a continuous process in the evaluation o f evidence. Thus, in a criminal case, on ce the prosecution has satisfied the court o f the fact that the accused comm itted the crime o f which he is charged, the onus is shifted to the accused to show as to why he should not be punished for it. Onus probandi - T he term merely means that if a fact has to be proved, the person in w h ose interest it is to prove it, should adduce som e evidence, however slight, upon which a court could find the facts which he desires the court to find. T he onus is always on a person w ho asserts a proposition or a fact which is not self-evident. T he question o f onus probandi is certainly important in the early stage o f his case. Thus, the onus o f proving negligence o f the Railway Com pany lies on the plaintiff when he asserts that the injuries caused to him arc by reason o f the negligence o f the Railway Company. Im portance o f Burden o f Proof64 T he question o f onus o r burden o f p r o o f at the end o f the case, when both the parties have adduced evidence is not o f very great importance and the court has to co m e to a decision on a consideration o f all materials. When the entire evidence, which is possible on a subject, has already com e before the court, from whatever source it may be, it is well setded that the question o f burden o f p r o o f becom es immaterial. Burden o f p r o o f as determining factor o f the whole case can only arise if the court finds the evidence fo r and against so evenly balanced that it can com e to n o conclusion. T hen the onus will determine the matter and the person on w hom the burden o f p r o o f lies will lose. It may be noted that a person cannot be relieved o f his burden o f proving a fact even if the fact is such that it is very difficult o r rather im possible to prove. Where a wife in a divorce pedtion alleged adultery on the part o f her husband, it 64.

‘ Where the pardes have led evidence and relevant facts are before the court and all that remains for decision is what inference is to be drawn from them, the question o f burden o f p ro o f is not material’ . Comment. [UP. P C S (J) 1983/1987\ 205. The question Is whether A Is a High Court Judge. If he Is working as a High Court Judge, his warrant of appointment: (a) (b) (c) (d)

Need Need Oral None

not be proved. to be proved. evidence has to be given. of the above.

206. The fact of adoption of a child has to be proved by: (a) (b) (c) (d)

By adoption-deed only. By oral evidence. By other relevant facts. Any of the above.

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was held that burden was upon her to prove that fact and it was no excuse to say that it was virtually im possible to procure evidence o f that fact (Pushpa Datta Mishra v Archana M ishra AIR 1992 M.P. 260). T h e part}' o n which the onus o f p ro o f lies must, in order to succeed, establish a prim a facie case. H e cannot, on failure to do so, take advantage o f the weakness o f his adversary’ s case. H e must succeed by the strength o f his own right and the dearness o f his ow n proof. The general rule that a party' who desires to move the court m ust prov e all facts necessary for that purpose is subject to two exceptions, (a) he will n ot b e required to prove such facts as are specially within the knowledge o f the other party (Sec 106); (b) he will not be required to prove so much o f his allegations in respect o f which there is any presumption o f law (Secs. 107-113), or in som e cases, o f fact (Sec. 114) in his favour.

SEC. 104: Burden of Proving Fact to be Proved to Make Evidence Admissible “ T h e burden o f proving any fact necessary' to be proved in order to enable any person to give evidence o f any other fact is on the person who wishes to give such evidence.” Illustrations (a) A wishes to prove a dying declaration by B. A must prove B ’ s death. (b) A w ishes to prove, by secondary evidence, the contents o f a lost document. A m ust prove that the docum ent has been lost.

SEC. 105: Burden of Proving Exception in Criminal Cases65 A c c o r d in g to Sec. 105, ‘ the burden o f p ro o f is upon the accused o f showing existence, if any, o f circumstances which bring the offence charged within any o f the special as well as any o f the general exceptions or proviso contained in I.P.C or any law defining the offence. Further, the court shall presume the absence o f such circumstances*.

65.

Explain and examine the nature of burden an accused is expected to discharge in a criminal case with illustrations. [D elhiJ.S.198C\ O b je c tiv e Qnemtioskm

(Multiple Choice)

207.

208.

If a contract Is contained In a bill of exchange, then to prove the contract: (a) (b) (c) (d)

The bill of exchange has to be proved. Oral evidence can be given. Both (a) and (b) are correct. Both (a) and (b) are incorrect.

In which of the following cases, oral evidence can be given? (a) A contract for sale of goods mentions that the goods supplied on earlier occasions have been paid for. Oral evidence offered to show that no such payment was ever made. (b) A gives B a receipt for money paid by B. Oral evidence is offered of the payment. (c) Both (a) and (b). (d) Only (a).

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Illustrations

(a) A, accused o f murder, alleges that, by reason o f unsoundness o f mind, he did not know the nature o f the act. The burden o f p r o o f is on A. (b) A, accused o f murder, alleges that, by grave and sudden provocation, he was deprived o f the pow er o f self-control. The burden o f p r o o f is on A. (c) Sec. 325, IPC provides that whoever, except in the case provided for by Sec. 335, voluntarily causes grievous hurt, shall be punished. A is charged under Sec. 325. The burden o f proving the circumstances bringing the case under Sec. 335 lies on A. The fundamental principle o f criminal jurisprudence is that an accused is presumed to be innocent, and the burden lies on the prosecution to prove the guilt o f the accused beyond reasonable doubt. This general burden never shifts, and it always rests on the prosecution. Sec. 105 is an important qualification o f this general rule.65a This section is an application, perhaps an extension o f the principle laid dow n in Sec. 103. In Dayabhai v State o f Gujarat (AIR 1964 SC 1563), the Court observed that there is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused under Sec. 105. In Rabindra Kumar Dey v State o f Orissa (1976) 4 SCC 233, it observed: “Sec. 105 does not at all indicate the nature and standard o f p r o o f required. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and vigour as the prosecution; it is sufficient if he proves his case by the standard o f ‘ preponderance o f probabilities’envisaged by Sec. 5 as a result o f which he succeeds not because he proves his case to the guilt but because probability o f the version given by him throws doubt on the prosecution case and, thus, the prosecution cannot be said to have established the charge beyond reasonable doubt.” The onus o f an accused person may well be com pared with the onus o f a party in a civil case. Further, if the prosecution proves beyond reasonable doubt that the accused has com m itted offence, the accused can rebut this presumption either by leading evidence or by relying on the prosecution evidence itself. If upon evidence adduced in the case either by prosecution or by defence a reasonable doubt is created in the mind o f the court, the benefit o f it should g o to the accused. 65a. In a criminal trial the burden o f proof is always on the prosecution. H as this rule any exceptions? [Raj.J.S. 1991\ 209. Sec. 92: (a) Prohibits admission of oral evidence, in respect of a proved written document, for the purpose of contradicting, varying, adding or subtracting from the terms of the document. (b) Precludes only the parties to the document and their representativesin-interest from giving oral evidence; other parties (or strangers) are left free to give such evidence. (c) Evidence can be given of any oral agreement which does not contradict, vary, add or subtract from the terms of the document. (d) All are correct.

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It may b e n oted that in certain “socio-econom ic” and “environm ental” legislations, the burden lies upon the accused. For example, under the Prevention

o f C orruption Act, 1988, the burden is on the accused to account for his possessions. Where the presu m ption o f innocence is reversed by a statutory provision so that the burden is o n the accused to show (e.g. that he was in innocent possession o f an assault rifle), held that such burden should not be as heavy as that o f the prosecution but even s o should be o f greater probability [Sanjery D ull v Stale (1994) 5 S C C 410]. SEC. 106: B u rd en o f P rov in g Fact Especially within K now ledge “Vf^hen any fact is specially within the knowledge o f any person, the burden o f proving that fact is u pon him.” Illustrations-, (a) W hen a person does an act with some intention other than that which the character and circumstances o f the act suggest, the burden o f proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. T h e burden o f proving that he had a ticket is on him. Sec. 106 applies only to the parties to a suit or proceeding. Sec. 106 is an exception to Sec. 101. It is designed to meet certain exceptional cases in which it would be im possible or very difficult for the prosecution to establish facts which are especially in the knowledge o f the accused. I f a person is found in possession o f a stolen property immediately after the theft and he claims that there was no intention to receive stolen property, he must prove that fact, for that fact is especially within his knowledge. Similarly, in the case o f plea o f alibi, since only the person raising the plea knows that where he was at the time, burden lies o n him to prove that fact. This section also co m e into play in the cases o f custodial or dowry death, and, negligence o f carriers o f goods. T h e principle stated in the section is an application o f the principle o f res ipsa loquitur. SEC. 107: B urden o f Proving Death “W h e n the question is whether a person is alive or dead, and it is show n that he Objective Question* (Multiple Choice)

210.

A borrows Rs. 200 from B and executes a pronote In which the Interest rate Is given 1 per cent. B flies suit for recovery of the principal and Interest a t the rate of 1 per cent. The pronote Is filed and proved In the court. A w ants to lead evidence to the effect that the Interest settled between th e parties was Va percent. (a) (b) (c) (d)

T h is evidence cannot be allowed. T his evidence can be allowed. T his evidence may be allowed. None of the above.

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was alive within thirty years, the burden o f proving that he is dead is on the person w h o affirms it.”66

SEC. 108: Burden of Proving that Person is Alive who is Unheard of for 7Years S ec. 108, on the other hand, provides that when it is proved that a person has not * *i been heard o f for 7 years by those w ho would naturally have heard o f him if he had been alive, the burden o f proving that he is living is shifted to the person who affirms it. There is a general presumption o f continuity o f things. Sec. 107 provides that when a person is shown to have existed within the last 30 years, the presumption is that he is still alive and if anybody alleges that he is dead, he must prove that fact. This presum ption is, however, not a very strong one. A ccording to Sec. 108, if a person is not heard o f for 7 years, the presumption is that he has died, and, if anybody alleges that he is still alive, he must prove that fact. Thus, seven years’ absence creates rebuttable presumption o f death. There is a simple presumption o f death and not o f the time o f death, for which an independent evidence is needed. The onus o f proving that death took place at a particular time within the period o f 7 years lies on the person w ho claims a right for the establishment o f which that fact is essential. In Darshan Singh v Gujjar Singh (2002) 1 Supreme 36, the plaintiff claimed succession to the estate o f a person w ho had not been heard o f for 7 years. The High Court held that the date o f the suit should be taken to be the date o f death. The Supreme Court did not approve o f this view. In Muhammad Sharif v Bande AH (ILR (1911) 34 All 36), one M mortgaged certain property to the defendant in 1890. Thereafter he disappeared and\nothing was i heard o f him again. His heirs filed a suit for the redemption o f mortgage 18 years after M’ s absence. They contended that as M disappeared some 18 years ago, he must be presumed to have been dead for the last 11 years. It was held that presumption in Sec. 108 does not g o further than the mere fact o f death. There is no presumption that he died in the first 7 years or in the last 7 years. 66. When the question is whether a person is alive or dead, and it is shown that he was alive within thirty years, on whom the burden lies o f proving that the man is dead? [Raj.J.S. 1991\ 211. In which of the following cases, oral evidence can be given regarding a document: (a) (b) (c) (d)

Of any fact which would invalidate the document in question. Matters on which document is silent. Usages or customs. All of the above.

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SEC. 109: Burden of Proof as to Relationship of Certain Kind R e c o r d in g to Sec. 109, where certain persons are shown to have acted as partners, or as landlord and tenant, or as principal and agent, the law presumes them to be so related and the burden o f proving that they were never so related or have ceased to be so shall lie upon the party who says so. Thus, there is a presumption against change o f status quo, namely that any existing state o f things will continue as it is.

SEC. 110: Burden of Proof as to Ownership \ ^ h e n a person is in possession o f any thing as owner, the burden o f proving that he is not ow ner is on the person w ho affirms that he is not the owner. This section gives effect to the principle that possession is the prima jade evidence o f a com plete title. T he p o ssessio n contemplated is the actual physical possession. Further, S e c 110 is not limited to immoveable property and applies to moveable property as well.

SEC. I l l : Proof of Good Faith Vf^hen a person stands towards another in a position o f active confidence, the burden o f proving the g o o d faith o f any transaction between them lies on the person in active confidence. Illustrations-, (a) T he g o o d faith o f a sale by a client to attorney is in a suit brought by the client. T h e burden o f proving the good faith o f the transaction is on the attorney. (b) The g o o d faith o f a sale by a son just come o f age to a father is in question in a suit brought by the son. The burden o f proving the good faith o f the transaction is on the father. Relations o f trust and confidence (i.e. fiduciary relation) include those o f parent and child, lawyer and client, spiritual guru and his follower, principal and agent, partner and firm, d octor and patient, persons in authority and those over whom he exercises authority. In all such cases, the law imposes the duty o f g ood faith upon the person occupying the position o f trust and confidence, and he will have to prove that he

O b je c tiv e Q acw tio n *

(Multiple Choice)

212.

In which o f the following cases, oral evidence can be given: (a) A enters into a written contract with B to work certain mines o f B, upon certain terms. A was induced to do so by a misrepresentation^ of B's as to their value. (b) A se lls B a horse and verbally warrants him sound. A gives B a pa p e r in these words: "Bought of A a horse for Rs. 500". (c) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon i t (d) All of the above.

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acted in g o o d faith before he can enforce the transaction against the other party. A contract with a purdunasbin woman attracts Sec. 111.

PRESUMPTIONS67

A

court can take into consideration certain facts even without calling for p r o o f o f

them. W hen the court presumes the existence o f a fact that is known as a ‘ presumption* (‘ a thing taken for granted*). A presumption is an inference o f fact drawn from other known or proved facts. It means a rule o f law that courts and judges shall draw a particular inference from a particular fact, or from a particular evidence, unless and until the truth o f such inference is disproved. T he effect o f a presum ption is that a party in w hose favour a fact is presumed is relieved o f the initial burden o f p r o o f (as a presumption furnishes prim a jade evidence o f the matter to which it relates) until the opposite party introduces evidence to rebut the presumption. ‘ Presumptions hold the field in the absence o f evidence but when facts appear, presum ptions g o back.* Presum ptions arc the result o f human experience and reason as applied to the course o f nature and the ordinary flow o f life. I f a man and wom an are found alone in suspicious circumstances the law presumes that they were not there to say their prayers and the divorce laws would take this as evidence o f adultery. Similarly, from the fact that a letter has been posted, the natural inference (presumption) w ould be that it reached the addressee. Presumptions are aids to the reasoning and argumentation, which assume the truth o f certain matters for the purpose o f som e given inquiry. They may be grounded o n general experience, or merely o n policy and convenience. For example, the 67.

“Presumptions may be looked on as the bats o f the law, flitting in twilight but disappearing in the sunshine o f actual facts.” Explain while discussin g in brief the different kinds o f presumptions by the Indian Evidence Act. [D elhi J.S. 1990[ Distinguish between rebuttable and irrebuttable presumptions. Illustrate. [UP. P C S (J) 1986\ What do you understand by conclusive and rebuttable presumption? Explain. [U P P C S (J) *999l 213.

Under Sec. 92, oral evidence Is permissible: (a) Where the document does not record all the term s o f the contract. (b) Where the contract has been written voluntarily and not required by laws to be so written. (c) Both (a) and (b). (d) Only (a).

214. A hires lodgings of B and gives a card on which Is written “Rooms, Rs. 200 a month". A tenders oral evidence to prove a verbal agreem ent that these terms were to Include partial board. The evidence Is: (a) (b) (c) id)

Inadmissible under Sec. 91. Inadmissible under Sec. 92. Admissible. Irrelevant.

[M.P. C.J. (Prelim.) 1996)

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resum ption in Sec. 112 o f the legitimacy o f a child bom to married parents is a {natter o f policy and expediency and also o f convenience. O n whatever basis they rest, they operate in advance o f argument o f evidence. \

Kinds o f Presumptions

P r e s u m p tio n s are o f three kinds: (a) Presumption o f fact (rebuttable) (b) presumption o f law (rebuttable and irrebuttable), and (c) Mixed presumptions or presumption o f law and fact. Mixed presumptions are chiefly confined to the English law.

(a) Presum ption o f Fact

Way Presume*69 Whenever it is provided by this Act that “the court may presume a fact”, it may either regard such fact as proved, unless and until it is disproved, or may call for p r o o f o f it (Sec. 4). Presum ptions o f fact, or natural presumptions, are inferences which the mind naturally and logically draws from given facts, irrespective o f their legal effect. The sources being the co m m o n course o f natural events, the com m on course o f human conduct and the co m m o n course o f public and private business. For example, where a d o cto r gave an injection for determination o f pregnancy which resulted in miscarriage and death o f the woman, it was held that the doctor could be presumed to know the side effects o f the medicine. A presum ption o f this kind is wholly in the discretion o f the court. T he court may or may not presume the existence o f the fact in question. For example, where a person is show n to be in possession o f stolen goods soon after the theft, the court may presum e that he was the thief himself or had knowledge o f the fact that the property in question was stolen. All the presumptions stated in Secs. 86-88, 90 and Sec. 114 are o f this kind. 68. Explain the phrase ‘ the Court may presume* and illustrate.

[Raj.J.S. 1999[

O b je c tiv e QummlMamm

(Multiple Choice)

215.

Mark the Incorrect statement: (a) (b) (c) (d)

216.

Sec. 91 Sec. 92 Both (a) Both (a)

applies to both unilateral and bilateral documents. applies onlv to bilateral documents. and (b) are incorrect. and (b) are correct.

Extrinsic or oral eviden ce can be given In c a s e s of a m b igu ou s documents. But such evidence Is allowed only when the defect In the document Is: (a) (b) (c) (d)

Latent. Patent. Both (a) and (b). Negligible.

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Presum ptions o f fact are also rebuttable, as their evidentiary effect can be negatived by a contrary proof. W hen the court refuses to exercise its discretion, then it may call upon the parties to prove the fact by leading evidence T he court may even require further p r o o f o f the fact presumed.

(b) Presumption of Law 'Shall Presume'69 Wherever it is laid dow n that “the court j ball presume a fact”, it means that the court must regard such fact as proved, unless and until it is disproved {Sec. 4). There are two kinds o f presum ptions o f law: rebuttable (‘ shall presum e’ ) and irrebuttable (‘ conclusive proof). Presum ptions o f law are arbitrary inferences which the law expressly directs the judge to draw from the particular facts. T hese presumptions are expressed in the form o f artificial rules. T hese are always obligatory i.e. the court has n o option in the matter, and is bound to take the fact as proved, unless the party interested in disproving it produces sufficient evidence for that purpose. Thus, if the opposite party is successful in disproving it, the court shall not presume the fact. Examples o f such presum ptions include Secs. 79-85, 89, Sec. 111A. Thus, the court shall presum e the accuracy o f maps/plans made by a Governm ent authority. All the presum ptions stated in Sec. 118 o f the Negotiable Instruments A ct are presum ptions o f law. ‘ Conclusive P r o o f 70 “ When one fact is declared by this Act to be conclusive p ro o f o f another, the court shall, on p r o o f o f the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose o f disproving it”{Sec. 4). The court has no discretion at all. It cannot call upon a party to prove that fact nor can it allow the opposite party to adduce evidence to disprove the fact. By declaring certain facts to be conclusive p r o o f o f another, an artificial probative effect is given by the law to certain facts and n o evidence is allowed to 69. Explain the phrase ‘ the Court shall presum e’and illustrate.

[Raj.J.S. 1999[

70.

[Raj.J.S. 1994\

What d o you mean by ‘ Conclusive P roof’ ?

217.

In which of the following cases, oral evidence can be given to cure the defect In the document? (a) A deed contains blanks. Evidence given of facts to show how they were meant to be filled. (b) A agrees to sell to B, for Rs. 1,000 "my white horse". A has two white horses. Evidence given of the facts to show which of them was meant. (c) Both (a) and (b). (d) Only (b).

218. A agrees, In writing, to sell a horse to B for Rs. 1,000 or Rs. 1,500. To show which price was to be given (a) (b) (c) (d)

oral evidence can be given. antecedents of the parties are to be seen. oral evidence cannot be given. none of the above. [M.P. C.J. (Prelim ) 1999]

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be prod u ced with a view to combating that effect These cases generally occu r when it is against the policy o f Governm ent or the interest o f society that a matter may be further o p e n to dispute. The differences between rebuttable and irrebuttable (conclusive) presum ption are: (i) A rebuttable presumption can be overthrown by a contrary evidence, while irrebuttable cannot. A conclusive proof is Juris et de jure Le. incapable o f rebuttal. (ii)

In case o f rebuttable presumption, the court regards such fact as proved unless and until it is disproved. The court, here, dispenses with the necessity o f formal proof. In conclusive proof, the court shall on p r o o f o f on e fact regard the other as proved (when one fact is declared to be conclusive p r o o f o f another) and shall not allow evidence to disprove it

(iii)

Exam ples o f rebuttable presumption - A person not heard o f for 7 years is dead, o r that a bill o f exchange has been given for value. S e c 105 (burden o f proving that case o f accused comes within exceptions). Secs. 107-108 (presumption o f survivorship) and Sec. 114-A (presumption as to absence o f consent in certain prosecutions for rape).

Examples o f conclusive presumption - A child under a certain age is incapable o f comm itting any crim e (Sec. 82, IPQ . Sec 41 (final judgment in probate, matrimonial, admiralty o r insolvency jurisdictions are conclusive in certain respects). S e c 112 (conclusive p r o o f o f legitimacy). Sec. 113 (valid cession o f territory) and S ecs 115117 (Estoppel) o f the Evidence A ct Conclusive Proof v Conclusive Evidence The ob ject o f adducing evidence is to prove a fact. Since an evidence means and includes all statements which the court permits, when the law says that a particular kind o f evidence w ould be conclusive as to existence o f a particular fact, it implies that fact can be proved either by that or some other evidence which the court permits. W here such other evidence is adduced, the court could consider whether upon that evidence, the fact exists or not. O n the oth er hand, when evidence that is made ‘ conclusive’is adduced, the court has n o o p tio n but to hold that fact exists. Otherwise, it would be meaningless to call a particular evidence as ‘ conclusive’ .A ‘ conclusive evidence' shuts out any other

Objectivee

gnertfom

(Multiple Choice)

219.

220.

According to Sec. 98, evidence may be given to show the m eaning of: (a) Not commonly intelligible characters. (b) Foreign, obsolete or technical words. (c) Words used in a peculiar sense. (d) All o f the above.

S ection s 101 to t n lays down provisions regarding who Is to lead evidence and prove the case. These rules are called rules relating to; (a) (b) (c) (d)

Presumptions. Burden of proof. Estoppel. All o f the above.

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evidence which would detract from the conclusiveness o f that evidence. In substance, there is no difference between ‘ conclusive evidence’and ‘ conclusive p r o o f’ . In each, the effect is same i.e. making a fact non-justiciable (irrebuttable). The aim o f both being to give finality to the establishment o f existence o f a fact from the p r o o f o f another \Som aan ti v State o f Punjab AIR 1963 SC 151). Under Sec. 6 o f the Land Acquisition Act, 1894, the State’ s declaration o f land being required for a public purpose, is a ‘ conclusive presumption’ . A party cannot successfully argue that certain fact recognized by the statute as conclusive evidence are different from conclusive proof.

'Presumption' and 'Proof “P ro o f”is that which leads to the conclusion as to the truth or falsity o f alleged facts which are the subject o f inquiry. Proof may be effected by evidence, presumption, admissions or judicial notice. Thus, presumptions are the means and proof is the end o f judicial inquiry. Presumption is one o f the means o f effecting proof. A presumption is not in itself evidence but only makes a prim a facie case for party in whose favour it exists. It indicates the person on whom the burden o f proof lies. When presumption is conclusive, it obviates the production o f any other evidence. A party in whose favour a fact is presumed is relieved o f the initial burden o f proof. . Because the burden ‘ Presumption and onus o f p roof are two sides o f the same ;oin ’ o f disproving a fact lies on the one party, the court must presume the fact in favour o f the other. A rule o f burden o f p roof is nothing but a rule o f presumption.

Presumptions Relating to Documents (Secs. 79-90) See

above.

Presumption of Innocence and Sec. 105 See

above.

Presumption of Survivorship (Secs. 107-108) See

above.

SEC. 111-A: Presumption as to Offences in Disturbed Areas U n d e r this section (introduced in 1984), if a person is accused o f having committed any offence under Secs. 121, 121-A, 122 or 123 o f the Indian Penal Code, or o f 221. The burden of proof means:

222.

(a) The burden of proving all the facts or establishing one's case. (b) The burden as to introduction of evidence. (c) That if no evidence is given by the party on whom the burden is passed the issue must be found against him. (d) All of the above. Burden of proof has been defined In: (a) (b) (c) (d)

Sec. Sec. Sec. Sec.

100. 101. 105. 104. r

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a criminal conspiracy or attempt to commit, or abetment under Secs.122-123, in any declared ‘ disturbed area’ , etc. and it is shown that such person had been in that area when firearms or explosives were used to attack or resist armed forces, etc, it shall be presumed, unless the contrary is shown, that such a person had committed the offence.

SEC. I 12: Presum ption of Legitimacy (Birth during Marriage Conclusive Proof of Legitimacy) A cco rd in g to Sec. 112, the fact that any person was born: (1) during the continuance o f a valid marriage between his mother and any man, or (2) within 280 days after its dissolution (the mother remaining unmarried), is conclusive p r o o f that he is the legitimate son o f 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.71 Maternity is a fact and paternity is a matter o f inferences or surmises. Sec. 112, which applies only to a m arried couple, lays down the rule for the p r o o f o f the paternity o f an individual. “Sem per praesu m iterpro kgitim atione puerorw rt' (it is always to be presumed that children are legitimate —legal maxim). S ec 112 is an instance o f law furthering social objectives by leaning against the tendency to bastardize the child. The basis o f the rule seems to be a notice that it is undesirable to enquire into the paternity o f a child whose parents have access to each other. The presumption o f legitimacy is a presumption o f law, not a mere inference to be drawn by a process o f logical reasoning from the fact o f marriage and birth or conception during wedlock. This presumption can only be displaced by a strong preponderance o f evidence and not by a mere balance o f probabilities. 71. A and B are married on 1-1-1990. B gives birth to C on 1-5-1990. Whether C will be presumed to be legitimate son of A and B in these circumstances? [Raj.J.S. 199I\

[Ans. Yes.) Objective Q uestion*

(Multiple Choice) 223. A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. The burden of proving the admission Is on: (a) A. (b) B. (c) C. (d) A or B or C. 224. X sues Y for money due on a bond. The execution of the bond Is admitted, but Y says that It was obtained by fraud, which X denies. The burden of proof Is on: (a) (b) (c) (d)

Y. X. The State. X and Y both.

[M.R C.J. (Prelim.) 1996]

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T h e follow ing important points, regarding Sec. 112, may be noted: (i) This section refers to the point o f time o f the birth o f the child as the deciding factor and not to the time o f conception o f that child; the latter point o f time has to be considered only to see whether the husband had n o access to the mother. (ii) There is a presumption when a child is conceived and born during marriage that sexual intercourse took place at a time when according to the laws o f nature, the husband could be the father o f child. (iii) T he presum ption applies with equal force even where the child is born within a few days or even hours after the marriage. Further, it is immaterial that the m other was married or not at the time o f the conception. Sethu v Palani fLLR (1925) 49 Mad 523] - A Hindu woman was married to S in Oct. 1903. She was divorced by him in June 1904. She married another man, T, in July 1904 and gave birth to a son in Sept., the same year. Thus, the conception was form ed when she was the wife o f on e and birth took place when she was the wife o f another man. T he child was held to be the legitimate child o f second husband, the court relying upon the fact that n o p r o o f was available o f the fact that T could not have had access to her even when she was the wife o f S. If a man marries a woman not knowing that she is pregnant, he could, by showing that he could not have had access to the woman when the pregnancy comm enced, make out that the child is not his. But if a person knowing that a woman is pregnant marries her, the child o f woman though born immediately after the marriage becom es in law his child unless the man proves that he had n o access to the woman when he could have been begotten. (iv) Sec. 112 appears to provide a simple presump don o f legitimacy which applies to children born during a marriage whether conceived before or after the marriage took place, and to children conceived during the marriage, whether born before the marriage is dissolved by the husband’ s death or otherwise. (v)

Under Sec. 112, the only way to rebut the presum ption is the p r o o f o f “non-access”between the parties to marriage. T he phrase “non-access” implies non-existence o f opportunity for physical intercourse. As the presumption o f legitimacy is highly favoured by law it is necessary that p r o o f o f non-access must be clear and satisfactory.

225. A Is charged with traveling on a railway without a ticket. The burden of proving that A had a ticket Is on: (a) (b) (c) (d)

Ticket-checker. Railway. A. Prosecution.

[M.P.: C.J. (Prelim.) 1999)

226. Mark the Incorrect statement: (a) (b) (c) (d)

Burden of proof under Sec. 101 never shifts. Burden of introducing evidence under Sec. 102 constantly shifts. The burden of proof and the onus o f proof have the same meaning. Burden of proof never shifts, but the onus o f proof shifts.

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T h e p resu m p tion o f legitimacy will not be allowed to be rebutted by the o r o o f that w ife had adulterous relationship. P roof per se that the woman was living vlith the param our is n o evidence o f non-access by the husband. It may be noted that i f sexual in tercou rse is proved the law will not permit an enquiry whether the husband o r so m e o th e r man was m ore likely to be the father o f the child, the p resu m p tion o f legitim acy then becom es irrebuttable one. In Chilttkuri Vetikateswarlu v Chilukuri Venkatanarayana (AIR 1954 SC 176), the husband tried to sh o w that he had provided separate residence to his secon d wife and thereafter never visited her. The wife alleged visits by the husband and the husband bein g n o t able to prove his allegation, a child b o m by the second wife was presumed to be a legitimate child. E ven the illness o f the husband may not be sufficient to displace the presum ption o f access, unless the illness is totally disabling; the physical incapacity to procreate a m ou n ts to non-access within the meaning o f this section. In Chandramathi v Fa^hetti Balan (AIR 1982 Ker 68), a married woman became pregnant even after her husband had undergone vasectomy operation. Held that vasectomy was not sufficient by itself to over throw the presumption o f legitimacy. N o p r o o f was offered to sh ow whether the operation was successful. N or there was any evidence regarding the fact that parties had no access before the conception. (vi)

Biom edical tests - In som e recent cases it has been held that only way to rebut presumption under Sec. 112 is by proving non-access, and biomedical evidences like blood test, D N A test, etc. cannot be allowed \Gautam Kundu v State o f W.B. A IR 1993 SC 2295; Tushar Roy v Sukla Roy, 1993 Cr LJ 1659 (Cal)]. Where, however, such evidences are available, it can be used as a circumstantial evidence.

(vii)

It may be noted that an admission by the wife that the child is illegitimate is admissible in evidence.

SEC. 113: Proof of Cession of Territory A

G overnm ent N otification that any portion o f British Territory has before the

com m encem ent o f the Governm ent o f India Act, 1935 been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession o f such territory took place at the date m entioned in such notification. O b je c tiv e Q u e s tia n a

(Multiple Choice)

227. A wishes to prove a dying declaration by B. The burden of proving B’ s death is on: (a) (b) (c) (d)

A. Prosecution. B's death will be presumed. None of the above.

228. A w ishes t o prove, by secondary evidence, the contents of a lo st document. W ho will have to prove that the document has been lost? (a) (b) (c) (d)

A. T h a t person who had in his possession the original document. The opposite party. Depends on the court’s discretion.

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SEC. I 13-A: Presumption as to Abetment of Suicide by a Married W oman72 S ec. 113-A deals with the question o f abetment o f woman’ s suicide by her husband or any o f his relatives. In such cases, a presumption arises (the court may presume) that such a suicide has been abetted by the husband or his relatives, if the following two conditions are satisfied: (i) T he suicide was com m itted within a period o f 7 years from the date o f her marriage. (ii) H er husband, or his relatives, has subjected her to ‘ cruelty’(as the term is defined in Sec. 498-A, IPC). Such a presumption must, however, be drawn by the court after having regard to all the other circumstances o f the case. O n ce these things are proved, abetment o f suicide is presumed to exist. It will then be for the husband or his relatives to prove that the suicide in question was the woman’ s personal choice. I f it is not a case o f suicide, but o f accidental death, the presumption o f abetment does not arise (Surest) v State o f Maharashtra, 1992 CrLJ 2455). Sec. 113-A (inserted by 1983 Criminal Law Second Amendment Act) does not create any new offence, or any substantive right, but merely a matter o f procedure and as such is retrospective in operation. In a dowry death case, presumption that suicide was attracted by the accused-husband o f the deceased could be drawn only when prosecution has discharged the initial onus o f proving cruelty. In State o f W.B. v O rilal Jaiswal (AIR 1994 SC 1418), held that the requirement o f p r o o f beyond reasonable dou bt in dow ry death cases does not stand altered even after the introduction o f Sec. 498, IP C and Sec. 113-A o f the Evidence Act. Where the wife’ s suicide took place m ore titan a month-and-a-half after the demand for dowry was met, and matters were settled, it was held that it would be unsafe, as well as unjust, to invoke the presumption o f guilt under Sec. 113-A (Samir v State o f IVest Bengal, 1993 CrLJ 134). However, in A rjun Kttshwaha v State o f M.P., 1999 CrLJ 2538, where the relations with the husband were strained because o f dowry demands; the wife poured kerosene on herself and the husband went on with his provocative language, it was held that this amounted to instigation o f suicide. 72. What is the law o f presumptions applicable in prosecution for the offences of ‘ abetment to comm it suicide by a married woman’ ,‘ dowry death’and ‘ rape’ ? To what extent have these presumptions affected the traditional law o f burden o f proof? [Raj.J.S. 1999[ 229. Burden of proof Is lightened by: (a) (b) (c) (d)

230.

Presumptions. Admissions. Estoppels. All of the above.

In an Insurance claim, the burden of proving the fact of Insurance amount Is on: (a) (b) (c) (d)

Claimant. Insurance company. Both (a) and (b). The court will decide.

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SBC. •13'B: PresumPt,on “ to Dowry Death73 U n d e r Sec. 113-B, when the question is whether a person has com m itted the ‘ dowry death’(as the term is defined in S ec 304-B, IP Q o f a woman, and it is shown that, so o n before her death, she had been subjected by that person to cruelty or harassment in connection with any demand for dowry, the court shall presum e that such a person had caused the dowry death. The burden is on the accused to rebut this presum ption ’ . In a dow ry death case, it is a condition precedent to the raising o f presum ption that the deceased married woman was subjected to cruelty or harassment for and in connection with the demand for dowry soon before her death. The prosecution is required to give evidence o f these circumstances so that the court draws a presumption o f dow ry death. Where the death was by strangulation and evidence was available to show that dowry was being demanded and the accused husband was also subjecting his deceased wife to cruelty, it was held that the presumption under the section applied with full force making the accused liable to be convicted under Sec. 304-B, IPC (Hem Cband v State o f Haryana A IR 1995 SC 120). In a case, presumption under the section was drawn from the drinking, late-coming and beating habits o f the husband IP. Bikshapathi v State o f A.P., 1989 CrLJ ( N O Q 52 (A.P.)]. Where the prosecution was able to prove that the deceased woman was last seen alive in the com pany o f the accused, she being at the m oment in his special care and custody, that there was a strong motive for the crime and that the death in question was unnatural and homicidal, it was held that by virtue o f Sec. 106 o f the Evidence A ct the burden o f showing the circumstances o f the death was on the accused as th ose circumstances must be specially known to him only [Amarjit Singh v State o f Punjab, 1989 CrLJ (N O Q 13 P&H],

73. A is tried for the offence o f “Dowry death”under Sec. 304-B, IPC. Advise the prosecution as to what evidence is required to be produced so as to raise the presum ption under Sec. 113-B of the Evidence Act. [U.P. PCS (J) 1997\ O b je c tiv e Q u e s tio n s

(Multiple Choice)

231.

The burden of proving a crime Is on: (a) (b) (c) (d)

232.

The prosecution. The accused. Both the parties. The court will decide.

According to Sec. 105, In criminal trials, the onus Is on the accused to prove that his case falls In: (a) Any of the general exceptions in IPC. (b) Any of the special exceptions in IPC. (c) Any of the proviso to the provision under which the accused is charged. (d) All of the above.

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SEC. I 14: Presumption of Existence of Certain Facts “T h e court may presume the existence o f any fact which it thinks likely to have happened, regard being had to the com m on course o f (a) natural events, (b) human conduct, and (c) public and private business, in their relation to the facts o f the particular case”. Sec. 114 is based on the maxim that ‘ all acts/ things are presum ed to have been don e correcdy and regularly’ . Sec. 114 authorizes the court to make certain presum ptions o f facts, without the help o f any artificial rules o f law. Such presum ptions o f facts are always rebuttable (i.e. can be disproved by a contrary fact). L ookin g at so many factors if the court diinks diat a particular fact should exist, it presum es the existence o f the fact. There is the presum ption that every person is presum ed to intend the natural consequences o f his act that every person charged with a crime is innocent, etc. Illustrations-. T he court may presum e (a) That a man in possession o f stolen g o o d s after the theft is either the thief o r has received the g o o d s knowing them to be stolen, unless he can account for his possession (if he cannot account for possession specifically but is continually receiving such g o o d s in the course o f his business, the court shall have regard to such fact). (b) That an accom plice is unworthy o f credit, unless he is corroborated in material particulars (if A, a person o f the highest character, is tried for a murder, and, B, a person o f equally g o o d character, admits and explains the co m m o n carelessness o f A and himself, the court shall have regard to such fact). Further, if a crime is com m itted by several persons; A, B and C three o f the criminals, kept apart from each other, each gives an account o f the crim e implicating D and the account corroborate each other in such a manner as to render previous concert highly improbable, the court shall have regard to such fact). (c) That a bill o f exchange, accepted or endorsed, was accepted or endorsed for g o o d consideration (if the drawer o f a bill is a man o f business and the acceptor is a young man completely under the drawer’ s influence, the court shall have regard to such fact). (d) That a thing or state o f things which has been shown to be in existence within a period shorter than that within which such thing or state o f things usually 233.

Mark the Incorrect statement: (a) An accused is presumed to be innocent, and the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt (b) It is sufficient if the accused proves his case by the standard of preponderance of probabilities or prlma facie. (c) The onus of an accused person may well be compared with the onus of a party in a civil case. (d) All are correct.

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cease to exist, is still in existence (if it is proved that a river ran in certain course 5 years ago but it is known that there have been floods since that time which might change its course, the court shall have regard to such fact).

(e)

That judicial and official acts have been regularly perform ed (if the judicial act was perform ed under exceptional circumstances, the court shall have regard to such fact). That the c o m m o n course o f business has been follow ed in particular cases (if the usual course was interrupted by disturbances, the court shall have regard to such fact).

(0

That evidence which could be and is not produced would, if produced, be unfavourable to the person withholding it (if a man refuses to produce a docum ent which would bear on a contract o f small importance on which he is sued, but which might also injure the feelings and reputations o f his family, the court shall have regard to such fact).

(g)

00

That, if a man refuses to answer a question which he is not com pelled to answer by law, the answer, if given, would be unfavourable to him (if the answer m ight cause loss to him in matters unconnected with the matter in relation to which it is asked, the court shall have regard to such fact).

(i) That, when a docum ent creating an obligation is in the hands o f the obligor, the obligation has been discharged (if it appears that obligor may have stolen it, the court shall have regard to such fact). Thus, where the instrument o f debt and the security for it are in the hands o f the debtor, the presum ption would be that the debt must have been discharged; where a p ro m issory note is in the hands o f the person w h o made it, the presum ption is that he must have paid it off. T he presum ption permitted by lllust. (a) does not arise until the prosecution has established the follow ing facts: (i) the ownership o f the articles in question, (ii) their theft, (iii) their conscious, exclusive and recent possession by the accused. A long period may be taken to be recent; in a case, two bales o f woolen cloth were stolen from M. T w o m onths after the theft, they were found in possession o f P, the presum ption is that P stole it or received it knowing it to be stolen.74 74. Stolen or looted g o o d s are recovered from the possession o f the accused just after a few days o f the theft/ dacoity. What presumptions, if any, can be made against him? [UP. PCS (J) 1985\ Objective Questions

(Multiple Choice)

234.

Mark the Incorrect matching: (a) Presumption of continuance of life: Sec. 107. (b) Presumption of death: Sec. 108. (c) Presumption under Sec. 107: 30 years. (d) Presumption under Sec. 108: 8 years.

235.

Under Sec. 108, when It Is proved that a person has not been heard of for 7 years by those who would naturally have heard of him If he had been alive, the burden of proving that he Is living Is on: (a) (b) (c) (d)

The person who affirms it. The person who does not affirms i t Both (a) and (b). The court will decide.

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In reference to lllust. (e)t the Supreme Court has observed: A presum ption has to be drawn under Sec. 114 (e) that die com petent authority must have before it the necessary materials which prim a fade establish the com m ission o f the offence charged and that the authority had applied its mind before tendering the consent {State of Bihar v P.P. Sharma A IR 1991 SC 1260). Death in custody d oes not by itself create a presum ption o f murder by police. In Shahna% v Dr. V ijay (AIR 1995 B om 30), after a judicial divorce, the wife was not permitted to say that her signature on the divorce petition was taken by force. Further, the presumption under Sec. 114 (e) is limited to the regularity o f the act done and d oes not extend to the doing o f act itself. For example, if a notification is issued under the powers given by law, there is a presumption diat it was regularly published and promulgated, but there is no presumption that it was issued according to that terms o f section which em powered it. The correctness o f procedure, but not the factum o f act, is presumed under the illustration. A s far as presumption under lllust. (J) is concerned, the maximum use o f it is to be seen in connection with the delivery o f letters. Where a letter is shown to have been posted and it is not returned through the dead letter office, the presumption is that it has been delivered. Similarly, there is presumption o f service o f a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. O f course, the presumption is rebuttable. The Supreme Court has observed, com m enting on lllust. (g), that an adverse inference against a party for his failure to appear in court can be drawn only in absence o f any evidence on record. Where the admission o f the parties and other materials on record amply prove the point in issue, no presumption can be raised against the person w ho has failed to appear in the court [Pandurang Jivaji A pte v Kamchandra, (1981) 4 SC C 569]. I f evidence on record being already sufficient to establish the prosecution case, the failure to examine another witness did not affect the credibility o f the case [Rajendra Kumar v State o f U.P. (1998) 9 S C C 343]. The court should not mechanically draw an adverse inference merely on the ground o f non-examination o f a witness, even if the witness is a material one. Non-production o f “daily police diary”or “inquest report”o r “post-m ortem report” was not taken to be supporting a presumption against the prosecution. Similarly, no adverse inference can be drawn against the prosecution if it merely fails to obtain certain evidence e.g. opinion o f expert not taken. An adverse presumption cannot be drawn where the party supposed to be in possession o f the best evidence

236. Mark the Incorrect statement: (a) The presumption under Sec. 109 as to certain human relationship (viz. partners, landlord and tenant) is oblig a to ry and arises irrespective of the lapse of time. (b) The principle that possession is prima facie proof of ownership is contained in Sec. 110. (c) Under Sec. I l l , when a person stands towards another in a position of active confidence, the burden of proving the good faith of any transaction between them lies on the person in active confidence. (d) A contract with a pardanashln woman does not attract Sec. 111.

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has neither been called u p on to produce by the opposite party nor directed by the court to d o s o (Oriental Fire & Gen. Ins. Co. v Bondili, AIR 1995 AP 268). If a person had no know ledge about the importance o f the document and he fails to produce it no adverse presu m ption should be made against such person. Human Conduct: Presumption o f Marriage

A strong presu m ption arises in favour o f wedlock where the partners (a man and woman) have lived together for a long spell (continuous cohabitation) as husband and wife, and treated as such by the relatives and friends. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship o f legal origin; law leans in favour o f legitimacy and frowns upon bastardies. T h e presu m ption was held to be not applicable where a married woman lived with another man for a long period and gave birth to children even during the life­ time o f her husband [Lolo v Durgbatiya AIR 2001 M.P. 188].

SEC. I 14-A: Presumption in Rape Cases A c c o r d in g to Sec. 114-A, \vhere the question before the court (in a prosecution for rape under Sec. 376 (2), IP C and where sexual intercourse by the accused is proved) is whether an intercourse between a man and a woman was with or without consent and the w om an states in the court that it was against her consent, the court shall presum e that there was no consent*. The burden o f proving becom es shifted to the accused. I f he is not able to prove that there was consent, he becom es guilty. The presumption under Sec. 114-A arises when the accused who comm its rape is a police officer, a public servant, an officer o f Jail, Hospital, or he comm its rape on a woman knowing that she is pregnant or when rape is a gang rape. This section has been added for drawing a conclusive presumption as to the absence o f consent in certain prosecutions for rape. Sec. 114-A was introduced because o f the increasing number o f acquittals o f accused when the victim o f rape is an adult woman. If she was really raped, it was very difficult for her to prove absence o f consent, 'llic new provision (inserted in 1983) has brought about a radical change in the Indian law relating to rape cases. This presumption would apply not only to rape cases, but also to cases o f “attempted rape'\Fagnu Bhai v State o f Orissa, 1992 CrLJ 1808). O b je c t i v e ffueMtioMMM (Multiple Choice)

237. The good faith of a sale by a client to attorney Is In a suit brought by the client. The burden of proving the good faith of the transaction Is on the: (a) (b) (c) (d)

Attorney. Client. Both. The court will decide.

238. A presumption (a) is an inference of fact drawn from other known or proved facts. (b) furnishes prima facie evidence of the matter to which it relates. (c) holds the field in the absence of evidence but when facts appear, it goes back. (d) all are correct.

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In a case o f alleged ‘ gang rape' o f a girl above 16, the F.I.R. was lodged 7 days after the occurrence. T h e girl admitted that she was desirous o f marrying on e o f the accused, and the chemical examiner’ s report ran counter to any sexual intercourse, in the circumstances, it was held that the presum ption under Sec. 114-A could not be invoked (Sharrighan v State o f M.P., 1993 Cr. LJ 120). C H A P T E R V III E S T O P P E L 75 [SECS. 115-117] A c c o r d in g to the doctrine o f estoppel there are certain facts which the parties are proh ibited from proving. E stop p el is a principle o f law by which a person is held b ou n d by the representation m ade by him or arising out o f his conduct. E stoppel is dealt with in Secs. 115 to 117 o f the Evidence Act. While, Sec. 115 contains the general principle o f estoppel by conduct. Secs. 116 and 117 are instances o f estoppel by contract. However, there are other recognized instances o f estoppel, viz., The Indian Contract A ct (Sec. 234), T h e Specific Relief Act (Sec. 18), T he Transfer o f P roperty A ct (Secs. 41 and 43). E stoppels which are not proved by the Evidence A ct may b e term ed ‘ equitable estopp els’ . E stop p el is often described as a rule o f evidence but the w hole con cep t is m o re correcd y viewed as a substantive rule o f law. It is based on the maxim Allegans contraria non est andindus (person alleging contrary facts will not be heard). D octrine o f estopp el is founded o n the fam ous English case Pickard v Sears (1837) 6 A & E 475, stating the principle that it is inequitable and unjust to allow a person to deny the truth o f a statement which he has m ade to another and the other person has acted o n it believing it to be true (it d oes not matter that in reality it is true o r not). T h e o b ject is to prevent fraud and secure justice between parties by p rom otion o f honesty and g o o d faith. E stop p el o r “con clu sion ” is a disability whereby a party is precluded from alleging o r proving in a legal proceedin g that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. T he principle says that a man cannot approbate and reprobate o r that a man cannot blow hot and co ld at the same time or that a man shall not be allowed to say on e thing at a time and 75. What is an estoppel? State different kinds o f estoppel. 239.

[Raj.J.S. 1992/1999[

Mark the Incorrect matching: (a) Presumption of fact: Rebuttable. (b) Presumption o f law: Rebuttable (shall presume) and irrebuttable (conclusive proof). (c) Presumption o f fact: May presume. (d) Presumptions stated in Sec. 118 o f the Negotiable Instrum ents Act: presumptions o f fact.

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different thing at other time. It must be noted that estoppel is only a rule o f civil action and has n o o r limited application in criminal proceedings. In criminal law, “Issue-estoppel”is recognized. According to this rule, evidence cannot be led to prove a fact in issue as regards which evidence has already been led and a specifis finding recorded at a criminal trial before a court o f com petent jurisdiction. Thus, it d o e s not constitute a direct ban to the subsequent trial o f a person for an o ffen ce other than the one arising out o f the same transaction, for which such person was o n trial previously resulting in acquittal or conviction in such trial. T h e rule only relates to the admissibility o f evidence which is designed to upset a finding o f fact recorded by a court at a previous trial.75* E stop p el is o f three kinds: (a) estoppel by matter o f record, (b) estoppel by deed, and (c) estopp el in pais i.e. estoppel by conduct. ^Estoppel o f record* or res judicata has been dealt with in the C.P.C ‘ Estoppel by deed* is based on the principle that when a person has entered into a solemn engagement by deed under his hand, he shall n ot be perm itted to deny any matter which he has so asserted. ‘ E stoppel by pais* o r estopp el by representation or conduct is discussed below.

SEC. I 15: Estoppel76 “ \ ^ h e n on e 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 n or his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth o f that thing.**

75a. Write a short note on: Issue-Estoppel. 76.

[D elhi J.S. 1990[

‘ Estoppel is a com plex legal notion, involving a combination o f several essential elements, the statement to be acted upon, acted on the faith o f it, resulting detriment to the actor*? Critically examine the statement and point out whether estoppel can be pleaded by both plaintiff and defendant? Illustrate your answer. [UP. PCS 0) 1982/1991\ [Ans. Estoppel can be pleaded only by the plaintiff.)

O b je c tiv e Q u estio n s

(Multiple Choice)

240.

Mark the incorrect statement: (a) A rebuttable presumption cannot be overthrown by a contrary evidence, while irrebuttable can. (b) A conclusive proof is Juris et de jure i.e. incapable of rebuttal. (c) In substance, there is no difference between ‘conclusive evidence’ and ‘conclusive proof. (d) Presumption and onus of proof are two sides of the same coin.

241.

A presumption: (a) (b) (c) (d)

An evidence. A proof. Indicates the person on whom the burden of proof lies. All are correct.

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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 becom es the property o f A, and A seeks to set aside the sale on the ground that, at the time o f the sale, he had n o title. H e must not be allowed to prove his want o f title.77 Three essential ingredients o f Sec. 115 are: (i) a representation is made by a person to another, (ii) other person believes it and acts upon such belief thereby altering his position, (iii)

then in a suit between the parties, the person w ho represented shall not be allowed to deny the truth o f his representation.

Representation

Representation o f the existence o f a fact may arise in any way — a declaration, act o r om ission. T he focus o f law o f estoppel is the position in law o f party w ho is induced to act. Thus, a person w h o is estopped or prevented from denying his representation may not have intention to deceive and may him self be acting under mistake or apprehension. The estoppel will nonetheless operate in such cases also [Sbarat Chander Dey v G opal Chander Laha (1892) 19 LA 203]. R epresentation o f a m ere intention cannot am ount to an estoppel. A representation as to the legal effect o f an instrument (if not ultra vires) will create an estoppel. A representation may also arise from an “om ission”to d o an act which one’ s duty requires one to do. An estoppel will arise when the failure to perform one's duty has misled another and also the duty should be a kind o f legal obligation (Estoppel by negligence). In Mercantile Rank o f India L td v Central Rank o f India L td (1938) AC 287, an om ission to stamp the receipts was held sufficient to create an estoppel. Estoppel by conduct may be active or passive. Estoppel by silence or acquiescence arises only when there is a duty to speak or disclose. Illustrative cases - In Secy, o f State v Tatya Ho/kar; the governm ent acquired land o f the respondent and paid com pensation thereof. Later on, governm ent discovered that the land actually belonged to it. T he governm ent sought to recover the amount paid. It was held that governm ent is estopped by its conduct. In a case, a judge, w ho had showed high age in his certificates right from the beginning o f his career, sought to deny it by show ing actual municipal birth-records, 77. A question based on this illustration.

[U.P. P C S (J) 1985\

242. Mark the Incorrect matching: (a) Presumption of Innocence: Sec. 105. (b) Presumption of Survivorship: Secs. 107-108. (c) Presumptions Relating to Documents: Secs. 79-90. (d) None of the above.

243.

Presumption of legitimacy, under Sec. 112, will apply when a person Is born within how many days after dissolution of a valid marriage? (a) (b) (c) (d)

180 280 270 160

days. days. days. days.

'

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so as to retire at a later age. H eld that the judge is estopped. In another case, the

wife was o f Buddhist faith and the husband a Muslim. She sought a divorce under ' g u(jdhist law. H eld that she was estopped from denying her earlier committal to Islamic law. Reliance and Detriment

The secon d condition necessary to create an estoppel is that the plaintiff altered his position on the basis o f the representation and he would suffer a loss if the representer is allowed to resile from his statement. Detriment is a prerequisite o f actionable prom issory estoppel. Thus, a mere statement o f a person that he w ould not assert his rights d o es n ot create an estoppel unless it is intended to be acted upon and is in fact acted upon (Stda Nitinkumar v Gujarat University A IR 1991 Guj.43). However, detriment is not necessary to create an estoppel against the State. Certain candidates w ere admitted to recognized course in Physical Education for the pu rpose o f appointm ent as physical training instructors in G overnm ent schools. T h e G overnm en t was not permitted to de-recognize the course in reference to such candidates but had a right to d o for the future (Surest) Pal v State o f Haryana AIR 1987 S C 2027). Promissory E stoppel Doctrine o f estoppel has gained a new dimension in recent years with the recognition o f an equitable doctrine o f ‘ promissory estoppel’both by English and Indian courts. According to it, if a prom ise is made in the expectation that it should be acted upon in the future, and it was in fact acted upon, the party making the promise will not be allowed to back out o f it. The development o f such a principle was easy in Britain and USA, where estoppel is a rule o f equity (common law), but in India, it is a rule o f law, and terms o f Sec. 115 must be strictly complied with. The concept o f prom issory estoppel differs from that under S ec 115 in that representation in the latter is to an existing fact, while the former relates to a representation o f future intention. But, it has been accepted by the Supreme Court as “advancing the cause o f justice”. T hough such promise (future) is not supported in point o f law by any ‘ consideration’(the basis o f a contract), but only by party’ s conduct; however, if promise is made in circumstances involving legal rights and obligations, it is only proper that the parties should be enforced to d o what they promised. In cases, where government is

Objective* Qu c m H o m s m (Multiple Choice)

244.

Mark the Incorrect statement: (a) The presumption under Sec. 112 is a conclusive proof. (b) The presumption under Sec. 112 arises irrespective of whether the fath e r is alive or dead on the day the child is born. (c) Sec. 112, which applies only to a married couple, lays down the rule for the proof of the maternity of an individual. (d) The presumption of legitimacy will not be allowed to be rebutted by th e proof that wife had adulterous relationship.

14Q

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one o f the parties, the court will balance the harm to public interest by compelling government to its promise and harm to citizen to allow government to back out o f it.... to see diat the government does not act arbitrarily. T he doctrine has been variously described as “equitable estopp el”, “quasi estopp el”and “new estoppel”; it need not be confined to the limitations o f estoppel in the strict sense o f the w ord (ALP. Sugar M ills v State o f U.P. A IR 1979 SC 61). W here a G overnm ent licence was granted to a person to establish saw mill and he spent huge sums o f m oney acting on the grant and the Governm ent subsequently changed policy refusing to grant any further licences, the G overnm ent was held bound to grant that particular licence, though the policy may be revised for the future (Joyjit D as v State o f Assam A IR 1990 Gau. 24). A m ere prom ise to make a gift will not create an estoppel. It w ould require a clear and unequivocal prom ise to im port the doctrine into a matter. A leading institution intimated the sanction o f a loan with a remark that it did not constitute a com m itm ent on the part o f the institution. Held that there was no prom ise to found the doctrine o f prom issory estoppel (Rabisankar v Orissa State Fin. Corpn. AIR 1992 Ori. 93). T he prom ise o f State G overnm ent to absorb its village officers w hose posts had been abolished into other services on certain basis, was not afterwards permitted to be amended by inserting the requirement o f age which was not there in the original com m itm ent (KiC Rama Rao v State o f A.P. A IR 1987 SC 1467). Exceptions to the D octrine o f Estoppel There arc various exceptions to the doctrine o f estoppel: (1) N o estoppelagainst a m inor—Where a minor represents fraudulendy or otherwise that he is o f age and thereby induces another to enter into a contract with him, then in an action founded o n contract, the infant is not estopped from setting up infancy as a plea. However, equity demands that he should not retain a benefit which he had obtained by his fraudulent conduct. (2)

When truefacts are known to both the parties - Sec. 115 does not apply to a case where the statement relied upon is made to a person w ho knows the real facts and is n ot misled by the untrue statement (Madnappa v Chandramma AIR 1965 SC 1812).

(3)

Fraud or negligence on the part o f other party — I f the other party d oes not believe the representation but acts independendy o f such belief, or in cases

245. The deciding factor under Sec. 112 is: (a) (b) (c) (d)

246.

The date of birth o f the child. The date of conception o f the child. Either (a) or (b). Court’s discretion.

Unless non-access is proved, the presumption a s to legitimacy of any child born during the continuance of a valid marriage betw een his mother and any man is: (a) (b) (c) (d)

Rebuttable presumption o f law. Presumption of fact. Mixed presumption o f law and fact. Irrebuttable presumption of law.

[M.P. C.J. {Prelim.) 1996]

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where the person to w hom representation is made is under a duty to make a further inquiry, the estoppel will not operate. Likewise, if there is a fraud on the part o f the other party, which could not be detected by prom isor with ordinary care, the estoppel will not operate. (4)

When both the parties plead estoppel — If both the parties establish a case for application o f estoppel, then it is as if the two estoppels cancel out and the court will have to proceed as if there is no plea o f estoppel on either side. Further, if both sides had laboured under a mistake however bona fide or genuine, the plea o f estoppel may not be available.

(5) N o estoppel on a point o f law - Estoppel refers only to a belief in a fact. If a person gives his opinion that law is such and such and another acts upon such belief, then there can be no estoppel against the former subsequendy asserting that law is different. One cannot be estopped from challenging the effectiveness o f som ethin g (e.g. partition deed) for want o f law (e.g. registration). Representations under S e c 115 should be o f facts, not o f law or opinion (Union of India v ICS. Subrarnaniam AIR 1989 SC 662). (6) N o estoppel against statute/ sovereign acts - A rule o f law cannot be nullified by resorting to the doctrine o f estoppel. A person who makes a statement as to the existence o f the provisions o f a statute is not estopped, subsequendy, from contending that the statutory provision is different from what he has previously stated. For example, where a minor has contracted by misrepresenting his age, he still can afterwards disclose his real age. It is a rule o f law o f contract that a m inor is not competent to contract and that rule would be defeated if a minor not permitted to disclose his real age. Hence there can be no estoppel against the provisions o f a statute. Thus, if a person is given rights under a statute, and he gives them up at one stage voluntarily and later on tries to enforce those rights, no estoppel can be invoked against him. For example, under the Rent Control Act, the landlord can demand from his tenant only a fair/standard rent. If a tenant agreed to pay a high rent and thereafter files a petition for fixing the fair rent, he won’ t be estopped. Similarly, the statute provided that a tenant could not sublet and on subletting he was liable to ejectment. By a bilateral agreement the landlord allowed the tenant, to sublet as he did so. The landlord brought a suit for the ejectment o f the tenant. It was

Objective Questionm

( M u ltip le C h o i c e ) 247.

Mark the Incorrect matching: (a) Sec. 113-A: Woman. (b) Sec. 113-B: (c) Sec. 114-A: (d) None o f the

248.

Presumption as to Abetment of Suicide by a Mamed Presumption as to Dowry Death. Presumption in Rape Cases above.

Presumption a s to abetment of suicide by a married woman under S ec. 113-A: (a) (b) (c) (d)

A conclusive proof. The c o u rt shall presume. The c o u rt may presume. The prosecution has to prove.

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pleaded that the landlord was estopped from suing for ejectment. Held that the right founded upon or growing out o f an illegal transaction cannot be sustained; the ejectment was ordered. In Ba/ Krishna v Retva University (AIR 1978 M.P.86), held that if a candidate has appeared at an examination by misrepresenting facts (vi2 ., a non-graduate appearing at law examination), the university will not be estopped from cancelling the examination if his candidature is against a rule o f law. I f the statute is solely for the benefit o f a person he may waive his right or benefit, if he thinks fit o r give up the rights o f a personal nature created under an agreement, but he cannot waive a benefit conferred by a statute which has public policy for its object. It may be noted that a statement made under misapprehension o f legal right is not estoppel. It is well setded that there cannot be any estoppel against the G overnm ent in the exercise o f its sovereign, legislative and executive functions. Where a local development authority announced a housing scheme and accepted applications under it, subsequendy finding that the scheme was in violadon o f the Master Plan cancelled it It was held that to be free to d o so without any shackles o f prom issory estoppel77* (Housing Board Cooperative Society v State A IR 1987 M.P. 193). Estoppel Against Universities

The doctrine o f estoppel has been allowed to be invoked against a University. In Univ. o f Madras v Sundara Shetti (1956) MLJ 25, the university was estopped from claiming that a student had not actually passed, but that his mark sheet contained a mistake. In S ri Krishna v Kurushetra Univ. (AIR 1976 SC 376), held that on ce a candidate has been admitted to an examination his candidature cannot afterwards be cancelled even if his form carried certain infirmities. T he candidate is not guilty o f fraud if he mis-state facts the truth o f which the university could have discovered with ordinary care. The Rajasthan High Court acted upon this principle in refusing perm ission to a University after 3-4 years to cancel the admission to a medical college on the basis that the candidate’ s declaration that he belonged to a scheduled caste was a false one (.HarphooI Singh v State A IR 1981 Raj. 8). But, M.P. High Court did not raise any estoppel against a polytechnic which had admitted a candidate on the basis o f a false declaration that he was a SC. The institution was allowed to cancel the admission because there was fraud in him (Israr Ahm ad v State A IR 1982 M.P. 205). 77a. A question based on the similar facts.

[D elhi J.S. 1999[

249. Sec. 113-A Inserted by 1983 Criminal Law Second Amendment Act: (a) (b) (c) (d)

250.

Creates a new offence. Creates a substantive right. Is a matter of procedure. Is not retrospective in operation.

Presumption as to Dowry death under Sec. U3-B: (a) (b) (c) (d)

A conclusive proof. The court shall presume. The court may presume. None of the above.

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W here the mistake in making the marks-sheet was apparent in that the marks entered show ed that the candidate failed, but the result colum n show ed that he passed, there was n o estoppel, and the Board could rectify the mistake. Similarly, n o estoppel arose where a marks-sheet issued to several candidates with “pa ssed ” remark carried the im pression o f error on the face (Keetanjali Pati v Board o f Sec. Education A IR 1990 Ori. 90).

Summary o f the Essential Conditions o f Estoppel The follow in g eight conditions must be satisfied to bring a case within the sc o p e o f estoppel as defined in Sec. 115 [Chhaganlal Mehta v Haribhai Patel (1982) 1 S C C 223]: (i) T here m ust have been a representation by a person to another person, which may be in any form — a declaration o r an act o r an om ission. (ii) Such representation must have been o f the existence o f a fact\ and n ot o f future prom ises or intention. H

T h e representation must have been meant to have been relied upon.

(iv)

T here m ust have been belief on the part o f the other party in its truth.

(v) T here m ust have been som e action on the faith o f that declaration, act o r om ission. In other words, such declaration, etc., must have actually caused the other person to act on the faith o f it and to alter his p osition to his prejudice or detriment. (vi)

T h e misrepresentation o r conduct or om ission must have been the proxim ate cause o f leading the other party to act to his prejudice.

(vii) T h e person claiming the benefit o f an estoppel must show that he was not aware o f the true state o f things. There can be no estoppel if such a person was aware o f the true state o f affairs o r if he had means o f such knowledge. (viii)

O n ly the person to w hom the representation was made o r for w h om it was designed can avail o f the doctrine. The burden o f proving estoppel lies o n such person.

(ix)

W here the plea o f estoppel is not set up in the pleading, it cannot be availed o f later.

(x)

N o action arises on the estoppel itself. It is not a cause o f action. It may assist in enforcing a cause o f action. O b je c tiv e Q u e s tio n s

(Multiple Choice)

251. Under Sec. 114, the court may presume the existence of any fact which It thinks likely to have happened, regard being had to the com m on course of (a) (b) (c) (d)

natural events. human conduct. public and private business. all of the above.

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SEC. 116: Estoppel of Tenant and of Licensee of Person in Possession Section s 116 and 117 are illnslralivt o f the principle o f estoppel laid down in Sec. 115. These two sections deal with estoppels in specific cases. Sec. 116 provides that a person who comes into an immovable property taking possession from a person who he accepts as the landlord, is not permitted during the continuance o f tenancy to say as against his landlord that he had no title to the property at the commencement o f the tenancy. Similarly, a person who comes upon any immovable property with the licence o f the person in possession is not permitted to say afterwards that his licensor had no right to the possession o f the property. In short, a tenant/ licensee is not permitted to deny the title o f his landlord/ licensor. Where a landlord files a suit for ejectment and for arrears o f rent the tenant who has been put into possession o f the property in suit by the landlord cannot be allowed to say that the landlord had no interest in the property o f suit (Molt L ai v Yar Md. AIR 1925 All 275).78 The estoppel is confined to the state o f things at the commencement o f tenancy/ licence. The tenant/ licensee is always free to talk o f the subsequent 78. ‘ B’had taken the house on rent from ‘ A’and since then he is regularly paying rent to ‘ A’ .‘ A’applies for the eviction of ‘ B’on the ground of his personal need. ‘ B’contends that since the house is joint property of ‘ A’and his brothers, and his brothers did not join the proceedings, ‘ A’ s application is liable to be dismissed. It is argued on behalf of ‘ A’that ‘ B’ was estopped from challenging the right of ‘ A’to sue. Decide. [UP. PCS (]) 1991] X purchased a house in court auction. ‘ A’was tenant in it from before and attorned the tenancy in favour of X and came to pay rent to X accordingly. X sold the house to Y. Both X and Y issued notices to anom the tenancy in favour of Y. But ‘ A’declined to do so and assailed not only the derivative title of Y to the property but also the validity of sale in favour of X himself. ‘ A’alleged that one of the decree-holder whose rights were purchased by X in auction was in a subsequent civil proceeding held to be not having full saleable right in the property. The question is whether ‘ A’can deny the title of X and Y? [D elhi J.S. 1991] [Ans. ‘ A’cannot deny the title of X and Y.] 252. In which of the following cases, the court may presume under Sec. 114: (a) That a man in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen. (b) That judicial and official acts have been regularly performed. (c) That evidence which could be and is not produced would, if produced, be unfavourable to the person withholding it (e.g. the police withholding a piece of evidence). (d) All of the above.

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developments i.e. the landlord/ licensor has lost his title. After the tenancy had ceased, the tenant is free to deny the title o f the landlord. It may be noted that where tenancy is itself in question (Le. created by fraud, coercion, etc) the tenants are not estopped from disputing the landlord’ s title

SEC. I 17: Estoppel of Acceptor of Bill of Exchange, Bailee/ Licensee Sec. 117 provides that no acceptor o f a bill o f exchange can deny that the drawer had authority to draw such bill or to endorse it; but he may deny that the bill was really drawn by the person by whom it purports to have been drawn (it can always be shown that the drawer’ s signature was forged). Likewise, no bailee/ licensee can denv that his bailor/ licensor had, at the time when the bailment/ licence commenced, authority to make such bailment or grant such licence. But, if a bailee o f the goods bailed to a person other than the bailor, he may prove that such person has a right to them as against the bailor. [Ne/f: Estoppel by attestation - An attester ordinarily knows nothing o f the contents of document, and so he is not estopped from denying the truth in document But, if he knows about contents, then estoppel operates.]

Comparison of Estoppel with Other Concepts (a) Estoppel and Presumption - An estoppel is a personal disqualification laid upon a person peculiarly circumstanced from proving particular facts, whereas a presumption is a rule that a particular inference is to be drawn from particular facts, whoever proves them. In presumption, evidence to rebut it can be given, while in estoppel, the part)- is estopped from denying the truth. (b) Estoppel and Conclusive Proof - When a fact is conclusively proved, it is so against the entire world. Estoppel operates only as a personal disability. In both, however, the very same fact cannot be denied (irrebuttable). (c) Estoppel and Admission - Admissions being declarations against an interest are go o d evidence but they are not conclusive and a party is always at liberty to withdraw admissions by proving that they are either mistaken or untrue. But an estoppel creates an absolute bar. Further, estoppel being a rule o f evidence, an action cannot be founded on it, whereas an action may Objective Quemtionm

(Multiple Choice)

253. Mark the Incorrect statement: (a) Death in custody does not by itself create a presumption of murder by police. (b) After a judicial divorce, the wife could be permitted to say that her signature on the divorce petition was taken by force. (c) No adverse inference can be drawn against the prosecution if it merely fails to obtain certain evidence e.g. opinion of expert not taken. (d) If a person had no knowledge about the importance of the document and he fails to produce it, no adverse presumption should be made against such person.

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be founded on an admission. It may be noted that admissions, if they have been acted upon by a third person, and if substantive rights have been created, operate as estoppel. (d)

Estoppel and Waiver — Waiver is the abandonment o f a right which normally everybody is at liberty to waive. A waiver requires a positive relinquishment o f something which one had before, but estoppel does not require any such thing as that; and a party waiving his rights may in circumstances reinforce them, while in estoppel it cannot be so. In waiver, there is full knowledge o f facts, while in estoppel even a mistake or om ission has no effect.

(e)

Estoppel and Res Judicata - Res judicata precludes a man averring the same thing twice over in successive litigation, while estoppel prevents him saying one thing at on e time and the opposite at another. Thus, resjudicata prohibits a court from inquiring into a matter already adjudicated, while estoppel prohibits a party. Further, res judicata is not a rule o f evidence, but a rule o f procedure.

(f)

Estoppel and Fraud—An action cannot be founded on estoppel, while a fraud gives rise to a cause o f action. Similar is the case o f estoppel and breach o f contract.

CHAPTER IX OF WITNESSES [SECS. 118-134] S e ctio n s 118-121 and Sec. 133 (Accomplice) deal with the com petency o f the persons w ho can appear as witnesses. A witness may be com petent and yet not compellable i.e. the court cannot com p el him to attend and depose before it (viz. Foreign ambassadors and sovereigns). Again, a witness is com petent and also may be compellable yet the law may n ot force him to answer certain questions. This is called ‘ restricted compellability* or ‘ privilege*, conferred on Magistrates, lawyers, spouses, etc. (Privileged witnesses) under the sections 124-132. Sec. 134 lays down rule as to the number o f witnesses required to give evidence in a case.

254.

Presumption in rape c a se s under Sec. U4-A: (a) (b) (c) (d)

A conclusive proof. The court shall presume. The court may presume. None of the above.

255. Sec. U4-A will apply only when the person committing rape Is: (a) (b) (c) (d)

A police officer, a public servant, or an officer of Ja il/ Hospital. Any person. Gang rape. Both (a) and (c).

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SBC. I 18: W h o May Testify79 See. 1^8 lays dow n that all persons are competent to testify, unless the court considers that, by reason o f tender age, extreme old age, disease (of body o r mind), or infirmity, they are incapable o f understanding the questions put to them, and o f giving rational answers. Even a lunatic is competent to testify, provided he is n ot prevented by his lunacy from understanding the questions put to him and giving rational answers to them (Explanation). Thus, n o person is particularly declared to be incompetent It is wholly left to the discretion o f the court to see whether the person who appears as a witness is capable o f understanding the questions put to him and o f giving rational answers Although an accused person is incompetent to testify in proceedings in which he is an accused, an accomplice is a com petent witness against an accused person (Ser. 133). Child rntnesP911 — A child (even o f 6 or 7 years) is a competent witness, unless he is unable to understand the questions or is unable to give rational answers There is no provision in India by which corroboration to the evidence o f a child is required. It is a sound rule in practice not to act on the uncorroborated evidence o f a child, but this is a rule o f prudence, and not o f law (Nirmal Kitmar v Stati o f UP. A IR 1952 S C 1131). T h e statement o f the child may be recorded without administering oath to him. T h e cou rts should, however, always record their opinion that the child understands the duty o f speaking the truth. Chance witness — I f by coincidence or chance a person happened to be at the place o f occurrence w hen the incident is taking place, he is called a chance witness Merely because there is n o compelling reason for him to be present at the time o f the occurrence, that by itself need not necessarily mean that his evidence has to be rejected. Victim o f rape — She (prosecutrix) is a competent witness under Sec. 118 and her evidence m ust receive the same weight as is attached to an injured in cases o f

79. W ho is com petent witness to testify? 79a.

Write a short note on: Child witness.

[D elhiJ,S. 1982[[U.P. PCS Q) 1988\ [D elhi J.S.1982\ O b je c tiv e QuemHoxMM

(Multiple Choice)

256.

Estoppel is: (a) A principle of law by which a person is held bound by the representation made by him or arising out of his conduct. (b) A principle of law by which a person is held not bound by the representation made by him or arising out of his conduct. (c) A kind of presumption. (d) A kind of evidence.

257.

The doctrine of estoppel Is a: (a) (b) (c) (d)

Rule of evidence. Substantive rule of law. Rule of pleading. None of the above.

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violence. T he Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars (State o f Maharashtra v C.K. Jain AIR 1990 S C 658). Partisanl Relation Witnesses (Interested Persons as Witnesses )80 If a witness is a relative o f the person w ho produces him, his statement cannot be discarded only for that reason, unless it is shown that the statement is a tainted one and was given only to benefit the person producing him (Union o f Ituiia v Savita Sharma A IR 1979 J & K 6). It may, however, be that the evidence o f such witness should be scrutinized carefully. Where such scrutiny establishes reliability, evidence ought n ot to be rejected (Krishna P itta v State o f Kerala AIR 1981 SC 1237). An ‘ interested witness’means a person w ho wants to see the accused convicted because o f his ow n animus o r otherwise (evidence o f police officers falls in this category). A relative may not be s o interested. A person cannot be said to have such animus merely on the ground that he d eposed against the accused on an earlier occasion (Suk Bahadur Subha v State o f Sikkim , 1988 CrLJ 1453). The credibility o f the witness does not get affected merely because he is related to the deceased or does not state the incident in the same language or manner which in the opinion o f the court is natural. Where the testimony o f the injured eye-witness was convincing and o f sterling worth and was also corroborated by medical evidence, his testimony could not be disregarded only because he was related to the deceased (Aidan v State o f Rajasthan, 1993 CrLJ 2413). Similarly, evidence o f a police officer cannot be rejected for that reason alone. Where the testimony o f a police officer that he seized the driving licence and other docum ents from the possession o f the accused w ho was charged with rash and negligent driving, this was held sufficient to prove that the accused was driving the vehicle, though n o other independent witness was produced (State o f M.P. v Jagdish, 1992 CrLJ 718 P&H).

80. In a trial for the offence o f murder, father o f the deceased is produced as an eyewitness for the prosecution. The accused objects the admissibility o f his statement on the ground that he is an interested witness, being father o f the deceased and hence an incompetent witness. Decide. [UP. P C S (J) 1997\ Write a short note on: Interested witness.

[D elhi J.S.1982[

Writz a short note on: Relation witness.

[D elhi J.S.1984\

258. The principle of estoppel says that: (a) A man cannot approbate and reprobate. (b) A man cannot blow hot and cold at the same time. (c) A man shall not be allowed to say one thing at a tim e and different thing at other time. (d) All are correct.

259.

Mark the Incorrect statement: (a) Estoppel is only a rule of civil action and has no or limited application in criminal proceedings. (b) Estoppel Is binding upon litigating parties and their privies. (c) Estoppel deals with the question of facts. (d) Estoppel deals with the question of rights.

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Official witnesF**'. H e is a public servant who is joined in or associated with the investigation o f an offence. While conducting raids or searches, or while laying traps, certain officials o f the concerned departments are joined in the raiding party i.e. the officials o f the police department, income-tax or sales-tax department, e tc At the trial, such public servants are examined as prosecution witnesses against the accused. T h e evidence o f such witnesses is not to be discarded merely because they are in the success o f the prosecution case. Their testimony is to be approached like the evidence o f any other ordinary witness. If the evidence o f such a witness is found to be trustworthy, there is no need to seek corroboration [H ajari L a iv State (D elhi Adm n.) A IR 1980 SC 873]. in t e r e s t e d i n

SEC. I 19: Dumb Witness

A

person w h o by reasons o f dumbness or otherwise is unable to speak, may give

evidence by any m eans by which he can make himself intelligible, such as, by writing or by signs. Evidence so recorded shall be regarded as oral evidence.

SEC. 120: Parties to Suit or Proceeding/ Husband or Wife I n all civil proceedin gs the parties to the suit, and the husband or wife o f any party to the suit shall be com petent witness. In criminal proceedings against any person the husband o r wife o f such person, respectively, shall be a competent witness. In all civil proceedings, the parties to the suit are competent witnesses. Therefore, a party to a suit can call as his witness any o f the defendants to the suit. The plaintiff and the defendant can give evidence against each other. Husband and wives are, in all civil and criminal cases, competent witnesses against each other (In olden days, the husband and wife were one person in law).

80a. Write a short note on: Official witness.

[D elh iJ.S. 1984\ O b je c tiv e Q u estio n s

(Multiple Choice)

260.

Estoppel can be: (a) (b) (c) (d)

261.

by by by all

matter of record. deed. pais or representation or conduct. of the above.

Which of the following Is an essential ingredient of estoppel by conduct under Sec. 115: (a) (b) (c) (d)

A representation made by defendant to the plaintiff. P laintiff altering his position on the basis of the representation. Detrim ent to the plaintiff. All of the above.

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SEC. 121: Judges and Magistrates Sec. 121 lays down that a Judge or Magistrate cannot be compelled except upon the special order o f a higher court, to give evidence about his conduct in relation to a case tried by him, nor can he be made to depose anything which he came to know as a court in course o f trial; but he may be examined as to odier matters which occurred in his presence whilst he was so acting. Illustrations

(a) A, on his trial before the Court o f Session, says that a deposition was improperly taken by B, a Magistrate. B cannot be com pelled to answer as to this, except upon the special order o f a superior court. (b) A is accused before the Court o f Session o f having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order o f a superior court. (c) A is accused before the Court o f Session o f attempting to murder a police officer whilst on his trial before B, a Session Judge. B may be examined as to what occurred. A judge or magistrate is a com petent witness. A judge can be witness to relevant facts as an ordinary man. I f a judge is personally acquainted with any material or particular fact he may be shown as a witness in the case. I f he saw something happen, he can testify to it even if it happened before him when he was presiding as a judge o r magistrate. If, for example, the accused attempted to shoot down a witness while he was testifying before a judge, the judge may be questioned as to what he saw. But, subject to this, no judge or magistrate can be questioned as to his judicial conduct or as to any matter that came to his knowledge while acting as such judge or magistrate. However, a judge can be questioned even as to judicial matters with the court's order. Moreover, a judge can waive his privilege and voluntarily offer to explain his conduct as such judge or magistrate. The privilege under Sec. 121 is also available to an arbitrator.

262. Mark the Incorrect statement: (a) Estoppel can be by silence or negligence (omission) or election. (b) Detriment is not necessary to create an estoppel against the State. (c) Estoppel is a rule of equity under the common law, but in India, it is a rule of law. (d) Promissory estoppel is not recognized in India.

263. Under promissory estoppel: (a) (b) (c) (d)

The representation is to an existing fact. The representation is of future intention or promise. Both (a) and (b). None of the above.

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PRIVILEGED COMMUNICATIONS81 T h e r e are certain matters which a witness cannot either be com pelled to disclose or even if the w itness is willing to disclose, he will not be permitted to d o so. Such matters are know n as ‘ privileged communications*. The production o f certain comm unications and docum ents is either privileged from disclosure or prohibited from being disclosed, as a matter o f public policy or on the ground that the interest o f State is suprem e and overrides that o f an individual (Secs. 122-129).

SEC. 122: Com m unications during Marriage A

person cannot be com pelled to disclose any communication made to him or her

during marriage by any person to w hom he or she is o r has been married; nor will such com m unication be permitted to be disclosed except in the follow ing three cases, viz., (i) if the person w h o m ade it, or his or her representative-in-interest, consents, or (ii) in suits betw een married persons, or (iii) in proceedin gs in which one married person is prosecuted for any crime com m itted against the other. Thus, Sec. 122 prevents communications between a man and his wife from being disclosed. This section rests on the obvious ground that the adm ission o f such testimony w ould have a powerful tendency to disturb the peace o f families, to promote dom estic broils, and to weaken, if not to destroy, that feeling o f mutual confidence which is the m ost endearing solace o f married life. Thus, the prohibition is founded on a principle o f high im port which no court can relax. The protection is n ot confined to cases where the comm unication sought to be given in the evidence is o f a strictly confidential character, but the seal o f law is placed upon a ll com m unications o f whatever nature which pass between husband 81. What is meant by privileged communication? Explain the law. [D elhiJ.S. 1996\[Bihar J. S. 1984/ 1986] O b je c tiv e Qxioutions

(Multiple Choice)

264. Which of the following Is an exception to the doctrine of estoppel? (a) Where a minor represents fraudulently or otherwise th a t he is o f age and thereby induces another to enter into a contract with him. (b) When true facts are known to both the parties. (c) When both the parties plead estoppel. (d) All of the above.

265. There can be no estoppel (a) (b) (c) (d)

on a point o f law. against a statute. against a rule of law. all of the above.

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and wife. It extends also to cases in which the interests o f strangers are solely involved, as well as to those in which the husband or wife is a party on the record. T h e protection is limited to such matters as have been com m unicated ‘ during the marriage*. Such com m unication remains protected even after the dissolution o f marriage o r when on e spouse dies. But those made either before marriage o r after its dissolution arc not protected (M.C. Verghese v T.J. Potman). Further, the privilege is for the com m unication and not to be the witness. The section says that a spouse shall n ot be com pelled to disclose such comm unication and that they shall not be even perm itted to disclose even if he or she volunteers to d o so. Protection When Not Available: Exceptions to Sec. 122 (1) A cts apart from communications — T he acts or conduct o f spou ses apart from com m unications are not protected under Sec. 122. A wife can testify as to what her husband did on a certain occasion, though not as to what he said to her. In Ram Bbarose v State o f U.P. (AIR 1954 SC 704), the accused was on his trial for m urdering a neighbour for the purpose o f robbing som e ornaments and then to present them to his wife. While presenting them to his wife he said that he had gon e to the m iddle house (where the deceased lived), to get them. His wife then told the court that she saw on e early m orning her husband com in g dow n the roof. He then went inside the fodder store and had a bath. H e put back the same clothes and came to her to present the things. H eld that what the husband said to his wife was not admissible, but she could testify as to his conduct.82 (2)

Waiver o f privilege - Evidence o f a privileged com m unication can be given by a sp o u se with the consent o f the party w h o m a d e the communication. This is known as waiver o f the privilege.

(3) Suit or criminalproceeding between the two spouses - As the basis o f Sec. 122 is to preserve mutual confidence, it is obviou s that the section d o cs not apply when the spou ses are ranged on opp osite side. (4) Communication made before marriage or after its dissolution. (5) P roof o f communication by thirdperson —Com m unications o r conversations between husband and wife taking place in the presence o f a third person, o r when overheard by a third person, can be testified to by the

82. A question based on the facts o f this case.

[U.P. PCS (J) 19831

266. Which of the following statem ents Is correct? (a) (b) (c) (d)

Estoppel is a rule o f evidence. Estoppel from record constitutes bar of res judicata. There can be estoppel on a point o f law. There can be estoppel when the truth o f the m atter is known to both parties.

267. Which of the following Is a leading ca se on estoppel? (a) (b) (c) (d)

Sharat Chandra Dey v Gopal Chandra Laha. Gangabai v Chabbubai. Amar Singh v State o f Punjab. None of the above.

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third p erson (without putting any o f the spouses in the witness-box). This is s o because privilege under Sec. 122 is that o f the parties to marriage, and not o f others. Thus, if a correspon d en ce (e.g. letter) containing communication from a husband to wife (or vice versa) falls into the hands o f a third person, it is admissible in evidence (it is the letter that discloses and not a spouse). In M.C. Verghese v T.J. Potman (AIR 1970 SC 1876), the husband wrote certain letters to his w ife which contained defamatory imputation about his wife's father. His father-in-law brou gh t a suit on the evidence o f these letters. The wife passed on the letters to her father. T he Supreme Court held that the letters are admissible in evidence. It also held that except where the spouse to w hom communication is made is a w itness and claim privilege (under Sec. 122), the evidence as to comm unication betw een husband and wife is admissible, under any other provisions o f the Act o r o n the grounds o f public policy. In Queen Em press v Danogbue, ILR (1899) 22 Mad.l, a letter containing a communication by the accused to his wife was seized during search o f house in the presence o f wife. T he letter was held admissible for she had not put letter into the hands o f authorities. In A ppu v State (AIR 1971 Mad. 194), a confession was made by a man to his wife in the presence o f other persons. The court allowed the confession to be proved through those other persons. In Pumping v Dir. o f Public Prosecutions (1862) 3 All ER 256, the letter by the appellant to his wife (containing a confession about the murder committed by him) was given by the appellant to a colleague for posting it. After his arrest, the colleague handed over the letter to captain o f the ship, who gave it to the police. The letter was held admissible in evidence; the crew members and captain gave evidence, but the wife was not called as witness. While a third person overhearing a confidential communication may testify to it, yet, as to documents, letters, etc. com ing into the possession o f a third person, a distinction should obtain. Thus, if they were obtained from the addressee spou se by voluntary delivery, they should still be privileged (for otherwise the privilege could by collusion be practically nullified for written communications); but if they were obtained surreptitiously (secretly) or otherwise without the addressee's consent, the privilege should cease.

O b je c t i v e QuoMtioMMM (Multiple Choice)

268. A, Intentionally and falsely leads B to believe that certain land belon gs to A, and thereby Induces B to buy and pay for it. The land afterwards becom es 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. (a) (b) (c) (d)

A must not be allowed to prove his want of title. A must be allowed to prove his want of title. The court will decide. None of the above.

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SEC. 123. Evidence as to Affairs of State “N o one shall be permitted to give any evidence derived from unpublished official records relating to any affairs o f State, except with the perm ission o f the officer as the head o f the department concerned, w ho shall give or withhold such permission as he thinks fit”. Sec. 123 protects unpublished State records from being disclosed. It is based on the maxim “Salus poputi est suprema le^ \ i.e. regard for public welfare is the highest law. T he general rule is that the witness is bound to tell the w hole truth and to produce any docum ent in his possession or power, relevant to the matter in issue. However, in certain cases, the production o f official docum ent may be injurious to larger public interest, as for instance it may harm State’ s security, g o o d diplomatic relations, etc. In such cases the State has been given the privilege not to produce certain docum ents which relate to “affairs o f the State”. T he privilege under Sec. 123 should be claimed either by the Minister, or his Secretary, or by Head o f the Departm ent by filing an affidavit. T he affidavit has to state that the docum ent in question has been carefully read and examined and the Departm ent is satisfied that the disclosure would not be in public interest. In State o f Punjab v Sukhdev Singh Sodhi (AIR 1961 SC 493), held that it is a matter for the authority to decide whether disclosure would cause injury to the public interest. However, the court would enquire into the question whether the evidence sought to be excluded from production relates to State affairs. In State o f U.P. v R aj Narain (AIR 1975 SC 865), the defendant quoted certain parts o f the ‘ Blue B ook ’- an official docum ent (relating to security arrangements o f the Prime Minister), and its production as an evidence, as it was not an unpublished document. T he court held that the disclosure o f certain portions d oes not render it published, for such portions may have n o concern with ‘ affairs o f State’ . It laid down som e authoritative propositions: 0

Foundation o f law behind Sec. 123 is injury to public interest.

(n) Public interest which demands evidence to be withheld must be weighed against public interest in the administration o f justice that the courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, evidence cannot be admitted. (iii) The ‘ confidentiality* o f the matter has to be decided by the Head o f the Department. However, the court can sum m on any docum ent

269. A Government licence was granted to a person to establish saw mill and he spent huge sum s of m oney a ctin g on the grant and the Government subsequently changed policy refusing to grant any further licences. (a) Government would be bound to grant that particular licence. (b) Government would not be bound to grant that particular licence as it is a matter of Government policy. (c) Government would be bound to grant that particular licence-though the policy may be revised for the future. (d) None of the above.

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notwithstanding any objection under S e c 162 and can discuss the admissibility (as an evidence), and can get the help o f translators to decide whether the docum ent relates to the ‘ affairs o f State*. (iv) I f the court is satisfied with the reasons cited in affidavit, matter ends there. I f not, the court may inspect the document and if it finds that any part o f the docum ent is innocuous (not related to affairs o f State) it could order disclosure o f such part. While ordering o f the disclosure o f in n ocu ou s part, the court must seal the other parts w hose disclosure is undesirable. In K K Jain v Union o f India (AIR 1993 SC 1769), the Supreme Court reaffirmed the above views by observing that the court can ‘ see in camera* and that n o ‘ privilege* is available against the court (in other words, court can examine the docum ents)?3 In this case, the appointm ent was in accordance with the amended Rules. T he merits o f the appointee and the reasons behind the amendment were not permitted to be exam ined in a public interest litigation.

SEC. 124: Official Communications - N o public officer shall be com pelled to disclose communications, m ade to him in official confidence, when he considers that the public interest would suffer by the disclosure**. This section is confined to public officers whereas S e c 123 embraces everyone. The court can co m p el the disclosure o f document, if the court disagrees with the officer. Further, peop le have a ‘ right to know* how their State is functioning; the State cannot withhold information on matters which have nothing to d o with sovereignty o r State secrets.

SEC. 125: Information as to Commission of Offences “N o Magistrate o r Public O fficer shall be compelled to say whence he g o t any 83. A Magistrate saw a docum ent during trial and confiscated it as a docum ent of State. Is his action proper? \U.P. P C S Q) 1983[ O b je c tiv e g n t f g a a f

(Multiple Choice)

270.

A loca l developm ent authority announced a housing sch e m e and a ccepted applications under It, subsequently finding that the sch em e w as In violation of the Master Plan cancelled it. (a) It is free to do so without any shackles of promissory estoppel. (b) It is not free to do so due to promissory estoppel. (c) It is free to do so without any shackles of promissory estoppel as there cannot be any estoppel against the Government in the exercise of its sovereign, legislative and executive functions. (d) None of the above.

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information as to the com m ission o f any offence, and no Revenue O fficer shall be com pelled to say whence he go t any information as to the com m ission o f any offence against the public revenue”. The section is intended to encourage people to give information about offences by protecting the source o f information, for otherwise, no one would like to give such information. It is well established that the police may suppress the identity o f the informants in the interest o f combating crime.

SEC. 126: Professional Communications N o barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’ s express consent, to — (i) disclose any communication made to him by or on behalf o f his client84, or any advise given by him to his client in the course and for the purpose o f his employment; (ii) state the contents or conditions o f any document with which he has becom e acquainted in the course and for the purpose o f his professional employment; (iii) disclose any advice given by him to his client in the course and for the purpose o f such employment. Provided that nothing in this section shall protect from disclosure (1) any such communication made in furtherance o f any illegal purpose, (2) any fact observed by barrister, etc. in the course o f employment showing that any crime or fraud has been committed since the com m encem ent o f his employment. It is immaterial whether the attention o f such barrister, etc. was or was not directed to such fact by or on behalf o f his client. Explanation - The obligation stated in this section continues after the employment has ceased. Illystrotjons

(a) A, a client, says to B, an attorney - “I have comm itted forgery and I wish \

271. Mark the Incorrect statement: (a) (b) (c) (d)

No action arises on the estoppel itself. Estoppel should be specifically pleaded. Both (a) and (b). None of the above.

272. Under Sec. 116: (a) Estoppel operates in case of a tenant during the continuance of tenancy or when the tenant remains in possession a fte r the termination of tenancy by notice to quit. (b) The tenant is estopped from denying the title o f landlord to the property at the commencement of the tenancy. (c) The tenant is estopped from denying the title of actual owner to the property at the commencement of the tenancy. (d) Both (a) and (b) are correct.

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you to defend m e”. As the defence o f man known to be guilty is not a criminal purpose, this communication is protected from disclosure.85 (b) A, a client, says to B, an attorney - “I wish to obtain possession o f property by u se o f forged deed on which I request you to sue”. This com m unication, being made in furtherance o f a criminal purpose, is not protected from disclosure. (c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the cou rse o f the proceeding, A observes that an entry has been made in A’ s account-book, charging A with the sum said to have been em bezzled, which entry was n ot in the book at the comm encem ent o f his employment. T his being a fact observed by B in the course o f his employment, show ing that a fraud h as been com m itted sinc< the com m en cem en t o f the proceedings, it is not protected from disclosure. A “professional com m unication”means a confidential communication between a professional (e.g. lawyer) and his client made to the former in the course, and for the purpose, o f his em ploym ent as such adviser. The privilege attaching to confidential professional disclosures is confined to the case o f legal advisers, and d oes not protect those m ade to clergymen, doctors, etc. Further, no privilege attaches to communication to an attorney or pleader consulted as a friend and n ot as an attorney or pleader. T he principle underlying Sec. 126 is that if communications to a legal adviser were n ot privileged, a man w ould be deterred from fully disclosing his case, so as to obtain prop er professional aid. Every person, however guilty, is entided to a fair trial - which involves the service o f a counsel and counsel cannot defend his client unless he knows the w hole truth. 85. A person approaches a lawyer, “I have forged the documents, kindly defend m e”. Is it a privileged communication? [DelhiJ.S. 1996[ [U.P. P C S (J) 198S\ ‘ A* went to a lawyer ‘ B* and stated that he (A) had committed murder o f and that he wanted to en gage him as his defence lawyer. ‘ B’replied that he did not defend actual murderers and he would instead give evidence against him (A) that he (A) had confessed his crime before him. Can *B’be allowed to d epose against ‘ A*? [UP. P CS (J) 1986\ [Ans. No, B cannot be allowed to depose against A.) Objective Question* (Multiple Choice)

273.

Who am ongst the following Is a competent witness as per Sec. 118? (a) A child unable to understand the questions put to him. (b) A person of extreme old age unable to understand the questions put to him. (c) A lu n a tic able to understand the questions put to him. (d) A d e a f person.

274. A person Is com petent to testify: (a) (b) (c) (d)

If he understands the questions put to him. If he can give rational answers. Depends on the court's discretion. All o f the above.

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T he privilege extends only to communications made to a lawyer confidentially and with a view to obtaining professional advise [Franji Bhicaji v Mohan Singh Dhan Singh (1893) 18 B om 263]. The prohibition extends to all com m unications (oral or documentary) made in confidence pertaining to any pending or contem plated case or for the purpose o f soliciting professional advice. T he counsel has right to claim privilege and refuse to show the statement o f witnesses recorded by the court in extenso and supplied to him in order to prepare him self for an effective cross-examination, if he has recorded instructions o f his client on these statements (Suptd\ <& Remembrancer Legal Affairs, W.B. v S. Bhowmick A IR 1981 SC 917). Exceptions to Sec. 126

‘ Explanation' to Sec. 126 em bodies the rule ‘ on ce privileged always privileged'. Thus, if the com m unication is made during the existence o f the relationship the privilege d oes n ot get terminated by the termination o f the litigation or the death o f the parties. T h e privilege under Sec. 126 is, however, subject to few exceptions'. (1) Communication made in furtherance o f illegal purpose (proviso 1) — Such communications are not protected viz. where a client consulted a lawyer for the purpose o f drawing up a bill o f sale which was alleged to be fraudulent (2)

Crime orfraud since employment began (proviso 2) —I f a lawyer finds in the course o f his employment that any crime or fraud has been committed since the employment began, he can disclose such information. It is based on the rule that no private obligation can dispense with that universal one which lies on every member o f society to disclose every design, which may be formed contrary to laws o f society, to destroy the public welfare.

(3) Disclosure with express consent o f client —waiver o f privilege. This section has been enacted for the protection o f the client and not o f the lawyer. The lawyer is therefore bound to claim privilege unless his client waives it. (4) Information falling into hands o f third person — I f the com m unication is overhead by a third person, he may be com pelled to d isclose it. The prohibition works against the lawyer, but not against any other person. (5) Lawyer's suit against client — I f the lawyer him self sues the client for his professional services, he may disclose so m uch o f die inform ation as is relevant to the issue.

275. Who amongst the following Is not a com petent witness? (a) (b) (c) (d)

A police officer. A victim of rape. A dumb person. An accused person in proceedings in which he is an accused.

276. Husband and wife: (a) Are competent witnesses against each other in m atrim onial cases. (b) Are not competent witnesses against each other as they are one person in law. (c) Are competent witnesses against each other in civil cases only. (d) Are competent witnesses against each other in civil as well as criminal cases.

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(6) Joint interest - N o privilege attaches to communication between solicitor and client as against persons having a joint interest with the client in the subject matter o f communication e.g. as between partners, a company and its shareholders. (7) Documents already put on record - N o privilege is available in respect o f such documents.

SEC. 127: Sec. 126 to Apply to Interpreters, etc. T h e provisions o f Sec. 126 apply to interpreters, and the clerks or servants o f barristers, pleaders, attorneys and vakils. They are also likely to com e to know o f the confidential information relating to litigation. A paid or salaried employee ’ > advises his employer on all questions o f law and relating to litigation must get th same protection o f law.

SEC. 128: Privilege N ot Waived by Volunteering Evidence Sec. 128 lays down that if the party making the communication under Sec. 126 gives evidence (at his own instance or otherwise) o f the matter covered by the communication, that does not amount to a waiver o f privilege. Even if such party calls the lawyer as a witness, it will not amount to a consent to disclosure. But if he questions the lawyer on the very matter o f the communication mat will amount to consent and by reason o f it the lawyer can disclose the communication.

SEC. 129: Confidential Communication with Legal Advisers T h e bar o f Sec. 126 is partially lifted by Sec. 129 —N o one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal adviser; but when a client offers himself as a witness, he may be compelled to disclose such communication as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others.

Objective Question* (Multiple Choice)

277. A judge or magistrate Is a competent witness. In which of the following cases, he can be a witness only upon the special order of a higher court: (a) A, on his trial before the Court of Session, says th a t a deposition was improperly taken by B, a Magistrate. B can be compelled to answer as to this. (b) A is accused before the Court of Session of attem pting to m urder a police officer whilst on his trial before B, a Session Judge. B may be examined as to what occurred. (c) Both (a) and (b). (d) None o f the above.

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It may be noted that Sec. 126 prohibits a lawyer from disclosing matters which have c o m e to his knowledge from his client for the professional purpose. Sec. 129, o n the other hand, places the client beyond the range o f com pulsion as to matters w hich have passed between him and his professional legal adviser.

SEC. 130: Production of Title deeds of Witness, Not a Party A c c o r d in g to this section, an ordinary witness i.e. a witness w ho is n ot a party, cannot be com pelled to produce — (i) his title-deeds to any property, (ii) any docum ent by which he becam e the pledgee or m ortgagee o f any property, and (iii) any docum ent which m ight tend to criminate him. But he can be so com pelled if he has agreed to produ ce any such docum ent with the person seeking its production.

SEC. 131: Production of Docum ents or Electronic Records T h i s section, an extension o f Sec. 130, lays dow n that if any person is entided to refuse the production o f a docum ent, the privilege or protection o f the docum ent/ electronic record should n ot suffer simply because it is in the possession o f another person. Thus, a person in p o ssessio n o f other person ’ s docum ents (e.g. attorney, vakil) is n ot com pellable to produ ce them, unless that person (owner o f documents) consents to their production.

SEC. 132: Witness N ot Excused from Answering Incriminating Questions86 S ec. 132 lays dow n that where a question put to a witness is relevant to the matter in issue in any suit or in any civil or criminal proceeding, the witness can be com pelled to answer it and he cannot be excused from answering it simply because the answer would tend to criminate him to civil o r criminal liability or to a penalty

86. Can a witness be excused from answering any question upon the grou nd that the answer to such question will criminate such w itness? [Raj.J.S. 199J\ What safeguards are provided to a witness w ho is com p elled to answer a question and makes in his answer an inculpatory statement? [Raj.J.S. 1999[ 278. Privileged communications relate to: (a) (b) (c) (d)

Matters which a witness cannot be compelled to disclose. Matters which a witness is willing to disclose but not permitted to do so. Both (a) and (b). Only (b).

279. Under Sec. 122:

(a) Communication between a man and his wife made during or after the dissolution o f marriage are prevented from being disclosed. (b) Confidential com m unication between a man and his w ife are prevented from being disclosed. (c) Confidential communication between a man and his wife made during the marriage are prevented from being disclosed. (d) Any communication between a man and his wife m ade during the marriage are prevented from being disclosed.

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or forfeiture. Thus, it is tiot in the pow er o f the judge to excuse a witness from answering if the question is relevant to the issue. T h e proviso to this section, however, protects the witness in an important way. It provides that if a witness has been com pelled to give an answer, his answer should n ot b e u sed to subject him to any arrest or prosecution; nor the answer can be proved against him in any criminal proceeding. Thus, the answers, which die witness is compelled to give, should not constitute any eviden ce against him. But, if the answer is false, the witness may be prosecuted for giving false eviden ce (i.e. perjury). “T h e o b je c t o f the law is to afford a party, called upon to give evidence, protection against bein g brought by means o f his own evidence within the penalties o f the law.”Sec. 132, however, is essentially designed not to deprive the court o f the inform ation (solely within the knowledge o f a witness) essential to its arriving a right decision. T h e protection is not available when a witness voluntarily answers without any com pulsion. W h en a witness objects to a question being put to him or when he asks the cou rt to b e excu sed from giving answer but he is com pelled to give answers, he is said to be “co m p elled ” to give evidence. They suppose an objection from the witness, which has been over-ruled by the judge, and a constraint put u pon the witness to answer particular question. T h e c o m p u lsio n referred to in proviso does not include the com pulsion by the general law o f the land (viz. fear o f punishment under Sec. 179, IPC). This is a com pulsion w hich acts against every witness and is inherent in the very idea o f a person, bein g a witness. T h e giving o f evidence is a matter o f duty and n ot o f compulsion. Further, Sec. 132, Evidence A ct does not apply to a statement m ade by a person during an investigation under Sec. 161, Cr.P.C. A person w h o is interrogated under Sec. 161 by a p o lice officer making an investigation is not a witness.

O b je c tiv e Q u e s tio n s

(Multiple Choice)

280.

Mark the Incorrect statement: (a) Admissibility of the evidence under Sec. 122 has to be adjudged in the light of the status on the date when the com m unication was made. (b) Admissibility o f the evidence under Sec. 122 has to be adjudged in the light o f the status on the date when the evidence is to be given in th e court. (c) Under Sec. 122, a spouse shall not be compelled to d isclo se comm unication made during the marriage and th a t they shall not be even permitted to disclose even if he or she volunteers to do so. (d) Such communication remains protected even after the d is so lu tio n of m arriage or when one spouse dies.

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A C C O M P L I C E E V I D E N C E 87

A n accomplice is a person w ho has taken part in the com m ission o f a crime - a guilty associate or partner in crime. When m ore than one person in concert com m its an offence, every on e participating in its com m ission is an accomplice. H e is called an approver if he is granted pardon under Sec. 306 o f the C od e o f Criminal Procedure 1973. An accom plice by becom ing an approver becom es prosecution witness. When he appears as a witness for the prosecution against the accused person with w hom he acted together in the com m ission o f the crime, the question arises as to what is the value o f the evidence o f a form er criminal turned witness. T w o provisions in the Act touch this problem.

SEC. 133: A ccom plice

“ An

accom plice shall be a com petent witness against an accused person; and a

conviction is not illegal merely because it proceeds upon the uncorroborated testimony o f an accomplice.” Sec. 114: Illustration (b) “T he court may presum e that an accom plice is unworthy o f credit, unless he is corroborated in material particulars.” However, Sec. 114 also gives two instances when this d oes not apply - A person o f the highest character, is tried for causing a m an’ s death by an act o f negligence in arranging certain machinery. B, a person o f equally g o o d character, w h o also took part in the arrangement, describes precisely what was done, and admits and explains the com m on carelessness o f A and himself. 87. Who are accom plices under the Evidence Act? Under what circum stances a conviction can be based on the testimony o f an accom plice? Illustrate your answer and discuss whether you agree with the following statement: “The testimony o f the man o f the very lowest character who has thrown to the wolves the erstwhile associates and friends in order to save his own skin and who is a criminal and has purchased his liberty by betrayal, must be received with very great caution.” [U.P. P C S (J) 1982/1987\[DelhiJ.S. 198(J[[BiharJ.S. 1987/1991\ Who is an approver?

[Raj.J.S. 1994[

281. In which of the following cases, the protection under Sec. 122 Is not available? (a) Acts or conduct o f spouses apart from communications. (b) Waiver of privilege i.e. evidence given by a spouse with the consent of the party who made the communication. (c) Suit or criminal proceeding between the two spouses. (d) All of the above.

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T he other instance is - A crime is committed by several persons. A, B, and C three o f the criminals, are captured on the spot and kept apart from each other. Each gives an account o f the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable. There is n o antithesis between Sec. 133 and S e c 114, illustration (b), because the latter only says that the court ‘ may’presume a certain state o f affairs. It does not seek to raise a conclusive presumption. Sec. 133 is a clear authorization to the courts to con vict o n the corroborated testimony o f an accomplice, but since such a witness, being criminal himself, may not always be trustworthy, the courts are guided by the Sec. 114, illustration, that, if it is necessary the court should presume that he is unreliable unless his statements are supported or verified by som e independent evidence (Dagdu v State o f Maharashtra (1977) 3 SCC 268. Sec. 133 lays d ow n a rule o f law. But S ec 114, illustration (b) lays dow n a rule o f prudence. This rule o f prudence has now com e to be accepted as a rule o f law by judicial legislation both in Indian and English law.?8 Insistence on C orroboration o f Accom plice Evidence by Courts88* The evidence o f an accom plice should stand the test o f verification at least in main points. T his is known as corroboration. There are the following dangers in accepting the “uncorroborated testimony”o f an accomplice: (1)

H e is participes criminis (a participant in the com m ission o f actual crime), hence evidence com es from a tainted source.

(2)

H e has been faithless to his companions and may be faithless to the court

88. A ccording to Sec. 114 (b), ‘ the court may presume that an accom plice is unworthy o f credit, unless he is corroborated in material particulars’ . According to Sec. 133, ‘ an accom plice 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 accom plice’ . Reconcile the above opposite statements and quote cases. [U.P. PCS (J) 1984\ [D elhi J.S. 1982[ 88a.

“T h e law contained in Sec. 133 o f the Indian Evidence Act is not a g o o d law and hence the practice o f the court is otherwise.”Examine the statement. [U.P. PCS 0) 1997[ [Raj.J.S. 1999\ Objective Q m m c s U o m s m (Multiple Choice)

282.

If a correspon den ce (e.g. letter) containing communication from a husband to wife (or vice versa) falls Into the hands of a third person: (a) It is admissible in evidence. (b) It is inadmissible in evidence. (c) It is inadmissible in evidence until consented to by the writer of the communication. (d) None of the above.

283. Which of the following is not a case coming under Sec. 122 (Privileged communications between husband and wife): (a) (b) (c) (d)

Queen Empress v Danoghue. M.C. Verghese v TJ. Ponnan. Ram Bharose v State of U.P. Franji Bhicaji v Mohan Singh Dhan Singh.

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because he has m otive to shift the guilt from him self to his form er companions. (3)

I f he is an approver (i.e. granted pardon), he has been favoured by the State and is therefore likely to favour the State.

T hese reasons dictate the necessity for corroboration. In fact, an approver’ s evidence has to satisfy the double test: (i) his evidence must be reliable; (ii) his evidence should be materially corroborated. ‘ Every person w ho is a competent witness is n ot a reliable witness and the test o f reliability has to be satisfied by an approver all the m ore before the question o f corroboration o f his evidence is considered by criminal courts.’ T he nature and extent o f corroboration o f accom plice evidence must necessarily vary with the circumstances o f each case. But the guiding rules laid dow n in R. v Baskervit/e (1916 2 KB 658) are clear beyond controversy. They are: (1) It is not necessary that diere should be independent confirmation, in every detail, o f the crime related by the accomplice. It is sufficient if there is a confirmation as to a material circumstance o f the case. (2) The confirmation by independent evidence must be o f the identity o f the accused in relation to the crime. Thus, there must be confirmation that not only has the crime been com m itted but that the accused comm itted it. (3) The corroboration must be by independent testimony i.e. by som e evidence other than that o f the accomplice, and therefore, one accom plice cannot corroborate the other. (4) The corroboration need not be by direct evidence that the accused committed the crime; it may even be circumstantial. In Rameshwar v State o f Rajasthan (1952) SCR 370, the Supreme Court has confirmed the said rules. In Ravinder Singh v State o f Haryana (AIR 1975 SC 856), the accused was charged with murder o f his wife. His friend turned approver, w ho disclosed the accused’ s intimacy with other girl The accused had hatched a conspiracy with the help o f approver. Held that the approver was reliable and his statement was corroborated by independent witnesses (that the accused was accom panying the deceased in the train). The approver’ s test is fulfilled if the story he relates involves him, and the story appears to be natural and probable catalogue o f events, and the story must implicate the accused in such a manner so as to give rise to conclusion o f guilty beyond reasonable doubt. 284. Which section of the Evidence Act protects unpublished State records from being disclosed? (a) (b) (c) (d)

Sec. Sec. Sec. Sec.

122. 123. 124. 125.

285. Under Sec. 123:

(a) The court can summon any document and decide whether the document relates to the 'affairs of State’. (b) The court may inspect the document and if it finds th a t any part of the document is Innocuous (not related to affairs of State) it could order disclosure of such part. (c) The court can examine the documents. (d) All are correct.

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In Bhuboni Sahu v Emperor (AIR 1949 PC 257), the court observed: A com bined reading o f Sec. 133 and illustration (b) to S ec 114 makes it clear that whilst it is not illegal to act o n an uncorroborated evidence o f an accomplice, it is a rule o f prudence s o universally follow ed as to amount almost to a rule o f law that it is unsafe to act o n the evidence o f an accomplice unless it is corroborated in material respects s o as to im plicate the accused. The corroboration must be not only with regard to the occurrence, but also as against each o f the accused. The evidence o f one a ccom plice cannot be used to corroborate the testimony o f another accomplice. Further, an accom plice cannot corroborate himself. The previous statement o f approver (even recorded under Sec. 164, Cr.P.G) cannot be used fo r the corroboration o f his testimony. A tainted evidence does not lose its taint by repetition. He may im plicate ten peop le in an offence, and the story may be true in all its details as to eight o f them, but untrue as to the other two, whose names have been introduced because they were enemies o f the approver. This tendency to include the innocent with the guilty is particularly prevalent in India. T h e only real safeguard against the risk o f condem ning the innocent with the guilty lies in insisting on independent evidence which in som e measure implicates each accused. T h e court, where there is no opportunity o f previous concert, can consider co n fessio n o f co-accused. In Haroon H a ji v State o f Maharashtra (AIR 1968 SC 832), held that if several accom plices give evidence (identical version) implicating the accused, the court may act on it if it is satisfied that there was no opportunity for prior con cert However, such confession must inspire confidence both in its content and in manner and circumstances o f its making e.g. all accused were detained separately and they had no chance o f meeting each other before the trial. In State ofT.N . v Suresh (AIR 1998 SC 1044), it observed: “ The law is not that the evidence o f an accom plice deserves outright rejection if there is no corroboration. What is required is to adopt great circumspection and care when dealing with the evidence o f an accom plice”. The fact that the testimony o f an accom plice was found to be n ot acceptable in respect o f one o f the accused persons for want o f independent corroboration should not be taken to cast a doubt upon her reliability as a witness in respect o f other accused persons (Ramadhar Basu v State o f 1V.B. AIR 2000 SC 908).

O b je c t iv e

Q u e e t io a M

(Multiple Choice)

286. Which section of the Evidence Act lays down that no public officer shall be com pelled to disclose communications, made to him In official confidence? (a) (b) (c) (d)

287.

Sec. Sec. Sec. Sec.

1 2 3 .' 124. 125. 126.

Under Sec. 125, can a police officer be com pelled to d isclose the source of Information as to the commission of an offence? (a) (b) (c) (d)

Yes. No. The court will decide. None of the above.

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Who is Not on Accomplice

T he follow ing classes o f persons are not accomplices: (i) When a person, under threat o f death or other form o f pressure, com m its a crime along with others, he is not a willing participant in it, but victim o f such circumstances. (ii) A person who witnesses a crime, and does not give information o f it out o f tenor (iii) Detectives, paid ‘ informers’and ‘ trap or decoy witnesses’ *® * (to trap the accused) are not accomplices. A court may convict on an uncorroborated testimony o f trap witnesses if it is satisfied o f their truthfulness (Prakasb Chand v State AIR 1979 SC 400). It is always for the judge to decide whether it is safe to rely and act upon a trap-witness. His partiality for the prosecution is a factor which can hardly be ignored. The character, position in life, and the social standing o f the witness would g o a long way in helping the judge to appreciate his evidence. Confession o f Co-accused v A ccom plice Evidence Sec. 30 (Confession o f co-accused) lays dow n that when m ore persons than one are being tried jointly for the same offence, and a confession made by on e o f such persons affecting him self and som e other o f such persons is proved, the court may take into consideration such confession as against such other person as well as against the person w ho makes such confession. The confession o f a co-accused is not treated in the same way as the testimony o f an accomplice: (1) The confession o f co-accused is not “evidence”, as it is not recorded on oath, nor it is given in the presence o f the accused and nor its truth can be tested by cross-examination. . ' T he accom plice evidence is taken o n oath and tested by crossexamination; a higher probative value is thus given to it. (2) The confession o f co-accused must only be taken into consideration along with other evidence in the case, and it cannot alone form the basis o f a conviction.

88b.

A conviction is not illegal merely because it p roceed s u p on the corroborated testimony o f an accomplice. / W rite a s h o r t n o t e o n : D e c o y w itn e s s . [D elh iJ.S.1984/1 288.

Mark the Incorrect statement In relation to professional communication between a client and his legal advisor under Sec. 126: (a) No barrister shall a t any tim e be perm itted to disclose any communication made to him by or on behalf o f his client, or any advise given by him to his client in the course and for the purpose of his employment. (b) The privilege extends only to communications made to a lawyer confidentially and with a view to obtaining professional advise. (c) If the communication is made during the existence of the relationship the privilege does not get terminated by the term ination o f the litigation or the death of the parties. (d) The privilege also attaches to communication to an attorney or pleader consulted as a friend.

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(3) The philosophy o f Sec 30 is that confession o f co-accused affords som e sort o f sanction in support o f the truth o f his confession against others and himself An a ccom plice evidence is also not free from criticism. “ An approver is a m o st unworthy friend, if at all, and he, having bargained for his immunity, must prove his w orthiness for credibility in cou rt”. However, the Supreme Court has taken care o f it by insisting on corroboration. In many cases o f prosecution o f m em bers o f organized crime, an approver and few co-accused may be the only evidence and it is obvious that such persons would never be convicted if S e c 133 was n ot there in the statute book. Retracted evidence and approver’ s evidence —In the case o f the person confessing w h o has resiled from his statement Le. retracted confession, general corroboration is sufficient, while an a ccom p lice’ s evidence should be corroborated in material particulars. W hen com pared to a retracted confession and to an approver’ s evidence, ‘ dying declaration’ stands o n a very high level. Corroboration is needed in the two cases but in the case o f dying declaration it cannot be laid down as an absolute rule that a dying declaration cannot form the sole basis o f conviction unless corroborated. Evidence o f prosecutrix — T h e evidence o f a prosecutrix (victim o f rape) cannot be treated as the evidence o f an accom plice requiring corroboration. Like the evidence o f any other injured witness, the evidence o f a girl or woman raped o r m olested should bear weight. T h e Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars (State o f Maharashtra v C.K. Jain A IR 1990 S C 658). SEC. 134: N u m b e r o f W itn esses** (Testim ony o f S o le W itn e ss w h e th e r Reliable?) “ N o particular number o f witnesses shall in any case be required for the p r o o f o f any fact.”H o w many witnesses are necessary for the p r o o f o f a fact is wholly left to the judgm ent o f the co u rt As a general rule, a court can and may act o n the testimony o f a single witness, though uncorroborated. One credible witness outweighs the testimony o f a number o f other witnesses o f indifferent character. S e c 134 marks a departure from the English law on this point 89. Write a short note on: Maxim- ‘ Evidence has to be weighed and not cou n ted’ . [D elhi J.S. 1996] Objective Quentiona

(Multiple Choice)

289.

The protection under Sec. 126 Is not available for:

I. Communication made In furtherance of Illegal purpose. II. Any fact observed by barrister In the course of employment showing that any crime or fraud has been committed since the com m encem ent o f his employment. HI. Lawyer’ s suit against client. IV. Docum ents already put on record. V. Information falling Into hands of third person. (a) (b) (c) (d)

I, II, III and IV. II, IV and V. I. II, III and V. I, II, III, IV and V.

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“ The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. N or is it proper to reject the case for want o f corroboration by independent witnesses if the case made out is otherwise true and acceptable”[State o f U.P. v A n il Singh AIR 1988 SC 1998]. The Supreme Court has in a number o f cases sustained convictions on the basis o f die testimony o f a sole witness. It has opined that it is the quality (veracity) and not quantity o f evidence that matters. The testimony o f single witness if it is straightforward, cogent and if believed is sufficient or wholly reliable to prove the prosecution case, the conviction can be based on it. The sole witness whose testimony was neither consistent nor corroborated by medical evidence, other circumstances also showing his unreliability, conviction on such testimony could not be sustained. The infirmity in the testimony o f the sole eyewitness, if o f minor nature, could be ignored [Badri v State o f Rajasthan (1976) 1 SCC 447; Jayaram Shiv Tagore v State of Maharashtra A IR 1991 SC 1735], The court cannot be asked to insist upon corroboration by other witnesses particularly where the time and place o f occurrence exclude the possibility o f the presence o f any other witness. However, sometimes the nature o f the testimony o f the witness itself requires, as a rule o f prudence, the corroboration, viz. in the case o f a child witness, or a witness who is accomplice or o f an analogous character. In cases o f rioting, etc. it would be prudent to insist upon at least two reliable witnesses to testify to the participation o f a particular accused person. Where an offence involves a large number o f offenders and victims, a conviction can be sustained only if it is supported by two or three or even more witnesses [Wakil Singh v State of Bihar AIR 1981 SC 1392].

290. In which of the following cases, the protection under Sec. 126 will not be available: (a) A, a client, says to B, an attorney - "I have committed forgery and I wish you to defend me". (b) A, a client, says to B, an attorney - “I wish to obtain possession of property by use of forged deed on which I request you to sue”. (c) Both (a) and (b). (d) Only (b).

291. A witness who Is not a party, cannot be compelled to produce

(a) his title-deeds to any property. (b) any document by which he became the pledgee or mortgagee of any property. (c) any document which might tend to criminate him. (d) all of the above.

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CHAPTER X OF THE EXAMINATION OF WITNESSES [SECS. 135-166] SEC. 135; Order of Production and Examination of Witnesses R ecordin g to Sec. 135, ‘ the order in which witnesses are to be produced and examined shall be regulated by the law relating to civil and criminal procedure respectively and, in the absence o f such law, by the discretion o f the court’ . Order XVIII o f C.P.C. and the Chapters XVIII, XX, XXI, XXII and XXVIII o f Cr.P.C. deal with the manner o f the examination o f witnesses. In civil cases, the party who has die right to begin i.e. on whom the burden o f proof lies examines his witnesses first. -In criminal cases, the prosecution has to examine its witnesses first. Primarily it is lawyer’ s privilege to determine the order in which the witnesses should be produced and examined. The order is to be decided by the party leading his evidence. However, Sec. 135 gives the court a power to dictate the order in which the witnesses may be produced. Exclusion of Witnesses from Courtroom - The witnesses should be examined one-byone and when a witness is being examined, other witnesses to be examined afterwards must not be allowed to remain in the courtroom. If a witness remains so, his examination cannot be refused; however, a note is to be made to the extent that he was present in the courtroom when another witness was being examined. SEC. 136: Judge to D ecide as to Admissibility of Evidence

"W hen either party' proposes

to give evidence o f 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.”

\ Objective Quemtions (Multiple Choice)

292. Linder Sec. 132, where a question put to a witness Is relevant to the matter In Issue In any suit or In any civil or criminal proceeding but the answer woulej tend to criminate him to civil or criminal liability or to a penalty or forfeiture, then:

(a) The witness can be compelled to answer it. (b) The witness cannot be compelled to answer it. (c) The answers, which the witness is compelled to give, should constitute an evidence against him. (d) Both (a) and (c).

17Q

Law Guide for Judicial Service Examination

A Judge has been so em pow ered in order that the p r o o f may be confined to relevant facts. T he court must, at the time when the evidence is tendered, decide w hether o r not it is admissible. A Judge may allow the evidence to be placed on the record provisionally, and subject to objection, in cases where that course would ultimately save time. But the question o f admissibility is to be decided after the cou n sel has been given an opportunity to address the court on the point. A party seeking to put a docum ent in evidence must show the section o r provision under which the docu m ent is admissible. Sec. 136 also em pow ers the court to control the sequence o f the production o f evidence in the case where the p r o o f o f on e fact is dependent on the p r o o f o f another fact. In such cases, the other fact should be proved before the evidence o f the first fact is offered. Thus, if a person wants to prove a dying declaration he must prove that the person w hose declaration it is su pposed to be, is dead [I/l/tst. (a)]. Similarly, if a party wants to give the secondary evidence o f a docum ent on the ground that he has lost the original, he should first prove the loss o f the original [Must. (b)]. However, in order to assure the flexibility o f the procedure, the court may allow the evidence o f the first fact without p r o o f o f the secon d if the party undertakes to prove the secon d at a subsequent stage. Sec. 136 further lays dow n that where the relevancy o f one alleged fact depends upon the p r o o f o f another fact, the court may allow the first fact to be proved without p r o o f o f the secon d and may require the secon d fact to be proved subsequently. Where, for example, it is sought to be proved that the stolen property was recovered from the possession o f the accused, but the accused denies it. Logically, it should first be proved that the property in fact recovered was on e that was stolen. But the court may allow the recovery to be proved before the identity o f the property is established [I/Iust. (c)]. It is p rop osed to prove a fact (A) which is said to haye been the cause o r effect o f 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 o r effect o f the fact in issue. T he Court may either perm it A to be proved before B, C and D is proved, *or may require p r o o f o f B, C and D before perm itting p r o o f o f A [Must. (d)].

293. An accom plice: (a) Is a guilty associate or partner in crime for which the accused is charged. (b) Is called an approver if he is granted pardon under Sec. 3 0 6 of the Code of Criminal Procedure, 1973. (c) By becoming an approver becomes prosecution witness. .(d) All are correct.

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SBC. 137: Exam ination-in-Chief, Cross-Exam ination, Re-Exam ination90 T h e testim ony o f a w itness is recorded in the form o f answers to questions put to him. W itnesses are n o t permitted to deliver a speech to the court. This way, their testimony can be co n fin ed to the fact relevant to the issue. Such questioning o f the witnesses is called his examination.

A ccording to Sec. 137, ‘ the examination o f a witness by the party who calls him shall be called his examination-in-chief\ ‘ the examination o f a witness by the adverse party shall be called his cross-examinatiotf; and, ‘ if the party who has called a witness seeks to question him again after the cross-examination that is known as re-examination.9 Examination-in-chief. W hen a witness appears before the court, he is given oath or affirmation; his nam e and address is taken down. Then the party w ho calls him, examine him to elicit the truth and to prove the facts which bear upon the issue in favour o f that party. This is called ‘ examination-in-chief\ It may be noted that the witness can give evidence o f fact only and no evidence o f law. Cross-examination-. After the party calling a witness has finished the examination-inchief, the op p osite party has a right to cross-examine the witness The purpose o f ‘ cross-examination* is to expose the truth about the testimony o f the witness The object o f the cross-examination is three-fold: First, to elicit from an adverse witness something in your favour; second, to destroy or weaken the force o f what the witness has said against you, and third, to show from the present attitude o f the witness or from his past experience that he is unworthy o f belief in whole or in part. T he lawyer seeks to discover the flaws, if any, in the testimony o f the witness and also to unmask perjury by the m ethod o f cross-examination. Opportunity to 90.

E xplain the s c o p e o f examination-in-chief, cross-exam ination and re­ examination under the Indian Evidence Act. State briefly their objects. [UP. PCS (J) *M7\ [R»j.J.S. 1999[ [Note-. Also see Secs. 138-140]. What is the difference between examination-in-chief and cross-examination? [Raj.J.S. 199T\ Objective Questions (Multiple Choice)

294.

What Is provision about an accomplice? (a) (b) (c) (d)

295.

He is not a competent witness. His evidence is irrelevant. His evidence should be believed blindly. His evidence is relevant under Sec. 114 and 113 o f Evidence Act. [M.P. CJ. {Prelim.) 1 9 9 9 )

An accom plice Is a competent witness against the a ccu sed under: (a) (b) (c) (d)

Sec. Sec. Sec. Sec.

118. 121. 133. 135.

*

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cross-examine a witness must be provided to the party. A tenant w ho wanted to cross-examine the old landlady allowed to d o so if he could arrange for travel [.PyarelaI v Devi Sbanker A IR 1994 M.P. 115]. Re-examination. The party w ho called the witness may, if he likes and if it be necessary, ‘ re-examine* him. The purpose o f it is die explanation or clarification o f the expressions used by the witness in cross-examination. S E C . 138: O r d e r o f E xam ination “ W itnesses shall be first examined-in-chief, then (if the adverse party s o 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 be confined to the facts to which the witness testified on his examination-in-chief. Direction o f re-examination. The re-examination shall be directed to the explanation o f matters referred to in cross-examination; and if, new matter is, by perm ission o f the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.*’ T he follow ing important points may be noted: (i) Cross-examination can extend to all the relevant facts, whether touched in the examination-in-chief or not. (ii) A witness cannot be thrown open to cross-examination unless he is first examined-in-chief. Where the prosecution did not examine its witness and offered him to be cross-examined, held that this amounted to abandoning on e’ s owm witness. Such an approach seriously affected the credibility o f the prosecution case [Sukfjtvant Singh v State of Punjab AIR 1995 SC 1601]. (iii)

Effect o f not cross-examining.90a When a fact is stated in examination-inchief and there is no cross-examination on that point, naturally it leads to the inference that the other party accepts the truth o f the statement.

But there arc several exceptions to this rule: (i) where the witness had notice before hand, (ii) where the story itself is o f an incredible or romantic character, (iii)

90a. “ Where a party fails to question his oppon en t’ s witness, the presum ption is that his evidence is accepted.” Elaborate this statement and indicate the exceptions, if any. [D elh iJ.S.1991] 296. Mark the Incorrect statement: (a) A conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. (b) An accomplie" is unworthy of credit, unless he is corroborated in material particulars. (c) It is not illegal to act on an uncorroborated evidence of an accomplice, but it is a rule of prudence that it is unsafe to act on such evidence unless it is corroborated in material respects. (d) The evidence of one accomplice can be used to corroborate the testimony of another accomplice.

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v^here the n on cross-examination is from the motive o f delicacy, (iv) where counsel indicates that he is n ot cross-examining to save time, and (v) where several witnesses ^ e examined o n the sam e point, all need not be cross-examined. Further, if the oral testimony o f a w itness is on the face o f it unacceptable, courts are not bound to accept it merely because there was no cross-examination \Juwar Singh v State o f M . P . AIR 1981 S C 373]. (iv)

A cross-examination follows upon the examination-in-chief, unless the court, for so m e reason, postpones it. The court may permit the person w h o calls a witness to cross-examine him under som e circumstances.

(v)

I f a w itness after being examined in chief d oes not appear to subject him to cross-examination his evidence becom e valueless [Gopal Sarvan v. Satya Narayan AIR 1989 SC 1141].

(vi)

A co-defendant in a case can be cross-examined by another co-defendant w hen their interests are adverse to each other.

(vii)

T h e p rop er limit o f re-examination is to confine it to an explanation o f the matters dealt with in cross-examination. If the re-examination introduces new matter, the adverse party will have the right to crossexamine the witness over that new matter.

(viii)

A n order o f re-examination can be made by the court on an application by a party. It is not restricted to the court's own motion.

SEC. 139: C ross-E x a m in a tion o f P erson called to P rod u ce a D o c u m e n t “ A person sum m oned to produce a docum ent does not becom e a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.” A person may be sum m oned to produce a docum ent without being sum m oned to give evidence. Such witnesses will not be cross-examined unless and until they give som e oral statement. W here the wife o f a partner was called u pon to produ ce the deed o f dissolution o f the firm, she was not permitted to be examined as a witness [Parmesbwari Devi v State A IR 1977 SC 403).

Objective Qinem tioas (Multiple Choice)

297. Who among the following Is not an accom plice?

298.

(a) (b) (c) (d)

A raped girl. An eye-witness to a murder. Trap or decoy witnesses. All of the above.

Mark the Incorrect statement:

(a) The confession of co-accused is not “evidence**, as it is not recorded on oath, nor it is given in the presence of the accused and nor its truth can be tested by cross-examination. (b) The accomplice evidence is taken on oath and tested by crossexamination; a higher probative value is thus given to it. (c) The confession of co-accused can alone form the basis of a conviction. (d) A conviction is not Illegal merely because it proceeds upon the corroborated testimony of an accomplice.

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S E C . 140: W itn e ss e s t o C h a ra cter “V i^itnesses to character may be cross-examined and re-examined”. A witness w ho appears to give evidence o f a party’ s character may be cxamined-in-chief and may a b o be cross-examined and re-examined. The evidence o f character is meant to assist die court in estimating the value o f evidence brought before the court through

the mouth o f a witness. SE C . 141: L eading Q u e stio n s91

“ A n y question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.” SEC. 142: W h en T h ey Must N o t b e A sked question must not, if objected to by the adverse party, be asked in an examination-in-chief o r in a re-examination, except with the perm ission o f the Court. T he Court shall perm it leading questions as to matters which are introductory or undisputed, o r which have in its opinion, been already sufficiently proved.” SEC. 143: W h e n T h ey May b e A sked

“L ea d in g questions may be asked in cross-examination.” A ‘ leading question’is on e which suggests to the witness the answer which it is desired he should give (Le. the question carry an in-built answer in it). A question is leading on e when it indicates to the witness the real or supposed fact which the examiner expects and desires to be confirm ed by the answer. Thus, the follow ing are the instances o f leading questions: Is not your name so and so? D o you n ot reside in such and such place? Are you not in the service

91.

What are leading questions? Who can put them? Illustrate your answer. [UP. P C S (J) 1984/1987/1988\ [Ra/.J.S. 1992[ [Bihar J.S. 1987\ 299.

Which of the following Is not a leading ca se on accom plice evidence? (a) (b) (c) (d)

Bhuboni Sahu v Emperor. Ravinder Singh v State of Haryana. R. v Baskerville. R.K. Jain v Union o f India.

300. What number of w itnesses will be required for the proof of any fact? (a) (b) (c) (d)

No particular number. At least one eye-witness. Two witnesses with regard to documents. One party and one witness.

[M.P. CJ. (Prelim.) 1999]

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Gf such and such a person? All these questions put the answers in the mouth o f witness and all that he has to d o is to throw them back. Thus, a question — “ where d o you live” is not a leading question. It may be noted that the leading questions are by no means limited to those which may be answered in ‘ yes’or ‘ no*. Leading questions cannot ordinarily be asked in examination-in-chief or re­ examination. T h e p u rp ose o f an examination-in-chief is to enable the witness to tell to the court by his ow n w ords the relevant facts o f the case. If leading questions were permitted, the lawyer questioning him would be able to construct through the mouth o f the witness a story that suits his client The witness is presumed to be biased in favour o f the party examining him and might thus be prompted. A fair trial o f the accused is n ot possible (and there would be violation o f Art. 21 o f the Constitution) if the prosecution can ask leading questions to a witness on a material part o f his evidence against the accused [Varkey Joseph v State o f Kerala A IR 1993 SC 1892]. I f the o p p o s ite party objects to the leading questions being asked in examination-in-chief o r re-examination, the court may in its discretion either permit a leading question o r disallow it. Further, such questions can only be asked when they refer to matters which are (i) introductory (u) undisputed, or (iii) sufficiently proved. For, if such questions were not allowed, the examination would be prolonged. Leading questions can, however, be asked in cross-examination. This is so, because the very pu rpose o f a cross-examination is to test the accuracy, credibility and general reliability o f the witness. The court cannot disallow leading questions in cross-examination. Thus, leading questions may be asked in the following cases: (l)

where they are not objected to by the opposite party;

(ii) where the opposite party objects but the court overrules the objection; (iii) where they deal with matter o f introductory or undisputed nature or the matter has already been satisfactorily proved; and (iv)

they may always be asked in cross-examination.

Objective Question* (Multiple Choice)

301.

302.

Question as to admissibility of evidence must be decided by the Court: (a) At the tim e when the evidence is tendered. (b) Evidence could be placed on the record provisionally. (c) After the counsel has been given an opportunity to address the court on the point. (d) All are correct.

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 a s the cause or effect of the fact In Issue. (a) (b) (c) (d)

The court may permit A to be proved before B. C and D is proved. The court may require proof of B, C and D before permitting proof of A Either (a) or (b). None of the above.

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SEC. 144: Evidence as to Matters in Writing S ee. 144 lays dow n that any witness w ho is about to give evidence as to a contract, grant or other disposition o f property, may be asked whether i* was not in writing, and if he says that it was, the opposite party may object to such (oral) evidence being given until the original docum ent is produced or until the party producing the witness is entitled to give secondary evidence o f it. An explanation appended to the section says that a witness may give oral evidence o f statements made by other persons about the contents o f a document, if such statements are themselves relevant facts. Where, for example, the question is whether A assaulted B, evidence is offered through the mouth o f C that he heard A saying to D that B had written him a letter accusing him o f theft and that he wiil take his revenge. This statement about the letter may be proved though the letter itself is not produced because the statement is relevant as showing A*s motive for the assault (IHast.). It may be noted that Sec. 144 lays dow n a rule for the purpose o f carrying out the provisions o f Sec. 91 as to the ‘ exclusion o f oral by documentary evidence.*

SEC. 145: Cross-examination as to Previous Written Statements S ec. 145 lays dow n the procedure by which ‘ a witness may in cross-examination be contradicted by his previous statement in writing or reduced into writing. A witness may be asked in cross-examination whether he made a previous statement in writing relevant to the matters in issue, different from his present statement without such writing being shown to him or proved. But, if it is intended to contradict him by the writing, his attention must be drawn to it*. This section provides for one o f the m ethods in which the credit o f a witness may be impeached (Also see Sections 138, 140, 146-148, 153-155). The object o f the provision is either to test the m em ory o f witness or to contradict him by previous written statement Further, the witness is given a chance o f explaining or reconciling his statements before the contradiction can be used as evidence (by calling his attention to those written parts). It is essential to fair play and fair dealing with a witness. I f a witness is not shown or confronted with the part o f the statement with which he was sought to be contradicted, the requirements o f Sec. 145 could not be said to be com plied with [Rajendra Singh v State o f Bibar, 2000 CrLJ 2199 (SC)]. 303.

Examlnatlon-ln-chlef, Cross-examination and Re-examlnatlon have been defined In: (a) (b) (c) (d)

304.

Sec. Sec. Sec. Sec.

135. 136. 137. 138.

Mark the Incorrect matching: (a) (b) (c) (d)

Examination-in-chief: By the party calling the witness. Cross-examination: By the adverse party. Cross-examination: By the prosecution. Examination-in-chief: Main examination.

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A previou s statement used to contradict a witness does not becom e substantive evidence. T h e on ly purpose to contradict with a previous statement is to prove that the statement m ade in the court is not reliable. A ‘ tape-recorded’evidence may also be used fo r contradiction under Sec. 145, as like a document, letter, depositions, police diaries, etc. T h e statem ent n ot only includes what is expressly stated therein but also what is necessarily im plied therefrom. In this way, ‘ om issions’in a statement may amount to contradiction. For example, A made a statement previously that he saw B stabbing C to death; but b efore the court he deposes that he saw B and D stabbing C to death. T h e cou rt can imply the word ‘ only’after B in the previous statement. This w ould contradict the present statement that he saw B and D stabbing C T he previou s statement must be o f the witness w ho is being cross-examined. A was em ployed by B to write his account-books. B supplied \ with necessary information. In this case, A cannot be contradicted with the entries in the accountbooks as it is n ot his statement but that <>f B. Previous statement o f a party can be used only to contradict him and not to contradict his witnesses. Sec. 145 is not attracted when a statement made by one witness is contradicted by another witness [Mohan L a i v State A IR 1982 SC 839]. Evidence in Criminal Proceedings

Evidence recorded in criminal proceedings can be used to contradict under S e c 145. The statements in the FIR made by the witness can be used (Nankbu Singh v State AIR 1973 S C 491). Sec. 162, Cr.P.C. im poses a bar on the use o f any statement made by any person to a police officer in the course o f investigation, except for the purpose o f contradicting the witness under Sec. 145. Sec. 145 whether Applicable to Admissions?

Sec. 145 is not attracted in the case o f admissions. A dmissions duly proved are admissible evidence irrespective o f whether the party making them appeared in the witness-box o r n ot and whether that party when appearing as a witness was confronted with those statements in case he made a statement contrary to those admissions [Bharat Singh v Bhagirathi AIR 1966 SC 405).

Objective Questions (Multiple Choice)

305.

306.

The examination, after the cross-examination of a witness by the party who has called him, Is called: (a) (b) (c) (d)

M ain examination. Additional cross-examination. Re-examination. Recross-examination.

Mark the Incorrect statement:

[M.P. CJ. (Prelim.) 2 0 0 2 ]

(a) Witnesses shall be first examined-rn-chlef, then (if adverse party so desires) crossexamined, then (if party calling him so desires) reexamined. (b) A w itness can be thrown open to cross-examination before he is firs t examlned-in-chief. (c) W ith o u t cross-examination the statem ent of a witness cannot become an evidence. (d) Re-examination of a witness can be done after examination-in-chief and a fte r cross-examination.

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Thus, the court did not allow a party to the case appearing as a witness to demand that he should be shown his earlier statements in the matter o f family partition which amounted to an admission [Tapan Das v Sasti Das A IR 1986 Cal 390].

SEC. 146: Questions Lawful in Cross-examination92 I n the course o f a cross-examination, a witness can be asked all questions relating to relevant facts. But, in addition to such questions, Sec. 146 lays dow n that a witness can be asked questions which tend: (1) to test his veracity, (2) to discover w ho 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 o r indireedy to criminate him o r to expose him to a penalty o r forfeiture. The statements o f a witness being testimonial o f their nature, it is right to subject them to impeachment in the appropriate ways. Testing the veracity o f a witness* means ascertaining his honesty as to advise the court to what extent the witness is creditworthy. A witness may always be subjected to a strict cross-examination as a test o f his veracity or accuracy, his understanding, his integrity, his basis and his means o f judging. Sec. 146 supplements Sec. 145. Questions can a b o be asked to find out his ‘ position in life* i.e. w ho he is, what he does, what is his source o f livelihood or whether he is a genuine or a professional witness. It is com m on practice to make inquiry into the relationship o f the witness with the party on w hose behalf he is called — business, social o r family — also to inquire as to his feeling towards the party against w hom his testimony is being given. ‘ Shaking the credit o f a witness by injuring his character* means to expose his respectability Le. whether he is a respectable man and whether his character and conduct are such that he can be trusted to tell the truth to the court. This kind o f questioning o f the witness is known as “cross-examination as to credit**. However,

92.

W h e n a w it n e s s is c r o s s - e x a m in e d , w h a t o th e r q u e s t i o n s c a n b e a s k e d in a d d it io n t o th e q u e s t i o n s r e la t in g t o th e in c id e n t ?

[U.P. P C S Q) 1988\

307. Cross-examination of a witness: (a) Must relate to relevant facts. (b) Need not be confined to the facts to which the witness testified on his examination-in-chief. (c) Both (a) and (b). (d) Only (a).

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questions should not be directed towards laying bare with private life o f the witness. The credit o f a witness can be said to have been shaken only if it can be shown that he is not a man o f veracity, and not that he is o f bad moral character. A blackmarketeer is not necessarily untruthful nor a non-black-marketeer necessarily man o f veracity [Chari v State AIR 1959 All 149].

The mere fact that the answer may tend to criminate the witness is no justification to refuse to answer. However, he may object to the question on the ground that the question is not relevant to the matter in issue.

Rules for Checking Improper Use of Cross-examination [Secs. 147-152] Sections 147 to 152 lay down rules against aggressive cross-examination. Since the character o f a witness is allowed to be opened up in the course o f cross-examination for the purpose o f ascertaining his credit worthiness, it is natural that a person would not like to appear as a witness unless he were assured o f some protection against aggressive cross-examination.

SEC. 147: W hen W itnesses to be Compelled to Answer Sec. 147 supplements the provision in Sec. 146 by providing that if the question put to the witness (under Sec. 146) relates to a relevant fact, the provisions o f Sec. 132 will apply. Under Sec. 132, a witness will have to answer the question notwithstanding that the answer may criminate him.

SEC. 148: C ourt to Decide when Question Shall be Asked and When Witness Com pelled to Answer93 A ccord in g to Sec. 148, S-vhen in the course o f a cross-examination the question asked to the witness is not relevant to the facts, but is asked only to shake his credit

93. H ow w ould the court decide that a particular question is p r o p e r o r im p r o p e r ? [UP. P CS (J) 198S\ Objective Q uoatioM xn (Multiple Choice)

308.

Mark the Incorrect statement In relation to re-examinatlon: (a) The re-examination shall be directed to the explanation o f matters referred to in cross-examination. (b) After re-examination of a witness, the adverse party has a right to fu rth e r cross-examine the witness only when a new m atter is introduced in re-examination. (c) During re-examination of a witness, a new matter can be introduced only with the court's permission. (d) An order of re-examination is restricted to the court's own motion.

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by ex posin g his character, the court has to decide whether or not the witness shall be com pelled to answer it. The court may warn the witness, if it thinks necessary that he is not bound to answer it’ . In deciding as to whether a witness should be com pelled o r not to answer a question the court shall have regard to the follow ing considerations: (1)

Proper questions'. If the court is o f the opinion that the truth o f the imputation could seriously affect the court’ s opinion as to credibility o f the witness the court should allow the question. Thus, in cases o f rape, the prosecutrix may be cross-examined as to her connection not only with the accused but also with other men. However, the court must also ensure that cross-examination is not made a means o f harassment o r causing humiliation to her [State of Punjab v Gurmit Singh (1996) 2 S C C 384].

Where a person appears as an eyewitness to a murder and he is questioned “whether he is cruel to his w ife”. T his fact, even if true, will not detract from the value o f his evidence as an eyewitness and, therefore, the question is improper. But, if the question imputes to him the charge that at on e time he him self was the m em ber o f the accused’ s gang and subsequently broke apart from it, this fact, if true, would seriously run dow n the court’ s opinion about him and, thus, the question is proper. (2) Improper questions'. Such questions are im proper if the truth o f the imputation is very rem ote in time o r is o f such a character that it would not affect at all or w ould affect only very slightly, the credibility o f the witness as to the matter o n which he gives evidence. A question as to previous conviction 30 years* old put to an intended surety was disallowed on the ground that it related to matter so rem ote in time that it ought not to influence the court’ s decision as to fitness o f such sureties.94 T h e testimony o f a witness cannot be rejected only on the ground o f his conviction in a murder case 43 years ago. T he lon g gap o f time m ight’ ve restored his credit [Anurag N air v State o f T.N. A IR 1976 SC 2588]. (3) Improper questions-. Such questions are im proper if there is a great disproportion between the im portance o f the imputation and the im portance o f his 94.

A w o m a n p r o s e c u t e s a m a n fo r p i c k i n g h e r p o c k e t . C a n th is q u e s t i o n th a t s h e h a d g iv e n b ir th t o a n ille g it im a t e c h il d te n y e a r s b e f o r e b e a s k e d ?

[UP. P C S

(J) 1988i

309. A person sum m oned to produ ce a docu m en t when p ro d u ce s the document then: (a) (b) (c) (d)

He becomes a witness. He is cross-examined by both the parties. He is cross-examined with the court’s permission. He does not become witness and cannot be cross-examined unless and until he is called as a witness. [M.P. CJ. (Prelim.) 2002]

310. Any question su ggestin g the answer which the person putting It wishes or expects to receive Is called: (a) (b) (c) (d)

Indecent question. Scandalous question. Question intended to annoy. Leading question.

(M.P. C.J. (Prelim.) 2002)

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evidence. Where, for example, a person appears to testify on a m inor matter o f a party’ s date o f birth, and it is imputed to him that he belonged to a gan g o f dacoits. (4 ) I f the question is proper and the court asks the witness to answer it, but even s o he refuses to d o so, the court may, if it sees fit, draw the inference that the answer if given would be unfavottrable to the witness.

SEC. 149: Q uestions Not to be Asked without Reasonable Grounds Sec. 149 lays dow n another important safeguard against assassination o f the character o f a witness in that n o question carrying an imputation to the witness shall be asked unless the person asking the question has reasonable ground to believe that the imputation contained in the question is well founded. Illustrations (a) A barrister is instructed by an attorney or vakil that an important witness is a dacoit. T his is a reasonable ground for asking the witness whether he is a dacoit. (b)

A pleader is inform ed by a person in court that an important witness is a dacoit. T h e 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 dacoit.

(c) A witness, o f w hom nothing whatever is known, is asked at random whether he is a dacoit. There are here no reasonable grounds for the question. (d) A witness, o f w hom nothing whatever is known, being questioned as to his m o d e o f life and means o f living, gives unsatisfactory answers. This may be a reasonable groujid for asking him if he is a dacoit.

SEC. 150: Procedure of Court in case of Reckless Questions “I f

th e c o u r t is o f o p i n i o n th a t an y s u c h q u e s t i o n w a s a s k e d w it h o u t r e a s o n a b le

g r o u n d s , it m ay, i f it w a s a s k e d b y an y ba rrister, p lea d e r, va k il o r attorn ey , r e p o r t

Objectitre Question* (Multiple Choice)

311.

Leading question (a) (b) (c) (d)

312.

may be asked in may be asked in may be asked in cannot be asked

cross-examination. examination-m-chief. re-examination. in any circumstances.

[M.P. CJ. (Prelim.) 1999] Which of the following statements Is not correct? (a) Leading question may be asked in cross-examination. (b) Witnesses to character may not be cross-examined. (c) A person summoned to produce a document does not become a witness. (d) A party with the court's permission, cross-examine his own witness.

[M.P. CJ. (Prelim,) 19961

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the circum stances o f the case to the High Court/other authority to which such barrister, etc. is subject in the exercise o f his profession.” Sec. 150 is the penalty that may ensue against a reckless cross-examination, if the court is o f opinion that the questions were asked without reasonable grounds. Any advocate w h o asks such questions without written instructions shall be guilty of ‘ contem pt o f court’and that the court may record any such question, if asked by a party to the proceedings. T he records o f the question are to be admissible as evidence o f the publication o f an imputation intended to harm the reputation o f the person affected.

SEC. 151: Indecent and Scandalous Questions U n d e r Sec. 151, ‘ the court can prevent indecent and scandalous questions (or inquiries) from being asked even if the question has som e bearing upon the matter in hand. Such questions may be allowed only if they relate to the facts in issue or are necessary for determining whether the facts in issue existed’ . The Supreme C ourt has held that no such questions should be put unless there are reasonable grounds to believe them to be true [Prakash v State, 1975 CrLJ 1297].

SEC. 152: Insulting or Annoying Questions S ec. 152 enables ‘ the court to forbid questions which are asked only to insult or annoy the witness’ . Even if the question is on a proper point, the court may forbid it if it is needlessly offensive.

SEC. 153: Exclusion of Evidence to Contradict Answers to Questions Testing Veracity A c cording to Sec. 153, ‘ if a witness has answered a question as to his credit (i.e. affecting his character), whatever be his answer, no evidence is allowed to be given to contradict his answer. But, if the answer given by him is false, he may afterwards be prosecuted for giving false evidence’ . It is obvious that questions, asked merely to discredit a witness by injuring his character, introduce matters altogether foreign to the enquiry, and that if controversy about matter so introduced is allowed the court would be occupied with deciding

313. In cross-examination, which of the following statem ents could be asked? (a) (b) (c) (d)

Any relevant fact which is not necessary. As to character. Any leading question. All of the above.

314. Which of the following Is not an example of a leading question: (a) (b) (c) (d)

Where do you live? Is not your name so and so? Do you not reside in such and such place? Are you not in the service of such and such a person?

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not the merits o f the case but merits o f the witness and, thus, suit might be indefinitely prolonged. Illustrations', (a) A claim against an underwriter is resisted on the ground o f fraud. The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. H e 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. H e denies it. Evidence is offered to show that he was dismissed for dishonesty. T h e evidence is inadmissible. In these illustrations, no evidence can be given to contradict a witness, but, as the answer is false, he may be prosecuted for giving false evidence (under Sec. 193, IPC). Exception 1, Sec. 153: I f a witness is asked whether he has been previously convicted o f any crim e and he denies it, evidence may be given o f his previous conviction. Exception 2, Sec. 153: I f a question is asked to impeach the impartiality o f a witness and he denies the su ggestion contained in the question, his answer may be contradicted. Thus, a party may call evidence to show that a witness on the other side has given his evidence out o f an ulterior motive (briber)7, malice or revenge). A is asked whether his family has not had a blood feud with the family o f B against w h om he gives evidence. H e denies it. He may be contradicted on the ground that the question tend to impeach his impartiality [Illust. (d)]. Illustration (c) lays dow n another exception to Sec. 153. Where a fact, which is relevant as having direct bearing at the issue, is denied by a witness, his answer may be contradicted by independent evidence. For example, A affirms that on a certain day he saw B at Lahore. A is asked whether he him self 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. Anything about which the witness has not been questioned so that there is n o answer which could be contradicted, n o evidence could be allowed to contradict the witness otherwise [State o f Karnataka v R Yarappa Reddy AIR 2000 SC 185]. O b je c t i v e QuefM tJojaM (Multiple Choice)

315.

B e sid e s cross-exam ination, lead in g q u estion s may b e a sk e d In examlnatlon-in-chlef or re-examlnatlon with the cou rt’ s permission: (a) Where they are not objected to by the opposite party. (b) Where the opposite party objects but the court overrules the objection. (c) Where they deal with matter of introductory or undisputed nature or the matter has already been satisfactorily proved. (d) All of the above.

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SEC. 154: Questions by Party to His Own Witness [Hostile Witness]9s S o m etim es a witness makes statements against the interest o f the party w ho has called him. This makes it necessary that he should be cross-examined by that party so as to dem olish his stand. Sec. 154 lays dow n that “the court may, in its direction, permit the party w ho has called a witness to put him such questions as could have been asked in cross-examination by the adverse party.” Sec. 154 is based on the principle that ‘ a witness whether o f on e party or another should not be given m ore credit than he really deserves.* Cross-examination under this section means that he can be asked (i) leading questions under Sec. 143, (ii) questions relating to his previous statement in writing under Sec. 145, and (iii) questions which tend to test his veracity o r to shake his credit under Sec. 146. ( A ‘ hostile witness* (the term has not been used in Indian law, unlike English law) is on e w ho from the manner in which he gives the evidence show s that he is not desirous o f telling the truth to the court. A witness w ho is gained over by the opp osite party is also termed as a hostile witness. An ‘ adverse* or ‘ unfavourable’ witness is on e called by a party to prove a particular fact, w ho fails to prove such fact o r proves an opposite fact. A witness cannot be said to be hostile: (i) whenever his testimony is such that it d oes not support the case o f the party calling him or is not in accord with the evidence o f other witnesses ['Tulsi Ram Sahu v K C. Pal A IR 1953 Cal 160]. (ii) when he has not been produced out o f the fear that he might disfavour the party w h o has to produce him [Ran/ Ratan v Bittan Kanr A IR 1980 All 395]. (iii) only because he gives inconsistent o r contradictory answers (e.g. at a Sessions trial, a witness tells a different story from that told by him before the Magistrate). t I 95.

W rite a s h o r t n o t e o n : H o s t i l e w it n e s s .

^

[UP. P C S (J) 1987\ [Raj.J.S. 1992\ [D elhi J.S. 1982\ C o m m e n t : “It is n o t o p e n t o th e p r o s e c u t i o n in a c r im in a l tria l t o c r o s s e x a m in e th e ir o w n w it n e s s u n le s s th e c o u r t d e c l a r e s h im to b e h o s t il e w it n e s s . ”

[D elhi J.S. 1999\ 316. The question Is whether A assaulted B, evidence Is offered through the mouth of C that he heard A saying to D that B had written him a letter accusing him of theft and that he will take his revenge. Though the letter itself is not produced, this statement about the letter: (a) May be proved. (b) May not be proved. (c) May be proved because the statem ent is relevant as showing A’s motive for the assault. (d) None of the above.

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The inference o f the hostility o f a witness would be drawn from the answer given by him and to som e extent from his demeanour, attitude, etc A prosecution witness can be declared hostile when he resiles from his previous statement made under Secs. 161 or 164, C lP.G Besides this, when a prosecution witness turns hostile by stating som ething which is destructive o f his prosecution case, the prosecution is endded to get this witness declared hostile. Court's permission under Sec. 154 — The permission for cross-examining on e’ s own witness should not be granted to the party at the mere asking. The granting o f permission is entirely the discretion o f the court. The discretion conferred by Sec. 154 is apart from any question o f hostility. It is to be liberally exercised whenever the court from the witness’ s demeanour, attitude, or the tenor and tendency o f his answers, o r from a perusal o f his previous inconsistent statement, or otherwise, thinks that the grant o f such perm ission is expedient to extract the truth and to d o justice [Sat Paul v Delhi Admn. AIR 1976 SC 294). Q uestions o f cross-examination can be allowed by the court to be asked by the party calling him even though the witness does not show to be hostile. When the adverse party has elicited new matter, in cross-examination, from a witness the court may perm it the party examining the witness to test his veracity. Value o f the Evidence o f a Hostile Witness

The w hole testimony need not be rejected, nor such witness can be regarded as a wholly reliable witness. T he court can rely upon that part o f the testimony which inspires confiden ce and credit [Rabinder Kumar Dey v State o f Orissa AIR 1977 SC 170]. T he testimony o f a hostile witness requires close scrutiny because he is contradicting himself, and that portion o f his statement, which is consistent with the prosecution or defence, may be accepted [State o f U.P. v Romesh Pal Mishra (1996) 10 S C C 360]. The testimony o f a hostile witness can be used to the extent to which it supports the prosecution case [Koli Laklimanbhai v State o f Gujarat A IR 2000 SC 210]. T he whole o f the evidence so far as it affects both parties favourably or unfavourably must be considered for what it is worth.

Objective Questions (Multiple Choice)

317. Sec. 145 (Cross-examination as to previous written statements) provides for one of the m ethods in which the credit of a w itness may be impeached. Under it: (a) A witness may be asked in cross-examination whether he made a previous statement in writing relevant to the matters in issue, different from his present statement without such writing being shown to him or proved. (b) A witness may be contradicted as to previous statement in writing without proving the same but only after showing the same to the witness. (c) Both (a) and (b) are correct. (d) Only (a) is correct.

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SEC. 155: Impeaching Credit of Witness Im p ca ch in g the credit o f a witness means exposing his real character to the court so that the court may not trust him. Sections 138, 140, 145 and 154 provide for im peaching the credit o f a witness by cross-examination; Sec. 146 perm its questions injuring the character o f a witness to be put to him in cross-examination. Sec. 155 lays dow n a different m ethod o f discrediting a witness by allowing independent evidence to be led. A s laid dow n by Sec. 155, die credit o f a witness may be im peached by the adverse party, o r by the party w ho calls him (with the court’ s consent) in the follow ing ways: (1)

Unwortfry o f credit. ‘ By producing witnesses w ho testify from their personal knowledge o f the witness that he is unworthy o f credit.’

(2)

Corrupt inducement ‘ By show ing that the witness has either taken bribe or has accepted the offer o f a bribe or som e other corrupt inducement for giving his evidence’(a m ere offer o f bribe to him will n ot impeach his credit). Such a “pocket witness”is not an independent witness but is one w ho has been hired.

(3) Former inconsistent statements-. ‘ By showing previous statements o f the witness which contradict his present statements’ . This is com m only used to impeach the credit o f a witness. A sues B for the price o f g o o d s sold and delivered to B. C says that A delivered the g o o d s to B. Evidence is offered to show that, on a previous occasion, he said that he had n ot delivered the g o o d s to B. The evidence is admissible [Il/ust. (a)]. A is indicted for the murder o f B. C says that B, when dying, declared that A had given B the w ound o f 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 [I/lust, (b)].96 The previous contradictory statements o f a witness can be used to discredit only his testimony and not that o f other witnesses. Further, S e c 155 is controlled by S e c 145 (the attention o f the witness must be drawn to his former statements before he is contradicted). A ‘ tape-recorded statement’is admissible under Sec. 155 (3).

96.

A q u e s t i o n b a s e d o n th is illu stra tio n .

[U.P. P C S

(J) 199I\

318. Sec. 145 Is not applicable to: (a) (b) (c) (d)

Criminal proceedings. Admissions. Both (a) and (b). None of the above.

319. Under Sec. 146, during cross-examination, a w itness could be asked questions: (a) (b) (c) (d)

To To To All

test his veracity. discover who he is and what is his position in life. shake his credit by injuring his character. of the above.

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(4) Immoral character. ‘ W hen a man is being prosecuted for rape or an attempt to ravish, it may be shown that prosecutrix (i.e. the complainant) is generally a w om an o f immoral character*. Explanation to Sec. 155

In examination-in-chief a witness cannot be asked the reasons for his belief that another witness is unworthy o f credit. Such questions can only be asked in crossexamination. Whatever reasons he may give shall not be contradicted, but if the answer is false, he may be prosecuted for giving false evidence. Stock W itness96* A ‘ stock witness* is a person w h o is at the back and call o f the police. H e obliges police with his tailored testimony. Such a witness is used by the police in raid cases. Such w itnesses are highly disfavoured by the judges. O n ce it is proved that a certain witness examined by the prosecution is a stock witness o f the police, the court would be justified in discarding his testimony. But that in itself is n o t enough to falsify the entire prosection case. In such a case, it is the duty o f the court to brush aside the testimony o f the stock witness and to see if the remaining prosecution evidence is enough to sustain the conviction o f the accused [Hazara Singh v State o f Punjab (1971) 3 S.C.R. 674]. M aterial W itness966 A witness w h o is essential to the unfolding o f the narrative on which the prosecution is based is know n as ‘ material witness*. Though the prosecution is n ot bound to examine all the witnesses named on the charge sheet, it is, however, bou n d to examine all material witnesses. This is so even when the prosecution apprehends that his evidence will n ot be favourable to the prosecution. « ■ I f a material witness is n ot examined and the prosecution has n o satisfactory explanation to offer for his being withheld, the court could examine such a witness as a ‘ Court witness*, o r to draw an adverse inference to the prosecution in respect o f that portion o f its case to which the witness withheld could have given evidence 96a.

W rite a s h o r t n o t e o n : S to c k - w itn e s s .

96b.

W rite a s h o r t n o t e o n : M a te r ia l w itn e ss .

[D elhi J.S. 19S4/1990\ [D elhi J.S. 1984\ Objective Questions (Multiple Choice)

320.

Under Sec. 148, when In the course of a cross-examination the question asked to the witness Is not relevant to the facts, but Is asked only to shake his credit by exposing hls character: (a) The witness shall be compelled to answer it. (b) The witness shall not be compelled to answer it. (c) The court has to decide whether or not the w itness shall be compelled to answer it. (d) The prosecution has to decide whether or not the witness shall be compelled to answer it.

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(Sarchil Singh v State o f Bombay AIR 1957 SC 747). Such a circumstance casts a serious reflection on the fairness o f the trial; the accused is entided to ask the court to draw the inference under Sec. 114, illustration (g), that if produced the evidence o f that witness would be unfavourable to the prosecution.

Rules Relating to Corroboration [Secs. 156-157] T h e rules relating to corroboration (i.e. evidence which supports the testimony o f a witness) are laid dow n in Secs. 156-157.

SEC. 156: Questions tending to C orroborate Evidence of Relevant Facts Admissible S ec. 156 la^s dow n that when the evidence o f a witness requires to be corroborated, he may be questioned (apart from the main event) as to any other circumstances which he observed at or near to th<^f time or place where the main fact happened, if the court is o f opinion that such circumstances, if proved, w ould corroborate the testimony o f the witness as to the relevant fact which he testifies. Illustration: A, an accom plice, gives an account o f a robbery in which he took part. H e describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence o f these facts may be given in order to corroborate his evidence as to the robbery itself. Sec. 156 provides for the adm ission o f evidence given for the purpose, not o f proving a particular fact but o f testing the truthfulness o f the witness.

SEC. 157: Former Statements as Corroboration S ec. 157 lays dow n that ‘ in order to corroborate the testimony o f a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally com petent to investigate the fact, may be proved*. Som e o f the form er statements allowed under this section are: A statement irrelevant under Sec. 32 because the maker o f the statement ultimately survived can be used to corroborate the testimony o f that person in the court; T he complainant’ s

321.

In which of the following cases, a question will be considered a s proper under Sec. 148? (a) In a rape case, the prosecutrix is cross-exam ined as to her connection not only with the accused but also with other men. (b) Where a person appears as an eyewitness to a murder and he is questioned "whether he is cruel to his wife". (c) A question as to previous conviction 30 years' old put to an intended surety. (d) A person appears to testify on a m inor m atter o f a party’s date of birth, and it is imputed to him that he belonged to a gang o f dacoits.

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conduct o f narrating the incident o f extortion to her colleagues after it was over, when it was corroborated by three witnesses was held to be relevant under S ec 157.97 In a case, B, the accused, was the cashier o f a company. He was suspected to have em bezzled the com pany’ s fund. Before filing FIR, B was taken to S, a solicitor o f the company. Certain conversation took place between B and S in that interview. S prepared n otes o f attendance o f the conversation soon after the interview. At the trial, S gave evidence as to what happened at the interview with B. These notes were tendered by the prosecution to corroborate the testimony o f S, when he deposed to what had taken place between him and the accused. These notes were held to be admissible under Sec. 157 [Bhogilal Chunilal v State AIR 1959 SC 356]. Statements At or About the Time o f Occurrence

Sec. 157 provides an exception to the general rule o f excluding hearsay evidence However, the statement must be made as early as can reasonably be expected in the circumstances o f the case and before there was an opportunity for tutoring or concoction. A statement made by a girl about her abduction 10 days after the incident, held to be inadmissible under S ec 157. In Rameshwar v State o f Rajasthan (1952) SCR 377, the Supreme Court allowed the statement to the court o f a young girl - a victim o f rape - to be corroborated with the girl’ s ow n statement to her mother four hours after the incident to the effect that she had been raped by the accused. T he statement o f the father o f a kidnapped child to the effect that a person standing at the site o f the crime gave him the identity by name o f the kidnappers

97.

I n th e p r e s e n c e o f A, m u r d e r is c o m m it t e d b y B. C im m e d ia t e ly c o m e s o u t o f h is s h o p n e a r th e p l a c e o f o c c u r r e n c e , a n d A te lls h im th a t B h a d c o m m i t t e d th e m u r d e r . A t th e trial o f B, A b e a r s te s tim o n y t o th e o c c u r r e n c e , b u t h e is n o t e x a m i n e d i f h e h a d t o ld C that B h a d c o m m it t e d th e m u rd er. C is p r o d u c e d b y t h e p r o s e c u t i o n a n d h e s ta te s that A t o ld h im a b o u t th e m u rd e r. I s th e s t a t e m e n t o f C a d m i s s ib l e in e v id e n c e ?

[D elhi J.S.199J\

[Ans. Yes, C ’ s statement is admissible in evidence under Sec. 157, although it is quite immaterial as to what weight is to be attached to his testimony in the court]

Objective Questions (Multiple Choice)

322.

In which of the following cases, there Is a reasonable ground to ask question to a witness under Sec. 149? (a) A witness, of whom nothing whatever is known, is asked at random whether he is a dacoit. (b) A witness, o f whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. Then he is asked if he is a dacoit (c) Both (a) and (b). (d) None o f the above.

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and the m o to r vehicle number in which they whisked away the child, but the father was n ot able to recall the number o f vehicle, his testimony was held to be hearsay but usable for supporting the testimony o f the witness o f fact [I 'ijemler v State o f Delhi (1997) 6 S C C 171]. It may be noted that if the statement is made to an investigating authority, it would be usable even if it was made after gap o f time viz. few days. Statements before an investigating officer arc not evidence (c.g. FIR) but can be used for corroboration or contradiction. The First Information Report (FIR) can be used to corroborate the testimony o f the maker o f it or to contradict him under Sec. 145. The previous statements o f an accomplice who becom es an approver witness have been regarded as insufficient corroboration. However, the previous statements o f an accomplice witness may be proved as corroborative evidence, if the court so desires.

SEC. 158: Corroboration or Contradiction of the Statements of Persons who Cannot be Found S ec. 158 lays dow n that ‘ when the statement o f a person w ho cannot be found or is dead is relevant under Sec. 32 o r 33 and has been proved (e.g. a dying declaration), all matters which either confirm the statement or contradict it, may be proved. Evidence can also be given o f any fact which might confirm or impeach the credit o f the person w ho made the statement to the same extent as if that person had appeared as a witness and had denied upon cross-examination the truth o f the matter suggested*. Thus, this section places a person w hose statement has been used as evidence under Sec. 32 o r 33 in the same category, as a witness actually produced in the court for the purpose o f contradicting his statement by a previous statement made by him. N o sanctity attaches to such statements simply because the person is dead or cannot be examined as a witness. H is credibility may be impeached o r confirm ed in the same manner as a living witness.

Rule as to Refreshing Memory [Secs. 159-161] S ectio n s 159-161 deal with the extent to which and the m ode in which a witness may refer to a writing in order to refresh his m em ory while giving evidence.

323. A witness is asked whether he w as not dism issed from a post for dishonesty. He denies It. Evidence Is offered to show that he was dism issed for dishonesty. (a) (b) (c) (d)

The The The The

evidence evidence evidence evidence

is is is is

admissible if it comes from p la in tiff’s side. admissible if it comes from defendant’s side. admissible. inadmissible. [M.P. C.J. (Prelim.) 1999)

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SEC. 159: R efresh in g M em ory 98 Sec. 159 enables a w itness to look at the following writings for the purpose o f refreshing his m em ory: (i) a writing made b y him either at the time o f transaction (happening concerning which he is questioned) or so soon afterwards that the court considers that the transaction m ust have been still fresh in his mind when he was recording it; (ii) any writing m ad e by any other person about the transaction which was read by the witness within the time aforesaid and he knew it to be correct; (iii) any p rofession a l treatises (books) where the witness is an expert. This section also lays down that Svhen a witness wants to refresh his m em ory by referring to any document he may, with the court’ s permission, refer to a copy o f it. Provided the court be satisfied that there is sufficient reason for the non-production o f the original’ . Although a witness should always state what he himself remembers, he may nevertheless, when giving evidence, refresh his memory as to details. The reason o f the rule o f refreshing is that the witness should not suffer from a mistake and may explain an inconsistency. Any writing can be made use o f for the purpose o f refreshing the m em ory o f a witness. T his includes: Reports, Diaries, Certificates, A ccount books. Dying declaration, N otes o f a speech, Panchnamas, Deposition, N otes o f a Police Officer, Notes o f a brief o f a Barrister, and, even a H oroscope. A witness was allowed to look at the dying declaration which was noted by him. A police officer may use his special diary for refreshing his memory. A medical man was allowed to refresh his m emory by referring to a report prepared by him in his post-mortem examination. It is not necessary that the docum ent or writing used for refreshing the m em ory should be relevant or admissible in evidence, but facts tried to be proved must be admissible under Sec. 159. A docum ent which was not produced within the time 98.

I n th e I n d ia n E v id e n c e A ct, w h a t is m e a n t b y ‘ r e f r e s h in g m e m o r y * ?

[Raj.J.S. 199I\ Objective Questions (Multiple Choice)

324.

Mark the correct statement In relation to Sec. 153: (a) If a question is asked to impeach the impartiality of a witness and he denies the suggestion contained in the question, his answer may be contradicted. (b) Where a fact, which is relevant as having direct bearing at the issue, is denied by a witness, his answer may be contradicted by independent evidence. (c) Both (a) and (b) are correct. (d) Both (a) and (b) are incorrect.

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perm itted for its production and, therefore, rejected by the court, may be used for refreshing m em ory if it otherwise satisfies the spontaneity requirement o f the section. Even where Panchanama is not admissible in evidence, it may be used by a witness to refresh his m em ory where, after having been made by the police, it was read over to the panel) w ho admitted it to be correct [Emperor v Mahadeo Dewoo (1945) 47 B om LR 992]. This section gives a perm ission to the witness. It does not com p el him to do so. N o r can the opposite party prevent him from doin g so. In a case, a witness testified that the accused was in possession o f a controlled drug. H e could not give a statement as detailed as he gave to the police when he was first interviewed. The accused raised an objection which was overruled. The court said that a witness should be allowed to supplement his testimony with certain essential details which were eluding him from his ow n statements recorded earlier. This is allowed in all cases with a view to laying a proper foundation for the testimony o f the witness [R. v Sutton (1992) C r A pp Rep (CA)].

SEC. 160: Testimony to Facts Stated in Docum ent mentioned in Sec. 159 S e e 159 deals with cases where a reference to the writing revives in the mind o f the witness a recollection o f the facts. But it may be that even a perusal o f a document does not refresh his memory Le. it does not revive in his mind a recollection o f facts. Under S ec 160, ‘ it is not necessary that the witness looking at the written instrument should have an independent or specific recollection o f the matters stated therein. H e may testify to the facts referred to in it, if he recognizes the writing or signature and feels sure that the contents o f the document were correctly recorded’ . Illustration'. A bookkeeper may testify the facts recorded by him in b ook s regularly kept in the course o f business, if he knows that the b ook s were correctly kept, although he has forgotten the particular transactions entered. It may be noted that under Sec. 159, the docum ent is not in itself evidence nor is it tendered. Under Sec. 160, the docum ent itself is tendered and is evidence.

SEC. 161: Right of Adverse Party as to Writing used to Refresh Memory Sec. 161 lays down that ‘ any writing (referred to under Secs. 159 and 160) used for the purpose o f refreshing the m em ory o f witness, must be produced and show n to

325.

Under Sec. 154, the court may, In Its direction, permit the party who has called a witness to put him such questions as could have been asked In cross-oxamlnatlon by the adverse party. This Is In relation to a: (a) (b) (c) (d)

Hostile witness. Adverse witness. Unfavourable witness. Interested witness.

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201

the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon’ . T h e right m ust be exercised at that very m om ent because it may not continue throughout the period for which the witness remains under examination. The purposes o f such in spection are: (i) to secure the full benefit o f the recollection o f the witness as to the w hole o f the facts, (ii) to prevent im proper use o f documents, and (iii) to com pare the oral testimony with the written version [In Re Jhoubhoa Afahton (1832) 8 Cal 739].

Rules as to Production of Documents [Secs. 162-164] Secs. 162-164 lay dow n the rules as to production and translation o f documents.

SEC. 162: Production of Documents99

“A

witness su m m oned to produce a document shall, if it is in his possession or

power, bring it to court, notwithstanding any objection which there may be to its production o r to its admissibility. The validity o f any such objection shall be decided o f by the court. T h e court, if it sees fit, may inspect the document, unless it refers to matters o f State, or take other evidence to enable it to determine o n its admissibility.” Sec. 162 makes it obligator)' on the witness to produce the docum ent summ oned by the court and he has no right to decide whether the docum ent shall be produced. Order XVI, Rule 6 o f the C.P.C also provides that a person may be sum m oned to produce a docum ent without being summ oned to give evidence. S e c 139 o f the Evidence A ct similarly provides that a person summ oned to produce a docum ent does not b eco m e a witness by the mere fact that he produces the docum ent and he cannot be cross-examined.

99.

‘ State the exceptions to the general rule that a witness is bound to tell the whole truth and to produce any document in his possession relevant in issu e’ . [UP. P C S (J) 198J\ Objective QucmHoMtm (Multiple Choice)

326.

Which Is the m ost appropriate definition In relation to a hostile witness. A ‘ hostile w itn ess’ : (a) Is one who from the manner in which he gives the evidence shows that he is not desirous of telling the truth to the court. (b) A witness who is gained over by the opposite party. (c) Is one called by a party to prove a particular fact, who fails to prove such fact or proves an opposite fact. (d) Is one who is not produced out of the fear that he might disfavour the party who has to produce him.

Law Guide for Judicial Service Examination

20 2

T h e party producing the docum ent under court order may raise his objections to its produ ction or admissibility. It is then for the court to decide the validity o f the objection. T o enable the court to d o so, it may hear the parties and may also ask them to produ ce evidence touching upon the validity or otherwise o f the objections. A jja irs o f State - Under S e c 162, the court may inspect the docum ent to determine o n its admissibility, unless it refers to matters o f State. Reading Secs. 123 and 162 together, it b ecom es clear that the court cannot hold an enquiry into the possible injury to the public interest which may result from the disclosure o f the docum ent in respect o f which privilege is claimed under Sec. 123. That is a matter for the authority concerned to decide. But, the court is com petent to hold a preliminary enquiry and determine the validity o f the objection s to its production, and that necessarily involves an enquiry into the question as to whether evidence relates to an affair o f State under Sec. 123 o r n ot [State o f Punjab v S.S. Singh A IR 1961 SC 493]. Translation o f Documents

Sec. 162 further lays dow n that if it is necessary for the document to be translated\ the court may direct the translator to keep the contents secret, unless the docum ent is to be given in evidence. I f the translator disobeys the instruction he may be held to have com m itted an offence under Sec. 166, IPC [Public servant disobeying law with intent to cause injury to any person].

SEC. 163: Giving, as Evidence, of Docum ent Called for and Produced on Notice Sec. 163 lays down that Svhere a party has given a notice to another to produce a document and the document has been produced and has been inspected by that party, he is bound to use it as evidence if the party producing the document so desires’ . This section applies not only to civil cases but also to criminal trials. It has no application where the docum ent has already been produced before the court by any party to the case. T he section com es into play when the party in possession or pow er o f the docum ent has not produced the same in the court and runs the risk o f adverse inference being drawn against him or being debarred from produ cing the docum ent in the court at a later stage o f the proceedings unless his opponen t becom es instrumental in seeking production and inspection o f the document. 327. Mark the Incorrect statement: (a) The permission for cross-examining one’s own witness should not be granted to the party at the mere asking. (b) Questions of cross-examination can be allowed by the court to be asked by the party calling him even though the witness does not show to be hostile. (c) The court can rely upon that part of the testimony o f a hostile witness which inspires confidence and credit. (d) The testimony of a hostile witness cannot be used to the extent to which it supports the prosecution case.

Law o f Evidence

203

T here is n o authority for the proposition that the evidence, which is admitted under this section, m ust be deemed to be conclusive against the party w ho has inspected the docum ent. A document so produced becom es ‘ evidence* only when it is produ ced for the inspection o f the court and only then the court will pronounce upon its relevancy, admissibility and will call upon the party on w hom the burden o f p r o o f lies to prove the truth o f its contents and its genuineness. Cross-examination could be used for that purpose \?hookhand Garg v Gopaldas Agarwal AIR 1990 M.P. 135]. SEC. 164: U se o f D o c u m e n t N o t P roduced on N otice A c c o r d in g to Sec. 164, Svhere a party’has been called upon by the other party to produce a d ocu m en t but the request was refused, such refusing party is n o longer at liberty to prod u ce the docum ent o f his own. It would require consent o f the other party o r perm ission o f the court to enable him produce the document*. Illustration-.: A sues B on an agreement and gives B notice to produce it At the trial, A calls for the docu m ent and B refuses to produce it. A gives secondary evidence o f its contents. B seeks to produce document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. B cannot d o so.100 Thus, where an opponen t in possession o f a document refuses to produce it on demand, he is afterwards forbidden to produce the document to contradict other party’ s secondary evidence. This is in one sense a proper penalty for unfair tactics or refusal to cooperate with the judicial process. T h e section d oes not enable a party to seek actual production o f the document. It contemplates only a disability’the fear o f which may perhaps bring about a positive response [.Shyamdas Kapur v Emperor {1932) 60 Cal 341]. The section may not perhaps apply to criminal proceedings.

100. A question based on this illustration.

[U.P. P CS 0) 2000[ Objective Question* (Multiple Choice)

328.

Under Sec. 155, the credit of a witness may be Impeached by the adverse party, or by the party who calls him (with the court's consent) on the ground of: (a) (b) .-(c) (d)

Unworthy o f credit. Corrupt inducement. Former inconsistent statements. All of the above.

204

L aw G u id e fo r J u d ic ia l S e r v ic e E x a m in a tio n

SEC. 165: Judge's Power to Put Q u estions o r O rd er P rodu ction 101 U n d er Sec. 165, ‘ for the purpose o f obtaining proper proof o f relevant facts, the Judge has been given the power to ask any question to a witness or to a party. Such question may be asked at any time and may take any form and the question itself may relate to a relevant or an irrelevant fact. The court may also order the production o f any document or thing. N o party or his agent shall be cntided to raise any objection to any such question or order, nor, without the court's permission, the witness shall be cross-examined as to any answer that he may give'. Every criminal trial is a voyage o f discovery in which truth is the quest. A judge must participate in the trial. He must show intelligent interest and put questions to witnesses in order to ascertain the truth. It is his duty to question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided. But, this he must do, without unduly trespassing upon the functions o f the counsel o f parties. He must not play a part o f a party or a prosecutor, nor should he frighten or bully the witnesses [Ram Chanderw State o f H aryan a AIR 1982 SC 1036]. “In India, in an enormous mass o f cases, it is absolutely necessary that the judge should not only hear what is put before him by others, but that he should ascertain by his own inquiries how the facts actually stand. In order to do this, it will frequently be necessary for him to g o into matters which are not themselves relevant to the mattes in issue, but may lead to something that is (relevant), and it is in order to arm judges with express authority to do this that this section has been enacted [Krishna A yyar v B alakrishana A yyar (1933) 57 Mad 635]. The object o f allowing the judge to ask irrelevant questions was to obtain “indicative evidence" which might lead to discovery o f relevant evidence. It may be noted that Order X, Rules 2 and 4, Order XVI, Rule 14 o f C.RC. and Sec. 311, Cr.P.C, have conferred similar powers on the court. Sec. 165 confers vast and unrestricted powers on the court. The court may question the accused as to what he told to police although Sec 162 o f Cr.P.C. prevents parties from questioning the accused on that point. A judge may look at a police diary although not requested by either party and may question a witness on 101.

W h a t a re th e p o w e r s o f th e C o u r t t o p u t q u e s t io n s t o a w it n e s s ? I s th e r e an y l im it a t io n o n th e u s e o f t h e s e a n s w e r s ?

[ U P. P C S (J) 198S\

329. A It Indicted for the murder of B. C says that B, when dying, declared that A had given B the wound of which he died. Evidence It offered to thow that, on a prevlout occasion, C said that the wound was not given by A or In hit pretence. (a) The evidence is admissible under Sec. 155. (b) The evidence is inadmissible under Sec. 155. (c) The evidence is Inadmissible under Sec. 156. (d) The evidence is admissible under Sec. 156. 330. Which section of the Evidence Act lays down provisions regarding former statements to corroborate the testimony of a witness: (a) Sec. 156. (b) Sec. 157. (c) Sec. 158. (d) Sec. 159.

205

L aw o f E v id e n c e

that basis. This may enable the judge to expose discrepancies in the statements o f witnesses in the court and those recorded in the police diary [Em peror v L a/ M iya (1 9 4 3 ) 1 Cal 543]. The questions intended to remove the confusion o f mind from which the witness happened to suffer are proper [State o f R ajasthan v A m (1997) 6 SCC 162]. However, there is an inherent danger in a judge adopting a much too stem an attitude towards witness. Thus, in R am Chandra cases, two o f the prosecution witnesses did not adhere to their earlier statements. The judge rebuked them and threatened them with prosecution for perjury if they changed their statements. It was held that the judge exceeded the power conferred upon him by this section. The answers given by the witness in reply to questioning by the judge can be subjected to cross-examination only with the permission o f the judge. The judge should allow such cross-examination to the party where answers have been adverse to him. The witness should have the freedom to answer or refuse to answer questions put by the judge to the same extent to which he is privileged otherwise. Provisos

(E xception s) to Sec. 165

A judge is empowered under Sec. 165 to put irrelevant questions to a witness, but he cannot base his judgment on irrelevant facts. The fir s t proviso to this section lays down that the judgment must be based on facts declared relevant by the Act and duly proved. The secon d p rov iso lays down that this section shall not authorize any Judge to: (i) com pel any witness to answer any question or to produce any document, which such witness would be entided to refuse to answer or produce under Secs. 121-131 (privileges), if the questions were asked or the documents were called for by the adverse party; (ii) a sk any question which it would be improper for any other person to ask under Secs. 148-149; (iii) dispense with primary evidence o f any document, except in cases hereinbefore excepted. Where the question is asked, with a view to criminal proceeding being taken against the witness, the witness is not legally bound to answer it and he cannot be punished under Sec. 179, IPC for refusing to answer [Queen E x p ress v lsb a ri ILR AIL 672]. O b je c t iv e (Multiple

Choice)

331. Which section enables a witness to look at the writings for the purpose

of refreshing his memory? (a) Sec. 157. (b) Sec. 158. (c) Sec. 159. (d) Sec. 160. 332. Mark the Incorrect statement: (a) A witness could look at the dying declaration which was noted by him to refresh his memory. (b) A medical man could refresh his memory by referring to a report prepared by him in his post-mortem examination. (c) Any writing used for the purpose of refreshing the memory of witness, must be produced and shown to the adverse party if he requires it. (d) It is necessary that the document or writing used for refreshing the memory should be relevant or admissible in evidence.

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206

SEC. 166: Power to Jury or Assessors to Put Questions “I n cases tried by jury or with assessors, the jury or assessors may put any questions to the witnesses, through or by leave o f the judge, which the judge himself might put and which he considers proper” It may be noted that trial by jury o r assessors d oes not now prevail in India.

CHAPTER XI OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE [SEC. 167J SEC. 167: No New Trial for Improper Admission or Rejection of Evidence102 S ec. 167 lays down that ‘ the im proper adm ission or rejection o f evidence is not a ground for reversal o f judgment o r for a new trial o f die case, if the court considers that independendy o f the evidence im properly admitted, there was evidence enough to justify the decision, or that, if the rejected evidence had been admitted it ought not have varied the decision*. The object o f this section is that “technical objections will not be allowed to prevail where substantial justice has been done.”The section applies to civil as well as criminal cases. The matter o f w rongful rejection o r admission o f evidence can be raised either before a court o f review or appellate court. It may be noted that Sec. 99, C.P.C. also provides that n o decision is to be disturbed in appeal unless there is an error which affects the merits o f the case. Sec. 465 o f Cr.P.C. provides that a decision can be reopened on the ground o f failure o f justice and not otherwise. Rejection o f an important docum ent or refusal o f perm ission for examination o f a material witness may justify reversal o f the decision [Devidas Jagjivan v Pirjada 102.

‘ T h e i m p r o p e r a d m i s s io n o r r e je c t io n o f e v i d e n c e s h a ll n o t b e a g r o u n d for r e v e r sa l o f j u d g m e n t o r f o r a n e w trial o f th e c a s e , i f th e c o u r t c o n s i d e r s that in d e p e n d e n t ly o f th e e v i d e n c e im p r o p e r ly a d m itte d , th e r e w a s e v i d e n c e e n o u g h t o ju stify th e d e c is io n , o r that, i f th e r e je c t e d e v i d e n c e h a d b e e n a d m it t e d it o u g h t n o t h a v e v a r ie d th e d e c i s i o n ’ . D i s c u s fully.

[ U.P.

P C S (J) J982\

333. Sec. 162: (a) Makes it obligatory on the witness to produce th e document summoned by the court and he has no right to decide whether the document shall be produced. (b) The party producing the document under court order may raise his objections to its production or admissibility. (c) The court may inspect the document to determine on its admissibility, unless it refers to matters of State. (d) All are correct.

Law o f Evidence

207

fygjrrt (1984) 8 B om 377]. As regards ‘ rejected* evidence, the question under Sec. 167 is not so m uch whether the evidence rejected would not have been accepted against the other testim ony on the record as whether the evidence “ought not to have varied the decision** (Narayan v State of Punjab AIR 1959 SC 484]. T he reception o f inadmissible evidence is less injurious than the rejection o f admissible evidence because in the former case in arriving at a decision the evidence wrongly admitted can well be excluded from consideration whereas in the latter case the evidence w rongly rejected can only be brought on record by having recourse to fUrther proceeding. W here it is clear from the record that the prosecution, though it had cited certain person as w itness was not very' keen to examine him and when that person objected to give evidence, the prosecution dropped him; it is not a case in which evidence can be said to have been rejected within Sec. 167 [Narayan’ s case, above]. Objection in Appeal to Documents Admitted by Evidence Where evidence is admitted by the court with the consent o f the parties and the evidence is adm issible and relevant, no objection will be allowed to be taken to its reception at any stage o f the litigation on the ground o f improper proof. But, if the evidence is irrelevant or inadmissible (e.g. ow ing to want o f registration), con sen t o r om ission to take objection to its reception does not make it admissible and the objection may be raised even in appeal for the first time. The question o f relevancy is a question o f law and can be raised at any stage, but the question o f m o d e o f p r o o f is a question o f procedure and stands waived if not raised at the first opportunity [Padnappa v Shivlingappat 47 B om LR 962].105

103.

A n s w e r t h e f o l l o w i n g a n d c it e th e c a s e : (i) C o p i e s o f d o c u m e n t s a re a d m itt e d in a c o u r t o f first in s ta n c e , w it h o u t o b je c t io n . C a n o b j e c t i o n to th e ir a d m is s ib ilit y a fte rw a rd s b e ta k e n in a c o u r t o f a p p e a l? (ii) A d o c u m e n t is

p er se in a d m is s ib le . C a n it b e o b j e c t e d in a p p e a l? [UP. PCS (J) 1982[ O b j e c t i v e Q u c m H oimm

(Multiple Choice)

334.

When a party refuses to produce a document which he had notice to produce: (a) He cannot use the document as evidence without the consent of opposite party or the order of the court. (b) Objection of the opposite party is worthless. (c) Order of the court is not necessary. (d) Document will be deemed to be an admitted document. [M.P. CJ. (Prelim.) 1999)

335. Under Sec. 165, for the purpose of obtaining proper proof of relevant facts, the Judge has been given the power to ask any question to: (a) (b) (c) (d)

A witness. A party. Both (a) and (b). None of the above.

208

Law Guide for Judicial S ervice Examination

336.

Under Sec. 165: (a) The court question may relate to a relevant or an irrelevant fact. (b) The court may order the production o f any document or thing. (c) To an answer to a court question, either of the parties has a right to cross-examine only with the court’s permission. (d) A Judge can compel any witness to answer any question or to produce any document, which such witness would be entitled to refuse to answer or produce under Secs. 121-131.

337. Under Sec. 167, the improper admission or rejection of evidence Is: (a) Not a ground for reversal of judgm ent or for a new trial o f the case. (b) A ground for reversal of judgm ent or for a new trial o f the case if there is rejection of an important document or refusal of permission for examination of a material witness. (c) Both (a) and (b) are correct. (d) Only (b) is correct.

338.

Mark the Incorrect statement: (a) Objection as to the admissibility of a document in evidence can be made at the first opportunity when the document is tendered in evidence. (b) If the evidence is irrelevant or inadmissible the objection may be raised even in appeal for the first time. The question o f relevancy is a question of law and can be raised at any stage. (c) If the evidence is relevant or admissible and it has been admitted, a later objection will not be allowed. The question of mode of proof is a question of procedure and stands waived if not raised at the first opportunity. (d) None of the above.

R ecen t A m endm ents to the

Indian Evidence Act, 1872

INSERTION OF NEW SECTION 53A: EVIDENCE OF CHARACTER OR PREVIOUS SEXUAL EXPERIENCE NOT RELEVANT IN CERTAIN CASES This new section has been inserted by the Criminal Law (Amendment) Act, 2013: “ 53A. In a prosecution for an offence under Sec. 354, Sec. 354A, Sec. 354B, Sec. 354C, Sec. 354D, Sec. 376, Sec. 376A, Sec. 376B, Sec. 376C, Sec. 376D or Sec. 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’ s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.” SUBSTITUTION OF NEW SECTION FOR SECTION 114A: PRESUMPTION AS TO ABSENCE OF CONSENT IN CERTAIN PROSECUTION FOR RAPE For Sec. 114A of the Evidence Act, the following section shall be substituted, by the Criminal Law (Amendment) Act, 2013, namely:“114A. In a prosecution for rape under clause ( clause (nr) or clause (*) of sub-sec. (2) of Sec. 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it Was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent. lyydanation. In this section, “ sexual intercourse”shall mean any of the acts mentioned

m Causes (a) to (J) of Sec. 375 of the Indian Penal Code. #

(209J

210

Law Guide for Judicial S ervice Examination

SUBSTITUTION OF NEW SECTION FOR SECTION 119: WITNESS UNABLE TO COMMUNICATE VERBALLY For Sec. 119 of the Evidence Act, the following section shall be substituted\ by the Criminal Law (Amendment) Act, 2013, namely:“119. 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: P rovided that if the witness is unable to com m unicate verbally, the C ou rt shall take the assistance o f an interpreter o r a special educator in recording the statement, and, such statem ent shall b e videographed.”

AMENDMENT OF SEC. 146: QUESTIONS LAWFUL IN CROSS-EXAMINATION In the principal Act, after Sec. 146(3), the following proviso shall be inserted[Evidence Act (Amendment) Act, 2002 (4 of 2003) w.e.f. 31-12-2002]:“ 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.” This proviso has been further substituted by the following proviso via 2013 Amendment.

“ Provided that in a prosecution for an offence under Sec. 376, Sec. 376A, Sec. 376B, Sec. 376C, Sec. 376D or Sec. 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.” AMENDMENT OF SEC. 154: QUESTION BY PARTY TO HIS OWN WITNESS In the principal Act, Sec. 154 shall be numbered as sub-section (1) thereof and after sub-section (1) as so numbered, the following sub-section shall be inserted\ namely:“ (2) 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.” The aforesaid amendment in relation to ‘ hostile witness* has been inserted by the Criminal I^ jjv (Amendment) Act, 2005 (2 of 2006) (w.e.f. 16-4-2006).

Law o f Evidence

211

AM ENDM ENT O F SEC. 155: IM PEACH IN G CREDIT OF WITNESS

In the principal Act, Clause (4) of Sec. 155 has been omitted [Evidence Act Act, 2002 (4 of 2003) w.e.f. 31-12-2002];-

(A m en dm en t)

“ (4) When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.”

<*r

ANSWERS (OBJECTIVE QUESTIONS-MULTIPLE CH O ICE)

(LAW OF EVIDENCE)

1.(4) 2. (a)

26. (b)

51. (d)

76. (d)

101. (b)

27. (d)

52. (a)

77. (c)

102. (b)

3. (b) 4. (a)

28. (c)

53. (d)

78. (a)

103. (d)

29. (b) 30. (d)

54. (b)

79. (d)

104. (b)

55. (c)

80. (d)

105. (d)

31. (d)

56. (b)

81. (d)

106. (c)

32. (a) 33. (c)

57. (d)

82. (b)

107. (d)

58. (b)

83. (c)

34. (a)

59. (d)

84. (c)

108. (d) 109. (b)

35. (d)

60. (a)

85. (a)

110. (a)

«.(4) 12. (d)

36. (d)

61. (b)

86. (d)

111. (d)

37. (b)

62. (d)

87. (a)

112. (a)

13. (b)

38. (d)

63. (c)

88. (b)

113. (d)

14. (d)

39. (b)

64. (c)

89. (c)

114. (a)

15. (a)

40. (d)

65. (d)

90. (d)

16. (a)

41. (a)

66. (c)

91. (b)

115. (b) 116. (d)

17. (d)

42. (a)

67. (a)

92. (d)

117. (b)

18. (a)

43. (d)

68. (b)

118. (c)

19. (d)

44. (a)

69. (b)

93. (b) 94. (d)

20. (c)

45. (a)

70. (d)

95. (d)

120. (a)

21. (c) 22. (b) 23. (a)

46. (c)

71. (c)

96. (a)

121. (d)

47. (a)

72. (c)

122. (a)

48. (d)

73. (d)

97. (b) 98. (a)

123. (d)

24. (b)

49. (c)

74. (c)

99. (c)

124. (c)

25. (b)

50. (a)

75. (c)

100. (b)

125. (c)

5.(b) 6- (d) 7.(c) 8.(4) 9- (d) 10. (d)

[213]

119. (c)

214

Law Guide for Judicial Sen/ice Examination

126. (d)

156. (d)

186. (a)

216. (a)

246. (d)

127. (c)

157. (a)

187. (d)

217. (d)

247. (d)

128. (d)

158. (a)

188. (a)

218. (c)

248. (c)

129. (d)

159. (d)

189. (d)

219. (d)

249. (C)

130. (a)

160. (b)

220. (b)

131. (c)

161. (d)

190. (b) 191. (b)

250. (b) 251. (d)

132. (d)

162. (c)

192. (d)

252. (d)

133. (d)

163. (a) 164. (d)

193. (d) 194. (a)

222. (b) 223. (a) 224. (a)

254. (b)

195. (a)

225. (c)

255. (d)

196. (d)

226. (c)

256. (a) 257. (b)

134. (a) 135. (d) 136. (d)

165. (d) 166. (b)

221. (d)

253. (b)

137. (d)

167. (c)

197. (c)

227. (a)

138. (a)

168. (a)

198. (c)

228. (a)

258. (d)

139. (a)

169. (c)

199. (d)

229. (d)

259. (d)

140. (d)

170. (c)

230. (b)

260. (d)

141. (d)

171. (b) 172. (d)

200. (c) 201. (a)

231. (a)

202. (a)

232. (d)

261. (d) 262. (d)

203. (d)

233. (d)

263. (b)

144. (d)

173. (d) 174. (d)

204. (c)

234. (d)

264. (d)

145. (a)

175. (b)

205. (a)

235. (a)

265. (d)

146. (d)

176. (d)

206. (d)

236. (d)

266. (b)

147. (d)

207. (a)

237. (a)

267. (a)

148. (c)

177. (b) 178. (c)

208. (c)

238. (d)

268. (a)

149. (d)

179. (b)

209. (d)

239. (d)

269. (c)

150. (b)

180. (b)

210. (a)

240. (a)

270. (c)

151. (c)

181. (d)

211. (d)

241. (c)

271. (d)

152. (d)

182. (d)

212. (d)

242. (d)

272. (d)

153. (d)

183. (d)

213. (c)

243. (b)

273. (c)

154. (d)

184. (a)

214. (c)

244. (c)

185. (d)

274. (d)

155. (b)

215. (d)

245. (a)

275. (d)

142. (d) 143. (a)

Law o f Evidence

215

276. (d)

289. (d)

302. (c)

315. (d)

277. (a)

290. (d)

303. (c)

278. (c) 279. (d)

291. (d)

304. (c)

316. (c) 317. (c)

292. (a)

305. (c)

280. (b)

293. (d)

306. (b)

318. (b) 319. (d)

281. (d) 282. (a)

294. (d)

307. (c)

320. (c)

331. (c) 332. (d) 333. (d)

295. (c)

308. (d)

321. (a)

334. (a)

283. (d)

296. (d)

309. (d)

322. (b)

284. (b)

297. (d)

310. (d)

285. (d)

298. (c)

311. (a)

323. (d) 324. (c)

335. (c) 336. (d)

286. (b)

299. (d)

312. (b)

325. (a)

287. (b)

300. (a)

313. (d)

326. (a)

288. (d)

301. (d)

314. (a)

327. (d)

328. (d) 329. (a) 330. (b)

337. (c) 338. (d)

 

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Rajasthan Judiciary Materials Exclusive group for Rajasthan Judicial Services

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