Evidence ActFrequently Asked Questions on Evidence Act
"The law of evidence is that part of the law of procedure, which with a view to ascertain individual rights and liabilities in individual cases, it decides :
(1) What facts may and what may not be proved in such cases.
(2) What sort of evidence must be given to a fact which may be proved and
(3) By whom and in what manner the evidence must be given by which any fact is proved."The Indian Evidence Act is divided into three main parts :-
(a) Relevancy of facts (Section 6 to 55)
(b) Mode of proof of relevant facts (Section 56 to 117)
(c) By whom and in what manner evidence must be produced (Section 118 to 167)Laws may be divided primarily into `Substantive' and `Procedural' Laws. The Laws by which lights, duties and Liabilities are defined are called "Substantive law". For example Indian Penal Code. The laws which prescribes the mode or procedure by which application of substantive law is regulated are called "procedural law" or "Adjective law" So Law of Evidence is law of procedure i.e. adjective law Evidence Act does not define or fix rights or liabilities under the law but only prescribe the mode by which rights or liabilities or parties is as curtained. It is thus adjective law and helps in proving or implementing the substantive law. Law Evidence is "Lex fory" :- Where evidence is taken in one country in aid of suit or proceedings in another country, the law applicable to the recording of the evidence would be the law prevailing in the country where the proceeding is going on. Phrase "Lex fory" means the law of place of the action. The law of evidence is `lex fory'. Whether certain evidence proves a certain fact or not is to be determined by law of the country where the question arises, where the remedy is sought to be enforced and court sits to enforce it.
(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents produced for the inspection of the court such documents are called documentary evidence."The word "evidence" means instruments by which relevant facts are brought before court. Expression "Evidence" Signifies the state of being evident. According to prof. Green Leaf - "evidence in legal acceptation includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved." Oral Evidence : Oral evidence means statement made by a witness before a court in relation to matter of fact under inquiry. So oral evidence is such deposition of witness who have witnessed the facts or who became acquainted with the facts they are deposing and which has to be recorded by court. Documentary Evidence : The `documentary evidence' is a document produced for inspection of the court or the judge. A document is evidence only when it is produced for the inspection of court Direct Evidence :- The direct or positive evidence is evidence about the real point of controversy. Oral evidence must be always direct. The evidence is direct if the court to set upon it has to rely upon only the witness whereas it is hearsay if it has to rely upon not only the witness but some other persons also. Circumstantial Evidence : In simple words `Circumstantial Evidence' mean evidence relating to series of circumstances which if taken together, assist the court to come to any determination, in the absence of any eyewitness evidence. Circumstantial evidence is not to be confused with hearsay or secondary evidence. The circumstantial evidentice is always direct but prove any relevant circumstance. Normally facts which could be seen are proved by an eye witness, but sometime in the absence of any eye witness to give the eye witness version, court rely on series of circumstances which assist the court to determine the fact in issue. When a witness has not seen the commission of crime by accused, then court can rely upon surrounding circumstances before or after the commission of crime which connect the accused with the crime.In Joseph v. State of Kerala 2000 (2) RCR 738 (SC) Supreme Court held In cases based on circumstantial evidence, sometime witness may lie but circumstance will not It is necessary that all circumstances must cautiously be scrutinised to see that incriminating circumstances are such as to lead only to an hypothesis of guilt of accused and reasonably exclude every possibility of his innocence.
"The expression "fact-in-issue" means and includes - any fact from which, either by itself or in connection with other facts, the existence, non- existence, nature or extent of any right, liability or dis ability, asserted or denied in any suit or proceedings necessarily follows."Explanation : Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any court records an issue of fact, facts asserted or denied in the answer to such issue is a fact in issue. So "fact in issue" are those facts which are alleged by one party and denied by other in the proceedings before the Court or main controversy between parties which is to be adjudicated upon. Two things are relevant for determining whether a fact is in issue or not.
(i) The fact should be in dispute between the parties.
(ii) The fact should touch the question of right or liability.A is accused of the murder of B. At this trial the following fact may be in issue, viz. (i) that A caused B's death; (ii) that A intended to cause B's death; (iii) that A had received grave and sudden provocation from B; (iv) that A, at the time of doing the act which caused B's death, was by reason of unsoundness of mind, incapable of knowing its nature. The Act defines the terms `Fact' and `Relevant' separately, Section 3 defines `Fact' as follows : "Fact means and includes -
(i) anything, state of things, or relation of things, capable of being perceived by the senses (Physical fact);
(ii) any mental condition of which any person is conscious Psychological facts);Relevant facts - Section 3 defines the word relevant as follows: "One fact is said to be relevant to another whence one is connected with the other in at any of the ways referred to in the provisions of this Act relhing to the relevancy of facts". The word `relevant' means that any to facts to which it is applied are so related to each other that according to the common course of events, one, either taken by itself or in connection with other facts, proves or renders probable the past, present or existence or non- existence of the other. `In short, relevant facts are facts so connected with each other as to prove or disprove the facts in issue. Relevant facts are not themselves issue, but are foundations of inference regarding them. This Act does not give any definition of the word `relevant'. It only lays down that a fact becomes relevant only when it is connected relevancy of facts. A fact in order to he a relevant fact must be connected with the facts in issue or with any other relevant fact in any of the ways referred to in Sections 5 to 55. A fact not so connected is not relevant fact.
(i) Presumption of Fact
(ii) Presumption of Law.PRESUMPTION OF FACT: As stated above presumption of fact are those inferences which a person naturally draw having regard to experience and observation of natural course of events. Section 114 of Indian Evidence Act and its illustrations are example of presumption of fact. PRESUMPTION OF LAW: Presumption of law are of two kind :-
(a) Rebuttable Presumption of Law
(b) Irrebuttable Presumption of Law
(a) Rebuttable Presumption of Law: In simple words rebuttable presumption of law is one which can be rebutted by leading evidence to contrary. Rebuttable presumption of law denotes what term "shall presume" as defined in section 4 of Act implies.
(b) Irrebuttable Presumption of Law: Those presumption of law or legal proposition which are conclusive in nature and which can not be rebutted or over come by leading evidence to contrary. Irrebutable presumption of law denotes what term `conclusive proof' implies in Section 4 of Evidence Act.Now coming to Section 4 of Evidence Act. "May Presume": " Whenever it is provided that court may presume a fact, the court may either regard such fact as proved, unless and until it is disprove or may call for proof of it." So expression `May Presume' implies that court has discretion to presume a fact or not. Court may instead of presuming such fact as proved, may call party to lead evidence to prove such facts and then allow opposite party to lead evidence for disproving such fact For example Section 90 of Indian Evidence Act provides that when a document purporting to be 30 years old as produced from proper custody, then court may presume that the document was signed and written by person by whom it purported and dispense with the proof of it or may call for proof of it. "Shall Presume": Section 4 further provide that "Whenever there is provided in the Act that court shall presume a fact, it shall regard such fact as proved unless and until it is disproving." So whenever there is provision to the effect that the court "shall presume" a fact', the court can not exercise its discretion. It is compelled to take the fact as proved i.e. it shall have to presume the fact. But in this case court will be at liberty to allow the opposite party to adduce evidence to disprove the fact so presumed. "Conclusive Proof": Section 4 further provide that "When one fact is declared by this act to be conclusive proof of another, the court shall on proof of one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it". So conclusive proof implies irrebuttable presumption and whenever, it is provided that a fact is `conclusive proof' of another fact; court has no discretion at all. It can not call upon a party to prove that fact because court will presume such fact as proved nor court will allow the opposite party to adduce evidence to disprove the fact.
(a) fact-in-issue and
(b) such facts as are declared to be relevant under Section 6 to 55 of ActSection 5 of Act conclude by stating ".......and of no other" which means evidence can be led only regarding fact in issue and facts declared by law to be relevant under any provision of Section 6 to 55 and those which are neither fact-in-issue nor relevant fact, can not be proved. As submitted earlier there is distinction between "Relevancy" and "admissibility".
Q. 8 (a) What is the Rule of Res Gestae ? (b) A after learning that C had been murdered went to the spot and found that body of C was being taken to the house of C by four persons who hold him that B had murdered C and had run away. Does the statement of four persons forms part of Res Gestae. (c) The question is whether certain goods Ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Is each delivery a relevant fact
(i) The question is whether `A' robbed `B'
The fact 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 or to third person are relevant.
(ii) 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. So Evidence can be given of fact, which constitute the occasion of happening of fact-in-issue u/s 7 and Act, similarly facts which constitute the State of things under which they happened or which afforded an opportunity for their occurrence or transaction, are also relevant Section 7 embraces larger area than Section 6 Section 7 provides for admission of several facts which though do not possibly form part of same transaction, are yet attached with principal transaction in any of above stated modes.
Q. 12 (A) Whether facts which explain or introduce relevant facts are relevant ? (B) In what cases is it necessary to hold an identification parade. Discuss the precautions to be taken and procedure to be adopted for holding it and value of Test Identification Parade. (C) A is tried for rioting and is proved to have marched at the head of the mob, the prosecution wants to prove that mob was shouting.
Q. 13 Accused is facing trial under Section 376 I.P.C. for having raped one B on August 25. Shortly after the departure of the accused from her bedroom she had made a statement to her mother-in-law regarding the circumstances of her rape by the accused. On August 30, she was found drowned in nearby canal. Her mother-in-law is called to give evidence of the statement which the deceased B had made to her. It is contended that it is admissible under Sections 32(1), 6 and 8 of the Evidence Act. Is it correct ?
"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was a party to it."So anything said or done or written by any one of the conspirators in respect of their common intention is admissible u/s 10 of Act against all the conspirators for the purpose of proving (a) that the conspiracy existed and (b) for the purpose of proving that a person was party to it. However, it is important to point out here that everything said or done or written by one of the conspirators at any time will not be relevant u/s 10 of Act, it is only after the time, when such intention was first entertained by any one of them is relevant similarly it is not each and everything said, done or written by a conspirator, even after the intention was entertained by conspirators, becomes relevant only thing said, done or written in reference to common intention of the conspirators will be admissible. In Rakesh Kumar v. State, 2000(1) Recent Criminal Reports 74 (Delhi), it was observed that Section 10 will come into play when Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence there should be prima-facie evidence that person was a party to a conspiracy before his acts can be used against his co conspirators, Section-10 of Evidence Act which is an exception to the general rule, while, permitting the Statement made by one conspirator to be admissible as against another conspirator restricts to the statement made during the period when the agency subsisted - Once it shown that a person became snapped out of conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators.
(1) if they are inconsistent with any fact in issue or relevant fact ;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.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 E, C or D is relevant. The object of a trial is prove or disprove, by evidence, a particular claim or charge, therefore any fact which either disproves or tends to disprove that claim or charge is relevant. Section 11 attempts to state in popular language the general theory of relevancy and may therefore be described as the residuary section dealing with relevancy of facts. No doubt, terms of Section 11 are wide but they must be read subject to the other sections of the Act.
(a) any transaction by which the right or custom in question was created, claimed modified recognised, asserted or denied or which was inconsistent with it's existence
(b) Particular instance in which right or custom was claimed, recognised or exercise or in which it's exercise was disputed, asserted or departed from.Custom. First of all, term "custom" is particular rule which has existed from time immemorial and has obtained the force of law in a particular locality. In Rajender Ram v. Devendera Das, AIR 1973 SC 268 it was observed that "A custom to be valid must have four essentials (a) it must be immemorial (b) it must be reasonable (c) it must have continued without interruption since it's immemorial origin and (d) it must be certain in respect of it's nature." Right. - There has been controversy among the different High Courts about the meaning of the word `right' as used in Section 13, Evidence Act. According to Calcutta High Court the word `right' in Section 13 means only public and incorporeal rights, such as, right to ferries, right to roads, right to fisheries and so on. According to this view the word `right' in Section 13 does not include private and corporeal right, i.e., ownership of material objects, such as ownership of a house or a chattel and so on. Contrary to this view of the Calcutta High Court, the High Courts of Allahabad Bombay and Madras have held that "rights under Section 13 must be understood as comprehending all rights recognized by law, and, therefore, including a right of ownership and not being confined to incorporeal rights only."
Q. 18 (A) How are facts showing the existence of state of mind relevant when the existence of such state of mind is in issue. (B) A is accused of murdering a woman X. It is sought to be proved that two year ago he murdered his wife Y and so had the mens rea to murder X. Is the evidence relevant and admissible? (C) A and B his wife are charged with the murder of a baby entrusted to them for Nursing. The prosecution adduces evidence that several babies entrusted to the two accused were never heard of thereafter and the dead bodies of several infants entrusted to them on payment of money for nursing were found' near their residence buried in the yard of house occupied by them. Is the evidence relevant and admissible ? (D) Point out whether in following case the fact sought to be proved are relevant. - A is charged with shooting at B with the intent to kill him. In Order to prove A's intent, the prosecution wants to prove the fact that A has earlier shot at one `C'.
(i) Statement made by party to proceeding or
(ii) Statement made by agent to party to proceeding whom the court regards under the circumstances of the case as expressly or impliedly authorised by party to make.
(iii) Parties to suit, suing or being sued in representative capacity if the party making the statement held that representative capacity while making the statement.
(iv) Person who have proprietary or pecuniary interest in the subject matter of proceeding and who make the statement in their character of persons so interested if the statements are made during the continuance of the interest of person making the statement
(v) Persons from whom the parties to the suit have derived their interest in the subject matter of the suit if the statements are made during the continuance of the interest of the persons making the statements ( Section 18)
(vi) Person whose position and liability it is necessary to prove as against any party to suit if such statements would be relevant as against such persons making the statement in relation to such position or liability in a suit brought by or against them if such statements are made while the person making them occupies such position or is subject to such liability ( Section 19).
(vii) Persons to whom a party to suit has expressly referred to, for information in reference to matter in dispute ( Section 20).In Thiru John v. Returning Officer AIR 1977 SC 1724. It was observed by Supreme Court that `An admission if clearly and unequivocally made is substantive evidence in view of Section 17 to 21 of Indian Evidence Act though they are not conclusive proof of the matter admitted and shifts the onus on to the maker on principle that what a party himself admits to be true may reasonably be presumed to be so until the presumption is rebutted. Distinction between Admission and Confession Section 17 to 31 of Evidence Act deal with admission generally and include Section 24 to 30 which deal with confession as distinguished from admission. So confession are a species of which admission is genesis . In other words all admission are not confession but all confessions are admission. The distinction between a confession and admission is not a technical refinement but based upon the substantive differences of character of evidence deduced from each. A confession is a direct acknowledgement of guilt on the part of accused and by very force of the definition excludes an admission which of itself as applied in criminal law is statement by accused direct or implied of facts pertinent to the issue and tending in connection with proof of other facts to prove his guilt but of itself is insufficient to authorise a conviction. In Chanderan v. State of Kerala 1986 Criminal Law Journal 1865 It was observed that `confession is not defined in Evidence Act. Even an admission is not confession. A confession must either admit in terms of offence or at any rate substantially all the facts which constitute the offence and an admission of a gravely incriminating fact is not by itself a confession. If a statement falls short of such plenary acknowledgement of guilt, it would not be a confession even though the statement is admission of some incriminating fact which taken along with other evidence tends to have guilt of the accused. Such statement is only an admission but not a confession. Thus the acid test which distinguish a confession from an admission is that where conviction can be based on statement alone, it is a confession and where some supplementary evidence is needed to authorise a conviction then it is an admission (Ram Singh v. State 1959 Cri.L.J. 940).
Q. 20 A is accused of receiving stolen goods known them to be stolen. He offers to prove that he refused to sell them below their market price. Is this evidence admissible ? Give reasons for your answer Or "Admission cannot be proved by or on behalf of person who make them"- what are the exceptions to this ?
1. An admission may be proved by or on behalf of person making it when it is of such nature that if the person making it were dead, it would be relevant as between third persons under Section 32.
2. An admission may be proved by or on behalf of person making it when it consists of a statement of the existence of any state of mind or body relevant or in issue, made at or about the time when such state of mind or body existed and is accompanied by conduct rendering it falsehood improbable.
3. An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. So an admission can be used by or on behalf of accused, when such admission is also relevant otherwise than as an admission. In the case in hand Accused of receiving stolen property wishes to prove the fact that he refused to sell such goods below their market price. Accused may prove these statements because though they are admission but are explanatory of conduct influenced by fact in issue. See illustration (d) to Section 21 of Evidence Act.
"Oral admissions as to 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 of the contents of such document under the rules hereinafter contained or unless genuineness of document produced is in question."So Section 22 of Act contemplates basic principle of law of evidence that when there has been a document no-body can be permitted to prove oral admission about the contents of that document. For example X executed a deed of mortgage in favour of y. Y files a suit for possession of property mortgagee on the basis of that mortgage. During the trial X denied the execution of mortgage. Now in this case Y can not prove by oral evidence that he had admitted before some persons admitted that he had mortgaged the property to him. Y can prove the execution of mortgage and can get possession of property only when he files that deed of mortgage in court and proves it. There are two exceptions to rule provided in Section 22
(a) When a person is entitled to give secondary evidence of contents of some documents he will be entitled to rely on oral admission
(b) Under section 65, secondary evidence of contents of document can he given when original is lost or whom it is in possession of opposite party.
"In civil cases no admission is relevant, if it is made either upon express condition that evidence of it is not to be given or under circumstances from which the court can infer that parties agreed together that evidence of it should not be given."So section 23 bars the taking of any admission which was made by party upon expressed condition that it shall be not proved in court. Section 23 is applicable to civil cases only. Section is based on well know principle contained in maxim "Interest Publicae up set finis litiums" i.e. it is in the interest of State that there should be an end to litigation. Some times for settling the disputes, parties makes compromise out of the court, and make statements admitting the claim of other party upon express terms that any such admission oral or written shall not be proved in court, then law also bars the admission of evidence of any such admission made under expressed condition of not proving in court. If such admission would be allowed to be proved than no body would take of compromise. So section 23 of the Act is based on public policy.
"No statement that contains a self exculpatory matter can amount to confession, if exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.... a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence." Section 24 of Indian Evidence Act says:
"A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appears to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." In Veera Ibrahim v. State of Maharashtra AIR 1976 SC 1167 Supreme Court had observed that to attract prohibition enacted in Section 24 of Evidence Act, following facts must be established
(1) Statement in question is a confession
(2). Such confession is made by accused person
(3) It has been made to a person in authority
(4) Confession has been obtained by reason of any inducement, threat or promise proceeding from a person in authority
(5) Inducement, threat or promise, must in the opinion of court be sufficient to give accused grounds which would appear to him reasonable for supposing that by making of it he would gain any advantage or avoid any evil of temporal nature in reference to proceedings against him.Section 25 of Evidence Act then provide `No confession made to a police officer shall be proved as against a person accused of any offence and Section 26 of Act says `No confession made by any person whilst he is in custody of police officer unless it be made in immediate presence of magistrate shall be proved as against such person. Section 27 of Evidence Act then provides "Provided that when any fact is deposed as discovered inconsequence of information received from a person accused of any offence in the custody of police officer, so much of such information whether it amounts to confession or not as relates distinctly to the facts thereby discovered, may be proved". In Inayatulla v. State of Maharashtra AIR 1976 SC 483 It was observed by Supreme Court that Section 24, 25 and 26 exclude confession under certain circumstance. Section 24 lays down that if the confession appears to have been caused by threat, or promise, or inducement, it cannot be proved. Section 25 lays down that confession made to the police officer cannot be proved against an accused. Section 26 lays down that a confession made by any person while in custody of a police officer to any person other than a Magistrate will not be proved. Section 27 is a proviso, that is, a controlling Section and furnishes an exception to the Rule of excluding the confession. It lays down that a confession is admissible if it leads to the discovery of some fact. In Jaffar Hussain Dastgir v. State of Maharashtra (1969)2 SCC 872, It was observed "The essential ingredient of Section 27 is that information given by accused must lead to the discovery of the fact which is direct outcome of such information secondly. Only such portion of the information given as is distinctly connected with said discovery is admissible against accused. Thirdly, the discovery of the fact must relate to commission of some offence." Section 28 of Evidence Act then says "If such a confession as is referred to in Section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court been fully removed it is relevant. Section 29 of the Act says "If such a confession is otherwise relevant it does not become irrelevant merely because it was made under a promise of secrecy or in consequence of deception practiced on the accused person for the person of obtaining it or when he was drunk or because it was made in answer to question which he need not to have answered, whatever may have been the form of those question or because he was not warned that he was not bound to make such confession and that the evidence of it might be given against him." In Rangappa Hanamppa v. State, AIR 1954 Bom 285 Held Section 29 assumes that there is no bar to the admissibility of the confession in question arising from any of the earlier provision i.e. from Section 24 to 26 and it then proceeds to invalidate or negative other positive objections or bars that may be raised against its admissibility. Reference may be made of State of U.P. v. Singara Singh AIR 1964 SC 358. Section 30 of Indian Evidence Act provide that "when more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession."
Q. 25 A was tried on the charge of committing theft of three chemical drums from the premises of the Bombay Port Trust on 18.1.1968. During investigation of the case he made the following statement to the investigating officer of the case while in custody :
`I will tell the place of deposit of the three chemical drums which I took out from the Haji Bundee (Bombay Port Trust).'
This statement was given on 29.6.1968. As a result of this statement of `A' the three stolen drums were recovered from the compound or yard of a `musafirkhana' i.e. a waiting place. The Drums were not concealed.
Discuss whether the whole or any part of the statement of `A' was admissible in evidence against `A' at his trial and whether an inference under illustration (a) to Section 114, Evidence Act, that `A' was the thief or a receiver of stolen property could be raised against him
"Provided that when any fact is deposed to as discovered in consequence of information received from person accused of any offence in custody of a police officer so much of such information whether it amounts to confession or not as relates distinctly to the fact thereby discovered may be proved." So what Section 27 says is that when some fact was discovered in consequence of information given by accused while in police custody so much of that information as relates to the facts discovered by that information may be proved, whether or not such information amounts to confession. What Section 27 of Indian Evidence Act makes relevant is any fact discovered in consequence of information supplied by accused to police while in custody. Section 27 does not make confession before Police relevant.Recently Delhi High Court inTahir and others v. State (NCT) of Delhi 2001 (1) Recent Criminal Reports 31 discuss evidentiary value of statement of accused made u/s 27 of Evidence Act and laid down following proposition in this regard:
(a) It is only discovery in pursuance of information taken from accused as to any fact which is relevant u/s 27 of Act. Mere recovery is not relevant.
(b) In Order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in police custody.
(c) If any fact is discovered, as a search made on the strength of any information obtained from prisoner, such discovery is guarantee that information supplied by prisoner is true.
(d) The information might be confessional or non- inculpatory in nature but if it result in discovery of some relevant fact; it becomes reliable information.
(e) It is not necessary that recovery affected from a place, must not be accessible to otherComing now to case in hand, only that much of the statement of `A' which distinctly relates to discovery of any fact is relevant u/s 27 of Act. Therefore only first part of his statement i.e. "I will tell the place of deposit of three chemical drum .." is relevant and then consequential recovery of drum can be proved in the trial and remaining portion of his statement is irrelevant being confession made to police. The fact that drums were recovered from waiting place and were not concealed so these drums were accessible to all. It is also not the case of prosecution that place from where drums were recovered was under lock and key of accused, any body can enter into such waiting place, at any time, so recovery effected at the instance of accused though relevant but does not connect the accused with offence of theft. At the best, accused may be attributed with the knowledge that drums are lying in the waiting place, but that by itself in the absence of any other evidence does not connect the accused with the offence of theft. Prosecution cannot take benefit of illustration (a) to Section 114 of Evidence Act because Section 114 of Evidence Act does not absolve the prosecution from its initial duty of proving ingredients of offence beyond reasonable doubt, on the basis of which courts may presume. Presumption permitted by illustration (a) to Section 114 of Act does not arise until the prosecution has fully established that it is only accused to the exclusion of all who has concealed those drum, at the place of recovery. In this case, drums, as stated above were recovered from a place which was accessible to all, drums were not concealed, so it cannot said that accused is the person who has stolen the drums and kept the drum at waiting place. So in the ultimate analysis of facts of case, benefit of doubt has to be given to accused.
Q. 26 (A) When can a confession alleged to have been made by an accused who is jointly tried with another accused be taken into consideration by the court as against the other accused ? Explain the principle upon which the law is based. (B) A and B master and servant, respectively, are being jointly tried for the murder of X and also thereafter for having made away with the dead body to hide and crime ( Section 302 and 201 I.P.C.). A confession is made by B, the servant to the effect that, without any previous knowledge of the crime, B was taken to the house of X by A and suddenly asked to throw light from a torch as a serpent had come out; at that time X came out of the house at the call of A, and A killed him without any complicity of B. The two together then disposed of the body. Is this confession relevant against A ? Give reasons for or against.
"When more persons than one are being tried jointly for the same offence and a confession made by one of such person 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." So before a confession of one accused may be taken into consideration against other u/s 30, it has to be shown that (1) the person confessing and others are being tried jointly (2) They are being tried for the same offence (3) The confession (to be taken into consideration) is affecting the confessioner and the other.In State of Maharashtra v. Damu and others 2000(2) Recent Criminal Reports 781 (SC) Supreme Court held that confession made by one accused can be used against co-accused, even other conditions under Section 30 of Evidence Act are satisfied only for the purpose of corroboration of other evidence. Underlying principle of Section 30 of Evidence Act is that where a person admits his guilt to the fullest extent and expose himself to pains and penalties provided for his guilt, there is a guarantee of truth of accusation against him and legislature provided then such statement may also be considered against co-accused who is being tried with him jointly for the same offence. In Balbir Singh v. State of Punjab, AIR 1957 SC 216 It was held by Supreme Court that confession of one accused can be used against other if the confession implicates the maker substantially to the same extent as the other co-accused person against whom, it is sought to be taken into consideration. (B). Word `confession' has not been defined in Indian Evidence Act. Most acceptable definition of term `confession' was given by Privy Council in Pakala Narain Swamy v. Emp. AIR 1939 PC 47 wherein it was observed:
"No statement that contains a self exculpatory matter can amount to confession, if exculpatory statement is of some fact which if true would negative the offence alleged to be confessed... a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence." So following are the points which have to be born in mind while appreciating any confession alleged to be made by an accused:
(i) Statements in which facts admitted give only inferences that accused might have committed the crime, can not be used as confession.
(ii) Statement which exculpate the maker of it cannot be a confession.
(iii) Confession must either in terms admit the offence or
(iv) substantially admitting all facts which constitute the offence.Section 30 of Indian Evidence Act lays down that when more persons than one are being tried jointly for the same offence and a confession made by one of such person 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." So for the application of Section 30 of the Act it is one of the essential requirement that accused making confession must have inculpate himself to the offence alleged, along with other co-accused. In 1972 Criminal Law Journal 1433 (Delhi) it was observed that a self exculpatory statement of accused should not be taken into consideration against co-accused such statement could not be treated as confession and it could not be used as evidence at all against other accused. Coming now to case in hand, so called confessional statement made by servant (B) can not be termed as `confession' because main part of his statement is exculpatory and throw entire blame upon Master (A) in committing the murder of X. Therefore that part of the statement is not relevant and thus cannot be used against `A' under Section 30 of the Act. However later part of the statement of B that he and A together disposed of the body of X, does amount confession as far as offence punishable u/s 201 I.P.C. is concerned. In this part of statement accused B equally inculpate himself in crime with A who is being tried jointly for this offence. Therefore confession of B is relevant only to the extent that A and B together disposed of the body of `X' i.e. only for offence u/s 201 IPC, it cannot be used for other offence charged i.e. 302 IPC.
Q. 27 (A) What is dying declaration ? Discuss fully its evidentary value. Can an accused person be convicted on the basis of dying declaration ?
(B) If a person making dying declaration happens to live. Can the declaration be admitted in evidence ? If so, what will be the value of such statement in law ?
(C) A deceased made the following dying declarations:
(i) Soon after the incident in the house of a person near the place of occurrence wherein he did not give a full account of incident or of the transaction which resulted in his death.
(ii) A statement to the police officer which was treated as one F.I.R. of the case and when same police officer investigated the case later.
(iii) The statement of the deceased recorded by the investigating officer of the case later in the hospital in the presence of friends and relations of the deceased and a doctor, was kept by the investigating officer with him at the occasion but without requisitioning the services of the Magistrate which could be done.
The deceased was in precarious condition soon after the occurrence.
Decide whether all or any of the above dying declaration should be admitted in evidence. Give reasons.
"When a statement is made by a person as to cause of his death or as to any circumstances of transaction which resulted into his death, in case in which cause of his death comes in question is admissible in evidence, such statements in law are compendiously called dying declaration. Principle on which dying declaration are admissible in evidence, based on legal maxime : "Nemo Moriturous Praesumitur Mentire" i.e. a man will not meet his maker with lie on his mouth. It has also to be kept in mind that though a dying declaration is entitled to great weight yet, it is worth while to note that making of statement is not subject to cross examination, it is essential for court to insist that dying declaration should be of such nature as inspire full confidence of court in its correctness".So according to Section 32(1) of Act following are the essential ingredients: (a) Statement made by person who is dead must be as to cause of his death or as to circumstances of transaction which resulted into his death (b) It is not necessary that person making statement must be under expectation of death. (c) Statement is relevant in any proceeding (whether criminal or civil) in which cause of death of such person is in question. (a) As to Cause of his Death : A statement which exactly explain the cause of death of declarant is relevant u/s 32(i) of Act however, before a statement of person as to cause of his death may be used as dying declaration it must be proved that his death was the cause of injury he received in incident for which accused is being prosecuted. In Moti Singh v. State of U.P. AIR 1964 SC 900 Deceased was shot at by the accused. During treatment he made a statement regarding injurie After treatment, deceased was discharged from Medical and after one month of incident he died however there was no evidence as to exact cause of his death Supreme court held that his statement cannot be used as dying declaration. (b) Circumstances of Transaction which Resulted in Death Expression `Circumstances of transaction which resulted into death" are wider in scope. It means those series of transactions or incidences occurred before the death of deceased which ultimately led to his death. In D.B. Deshmukh v. State AIR 1970 Bombay 438 Deceased long before death made application to Authorities that she was threatened by her brother-in-law. It was held that it is relevant as dying declaration. (c) Evidentary Value of Dying Declaration Dying Declaration being exception to general Rule that Oral evidence must be direct, is generally taken into evidence with great caution and scrutiny by court. A dying declaration is statement is not made on oath nor opposite party get the opportunity to test it by cross examination is therefore, always required to be carefully scrutinized before acting upon. Generally court always seek corroboration from other circumstances to base conviction on dying declaration. In K.R. Reddy v. Public Prosecutor AIR 1976 SC 1994 it was observed "Dying declaration undoubtedly admissible u/s 32(i) and not being statement on oath so that its truth could not be tested by cross examination, the court has to apply scrutiny and closest circumspection to statement before acting upon it..... Court has to be on guard against statement of deceased being result of either tutoring. Court must satisfy that deceased had clear opportunity to observe and identify his assailants and that he was making the statement without any influence." In Parkash and other v. State of M.P. AIR 1993 SC 65 : Supreme Court held that dying declaration can be sole basis of conviction and no corroboration is required if it is proved that it is recorded with all precautions and maker of the statement made it while he was in fit state of mind. Ans. (B). Dying declaration is a statement as provided u/s 32(i) of Indian Evidence Act which relates to cause of death or circumstances of transaction which resulted into death of maker of it. So a statement to be relevant u/s 32(i) of Act, must have been made by person who is dead. Though law does not require that at the time of making statement, he must be under expectation of death. Therefore, a statement which is recorded as dying declaration of a person with the assumption that he will die, but declarant survives, then such statement shall not be dying declaration. In Maqsoodan v. State of U.P.AIR 1983 SC 126. It was held by Supreme Court that `when a person who has made a statement, may be under expectation of death, is not dead it is not a dying declaration. Recently Supreme court in Ram Prasad v. State of Maharashtra 1999 Cri. L.J. 2889 Held that If a person making dying declaration survives his statement can not be used as evidence u/s 32 of Evidence Act though it was recorded as dying declaration. Section 157 of Evidence Act permits proof of any former statement by a witness before any authority legally competent to investigate the fact but its use is limited to corroboration of testimony of such witness though police officer is legally competent to investigate and any statement made to him during such investigation cannot be used to corroborate the testimony of witness because of clear interdict contained in Section 162 of Cr.P.C. But statement made to a magistrate is not affected by prohibition contained in abovesaid section. A magistrate can record the statement of a person as provided u/s 164 Cr P.C. and such statement would either be elevated to the status of Section 32 of Evidence Act if the maker of statement subsequently dies or it would remain within the realm of what it was originally A statement recorded by Magistrate u/s 164 Cr.P.C. becomes usable to corroborate the witness as provided u/s 157 of Evidence Act. or to contradict him as provided in Section 145 thereof. Ans. (C). Before a dying declaration can be admitted in evidence it must be proved that such a statement is made by a person, since deceased, as to the case of his death or as to any of the circumstances of the transaction which resulted in his death. The statement must relate to the injuries which have brought him or her to that condition or the circumstances under which those injuries came to be inflicted. The statement may be made even before the cause of death has arisen or before the deceased has any reason to anticipate death. It may also be stated that no particular form of dying declaration is provided under the law. It may be oral or documentary. (i) Coming now to first dying declaration which is made soon after the incident, in the house near the place of occurrence. There is no requirement of law that it should disclose full and detail version as to cause of death of declarant or as to circumstances of transaction which resulted into death of declarant. What is required that statement of deceased as a whole without alteration or tempering must be proved in court. However court will scrutinize the circumstances in which such statement is made, and if the court finds that statement is voluntarily made while declarant is in fit state of mind and able to tell any relevant fact, then dying declaration can be accept even when it does not contain full account of occurrence. Reference may be made of Mannu Raja v. State of M.P. AIR 1976 SC 2199. (ii) When a statement is made by deceased to police officer before his death, as first information report and latter when deceased died, it can be admissible as dying declaration, even if the police officer who recorded the same happens subsequently to be investigating officer. In Jaiparkash and other v. State of Haryana 1999 Criminal Law Journal 837 Supreme Court accepted the statement of deceased which was made by her as complaint to police and on account of her death thereafter same was treated as dying declaration. Therefore there is no bar in law why a statement was lodged to police as F.I.R. can not be treated and accepted as dying declaration after the death of person who made if it relates to cause of his death. (iii) Statement of deceased recorded by investigating officer in the hospital in the presence of friends and relations of deceased and doctor who was kept by investigating officer with him without requisition the services of Magistrate in this regard, which could be done, is not considered to be reliable. Dying declaration being exception to general Rule that oral evidence must be direct and dying declaration is a statement which is not subjected to test of cross-examination by party against whom it is proved is usually taken by court with great scrutiny and circumspection. Specifically in a case in which it is recorded by a police officer and also in the presence of relatives of deceased, it creates some doubt of tutoring or concoction. Therefore as matter of caution law require that dying declaration should be recorded by Judicial Magistrate after complying with all requirements of law as to voluntary nature of statement and physical and mental condition of declarant. However this does not mean that dying declaration recorded by investigating officer can never be taken into consideration, but practice of recording dying declaration by police officer ought not be encouraged because there is every possibility of tutoring, false implication when such statement is recorded by police. It was observed by Supreme Court in Mannu Raja v. State of M.P. AIR 1976 SC 2199 that although a dying declaration recorded by police officer during the course of investigation is admissible u/s 32 of Act it is however better to leave such dying declaration out of consideration unless and until the prosecution satisfies the court as to why it was not recorded by magistrate or a doctor.
that the proceeding was between the same parties or their representatives in interest.
that 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 proceedings " So previous deposition of witness is relevant u/s 33 for proving the truth of fact stated therein when
(a) That deposition is made in a judicial proceeding or before a person authorised by law to take it.
(b) When proceedings is between the same parties or between their representative in interest.
(c) When the opposite party had right and opportunity to cross examine such witness
(d) When issue in question is substantially the same in both proceeding.
(e) When the witness is dead or cannot be found or is incapable of giving evidence or is kept out of way by adverse party or when whose presence cannot be obtained without delay and expense.
-That any legal character, which it confers, occurred at the time when such Judgement, Order or Decree came into operation.
-That legal character, to which it declares any person is entitled, occurred to that at the time when such Judgement, Order or Decree declares it to have occurred to that person.
- That legal character which takes away from any person ceased at the time from which such Judgement, Order or Decree declared that it had ceased.
- That anything to which it declares any person to be entitled was property of that person at the time from which such Judgement, Order or Decree declares it." So there are two kinds of judgements, one is " Judgement- in- rem" which decides about the legal character of person or declares that such person is entitled to such character or anything or property and it is binding to the world as a whole and parties to proceeding Other is " Judgement-in-personam" which only bind the parties to proceedings in which it was pronounced. Section 40 of Indian Evidence Act provides regarding relevancy of " Judgement- in- personam:" and Section 41 provides regarding relevancy of "Judgement-in-rem"Section 42 says " Judgement, Order or Decree other than those mentioned in Section 41 are relevant if they relate to matter of public nature relevant to inquiry but such judgement, decree or Order are not conclusive proof of that which they state" Section 43 says " Judgements, Orders or Decrees other than those mentioned in Section 41,42,43 are irrelevant unless existence of such Judgement, Order or Decree is fact in issue or is relevant under some other provisions of this Act "
Provided that such opinion shall not be sufficient to prove marriage in proceedings under Indian Divorce Act or in prosecution u/s 494,495,497 and 498 of IPC."
(1) Section 55 says "in civil cases the fact that the character of any person is such as to affect the amount of damages which he ought to receive, is relevant". The evidence of good or bad character of the defendant is irrelevant to damages. But the character of the plaintiff is relevant. In an action for damages, for seduction or rape, evidence of bad character of the plaintiff is allowed as it is likely to affect the damages that the plaintiff ought to receive.
(2) Evidence can be given of a party's character when his character is itself a fact is issue.
(3) A fact which is otherwise relevant cannot be excluded from evidence only because it incidentally exposes or throws light upon a party's character (Section 52).In Criminal cases - Section 53 says that "in criminal cases, the fact that the person accused is of a good character is relevant". Normally, we presume that a person of good character and reputation will not generally resort to any criminal act. According to Section 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. 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 (Section 54).
(2) The character is itself a fact in issue (explanation 1 to Section 54).
(3) A previous conviction is relevant as evidence of bad character in criminal cases (explanation 2 to Section 54).
(A) His statement can be recorded on oath.
(B) The party against whom he is deposing in court will have opportunity to cross examine him to test his veracity.
(C) Such witness if found to be deposing false can be subjected to penalty of deposing false.But if `Hearsay Evidence' being allowed than such witness could not be put on oath neither opposite party will have opportunity to cross examine his testimony because whatever he will say will be based on second hand information or hearsay fact Therefore law insists upon that oral evidence must be direct within the meaning of Section 60 of Act. Hearsay evidence has been defined by Taylor thus: `It is all evidence which does not derive its value solely from the credit given to the witness himself but which rests also in part on the veracity and competence of some other person. Hearsay thus means that which a witness does not say of his own knowledge but says that another has said or signified to him'." Hearsay, as a general Rule, is excluded from legal evidence; but this general Rule is subject to the following exceptions when hearsay evidence has to be admitted on the grounds of necessity or expediency:
1. Statements which are part of the res gestae, whether actually constituting a fact in issue, or accompanying and explaining a fact in issue. [ Section 6, Evidence Act.]
2. Admissions and confessions. [Sections 18 to 24 Evidence Act.]
3. Statements made by persons dead or incapable of attending the Court. Section [32 and 33, Evidence Act.]
4. Statements in books of accounts, Government Charts, Public record. [Section 34 to 38, Evidence Act.]
5. Opinion of experts expressed in treaties offered for sale when it is not possible or convenient to bring them as witness. [Proviso to Section 60 Evidence Act.]
(i) If evidence is to be led about a fact which can be heard, witness must be produced who says that he heard it.
(ii) If evidence is to be led about the fact which can be seen, the witness produced must say he himself saw it.
(iii) If evidence is to be given about a fact which can be perceived by any other sense or in any other manner the witness produced must say that he perceived it himself by that sense or in that manner.
(iv) If evidence is to be given about an opinion or as to the ground on which the opinion is to be held, the witness produced must say that he holds that opinion and on those ground.So as a general Rule of Evidence, the oral evidence must be direct. Law does not allow hearsay or indirect evidence because:
(i) Hearsay evidence being second hand evidence based on information given by other people is considered to be susceptible piece of evidence will not lead the court to any concrete logical conclusion.
(ii) Hearsay Evidence can not properly be subjected to test a cross examination, because, witness giving hearsay evidence having no first hand and direct knowledge of fact relevant, will escape by replying only i has so heard only.
(iii) Admission of Hearsay evidence will open the doors of fraud.
(iv) Admission of Hearsay or Indirect evidence would encourage tendency to lead weaker proof of a fact than a strong and more reliable proof.So court require the proof of any fact, must be given by most reliable and probable evidence, this can be done by insisting upon only direct oral Evidence. However, Indian Evidence Act has recognised certain exceptions to general Rule requiring direct oral evidence. Exception to the Rule of Hearsay Evidence
(i) Statements which are part of Res Gestae, Whether actually constituting a fact in issue or accompanying and explaining a fact in issue ( Section 6 of Evidence act).
(ii) Admissions and Confessions. [Section 18 to 31]
(iii) Statements of person who is dead or who cannot be found or who cannot attend the court in circumstances as are provided in Sections 32 and 33 of Evidence Act.
(iv) Statements in books of accounts, government chart and public record. [Section 34 to 38]
(v) Opinion of experts expressed in any treatise commonly offered for sale and the grounds on which are held, may be proved by indirect evidence. [Proviso to Section 60]
"Secondary evidence means and includes
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes within themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original,
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it." Section 64 of Act says that document must be proved by primary evidence except in cases herein after mentioned. Section 65 provide as to when secondary evidence relating to documents may be given. It says in following situations document may be proved by its secondary evidence:
(i) When the original is shown or appears to be in the possession or power of person against whom the document is sought to be proved.
(ii) When the original is in possession or power of person out of reach of or not subject to the process of the court.
(iii) When the original is in possession or power of any person who is legally bound to produce it and after giving notice as mentioned in Section 66 of Act such person does not produce it.
(iv) When the existence condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.
(v) When the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect produce it in reasonable time.
(vi) When original is of such nature as not to be easily moveable.
(vii) When original is a public document within the meaning of Section 74.
(viii) When the original is a document of which a certified copy is permitted by this Act or by any other law in force in India, to be given in evidence.
(ix) When the original consists of numerous accounts or other documents which can not conveniently be examined in court and the fact to be proved is the general result of whole collection.In Gurdial Kaur v. Registrar Cooperative Society Punjab AIR 2000 P&H 82 Permission to lead secondary evidence under section 65 in respect of receipts which are allegedly be lost is subject to proof of loss of original and therefore before granting permission proof of loss must be taken.
Q. 38 Genuineness of a signature on a document was in dispute. Parties produced evidence on the point but did not examine handwriting expert. The trial judge himself compared the disputed signature with admitted signature of the alleged executant. He held that the disputed signature was forgery. In appeal this finding was assailed. Decide give reasons.
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;(2) public records kept in any State of private documents. According to section 74 a document which is the act or record of the acts of a sovereign authority, official bodies and tribunals, public officer, legislative, judicial and executive is a public document. Public records or private documents are also public documents. A public document is one prepared by a public servant in discharge of his public official duties. It must have been prepared by a public servant in his official duty. The acts mentioned in section 74 are completed acts as distinct from act of a preparatory or tentative character. Private Documents - Section 75 of Indian Evidence Act says that all documents other than public documents are private documents. Mode of Proof; Section 77 says that contents of public documents can be proved by filing certified copies of such documents. Section 78 of Act says that public documents may be proved in following ways :
(1) Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representatives of any State Government or any department of any State Government, by the records of the departments, certified by the heads of those departments respectively, or by any documents purporting to be printed by order of any such Government or; as the case may be, of the Crown Representative;
(2) The proceedings of the Legislature,by the journals of those bodies respectively, or by published Act or abstracts, or by copies purporting to be printed by order of the Government concerned;
(3) Proclamations, orders or regulations issued by Her Majesty or by Privy Council, or by any department of Her Majesty's Government, by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer.
(4) The Act of the Executive or the proceedings of the legislature of a foreign country, by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;
(5) The proceedings of a Municipal Body in a State; by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;
(6) Public documents of any other class in a foreign country, by the original, or by a copy printed by the legal keeper thereof, with a certified under the seal of Notary Public, or of an Indian Council or diplomatic agent, that the copy is duly certified by the officer having the legal custody of original, and upon proof of the character of the document according to the law of the foreign country.
Q. 40 (A) A contracts in writing with B for delivery of wheat upon certain terms. The contract mentions the fact that B had paid A the price of other wheat contracted for verbally on another occasion. Oral evidence is offered that no payment was made for the other wheat. Is the evidence admissible ? (B) A enters into written contract with B to work in certain mines the property of B, upon certain terms. A was induced to do so by a misrepresentation of B as to their value. Examine whether A can given an oral evidence in this case. (C) A gives B receipt of money paid by B. Oral evidence is offered for payment. Is the evidence admissible ? (D) A agrees in writing to pay B Rs.10,000 on the Ist of March 1993. Can the fact that at the same time an oral agreement was made that money should not be paid till the 31st March be proved ?
"When the terms of any such contract, grant or other disposition of property or any matter required by law to be reduced to the form of document, have been proved according to Section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representative in interest for the purpose of contradicting varying, adding to or subtracting from its terms". So reading Section 91 and 92 together, the legal position is that when the terms of contract, grant or other disposition of property has been reduced in form of document or when any matter required by law to be reduced to the form of document, then contents of any such contract, grant or disposition of property or any matter cannot be proved by oral evidence and it can be proved by proving document itself, then Section 92 says once such terms of contract grant or disposition of property or any matter have been so proved according to Section 91, then no evidence can be led regarding any oral agreement or statement between same parties for proving any contradiction, variation etc. in such term However Section 92 of Indian Evidence Act recognize following exceptional circumstances in which oral evidence is admissible for contradicting or varying, adding or substracting from its terms:
Proviso (1) Any fact may be proved which would invalidate any document or which would entitle any person to any decree or Order relating thereto, such as fraud, intimidation, illegality, want of due execution want of capacity in any contracting party, want of failure of consideration or mistake in fact or law.
Proviso (2) Existence of any separate oral evidence as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved.
Proviso (3) Existence of any separate oral agreement constituting a condition precedent to attaching of any obligation under any such contract, grant or disposition of property may be proved.
Proviso (4) The existence of any distinct subsequent oral agreement to rescind or modify any such contract grant or disposition of property may be proved except in cases in which such contract, grant or disposition of property is by law required to be in writing or has been registered according to law for the time being in force for registration of document
Proviso (5) Any usage or custom by which incident not expressly mentioned in any contract are usually annexed to contract of that description may be proved. Provided that the annexing of such incident would not be repugnant to or inconsistent with express terms of contract.
Proviso (6) Any fact may be proved which shows in what manner the language of a document is related to existing factThat being legal position, coming now to case in hand A made a written contract with B for delivery of wheat. This written contract between A and B mentioned the fact that B had paid to A price for wheat, taken under oral agreement at earlier occasion. The fact that under any oral agreement at other occasion wheat was taken and B had paid price of it to A is in no way contradicting or varying the terms of written contract, therefore Section 92 is not attracted, therefore oral evidence can be given (See Illustration (d) of Section 91). Ans. (B). Section 92 of Evidence Act says when the terms of any such contract grant or other disposition of property or any matter required by law to be reduced to the form of document have been proved according to Section 91, no evidence of any oral agreement or statement shall be admitted as between parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from its term. Proviso (1) say Any fact may be proved which would invalidate any document or which would entitle any person to any decree or Order relating thereto, such as fraud intimidation, illegality, want of due execution, want of capacity in any contracting party want or failure of consideration or mistake in fact or law. So it is after the document as has been produced to prove its terms u/s 91, that the provisions of Section 92 comes into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding to or subtracting from its term. However proviso (i) makes it clear that oral evidence may be given when any fact would invalidate any document such as fraud or intimidation etc. Undue influence or misrepresentation have same affect as fraud on validity of instrument. Therefore in problem in hand A is entitled to give oral evidence that contract was induced by misrepresentation by B in view of proviso (i) to Section 92 of Evidence Act (See Illustration (d) of Section 92). Ans. (C). Section 91 of Evidence Act excludes oral evidence of terms of the contract grant or disposition of property or of terms of matter required by law to be reduced into writing. Oral evidence of payment of money for which a receipt has been taken is thus inadmissible if receipt is not produced or is not admissible owing to any other similar reason. A mere receipt of payment of money is not a contract, grant or disposition of property. Oral evidence in proof of payment of money advanced by receipt is therefore admissible. Abdul Rehman v. Kirpa Ram AIR 1928 Lah. 51. Ans. (A). Section 92 of Evidence Act says that when the terms of any such contract grant or other disposition of property or any matter required by law to be reduced to form a document have been proved according to last Section no evidence of any oral agreement shall be admitted as between parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its term Proviso (3) says that existence of any separate oral agreement constituting a condition precedent to attaching of any obligation under any such contract, grant or disposition of property may be proved. In the problem in A agrees in writing to pay B R 10000 on Ist March 1993. Now the fact that oral agreement was made that money should not be paid till 31st March can not be proved. Because Proviso (3) of Section 92 says that oral agreement which create any obligation as condition precedent to written agreement can be proved. In this case oral agreement that money should not be paid till 31st March does not create any obligation attached therewith. Thus no oral evidence to this fact can be given in view of Section 92 of Act.
Q. 42 (A) What are the Rules of Burden of Proof ? What is the nature of burden of proof on an accused u/s 105, Evidence Act?
(B) On whom does the burden of proving the following facts lies:
(i) A accused of B's murder, alleges that by grave and sudden provocation given by `B' he was deprived of the power of self control.
(ii) A who is charged with travelling on a Railway without a ticket says he had a ticket.
"Whoever desires any court to give judgement as to any legal right or liability dependent upon the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." So burden of proof means in the sense of proving the case and for this purpose, duty to prove all facts necessary for taking the judgement of court. Section 101 has to be read along with Section 102 of Evidence Act which provide:
"Burden of proof in any suit or proceeding lies on that person who will fail if no evidence at all were given on either side." So Section 101 of Act says about the burden of proof in the sense of proving a case and provide whoever wishes the court to give judgement in his favour for any legal right or liability dependent on existence of some facts, law lies onus on him to prove that those facts exist Burden of proof in the sense of proving case as contemplated in Section 101 is constant one and never shifts. Section 102 of Act does not provide a different Rule, it simply looks from different angle on same Rule and says about burden of adducing evidence. Section 102 says burden of adducing evidence rests upon party who would fail if no evidence at all or no more evidence were adduced either party. So Section 101 of Act provide regarding Burden of proof in the sense of proving the case i.e. onus probandi and Section 102 provide burden of proof in the sense of adducing evidence.A files a suit in the court against B on the ground that plot of land which is in B's possession belongs to him (a) and B is in unlawful possession. Now A wants the court to give judgement that B is in unlawful possession of suit land and A is lawful owner of this land. Now if A desire this decision, he is bound to prove all facts as asserted by him. It means he has to prove his case i.e. he is lawful owner of suit land and that B is in unlawful possession This is burden of proof in sense of proving case as provided under section 101. If supposingly A does not prove those facts or does not lead any evidence then naturally for want evidence, he will fail, so he is under burden to adduce evidence. If supposing A proves his case, then duty to lead evidence shifts to B to adduce any rebuttal evidence to the claim of A. If B will not lead any evidence then naturally B will fail. So burden of adducing evidence keeps on shifting from one to another party. Burden of proof in the sense of proving case never shift It remains on plaintiff in civil proceeding and on prosecution in criminal proceeding. Then Section 103 of Evidence Act provides;
"The burden of proof as to any fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that proof of that fact shall lie on any particular person."So Section 103 substantially says similarly what Section 101 of Act provide. Only difference is that Section 103 is confined to proof of particular fact whereas Section 101 provide for proving who case or all facts as asserted. Section 105 of Indian Evidence Act provide : "When a person is accused of any offence, the burden of proving the existence of circumstances bring the case within any of the general exceptions in Indian Penal Code or within any special exception or proviso contained in any other part of same code or in any law defining the offence is upon, the court shall presume the absence of such circumstances " So general Rule in criminal proceeding is that burden of proving the offence against the accused lies on prosecution and it has to prove all ingredients of offence alleged beyond reasonable doubt.Section 105 of Act lays down important qualification to Rule that every thing essential to establishment of charge against accused lies upon the prosecution and Section 105 provide that whenever any accused of an offence wishes to take advantage of any general exception of I.P.C. or other special exception or proviso of I.P.C. or any other law defining the offence, then burden of proving existence of circumstances bring the case in such exceptions lies on accused and court shall presume the absence of such circumstance in Vijayee Singh v. State of U.P. AIR 1990 SC 1459 It was observed that if the prosecution has discharged its duty to prove the guilt of accused may raise the plea of exception either by pleading the same specially or by relying on probability. He may adduce evidence in support of his plea directly or may rely on prosecution case itself. Ans. (B). (i) General Rule of Burden of Proof have been enshrined in Section 101 and 102 of Evidence Act. Sec.101 provides that whoever desires any court to give judgement as to any legal rights or liability dependent on the existence of facts which he asserts, must prove those facts exist. So Section 101 of Act illustrate the burden of proof in the sense of proving a case which is also known as `onus probandi'. So in a criminal case, it is prosecution who has to prove the case against accused beyond reasonable doubt. Section 102 of Act provide the same Rule in little different sense. It provides that burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 105 of Evidence Act is important qualification of the general Rule that in criminal trial, burden of proving every thing essential to establishment of the charge against the accused lies upon the prosecution. Section 105 says when a person accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same code or in any law defining the offence is upon him and the court shall presume the absence of such circumstance In Vijayee Singh v. State of U.P. AIR 1990 SC 1459, it was observed that if prosecution has discharged its duty to prove the guilt of accused, the accused may raise the plea of exception either by pleading specifically or by relying on probability. He may adduce evidence in support of his plea directly or may rely on case of prosecution itself. So in view of above discussion in case in hand `A' accused can prove that by grave and sudden provocation given by B he was deprived of the power of self control so as to bring his case within definition of culpable homicide not amount to murder. (ii) Section 106 of Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 106 is an exception to general Rule enshrined in Section 101 and lays down that where the subject matter of allegation lies peculiarity within the knowledge of one of the party that party must prove it. The Supreme Court, in Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404, considered the application of Section 106 in criminal cases and, after laying stress on the word `especially' appearing in that Section and pointing out that the Section is an exception to Section 101 which places the burden of proving a criminal charge fairly and squarely on the prosecution, Supreme Court has observed:
"This lays down the general Rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certain not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience."Therefore, in the present case the burden of proving that A had a ticket is on him because this fact is within his peculiar knowledge. See illustration (b) to Section 106 of the Act.
" Burden of proof in suit or proceeding lies on that person who would fail if no evidence at all were given on either side." So Section 101 of Act provide burden of proof in the sense of proving the case and Section 102 of provide it in the sense of adducing evidence. In criminal proceeding, initial burden of proof in the sense of proving the case lies on prosecution and it has to prove the charge against accused beyond reasonable doubt.However, Section 105 of Evidence Act is important qualification to the Rule that in criminal proceeding everything essential to establish charge against accused lies upon prosecution Section 105 of Act provide "When a person is accused of an offence, burden of roving the existence of circumstances bringing the case within any General Exceptions in I.P.C. or any special exception or proviso in I.P.C. or in any other law defining the offence, lies on accused and court will presume the absence of such circumstance" Similarly in Section 113 A and 113 B of Evidence Act Court take presumption upon proving the ingredients of offence under section 306 or 304B I.P.C. respectively that Husband and Husband's relatives have committed the offence and Burden of proof lies on accused to rebute this presumption. In Civil Cases the burden of proof in the sense of proving the case is discharged by more preponderance of probability and court in civil cases has to strike the balance of probability. However, in criminal proceeding burden of proof in the sense of establishing the case always lies on prosecution. Prosecution has to stand on its own legs and has to prove guilt of accused beyond reasonable doubt.
(i) During continuance of a valid marriage between mother of child and any man.
(ii) Within 280 days after the dissolution of such marriage and mother remaining unmarried. Then it shall be conclusive presumed that such child is legitimate child of that man. However, this presumption shall be rebutted if it is shown that the mother of child and that man had no access to each other at any time when the child would have begotten.It must be born in mind that expression `Access' or `non-access' simply imply existence or non-existence of opportunity for marital intercourse. It is not necessary to prove in all cases that man and woman did not live together and thus parties to marriage could not had sexual intercourse. Infact `Non-access' shall be shown when it is proved that a man is impotent or physically incapable to the extent that it exclude any opportunity for prociating a child. If it is proved that mother of child in question and man can have sexual intercourse then law does not allow an inquiry to see. Whether the husband or some other man, was more likely to be the father of child for displacing the presumption of legitimacy of child who either born during continuance of marriage or within 280 days of dissolution of marriage mother did not remarry. In the case in hand P was earlier wife of X. X dies and two months after the death of X, P got married to Y. After 5 months of marriage with Y, P delivered the child Z, in view of provision of Section 112 of Evidence Act, Z shall be legally legitimate son of Y, because Z born during continuance of lawful marriage between P and Y and court cannot go into inquiry as to whether by X or by Y, P was conceived. Recently supreme Court In Smt. Kamti Devi v. Poshi Ram AIR 2001 SC 2226 , has observed that Section 112 which raises conclusive presumption about paternity of child born during subsistence of valid marriage itself provides an outlet to party who wants to escape from rigorous of that conclusiveness, said outlet is if it can be shown that parties had no access to each other at the time when the child could have been begotten, the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has burden to show a negative not merely that he did not have opportunity to approach his wife but she too did not have opportunity of approaching him during relevant time.
Q. 45 (a) Define and explain the Law of Estoppel as laid down in Indian Evidence Act. (b) Define the Expression `Estoppel' and discuss its kinds ? (c) A has been adopted by B. A sues B as his adoptive mother for property of his deceased adoptive father B disputes the fact of adoption. It is admitted that she (i) took part in adoption ceremony. (ii) allowed A to perform the funeral rites of adoptive father. Is B estopped? (d) A takes a house on rent from B and lives in the same as tenant. Can A be permitted to deny the title of B his landlord regarding the said house ? If not why ?
(a) There must be some representation.
(b) The Representation must be made with the intention to be acted upon.
(c) Representation must have been acted upon.1. Representation : First requirement of Rule of Estoppel is that there must be representation either by words or by conduct to another. This representation may be untrue or false or of some existing fact, made to person who is not aware the truth of that fact. Where the party effected by the representation had come to know before acted upon it, that the representation was false he cannot avail the Rule of Estoppel. In Mohri Bibi v. Dharam Das Ghosh A minor entered into contract of Mortgage Later when Minor claimed that he being minor at the time of contract, so contract is void. Fact that Mortgage was minor was in the knowledge of Mortgage Court held that Rule of Estoppel is not applicable as Mortgage was aware about his minority. 2 . Intention : It is not necessary that the representation should be false to the knowledge of person making it provided that (i) it is intended to be acted upon in the manner in which it has been acted upon or (ii) the person who makes it so conducts himself that a reasonable man would take the representation to be true. 3. Representation Acted Upon It is also necessary to invoke the benefit of estoppel that representation must have been acted upon taking it to be true by the party to whom it was made. Kinds of Estoppel: There are 3 kinds of Estoppel
(i) Estoppel by Matter of Record
(ii) Estoppel by Deed
(iii) Estopel by Conduct(i) Estoppel of Record : It arises (i) When a matter or issue of fact between parties has been finally determined by Tribunal or court of exclusive jurisdiction and same issue has directly come in question in any subsequent proceeding between same parties Section 11 of C.P.C. incorporate this Rule as "Res Judicata". Constructive Res Judicata also is `Estoppel by Record which says when a fact or matter might or ought to be made ground of defence or attack in any proceeding between parties but actually has not been raised such matter shall deemed to be directly in issue and parties shall be estopped from raising it in any subsequent proceeding. (ii) Estoppel by Deed : Estopped by deed is based on the principle that when a person has entered into a solemn engagement by deed under his hand, he shall not be permitted to deny any matter which he has so asserted. Where in a deed made between party and verified by their seals, there is a statement of fact, an estoppel results, no one shall be permitted to deny what is recited in deed. (iii) Estoppel by Conduct : When a person by his conduct i.e. by his words or declaration, or act or omission represent another a thing either with the knowledge of his falsehood or with the intention that it should be acted upon or has conducted in such manner so as a reasonable man with ordinary prudence would belief representation to be true and act upon it, then estoppel arises against party who made representation by his conduct and he is not permitted to say otherwise than what he has represented by his conduct. Ans. (c) In the case in hand A has sued B alleged to be his adoptive mother for property of his deceased adoptive father on the ground that he (a) was adopted by B. However defendant B has denied the fact that A is her adopted son. So question for determination is whether A is adopted son of B or not. For the purpose of proving the adoption A has relied upon following two facts which are admitted by B :
(i) B took part in adoption ceremony
(ii) B allowed A to perform funeral rites of the deceased adoptive father.Now question is whether B is estopped by above said two conducts to deny the adoption. It is necessary to point out here that no doubt a person can be estopped from disputing the fact of adoption having taken place but for Rule of estoppel to be applied, it is required that all conditions of Rule of Estoppel must be fulfilled. In Draupadi Behemni v. Sambari Behore AIR 1958 Orissa 242 "Mere person at an adoption or mere acquiescence in an adoption does not create an estoppel so as to preclude the person present or acquiescing from challenging the adoption afterwards where there is no representation made as to any matter of fact on the strength of which the act of adoption can be said to be made. Ans. (d). Section 116 of Indian Evidence Act provide "No tenant of immoveable property or person claiming through such tenant shall during the continuance of tenancy be permitted to deny that the landlord of such tenant had at the beginning of tenancy, a title to such immoveable property and no person who came upon any immoveable property by licence of person in possession thereof, shall be permitted to deny that such person had a title to such possession at time when such licence was given." So where a tenant entered into possession in consequence of tenancy created by opposite party, he shall not be allowed to question the title of the opposite party as long as he enjoys the tenancy. Therefore in view of provisions of Section 116 of Act A is not permitted to deny the title of his landlord (b) regarding the house in which he is tenant.
Q. 46 A intentionally and falsely induces B to believe that certain land belongs to A and B buys the land and pays for it. subsequently that land becomes A's property and he seeks to set aside the sale on the ground that at the time of sale, he had no title to the land. Will `A' succeed. Give Reasons.
"When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing."In Chaitanya Charan v. Manik Chandra AIR 1972 Calcutta 20 It was observed " Section 115 of Evidence Act lays down that when one person by making false representation either by his words or by conduct has intentionally caused another to believe a thing to be true which actually is not true and to act upon such belief, than neither such person nor his representative in a subsequent proceeding will be allowed to say that the representation is false." Rule of Estoppel is based on Rule of equity that it would be inequitable and unjust if a person who by his representation either oral or by conduct has induced another to believe and to act upon such representation, than afterwards to repudiate or deny the effect of such representation at the cost or injure of the person who was induced to believe and to act upon such representation. Coming now to case in hand, `A' made a representation to B to the effect that the land belongs to A. This representation of `A' at that time was false and was made by A to B with the intention to induce B to purchase that land. B believing the representation of A to be true, purchased that land, so B acted upon the representation of A and paid purchase consideration to A when A was not lawful owner of that land. Now subsequently when A has actually becomes owner of that property, can not deny the earlier sale of land made by him (a) to B. He will be estopped from saying that at the time of said sale, he was not owner of land and thus sale was not binding. But facts remains, A had made representation to B that land belongs to A and B believing that representation to be true has acted upon such representation by playing sale consideration to A, presuming him to be owner of land. So A has already taken some advantage at the cost of B, so A will be estopped from denying such advantage. Clause (a) of Section 13 of Specific Relief Act also incorporate this Rule.
Q. 47 B has taken the house on Rent from `A' and since then he was regularly paying Rent to A. A then applied for eviction of B from the house on the ground of his personal need. B contend 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 o `A' to sue. Decide
"All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation : A lunatic is not incompetent to testify, unless he is prevented by his lunary from understanding the questions put to him and giving rational answers to them."Thus the only test laid down by the Act of the competency of a witness is his capacity to understand and rationally answer the questions put to him. From a bare reading of the Explanation appended to the above Section it is evident that a lunatic, when he is in a lucid interval, is not incompetent to testify if he can understand and rationally answers the question put to him. Then Section 119 of the act provides that "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." Section 120 of the Act further provides that in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witness In criminal proceedings against any person, the husband or wife of such person, respectively shall be a competent witness It may be clarified that a witness may be competent yet his evidence may be inadmissible as for instance, where it relates to hearsay or to confession made to a police officer. However, the competency of a witness lies in his capacity to understand and rational answer to the question put to him. CHILD WITNESS : Indian Evidence Act does not classify witness in respect of age. As provided under section 118 of Indian Evidence Act every person, who can understand the questions put to him and can give rational answer thereof is competent witness. So a witness is competent to testify even if he or she is child witness if child witness understand the question and can give rational answer to such question. A child of tender age is a competent witness when such child is intellectually sufficiently developed to understand what he or she had seen and afterwards informs the court about it. However before the evidence of a child may be recorded the court must by preliminary examination test his capacity to understand question and give rational answer Evidentiary Value of Child Witness In Dattu Rama Rao Sakhare v. State 1997 SCC (Cri) 685 Supreme Court has observed that a child witness if found competent to depose to the facts and is reliable one, such evidence could be basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered u/s118 of Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. Evidence of a child witness and credibility thereof would depend upon circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and there is no likelihood of being tutored. Similarly in Panchhi and others v. State of U.P. 1998 SCC (Cri) 1561. It was observed that the evidence of a child witness would not always stand stigmatized. It is not the law that if a witness is child his evidence shall be rejected even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus child witness is an easy prey to tutoring.
Q. 49 Sita informed Ram in the year 1988 that she had committed theft of the ornaments of her neighbour. Thereafter Sita and Ram were married in 1989. In the year 1992 prosecution was started against Sita in respect of theft of ornaments Ram is called to give evidence in this case. Can Ram disclose the communication made to him by Sita.
"An accomplice shall be competent witness against an accused and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." Word `Accomplice' has not been defined in Indian Evidence Act. An accomplice means a guilty associate or partner in crime or who in some way or other is connected with the offence in question and who makes admission of facts showing that he had a conscious hand in the offence.Section 133 of Evidence Act declares that an Accomplice is a competent witness and conviction can be based on uncorroborated testimony of an accomplice. Evidentiary Value of Evidence of an Accomplice Section 133 lays down that an accomplice is a competent witness and conviction based on sole testimony of an accomplice is not illegal. However illustration (b) to Section 114 of Evidence Act lays down that an accomplice is unworthy of credit unless he is corroborated in material particulaRs. In Suresh Chandra Bahri v. State of Bihar AIR 1995 SC 2420 Supreme Court observed "Test for appreciation of evidence of approver (Accomplice), corroboration in material particulars and qua each accused is essential Section 133 lays down that conviction can be based on uncorroborated testimony of an accomplice is not illegal but Rule of guidance indicated in Illustration (b) of Section 114 of Evidence Act has resulted in settled practice to require corroboration of evidence of an accomplice and which has now virtually assumpted the force of law." Recently in Naryan Chetan Ram Choudhary v. State of Maharashtra 2000 (4) Recent Criminal Reports 75 (SC) Supreme Court has laid down following propositions of law in this regard:
(a) Combined effect of Section 133 and illustration (b) to Section 114 of Evidence Act was that an accomplice is competent to give evidence but it would be unsafe to convict the accused on his testimony alone Though such conviction on testimony of an accomplice can not be said to be illegal.
(b) There should be corroboration in material particulars of approver's statement.
(c) Conviction on uncorroborated testimony of an accomplice is not illegal but corroboration may be dispensed with only if peculiar circumstances of case make it safe to dispense with it.
(i) Any relevant question which need not to be confined to fact deposed to in examination-in-chief ( Section 138).
(ii) Any leading question ( Section 142 and 143).
(iii) Any question relating to contents of a document by asking for production of such document, if has not been produced earlier.
(iv) Any question relating to relevant previously written statement of such witness With a view to contradict the witness by such previous statement by drawing his attention to such statement, before such writing can be proved ( Section 145).
(v) Any question to test his veracity.
(vi) Any question to discover who he is and what is his position in life ( Section 146).
(vii) Any question to shake his credit by injuring his characters although the answer to such question might tend directly or indirectly to criminate him or might expose him to penalty or forfeiture( Section 146).In Raj Bahadur Lal v. State of U.P. AIR 1972 All. 308 Allahabad High Court observed that as per Section 136 of Evidence Act the court has discretionary power to exclude irrelevant question. The court may also disallow the question which are against the public policy or any law. Unless a judge is alert and vigilant, cross examination, may sometimes turn into an engine of torture of witness A judge must always be in control of the proceedings in court and court should disallow the hypothetical question to ordinary witness
"If any such question relates to matter not relevant to suit or proceedings except in so far as it affects the credit of witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it and may if it thinks fit warn the witness that he is not obliged to answer it. In exercising its discretion, the court shall have regard to following considerations:
(1) Such questions are proper if they are of such nature that truth of imputation conveyed by them would seriously affect the opinion of the court as to credibility of the witness on the matter to which he testifie Section
(2) Such questions are improper if the imputation which they convey relates to matters so remote in time or of such character that the truth of the imputation would not affect or would affect in a slight degree the opinion of the court as to the credibility of witness on the matters to which he testifies.
(3) Such questions are improper if there is a great disproportion between importance of imputation made against the witness's character and the importance of his evidence.
(4) The Court may if it sees fit, draw from the witness's refusal to answer the inference that the answer if given would be unfavourable.So under section 148 Court is confined with delicate and responsible work of allowing or disallowing the question which is otherwise not relevant in proceeding but is asked with the view of injuring the character of witness Section 149 of the Act further provide that court will not allow any question to be asked to injure the character of the witness unless the person asking it has reasonable ground for thinking that the imputation which it conveys is well founded. Section 151 of Evidence Act also provide that court may forbid any question or inquiries which it regards as indecent or scandalous although such questions or inquiries may have some bearing on the question before the court unless they relate to facts in issue or to matters necessary to be known in Order to determine whether or not the facts in issue existed. Similar Section 152 says court shall not allow any question which appears to it to be intended to insult or annoy or is offensive in form.
(1) ... ...
(2) Such questions are improper if the imputation which they convey relates to matter so remote in time or of such a character that the truth of the imputation would not affect or would affect in a slight degree the opinion of the court as to the credibility of witness on the matter to which he testifies.
(3) Such questions are improper if there is a great disproportion between importance of the imputation made against the witness's character and importance of his evidence.
(4) ... ...When a woman is testifying as to fact of picking of her pocket by accused, question as to giving birth of an illegitimate child 10 years before, is remote in time, moreover such question is disproportionate to the matter in issue and thus imputation would not affect the opinion of court as to her credibility on the matter to which she is testifying. Such question therefore cannot be allowed to be put to witness.
Q. 58 `A' appeared as a witness for the prosecution. During cross examination it was suggested that he had earlier admitted before accused that he had not seen the occurrence and that he was pressurised by police to appear as witness On his denial he was confronted with tape recorded conversation. `A' denied that it was his voice. Thereafter the accused moved the application before the court that witness should be called upon to get his voice tape- recorded so that comparison could be done between his sample voice and his alleged tape recorded voice. Can the witness be issued any such directions if so under what provisions of Indian Evidence Act.
(i) by evidence of person who testify that they from their knowledge of the witness, believes him to be unworthy of credit.
(ii) by proof that the witness has been bribed or has accepted offer of bribe or has received any other corrupt inducement to give his evidence.
(iii) By proof of former statement inconsistent with any part of his evidence which is liable to be contradicted.
(iv) When a man is prosecuted for rape or attempted to ravish, it may be shown that the prosecutrix was of generally immoral character.So Section 155 deals generally with impeaching credit of witness and enumerate different methods of contradicting the method, one of the method of impeaching the credit of witness is to give proof of any former statement of witness which is inconsistent with evidence of witness That being legal position, coming to case in hand, simple question for consideration is that whether a witness can be asked to give specimen of his voice, so as to get it compared from earlier recorded tape recorded statement which is different what is stated by that witness in evidence. Punjab Court considered this question in Rup Chand v. Mahabir Parsad AIR 1956 Punj 173 and held that no Rule of evidence prevents other party who is endeavouring to shake credit of witness by proof of former in consistent statement from proving that while he was engaged in conversation with witness tape recorder was in operation. Similarly Supreme Court in N. Sri Rama Reddy and others v. V.V. Giri AIR 1971 SC 1162 has held `Tape itself is primary and direct evidence admissible as to what has been said and A previous statement made by witness and recorded on tape can be used not only to corroborate the evidence given by witness in court but also to contradict the evidence given before the court as well as to test the veracity of witness and to impeach his impartiality. Thus it is clear that previous statement of witness duly recorded on tape can be used to contradict the witness from his previous statement so as to impeach the credibility of witness In present case prosecution witness `A' had a conversation with accused admitting certain facts whose conversation was tape recorded. Now it stands cleared that witness can be contradicted from his previous tape recorded statement under section 155 (3) of Evidence Act. In the present case when such tape recorded statement is put to witness, he denied of his own voice and defence counsel, asked for specimen. Voice of witness, for comparison Now question for consideration is whether a witness can be asked to give specimen of his voice. There is no provision of law at all for calling upon the prosecution witness to get sample voice tape recorded. There is nothing in Indian Evidence Act which even remotely suggests that such a power can be exercised by court. Although Section 73 of Evidence Act provides for comparison of disputed handwriting or finger impression. This question was raised in Vinod Kumar and others v. State 1981 Cri.L.J. 927 and Delhi High Court held that it can not give any direction to Metropolitan Magistrate concerned what Magistrate has no authority according to law to do.' In view of the law discussed and case law on this point, it can be held that court can not call upon the witness to give sample of his voice for comparison.
"The court may in its discretion permit the person who calls a witness to put any question to him which might be put in cross examination of adverse party."So when witness becomes hostile to party producing it, then court can u/s 154 of Act allow that party cross examine his own witness and ask leading question, before the cross examination by adverse party. In Yogender Kumar and other v. State of U.P. 1999 Cri.L.J. 4685 It was held that mere fact that a witness were declared Hostile by prosecution does not efface their evidence from record all together. Evidence of prosecution witness who had partly resided from their previous statement can be used to the extent they support the prosecution for corroborating the other witness
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly provided :
Provided also that this section shall not authorize any Judge to 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 Section 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall be dispense with primary evidence of any document, except in the cases here-in-before excepted.Under Section 165, the court is invested with a wide discretion to put any question. Power of the Judge - A judge is empowered.
(i) to ask any question in any form, at any time, to any witness, or to the parties about any fact relevant or irrelevant, and
(ii) to order the production of any document or thing.
(iii) Neither the parties nor their agents can make any objection when the Court has exercised his powers as stated above.
(iv) No party shall be entitled for right of cross- examination of a witness upon the answers given by the witness on the question put by the judge, without the permission of the Court.Thus, a judge has unlimited powers by the way putting the question to make the matter clear. In other words, a court may examine or recall or re-examine any witness in the interest of justice.
Q. 61 The improper admission or rejection of Evidence shall not be a ground of itself for a new trial or reversal of any decision in any case if it shall appear to the court before which such objection is raised that independently to evidence objected to and admitted there were sufficient evidence to justify the decision or that if the rejected evidence had been received, it ought not to have carried the decision" - Explain.
"The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which such objection is raised that, independently of evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if the rejected evidence had been, received, it ought not to have varied the decision."Section 167 of Act applies both to civil as well as criminal cases section provide that the improper admission or rejection of any evidence is not "ipso facto" a ground for new trial, where there is ample evidence to justify the decision irrespective of admission or rejection of the evidence.