Evidence Act
Frequently Asked Questions on Evidence Act
Ans. The word evidence has been taken from latine expression "evidence" which implies to make clear or evident. So law of evidence deal with modes of Leading evidence as well as regulating that evidence of which fact can be given in court. According to Section 2 such clause (i) of Cr.P.C. a judicial proceedings includes any proceedings in course of which evidence is or may be legally taken on oath. So object of law of evidence to assist the court in judging what facts are relevant to ascertain the truth and to avoid the confusion and how such relevant facts will be proved in courts by lawfully leading the evidence.
The Indian Evidence Act is primarily based on English Law of Evidence but the Act is not exhaustive and does not contain the whole of the rules of evidence. Law of Evidence, according to Sir James. F. Stephen :-
"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.
Ans. Expression "Evidence" has been defined in Section 30 Indian Evidence Act as :-
"Evidence" means and includes -
(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; 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.
Ans. Expression "fact-in-issue" has been defined under Section 3 of Indian Evidence Act as :-
"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.
Ans. `Relevancy' and `Admissibility' are two different terms and connotes different meaning Section 5 of Indian Evidence Act says "in every suit or proceeding evidence may be given of existence or non- existence of fact in issue or any other fact which is relevant as declared by Section 6 to 55."
So question of relevancy has been dealt with in Section 6 to 55 of Evidence Act and question of admissibility of relevant facts has been dealt with from Section 56 onwards of Evidence Act.
RELEVANT:- Expression "Relevant" has been defined u/s 3 of Indian Evidence Act as " One fact is said to be relevant to another when one is connected with other in any of the ways referred to in provisions of this Act relating to the relevancy of facts"
Term `Relevancy' means a fact which is logically probative. Fact which helps the court in deciding the controversy or fact in issue. Rule of relevancy implies that certain fact is connected or is so important to be proved for adjudicating the controversy or fact in issue.
Admissibility is not based on the probability but on law Rule of admissibility implies that how certain form of evidence relating to relevant fact is to be proved. Admissibility set out Rules in compliance of which evidence is to be given about all relevant facts in a case. So admissibility means method of proving.
In a judicial proceeding the courts have to give decision about the existence or non-existence of a right or liability and to reach at the conclusion court needs materials . What is material (facts) which may be produced before a court is the first question because if there is no restriction, the introduction of irrelevant facts will waste the time of court . Therefore first thing to be seen in any judicial proceeding is to see that only material or `relevant' facts must be introduced. After having decided the question of `Relevancy of facts' Question arises as to mode of proof of `Relevant facts' this is also called `Admissibility'. So admissibility means Rules of method of proof. Therefore `Relevancy' and `Admissibility' are not the same thing.
In Ram Bihari Yadav v. State AIR 1998 SC 1850
It was observed by Apex Court "More often the expression `Relevancy' and `Admissibility' are used as synonyms but their legal implications are distinct and different for more often than not, fact which are relevant may not be admissible , for example communication made by spouses during marriage or between an Advocate and his client though relevant are not admissible , so also the facts which are admissible may not be relevant, for example Question permitted to be put in cross examination to test the veracity or impeach the credit of witness though are admissible but not relevant."
Ans. Section 3 of Indian Evidence Act has defined the term `Proved', `Disproved' and `Not Proved' as follows:
Proved : A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
Disproved : A fact is said to be disproved when, after considering the matters before it, the Court either believes it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
Not Proved : A fact is said not to be proved when it is neither proved nor disproved.
The extent to which a particular evidence aids in proving the facts in controversy is called as probative force. This probative force must be sufficient to induce the court either (a) to believe in the existence of the fact sought to be proved or (b) to consider its existence so probable that a prudent man ought to act under the supposition that it exits the test is of probability upon which a prudent man may base his opinion.
In State of West Bengal v. Section Orilal Jaiswal AIR 1994 SC 1418 it was observed by Supreme Court "Proof does not mean rigid mathematical demonstration because that is impossible. It means such evidence as would induce a reasonable man to come to a conclusion."
Supreme Court in Lokeman Shah v. State of W.B., 2001(2) RCR(Crl.) 484 has observed in Para 17 of judgment that "a fact is said to be proved when after considering the matters before it, court either believes if to exist or consider its existence so probable that a prudent more ought under the circumstances of particular case, to act upon the suppresition that it exists what is required is materials on which the court can reasonably act for the reaching the supposition that certain fact exists, the standard required for reaching the supposition is that of a frudent man acting on any important matter concerning him.
Ans. Section 4 of Indian Evidence Act has defined the expression `May Presume' shall Presume' and `Conclusive proof.' Before discussing these expressions, it is necessary to understand the meaning of word "presumption."
PRESUMPTION : Presumption Means things taken for granted. Normally court while deciding any case rely on those facts which have duly been proved according to law. But law of Evidence has provided that court can take into consideration certain facts even without calling for proof of them i.e. court may presume certain thing. So presumption means an inference either affirmative or negative of the existence of some facts drawn by court by process of probable reasoning from some matter of facts either judicially noticed or established by legal evidence.
Recently in M. Narsinga Rao v. State of A.P. AIR 2001 SC 318 Supreme Court observed
"In reaching the conclusion the court can use the process of inference to be drawn from facts produced or proved. Such inferences are a kin to presumption in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural event, human conduct, public or private business vis a vis the facts of the particular case Presumption is an inference to certain fact drawn from other proved facts While in erring the existence of a fact from another, the court is only applying is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances Presumption is not the final conclusional to be drawn from other facts But it could as well be final if it remains undisturbed later".
Presumption can be of two kind:-
(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.
Ans. "Section 5 of Indian Evidence Acts provides Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other fact as fare hereinafter declared to be relevant and of no others.
Explanation - This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to civil procedure."
So Section 5 declares a general rule of evidence, stating that in any suit or proceedings, parties can give evidence of existence or non-existence and
(a) fact-in-issue and
(b) such facts as are declared to be relevant under Section 6 to 55 of Act
Section 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".
Ans. (a) Section 6 of Indian Evidence Act lays down that "Facts Which though not in issue or so connected with fact in issue as to form part of same transaction are relevant whether they occurred at the same time and place or at different time and place"
Section 6 of Evidence Act enacts the Rule which English text book treated under the head of "Res Gestae" Section 6 appears to provide proof of statements which are more or less of collateral nature. Not the principal fact but Subsidiary one which are so connected with the fact in issue as to form part of same transaction. In Order to a declaration to be admissible as a part of Res Gestae, it must be spontaneous utterance of mind while under the influence of transaction. The test to determine whether a fact forms part of same transaction depends upon whether they are so related to one another in point of purpose or as to cause and effect or as probable as to constitute one continuous action. Proximity of time is not so essential as continuity of action and purpose. Supreme Court has recently in Sukhas v. State of U.P. 2000 Cri.L.J. 29 observed "the principle of law embodied in Section 6 of Evidence Act is usually known as `Res Gestae. 'The essence of the doctrine is that a fact which though not in issue, is so connected with fact in issue as to form part of same transaction becomes relevant itself. This Rule is roughly speaking in exception to the general Rule that hearsay evidence is not admissible, rationale in making certain statements or facts admissible under Section 6 , is on account of the spontaneity and immediacy of such statement or fact in relation to fact in issue. But it is necessary that such statement or fact must form part of same transaction."
(b) In Sawal Das v. State of Bihar AIR 1974 SC 778.
It was observed that all spontaneous statements in some way connected with the main transaction are not admissible, statement is not admissible u/s 6 only because it is uttered in course of transaction, while no doubt the spontaneity of statement is guarantee of the truth, the rationale for its admissibility under Section 6 is that it is part of same transaction and not merely because it is spontaneous.
In the present case A had gone at the spot after the event was over and also, after coming to know that C has been murdered and when he reached at the spot, deceased was being taken to his house by four person, by one of them, he was informed that B had murdered C. Fact that murder of C had taken place and A came to know about that and then reached at spot and after reaching at the spot he was informed by four persons there that B has committed the crime, are not so connected with each other as to form same transaction and thus his evidence is not admissible u/s 6 of Evidence Act. In Mahendera v. State of M.P. 1975 Criminal Law Journal 110 it was held that statement of a person who had come afterwards to the effect that persons at the spot were saying that accused had killed the deceased would not be admissible as it would be only hearsay.
(c) Section 6 makes the constituent incidents of a transaction relevant, if a part of the transaction is a fact in issue. These constituent incidents may be acts, declarations or other facts accompanying or explaining the transaction. In the present case, each delivery to the intermediate persons successively is a part of the same transaction, and therefore, relevant u/s 6 of the Act. See illustration (d) to the Section 6.
Ans. Section 7 of Indian Evidence Act declares that facts which are occasion, cause or effect of fact in issue are relevant. Section 7 provides that the facts which are cause or effect of fact in issue or of relevant fact are relevant. It also lays down that the facts which are occasion or which afford an opportunity for the occurrence of fact in issue or of relevant fact, are relevant.
Example :-
(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.
Ans. Section 8 deals with the relevancy of motive, preparation and conduct. It lays down that (1) a fact shows or constitutes a motive for any fact in issue or relevant fact is relevant ; (2) a fact which constitutes or shows preparation for any fact in issue or relevant fact, is relevant ; (3) previous or subsequent conduct of any party or of or in reference to any fact in issue or relevant fact, are relevant provided such conduct influences or is influenced by any fact in issue or relevant fact ; (4) previous or subsequent conduct of any person an offence against whom is the subject of any proceeding or suit is relevant provided such conduct influences or is influenced by any fact in issue or relevant fact ; (5) statements accompanying and explaining acts (Explanation 1); (6) statements made in the presence and hearing of a person whose conduct is relevant provided the statement affects such conduct.
Underlying principle on which Section 8 is based is that the absence or presence of a motive and evidence of preparation, previous attempt, previous or subsequent conduct of the parties are relevant as they help in proving or disproving a fact in controversy. It may sometimes be important to know, whether a man charged with an offence, has any interest or motive to commit it.
Example :- (i) `A' is tried for murder of B.
The facts that A murdered C that B knew that `A' had murdered C and that B had tried to effort money from `A' by threatening to make his knowledge public are relevant. (Motive)
(ii) A is tried for the murder of B by poison. The fact that before the death of B, A procured poison. Similar to that which was administered to B - is relevant (Preparation)
(iii) The question is whether `A' committed a crime-the fact that `A' absconded after receiving a letter warning him that inquiry was being made for criminal and the contents of the letter are relevant. (Conduct).
Motive : A motive is that which moves a man to do a particular act. Motive and intention are not synonymous. Motive is relevant and may be proved in a case as it is of great importance to see whether three was motive for committing the crime or not where there is a clear proof of motive for crime it lends additional support to finding of court that accused was guilty but the absence of clear proof of it does not necessarily lead to contrary conclusion. In State of Haryana v. Sher Singh, 1981 Cri : L.J. 714. It was observed that motive by itself is not proof of guilt of accused but it is relevant since it make prosecution story probable. The prosecution is not bound to prove motive of any offence in a criminal case, inasmuch as motive is only known to perpetrator of crime and may not be known to other.
Preparation : Evidence tending to show that the accused made preparation for committing crime is relevant. Preparation on the part of accused may be to accomplish the crime, to prevent discovery of crime or it may be to aid the escape of accused or avert the suspicion.
Conduct : The second paragraph of section 8 makes relevant the conduct of any person who is a party of a suit or proceeding in reference to any fact in issue therein or relevant thereto.
The conduct is the expression in outward behaviour of the quality or condition operating to produce those effects.
The conduct of any party to proceeding in order to be relevant must be (1) in reference to any fact in issue or relevant thereto, or (2) to any suit or proceeding.
It must be borne in mind that the conduct of a party alone is admissible. The conduct of a person who is not a party to the suit or proceeding is not admissible.
Ans. Section 8 of the Evidence Act provides that the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 2 to the Section 8 provides that when the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
Thus, the conduct of the accused soon after the incident plays an important part in determining the guilt of the accused, and is a corroborative piece of evidence. The conduct of a person in absconding after the commission of the offence is evidence to show that he was concerned in the offence, although it is usually a very small item in the evidence. It may be clarified that absconding is equally consistent with innocence and guilt. Therefore in the present case the statement made by X and the conduct of A in running away are relevant u/s 8 of the Act.
Illustration (f) to Section 8 of the Act.
The question is, whether A robbed B.
The facts that, after B was robbed, C said in A's presence - "the police are coming to look for the man who robbed B", and that immediately afterwards A ran away, are relevant.
Ans. (A) Section 9 of Indian Evidence Act provides :-
facts necessary to explain or introduce a fact in issue or relevant fact or which support or rebut an inference suggested by a fact in issue or relevant fact or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact-in-issue or relevant fact happened or which show the relation of parties by whom and such fact was transacted, are relevant in so far as they are necessary for that purpose"
(1) Introductory or Explanatory Facts
Such facts which are necessary to explain a fact in issue or relevant fact are relevant u/s 9 of Act. Explanatory evidence is not relevant in itself. It is neither one of the "res-gestae" nor probative in any direct line of proof of existence of fact in issue or relevant fact but evidence is always allowed of facts which are necessary to explain or introduce main facts. For example, in a suit for libel, evidence can be given of state of parties relations at the time of alleged libel as this may be necessary to introduce the circumstances that led to the libel.
(2) Facts which Support or Rebut an Inference
There are certain other classes of the facts which are neither relevant as facts in issue nor as relevant facts. But they either support the inference suggested by the fact in issue or relevant fact or they contradict the facts in issue or relevant facts and for he purpose they are relevant.
(3) Facts Which Establish the Identity
In judicial proceeding, civil or criminal, the courts have very often to determine the identity of persons or things.
So when a party's identity with ascertained person is in issue, it may be proved or disproved not only by direct testimony or opinion but by similarity or dissimilarity of personal characteristics.
In the case of Suresh Chand Bahri v. State of Bihar, AIR 1994 SC 2420, it was held that identification of accused by witness in the Court is substantial piece of evidence where accused is not known previously by the witness. Test identification parade must be held at earliest possible opportunity with necessary safeguard and precaution.
(B) Section 9 of Indian Evidence Act inter alia provides that facts which establish the identity of anything or a person whose identity is relevant such facts are relevant. So when a party's identity with ascertained person is in issue, it may be proved or disproved not only by direct testimony or opinion but by similarity or dissimilarity of personal characteristics, as well as by residence, occupation and family relationship etc.
Identification Parade. Identification is relevant under Section 9 of the Evidence Act. An Identification Parades are tests for eliminating false assertion or to guard against honest mistake of identity by witnesses, the court requires that they should be held under conditions most conducive to their fair tests for the elicitation of truth.
In Suresh Chand Bahri v. State of Bihar AIR 1994 SC 2420 It was held that identification of accused by witness in the court is substantial piece of Evidence. Where the accused is not known previously by the witness, Test Identification Parade must be held at earliest possible opportunity with necessary safeguards and precaution However when accused had been seen by the witness for quite of times at different point of times and places, then Test Identification Parade is not necessary.
In State of H.P. v. Lekh Raj 2000 Cri.L.J. 44 Supreme Court has observed
"The absence of test identification parade may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of court regarding his involvement. Identification may also not be necessary in a case where accused are arrested at the spot...." It was also observed by the court "During the investigation of crime, the police agency is required to hold identification parade for the purpose of enabling the witness to identify the person alleged to have committed the offence particularly when such person was not previously known to witnesses or informant."
Precautions and Procedure in Test Identification Parade :-In Chander Singh v. State of U.P. AIR 1973 SC 1200, it was observed "It is well settled that the identification by witness in the Parade during investigation only serves to corroborate the evidence of witnesses in court. But value of such corroborating evidence depends upon the precautions exercised by the Magistrate while holding the identification parade. As a matter of prudence the Parade should be held as early as possible after the arrest of accused, so that there will be no chance for the witnesses to see the accused before Test Identification Parade. It is also equally necessary that witnesses must have had a chance of observing the features of accused during the incident. Prudence requires that at the Parade people with similar height and features should be mixed up with the accused in proportion of not less than 1 to 9, Magistrate should also take care that there is no occasion for any police officer to be present at the parade to prompt the witnesses."
(C) Section 9 of Evidence Act provide that facts introductory to explanatory of facts in issue or relevant fact are themselves relevant.
Thus in case in hand fact that mob was shouting is relevant to prove charge of offence of rioting against A. Illustration (f) of Section 9 also say so.
Ans. Section 6 lays down that the facts which are so connected with fact in issue that they form part of the "same transaction" are relevant facts, therefore it is not every fact either before or after the occurrence which will become relevant in view of provisions of Section 6, it is only those facts which by reason of its connection with fact in issue makes it as continuous and same transaction. The test to determine whether a fact forms part of same transaction depends upon whether they are so related to one another in point of purpose or as cause and effect or as probable as to constitute one continuous action. Proximity of time is not so essential as continuity of action and purpose.
Supreme Court recently in Sukhar v. State of U.P. 2000 Cri.L.J. 29 has observed, "the principle of law embodied in Section 6 of Evidence Act is usually known as the Rule of Res Gestae. The essence of the doctrine is that a fact which though not in issue, is so connected with fact in issue as to form part of same transaction becomes relevant itself. This Rule is roughly speaking in exception to the general Rule that hearsay evidence is not admissible the rationale in making certain statement or fact admissible under Section 6 is on account of the spontaneity and immediacy of such statement or fact in relation to fact in issue. But it is necessary that such statement or fact must be part of the same transaction."
In case in hand, accused raped `B' and immediately after the departure of accused from her bedroom, B told this fact to her mother-in-law. So after the commission of crime, victim has given account of occurrence immediately to mother in law, it form a continuous transaction and thus is admissible u/s 6 as relevant.
According to Section 8 of the Act, the relevant fact is the conduct; and a statement is relevant in so far as it explains or accompanies conduct which itself is relevant. If a person against whom an offence has been committed, shortly after the occurrence, makes a complaint, the relevant conduct is the act of making the complaint; and the terms of the complaint become relevant, because they accompany and explain the act of making the complaint. If the aggrieved person does not make a complaint, but only makes statement, the statement is not relevant under Section 8 as it does not explain or accompany any conduct. Therefore, statement made by a ravished woman immediately after she has been ravished is not admissible in evidence.
Section 32(1) of the Evidence Act makes relevant the statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. Thus, the statement must relate to the cause of the declarant's death, or to any of the circumstances of transaction which resulted in his death. In the case in hand, the statement made by B does not relate to the cause of her death, nor it relates to any of the circumstances which resulted into her death. Her death occurred due to drowning in the canal, i.e. due to suicide. Rape may be said to be the object which led to commit suicide. Therefore, the statement is not admissible under Section 32(1) of the Act.
Ans. Section 10 of Indian Evidence Act deals with the admissibility in a conspiracy case. Section 10 provides :-
"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.
Ans. Section 11 of Indian Evidence Act provides
".........Facts not otherwise relevant are relevant -
(1) if they are inconsistent with any fact in issue or relevant fact ;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
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.
Ans. Expression " Falsus In Uno Falsus in Omnibus" means false in one particular, false in all or false in one thing false in all. This well known maxim has not received general acceptance in different jurisdiction in India nor has this come to occupy the status of Rule of law. It is merely a Rule of caution.
In Ranbir v. State of Punjab AIR 1973 SC 1409 it was observed "The maxim" Falsus in Uno falsus in Omnibus" is not a sound Rule to apply in the condition in our country and therefore it is the duty of court in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If remaining evidence is trustworthy and the substratum of the prosecution case remains intact, then court should uphold the prosecution case to the extent it considers safe and trustworthy.
In Chandru v. State of U.P. 1990(1) Crimes 710 it was held that "It is misconception that a witness has to be believed in toto or disbelieved in toto which in fact a Rule of English law not accepted by the courts in India. Doctrine of `Falsus in uno falsus in omnibus' is not applicable in this country for the simple reason that in good majority of criminal cases there is admixture of untruth in the statement of witnesse. In such cases the court is bound to indulge in the exercise of minutely examining the evidence of separating the chaff from the grain; once it accepts the essential part of prosecution story.
Ans. Section 13 of Indian Evidence Act lays down as what facts are relevant and may be proved when the question at issue is whether any right or custom exists. Section 13 says. "Where the question is as to the existence of any right or custom, the following facts are relevant :-
(a) any transaction by which the right or custom in question was created, claimed modified 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."
Ans. (A). Section 14 of Indian Evidence Act says
"Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill will or goodwill towards any particular person or showing the existence of any state of body or bodily feeling are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant."
Explanation 1 says A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exist, not generally but in reference to particular matter in question.
Example :- (a) A is charged with shooting of B with the intent to kill him . In Order to show A's intent the fact of A's having previously shot at B may be proved.
(b) The question is what was the state of A's health at the time when an assurance of his life was effected , Statement made by A as to the state of his health at or near the time in question are relevant fact.
Whether a man has or has not particular intention is a matter of fact to be inferred from the surrounding circumstances and from the acts of the person concerned, therefore Section 14 of the Act says to prove mental and physical conditions, evidence may be given of all contemporaneous manifestations of the given condition, whether by conduct, conversation as part of res gestae. Section 14 of the Act makes all the facts relevant which go to show a state of mind or body or bodily feeling when the existence of any such state is in issue or relevant. However Explanation 1 attached to Section 14 makes it clear that the state of mind to be proved must not be of general tendency or disposition, so Explanation narrows the application of Section 14 of the Act. So u/s 14 of the Act, only those facts are relevant which show state of mind or body or bodily feeling of a person with reference to particular matter in question, all those facts which are of general tendency are not relevant.
Section 15 of Indian Evidence Act says: "When there is a question whether an act was accidental or intentional or done with particular knowledge or intention, the fact that such act formed part of a series of similar occurrences in each of which the person doing the act was `concerned, is relevant".
EXAMPLE :- A is accused of fraudulently delivering to B a counterfeit rupee. -The fact that soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D, and E are relevant fact as showing that delivery to B was not accidental.
So Section 15 lays down the Rule as to admissibility of evidence in cases where the question is whether a particular act was accidental or was done with particular intention.To prove which act is intentional which accidental, Section 15 provides a method i.e. similar Act. For this purpose it is necessary that all the acts should form part of series of similar occurrence, the reason is that one instance may be accidental but repetition of the similar instances will be intentional and not accidental.
In M.L. Prit Chand v. Emperor AIR 1923 Lahore 382, it was observed that Under Section 15, as under Section 14 the prosecution can not use the evidence as to commission of other acts of similar nature to prove the existence of Acts charged with. But when existence of the acts in issue has been established by other evidence and only question which remains to be decided is whether they were done accidentally or intentionally then and then only the evidence of other similar acts is admissible to prove the state of mind.
(B). Evidence admitted under Section s 14 and 15 of the Act is admissible in proof of only a mental fact, and is not admissible to prove the other ingredients of the right or liability.
In the case in hand, charge of committing the murder of X against A will have to be proved by the prosecution by producing direct or circumstantial evidence as is relevant and admissible under the Evidence Act. This charge cannot be proved by producing evidence that the accused had committed the murder of his wife two years ago. If the previous murder is alleged to be the motive or reason for committing the murder in question, that evidence would be relevant or admissible only to that limited extent, but not to prove the factum of the murder in issue.
(C). Section 15 says "Where there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences in each of which the person doing the act was concerned is relevant."
Section 15 is merely an application of the general Rule contained in Section 14, and being more particular, is more appropriate to be applied to cases where the evidence given to show intention or knowledge consists of a series of similar occurrences in each of which the person doing the act was concerned.
The principle on which evidence of similar acts is admissible is not to show that because the defendant has committed one crime, he would therefore be likely to commit another; but to establish the animus of the act, and rebut by anticipation, the defences of ignorance, accident, mistake or other innocent states of mind. Therefore, in the present case the evidence sought to be produced by the prosecution is relevant and admissible to rebut the defence that the murder of the child in question was accidental. However, this evidence is not relevant and admissible to prove the charge of murder itself.
(D). Section 14 lays down the Rule relating to evidence showing the existence of state of mind such as intention knowledge, good faith, negligence, rashness, ill will or goodwill towards any particular person and Section 15 provides as to relevancy of evidence in cases where question is whether particular act was accidental or was done with particular intention or knowledge.
Explanation 1 attached to Section 14 makes it clear that state of mind, to be proved, must not be of general tendency. Thus fact that a mean is generally dishonest generally malicious or criminal in his proceedings does not bear with sufficient directness on his conduct on any particular occasion or as to particular matter.
In case in hand `A' is charged with shooting at B with intent to kill him and in Order to prove A's intent prosecution wants to prove the fact that `A' has earlier shot on `C'. Fact that A had earlier shot at C does not tend to prove A's intention in reference to case of B. Thus this fact is not relevant.
Ans. Section 17 to 23 of Indian Evidence Act deal with Admission. Section 17 to 20 provide as to what is admission and by whom an admission can be made. Section 21 provide as to which party to a proceeding can use admission. Section 22 excludes oral admission as to contents of a document and Section 23 deals with relevancy in civil cases of admission made upon an expressed condition that it shall not be given in evidence.
Section 17 has defined
"Admission' as a statement oral or documentary which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons and under circumstances hereinafter mentioned."
Section 18 to 20 provide as to by whom and in what circumstances an admission can be made. By reading together the provisions of Section 18 to 20 it is clear that Admission made by following persons is relevant:
(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).
Ans. Generally an admission made by one person shall be used against such person. Section 21 of Indian Evidence Act incorporate this Rule, however, Section 21 of the Act provides three exceptional circumstances wherein admission can be used by the person who has made it.
Section 21 lays down
"Admissions are relevant and may be proved as against the person who makes them or his representative in interest, but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in following cases:
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.
Ans. Section 22 of Indian Evidence Act provides :-
"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.
Ans. Section 23 of Indian Evidence Act provides -
"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.
Ans. (A). "Confession" has not been defined in Indian Evidence Act. In simple words `confession' means admission or acknowledgement of guilt by person accused of crime. In Pakala Narayan Swami v. Emperor AIR 1939 PC 47 Privy Council observed "No statement that contains self exculpatory matter can amount to a confession if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed, Moreover a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence."
Judicial Confessions : Judicial Confessions are those which are made before a magistrate or in court in the due course of legal proceeding . When an accused during investigation of crime, make confession u/s 164 Cr.P.C. or when court frame charge against Accused and Accused plead guilty to charge, it is called a judicial confession.
Extra Judicial Confession : Extra judicial confessions are those which are made by accused to any one other than Magistrate or before court. Extra judicial confession though considered to be a weak piece of evidence yet if found to have made voluntarily, then upon proof of it can be made basis of conviction of accused. In Piara Singh v. State of Punjab 1977 Cri.L.J. 1941 (SC) Supreme Court observed Evidence about extra judicial confession is a weak kind of evidence. If it is not probable it must be rejected. However law does not require that evidence of an extra judicial confession must be corroborated in all case Where the extra judicial confession is proved by an independent witness who bore no animus against Accused, it may be basis of conviction. If the extra judicial confession is proved to be voluntary conviction can be based on such confession.
Extra judicial confession by its vary nature is a weak piece of evidence and lacks authenticity and reliability whereas judicial confession which is recorded after complying with all relevant provisions of law is most reliable and can easily be acted upon by court. It is also important to point out that law does not recognize the evidence of extra judicial confession, as such, therefore it has been held by Apex Court in many judgements that extra judicial confession should ordinarily be not accepted unless it inspire confidence and reliability having regard to facts of each case. Judicial confession on the other hand most reliable and can be made basis of conviction.
(B). Retracted Confession A retracted confession is a statement made by an accused person before the trial begins by which he admits to have committed the offence but which he repudiates at the trial. When a confession is retracted the fact of such retraction has a bearing on the question whether it is voluntary or true and for deciding whether the retracted confession was voluntary or not court shall consider all attendant factors which throw a light on the nature of the confession such as (a) Reason give by accused for giving the confession (b) Circumstances alleged by accused which throw doubt on voluntary nature of confession such as inducement, threat or pressure from police. (c) Material discrepancies between testimony of eyewitness and contents of confession. (d) Peculiar facts and circumstances under which accused made confession.
Evidentary value of Retracted Confession : It is unsafe to base conviction on a retracted confession unless it is corroborated by trustworthy evidence.In State of Maharashtra v. P.K. Pathak AIR 1980 SC 1224 Supreme Court held `It is settled that as a matter of prudence and caution which has sanctified itself into Rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated in material term "
In Sakha Ram v. State of Maharashtra AIR 1994 SC 1594 It was held by Supreme Court that it will settled that the retracted extra judicial confession though a piece of evidence on which reliance can be placed but the same has to be corroborated by independent witness and that apart the court must be satisfied that confession alleged to have been made was true and voluntary one.
Ans :- Relevancy of confession in Criminal Trial : Section 24 to 30 of Indian Evidence Act deal with relevancy of `Confession' in criminal proceeding. Term `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. Empr. AIR 1939 P.C. 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." 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."
Ans. As a general Rule of evidence confession made before police is not relevant. Section 25 of Evidence Act excludes a confession made to a police officer and Section 26 lays down that if a person while in custody of a policeman confesses his guilt to any other person not being magistrate, his statement will not be proved. Then Section 27 of Evidence Act say:
"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 other
Coming 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.
Ans. (A). As a general Rule of confession may be used against the person who has made it. However Section 30 of Indian Evidence Act provides as under:
"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.
Ans. (A). Provision relating to Dying Declaration as contained in Section 32(1) of Indian Evidence Act is one of the exception to general Rule of Evidence Act that "Oral evidence must be direct." Dying declaration in simple words is a statement of person who is dead Section 32 of Evidence Act provide eight circumstances in which statement written or verbal of relevant facts made by person who is dead or who can not be found or who has become incapable of giving evidence or whose attendance cannot be procured without delay are relevant.
Section 32(1) says "When the statement is made by person as to cause of his death or as to any of circumstances of transaction which resulted in his death in cases in which cause of that person's death comes into question.
Such statement are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of proceeding in which the cause of his death comes into question."
So dying declaration is a statement of a person who is dead, however, any statement to be relevant u/s 32(1) of Act must be either disclose the cause of death of declarant or any circumstances of transaction which resulted in his death. Such statement is not made in court upon Oath and is also not subjected to test of cross examination yet is made relevant u/s 32(1) because law attach great sanctity to words of a dying man and presume that person on the verge of his death will not concoct a story to falsely implicate innocent person but will give full and true disclosure of facts which lead to his death.
Recently in Uka Ram v. State Of Rajasthan 2001(2) Recent Criminal Reports 416, Supreme Court has observed --
"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.
Ans. The general Rule of law of Evidence is that oral evidence must be direct that is to say a fact to be proved by oral evidence must be deposed before the court by one who has first hand knowledge of that fact. This Rule that oral evidence must be direct is incorporated u/s 60 of Evidence Act. Rule makes hearsay evidence or indirect evidence inadmissible. Basis of this Rule is legal necessity. When a person appears in court to depose about a fact of which he has direct or first hand or original knowledge, then (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.
Section 33 is another exception to the Rule that oral evidence must be direct. Section 33 of Act provide:
"Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving it in subsequent judicial proceedings or in latter stage of the same judicial proceedings, the truth of fact which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by adverse party or his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the court considers unreasonable:
Provided
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.
Ans. :- Section 34 of Indian Evidence Act says
" Entries in books of accounts, regularly kept in course of business, are relevant, whenever they refer to the matter, which the court has to inquire but such statement shall not alone be sufficient evidence to charge any person with liability"
So u/s 34 of Evidence Act Books of Accounts regularly kept and entries made therein in course of business are relevant, but at the same time Section 34 states that such entries alone shall not be sufficient to charge a person with liability.
In Y. Venkanna Chowdry v. Lakshmidevamma, AIR 1994 (Mad.) 140, it was observed any book of account regularly kept and entries made therein in course of business are relevant but are not sufficient by themselves to charge any person with liability where the books of account are maintained by the Managing Partners regarding which other partners made objections regarding entries and if found to vague and false, it is necessary for managing partner to adduce evidence to substantiate entries and prove its genuineness.
Ans. Section 40 of Indian Evidence Act says
"The existence of any judgement, Order or decree which by Law prevents any court from taking cognizance of a suit or holding trial is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial:"
So Section 40 provides that once there has been a judgement about a fact and Law, such judgement is relevant whenever there is question before a court as to whether court can take cognizance or hold trial of suit between same parties regarding same fact in issue which has been decided. So Judgement, which has the effective Doctrine of Res Judicata, is relevant. Doctrine of Res Judicata is provided in Section 11 of CPC and evidence of Res Judicata is admissible u/s 40 of Evidence Act.
Section 41 of Act provides
"A final judgement, Order or Decree of competent court in exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character or which declares any person to be entitled to any legal character or to be entitled to any specific thing, not as against any person but absolutely, is relevant, when existence of such legal character or title on any such person to any such thing is relevant.
Such judgement, Order or Decree is conclusive proof --
-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 "
Ans :- EXPERT WITNESS: As a general Rule the opinion of witness on a question whether of fact or of law, is irrelevant. A witness has to state the facts, which he has seen, heard or perceived, and not the conclusions, which he has formed on observing or perceiving them. The function of drawing inferences for the facts is a judicial function and must be performed by the Court. To this general Rule, however, there are some important exception When "the subject matter of inquiry is such that inexperienced persons are unlikely of forming a correct judgment upon it, the opinions of persons having special knowledge of the subject matter of inquiry become relevant; for it is very difficult for the court to form a correct opinion on a matter of this kind, without the assistance of such persons "
Section 45 of the Indian Evidence Act provides
"When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point, of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impression are relevant facts Such persons are called expert Section "
So an expert is one who has acquired special knowledge, skill or experience in any science, art trade or profession; practice, observation or careful studies may have acquired such knowledge.
The opinion of an expert is never binding on a court. It is admitted in evidence only to help the court in arriving at a correct decision. In other words, evidence of expert cannot be taken as conclusive of fact In considering the value of the evidence of an expert it must be borne in mind that an expert witness, however impartial he may wish to be unconsciously prejudiced in favor of the side which calls him. In State of Haryana v. Bhagirath and Others 1999 Criminal Law Journal 2898 (SC) Supreme Court has held `Opinion given by expert witness need not be the last word on the subject, such opinion shall be tested by court and if opinion is not of logic or objectivity, the court is not obliged to go by that opinion.
Section 46 of Indian Evidence Act say " Facts not otherwise relevant, are relevant if they support or are inconsistent with opinion of experts, when such opinion are relevant"
Then Section 47 says
" When court has to form an opinion as to the person by whom any document was written or signed, opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person is a relevant fact.
Explanation :- A person is said to be acquainted with the hand writing of another person when he has seen that person write or when he received a document purporting to be written by that person in answer to document written by himself or under his authority addressed to that person or when in ordinary course of business, document purported to be written by that person have been habitually submitted to him."
The Section 48 of Act makes opinion relating to right or custom, relevant , by one who would be likely to know of its existence. Similarly Section 49 makes opinion as to usage, tenets etc relevant when expressed by one having special means of knowledge thereon.
Then Section 50 says
"When the court has to form an opinions to relationship of one person to another, opinion expressed by conducts to the existence of such relationship, of any person who as a member of family or otherwise has special means of knowledge on the subject is a relevant fact :
Provided that such opinion shall not be sufficient to prove marriage in proceedings under Indian Divorce Act or in prosecution u/s 494,495,497 and 498 of IPC."
Ans. To what extent is the character, general reputation of a person relevant in civil or criminal proceedings has been made clear by Secs. 52-55. In respect of the character of a party, two distinctions must be drawn, namely between the cases when the character is in issue and is not in issue and when in the cause is civil or criminal.
In Civil cases - Section 52 lays down the broad general principle that the evidence of a party's character cannot be given for the purpose of showing that it renders the conduct imputed to him as probable or improbable. Thus, a party cannot give evidence of his good character for the purpose of showing that it is improbable that he should be guilty of the conduct imputed to him. The reason is that the court has to try the case on the basis of its facts for the purpose of determining whether the defendant should be liable or not. The court has not to try the character of the parties and the evidence of character will not only prolong the proceedings but will also unnecessary prejudice the mind of the judge one way or other.
There are some exceptions to the general principle laid in Section 52 :
(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).
Ans. Chapter III of Indian Evidence Act deals with facts which need not be proved. Section 56 of the Act declares - "No fact of which the court will take judicial notice need be proved."
Judicial Notice - Meaning. - Some of fact need not be proved because the court itself will take judicial notice of them if they are relevant. Certain facts are so notorious in themselves or are stated in so authentic manner as well-known and accessible publications, that they require no proof. The court if it does not know them, can inform itself upon them without formally taking evidence. These facts are said to be judicially notice. For example if it becomes relevant in a case to know as to who is the President of India, a party need not to adduce any evidence to that effect.
In Stall of Travancore Tiruppa Brand v. K. Vinay Chanderan and others, AIR 1989 Ker. 302. It was held that all notifications of a legislature are equivalent to law. The notification in question is proviso of Section 34 and Court is bound to take judicial notice of this fact u/s 57 of Indian Evidence Act.
In order to understand the correct meaning of sections 56 and 57 they should be taken together. Section 56 lays down that when a fact, which is relevant in a case, is of such a nature that the court must take judicial notice of it, no evidence in proof of it should be given. Section 57 gives a list of facts of which the courts must take judicial notice of. Thus both the sections taken together mean that when controversy arises with regard to the facts enumerated in section 57, the parties who assert their existence, need not produce any evidence to prove the existence of such fact.
However matters enumerated in Section 57 do not form an ex haustative list. The court could take judicial notice of other facts not to be found in the list.
It was observed in Nitya Nand etc. v. S.G.P.C. Amritsar, 1992(1) RCR 406 (P&H)(DB) that under Section 57 of the Evidence Act, the Court may presume that any book to which it refers for information on matters of public or general interest was written and place, by whom or at which it purports to have been written on published. In questions of public history, the Court can only dispense with evidence of notorious or undisputed facts. But before any judicial notice could be taken of any passage in books relating to the alleged tradition something more than the mere existence of the passages would have to be proved before the passages could be regarded as evidence of the existence of the tradition. It must be shown that the writer had any special knowledge of the alleged tradition, or that the tradition is a repetition of that given in the history.
Then Section 58 of the lays down that if parties to a proceedings or their agents agree to admit a fact at the hearing or which they agree to admit by writing before the hearing, or which by any rule of pleading in force they are deemed to have admitted by their pleadings, it need not be proved by the opposite party.
Ans :- Hearsay Evidence : The general Rule of law of Evidence is that oral evidence must be direct that is to say a fact to be proved by oral evidence must be deposed before the court by one who has first hand knowledge of that fact. This Rule that oral evidence must be direct is incorporated under section 60 of Evidence Act. Rule makes hearsay evidence or indirect evidence inadmissible. Basis of this Rule is legal necessity. When a person appears in court to depose about a fact of which he has direct or first hand or original knowledge, then
(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.]
Ans. Section 59 of Indian Evidence Act says "All facts except the contents of document may be proved by oral evidence". It means that where a written document exists, then evidence as to contents of such document can be proved by proving that document, apart from it all facts can be proved by Oral Evidence.
Oral Evidence is one of the form of `Evidence' as defined under Section 3 of Evidence Act which means all statements which the court permits or requires to be made before it by witness in relation to matters of fact in question.
Section 60 of Indian Evidence Act then provide that Whenever Oral evidence is to be led it must be direct. Evidence Act does not accept `Hearsay' or `Indirect Evidence. Section 60 lays down that oral evidence must be direct. By direct it is meant that:
(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]
Ans. Section 61 of Indian Evidence Act gives a general Rule that the contents of document may be proved either by primary or by secondary evidence. Word `Document' has been defined in Section 3 of Evidence Act Document means any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording that matter.
Section 62 says that primary evidence means the document itself produced for the inspection of the Court. Primary evidence is the best evidence of the existence, condition or contents of a document and the law requires that it should be given first. Secondary evidence is the evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper Explanation is given of the absence of that better evidence.
Section 63 of the Act enacts:
"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.
Ans. Section 68 of Indian Evidence Act details with proof of execution of document required by law to be attested. It provides - "If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving it's execution if there be an attesting witness alive and subject to process of court and capable of giving evidence;
Provided that it shall not be necessary to call an attesting witness in proof the execution of any document, not being a will which has been registered in accordance with provisions of Indian Registration Act 1908 unless it's execution by whom it purports to have been executed is specifically denied."
Attestation. - The Evidence Act does not define the word `attestation'. Section 63 of the Indian Succession Act has defined the word `attestation' as follows :- "Attested in relation to an instrument, means and shall be deemed always to have meant, attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument or has seen some other person sign the instrument in his presence by the direction of the execution or has received from the executant a personal acknowledgment of his signature or mark or of the signature of some other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time; and no particular form of attestation shall be necessary."
So Section 68 of Act states that if document required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving it's execution, If there be an attesting witness alive. Proviso to section makes an exception in the case of any document not being a will, which has been registered, unless it's execution by person by whom it purports to have been executed, is specifically denied.
Then Section 69 of Act says that if no such attesting witness can be found or if the documents purports to have been executed in united kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that signature of the person executing the document is in handwriting of that person.
Section 70 says "The admission of party to an attested document of it's execution by himself shall be sufficient proof of it's execution as against him, though it be a document required by law to be attested."
Document not required by law to be attested - How to proved? - Section 72 lays down the procedure of proving a document which is not required by law to be attested but has been attested. If a document is not required by law to be attested but the parties being overzealous for making the document legal had got it attested it may be proved like a deed which is not required by law to be attested.
If witness denies execution. - Section 71 provides that if the attesting witness denies or does not recollect the execution of a document its execution may be proved by any other evidence. Very often it happens that when a witness is called by a party to a proceeding he colludes with the opposite party and deposes that he does not remember anything or he denies all knowledge of the matter and in such cases document may be proved by other independent evidence.
Ans. Section 73 of Indian Evidence Act says,
"In Order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared with the one which is to be proved although that signature, writing or seal has not been produced or proved for any other purpose.
The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person."
In Murari Lal v. State of U.P., AIR 1980 SC 531, their Lordships of the Supreme Court observed: "The argument that the Court should not venture to compare writings itself as it would thereby assume to itself the role of an expert is entirely without force. Section 73.... expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports have been written. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert being not able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the Court is no expert.
In the case in hand, it is not clear from the facts whether the Court while arriving at the conclusion that the disputed signature was forgery took the assistance of the counsel for the parties and if it considered the general character also. If it has proceeded accordingly, the decision of the Court cannot be assailed in appeal merely on the ground that the Court should not have assumed to itself the role of an expert.
Ans. In Evidence Act the documents have been divided into two groups : `Private documents' and `Public documents'. Public document has been defined under section 74 and then under section 75 it has been laid down that all documents which are not public documents are private documents.
Section 74. - Public documents. - The following documents are public documents :
(1) documents forming the acts, are records of the act,
(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.
Ans. (A) Section 61 of Indian Evidence Act provide that the contents of documents may be proved either by primary or by secondary evidence. Sections 91 and 92 of Evidence Act provide as to how far and in what cases oral evidence is excluded by documentary evidence.
Section 91 of Act says
"When the terms of contract or of a grant or of any disposition of property have been reduced to the form of document and in all cases in which matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained."
Exception 1 : When a public officer is required by law to be appointed in writing and when it is shown that any particular person has acted as such officer the writing by which he is appointed need not to be proved.
Exception 2 : Wills admitted to probate in India may be proved by the probate.
So Section 91 is based on what is described as "Best Evidence Rule" The best evidence about the contents of a document is the document itself and it is the production of document that is required by Section 91 in proof of its content Section 91 has to be read along with Section 92 of Evidence Act. Section 91 of Evidence Act exclude the admission of oral evidence for proving the contents of a document and Section 92 excludes oral evidence to contradict the terms of contract where the deed is proved Section 92 says as under:
"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 fact
That 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.
Ans :- If the language employed in document is ambiguous, the question of admissibility of extraneous evidence would be regulated by Section 93 to 97 of Evidence Act. Ambiguities are:
1. Patent Ambiguities ( Section 93-94) :- A patent ambiguity is one which appears to be ambiguious on the face of the document. Section 93 of Act says "When the language used in document is, on its face ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects"
So when a document is ambiguous on its face, no extrinsic evidence is allowed to explain or amend the instrument.
2. Latent Ambiguities ( Section 95-97):- Latent ambiguity is that which seems certain and without ambiguity for any thing that appears on the deed but there is some collateral matters out of the deed that breaths the ambiguity. Evidence is admissible to remove latent ambiguity. Section 95 says that when the language used in a document is plain in itself but unmeaning in reference to existing facts, evidence may be given to show that it was used in peculiar sense.
Ans. (A). Provision regarding burden of proof are provided in Chapter VII of Indian Evidence Act. Section 101 of Act provide:
"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.
Ans. It is the cardinal principal of criminal jurisprudence that accused will be presumed innocent until his guilt is proved by prosecution beyond reasonable doubt.
In State of Maharashtra v. Wasudeo Ram Chander AIR 1981 SC 1186. It was held in criminal proceeding, prosecution is under legal obligation to prove each and every ingredient of offence beyond reasonable doubt unless otherwise so provided by the statute.
Relevant provision relating to burden of proof are provided under section 101 to 114 of Evidence Act.
Section 101 of Act lays down "Whoever desires any court to give judgement as to any legal rights or liability dependent. On the existence of fact which he asserts, must prove that those facts exist Section " When a person who is bound to prove existence of fact it is said burden of proof lies on that person"
Section 102 of Act then provide
" 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.
Ans. Section 112 of Indian Evidence Act provides "That fact that any person was born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution the mother remaining unmarried shall be conclusive proof that he is legitimate son of that man unless it can be shown that the parties to marriage had no access to each other at any time when he could have been begotten."
Section 112 of Act is based on the fact that maternity admits of positive proof but paternity is a matter of inference. Section 112 lays down the Rule for proof of paternity of an individual and says if child is born.
(i) During continuance of a valid marriage between mother of child and any man.
or
(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.
Ans. (a) and (b) Section 115 of Indian Evidence Act lays down law of Estoppel which says that when one person by making a false representation (either by words or by conduct) has intentionally caused a person to believe to a thing to be true and to act upon such belief, neither he nor his representative in interest, in a subsequent proceeding will be allowed to say that the representation is false.
Rule of estoppel is based on Rule of equity and provide that when a person has made false representation and upon such representation other person has acted to his disadvantage then law prohibits the former to turn back and say that representation was false. Section 115 of Act provides:
"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."
So following are the ingredients of Rule of Estoppel as defined under section 115:
(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.
Ans. As Estoppel is a principle whereby a party is precluded from denying the existence of some fact which he has formerly admitted. In other words Estoppel is a Rule of law by which a person is held bound by presentation made by him or arises out of his conduct. Section 115 of Indian Evidence incorporate the `Law of Estoppel and it provides'.
"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.
Ans. Section 116 of Evidence Act inter alia provide that no tenant of immovable property or person claiming through such tenant shall during the continuance of tenancy, be permitted to deny that landlord of such tenant had at the time of beginning of tenancy; a title to such immovable property...."
Basis of the Rule is that when a tenant enters into possession in consequence of tenancy created by the landlord. He should not be allowed to question the title of landlord as long as he enjoys the tenancy.
In Subhash Chandra v. Mohd. Sharif and other, AIR 1990 SC 636 Supreme Court observed that does not permit the tenant during continuance of tenancy to deny the title of landlord at the beginning of tenancy. Rule is not confined to its application for original landlord. A transferee from such landlord can also claim the benefit of this.
In the problem in hand, B was inducted as tenant only by A and since then he has been paying rent to A. Therefore question of title is irrelevant in eviction proceedings and B is estopped from challenging the right of A to sue.
Ans. COMPETENT WITNESS : Section 118 of the Indian Evidence Act provide for the test as to who is a competent witness It reads as under:
"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.
Ans. Section 122 of Indian Evidence Act provides "No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married, nor shall he be permitted to disclose any such communication, unless the person who made it or his representative in interest. Consents, except in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other."
So Section 122 of the Act prevents disclosure of such statements only as are made during marriage. Therefore no protection exists with regard to communication made between the parties before marriage. In case in hand Sita confessed to Ram about theft of ornaments in year 1988 when they were not married, they got married in year 1989, therefore bar of Section 122 will not apply and Ram can be compelled to disclose the communication made to him by Sita before their marriage.
Ans. Privileged Communication : Privileged Communication in simple words means the communication which law does not allow to be proved or bring into notice of all. Section 122 of Evidence Act says `No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to who he is or has been married nor shall he be permitted to disclose any such communication unless the person who made it or his representative in interest consents except in suits between married persons or proceeding in which one married person is prosecuted for any crime. Committed against the other." So according to Section 122 any communication during the wedlock by husband to his wife or by wife to her husband is prevented from being proved in court of law.
Section 123 prevents giving of evidence from unpublished official record relating to affairs of State except with permission from head of department concerned Section 124 protects from communication made in official confidence where the public interest would suffer by such disclosure. Section 125 of Act prohibit disclosure of source of information regarding commission of any offence by Police, Magistrate or Revenue Officer.
Then Section 126 of Act provide that No barrister or advocate shall be permitted to disclose communication made by his client or to state contents or conditions of document of which such advocate has become acquainted in course of or for the purpose of professional employment or to disclose advice given by him, unless such clients consents to such disclosure. Section 128 then says if any client gives evidence in any suit on his own, it does not deemed to have consented to disclose as is mentioned in Section 126.
So Section 126 to 129 prohibit disclosure of professional communication between Advocate or legal adviser and his client. This Rule is founded with the intention to effectuate confidence between advocate and his client. In the absence of this Rule there is always insecurity in the mind of any client to give true disclosure to advocate.
Ans. Section 133 of Indian Evidence Act says
"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.
Ans. (i) Stock Witness : A `stock witness' is a person who is at the back and call of the police. He is a regular peddler of perjury `on police service'. He obliges police with his tailored testimony because sometimes his livelihood is dependent upon the mercy and indulgence of the police, or he wants to gain favour or some reward in lieu thereof.
In Dudh Nath Pandey v. State of U.P., AIR 1981 SC 911, the Supreme Court found that the police had introduced a stockwitness to prove the recovery of the weapon of offence in a murder case. The question of placing any reliance on the testimony of such a witness does not arise. Once it is proved on the record that a certain witness examined by the prosecution is a stockwitness of the police, the Court would be justified in discarding his testimony.
In Hazara Singh and others v. State of Punjab (1971) 3 SCR 647, it was observed that mere fact that one of the prosecution witness is a stock witness of police in itself is not enough to falsify the entire prosecution case. In such a case it is the duty of the court to brush aside the testimony of the stock witness and to see if the remaining prosecution evidence is enough to sustain conviction of accused.
(ii) Decoy Witness : With the increase of offences relating to excise, gambling, soliciting, illicit traffic in narcotic drugs and psychotropic substances and the like, due to the impossibility of procuring evidence in any other way, and with the paramount necessity of putting down offences of this kind, the Law Enforcement Agencies are compelled to employ witnesses, commonly known as decoys, spies, detectives, agents provocateur They associate with criminals solely for the purpose of discovering and making known their crime
Such a witness cannot be considered as an accomplice. Every participation in a crime does not make a person an accomplice and it depends upon the nature of the offence and the extent of the complicity of the witness in it. There is one class of witness who go by the various names of informants, spies, detectives, decoys, agents provocateurs and trap witnesses who by general consensus of decisions now do not fall under the category of accomplice Section Bhuboni Sahu v. The King, AIR 1949 P.C. 257, Mahadev v. King, AIR 1936 P.C. 242, and In re B.K. Rajgopal, AIR 1944 Madras 117 (F.B.).
(iii) Issue Estoppel : The Rule of issue estoppel which prevents relitigation of the issue which has been determined in a criminal trial between the state and the accused is applicable to criminal trials in India. If in respect of an offence arising out of a transaction, a trial has taken and the accused has been acquitted and an another trial in respect of that transaction or of related transaction which require the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial is prohibited by the ocular of "Issue Estoppel".
As in Raunaq v. State of U.P. 1987 Criminal Law Journal 445, the first criminal trial for offence under Section 399/402 I.P.C. and Section 25 of Arms Act ended in acquittal of accused by High Court on appeal which disbelieved the witnesses of recovery of gun. Subsequently the person involved in the same transaction and from whom the gun was recovered was charged under Section 411 of I.P.C. It was held that on principles of `issue estoppel' the findings in the earlier case had to be followed and accused be acquitted.
In Piara Singh v. State of Punjab, AIR 1969 SC 961 Supreme Court observed "The principle of `issue estoppel' cannot be invoked in a case where the parties are different and decision upon any issue as between state and any person in the same litigation cannot operate as binding upon the state with regard to another person. For `Issue Estoppel' to arise these issues must have been distinctly raised and inevitably decided the same issue in earlier proceedings between the same parties.
So the Rule of `issue estoppel' can be taken advantage of in a situation when the finding in favour of accused is arrived at on appraisal of facts and circumstances on an identical issue in a former case. Whatever be the outcome in the prior case if the identical issue in both the cases, the finding given in prior case bars the adjudication of same issue in a latter case.
Ans. Section 138 of Indian Evidence Act provides:
Examination in Chief : Examination of a witness by the party who calls him, shall be called examination in chief.
Cross Examination : The examination of a witness by the adverse party shall be called his cross-examination.
Re examination : The examination of a witness subsequent to cross examination, by the party who called him, shall be called re-examination.
Examination in Chief : After the witness has been sworn the oath as required under Section 5 of Indian oath Act, the party who calls, the witness will examine him first. It is known as examination in chief. The object of examination in chief is to obtain testimony in support of version favourable to party calling him. In examination in chief the witness should be asked about relevant facts showing any special means of knowledge, opportunities of observations etc. A witness can give evidence of fact only and no evidence of law. During the examination in chief, as provided in Section 142 of the Act, leading questions must not, if objected by adverse party, be asked except with the permission of the Court.
Cross Examination : Cross examination of a witness is the right of an averse party. Testimony of a witness is not complete unless it is subjected to test of cross examination by adverse party. After the examination in chief of a witness unless the court allows the party who has called the witness to cross examine such witness under Section 154 of the Act, the adverse party will cross examine the witness Scope of cross examination is wider than examination-in-chief because examination-in-chief is confined only to relevant facts but cross examination need not to be confined to the facts to which the witness testified on his examination-in-chief. Since the purpose of cross examination to elicit the truth or to test the veracity of the witness, so during cross examination, adverse party can ask any question which will (i) impeach the credibility of the witness (ii) touch the matters which were left in examination-in-chief (iii) give favourable answers to party cross examining the witness (iv) give contradiction of what has been stated by other witness
Re-examination : The party who called the witness if he like and feel necessary, may request the court to grant permission to re-examination of witness But the re-examination shall be directed to the Explanation of the matter referred to in cross examination. The proper purpose of re-examination is by asking questions as may be proper to draw forth an Explanation or meaning of expression used by witness in cross examination, if they are doubtful.
Ans. Leading Question : Section 141 of Evidence Act provides that "any question suggesting the answer which the person putting it or wishes or expects to receive is called `leading question'.
So a question is said to be leading one when it indicates to the witness the real and supposed fact which the examiner expects or desires to be confirmed by the answer. For example, is it right that you have seen the occurrence ? You must have seen Ram being murdered by Shyam ? are example of leading question. Rule of evidence as to leading question is provided in Section 142 which says that leading question must not be asked in examination- in-chief or in re-examination except with the permission of the court, however as provided in Section 143 of Evidence Act, leading question can be asked in cross examination.
In Verkey Josph v. State 1993 Criminal Law Journal 2010 (SC) Supreme Court observed that the question which suggests to a witness, the answer which the prosecution expects, must not be allowed unless the witness is declared hostile, with the permission of court. A prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely `yes' or `no' will give the evidence which the prosecutor wishes to elicit. The witness must account for, himself what he had seen."
Ans. After the examination-in-chief of a witness such is witness is subjected to cross examination by adverse party. It is the right of adverse party in any proceeding to cross examine the witness produce to depose against such party. When a party has called a witness to testify in his favour, then adverse party has been given legal instrument to check the truthfulness and veracity of such witness by cross examining him. Scope of cross examination is wider than examination-in-chief because examination-in-chief also relates only to relevant facts but cross examination need not to be confined to facts only testified by witness in examination-in-chief.
Following questions may be asked to a witness in his cross examination by adverse party:
(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
Ans. Clause (3) of Section 146 of Evidence Act permits to ask questions in cross examination of a witness to shake his credit by injuring his character, although the answer to such question might tend directly or indirectly to criminate him or expose him to penalty or forfeiture. However it is equally important to keep in mind that assault on character of a witness must be directed only for the purpose of shaking his credit, Sub Section does not permit all sort of question, court will always be vigilant to see whether a question of cross examiner is proper or not and for this, court will be guided by provisions Section 148 of Indian Evidence Act which says:
"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.
Ans. It is allowed under clause (3) to Section 146 of Evidence Act to ask any question in cross examination of a witness to shake his credit by injuring his character although the answer to such question might tend directly or indirectly to criminate him or expose him to penalty or forfeiture. However any question in cross examination intended to injure the character of witness must be proper and court may disallow any improper question. Court shall be guided by provisions of Section 148 of the Act which says that any question which relates to matter not relevant to suit or proceeding except in so far as it affects the credit of witness by injuring his character, court shall decide whether or not the witness shall be compelled to answer it.... In exercising its discretion the court shall have regard to following considerations:
(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.
Ans. Section 145 of Evidence Act enable that witness may be contradicted with reference to his previous written statement.Section 145 provide one of the method of impeaching the credit of witness.
Section 155 provide for impeaching credit of witness Credit of witness may be impeached in the following ways by adverse party or with the consent of the court by party who calls him:
(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.
Ans. Hostile Witness : Term `Hostile Witness' has not been defined or used in Indian Evidence Act. In simple words `Hostile Witness' means a witness who does not support the case of party by whom he is called. Normally a witness speaks or depose in favour of party who calls him for examination. When a witness is examined by party who calls him is called `Examination-in-Chief' and then examination of witness by adverse party is called cross examination of witness by adverse party is called cross examination (Section 137). A party who calls a witness for examination can not ask leading question in examination-in-chief however adverse party can ask leading question in cross examination (Sections 142 and 143). The Rule which excludes leading question being put is founded on assumption that a witness must be taken to have a bias in favour of party by whom he is called when the circumstances show that this is not the case and he is hostile to party producing him the judge may in his discretion allow the Rule to be relaxed and grant permission to party producing the witness to put such questions as may be put in cross examination. So when a witness does not support the case of party by whom witness is called then such witness is termed `Hostile Witness'.Section 154 of Indian Evidence Act provide :
"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
Ans. Section 165 Judge's power to put questions or order production. The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly 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.
Ans. Section 167 of Indian Evidence Act says -
"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.