EVIDENCE ACT
TOPIC 1
INTRODUCTION
The word evidence is derived from the Latin word ‘evidere’, which means “to show clearly or to prove”. The rules regarding evidence in the administration of justice are of high importance. No substantive law can be enforced without the help of the rules of law of evidence. The law of evidence can be stated to be the foundation on which the entire structure of judiciary is based.[1] The term “law of evidence” may be defined as a system of rules for ascertaining controverted questions of fact in judicial enquiries. It forms part of adjective law, which prescribes the methods of enforcing the rights or obtaining redress for their invasion. The process of litigation is governed by the law which can be sorted out into (1) Procedure, (2) Pleading and (3) Proof. The last part, proof, deals with the establishment of facts as according to the case of litigation. And we rely on evidence for the proof of such facts relevant to the issue. In juristic conception of the term of evidence in case of the oral testimony of witnesses is that the party against whom it is used has had the right and opportunity of cross examination to a dignified evidence. Hence evidence is the medium of proof and proof is the effect or result of evidence. So, evidence is the means for achieving the end, that is, proof.
The law of evidence in India is of ancient origin. It finds its place way back from the periods of Dharma. This is evident from the sayings of Manu that, the King presiding over the tribunal shall ascertain the truth and determine the correctness of the testimonies of the witness, the description, time and place of the transaction or incident giving rise to the case as well as the usages of the country, and pronounce a true judgment.
The source of information relating to the Law of Evidence that prevailed in Hindu India originates from the Hindu Dharma Shastras. There are three kinds of evidence recognized under Vasista. They are: (a) Lekhya (Documents) (b) Sakshi (Witnesses); (c) Bukhthi (possession).
Under the Muslim Law evidence is classified into Oral and Documentary. Oral evidence is further sub-classified into direct and hearsay evidence. Although documents properly executed and books kept in the course of business were accepted as evidence, oral evidence appears to have been preferred to documentary evidence. Certain classes of persons were considered as vitiated and inadmissible in evidence like women, children, drunkards, gamblers and criminals. They were considered incompetent to execute documents.
Before ultimately establishing the rights or liabilities in a case, the court has to ascertain whether the facts, which are the essential features of such right or liability, exist in the case set up. The enquiry into these facts is regulated by Law of Evidence. In India, the Indian Evidence Act, 1872, deals with the matter.
India under British Rule
Under British Rule, Presidency Courts were established in Bombay, Madras and Calcutta by virtue of a Royal Charter. These Courts were following English rules of the Law of Evidence. During the period of 1835-1953 about eleven enactments were passed which dealt with the law of evidence. These enactments were found inadequate later on. There were about 600 Princely States in India which were not within the jurisdiction of the British system of justice. Each of these States had rules of Law of Evidence of its own. Various attempts were made from 1855 to 1872, to codify a uniform Evidence Act for India, but none of them were satisfactory.
In Bain v. White Raven and Furness Junction Ry [2], the House of Lords while explaining the place of the law of evidence as early as 1850, observed that “The law of evidence is the lex fori which governs the courts; whether a witness is competent or not; whether a certain fact requires to be proved by writing or not; whether a certain evidence proves a fact or not; that is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced and where the court sits to enforce it”.
The achievement of accurate outcomes should be the primary aim of the laws of evidence. In principle, the ideal system would be one that convicts the guilty only and acquits the innocent only.[3]
English law, which, in modern day as well as in Bentham’s time, contains many rules restricting the kinds of evidence admissible in court, was target for his criticisms. His preferred approach was to allow all evidence to be given except the irrelevant or superfluous, although his secondary concern was the avoidance of undue delay and expense, and he recognized that compromises would need to be made on this score. In his system, rectitude would be assisted by providing sanctions against perjury.[4]
In 1870, Sir James Fitzjames Stephen was entrusted the task of codifying the rules of Law of Evidence. The draft was submitted by him and was enacted. The Evidence Act came into force on 1st September, 1872. The Indian Evidence Act now contains the law relating to evidence in India. This act is based upon English law of Evidence prior to the passing of this Act. In the Indian Evidence Act the word evidence is used to mean "the means which tend to create a belief in the mind of a judge”. The Act applies to all judicial proceedings in or before any Court, including Courts-martial, other than Courts-martial convened under the Army Act, the Naval Discipline Act or the Indian Navy (Discipline) Act, 1934 or the Air Force Act but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator.
In Akbar v. State of Maharashtra[5], the Court held that the Indian Evidence Act is a complete code repealing all rule of evidence and there is no scope for introduction in criminal cases a rule of evidence unless it is within the four corners of the Act.
In Ram Jas v. Surendra Nath[6], Hari Swaroop J. observed that “The law of evidence does not affect substantive rights of parties but only lays down the law for facilitating the course of justice. The Evidence Act lays down the rules of evidence for the purposes of guidance of the courts. It is procedural law which provides, inter alia, how a fact is to be proved”.[7]
The Evidence Act, 1872 is an Act for amending, defining and consolidating the law relating to evidence in India. The Preamble enlightens the concept of the Act. The law of evidence is the lex fori where the litigation is going on. Therefore, an Indian court will only follow the provisions of this Act. It may be stated that this Act is nothing but an attempt to reduce the English law of Evidence in the form of express propositions, arranged in their natural order, with some modifications, rendered necessary by the peculiar circumstance of India. It is divided into three Parts. Part I deals with title, extent, jurisdiction and relevancy of facts and it consists of Chapters I and II. Part II deals with the mode of proof and includes Chapters III to VI. Part III deals with the production and effect of evidence and consists of Chapters VII – XI.
The traditional aspect of paper-based records and oral testimony in Law of Evidence has paved its way to electronic commerce. This eliminates the need for paper-based transactions. The enactment of Information Technology Act 2000 has brought about drastic changes in various statutes and laws of the country. The 2nd schedule of the Act contains the changes brought about in the Indian Evidence Act. Thus, sections 22A, 47A, 65A & B, 67A, 73A, 81A, 85A, B & C, 88A and 90A were inserted and sections 3, 17, 34, 35, 39, 59 and 131 were modified.
TOPIC 2
DEFINITIONS
Sections 3 of the Act defines certain terms in order to facilitate a better interpretation of the provisions of the Act.
COURT
Etymologically speaking, the word “court‟ means King’s Durbar.[8] The expression “court‟ as defined in the Evidence Act means the person or persons who administer justice.
Accordingly “Court” includes of the following:
(a)All Judges;
(b)All Magistrate; and
(c)All persons legally authorized to take evidence, except arbitrators.
The above definition under Sections 3 is inclusive in nature. The expression “court‟ is not confined only to regular courts, it also includes any person who administers justice and is authorised to take evidence. Accordingly Magistrate committing a case to the Court of Sessions falls within the ambit of the term Court, whereas a Magistrate holding preliminary inquiry under Sections 164 of CrPC[9] cannot considered as a ‘Court’.
Illustration: A person heard or saw something through his sense.
Illustration: A man has certain reputation in society. Similarly criminal intention (means area) knowledge, good faith, fraud etc. ar mental facts
Facts in issue
The expression “Facts in issue” refers to facts out of which a legal right, liability or disability arises and such legal right, liability, or disability is involved in the inquiry and upon which the Court has to give the decision.
“Facts in issue‟ in criminal case are those facts, which are alleged by the prosecution and denied by the accused in a criminal case and alleged by the plaintiff in the plaint and denied by the defendant in the written statement in a civil case or.
Illustration: X is accused of murdering Y. At trial, the following facts may be in issue. Whether X has caused the death of Y. If the answer is “no‟, X is acquitted. If the answer is “yes‟ the following question will arise. Whether X had an intention to cause Y’s death or not. If the intention is present, is it murder or culpable homicide and X is awarded serious punishment i.e. death of life imprisonment. Otherwise, (if intention/men rea is absent) it amounts to accident, which is a defence under Section 80 I.P.C. If the accident is by negligence, by virtue of section 304A, the punishment is up to 2 years imprisonment or fine or both.
Generally, in criminal cases the charge constitutes the facts in issue whereas in civil cases the facts in issue are determined by the process of framing of issues (Order 14 of CPC).
Relevant Fact
According to James Stephen, “relevancy‟ means “Connection of events as to cause and effect”. Kinds of relevancy:
Logical Relevancy
A fact is said to be logically relevant to another, when by application of our logic, it appears (to us that one fact has a bearing on another fact. Facts which are logically relevant need not provable. Therefore, it is aid that “All facts logically relevant are not provable; however, legally relevant facts are provable.”
For instance, Confessional statement made to wife, by her husband. Husband said his wife that he had committed a crime i.e. murder or rape or theft. If the wife gives evidence as to the commission of crime by her husband, it is not admitted in evidence under Section 122 of the Indian Evidence Act. Similarly confession made to a police officer is not admissible in evidence under section 25 of Indian Evidence Act.
Legal Relevancy
A fact is said to be legally relevant when it is expressed as relevant under Sections 6 to 55 (Relevancy of Facts).
Illustration: X is tried for administering poison to Y with a motive of inheriting property. Here, the motive is relevant under Section 8. Similarly the fact revealed by post-mortem expert that the death is caused by the poison is relevant under sec.45.
It is a general rule in England that any evidence, which are logically relevant are admissible.[11] That means all logically relevant facts are legally relevant in England.
But in India, only those facts which are declared relevant by the Indian Evidence Act can be admitted and of no other.[12] That means evidence may be given to prove fact in issue (factum probandum) or relevant fact (facta probantia)[13] and of no other. This is in accordance with the maxim: frustra probatur quod probatum non relevant. The English version of this maxim is that “it would be frustrating and disgusting to prove facts which are irrelevant”.
Ss 6 to 55 of the Evidence Act deals with relevancy of facts. Thus the following facts are relevant:
Comparison between Facts in issue & Relevant Facts
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Facts in issue |
Relevant Facts |
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Facts in issue is necessary ingredient to prove a right or liability |
Relevant Facts is not a necessary ingredient of a right or liability |
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Facts in issue is also called the Principal fact or “factum probandium” |
Relevant Facts is also called evidentiary fact or “factum probandi” |
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Facts in issue are affirmed by one party (generally plaintiff) and denied by other (generally defendant) |
Relevant facts are foundation of inference regarding them |
Documents
The word “Documents‟ literally means “written papers”. But according to Section 3 of the Indian Evidence Act, 1872, “Document” means any matter expressed or described on 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 recoding that matter.
Illustrations: Map, plan, inscription on a metal plate or stone, caricature etc are documents.
Generally in criminal cases, documents are inanimated proofs while witnesses are animated proofs.
S.3 of the Act defines the terms "Proved", "Disproved" and "Not Proved".
A fact is said to be 'Proved' when, after considering the evidences or matters before it, the court either believes that it exists 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.
Similarly, fact is said to 'Disproved' when, after considering the matters before it, the court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
A fact is said to be 'Not Proved' when it is neither proved, nor disproved.
In R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.Temple & Ors.[23] the Court held that 'Proved', 'disproved' and 'not proved' in civil or criminal case is one and the same. A fact is said to be 'proved' when, if 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 a particular case, to act upon the supposition that it exists. A fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case.
Presumptions are the inferences drawn by a court with regard to the existence of certain facts from some other facts already proved.
Presumptions can be divided into three classes. They are:
1. Presumptions of fact;
2. Presumptions of law; and
3. Mixed presumption (presumption of fact and law).
(1) Presumption of Fact or 'May Presume’
If a section in the Indian Evidence Act says that 'the court may presume a fact', it is a presumption of fact and the court may either, regard such fact as proved unless or until it is disproved or may call for proof of it.[24] That means if 'the court regards the fact as proved', the person against whom the presumption is drawn can give evidence to show that the fact is not in existence. The term ‘presumption’, may be defined to be an inference, affirmative or disaffirmative of the truth or falsehood, of a doubtful fact or proposition drawn by a process of probable reasonings form something proved or taken for granted.
Illustration
If a man is in possession of stolen goods soon after the theft, the court may presume that he is either the thief or has received the goods knowing them to be stolen. Thus if it is proved that the person was in possession of the stolen property soon after the theft the court can regard him as a thief or a person who has received stolen goods knowing them to be stolen. Since 'may presume' is used, the court can also direct the prosecution to prove that he is thief or a person who received stolen goods knowing to be stolen.[25] However the person against whom such a presumption is taken can adduce evidence to the effect that he has not committed the theft or that he is not a person, who received the stolen property, knowing them to be stolen.
In Sridhar Dey v. Kalpana Dey[26], it was held that once the factum of marriage is proved, everything necessary to validate such marriage, including the observation of essential ceremonies, shall be presumed, particularly where the legality and the validity of the marriage are not impugned either in the pleadings or in the evidence on the ground of non perfomance of necessary ceremonies or otherwise.
(2) Presumption of law
The presumptions of law are sub-divided into two. They are:
(i) Rebuttable Presumption of Law
If a section in the Evidence Act says that 'the court shall presume a fact', it is a presumption of law, and the court shall regard such fact as proved unless and until it is disproved.[27] Here the court shall have no discretion and it cannot call for proof against it. However, the person against whom the presumption is drawn can adduce evidence to the effect that the fact is not in existence.
Illustration
Suppose in a rape case, the victim deposes before the court that she did not consent for sexual intercourse. Here the court shall take presumption that she did not consent. However the accused can adduce evidence to the effect that the sexual intercourse was with her consent.
In State of Andhra Pradesh v. V.Vasudeva Rao[28] the Court stated that the presumptions falling under “May presume” are compendiously known as “factual presumptions” or “discretionary presumptions” and those falling under “Shall presume” as “legal presumptions” or “compulsory presumptions”. The Court also held that the expression “shall be presumed” employed in Section 4(1) of the Act has the import of compulsion
(ii) Irrebuttable Presumption of law
If a section in the Indian Evidence Act declares that a fact is conclusive proof of another, the court shall, on the proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.[29] Here the party against whom the presumption is drawn cannot give evidence to show that the fact is not in existence. Section 4 of the Evidence Act uses the term ‘conclusive proof’ to show irrebutable presumptions.
Illustration
A child below 7 years of age is incapable to commit a crime is presumption of law and so the prosecution cannot adduce evidence to show that the child is capable of committing the offence.
In Cheerantoodika Ahmmedkutty v. Parambur Mariakutty Umma[30], the Supreme Court held that where an enactment enjoins that any evidence is to be treated as conclusive proof of a particular factual position or legal hypothesis, the law should forbid other evidence from being adduced to contradict or vary such conclusiveness, except where fraud or collusion is alleged.
In Bhami Bewa v. Krushna Chandra Swain & Gochhayat & Ors.[31] the Court held that the date of birth entry in school register is admissible but not conclusive proof of date of birth or age of a person.
S.41 of the Evidence Act provides inter alia that a final judgment, order or decree of a competent court in exercise of matrimonial jurisdiction is a conclusive proof of that legal character.
(3) Mixed Presumption (Presumption of Fact and Law)
Mixed presumptions are also known as presumptions of fact recognized by law. Mixed presumptions hold an intermediate place between presumptions of fact and presumptions of law. They consist chiefly of certain presumptive inferences which from their importance attract, as it where, the observations of the law. This sort of presumptions are chiefly confined to English law of real property. They have not been dealt with in Evidence Act.
Evidence
“Evidence‟ means and includes–
In criminal cases, the guilt of an accused may be proved using circumstantial evidence also.
Circumstantial evidence refers to the indirect method of proving the guilt of an accused by drawing inferences from certain facts which are closely related to the facts in issue. However, the standard of proof required for circumstantial evidence is quite high and courts are usually cautious while relying upon circumstantial evidence.
Difference between ‘evidence’ and 'proof'
The word ‘evidence’ includes all the legal means, which tend to prove or disprove any matter or fact. ‘Proof’ is the establishment of fact in issue by proper legal means to the satisfaction of the court. Proof is the result of evidence, while evidence is only the medium of proof. In other words evidence is the means and proof is the end.
Evidence may be viewed from different angles and may be grouped as follows:
The written proof is considered superior to the verbal proof from the ancient times. The maxim in this regard is: vox audita perit, litera scripta manet.
Oral Evidence
According to S.59 of the Act all facts, except the contents of documents or electronic records, may be proved by oral evidence.
Oral evidence is the evidence which is confined to the words spoken by mouth. It includes all statements made by witnesses qualified to speak. Oral evidence must, in all cases be direct;[34] that is to say-
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of the experts expressed in any treatise commonly offered for sale, and grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or the author cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection.
In Queen Empress v. Abdullah[35], even signs made by a person who was unable to speak was taken into account.
In Anil Kumar v. State of U.P.[36], it was held that where oral evidence is credible and cogent, medical evidence is to the contrary is inconsequential. Only when medical evidence totally improbablises oral evidence, adverse inference can be drawn.
In Anil Sharma v. State of Jharkhand[37], it was held that evidentiary value of the oral testimony of an eye-witness cannot be diluted by reason of non-production of any document in support of a claim contrary to the oral testimony.
Sometimes the judge inspects property about which there is dispute. In murder trials or trials for rioting and other cases the court may make local inspections and form impressions. The court is entitled to act on the impressions and the materials brought to its notice by the local inspections. Again, materials objects are placed for inspection. Sometimes courts also gather impressions from the demeanor of the witnesses examined before it. If a witness is not straightforward or is evasive or hesitant in giving answers when examined, the courts form certain impressions on which the courts can act, since this too is evidence.
Documentary Evidence
Evidence supplied by writing and documents can be taken as documentary evidence. Documents means any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means.
Examples
In Rama Reddy v. V.V. Giri[38], the Supreme Court held that, tape-recording of a conversation is documentary evidence.
In Magrai Patodia v. R. K. Birla[39], the Supreme Court held that the fact that a document was obtained by unlawful means could not bar its admissibility provided its relevancy and genuineness were proved.
The contents of documents may be proved either (a) by primary or (b) by secondary evidence.
(a) Primary Evidence
S.62 of the Evidence Act defines primary evidence. If the original document itself is produced for the inspection of the Court, it is called Primary Evidence. These are those evidences which in any possible condition gives the vital hint in a disputed fact Section 64 specifies that documents must be provided by primary evidence.
Eg.
A filed a suit against B for recovery of Rs.10,000/-. ‘A ‘alleged that ‘B’ borrowed the said sum of Rs.10,000/- after executing a promissory note. ‘B’ denied the execution of the promissory note. When 'A' produces the original document in the Court to prove the execution of promissory note and the amount borrowed by ‘B’, the evidence is called Primary Evidence.
In Murarka Properties v. Beharilal Murarka[40], the Supreme Court state that in the face of the documentary evidence oral evidence is not entitled to any weight.
In Prithi Chand v. State of H.P.[41], the court held that arising out of the rape of a minor girl, the medical report was that of a lady doctor who being on maternity leave was not able to appear, the report was allowed to be proved by another lady doctor who was conversant with her handwriting and signature.
(b) Secondary Evidence
It means substitutionary evidence. These are those evidences which are entertained by the court in the absence of the Primary evidences. S.63 of the Evidence Act, 1872 defines Secondary Evidence. The following are Secondary Evidence.
By virtue of S.65, under the following circumstances, Secondary Evidence may be given to prove the existence, condition, or contents of a document.
In A.P.S.T.R.C. v. P. Venkaiah[42], the court held that certified copies of sale deed are admissible in evidence, though they cannot be relied upon without examining the persons connected with the deed.
In Virendra Nath v. Mohd. Jamil[43], where the person in possession of land was shown in the revenue records to be a mortgagee but the mortgagor could not produce the unregistered mortgage deed because it was in possession of the mortgagee, the Court said that oral evidence could be admitted for the collateral purpose of ascertaining the nature of possession of the person claiming to be in adverse possession.
In S.A. Khan v. Bhajan Lal[44], the court held that where the person against whom an item of news appears in the press has not denied it, it would not constitute evidence against him. Facts contained in the report would have to be proved.
In Sitaldas v. Sant Ram[45], the Supreme Court held that when no foundation is laid for the reception of secondary evidence, such evidence shall be excluded from consideration.
In Amangenti Prameela & Anr. v. P.Venkat Reddy (Died) per LRs. & Ors.[46], the Court held that a Photostat copy can be received as secondary evidence unless its authenticity is doubtful and if the party having possession of original fails to produce it in spite of issuing notice.
In Hadiani Debi alias Tiki Devi v. Kailash Panda & Ors.[47], the Court held that without taking any steps for production of the original or laying the foundation for secondary evidence, production of a certified copy by itself is not admissible in evidence.
In Akkam Laxmi v. Thosha Bhoomaiah[48] the Court held that a copy of unstamped document, which is required to be stamped cannot be proved by way of secondary evidence.
Special Provisions as to Evidence Relating to Electronic Record
S.65A provides that the contents of electronic records may be proved in accordance with the provisions of S.65B.
Under S.65B (1) any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (herein after referred to as ‘computer output’) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
Section 65 B (2) provides that the conditions referred to in sub-section (1) in respect of a computer output shall be the following namely :-
(a) the computer output was produced during the period over which the computer was used regularly by the person having lawful control of the computer ;
(b) the information was regularly fed in the ordinary course of activities ;
(c) throughout the material part of the period the computer was operating properly or if not then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record o the accuracy of its contents ; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer on the ordinary course of the said activities;
By virtue of Section 65 B (3) where the function was performed by computers whether
(a) By a combination of computers operating over that period; or
(b) by different combinations of computers operating in succession over that period or;
(c) By different computers operating in succession over that period; or
(d) In any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers.
all the computers used for that purpose shall be treated as a single computer.
By virtue of Section 65 B (4) a certificate doing any of the following things, ie,to say-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced.
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that electronic record was produced by a computer ;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation to the best of the knowledge and belief of the person stating it.
5. Section 65 B (5) provides that for the purpose of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied in any appropriate form, and whether it is so supplied directly (with or without human intervention) by means of any appropriate equipments.
(b). if the course of activities carried on by any official information supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken supplied to it in the course of activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation – for the purposes of this section any reference to information being derived from other information shall be a reference to its being derived there from by calculation, comparison or any other process.
Proof as to Digital Signature
According S. 67A of the Act except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.
Proof as to Verification of Digital Signature
Explanation to S. 73A of the Act states that in order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the court may direct –
Explanation. - For the purposes of this section, “Controller” means the Controller appointed under sub-section (1) of section 17 of the Information Technology Act, 2000.
In the case of Bai Hira Devi v. The Official Assignee of Bombay[49], it was observed thus: Sec. 91 deals with the exclusion of oral by documentary evidence. The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original. Sec. 91 is based on what is sometimes described as the “best evidence rule”.[50]
In Hoshiar Singh v. Ram Kumar & Ors.[51], the Court held that once the document is proved then it is not obligatory upon that party to lead further evidence to prove the contents of the document and the onus is then on the other party to lead cogent and proper evidence, documentary or otherwise to show that the contents of the document were incorrect or that they have been in possession prior or after execution of that document.
Direct and Circumstantial Evidence
Direct Evidence
Direct evidence means evidence, which is directly going to prove the fact in issue. That is, when the relation of a relevant fact to the fat in issue is proximate, it is called direct evidence. It is the evidence of a fact actually perceived by a witness with one of his own senses or an opinion actually held by him.
In Main Pal & Anr. v. State of Haryana & Ors.[52] the Court held that when evidence of eye witness is truthful and credible opinionative evidence of doctor cannot wipe out the effect of eye witness evidence.
Circumstantial Evidence
Circumstantial evidence refers to the evidence, which relates to various circumstances, which are associated with the real fact in issue. In a case of murder, if there is a person who has seen the incident, then his evidence will be direct evidence. But in most of such cases there may not be any eyewitnesses available. Then the court will have to depend upon the evidence of various circumstances leading to the event, which is under trial.
In Fr. Benadict v. State of Kerala[53], the trial Court convicted the accused on the following pieces of evidence.
In Har Dayal v. State of U.P.[54], the accused was tried for the murder of a child and convicted and sentenced to death. There was no eyewitness to the fact of the murder. But the circumstances had made the chain so complete and lead to the conclusion that in all probability the child was kidnapped, murdered and thrown into the well by the accused and not by any other person.
In State by Mico Layout Police Station v. Devaraj alias Ramashankarappa[55], death of young housewife within her house was alleged to be murder. The medical evidence showed that death was homicidal and not suicidal. There was no evidence, either direct or circumstantial. Suspicion, however, grave cannot be a substitute for proof through evidence beyond reasonable doubt which is requirement to sustain conviction. The Court held that in absence of such evidence, accused to be given benefit of doubt.
Real Evidences
Real evidences are those evidences which are real or material evidences. Real evidence or proof of a fact is brought to the knowledge of the court by an inspection of a physical object rather than by deriving an information by a witness or a document.
Judicial Evidence
Judicial evidences are those which are given before the magistrate in the court. For example- a confession made by the accused under section 164 of CrPC before the magistrate is a Judicial Evidence.
Non- Judicial Evidence
Any confession made by the accused outside the court and not in front of the magistrate but in the presence of some other person are termed as non- Judicial evidences.
Direct Evidence and Hearsay Evidence
Direct Evidence
Direct evidence of a fact actually perceived by a witness with one of his own senses or on opinion actually held by him. By S.60 oral evidence in all cases must be direct. If it is something, which could be perceived by any sense, the witness must be one who says that he perceived it by that sense.
Hearsay Evidence
It is a cardinal rule of evidence that hearsay is no evidence. The witness must not just repeat the statements of others. By S.60 oral evidence in all cases whatever be direct. In other words hearsay is not admissible. The witness giving oral evidence before court must say that he saw or he heard or he felt or smelt or tasted that which he speaks. Therefore, he should not say that he heard of its existence from another person.
Distinction between Direct Evidence and Hearsay Evidence
Exceptions to Hearsay Rule
10. Statement in public documents.
11. Statements in ancient documents.
In Sakatar Singh v. State of Haryana[56], hearsay evidence means the statement of a witness not based on his personal knowledge but on what he heard from others. In this case the Court held that hearsay evidence is not admissible.
In Vijender v. State of Delhi[57], in this case where a child was kidnapped and a person standing on the spot who witnessed the happening told the details, including the motor car number and the names of the kidnappers to the father of the child, the narration of the father was held to be hearsay.
In Girish Yadav v. M. P.[58], in this a site map was prepared by the investigating officer. Recitals of the person who helped him were regarded as hearsay. He would have to appear as a witness to testify to his recitals. It is also amounts to hearsay.
In Citing Kanwar Lal Gupta v. Amarnath Chawla[59], the court held that the rule of hearsay may not stand in the way of proving public documents because once it is proved that the documents are official records or official correspondence, the Court has to raise the presumption under S. 114.
TOPIC 3
DOCTRINE OF RES GESTAE IN EVIDENCE
According to Woodroffe the term ‘res gestae’ may be defined as those circumstances which are the automatic and undesigned incident of a particular litigator’s act and which are admissible when illustrative of such act.
The expression res gestae means part of the same transaction. Actions, statements and incidents which are connected with and occur at the time as the facts in issue so as to be part of the same story are admissible as evidence and are referred to as part of the res gestae.[60] It is Latin word, which also means “things done”, and word spoken along with the transaction. These transactions are treated as res gestae and therefore treated as a relevant fact. Under certain circumstances, it includes statements made by bystanders and strangers.
Eg:- 'A' beats 'Z' with an iron rod. Whatever is said by 'A' or whatever is said by the victim or whatever is said by the bystanders (on lookers) are treated as part of the same transaction and therefore relevant.
In the words of Stephen every fact, which is part of the same transaction is a relevant fact.
1. General Res Gestae
According to S.6 certain facts are treated as res gestae even though it is not a matter in issue. That fact proves the innocence or the guilt on the accused.
'A' was forced for the murder of 'B' by shooting him. Another person in the room saw the accused running with a pistol in his hand. That person said: “this is the butcher”. It forms res gestae.
In the English case R v. Bedding Field[61], the accused was charged for the murder of a girl by cutting her throat with razor. The offence was committed inside a room. In that struggle the accused ran away from the room followed by the victim. The victim said to her aunt: "Oh! See aunt, what Bedding Field has done to me". The question was whether this statement of the victim can be treated as res gestae. The English court treated it was not res gestae because it is not contemporaneously made. This decision has been criticized as illogical.
In Vinod v. State of U.P[62], the accused strangulated the victim after committing rape on her. He was apprehended by the people, while trying to run away. He begged forgiveness from the people and pleaded it to be his first mistake. These facts were held to relevant under S.6 as forming the parts of the same transaction.
In Bhasker v. State of Kerala[63], the Kerala High Court observed thus: "The statement uttered or act done must be a spontaneous reaction of the person witnessing the crime and forming part of the transaction. The by-standers declaration must be substantially contemporaneous with the fact and not merely the narration of a prior event.
In Rajan v. State of Kerala[64], the court was held that a person rushed to the scene of crime on hearing the sound of an explosion. He heard from the mouth of the by-standers as to what happened. The Kerala High Court held that he could give evidence only to the fact of sound of explosion, which he heard. He cannot give evidence as to what he heard from by-standers. What he heard from the mouth of the by-standers is only narration of what happened and not spontaneous reaction of the person witnessed the incident.
In R. M. Malkani v. State of Maharashtra[65], the Supreme Court held that “a contemporaneous tape-record of a relevant conversation is a relevant fact. It is res gestae”.[66]
In Rattan Singh v. State of H.P.[67], the court observed that where shortly before the incident in which a women died of gun shot, she exclaimed that a man was standing near her with a gun in his hand, the statement was held to be sufficiently proximate in time to the happening as to be a part of the same transaction.
In Gajjan Singh v. State of Haryana[68] a married woman was raped. The victim immediately narrated the entire occurrence to her mother-in-law. The Court held that this evidence is admissible under S.6 of Evidence Act.
In Sunil Kumar Arjun Das Gupta v. State of Madhya Pradesh[69] a girl of 14 years was raped. The victim reached home and narrated incident to her mother and committed suicide within half an hour. The Court held that the statement of mother in such a case is relevant piece of evidence.
In State of Andhra Pradesh v. Panna Sathyanarayan[70], the accused committed murder his wife and daughter. The statement by the father of deceased wife was that father of accused told him on telephone that his son has killed the deceased. There was no finding as to whether the information given by accused’s father to the deceased’s father that the accused had killed the deceased was either at the time of commission of the crime or immediately thereafter so as to form the part of same transaction. The court held that the statement cannot be considered as relevant under Section 6.
2. Res Gestae for Proving Occasion, Cause or Effect
S.7 of the Evidence Act speaks the res gestae for occasion, cause or effect.
a) 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, to third person, are relevant.
b) The question is whether 'A' murdered 'B'.
Marks on the ground, produced by a struggle at or near the place where the murder was committed are relevant facts.
c) The question is whether 'A' poisoned 'B'.
The state of B’s health before symptoms ascribed to poison, and habits of 'B' known to 'A', which afforded an opportunity for the administration of poison, are relevant facts.
Whether Tape recorder conversation is admissible as res gestae?
In Indira Gandhi v. Raj Narayan, the tape recorder speech of Smt. Indira Gandhi through the Allahabad railway station was held as a relevant fact for proving current practice in an election.
In Yosuf Ali Ismail v. State of Maharashtra[71], the SC ruled that tape recorder conversation of a relevant fact is relevant under res gestae, however the following conditions shall be fulfilled;
1. The voice must resemble the voice of the accused.
2. The cassette must be reasonably a new one.
3. The conversation must be a relevant one[72].
In K.S.Mohan v. Sandhya Mohan[73], it was held that where the cassette was carefully sealed and kept in judicial custody, voice of the parties were clearly audible and possibility of tampering was ruled out, the taped statements were admissible under S.63 of the Evidence Act.
Writing includes printing, lithography photography and other modes of representing or reproducing words which are in visible form[74]. The word “invisible form“ excludes the possibility of a tape recording. The tape recording, not being a writing, cannot be used for refreshing memory under S.159 of the Evidence Act by a witness.
Similarly the expression “writing” appearing in S.145 of the Evidence Act refers to the tangible object that appeals to the sense or sight and that which is susceptible of being reproduced by printing, lithography etc. It is not wise enough to include a statement appearing on a tape which can be reproduced through the mechanism of tape - recorder, therefore, tape recording is not admissible under S.145 of the Evidence Act. But such statement may be admissible under S. 155(3) of the Evidence Act[75]. Tape recording is admissible under S. 155(3) of Evidence Act to impeach the credit of the witness[76].
In Majid v. State of Haryana[77], the Court held that the credit of a witness can be impeached by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
Similarly dog tracking evidence is also admissible as res gestae.
3. Res Gestae for Proving Motive, Preparation, Previous and Subsequent Conduct
S.8 of the evidence Act deals with motive, preparation, previous and subsequent conduct:
Eg:- (a) Mr. 'A' is tried for the murder of 'B'
Previously Mr. 'A' murdered 'C' and the fact was known to 'B'. This is the motive for the crime.
(b) 'A' is tried for the murder of 'B' by poisoning.
The fact that the accused was found in front of a chemical shop is relevant fact under res gestae (preparation).
The fact that the accused had purchased the same sari is a relevant fact.
(c) The accused was charged for theft.
The fact that the stolen properties were recovered from his room is a relevant fact.
In Balram Singh v. State of Punjab[78], the court held that an altercation between two families a few days before the incident of murder in which two persons were injured. The evidence was of one of those injured persons. There was hardly any need for evidence of motive. Evidence of outsider independent witnesses was also not necessary.
In Badam Singh v. State of M.P.[79], the court observed that evidence of motive becomes important when ocular evidence is suspect.
In Bikam Pandey v. State of Bihar[80], the Court states that when there is direct evidence to establish the crime, the evidence of motive is insignificant.
In Ranganayaki v. State[81], the Court held that motive need not be proportionally gave with the gravity of the offence, failure of the prosecution to correlate by evidence the mental state of the accused with the crime does not mean that the requisite mental condition did not exist.
In Yunus v. Kariya[82], it was held by the Apex Court that as the ocular evidence of eye witness is very clear and continuing, role of accused person in time stands established. It was found that failure to prove motive for the crime has no consequence.
4. Res Gestae For Facts Explaining Certain Things
By S.9 another set of wide variety of facts are made admissible in evidence. They are the following:
Identification Parade
It is admissible as res gestae under S.9 of the Act.
In State of A.P v. Dr M.V. Ramana Reddy[83], the Supreme Court held that identification parade is to be conducted without delay.
In Reddy v. State of A.P, the Supreme Court ruled that identification parade must be conducted without delay and if father of the accused can be clearly identified without resorting to the parade, then the parade need not be performed.
In State of Maharashtra v. Suresh[84], the Supreme Court held that the object of conducting a test identification parade is a two fold one: (1) to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime: (2) to satisfy the investigation authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer the conducting the test identification parade should ensure that the said object of the parade is achieved.
In Surendra Singh Rahtela v. State of Bihar[85], the accused was firing at inmates of a car. Injured eye-witness identified the accused at test identification parade. But the eye-witness stated in the FIR that he could not identify the accused assailant. The court set aside the conviction.
In Visveswaran v. State[86], the Supreme Court observed that the identification of the accused either at the test identification parade or in the court is not a sine. qua non for his conviction. The commission of crime by a particular person can as well be proved by circumstantial evidence.
In Gopalakrishnan v. Sadanand Naik[87] Investigating Officer procured the album containing the photographs with the names written underneath and showed this album to the eye witnesses and recorded their statements u/s 161 Cr.P.C. It was held by the Court that the procedure adopted by police not justified under law and therefore the conviction set aside.
In Raju Gurung v. State[88] the Court held that identification parade falls within the realm of investigation as such it is required to be held during the investigation of the case.
TOPIC 4
CONSPIRACY
S.10 of, the Indian Evidence Act, 1872 deals with the term conspiracy.
Conspiracy is a crime as well as Tort. In short, it is a kind of arrangement in pursuance of an agreement to do an unlawful act or a lawful act by unlawful means.
Definition
When two or more persons agree to do an unlawful act or a lawful act by unlawful means, they are liable for the wrong of conspiracy.
Ingredients
1.There should be an agreement between two or more persons.
2.The agreement should be for doing of an illegal act or for doing a lawful act by illegal means.
The offence of criminal conspiracy is liable to be punished under S.120 B of the Indian Penal Code, 1860. By Virtue of S.10 if there is reasonable grounds to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of them in reference to their common is a relevant fact against the other conspirator to prove that the other is a conspirator.
In Bhagavan Swarup v. State of Maharashtra,[89] there were 12 accused in this case. They conspired together to defraud an insurance company. All were convicted under S.10 of the Evidence Act.
In L.K Advani v. C.B.I[90], the court held that entries in the diary showing payments to the petitioner was not sufficient to establish prima facie evidence of existence of conspiracy.
In State of Maharashtra v, Damu[91], the S.C held that the only condition for application of the rule in S.10 is that there must be "reasonable ground to believe that two or more persons have conspired together to commit an offence".
In Kehar Singh v. State (Delhi Admn.)[92], the Court held that the fact that the two accused, one of whom actually caused death, were seen together before the event isolating themselves on a roof top and making every possible effort to conceal their conversation from the family members, was held to be enough prima facie proof of conspiracy so as to punish one for the action of the other.
In Jayendra Saraswathi Swamigal v. State of T. N.[93], the court observed that the confessional statements of a person implicating himself along with others in a conspiracy were held to be not sufficient to create prima facie evidence of conspiracy.
In Jayendra Saraswathi Swamigal v. State of Tamil Nadu[94] the Court held that if prima facie evidence of the existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all. If the confession is recorded long after the offence when conspiracy had culminated the provisions of S.10 of Evidence Act cannot be pressed into service.
TOPIC 5
ALIBI EVIDENCE
The plea of absence of a person, charged with an offence from the place of occurrence at the time of the commission of the offence is called the ‘plea of alibi’. Generally plea of alibi is put forth by way of defence.
The relevancy of the alibi evidence is provided in S.11 of the Act. The term alibi means the presence of the accused at the time of the commission of the crime at somewhere else and by which he has no chance for committing the crime. Actually alibi is a defence set up by the defendant against the offence alleged against him. Therefore it is best negative evidence, which can be adduced by him negating the charge, which is alleged against him.
In State of U.P. v. Sughar Singh[95], court held "the plea of alibi postulates the physical impossibility of the presence of the accused at the scene of the offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time, that, he could not be present at the place where the crime was committed." One of the side effects of adducing the alibi evidence is that if the alibi adduced has failed, it may automatically raise a very heavy presumption that the accused was present at the place of occurrence. Therefore it is considered as a very dangerous defence the accused have against the allegation. The importance of the alibi evidence under S. 11 is that it creates the doubt on the judge because the absence of a man who is charged with crime is inconsistent with the fact of having committed it or at least makes the fact highly probable. The strength of the alibi evidence is said to greatly increase by being put forward as soon as the accusation is made. If it is not put forward at the earliest possible occasion the truth of the plea is made highly improbable.
In State of Maharashtra v. Narsingrao Gangaram Pimple[96], the Supreme Court observed:
“It is well settled that the plea of ‘alibi’ must be proved with absolute certainty so as to completely exclude the possibility of the person concerned at the place of occurrence.”
In Munshi Prasad and others v. State of Bihar[97], it was held that the presence of accused at a distance of 400-500 yards from place of occurrence cannot be said to be presence elsewhere.
In Bhargavan v. State of Kerala[98], the Court state that plea that the accused was hospitalized at the time of the occurrence, not accepted because there was not evidence of presence in the hospital.
In Narendra Singh v. State of M.P.[99], the Court held that burden of proof lies on he accused person.
In Brijlala Pd. Sinha v. State of Bihar[100], the accused having failed to prove that he was present at another place the Supreme Court there is not an iota of material available on record to establish the plea of alibi.
TOPIC 6
ADMISSION
According to S.17 of the Indian Evidence Act, “an admission is a statement oral or documentary or contained in electronic form, which suggests any inference as to any facts in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.
The section points to three things. It first defines “admission”. Secondly the section says that an admission will be relevant only if it is made by any of the persons specified in the Act. The list is to be found in S. 18. Thirdly the section says that it will be relevant only in the circumstances mentioned in Ss. 18 - 30
From the definition the essentials of an admission can be stated as follows:
1) It is a statement
2) It may be either oral or documentary or in electronic form.
3) It should suggest an inference as to the fact in issue or relevant fact.
4) It may be one of the persons mentioned in the Act (sections 18,19,20).
5) It is to be made under circumstances provided in the Act (sections 20-23).
Illustration
Suppose a person is sued for the recovery of a loan and there is an entry in his account books recording the fact of the loan. That is an admission on his part of his liability. If he makes any statement to the effect that he “does owe the money”, that will also be an admission being a direct acknowledgement of liability.
Its use
It will dispense with the necessity of any further proof of the fact of the loan.
In Basanth Singh v. Janky Singh[101], the court held that admission made by party in a plaint may be used as evidence against him in other suits. But this admission cannot be regarded as conclusive, provided that admission must be self-harming.
What is the Extent of an Admission Statement
It will be sufficient if the statement admits a fact, which suggests an inference as to his liability.
Illustration
A person is charged with causing death by poisoning and he admits to have purchased poison. This statement suggests the inference that he is guilty of murder unless he can prove that he needed the poison for some innocent purpose.
In Arun Balakrishnan Iyer & Anr. v. M/s Soni Hospital & Ors.[102] the Court held that photographs without negatives are inadmissible in evidence.
Persons whose Admissions are Relevant
S.18 lays down the list of persons whose admissions constituted evidence against a party.
1) Party to the proceeding.
2) Agent of the party, if he had express or implied authority to make admissions.
E.g. admission by counsel
3) Parties who are suing or sued in a representative character and such party were holding such character while making the admission.
E.g. a guardian, a trustee, a receiver etc
4) Persons who have any proprietary or pecuniary interest in the subject matter of the proceeding. In such cases the statement must be made while holding such interest.
E.g. partners
5) Persons from whom the parties to the suit have derived their interest in the subject matter of the suit provided the statement is made while holding such interest. E.g. one from whom property is inherited. One, who has sold the property to the present holder.
6) Admission by persons whose position or liability must be proved as against party to the suit.[103] It is necessary that such statements would be relevant as against such person in relation to such position or liability in the suit brought by or against them. Such statement should be made while the person occupying such position or is subject to such liability.
Illustration
Suppose 'A' undertakes to collect rents for 'B'. 'B' sues 'A' for not collecting rent due from 'C' to 'B'. 'A' denies that rent was due from 'C' to 'B'. The statement by 'C' that he owed 'B' rent is an admission, and is a relevant fact as against 'A'. If 'A' denies that, 'C' did owe rent to 'B'.
E.g. when the question is whether a horse sold by A to B is sound and A says to B “Go and ask C, C knows all about the horse”. C’s statement is an admission.
Nature
Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions of the Act.[105] The effect of the provision is that admission as such cannot be taken as conclusive proof though it amounts to relevant evidence.
Admission must relate to the subject matter of the suit and in clear and unambiguous terms. Normally it is to be against the interest of the maker except when it expressly provided for in S.21.
Exceptions[106]
An admission may be proved by or on behalf of the person making it, if it is of such a nature that if the person making it were dead, it would be relevant as between third persons.
An admission may be proved by or on behalf of the person making it when it consists of a statement of the existence of any state of mind or body and is accompanied by conduct rendering its falsehood improbable.
An admission may be proved by or on behalf of the person when making it is relevant otherwise than as an admission.
S.22A of the Act provides that an oral admissions as to the contents of electronic records are not relevant unless the genuineness of the record produced is in question.
S. 30: It is admissible against the co-accused.
Admission of Law
In Jagwant Singh v. Sitan Singh[107], it was held that admission of fact is a proof against the party making the admission but admission on a pure question of law is not binding on the maker. An admission on a point of law is not an admission of a “thing” so as to make the matter of estoppel.
In Kesar v. Bular[108], it was held that counsel’s admission on question of mixed law and fact are not binding in this case the lawyer of plaintiff made an admission to the effect that the parties were governed by custom under which a mother could have alienated the property of her minor son’s for their benefit. This was held not binding because it was a pure question of law or at least a mixed question of law and fact.
In Society Belge De Benque v. Girdhari Lal[109], it was held that the admissions of law by a counsel are not binding on a court and the court is not precluded from deciding the rights of the parties on a true view of the law. Under the English Law admission of law is relevant.
Admission is substantive evidence.
If in a civil suit a party produces documents containing admissions by his opponent, which documents are admitted by the opponent’s counsel and the opponents enters the witness-box it is not obligatory on the party producing those documents to draw in cross-examination the attention of the opponent to the said admissions, before he be permitted to use them for the purpose of contradicting the opponent, provided that the admissions are clear and unambiguous but where the statements relied on as admissions are ambiguous or vague, it is obligatory on the opponent to the said statement before he can be permitted to use them for purpose of contradicting the evidence on oath of the opponent.[110]
In Bharat Singh v. Bhagirathi[111], the Court found that admissions are the substantive evidence by themselves, though they are not conclusive proof of the matters admitted. The admissions duly proved are admissible in evidence irrespective of whether the party making them appeared in the witness box or not and whether such party when appearing as a witness was confronted with those statements, in case, he made a contradictory statement. But the admissions must be clear, if they are to be used against the persons making them.
In Sita Ram v. Satanee Prasad[112], it was held that admission is not admissible against a person other than the person making it unless such person can be said to be bound by such admission.
TOPIC 7
CONFESSION
Confession forms the strongest evidence in a criminal case. The word ‘confession’ is not defined in the Evidence Act. It is an admission made by an accused stating or suggesting the inference that he committed a crime (Stephen). The Privy Council had stated that confession means a voluntary acknowledgement of guilt. But a statement containing self-exculpatory matters is not confession. In India, in order to constitute a confession, it is not sufficient if the statement “suggest the inference of guilt”.
E.g.: - Mr. X made the following statement before the Trivandrum Magistrate. “I have killed Mr. C” This is a confession.
Classification
Confession is classified in to two; (a) judicial confession; and (b) extra judicial confession
(a) Judicial Confessions
It is a confession made before a judicial officer. It has the strongest evidence value. It should be recorded by the judicial officer in the manner mentioned in the Criminal Procedure Code (S.164)
(b) Extra Judicial Confession
It is a confession made to any person other than a judicial officer. The S.C pointed out that an extra judicial confession must be proved by independent evidence.
In Baldev Raj v. State of Haryana[113], the court held that an extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of witness to whom it is made. The court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance is given. It is for the Court having regard to the credibility of the witness to accept the evidence or not. When the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary.
Culpatory and Exculpatory
It may be noted that the confession statement must be culpatory in nature. Only the culpatory part is treated as a confession. The exculpatory part is not admissible as a confession.
E.g. Mr. X said before the Magistrate of Trivandrum, “ I have killed Sivayya and the dagger is hidden in a well”
In the above statement,” I have killed Sivayya” alone is treated as confession. The remaining part of the sentence is not a confession because it is exculpatory in nature.
In Palvinder Kaur v. State of Punjab (1952), Smt. Kaur was charged for the murder of her husband, Jayapal Singh by poisoning. She made the following statement:
"I and Jayapal Singh lived at a flat in Punjab. My husband was very much fond of hunting. Whatever he receives from such hunting, he used to colour it. He had a collection of coloured animal’s skins and horns. In our house there was an almirah in which poisonous chemicals for colouring were also kept. One day my husband after hunting told me that he was not feeling well. He asked me to take a bottle from that almirah. I took a bottle and gave it to him. He consumed it and within no time I came out here. I removed his dead body into another room for three days. On the fourth day, one Mahindra Pal came. I told to him what had happened. Mahindra Pal removed the dead body, packed in a suitcase. Mahindra Pal removed that suitcase into the jeep. Mahindra Pal drove the jeep. I sat near him. Mahindra Pal put the dead body into a well. I made a slight push.”
The S.C held that the entire statement read as a whole is only exculpatory in character. It does not suggest or prove the commission of an offence. (However, she was convicted with the help of other evidence.)
Rules Relating to Confession
Confession must be voluntarily made. If it is involuntarily made, that confession is not valid and admissible. According to S 24 if the confession is made as a result of threat, promise or inducement, such confession is not valid. The reason is to prevent the police torturing the accused.
In Murari v. Om Prem (1881), the court held that confession obtained by spiritual extortion is valid and admissible. A merely moral extortion to tell the truth is not objectionable.
In Satbeer Singh v. Punjab[114], a police officer read over to the accused a statement, which had been taken from others and then told to him, “I know the whole thing now”. The accused then made a statement before the Magistrate. The S.C held that it was a valid confession.
In Emperor v. Mohammed Shaw and Raghavan v. State, the accused made a confession to the doctor. The police officer stood outside the room. The court held that it is admissible as an extra judicial confession and there is no possibility of threat, promise or inducement.
In Wild’s case (1888), the accused, after committing a murder ran towards a church and saw a priest inside the church. The priest said, “now kneel you down, I am going to ask you a very serious question and I hope you will tell me the truth, in the presence of the Almighty.”
In Parmananda Pegu v. State of Assam[115] the Court held that confession must be free from threat, duress or inducement at the time of making the confession. On the evidence and the circumstances in a particular case the Court should be satisfied that there was not threat, inducement or promise, though the said fact is not strictly proved. As a rule of prudence Court should look to corroboration from other evidence. The Court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true.
In Amrush Barla v. State of Orissa[116] the Court held that confession means admission of crime by the accused charged with a crime. Such confession is an evidence against the maker of it.
In Kamala Muniratnam & Anr. v. State of A.P.[117] the Court held that confession of co-accused cannot be treated as substantive evidence. It can only be used to lend assurance to the other independent evidence sufficient for sustaining a conviction.
In Mary Mathew v. State of Kerala[118], the Court held that conviction can be based on extra judicial confession if it is made voluntarily and truthfully to a trustworthy unbiased person. Extra judicial confession is to be relied on as against an accused must be clear, unambiguous and unmistakably conveyed that accused had committed the crime.
In Kamala Muniratnam & Anr. v. State of A.P.[119], the Court held that the value of extra judicial confession depends upon the reliability of the person to whom it is made, interval between the occurrence and the confession, reproduction of the exact words of the person making confession to the crime, and the follow up action which the person to whom the confession made.
In Nachika Deruku v. State of Orissa[120], the Court held that an extra judicial confession cannot be called a weak piece of evidence if it withstands the tests: (i) Is the witness proving the confession generally credible? (ii) Is his relation with the accused of such nature that the latter could confide in him? (iii) Is there any motive for the witness to implicate the accused falsely (the witness might be trying to save himself or some one else by laying the blame on the accused)? and (iv) Is the confessional statement consistent with other facts and circumstances brought on record?
The accused then narrated the whole event in question and answer type. The court held that it was an extra judicial confession and admissible.
According to S. 28 if the threat, inducement or promise is fully removed before recording the confession then the judicial officer is fully justified in recording to the confession, that confession is valid. (If the accused is not willing to make the confession the Magistrate must pass an order for his judicial custody only.)
A confession made to a police officer is not valid. S.25 says that no confession made to a police officer shall be proved as against a person accused of any offence. A customs officer is not a police officer within this meaning while an excise officer is a police officer.[121]
In State of Punjab v. Barkatram (1962), the S.C held that a customs officer is not a police officer and therefore the statement is admissible.
In Emperor v. Hira Gober, Mr. P was accused for the murder of a girl and he gave the knife to the police officer and confessed the crime. This is inadmissible because it is made to a police officer.
Confession under Inducement, Threat, etc[122]
The confession should be made voluntarily and it should be free from inducement, threat, promise, deception, cheating, etc. Thus confession is invalid in the following circumstances:
(i) Under the promise of secrecy.
(ii) Inducement in consequence of a deception practiced on the accused. For e.g., 'A' writes a letter to his father. B, instead of giving the letter to A's father, gives it to the police or court. Then it is a valid confession.
(iii) If the accused is in a drunken state, it is valid.
(iv) If the accused confesses in answer to a question, which he need not answer, it is valid.
(v) Failure to warn the accused that he is not bound to make a confession does not make the confession invalid.
(vi) If the inducement is made to one accused and confession is made by another accused, then it is valid.
In C.K.Raveendran v. State of Kerala[123], it was held that a confession made by a person at an arrack shop after consuming some liquor to another person who, being otherwise stranger, dropped in there by chance at that very time is not reliable.
In State of A. P. v. Shaik Mazhar[124], where the prosecution witness to whom a confession was supposed to have been made was produced before the magistrate after a gap of one month for recording the confession made to him, the Supreme Court ruled that the confession had lost its reliability because of the gap.
In State of Tamil Nadu v. Kutty[125], it was held that confession was made by him while in judicial custody and, therefore, chances of victimization were ruled out.
In Basani v. State of H.P.[126], the court state that the confession of an accused person made outside the court (extra-judicial) implicating himself and his co-accused cannot be used against the co-accused.
Recovery[127]
S.27 of the Evidence Act deals with the recovery of some material objects. S.27 is in the nature of a proviso, which speaks the recovery of some material objects relevant to the case.
It contains the following elements.
1. The accused must be in custody.
2. While in custody the accused conveyed the information or confession to the police.
3. On the basis of that information police recovered some material objects.
4. The material objects must be relevant to the case.
Statement can be used only for proving the recovery and not for proving the guilt.
Illustration
Mr. A, an accused said to the police, “I had killed Sivayya and the dagger used for the crime was hidden in a well. This statement cannot be treated as a confession because it was made to a police officer. But if the dagger was recovered from the well pointed out by the accused then that information is relevant for recovery only. The guilt must be independently proved.
The object of the section is only to find out the material object and not to prove the guilt. The S.C in Jaffer Hussain’s case ruled that the recovery must be relevant to the case.
Case Laws
In Pulukuri Kotayyaand Others. v. Emperor[128], Privy Council, the accused in number were charged for the offence of rioting and murder. They were arrested by the police Mr.P gave the following statement to the police.
“About fourteen days ago I and my people waited for Sivayya. We all beat Sivayya and Subbayya to death. Ramayya had a spear in his hand. He gave it to me. I have killed Sivayya with that spear and it was hidden in a well”.
The above statement cannot be treated as a confession because it was made to the police. The spear was recovered on the basis of the information conveyed by the accused. So the statement can be used only for the recovery of the spear and not further.
In State of U.P v. Demon Upadhyaya[129], the accused slapped at his wife’s face and threatened to kill her. On the next day early morning she was found dead on her bed with number of wounds. A pool of blood was found below the cot. The husband was found missing on that day. Subsequently he was arrested and the blood stained dresses and the ornaments were recovered from a well pointed out by the accused. The recovery was held valid.
In Prithviraj v. State of Rajasthan[130], it was observed that the following are the conditions or requirements for application of section 27 of the Indian Evidence Act:
1. The fact must have been discovered in consequences of the information received from the accused;
2. The person giving the information must be accused of an offence;
3. He must be in custody of the police officer;
4. Only that portion of the information which relates strictly to discovery can be proved. The rest is irrelevant;
5. The discovery of fact must relate to the commission of some crime; and
6. Before the statement is proved somebody must depose that some article was discovered in consequences of the information received from the accused.
In Sanay v. State of (NCT of Delhi)[131], the brother of the deceased was taken as a witness to the process of recovery. The Court said that he served the purpose of an independent witness. The articles were identified by the daughter of the deceased. That was also held to be the most natural evidence.
In State of NMT Joy Immaculate[132], confession statements made in police custody led to recovery of incriminating articles. The Court said that such evidence could not be excluded on the ground that the statement was obtained while the accused was under an illegal order of remand to police custody.
In State of Maharashtra v. Damu Gopinath Shinde[133], where one of the articles connected with the murder was discovered lying in tall grass and others were found to be burried there, the Supreme Court held that they were out of the visibility of others in normal circumstances and were, therefore, relevant under S. 27.
In State of M.P. through C.B.I etc. v. Paltan Mallah & Ors. etc.[134], the weapon was recovered at the instance of accused and the accused was specifically saying that he concealed the weapon himself. The Court held such a recovery to be admissible in evidence.
Constitutional Validity of S.27
In Kathi Kalu Oghad v. State of Bombay[135], the S.C held that S.27 of the Evidence Act is constitutionally valid under Art.20. Therefore the recovered materials, identification parades, specimen of hand writing etc. can be used as a piece of evidence against the accused.
Distinguish Confession and Admission
Confession Admission
1. Confession is a statement made by an Admission is a
accused person. statement made by
any person other
than the accused
2. It is culpatory It is exculpatory
3. Confession will be used against the maker Admission will not be
(deponent ) and not against the other party. used against maker and
other party
4. Confession is adopted in criminal case only Admission is followed in
civil cases
5. Confession if it is not voluntary is not admissible All admissions are
voluntary made
6. It can be retracted It cannot be retracted
7. It relates to a guilt committed by the It relates to a fault
accused
Retracted Confession
S 29 deals with certain facts affecting the validity of the confession retracted during the trial.
Example
Mr. X made a confession before a judicial officer, during the trial confession was retracted. Then the duty of the court is to find out the corroboration from the prosecution. Any how retracted confession must be viewed with caution.
Generally, when a confession is retracted it must be viewed with caution or suspicion. This does not mean that the entire retracted confession is to be rejected.
In Magsupare v. State Maharashtra (1985), the S.C held that a conviction based upon the retracted confession is not illegal. Provided there were material corroboration. But if there is no material corroboration it must be rejected.
Subrahmanya Goundan v. State of Madras[136], a leading case on retracted confession. The accused was charged for the murder of one Mariappa Goundan by cutting his neck with a knife and in course of same transaction committed another murder by stabbing the victim with a spear. He made a confession before the Magistrate.
At the trial (Sessions court) the confession was retracted. The trial court held him guilty because of the corroboration from other independent witness. He was sentenced to death. The High Court confirmed the sentence.
Before the S.C the only question was whether the retracted confession for the basis of conviction. The S.C held that there was ample independent evidence for the double murder. In the result, the death sentence was confirmed.
Guidelines to be followed
The S.C in State of U.P. v. Boota Singh[137], stated some guidelines to be followed while considering a retracted confession ;
1. Substantial corroboration is necessary -
2. Detailed and minute corroboration is not necessary -
3.Confession is not voluntary merely because it was not a retracted –
In Shankar Bhansode v. State of Maharashtra[138], the Court held that a retracted confession, though a piece of evidence on which reliance can be place, has to be corroborated by independent evidence.
Confession of a Co-Accused[139]
S. 30 of Indian Evidence Act deals with the evidentiary value of confession of a co-accused. When two or more persons are jointly tried for an offence they are called co-accused. In joint offences or conspiracy cases, the confession of a co- accused can be used as evidence against the other accused persons. But the general rule is that the evidence of the co-accused should not be considered because such evidence is tainted, as he was collaborator in the commission of the crime.
In Hardeep Singh Sohal v. State of Punjab[140], the court state that extra judicial confession made by a person who was not tried with the accused, was not admissible under the section.
In Sasi v. State of Karnataka[141], the court held that the confession of a co – accused can be used only for corroborate purposes but not as a substantive evidence.
Conditions Applicable to the Confession of a Co- Accused
1. It must be a joint offence in which the accused and co accused should have participated.
2. The joint trial must be for the same offence. But the co -accused may be charged for abatement of attempt.
3. The confession of the co-accused must affect himself and the other co-accused persons. The confessor cannot clear himself at the expense of the co- accused.
4. The evidentiary value of the confession of the co-accused is very weak. Hence the judgment should not be rested mainly on the confession of the co-accused. So circumstantial evidence and other direct and indirect evidence must corroborate it.
Accomplice Evidence (Sec. 133)
An accomplice is a person who is a conscious and active participant of a crime but later, becomes an approver by getting pardon from the court and he helps the prosecution in bringing out the true facts of the case. The practice of accomplice evidence helps the police to detect many crimes.
In Babu Lal Kahar v. State of Bihar[142], the Court held that accomplice means an associate in crime who is a competent witness against accused. A person who is under threat of death or other form of pressure cannot be considered a willing participant in crime and thus an accomplice.
Sec.137 of Criminal Procedure Code authorities the District Magistrate to grant pardon to an accused person and to allow him to become a witness against the co accused.
In M/s Ennen Castings (P) Ltd. v. M.M.Sundaresh[143], The Court held that the condition precedent for giving an opportunity to cross examine co-defendant is that there exists a conflict of interest between them and if there is no conflict of interest then such an opportunity need not be given.
In Daroga Singh & Ors. v. B.K.Pandey[144], The Court held that a party which fails to avail of the opportunity to cross-examine at the appropriate stage is precluded from taking the plea of non-observance of principles of natural justice at a later stage.
In M/s Ennen Castings (P) Ltd. v. M.M.Sundaresh[145], The Court held that cross examination by co-defendant can be allowed when rights of co-defendant are in conflict.
In Subhash Chandra v. The State of Rajasthan[146], The Court held that re-examination is done with the object of reconciling any discrepancies that may exist between examination-in-chief and cross-examination or for the purpose of removing or diminishing any suspicion that the cross-examination may have cast on the evidence in-chief or to enable the witness to state the whole truth as to matters which have only been partially dealt with in cross-examination.
The evidentiary value of accomplice is weak. However conviction can be based purely on the basis of accomplice evidence.[147]
The accomplice evidence must be accepted with caution because he may transfer the crime to other co-accused persons.[148] He may also give false evidence and favour the prosecution of other co-accused persons.
In Kashmira Singh v. State of M.P[149], the Supreme Court held that if the judge has taken great caution, then he can convict the co- accused purely on the basis of accomplice evidence.
The differences between accomplice evidence and confession of co- accused are as follows:
1. The accomplice gives evidence on oath. But co- accused does not give confession on oath.
2. Accomplice evidence is given before court but confession of co- accused may be before any person except police.
3. Accomplice evidence can be tested by cross- examination where as confession of co-accused cannot be tested by cross- examination.
4.Conviction can be based purely on accomplice evidence but there can be no conviction on the basis of the confession of the co- accused.
In K. Hashim v. State of T.N.[150], the Court held that corroboration in material particulars means that there should be some additional or independent evidence (i) rendering it probable that the story revealed by the accomplice is true and that it is reasonably safe to act upon it; (ii) identifying the accused as one of those, or among those, who committed the offence; (iii) showing the circumstantial evidence of his connection with the crime, though it may not be direct evidence; and (iv) ordinarily the testimony of one accomplice should not be sufficient to corroborate that of the other.
DYING DECLARATION (S. 32)
S.32 (1) of the Indian Evidence Act deals with dying declaration. It is a declaration or a statement made by a person stating the cause of his death.
Example
Mr.A says, “I was stabbed by Mr. X “ and dies, This is a dying declaration and is admissible S.32 (1) is based upon the Latin Maxim “Nemo mortitures mentri” which means that a dying man will never lie.
A dying declaration is given highest probative value and the court of law can convict the accused solely based upon this evidence. In other words, a dying declaration is considered to be highly sacramental and is the strongest evidence for convicting the accused.
The admissibility of Sec. 32 is based on the maxim: nemo moriturus praesumntur mentire which means, a person who is about to die would not lie. It is said that truth sits on the lips of a person who is about to die.The following are the conditions to be fulfilled before admitting such evidence
1. There must be a statement (it must be either made orally or in writing);
2. The statement must contain the reason for his death or who caused the injury or it must relate to the circumstances, which resulted in his death;
3. The person making declaration must die. If he survives that statement can be used for corroboration;
4. Such statement is relevant even though it is made immediately before the death.
5. Expectation of death is irrelevant.
In R. v. Woodcack[151], Eyere J. says: “Dying declarations are statements made in extremity when the person is at the point of death; when every motive for falsehood is silenced and when every hope of this world is gone and when his mind is induced by the most powerful spiritual considerations to speak the truth”.
In Pakkala Narayana Swamy v. Empror [152], Mr. 'K' received a letter from ‘P’ asking him to come to Berhampur for collecting some money. The letter was unsigned. Before his departure to Berhampur, Mr. K had told to his wife “Madam I am going to Berhampur to collect the money” Mr. K was visibly happy when he told these words to his wife.
On the fourth day the dismembered body of Mr. K was found in a suitcase inside the third-class compartment of the Puri express. It was declared as an unclaimed suitcase. The Puri railway stationmaster transferred the suitcase to the local police. After a through investigation Mr. Pakkala Narayana Swamy was arrested and charged for the offence of the murder under S.302 of the IPC.
The only question was whether the statement made by the victim to his wife amounted to dying declaration. It was held that it could be treated as a dying declaration because the statement “related to the circumstance which resulted in his death” This case is an important one for the proposition that it was not necessary that at the time of making the statement he must expect his death.
In Sunil Kumar Arjun Das Gupta v. State of M.P.[153] a girl was raped and she committed suicide within an hour of this incident. Prosecutrix narrated the incident to her mother. The Court held that the statement of victim is admissible. S.32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death. Conviction u/s 306 and 376 IPC was upheld.
In Queen Empress v. Abdulla, the question arose whether signs and gestures could be admitted under the section 32(1). In this case Abdulla was charged with the murder of Dulani, whose throat was cut open by him using a razor. She was unable to speak and therefore several names were recited to her to identify the culprit. She nodded and said “hmm” in a very low voice when Abdulla’s name was mentioned. She pointed to the sky, when asked how she had seen him, to indicate it was morning. These signs were held admissible by the court under the section.
Criticism
It is true that dying declaration is a strong evidence to convict a person, but the S.C made a warning to the liberal admissibility of the dying declaration. The court has to see whether corroboration is available. The following are criticism against the admissibility of such evidence.
1.The victim must be shown in a sound state of health at the time of making the statement
2.The statement must be made in the earliest point of time.
3.The major defect of a dying declaration is that it cannot be cross-examined. Therefore each case must be determined on its own facts keeping in view of all the circumstances.
Case Laws on Dying Declaration
In Kushal Rao v. State of Bombay[154], the Supreme court ruled that the dying declaration is the strongest evidence and it can be relied for convicting the accused. In this case Supreme Court further ruled that a dying declaration recorded by a Magistrate in the form of question and answer stands in a higher footing provided it must be recorded in the words used by the victim.
In Shaw and Others v. State of Gujarath (1971 S.C), the victim made more than one statement. The prosecution case was that the victim’s husband sprinkled kerosene oil on her body and lit the body with the help of his cigarette lighter. While she was taken to the hospital she cried and said “the devil killed me”. In the hospital she cried and said, “my husband killed me” The S.C held that both statements convey the same meaning and same person. Moreover the victim was in fit state of mind.
In Moti Singh v. State of U.P[155], the victim received two gunshot wound. The victim made a statement in a clear manner and implicating the accused. The victim died twenty days after making the statement. The S.C held the statement is admissible. It is necessary that the declaration must contain reason for the act.
In Habeeb Usman v.State of Gujarat, the victim first said, "Save me somebody stabbed me". After this admission, in the hospital he made a detailed statement clearly naming the accused. The declaration was held as admissible.
Thus in India a dying declaration is treated as a strongest piece of evidence to convict the accused. It is based upon necessity. Anyway, the court must consider the corroboration also. Even if there is no corroboration the court can convict the accused solely based upon the dying declaration.
In Manna Raja v. State of M.P[156], it was held that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated.
In Vithal SomnathKore v. Stateof Maharashtra,[157] it was held that a dying declaration if believed by the Court, is sufficient to sustain a conviction.
In Lallubhai Devchand Shah v. State of Gujarat[158], it was held that if the truthfulness of a dying declaration is accepted, it can always form the basis of conviction of the accused.
In Kake Singh v. State of M.P[159], where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it was rejected.
In State of Maharashtra v. Krishnamurti Laxmipati Naidu[160], the court held that a rejection should not be merely because a dying declaration does not contain the details as to the occurrence, it is not be rejected.
In Najjam Faraghi v. state of W.B,[161] it was held that dying declaration would not lose its value on the ground that the deceased survived long after making dying declaration.
In State of Rajasthan v. Teja Ram[162], the victim sustained a brain injury. His brain function was impaired. Held dying declaration made by him cannot be re lied on.
In State of A.P v. Shaik Moin[163], it was held that where dying declarations made to a neighbour, Sub Inspector, Doctor and Magistrate, there being direct conflict in regard to the role played by the accused, the benefit of doubt should go to the accused.
In State by Circle Police Inspector, Ranebennur v. Basavaraj & Anr.[164] the Court held that where evidentiary value of dying declaration has been watered down considerably, in absence of any other evidence to corroborate it, such dying declaration cannot be made sole basis of conviction.
In State v. Mallesha[165] dying declaration of the victim was recorded by police constable 12 days before death. There was no certificate from doctor regarding condition of patient to make such declaration and no explanation was given as to why declaration in form required under law could not be obtained. The Court held that such dying declaration cannot be relied upon.
In P.V. Radhakrishna v. State of Karnataka[166] the Court held that if the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make a dying declaration then such dying declaration will not be invalid solely on the ground that it is not certified by the doctor as to the condition of the declarant to make the dying declaration.
Evidentiary Value of Dying Declaration
1. It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated.
2. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.
3.It cannot be laid down as a general proposition that a dying declaration is weaker kind of evidence.
4. A dying declaration stands on the same footing as another piece of evidence, and has to be judged in the light of surrounding circumstances and with reference to the principles, governing the weighing of evidence.
5. A dying declaration, which is recorded by a magistrate in proper manner, stands on higher footing than a dying declaration, which depends upon oral testing, having all infirmities of human character.
6. Following circumstances must be kept in view:
Difference between Indian and English law
Under the English law:-
(1) the declarant must have been in actual danger of immediate death at the time of making the declaration.
(2) must have been fully aware of his danger of death and
(3) must have died.
But, under the Indian law, a dying declaration is admissible whether the person making the declaration was, or was not, at the time when it was made under expectation of death. So a statement made by a deceased as to the cause of his death is admissible in evidence even though he was not under apprehension of death when he made it.
Under the Indian law a dying declaration is admissible in civil as well as in criminal cases in which the declarant's death comes into question but under the English law, the deceased is the subject of the charge and the circumstances to death are the subject of declaration.
Incomplete Dying Declaration
In Cyril Waugh v. King[167], the Court held that a dying declaration is inadmissible in evidence if it is incomplete. When the condition of the deceased had become grave and at his own request a statement made by him in the presence of the doctor was taken by the police but it could not be completed as he fell into coma from which he could not recover, dying declaration is inadmissible because on its face it is incomplete and no one can say what the deceased was about to add.
In State of Karnataka v. Shariff[168], the Court held that a statement recorded in the narrative may be more natural because it may give the version of the incident as perceived by the victim.
In State of Maharashtra v. Sanjay[169], the Court observed that it is not plurality of dying declarations that adds weight to be prosecution case but their qualitative worth. Dying declaration should be such as to inspire full confidence.
RELEVANCY OF JUDGMENTS
Relevancy of judgments of courts of justice is discussed in Ss 40 to 44 of the Indian Evidence Act. S.43 of the Act provides that judgments, orders or decrees of courts of law are irrelevant in subsequent proceedings. However in the subsequent proceeding if the existence of such judgment order or decree is a fact in issue, then it will be relevant. So evidence can be given of judgment when the existence of the judgment itself is a fact in issue.
Example
X prosecutes Y for adultery with his wife Z. Though Y denies that Z is X's wife, the court convicts 'Y'. Later Z married Y during X's lifetime and X prosecuted Z for bigamy. Z defended the case by asserting that she was never the wife of X. Here the earlier judgment against Y is irrelevant as against Z.
According to S.40 of the Act a judgment, which has the effect of res jusdicata is relevant in every case in which the res judicata is pleaded. S. 40 of the Evidence Act, which prevents the Court from holding a second trial in respect of the same offence, is also in accordance with the maxim: nemodebetbisve-xari pro una et eadem causa, which means that no man shall be vexed twice for one and the same cause.
Examples
1. X filed a suit against Y for recovery of possession of some immovable property from Y. The court passed a judgment and decree allowing the claim of X. Later Y filed a suit against X claiming the same property. The second suit is barred by S.11 of the Code of Civil Procedure. In the subsequent suit the previous judgment will be relevant.
2. X is charged for rape .The court acquitted him on the ground that there was no rape since the lady had consented. Later X is prosecuted for the very same offence of rape on the ground that the victim was below sixteen years of age. In the second case the previous acquittal order of the court is relevant because if a person has been tried once for an offence and either convicted or acquitted of it, he cannot be tried again for the same offence.
In P. G. Eshwarappa v. M. Rudrappa[170], the Supreme Court held that principles of estoppel or res judicata do not apply when they would contravene some statutory direction or prohibition. This is something which cannot be overridden or defeated by a previous judgment between the parties.
According to S.41 of the Act, a judgment in rem is relevant evidence for and against all persons of the matter actually decided. A judgment in rem is a kind of declaration about the status of a person and is effective against everybody whether he was a party to the proceedings or not. A judgment in personam means a judgment between parties. Such a judgment binds only the parties to the suit and not relevant in any other proceedings.
Example
A judgment declaring a person to be insolvent in a case is a judgment in rem.
A judgment in a case relating to tortuous liability or in a case relating to breach of contract is a judgment in personam
In Crystal Developers v. Asha Latha Ghose[171], the Court observed that the grant of probate cannot be set-aside on the ground of fraud or collusion unless the party alleging it proves it to be satisfaction of the Court.
According to S.42 of the act judgments are relevant if they relate to matters of public nature.
Example
X sues Y for committing trespass on his land. Y justifies the action the ground that he has a public right of way over the land. X denies the claim of Y. Suppose in an earlier suit between X and Z relating to trespass Z had alleged that there is a public way over X's land and the court passed a judgment allowing the claim of Z. The previous judgment is relevant in the present case.
According to S.44 of the Act, even though a judgment is relevant the validity of judgment can be challenged on the grounds of fraud or collusion in obtaining judgment or incompetency of the court, which passes the judgment.
In Asharfi Lal v. Koili[172], the Court held that a judgment can be so attacked in any proceeding in which the judgment is cited and a separate suit for the purpose is not necessary.
Section 29 of the Act deals with certain factors which will not make a confession irrelevant, provided it is otherwise relevant. They are:
TOPIC 10
RELEVANCY OF OPINION OF THIRD PERSON
(EXPERT OPINION)(Ss.45-51)
Introduction
The general rule is that the opinions of third parties are irrelevant. The court is not interested in any one’s opinion, however expert and eminent he may be. The courts rely on facts and it forms its own opinion of such facts. But in some instances, the court’s knowledge is insufficient to form an opinion from the proved facts. At such times, the Court has to depend on the opinion of experts.
Expert means person who are especially skilled in a particular field like foreign law, science, art identity of handwriting, fingerprints, etc,
Relevance of Opinion
Even though expert evidence is relevant, it is very weak evidence; experts may support the opposite view of the Judges.
.
Statements made under Special Circumstances (Ss. 34 to 39)
The following statements become relevant,
i. Entries made in books of account, including those maintained in an electronic form regularly kept in the course of business (S.34)
In Ishwar Dass v. Sohan Lal[173], it was held that entries in account books regularly kept in the course of business are admissible though they by themselves cannot create any liability.
In Dharam Chand Joshi v. Satya Narayan Bazaz[174], it was held that unbound sheets of paper are not books of account and cannot be relied upon.
In N.Satyanarayana Raju v. Chekuri Gopalakrishnaraju[175], the Court held that entry in books of account by itself is not sufficient to charge any person with liability. It should be accompanied with some further evidence so as to establish the debt. It was made clear that an entry in ledger that a certain sum was paid to defendant is not by itself sufficient to establish the payment unless supported by any receipt or voucher to that effect.
ii. Entries made in any public or other official book, register, records or an electronic record made by a public servant in the discharge of his official duties. (S.35)
In Luis Caetano Viegan v. Esterline Mariana RMA. Da’Costa[176], it was held that regarding proof about legitimacy of child that the Birth Certificate proceeding on the basis of Baptism Certificate, containing fact that Baptism record was read and checked before the godparents and signed by person along with godparents, is valid. Thus, Birth Certificate proceeding on basis of Baptism Certificate, legally recognised legitimacy.
In Sushil Kumar v. Rakesh Kumar[177], the Court held that birth entries in School register is not of much evidentiary value as there was no reliable evidence to show that the date of birth was recorded in the school register was on the basis of the statement of any responsible person.
In Chitru Devi v. Ram Dei[178], Entry made in birth and death register, incorporated in register kept and maintained by competent authority is admissible in evidence.
iii. Statements made in published maps or charts for public sale or in maps or plans made under the authority of the Central Govt. or any State Govt. (S.36)
iv. Statement in certain Acts or notification. (S.37)
v. Statement as to any Foreign law contained in a book purporting to be printed or published by the Govt. of the foreign country and in any reports of ruling of the courts of that country (S.38)
When any statement given forms part of a longer statement, or conversation, or electronic record and the like, evidence shall be given of so much and no more. (S.39)
Judgments of Court of Justice (Ss.40 - 43 & 44)
Judgments, orders or decrees are irrelevant in the following cases.
i. Previous judgments are relevant to bar Res judicata (S.40)
However past criminal judgments (previous conviction, double jeopardy) are relevant in subsequent proceedings in view of sec. 300 of the Cr PC & Article 20 (2) of the constitution read with S.26 of the General Clauses Act.
ii. Matrimonial, or insolvency jurisdiction are relevant to prove the existence of any legal character or the title of any person. (S.41)
In M/s Sachdeva Rice Mills v. Smt.Raj Anand[179], the Court held that judgment given by a matrimonial Court is a judgment in rem and is binding on the whole world and the declaration given in such judgments conferring a status or taking it away is a conclusive proof of that legal character.
iii. Decrees relating to matters of a public nature are relevant to the enquiry but are not conclusive proof (S.42)
Illustrations
X sues Y for trespass on his land. Y alleges the existence of public right of way over the land, which X denies. The existence of decree in favour of the defendant in a suit by X against Z for a trespass on the same land, in which Z alleged the existence of the same right of way, is relevant but it is not conclusive proof that the right of way exists.
iv. Where the existence of a judgment order or decree is a fact in issue or in a relevant fact under some other provisions of the Evidence Act such judgment, order or decree become relevant.[180]
Illustrations
X is tried for the murder of Y. The fact that Y prosecuted X for libel and that X was convicted and sentenced is relevant under S.8 of evidence Act as showing the motive for the fact in issue.
S. 44 provides that any party to a suit or proceeding may show that any judgment, decree or order which is relevant under Ss.40, 41 or 42 and which has been proved by the adverse party was delivered by a court not competent to deliver it or that was obtained by fraud or collusion.
Section 45 provides for the admissibility of opinion of experts on a point of a) foreign law b) science c) art d) identify of hand writing e) finger impression.
Illustration
The question is, whether the death of A was caused by poison.
The opinion of experts as to symptoms produced by the poison by which A is supposed to have died is relevant.
In Lala Ram v. State of Rajasthan[181], the Court held that an expert opinion without reasons is not conclusive. Such opinion should be corroborated either by clear or by circumstantial evidence. But in cases where the opinion is very sound, it may be accepted without corroboration.
Section 46 provides for facts bearing upon opinion of experts. It says, "facts not otherwise relevant are relevant, if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
Illustration
The question is whether an obstruction to a harbour is caused by a certain seawall. The fact that other harbours similarly situated in other respects, but where there were no such sea walls began to be obstructed at about the same time is relevant.
Distinction between Expert and Ordinary witness
Different Types of Opinion
1. Opinion as to Hand Writing (S.47)
When the court has to form an opinion as to the signature or handwriting of a person, the opinion of anybody acquainted with his signature or handwriting will be relevant and admissible. A person shall been said to be acquainted with handwriting.
a. When he has seen that person write: or
b. When he has received some documents from the person as answer to documents; or
c. In the ordinary course of business the person habitually submits documents written to him.
Eg. The question is whether the writing is of X or not. X is a merchant in London; Y is a merchant in Calcutta. X used to write replies to Y .Z is Y’s clerk. He used to examine and file letters of X.
A is an agent of Y to whom Y used to send the letters of X purporting to have been written by X. Now the opinion of ‘Y’, ‘Z’, ’A’ on the question whether a particular document is in the handwriting of ‘X’ or not is relevant, though none of them have seen ‘X’ while actually writing.
In Lalit Popli v. Canara Bank & Ors.[182], the Court observed that opinion u/s 45 is by an expert by a scientific comparison whereas opinion u/s 47 is on the basis of familiarity resulting from frequent observations and experiences. In both cases Court is required to satisfy itself by such means as are open to conclude that opinion may be acted upon. Irrespective of such opinion Court can compare the admitted writing with disputed writing and can come to its own independent conclusion.
Modes of Proving Handwriting
1) Evidence of the writer.
2) By one who has seen the person writing.
3) By opinion of experts.
4) Opinion of witness having acquaintance.
5) Comparison by court with proven handwriting.
In Ram Narain v. State of U.P.[183], a child was kidnapped. The parent of the child received a hand written post card followed by an inland letter demanding Rs.1000/- and Rs.5000/- respectively as ransom for the child. The author of the letters was traced and handwriting expert testified that the letters were in the handwriting of the accused. Solely on the basis of this evidence the accused was convicted.
In Fakhruddin v. State of Madhya Pradesh[184], the Supreme Court observed that handwriting may be proved by the evidence of a witness in whose presence the writing was done and this would be direct evidence and if it is available the evidence of any other kind is rendered unnecessary.
Opinion as to digital signature (S.47 A)
When the court has to form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.
2. Opinion as to Custom or Right (S.48)
When the court has to form an opinion as to existence of any general custom, or right the opinion of persons who are likely to know of such existence of the custom or right is relevant.
Eg. the right of the villagers to use the water of a particular well is a general right. The opinion of an aged person living in the village for a long time is relevant.
3. Opinion as to Usage and Tenets (S.49)
When the court is of the opinion as to-
the usages, tenets of any body of men or family,
the constitution and govt. of religious or charitable foundation, or
the meaning of words or terms used in a particular district or by particular people,
are all relevant if their opinion is obtained from a person involved with such usages, endowments, words etc.
4. Opinion as to Relationship (S.50)
In forming an opinion as to relationship of persons, the opinion obtained from persons having special means of knowledge on such relationship are relevant.
Eg. ‘X’ and ‘Y’ were married. The fact that their friends treated them together as guests in husband and wife relationship is an admissible evidence to prove the marriage of ‘X’ and ‘Y’ .Now the opinion given by the friends is relevant.
But such opinion is not sufficient proof of relationship as husband and wife in divorce proceedings and offences under the IPC.
In Janak Singh v. State of U.P, the Supreme Court held that the Judge though a layman, in certain specified fields, must come to his own conclusion taking whatever assistance he can get from the opposite views expressed by experts.
In K. K. Thankappan v. K. S. Jayan[185], the Court held that there was no evidence of marriage expressed through conduct. The fact that a woman lived with a man till her death would not by itself confer upon her the status of a wife.
TOPIC 11
CHARACTER EVIDENCE
Character Evidence
Character consists of a combination of many elements, which creates personality and integrity. It has some connection with his profession.
Civil Cases (S.52)
In a civil case the duty of the court is to find out the right and not find out the character. That is in civil cases character is irrelevant. Example Mr. X filed a suit to get his share from the tharaward property. The duty of the court is to find out the legal right of Mr. X to get the share. The court need not consider the character of Mr. X.
However, there are certain exceptions to this.
They are:
1. Appearing in other relevant evidence.
Character becomes relevant when it appears from facts otherwise relevant
In Scott v. Sampson[186], the Court held that a journalist is described as an exploiter and he sues for damages for defamation and if the defendant takes the defence that whatever he was said is true, he will have to leave evidence to prove the exploitation which the plaintiff has been practicing. Such evidence will also bring to light the real character of the plaintiff and the court can take not this.
2. As affecting damages.[187]
In the case of defamation the court can consider the greater amount of compensation because of his character. In the case of a lady plaintiff, her character becomes relevant for fixing the quantum of compensation.
3. When character is in issue.
Criminal Cases (Ss. 53 & 54)
In criminal cases, the fact that the accused person is a man of good character, is a relevant one (S.53)
S.54 of the Act deals with rules relating to the evidence of previous bad character. In a criminal case evidence of previous bad character is not allowed for be produced by the prosecution for the first time. But if the accused is claiming to be a man of good character then prosecution is allowed to adduce evidence of previous bad character. In other words previous conviction is a good evidence for previous bad character.
In Bhagavan Swaroop v State of Maharashtra[188], Mr. X was a senior politician and a freedom fighter. He had undergone sentence in the same cell along with Nehru and others, in the struggle for independence. After independence Mr. X continued his political activities. Mr. X was charged for the criminal misappropriation of public funds. In this case top political leaders like Jawaharlal Nehru gave evidence for proving the fact that the accused was a man of good character. But the court rejected Nehru’s evidence on character .The court convicted the accused. The S.C. said, ”Character evidence is a very weak evidence in regard to the guilt of the accused".
In Prithvi Singh v. State of U.P.[189], the Court held that the evidence of bad character of accused cannot be adduced unless the accused leads the evidence of good character. Anyhow this prohibition does not apply in a case where bad character of any person is itself in issue.
Character of Witnesses
The general rule is that witness's character is relevant. According to S.146 of the Act, in the cross examination of a witness, any questions may be asked which tends -
1. to test his veracity;
2. to discover who he is and what is his position in life ;or
3. to shake his credit by injuring his character.
Similarly the reliability of the witness is highly relevant. S.153 says that, "when a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him, but, if he answers falsely, he may afterwards be charged with giving false evidence." Hence it can be concluded that the character of witnesses is highly relevant both in civil cases as well as criminal cases.
TOPIC 12
FACTS WHICH NEED NOT BE PROVED
The general rule is that every fact in issue and relevant facts are to be proved either by oral evidence or documentary evidence. However there are three exceptions to this general rule. They are the following:
1. Judicial Notice (Ss. 56 & 57)
By virtue of S. 56 of the Indian Evidence Act the facts of which the court will take judicial notice need not be proved.
S.57 enumerates a large set of such facts for which judicial notice shall be taken. Important among them are cited below.
1.All laws in force in India;
2. Laws of Great Britain;
3. Articles of war for the Indian Army, Navy or Air force;
4. The course of proceedings of the British Parliament or the Constituent Assembly of India and of Parliament and Legislatures established under any law in force in India;
5. All the seals of all courts in India and of all courts out of India established by authority of the Central Govt., seals of Notary Public and all seals, which any person is authorised to use by the Constitution or an Act of Parliament of U.K, or an Act or Regulation having the force of law in India;
6. The names, titles functions and signatures of Gazetted Officers;
7. The existence, titles and national flag of every country recognised by Govt. of India;
8. The divisions of time, the geographical divisions of the world and public festivals, fasts and holidays notified in the Official Gazette;
9. The territories under the dominion of the Govt. of India;
10.The commencement, continuance and termination of hostilities between the Govt. of India and any other state or body persons;
11.The names of court officials and of all advocates, attorneys, vakils and other persons authorised by law to appear or act before the court;
12.The rules of the road, on land or at sea.
In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so. unless and until such person produces any such book or document as it may consider necessary to enable it to do so.
In Uzagar Singh v. Jeo[190], the Supreme Court held that when a custom has been judicially recognised, it passes into the law of the land and proof of it becomes unnecessary by virtue of S. 57 (1).
In Bhagwandas v. Joely Kaur[191], the court cannot take judicial notice in an eviction case that no alternative accommodation is available. It has got to be proved.
2. Admitted Facts
The Evidence Act specifically provides that “facts admitted need not be proved.” S.58 of the Act reads. “No fact needs to be proved in any proceeding which the parties thereto or their agents agree to admit at the time of hearing”. It may also be admitted before the hearing or can be gathered from the pleadings.
In Naseen Bano v. State of U.P.[192], the Court observed that averments made in a petition which have not been controverted by the respondent carry the effect of a fact admitted.
In Raman Pillai Krishna Pillai v. Kumaran Parameswaran[193], the Court held that certified copies of the written statements were held to be admissible under S. 58 though they were not public documents within the meaning of S. 65.
In Raman Pillai Krishna Pillai v. Kumaran Parameswaran[194], the Court held that admission in written statement is admissible u/s 58 and cannot be discarded on ground that certified copy of written statement is not public document under S.65.
3.Presumptions
A third category, for which no proof is necessary, is facts, which are presumed to exist.
Eg:- Presumption of legitimacy in case of birth in lawful wedlock and presumption of death arising from 7 years unexplained absence. The presumption however is not conclusive proof but which shall only stand ‘donec probatur in contrarium (until the contrary is proved).
TOPIC 13
PUBLIC DOCUMENT AND PRIVATE DOCUMENT
The documents are divided into 2 categories.
1.Public; and 2. Private
Public Documents
Characteristic of Public Documents
A public document is one, which is prepared by a public servant in discharge of his official duty. All public documents are kept in special custody and proved by means of a copy without producing the original. But all documents are not proved in this way, some of them require special way of proofs.
According to S.74 of the Act, the following documents can be considered as public documents
1. The documents forming acts, or record of the acts:
a. of the sovereign authorities,
b. of official bodies and tribunals,and
c.`. of public officers, legislative, judicial and executive of any part of the Indian or of the commonwealth, or of a foreign country.
In State v. Sheku alias Shekhara Poojary[195] the Court held that wound certificate issued by doctor in discharge of his official duties is a public document, contents of which are admissible in evidence.
In R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.Temple & Ors.[196] the Court held that an entry in municipal record is not an evidence of title. Such entry shows the person who is held liable to pay the rates and taxes to the municipality.
In Bidhan Paul v. Paresh Chandra Ghosh[197], -the Court held that a certified copy of a registered Power of attorney is not a public document within meaning of S.74 and therefore inadmissible in evidence.
2. Public records kept in any state of private documents.
Example
Following are some of the examples for public documents:
In Fazal Sheikh v. Abdul Rahman Mea[198], the court held that public record of a Wakf deed which is a private document kept in the office of the Sub-Registrar is a public document as defined in (2) of S.74 of the Evidence Act and certified copy thereof is admissible in evidence.
Private Documents
A document, which is not a public document, is considered as a private document. In the case of private documents the execution, signature, handwriting etc. are to be proved by special rules.[199]
Distinction between Private Document and Private Document
TOPIC 14
ANCIENT DOCUMENTS
S. 90 lays down the following rules;
If a document proved to be 30 years old is produced in a Court from a proper custody , the Court may presume the following:-
1.The signature or handwriting and every other parts of the documents is that of very person whose signature or handwriting it purports to be.
2. In the case of a document executed and attested it shall be presumed that it was duly executed and attested by the person by whom it purports to be executed and attested.
Ancient documents shall be presumed to be genuine only if:
a. It is in existence for more than 30 years
b. It is produced in Court from proper custody, from some person or place where it should naturally be.
Proper custody means, the place or the person in whose care the document would naturally be, which is proved to have had legitimate origin.
It is the discretion of the Court to draw the presumption or not.
In Kunhamina Umma v. Special Tahasildar[200], the court observed that if private documents not less than thirty years old are produced from proper custody, and are on their face free from suspicion, the court may presume that they have been signed or written by the person whose signatures they bear or in whose handwriting they purport to be, and that they have been duly attested and executed, if they purport so to be documents of thirty years old prove themselves.
In Yesoda and Others v. Sankunni and Others (1979), the Court found that the words "may presume" in S.90 of the Evidence Act point out in unmistakable terms to the fact that the court has a judicial discretion in the matter whether to draw the statutory presumption or not.
In Lathe Baruah v. Padmakanda Kalita[201], the expression ‘may presume’ used in this section clearly suggests that the Court has discretionary power either to presume or not to presume. The judicial discretion should not be exercised arbitrarily and not being informed by reasons.
In Munnalal v. Kushibai[202], the Court held that the expression ‘duly executed and attested’ used in the Section suggests that the person executing the documents was in the sound disposing state of mind at the time when the document was executed by him.
In Sunehri Devi v. Lachhmi[203] the Court held that where a 30 years old document is coming from a proper custody, presumption as to its due execution arises under Section 90 of the Evidence Act.
Exception (S.90)
There is an exception to this general rule. In certain circumstances, documents are produced in the court long after they have been executed and sometimes the attesting witness may not be available. If such documents have to be proved by witness they will remain unproved due to unavailability of the witness. So it is presumed that documents, which are thirty years old, prove themselves. This presumption is based on necessity and convenience. After a lapse of many years, it is very difficult to prove the handwriting of a person. So it is presumed that documents from proper custody are genuine and not necessary to be proved.
TOPIC 15
Documents are divided into two categories namely:
1. Plain Documents
In plain documents, the language is simple and plain. External oral evidence is not at all required to interpret these documents.
Example
'X’ sells to ‘Y’ by a sale deed, my house at 7/11, R.T.Nagar, Chennai-18 containing five cents of plot.’’ Here oral evidence is not at all admissible.
2. Ambiguous Documents
Ambiguity means unintelligible vague terms in the document. Ambiguity is divided in to two types.
1.Patent ambiguity; and
2.Latent ambiguity.
1. Patent Ambiguity
When the document is on the face of it unintelligible and vague, then patent ambiguity arises.
Example
‘X’ writes, ‘Give my property to Rama or Krishna or Lakshman or Venkat.'
Similarly, if in a will, the name of the legatee is left blank patent ambiguity arises.
S.92 clearly declares that if the language of a document is on its face, ambiguous or defective, evidence may not be given to give meaning to its defects.
2. Latent Ambiguity
When the words of the document are clear but when its application of the existing facts and circumstances is doubtful latent ambiguity arises.
Example
A testator writes in a will,” my brother’s son Ram”. If there are two persons with the name Ram the latent ambiguity arises.
Here circumstantial evidence or oral evidence can be given to ascertain the intention of the testator as to whom he intended to give the property.
Instances of Latent Ambiguity (Ss. 95 - 97)
1.When the language in the document is plain, but if it means to a different property and situation the circumstantial or oral evidence can be given to pinpoint the property or situation.
Example
X sells a house to Y by a sale deed. "My house in Chennai”, ‘X’ has no house in Chennai. Now oral or circumstantial evidence can be given to remove this Latent Ambiguity.
2.When the language in the deed means more than one of several things, then, persons extrinsic evidence can be given to show which of the things or persons the writer of the language actually meant.
Example
‘X’ agrees to sell to be ‘Y’ for Rs.10000/- “ My Black bike”. ‘X’ has two black bikes. Now extrinsic evidence can be given to show which bike ‘X’ meant.
3. When the language in the document applies partly to one set of existing facts and partly to another, then, extrinsic evidence may be given to show to which set of existing facts the writer of the language meant.
Example
‘X’ writes a will, “ Give my property to my brother Govinda’s daughter Asha”. Now Govinda has a daughter but her name is Anitha. But there is a daughter Asha to her another brother Lakshman. Now extrinsic evidence may be given to show as to whether he meant Asha or Anitha.
TOPIC 16
The rules regarding the burden of proof is contained in Ss. 101 to 114 of the Indian Evidence Act. When a fact has to be given in evidence the first question that arises is whose duty is to prove that fact.
Certain general rules on this subject are;
1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist.[204]
Example
X desires a court to give judgment that Y shall be punished for a crime, which X says Y has committed. In such a case X must prove that Y has committed the crime.
In Subhra Mukherjee v. Bharat Coking Coal Ltd.[205], the Supreme Court held that where the issue was whether the document in question was genuine or sham or bogus, the party who alleged that fact had to prove nothing till the party relying upon the document established its genuineness in the first place.
In Harikrishna Bai v. Babu Lal[206], the Supreme Court observed that burden of proof lies on the person who challenges an election. He has to raise necessary pleadings and adduce evidence to prove any of the grounds available under Representation of the People Act, 1951 for setting aside an election.
In Augur Nath v. Kishan Chand[207], the Court observed that the initial onus of proof is always on plaintiff, and if plaintiff discharges that onus and makes out a case which entitle him to the relief, the onus shifts on the defendant to prove the circumstances, if any, which would disentitle the plaintiff to that relief.
2. The burden of proof in a suit lies on that person, who would fail if no evidence at all were given on either side.[208]
In State of H.P. v. Shree Kant Shekari[209], the Supreme Court held that the burden of proving consent in a raping case is one of the accused. It is not for the victim to show that there was no consent on her part. It is for the accused show that she had consented.
Illustration
'A' prosecutes 'B' for theft and wishes the court to believe that 'B' admitted the theft to 'C'. 'A' must prove the admission. 'B' wishes the court to believe that at the time in question, he was elsewhere. He must prove it.
In Philip v. Hindu Madhan Dharma Paripalana Sabha [211], the Court observed that action for damages for malicious prosecution, the plaintiff failed to prove that the complaint was without reasonable and probable cause. His case failed.
In State of Haryana v. Sher Singh[212], the Supreme Court laid down that the burden of establishing alibi(presence elsewhere) is on the accused person.
In K.Mani v. Elumalai[213], the Court observed that when a person is bound to provide the existence of any fact, the burden of proof lies on that person.
4. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.[214]
Illustration
'A' wishes to prove a dying declaration by 'B'. 'A' must prove 'B's death.
5. The burden of proving the existence of circumstances, which bring the case of an accused person within any of the General Exception in the IPC, or within any special exception or proviso contained in any other part of IPC or in any law defining the offence, is upon the accused, and the Court shall presume the absence of such circumstances.[215]
In State by Hukeri Police v. Bhimraj Ramappa Naik[216] injuries suffered by accused on a vital part of the body were found to be serious and could not be self inflicted. The prosecution failed in explaining the injuries. The accused did not took the plea of self defence. The Court held that omission on part of accused to take plea of self defence does not relieve burden of prosecution to prove case beyond reasonable doubt.
In Arun Dharma Chavhan v. State of Maharashtra[217], the Court observed that even in the case of discovery of fact as per s. 27 of the Act, the burden of proof lies on the prosecution that, the information given by accused has led to discovery of some fact stated by him.
6. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.[218]
In Dalip Singh v. State of Haryana[219], the Supreme Court held that the burden is on the person who was holding the custody to show his captive died or escaped from his custody.
In Kumar and Kumarasamy & Ors. v. State[220], the Court held that the accused who abducted deceased and with in who’s company, the deceased was last seen has to establish how the injuries were caused.
7. If a man is shown to be alive within 30 years, the burden of proving that he is dead is on the person who asserts it.[221]
8. If it is shown that the person in question has not been heard of for “7” years by those who would have naturally heard of him, if he had been alive, the burden of proving that he is still alive is on the person who affirms it.[222]
In Chami Narayanan v. V. R. Krishan Iyer[223], the Court held that for the purpose of saving a suit from abetment, the legal heirs were not allowed to be impleaded only by showing seven-years absence of the predecessor.
In Eliamma Simon v. Seven Seas Transportation Ltd[224]., the Court held that presumption does not automatically arise as to exact date of death of missing person. Presumption cannot be drawn of death of missing person as the date that immediately followed the lapse of seven years from date of his disappearance.
9. Where persons are shown to have been acting as partners, landlord and tenant or principal and agent, the burden of proving that they have discontinued that relationship is on the person who asserts this fact.[225]
10. Where a person is shown to be in possession of something, the burden of proving that he is not the owner is on the person alleging this fact.[226]
In Harish Chander v. Ghose Ram[227], the Supreme Court held that where certain persons have been shown to be related to each other as partners, or as principal and agent or as landlord and tenant, there is the presumption of fact that they continue to be so related.
11. Where one of the parties to a transaction stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party standing in that position.[228]
In Krishna Mohan Kul v. Pratima Matty[229], the Court observed that burden on the dominant party enjoiying the position of active confidence to show that the gift deed was fair and made of free will.
In Neel Kanthan v. Mallika Begam[230], occupant of the building in slum area claimed for protection from eviction. Their plea was that the property was situated in slum area. The landlady denied that the property was situated in slum area and so no protection of Slum Area Act, 1971 was available to them. The Court held that the burden to prove that the property was situated in slum area would be on tenants. As the tenants could not prove the said fact tenants were not entitled to the benefit of Section 3 (29) of Tamil Nadu Slum Area Act, 1971.
Self-defence
In Prabhu v. Emperor[231]and Rishikesh v. State[232], it was held that the burden of proof of self-defence lies on the accused. But in this case the accused has not proved it beyond a reasonable doubt. The Court found that if by the evidence placed before the court, by the accused or by the prosecution a reasonable doubt is created in the mind of the court that the accused might have acted in the exercise of right of self-defence, he is entitled to acquittal.
In Rizan and others v. State of Chattisgarh through Chief Secretary, Govt. of Chattisgarh Raipur[233], the Supreme Court held that the burden of establishing plea of private defence is on the accused. It stands discharged by showing preponderance of probabilities in favour of his plea. He can establish his plea by reference to circumstances transpiring for prosecution evidence itself. The Court also found that when the right of private defence is pleaded the defence must be a reasonable and probable version satisfying the Court that harm caused by the accused was necessary for either warding off the attack or for forstalling the further reasonable apprehension from the side of accused.
In Krishna Mohan Kul and Nani Charan Kul & Anr. v. Pratima Maity & Ors.[234], the Court held that Burden of proof in proving fraud, misrepresentation or undue influence is on the party who so alleges. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position.
12. Presumption of Legitimacy
According to S.112 of the Act, any person 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 the legitimate son of that man. However this conclusive presumption of law is rebuttable by showing that the parties to the marriage had no access to each other at any time when he could have been begotten. The word access means actual sexual intercourse.
In Samuel Kutty v. State of Kerala[235], the court found that if the evidence in favour of non-access is not satisfactory, presumption of legitimacy has to be called in aid by the court to hold that the child is legitimate.
In SPS Balasubramanyan v. A. Pandyachi[236], the Supreme Court held that a marriage presumed from living together for a long period is valid marriage for the purposes of legitimacy under the section.
In M/s Sachdeva Rice Mills v. Smt.Raj Anand[237], the Court held that in the question of paternity of a child, the birth of the child during continuation of marriage is a conclusive proof of legitimacy. The burden of proof is on the person who asserts illegitimacy.
13. Presumption of Abetment to Commit Suicide
S.113A provides that if a married women commits suicide within a period of 7 years from the date of marriage and it is shown that her husband or such relative of her husband had subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband. This presumption is rebuttable by adducing evidence.
In Balram Prasad Agrawal v. State of Bihar[238], where a house – wife died by drowning in the family well in the courtyard of her in-laws and there were circumstances showing ill-treatment spreading over several years, the court said that the circumstances created the presumption that the ill-treatment continued till she was forced to commit suicide.
In K. Prema S. Rao v. Yadla Srinivas Rao[239], the Supreme Court observed that the accused husband forced his wife to part with her land received by her as her stridhana (women’s estate) and for his purpose he disrupted her postal communications and all this drove her to suicide. A presumption was raised under this section that the husband’s cruel conduct abetted the suicide.
In Murugesan and Subramaniam v. State[240], the Court held that if wife is subjected to cruelty or torture and commits suicide within 7 years of her marriage, Court may presume that husband abetted suicide.
14. Presumption of Dowry Death
S.113B of the Evidence Act provides that, if soon before the death of a woman she has been subjected to cruelty or harassment for or in connection with any demand for dowry, then the court shall presume that such person has committed the dowry death. However this presumption can be rebutted.
In Kans Raj v. State of Punjab[241], the Apex Court explained the term ‘soon before’ which in Section 113-B of the Act. The Court found that the term “soon before” is relative term which is required to be considered under specific circumstances of each cases and no straight-jacket formula can be laid down by fixing any time. This expression is pregnant with idea of proximity bar. In relation to dowry deaths the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to particular instances, but normally refer to cause of conduct. Such conduct may be spread over a period of time. If cruelty or harassment of demand of dowry is shown to have persisted it should be deemed to be soon before the death. If any other intervening circumstances showing the non existence of such treatment are not brought on record before alleged transaction date of death, it does not however mean that such time can be stretched to any period. The proximity and the link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry cruelty or harassment based upon such demand shall not be too remote in time which other circumstances be treated as having become stale enough.
In Baljeet Singh and another v. State of Haryana[242], the Court held that in the case of dowry death presumption would arise only after prosecution establishes that the death was within seven years. Initial burden of proof is on prosecution and onus put on accused to prove date of marriage not proper. The conviction was set aside.
S.304B (1) of the IPC provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death.[243]
S.304B (2) IPC provides that whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
In State of Kerala v. Rajappan and others[244], it was held that there can be a presumption of dowry death only if the prosecution proves that soon before the death the woman was subjected to cruelty or harassment for or in connection with any demand for dowry.
In Baldev Krishnan v. State of Punjab[245], the Supreme Court held that death due to burn injuries in matrimonial home, circumstantial evidence showing clothes drenched in kerosene and mouth gagged with a piece of cloth ruling out suicide, or accidental death, presumption under section arose.
In Hira Lal v. State (NCT) of Delhi[246], the Supreme Court observed that in between marriage and death there was a settlement and no proof of cruelty thereafter.
In Kamesh Panjiyar v. State of Bihar[247], the Supreme Court held that the attempt on the part of the accused to secure proper to medical treatment seemed to be nothing more to create a smoke screen of innocence.
In G.M Natarajan v State,the Court that this presumption will arise only when the prosecution has established the basic element of demand for dowry. The initial burden lies on the prosecution to prove the ingredients of S. 304-B, including the fact that soon before her death, she had been subjected by the accused persons to cruelty or harassment for or in connection with any demand for dowry. If the prosecution succeeds in discharging this initial burden, then positively the provisions of S. 113-B, Evidence Act comes into play and can be pressed into service for drawing the presumption against the accused person that he has caused dowry death.[248]
In State v. Srikanth[249], a woman committed suicide. Cruelty was charged against husband and in-laws. There was a gap of four years between incident of cruelty and commission of suicide. The Court held that there is no nexus between two and presumption, consequently, cannot be made and therefore the acquittal is justified.
15. Presumption of Rape
According to s.114A of the Indian Evidence Act, if the sexual intercourse by the accused is proved and the question is whether it was the without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
In Indian Bank, Chittoor v. V.R.Venkataraman & Ors.[250], the Court held that adverse inference can be drawn against a party who suppresses and does not produce original documents.
In Krishna Devi & Ors. v. Amarjit & Ors.[251], the Court held that adverse inference can be drawn against a party not entering into witness box.
In C.E.I. Consultancy v. M/s Modi World Infotech[252], the Court held that if a notice was sent under Certificate of Posting, there is presumption that notice was received by the addressee.
In Indian Bank, Chittoor v. V.R.Venkataraman & Ors.[253], the Court held that if a party is not entering into witness box, presumption has to be drawn that the version raised in pleading is not true.
16. Presumption as to Gazettes in Electronic Forms
According to S. 81A of the Act the Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.
17. Presumption as to Electronic Agreements
Explanation to S. 85A of the Act the Court shall presume that every electronic record purporting to be an agreement containing the digital signatures of the parties was so concluded by affixing the digital signature of the parties.
18. Presumption as to Electronic Records and Digital Signatures
S.85B (1) of the Act provides that in any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.
S.85B (2) of the Act provides that in any proceedings, involving secure digital signature, the Court shall presume unless the contrary is proved that-
(a) the secure digital signature is affixed by subscriber with the intention of signing or approving the electronic record;
(b) except in the case of a secure electronic record or a secure digital signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any digital signature .
19. Presumption as to Digital Signature Certificates
S.85C of the Act provides that the Court shall presume, unless contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.
20. Presumption as to electronic messages
S.88A of the Act provides that the Court may presume that a message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission,; but the Court shall not make any presumption as to the person by whom such message was sent.
Explanation .- For the purporses of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2of the Information Technology Act,2000.
Presumption as to Electronic Records Five Years Old
S.90A of the Act provides that where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorized by him in this behalf.
Explanation.- Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.[254]
ESTOPPEL
The term 'estoppel' is derived from the French term 'estoup', which means 'shut the mouth'. The doctrine of estoppel is a rule of evidence contained in S.115. The maxim referring to estoppel is: allgans contraria non est audiendus, which means a man alleging contradictory facts ought not to be heard. It is based on the leading case of Pickard v. Sears [255]
In this case 'X', the real owner of machinery in Y’s possession, abstained from claiming it, when it was seized in execution by ‘Z’ as belonging to ‘Y’, his debtor. By his conduct and conversation at the time of the seizure of the machinery, ‘X’ impressed ‘Z’ with the belief that ‘Y’ is the owner. Subsequently, ‘Z’ sold the machinery. It was held that ‘X’ is estopped from denying that the machinery is Y’s. The rule was stated thus:
"Where anyone, by his words or conduct willfully causes another to believe in the existence of a certain state of thing and induces him to act on that belief, or to alter his previous position, the former is precluded from averring against the latter a different state of things as existing at that time"
The rule of estoppel precludes a person from denying the truth of some statements previously made by him.
By. S.115 When one person has, by his declaration, act or omission intentionally caused or permitted another to believe a thing to be true and 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 Dataram S. Victore v. Tukaram S. Victore[256], at the time of allotment, the appellant indicated in form C submitted to the Board that his brother, respondent, along with his wife will be occupying the premises. The Board accepted the From C. It was held that the Board was estopped from terminating tenancy on the ground of subletting . The Supreme Court held the order of eviction illegal.
In Municipal Corporation PAL v. State[257], all craftmen including the respondent opted to enhance licence fee. Having agreed, the respondent was estopped from challenging the rise of licence fee.
In Sushil Kumar v. Rakesh Kumar[258], the Court held that the age mentioned in bail application to take benefit of minority cannot be totally ignored. A person is not expected to take false ground regarding his age before the Court even if it was accepted or not, is immaterial. The maker of it is bound by the same and he cannot be permitted to take advantage of his own wrong.
In Sushil Kumar v. Rakesh Kumar[259], the Court held that the if maker of the horoscope is not produced nor it is proved to be prepared in due course of time and events, cannot be looked in evidence to prove date of birth.
In Sushil Kumar v. Rakesh Kumar[260], the Court held that the parties cannot be permitted to rely upon a part of a document and at the same time raise a contention that the same is inadmissible.
Kinds of Estoppel
Estoppel may be (1) by Record; (2) by Deed; or (3) In pious
i) Estoppel by Record
It results from the judgment of a competent court.[261] There will be sufficient opportunity for a party by way of appeal or otherwise to change wrong decisions. Such a party will be estopped from disputing or reporting the decision, which has become final. It is also called estoppel by judgment. The matter is indirectly contained in S.11 to S.14 CPC and directly in Ss 40-44 of the Evidence Act.
ii)Estoppel by Deed
When there is a solemn engagement by a formal deed, a person who is a party to such a deed or instrument is estopped from denying its contents.
iii) Estoppel in Pious or Estoppel by Conduct
This kind of estoppel arises firstly from an act or conduct or secondly from an act or conduct or misrepresentation of one which has induced a change of position in another.
Promissory Estoppel
The principle of promissory estoppel found its origin as an exception to the ‘Doctrine of consideration’ in the law of contract. It is an equitable doctrine and the petitioner cannot ask the court to apply this principle as a matter to compel something inequitable. One who seeks equity must do equity and he should come with clean hands.[262] The doctrine of promissory estoppel is also called ‘requisite estoppel’, ‘quasi-estoppel’ or new estoppel.
Whenever a person holds a promise of a favour or concession to another, and the latter changes his position by relying upon his words, the former will not be permitted afterwards to say that the promise was without consideration.
In Central London Property Trust Ltd. v. High Trees House Ltd, a block of flats was let out for a period of ten years for rent. War broke and flats fell vacant. As the lessee was unable to pay the full rent, the landlord agreed to reduce it to half and went on receiving half rent till the end of the war. After the war flats were again fully occupied. The landlord demanded full rent for the future and also arrears for the period during which only half rent was paid. The Court found that the landlord was entitled to restore the full rent, because it was only a concession given by him and he had a right to withdraw the concession for the future. He was therefore, estopped from saying that his agreement to accept only half the rent was without consideration.
The doctrine of promissory estoppel is now well established in the administrative law of the country and has been evolved through successive decisions of the Supreme Court of India starting with the judgment in Union of India v. Anglo Afghan Agencies[263].
In Mothilal Padampat Sugar Mills v. State of U.P, there was news in the papers that the state of U.P would grant exemption to new industrial units from taxation for a period of three years. The petitioner in this case, who decided to start a vanaspathi plant applied for the same to the chief secretary and the director of industries. As both these authorities confirmed the matter of exemption from taxation, the petitioner proceeded with his plans. But the State Govt. abrogated its policy of exemption. The petitioner applied for an order that the State Government should be estopped from going back upon the declared exemption. The Supreme Court allowed the petition, holding that the Government was bound by its declared intention.
In S.Ramabadran v. State of Tamil Nadu, the Supreme Court held that there can be no promissory estoppel against the legislative functions nor can the Govt. or public authority be debarred by promissory estoppel from enforcing a statutory provision or that the principle could be used to compel the authority to carry out a promise or representation, which is contrary to law or is outside their authority or power.
In D.D.A. Self Financing Flats Owners Society v. Union of India[264], there was allotment of flats by Delhi Development Authority. Cost of flat was indicated in the brochure inviting allotment application by D. D. A. including estimated provisional cost. Petitioner applicant was fully aware of the said fact that the cost was subject to change as per prevailing rates at the relevant time. The Court observed that the plea that cost indicated in brochure were final and binding on principle of promissory estoppel is not tenable.
Exceptions from the Doctrine of Estoppel
There are two exceptions to this doctrine. They are the rule cannot be applied against a statute and legislative acts.
A rule of law cannot be nullified by resorting to the doctrine of estoppel. For e.g. where a minor has contracted by mis-representing his age, he still can afterwards disclose his real age. It is the rule of law of contract that a minor is not competent to contract and that rule would be defeated if a particular minor not permitted to disclose his real age. Hence there can be no estoppel against the provisions of a statute.
The principle has been established long since and has been reiterated by the Full bench of
M.P. High court in its decision in Bal Krishna v. Rewa University[265], where it was pointed out that if a candidate has appeared at an examination by misrepresenting facts, the university will not be estopped from canceling his examination if his candidature is against a rule of law.
The word statute for this purpose includes rules and regulations adopted under the statute.
The doctrine of estoppel cannot be invoked to render valid transaction which the legislature has, on grounds of general public policy, enacted to be invalid, or to give the court a jurisdiction which is denied to it by statute or to oust the court’s statutory jurisdiction. In C.I.T. v. B.N. Bhattachrjee[266], the court said, “the soul of estoppel is equity, not facility for in equity nor is estoppel against permissible because public policy animating a statutory provision may then become the casualty.
Regarding estoppel against Sovereign Acts, the Supreme Court has laid down that it is well settled that there cannot be any estoppel against the govt. in the exercise of its sovereign, legislative and executive functions.
Thus Supreme court in Bakul Cashew Co. v. S.T.O[267], allowed the state government to withdrawn from a notification for exception from Kerala General Sales Tax Act 1963.
Difference between Estoppel and Admission
The Supreme Court has stated in Chhaganlal v. Narandas[268], the difference between an admission and estoppel. Admissions being declarations against an interest are good evidence but hey are not conclusive and a part is always at liberty to withdraw admissions by proving that they are either mistaken or untrue. But an estoppel creates an absolute bar.
Estopel and Waiver
Waiver is the abandonment of a right, which normally everybody is at liberty to waive. A Waiver is nothing unless if amounts to a release. It has been observed by hard Denning that waiver is an instance of the application of the principle of promissory estoppel. They both are questions of conduct and must necessarily be determined on the facts of each case. the only practical difference that remain between the two are that a waiver requires a positive relinquishment of something which one had before, but estoppel does not require any such thing as that and that a party waiving his rights may in circumstances reinforce them.
Specific estoppels
Ss. 116-117 are illustrative of the principle of estoppel laid down in S. 115. These two sections deal with estoppels in specific cases. S. 116 provides that a person who comes into an immovable property taking possession from a person, whom he accepts as the landlord, is not permitted to say as against his landlord that he had no title to the property at the commencement of the tenancy, similarly a person who comes upon any immovable property with the license of the person in possession is not permitted to say afterwards that his licenser had no right to he possession of the property.
In Darshan Kumar v. Mahesh Kumar[269], the Court held that the tenant is estopped from denying that the landlord did not have valid title to the property rented out to him.
In the case of purchaser (New Land lord) also the Karnataka High court refused to allow a tenant to question the title of a person who has purchased premises from the landlord. The court said the relationship that existed before continued under the same terms and conditions after the purchase of a building. Supreme Court has recognised the possibility that a tenant may have to question the title of he landlord when he ceased to be landlord because of transfer etc.
According to S. 117 no acceptor of a bill or exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailer or licensor had at the time when the bailment or license commenced, authority to make such bailment or grant such license.
The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it passports to have been drawn.
If a bailee delivers the goods bailed to a person other than the bailer, he may prove that such person had a right to them as against the bailer.
PRIVILEGED COMMUNICATIONS
Ss. 121-132 of the Act exempt witnesses from the obligation to answer particular questions or disclose particular facts. These privileges are provided on the grounds of public policy.
Privileged communications are:
1.Questions regarding the conduct of a Judge or Magistrate.[270]
2.Matrimonial communications.[271]
3.Evidence as to “affairs of state”.[272]
4.Official communications.[273]
5.Information as to communications of offence.[274]
6.Professional (of barrister, attorney, pleader or vakil) communications[275] and, of interpreters, clerks etc.[276]
7.Confidential communications to legal advisers.[277]
1) Judicial Officers
S.121 provides that a Judge or Magistrate shall not be compelled to answer questions of :-
a. His conduct in court as such Judge or Magistrate, or
b. Anything, which came to his knowledge in court as such Judge or Magistrate.
But he may be examined as to other matters, which occurred in his presence whilst he was so acting.
2) Communications during marriage
S.122 contains a rule of privilege protecting disclosure of any communications between persons married to one another, made during marriage. These communications need not be of a confidential nature. The privilege applied to all communications of every nature. The witness cannot waive the privilege at his or her will, nor can the court allow disclosure even if he or she is willing to do it. The spouse who made communication or his or her representative can consent to give up the privilege.
In Ram Bharosey v. State of U.P [278], the statements of the accused to his wife that he would give her jewels and he had gone to the house of the deceased to get them were held inadmissible under S.122.
In T.J. Ponnan v. M.C. Vergheese[279], the Supreme Court observed that certain letters written by a man it his wife containing matter defamatory of her father were passed on by her to her father, who wanted to prove them. But the evidence of the m was rejected.
But the statements of the wife that the accused was seen in early hours, while it was dark, coming down the roof of the house, that he went to the Bhusa Kothai and came out again and had a bath and put on dhothi again were held not inadmissible because they had reference to acts and conducts of the accused and not to any communication made by him to his wife.
By S.122 itself the privilege will not apply in suits between married persons (Eg. divorce proceedings) or other cause or proceedings in which one of them is prosecuted for any crime against the other.
In Fateh Singh v. State[280], it was held that S.122 of the evidence Act bars acceptance of communication made during marriage. The first part of the Section speaks of a bar against compulsion of a wife or husband to speak against the husband or the wife on communication made during marriage, except in a litigation between themselves. The second part of the Section enunciates that no such husband or wife shall be permitted to disclose the communication received from the other spouse during marriage unless consented to by him or her. So where in a murder case, no evidence was led that the accused had consented to disclosure of communications allegedly made by him to his wife. The evidence of wife of only such portions as were communications from her husband in connection with murder, was clearly inadmissible being hit by the provisions of S.122 of the said act.
In T.J.Ponnen v. M.C.Varghese[281], the Kerala High Court held that S.122 of the Evidence Act only prevents disclosure in giving evidence in Court, of the communication made by the husband to the wife. If the wife appears in the witness box to give evidence about the communications made to her in the letters sent by the her husband, prima facie the communications may not be permitted to be deposed to or disclosed unless the husband consents. That does, not, however, mean that no other evidence which is not barred under S.122 of Evidence Act or other provisions of the Act cannot be given.
In Bhalchandra Namdeo Shinde v. State of Maharashtra[282], the Court held that dialogue between husband and wife is inadmissible. However what is witnessed by wife is admissible in evidence as witnessing a thing is not communication.
3. Affairs of State
S.123 reads, "No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
This is the only provision which state may claim privilege for official records alleging that it involves "affairs of state".
Illustration
The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
4. Official Communications
No public officer shall be compelled to disclose communication made by him in official confidence, when he considers that the public interest would suffer by the disclosure (S. 124)
5. Information Regarding Commission of Offence
A magistrate or police officer cannot be compelled to disclose the sources of information regarding the commission of an offence.
6. Professional Communications
A legal practitioner cannot at any time be permitted to disclose any communication made to him by or on behalf of his client or any advice given by him to his client. The contents or conditions of any document, which he had become acquainted, shall also be protected from disclosure.
Proviso to S.126 of the Act states that such privilege is not applicable in the following matters:
Illustration
'X', a client says to 'Y', an attorney "I have committed forgery and, I wish you to defend me". As the defense of man known to be guilty is not a criminal purpose this communication is protected from disclosure.
Production of Documents or Electronic Records which Another Person, Having Possession, could Refuse to Produce
S.131 of the Act provides that no one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last mentioned person consents to their production.
TOPIC 19
COMPETENCY OF WITNESS
S.118 of the Evidence Act says that all persons shall be competent witness. The only thing is that the witness must understand the meaning of the questions put to him and can give rational answers. The only disqualifications are tender age, extreme old age, disease or any other cause of the same kind.
Explanation to S.118 says that a lunatic is competent provided at the time of the examination he is proved to be a sane person.
In Banti & Guddu v. State of Madhya Pradesh[283] the Court held that in a criminal trial, evidence of defence witness should not to be ignored and like any other witnesses, his evidence has to be tested on the touchstone of reliability, credibility and trustworthiness particularly when he attempts to resile and speak against records and in derogation of his earlier conduct and behaviour. If after doing so, the Court finds it to be untruthful, there is no legal bar in discarding it. In Ajay Kumar v. State of Punjab[284], the Court held that in the case of child witness before recording statement, Court should put questions and satisfied itself with the rational answers given by the child. When answers given are intelligible and rational then child witness is competent to depose before the Court.
In Ratansinh Dalsukhbhai Nayak v. State of Gujarat[285], the Court held that the decision whether child witness has sufficient intelligence primarily rest with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath.
In Ratansinh Dalsukhbhai Nayak v. State of Gujarat[286], the Court held that the evidence of child witness are not to be per se rejected. However Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.
In Pawan Kumar v. State of Haryana[287], the Court held that when a child witness gives answers fearlessly, intelligently and boldly and gives minute details of the occurrence and withstood the cross-examiantion, the credibility of such a child witness cannot be discarded on the ground of being a child.
Child Witness
A child is a competent witness provided, the child can understand the questions put to him or her and can give rational answers. In the case of a child witness English Law prescribes a special procedural rule. The Judge must make preliminary examination to test the veracity of the child witness. This examination is called voire dire.
The Judge will ask the child witness to count up to hundred or some other silly questions like the time, the day of the week etc. If the Judge is fully satisfied that the child is a competent witness, the Judge will then allow the examination of the witness. The evidence becomes relevant and admissible.[288]
Evidence of children is notoriously dangerous if delayed. Therefor it shall be collected or made available before possibility of coaching. The child witness shall not become trained witnesses. And that is why the judges hold the preliminary examination or the voire dire.
The Supreme Court in Ramnath Patel v. State of UP permitted the evidence of a child witness in a murder case.
In Abdulla Kunhi v. State of Kerala (1991), the court convicted the accused solely based upon the evidence of a child and sentenced him to death.
In Prakash Singh v. State of M.P (1992), the court accepted the testimony of a child aged 14 years.
In Chhagan Dame v. State of Gujarat,[289] it was held that the evidence of a child is not reliable who is under the influence of tutoring.
In Narayan Iranna Potkanth v. State of Maharashtra[290], it was held that when the court is doubtful about the fact whether or not the child witness understands the sanctity of oaths, it us the duty of the court to ascertain that and to record a certificate to that effect.
In Bagwan Singh v. State of M.P.[291], the Supreme Court observed that the child witness had testified the fact of bride burning and no infirmity could be shown in his testimony.
In S.G.Mohite v. Maharashtra (AIR 1973 SC 55), the only witness was a teenage girl and she was found on facts to be truthful, the court however cautioned that such evidence must be accepted with caution.
In Rameshwar v. State of Rajasthan (AIR 1952 SC 54), which was a case of rape on a girl aged 8 years, the testimony of the prosecutrix was admitted in evidence and it led to conviction.
Husband or Wife
S.120 of the Act provides that the parties to civil proceedings husbands, or wives are competent witnesses. Similarly in criminal proceedings against any persons, the husband or wife of such person is a competent witness, whether for or against. The criminal proceedings may be by a third person against the husband or wife or it may be between the husband and wife.
Dumb Witness
A dumb witness is a competent witness under S. 119 of the Evidence Act. A dumb witness is a person who can hear but he cannot speak. He can give evidence either by writing or by signs in the open court. Evidence so given shall be deemed to be oral evidence.
In Nar Khan v. State[292], - the trial Court declined the prayer for cross examination of a deaf and dumb witness in presence of expert. However permission was given by this Court to cross examine the witness, by himself putting questions in the language of signals, so as to elicit answers.
In Kamla Bakshi v. Union of India & Ors.[293], the Court held that a deaf witness can be examined on Commission as is provided u/s 119 of the Evidence Act.
Judge as Witness
S. 121 of the Evidence Act speaks that judge is a competent witness just like any other person. However the following conditions must be fulfilled.
1. He must be a judge,
2. A crime is committed before him or in his presence, whilst he was acting so,
3. A crime is committed against another person or even against himself,
4. The Judge must obtain special order of the higher judicial authority.
5. The Judge must not be questioned about his official acts.
Examination of Witness (S.137)
Examination of witness means the examination of witness before a court of law .The purpose of Examination is to find out the truth or the right of a person S.137 of the Evidence Act deals with the examination of a witness.A witness will be examined only in that manner. They are the following :-
1. Examination in chief ( chief examination).
2. Cross examination.
3. Re examination.
1. Examination-in-Chief
It is either oral examination or written examination of a witness by the party who called him or her as a witness. The object of the examination-in -chief is to find out the material facts, which are the “ sequence of events” of the transaction.
Example
In a murder case, A was a person who saw the commission of the crime. Mr. A will become a prosecution witness. The prosecutor can first examine him and this is known as examination-in-chief.
2. Cross -Examination
Cross Examination is the examination of the same witness by the adverse party (opposite party) after the chief-examination.S.137 reads “ it is the examination of a witness by the adverse party”. The object of cross-examination is to contradict the witness or to show the court that this witness is suppressing the material facts. Cross-examination is described as the strongest legal engine by which the court will separate truth from falsity. Another object is to shake the credibility of the witness and to expose his status.
Cross -examination must relate only to relevant facts. Anyhow, some liberty is given to the lawyer for cross-examination. In the famous words of Sir Walter Schwat “Cultivate a pleasant manner and get on as friendly terms as possible with the witness”.
A person summoned to produce a document does not become a witness by mere fact that he produces it.He cannot be cross-examined unless he acquires the status of a witness (S.139).
Types of questions that can be asked during cross-examination.
S. 146 of the Evidence act gives the types of questions that can be asked during cross- examination
1) Any question to test his veracity,
2) Any question to discover who he is and what is his position in life,or
3. Any question to shake his credit, by injuring his character.
However indecent and scandalous questions cannot be asked.
Re-Examination
It is the examination of the same witness by the party who called him as a witness and it must be done only after cross examination. The purpose of re-examination is to clarify certain points. No new question or new point can be asked for the first time in re-examination. When a new question is asked for the first time in the re-examination the opposite party must be given the right to cross examination the witness.
According to S.138, the re-examination shall be directed to the matters already referred in the cross examination.
In Ashok Kumar Uttam Chand Shah v. Patel Mohd. Ismail Chanchal[294], the Court held that, the statement of hostile witness is not to be rejected as whole merely on the ground that the eye witness is hostile. If some portion of the statement of hostile witness inspires the confidence of court it can be relied on. However it should not be forgotten that the hostile witness cannot be termed as wholly unreliable. Hence the witness who is not wholly reliable cannot lend corroboration to the statement of plaintiff who is highly interested in his cause.
In Koli Laxman Chana Bhai v. State of Gujarat[295], the Apex Court held that it cannot be said that High Court erred in relying upon some portion of evidence of witness who was cross-examined by prosecution (Hostile witness). The Court also said that it is settled law that evidence of hostile witness also can be relied upon to the extend to which it supports the prosecution version. Evidence of such witness cannot be treated as waste of records. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.
In Balu Sonba Shinde v. State of Maharshtra[296], it was held by Apex Court that the evidence of hostile witness need not be rejected ipso facto on that account. The party may take advantageous portion therein. However Court has to be extremely cautious and circumspect in such acceptance.
In Anil Sharma v. State of Jharkand[297], a prayer for an order of re-examination has to be considered objectively. The prayer on behalf of the accused for re-examination of a witness was rejected twice by the trial Court. It was also dealt with elaborately by the High Court. Thus it obtained finality. The Supreme Court refused to interfere.
In Nasir Khan & Anr. v. State of Chhattisgarh[298], The Court held that cross examination need not be confined to the facts to which the witness testified on his examination in chief.
In Dever Park Builders Pvt.Ltd. v. Madhuri Jalan[299], the Court held that the in case of death of a witness not fully cross examined, his evidence would not be inadmissible. How much to be attached shall be decided considering other facts and circumstances surrounding it.
TOPIC 20
LEADING QUESTION (S.141)
According to Taylor, “leading questions are questions which suggest to the witness the answer desired or which embodying a material fact, admit of a conclusive answer by an example negative or affirmative.”
Leading question is defined in S.141 of the Evidence Act. It is a question which contains the answer also.
Eg. The witness is asked “You saw the incident on 1-10-2005? ” The witness need say only ‘yes’ or ‘no’.
A leading question is not generally encouraged but there are certain circumstances in which such questions can be asked. In the following circumstances leading questions can be asked:
1. Such question can be asked during cross -examination and against a hostile witness;[300]
2. It can be asked with the permission of the court;
3. It can be asked with the permission of the opposite lawyer;
4. It can be asked on introductory matters or undisputed matters.
The reason why leading questions are not allowed is to allow the witness to narrate the events.
In Varkey Joseph v. State of Kerala[301], it was held that the court may permit leading questions to draw the attention of the witness which can't otherwise be called to a matter under inquiry, trail or investigation. The witness must account for what he himself had seen.
Hostile Witness
The expression hostile witness means a witness whose answer are favourable to the opposite party. The expression hostile witness is not defined in the Evidence Act. The Privy Council held that “a hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court.” A witness is hostile when his temper, attitude, demeanor etc., in the witness box shows a distinctly hostile feeling towards the party calling him. So also it may be by making sentiments contrary to what he was called to prove, and by his manner of giving evidence and showing that he is not desirous of giving evidence failry.
In Father Benedict v. State of Kerala, the prosecution cited a witness who was residing on the next room of the accused, had to prove that he saw the room of the accused locked from out side. But during the trial that witness said that he was not sure whether the room was locked or not. At this stage, on the request of the prosecutor the court declared that witness as a hostile witness.
In Sugathan v. State of Kerala, a tea shop owner was cited as a witness. He has to say that when he went to the police quarters he saw the accused and heard the screaming sound of a man. During the trial he said that he never went to the police quarters on that day. At that time, the prosecutor requested the court to declare him as a hostile witness.
In State of Kerala v. Vijayan and Rajan[302], it was held that the discretion to allow or disallow a leading question can be exercised by the court only when such leading question does not relate to a fact, which is either introductory, undisputed or already proved one.
S.154 of the Evidence Act speaks the consequence that will follow when a witness is declared as a hostile witness. According to that section, when a witness is declared as a hostile witness, the party who called him is allowed, with the permission of the court to cross examine that witness in the manner described in Ss. 145 and 146.
In Naresh Vs State of M.P.[303], the Court held that a FIR given by accused in nature of confession cannot be used against the accused in evidence.
In State of Rajasthan v. Teg Bahadur[304], the Court held that evidence of a hostile witness not to be totally rejected. Such evidence can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence may be accepted.
In Boina Mallaiah v. State of A.P.[305], the Court held that the hostile witness’s evidence remains admissible and conviction can be based upon the testimony of such witness.
In C. Sesha Reddy v. T.Basavana Goud[306], the Court stated that it cannot be said that the plaintiff's witness is a hostile witness and speaking falsehood, merely because he did not support him,. Evidence of hostile witness need not be rejected in toto.
In Lingu S/o Dharma Meshram v. State of Maharashtra[307], the Court observed that the in order to rely upon evidence of a hostile witness three aspects are to be borne in mind. They are: (a) The court must look for evidence which is advantageous to the parties; (b) That the Court must be extremely cautious and circumspect before accepting the evidence of a hostile witness; and (c) That it must look for corroboration of the version from other reliable evidence.
The credit of a witness may be impeached by a adverse party in the manner and circumstances provided in Ss.145, and 155 of the Act. Normally the witness whose credit is sought to be impeached may not admit, during cross-examination, the facts which affect his trust worthiness. In such a situation S.155 comes into operation and helps the impeaching party to give in evidence, according to the circumstances of the particular case, all or any of the matters mentioned in this section.
Thus, the credit of a witness can be impeached by the adverse party in the manner and circumstances mentioned below:
Thus the credit of a witness can be impeached by the adverse party as of right. However, a party can impeach the credit of its own witness only with previous permission of the court.
Value of the Evidence
The evidence of a hostile witness must be viewed with caution or received with suspicion. The S.C. in many cases held that the evidence of a hostile witness cannot be totally rejected. The S.C. in Pritam Singh v. State of Tamil Nadu (1990) ruled that the fact that a witness is being declared hostile does not simply form an inference that his statements is false. In the case the High Court rejected the entire evidence given by a hostile witness. But the S.C. accepted it.
Refreshing the Memory (S.159)
S.159 of the Evidence Act deals with this, By this, witness can refer any writing made by him, and he can give testimony by looking those documents. The memory of witness may be weak. Therefore Evidence Act permits the witness to refer certain documents or registers regularly kept by such person. The court will generally allow past recollection of memory by referring to regularly kept documents by such person. Modi, in his book Medical Jurisprudence allows this type of practise. A doctor witness is allowed to refer that book for explaining certain scientific matters in connection with a case.
In Z. B. Bhukhari v. B.R. Mehra[312], the Supreme Court observed that election speeches delivered by a candidates of which were noted down by some of the persons who heard him and who appeared to testify on that point, they were allowed to look at their notings to refresh their memory.
In Nagendranath Singh v. Nagendra (1991 SC), the court ruled that an engineer can refresh his memory from the report prepared by him after inspecting the building. Similarly a lawyer may refresh his memory from the notes prepared by him. Similarly superintendent of a hospital can refresh his memory by referring the out patient register.
Rules to be Followed:
1. The writing must have been made by the witness himself.
2. It must be regularly maintained.
3. If the writing is made by a third person, it must have been read by the witness and accepted as correct.
4. The documents must be an admissible document.
A Magistrate who record a confession can refer that statement for refreshing his memory. The permission of the court is necessary.
Trap Witness
To check the menace of corruption, Anti-Corruption Dept. is vigilant. For this purpose separate Courts are also constituted. When the Department receives a information regarding the demand by a public official for bribe, the officials in the Dept. arrange a trap to apprehend the suspect. They may also arrange some other independent persons to witness the occasion of receiving the bribe and apprehension of the accused. When such independent persons depose before the court they are called ’Trap Witnesses’.
In Ship Bahadur Sigh v. State of Vindhya Pradesh[313], the Apex Court held that the evidence of trap witness is of partisan character and so independent corroboration is required. In Sadashiv v. State of Maharashtra[314], also the Supreme Court observed that independent corroboration is necessary for the evidence of trap witness.
JUDGE’S POWER TO PUT QUESTIONS
The Presiding Judge should not be a spectator and a mere recording machine. He should participate in the trial by putting questions to the witnesses in order to ascertain the truth. However this must be done without unduly trespassing upon the functions of the Public Prosecutor and the Defence Counsel. Similarly any question put by the Judge must be so as, not to frighten, coerce, confuse or intimidate the witnesses.[315]
S.165 of the Evidence Act confers wide power on the Judges to obtain proper proof of all relevant facts. According to Sir James Stephen, “S.165 is intended to arm the judge with the most extensive power possible for the purpose of getting at the truth. Under this, a Judge may ask any question of any form at any stage of the case and to a certain extent allow parties or their advocates to do so”.
The above mentioned rights will be subject to the following limitations:
1. The judgment must be based upon facts declared by this Act to be relevant and duly proved.
2. This section shall not authorise 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 Ss. 121 – 131.
3. The Judge shall not ask any question, which would be improper if asked by any other person under S.148 or 149.
4. The Judge shall not dispense with primary evidence of any document except in the cases specifically exempted in the Evidence Act (i.e. where secondary evidence is permissible).
5. The Judge must cross-examine or order the production of a thing only to obtain proper proof of relevant facts.
In State of Rajasthan v. Ani[316], the Apex Court observed that, the criminal trial should not turn out to be a combat between two rival sides with the Judge performing the role only of a spectator or even an Umpire to pronounce finally who won the race. The Court also declared that the Judge is expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for Trial Judge to remain active and alert so that errors can be minimized.
In Ram Chandra v. State of Haryana[317], the two prosecution witnesses did not hear to their earlier statement. The Judge rebuked them and threatened them with prosecution for perjury if they changed their statements. The Supreme Court pointed out that the Judge exceeded the power conferred upon him by S. 165.
[1] Dr. V. Krishnamacheri, Law of Evidence (2003), p. 2.
[2] (1850) 3 H.L.C. 1 at p.19.
[3] Andrew Ashworth Q. C., Human Rights, Serious Crime and Criminal Procedure (2002), p. 7.
[4] Andrew Ashworth Q. C., Human Rights, Serious Crime and Criminal Procedure (2002), p. 7.
[5] AIR 1971 SC 44
[6] A.I.R. 1980 All. 385.
[7] Id., p. 388.
[8] Durbar is a Persian term which means the noble court of a king or ruler or a formal meeting where the king held all discussions regarding the state or the place where justice is administered.
[9] Section 164 (1) CPC empowers any Metropolitan Magistrate or Judicial Magistrate to record any confession or statement made to him during the course of an investigation
[10] 1885 29 Ch.D.459, 483.
[11] A fact is said to be logically relevant, when by virtue of the application of our logic it appears to us that one fact has a bearing on another.
[12] S. 5 of Indian Evidence Act.
[13] One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of the Act relating to the relevancy of facts. (S. 3 of the Evidence Act).
[14] Ss. 6 to16.
[15] Ss. 17 to 23.
[16] Ss. 24 to 30.
[17] Ss. 32 to 33.
[18] Ss. 34 to 38.
[19] S. 39.
[20] Ss. 40 to 41.
[21] Ss. 45 to 51.
[22] Ss. 52 to 55.
[23] 2003(2) Apex Court Judgments 614 (S.C.) : 2004(2) Civil Court Cases 01 (S.C.).
[24] S.4 of Indian Evidence Act.
[25] Illustration (a) to S.114 of Indian Evidence Act.
[26] AIR1987 Cal 213,218 (DB).
[27] S.4 of Indian Evidence Act.
[28] 2004(1) Criminal Court Cases 137 (S.C.).
[29] S.4 of Indian Evidence Act.
[30] 2000 2 SCC 417.
[31] 2004(2) Civil Court Cases 543 (Orissa).
[32] such statements are called oral evidence
[33] such documents are called documentary evidence
[34] S.60.
[35] 1885 (7) All 385.
[36] (2005) S.C.C. Cri. 178: 2004 All. L.J. 3779.
[37] A.I.R. 2004 S.C. 2294: (2004) 5 S.C.C 679.
[38] AIR 1971 SC 1162.
[39] A.I.R. 1971 S.C. 1295.
[40] (1978) 1 SCC 109.
[41] (1989) 1 SCC 1932.
[42] (1997) 10 S.C.C. 128.
[43] A.I.R. 2004 S.C. 3856.
[44] A.I.R. 1993 S.C. 1348.
[45] AIR 1954 SC 606.
[46] 2004(2) Civil Court Cases 465 (A.P.).
[47] 2004(2) Civil Court Cases 211 (Orissa).
[48] 2003(1) Civil Court Cases 452 (A.P.).
[49] 60 Bom. LR 932, 933 (SC): 1958 SCR 1384: AIR 1958 SC 448.
[50] Dr. V. Krishnamacheri, Law of Evidence (2003), p. 342 & 433.
[51] 2004(3) Civil Court Cases 186 (P&H).
[52] 2004(2) Criminal Court Cases 746 (S.C.).
[53] 1967 KLT 466.
[54] AIR 1994 SC 468.
[55] 2002(3) Criminal Court Cases 693 (Karnataka).
[56] A.I.R. 2004 S.C. 2570: (2004) 11 S.C.C. 291.
[57] (1997) 6 S.C.C. 171.
[58] (1996) 8 SCC 186, A.I.R. 1996 SC 3098.
[59] A.I.R. 1975 S.C. 308.
[60] Jean Graham Hall and Douglas F. Martin, Crimes against Children (1992), p. 115.
[61] 1879 (14) SCC 341.
[62] 1994 Cr.LJ. 2360.
[63] 1985 KLT 122.
[64] 1992 Cr.LJ. 575 Ker.
[65] (1973) 1 S.C.C. 471.
[66] See Ray, J’s (latter on C.J.) judgment at p. 477.
[67] A.I.R. 1997 S.C. 768: (1997) 4 SCC 161.
[68] 2003(2) Criminal Court Cases 206 (P&H).
[69] 2003(1) Criminal Court Cases 245 (M.P.).
[70] AIR 2000 SC 2138.
[71] AIR 1968 S.C 147.
[72] L.B.Bukhari v. B.R.Mehra, AIR 1975 SC 1788; R.M.Malkhani v. State of Maharashtra, AIR 1973 SC157; Yousuf Ali v. State of Maharashtra AIR 1968 SC 147.
[73] AIR 1993 Mad. 59.
[74] S.3 (65) General Clauses Act.
[75] Roopchand v. Mahavir Prasad, AIR1956 Punj. 173.
[76] Roopchand v. Mahavir Prasad, AIR1956 Punj. 173; Rama Reddy v. V.V.Giri AIR 1971 SC 1162; Pratap Singh v. State of Punjab AIR 1964 SC 72.
[77] 2002(2) Criminal Court Cases 499 (S.C.).
[78] A.I.R. 2003 S.C. 2213.
[79] A.I.R 2004 S.C. 26.
[80] A.I.R. 2004 S.C. 977.
[81] A.I.R. 2005 S.C. 418.
[82] AIR 2003 SC 539.
[83] 1991 SC.
[84] 2000 1 SCC 471.
[85] AIR 2002 S.C. 260.
[86] A.I.R 2003 S.C. 2471 – 2480.
[87] 2005(1) Criminal Court Cases 515 (S.C.).
[88] 2002(2) Criminal Court Cases 335 (P&H).
[89] A.I.R 1965 S.C 682.
[90] 1997 Cri L.J. 2559
[91] (2000) 6 S.C.C. 269.
[92] A.I.R 1988 S.C. 1883: (1988) 3 S.C.C. 609.
[93] (2005) 2 SCC 13.
[94] 2005(1) Criminal Court Cases 760 (S.C.).
[95] AIR 1978 S.C. 201.
[96] 1984 Crl.L.J 4 (SC).
[97] AIR 2001 SC 3031.
[98] A.I.R. 2004 S.C. 1058.
[99] (2004) 10 SCC 600: A.I.R. 2004 S.C. 2249.
[100] 1998 Cri. L. J. 3611, 3622 (SC): A.I.R. 1998 SC 2443: 1998 (5) SCC 699: 1998 (5) Supreme 379 : 1998 (3) Crimes 4.
[101] (1967) SCR 1.
[102] 2004(2) Civil Court Cases 183 (Madras).
[103] S.19.
[104] S.20.
[105] S.31.
[106] S.21.
[107] ILR 21 All 285.
[108] AIR 1945 Lah 356.
[109] AIR 1940 PC 90.
[110] See Vishwanath Prasad v. Dwarka Prasad, AIR 1974 SC 117; See also Ayodhya Prasad Bhargava v. Bhawani Shankar Bhargava, AIR 19667 All (FB).
[111] A.I.R. 1966 SC 405; See also Beer Basabaradhya v. Devotees Lingadagudi Matt, A.I.R. 1973 Mays 280.
[112] AIR 1966 SC 1967.
[113] AIR 1991 SC 37, pp. 39 & 40.
[114] 1977 S.C.
[115] 2005(1) Criminal Court Cases 522 (S.C.).
[116] 2003(2) Criminal Court Cases 717 (Orissa).
[117] 2004(1) Criminal Court Cases 829 (A.P.).
[118] 2002(1) Criminal Court Cases 310 (Kerala).
[119] 2004(1) Criminal Court Cases 829 (A.P.).
[120] 2003(3) Criminal Court Cases 268 (Orissa).
[121] Sec.25.
[122] Ss.24, 28 and 29
[123] A.I.R. 2000 S.C.369.
[124] A.I.R. 2001 S.C. 2427 AT P. 2429.
[125] A.I.R. 2001 S.C. 2778 AT P. 2781.
[126] (1987) 3 S.C.C. 227: A.I.R. 1987 S.C. 1572.
[127] S.27
[128] AIR 1947PC 67.
[129] AIR 1960 SC 1125.
[130] 2004 (2)KLJ193.
[131] A.I.R. 2001 S.C. 979.
[132] A.I.R. 2004 S.C. 2282.
[133] 2000 Cri. L. J. 2301 (S.C.) : A.I.R. 2000 S.C. 1691: 2000 A.I.R. SCW 1617: (2000) 6 S.C.C 269.
[134] 2005(1) Criminal Court Cases 899 (S.C.).
[135] AIR 1961 SC 808.
[136] AIR 1958 SC 66.
[137] AIR 1978 SC 1770.
[138] A.I.R. 1994 S.C. 1594: 1994 Cri. L. J. 1884.
[139] Sec.30
[140] (2004) 11 S.C.C. 612.
[141] (2000) 10 S.C.C. 360.
[142] 2003(2) Criminal Court Cases 684 (Patna).
[143] 2003(3) Civil Court Cases 526 (Karnataka).
[144] 2005(1) Criminal Court Cases 442 (S.C.).
[145] AIR 2003 Karnataka 293.
[146] 2002(2) Criminal Court Cases 597 (Rajasthan).
[147] Sec.133.
[148] Illustration (b) to Sec.114 says that “an accomplice is unworthy of credit unless he is corroborated in material particulars.”
[149] AIR 1952 SC 159.
[150] (2005) 1 S.C.C 237.
[151] (1789) 1 Leach 500: 168 E.R. 352.
[152] AIR 1939 PC 47.
[153] 2003(1) Criminal Court Cases 124 (M.P.).
[154] AIR 1958 S.C 22.
[155] AIR 1964 S.C. 900.
[156]AIR 1976 SC 2199.
[157] 1978 (I) SCC 622.
[158] AIR 1972 SC 1776.
[159] AIR 1982 SC 1021.
[160] AIR 1981 SC 617.
[161] AIR 1998 SC 682.
[162] AIR 1999 SC 1776.
[163] 2004 (6) SCC 34.
[164] 2002(2) Criminal Court Cases 192 (Karnataka).
[165] 2002(3) Criminal Court Cases 522 (Karnataka).
[166] 2003(2) Apex Court Judgments 311 (S.C.).
[167] 1950 ALJ 412 (PC).
[168] A.I.R. 2003 S.C. 1074.
[169] A.I.R. 2005 S.C. 97.
[170] (1996) 6 S.C.C 96.
[171] A.I.R. 2004 S.C. 4980.
[172] A.I.R. 1995 S.C. 1440; See also Bhagwandas Narayandas v. Patel & Co., (1939) 42 Bom. L.R. 231.
[173] AIR 2000 SC 42.
[174] AIR 1993 Gau 35.
[175] 2004(2) Civil Court Cases 636 (A.P.).
[176] AIR 2003 SC 630.
[177] 2004(2) Civil Court Cases 63 (S.C.) : 2003(2) Apex Court Judgments 690 (S.C.).
[178] AIR 2002 H.P. 59.
[179] 2003(1) Civil Court Cases 582 (P&H).
[180] S.43.
[181] 2003(3) Criminal Court Cases 212 (Rajasthan).
[182] 2003(1) Apex Court Judgments 383 (S.C.).
[183] 1973 S.C.
[184] A.I.R. 1967 S.C. 1326.
[185] A.I.R. 2003 Ker. 114.
[186] (1882) 8 Q.B.D. 491: 51 L.J.Q.B. 380
[187] S.55.
[188] AIR 1965 SC 682.
[189] 2002(3) Criminal Court Cases 36 (Allahabad).
[190] A.I.R. 1959 S.C. 1041.
[191] A.I.R. 1991 S.C. 266.
[192] A.I.R. 1993 S.C. 2592.
[193] A.I.R. 2002 Ker. 133.
[194] AIR 2002 Kerala 133.
[195] 2002(3) Criminal Court Cases 640 (Karnataka).
[196] 2003(2) Apex Court Judgments 614 (S.C.) : 2004(2) Civil Court Cases 01 (S.C.).
[197] AIR 2002 Gauhati 46.
[198] IR 1991 Gau 17.
[199] Ss. 63-67., See also Topic 1.
[200] ILR 1976 (2) Ker.678.
[201] A.I.R. 1996 SC 1253: 1996 (8) SCC 357.
[202] A.I.R. 1947 (PC) 15.
[203] 2004(3) Civil Court Cases 45 (P&H).
[204] S.101.
[205] A.I.R 2000 S.C. 1203.
[206] A.I.R. 2004 S.C. 1067.
[207] 2003(2) Civil Court Cases 208 (P&H).
[208] S.102.
[209] A.I.R. 2004 S.C. 4404.
[210] S.103.
[211] A.I.R. 2003 Ker.265.
[212] A.I.R. 1981 S.C. 1021; (1981) 2 SCC 300.
[213] 2003(3) Civil Court Cases 247 (Madras).
[214] S.104.
[215] S.105.
[216] 2002(2) Criminal Court Cases 37 (Kant.).
[217] 2002(1) Criminal Court Cases 162 (Bom).
[218] S.106.
[219] A.I.R. (1993) S.C. 2119.
[220] 2004(4) Criminal Court Cases 714 (Madras).
[221] S.107.
[222] S.108.
[223] A.I.R. 1998 Ker. 365.
[224] AIR 2002 Kerala 219.
[225] S.109.
[226] S. 110.
[227] A.I.R. 1981 S.C. 695.
[228] S.111.
[229] (2004) 9 S.C.C. 468: A.I.R. 2003 4351.
[230] AIR 2002 SC 827.
[231] AIR 1941 All. 402.
[232] AIR 1970 All. 51 (F.B.).
[233] AIR 2003 SC 976.
[234] 2003(2) Apex Court Judgments 368 (S.C.).
[235] 1998 (2) KLT SN 108 P.86.
[236] A.I.R. 1992 S.C. 756.
[237] 2003(1) Civil Court Cases 582 (P&H).
[238] (1997) 9 S.C.C 338.
[239] A.I.R. 2003 S.C. 11.
[240] 2002(2) Criminal Court Cases 657 (Madras).
[241] AIR 2003 SC 2324.
[242] 2004(2) Criminal Court Cases 468 (S.C.).
[243] Explanation to S. 304B says that for the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961.
[244] ILR 1995 (1) Ker 162.
[245] (1997) 4 S.C.C. 486.
[246] A.I.R. 2003 S.C. 2665.
[247] (2005) 2 S.C.C. 388: A.I.R. 2005 S.C. 785.
[248] 1995 Cri LJ 2728 (Mad).
[249] 2002(3) Criminal Court Cases 554 (Karnataka).
[250] 2004(2) Civil Court Cases 491 (A.P.).
[251] 2004(2) Civil Court Cases 593 (P&H).
[252] 2002(3) Criminal Court Cases 218 (A.P.).
[253] 2004(2) Civil Court Cases 491 (A.P.).
[254] This Explanation applies also to section 81A.
[255] 1832 A&E 469.
[256] AIR 2000 SC 103.
[257] AIR 2000 Raj 153.
[258] 2004(2) Civil Court Cases 63 (S.C.) : 2003(2) Apex Court Judgments 690 (S.C.).
[259] 2003(2) Apex Court Judgments 690 (S.C.) : 2004(2) Civil Court Cases 63 (S.C.).
[260] 2004(2) Civil Court Cases 63 (S.C.) : 2003(2) Apex Court Judgments 690 (S.C.).
[261] Estoppel by record means nothing more generally than that of the matter in resjudicata., Abdul Ghaffur v. Istiaq Ali AIR 1943 Oudh 354 (FB).
[262] In our society larger public ineterest must get priority over individual interest., R.K. Kawatra v. D.S.I.D.C.,AIR 1992 Del. 28.
[263] AIR 1968 SC 718.
[264] AIR 2001 Delhi 29.
[265] AIR 1979 M.P. 86.
[266] AIR 1979 SC.
[267] AIR 1987 SC 2239.
[268] AIR 1982 SC 120.
[269] 2003(3) Civil Court Cases 671 (P&H).
[270] S.121.
[271] S.122.
[272] S.123.
[273] S.124.
[274] S.125.
[275] S.126.
[276] S.127.
[277] S.129.
[278] AIR 1954 SC 704.
[279] A.I.R. 1967 Ker. 228.
[280] 1995 Cri.LJ.88 at p. 89 & 90.
[281] AIR 1970 SC 1876.
[282] 2003(3) Criminal Court Cases 193 (Bombay).
[283] 2003(2) Apex Court Judgments 608 (S.C.) : 2004(1) Criminal Court Cases 27 (S.C.).
[284] 2003(1) Criminal Court Cases 554 (P&H).
[285] 2004(1) Criminal Court Cases 416 (S.C.).
[286] 2004(1) Criminal Court Cases 416 (S.C.).
[287] 2004(2) Criminal Court Cases 768 (P&H).
[288] The proviso to S.5 of the Oaths Act prescribes that when a witness is a child under 12 years of age and the Court considers that though he understands the duty of speaking the truth, he does not understand what the oath means, the Court may dispense with the administration of the oath but the Judge should always, when dispensing with an oath, make a clear record that he was satisfied that the child understands the duty to speak the truth and should also state his reasons for thinking so., Badi Guravaiah v. State of AP, 1994(2) ALT 261 at 266 & 267(DB).
[289] 1994 Cr L J 66 SC.
[290] 1994(3) Recent CR103 Bombay.
[291] A.I.R. 2003 S.C. 1088.
[292] 2002(1) Criminal Court Cases 438 (Raj.).
[293] 2004(3) Civil Court Cases 145 (J&K).
[294] AIR 1999 Guj. 108.
[295] AIR 2000 SC 210.
[296] AIR 2002 SC 3137.
[297] A.I.R. 2004 S.C. 2294.
[298] 2003(2) Criminal Court Cases 271 (Chhattisgarh).
[299] AIR 2002 Calcutta 281.
[300] According to S. 143 a leading question may be asked in cross –examination.
[301] 1993 Cr. L J. 2010 (SC).
[302] 1992 (1) KLT 878.
[303] 2003(2) Criminal Court Cases 595 (M.P.).
[304] 2005(1) Criminal Court Cases 49 (S.C.).
[305] 2003(2) Criminal Court Cases 617 (A.P.).
[306] 2004(2) Civil Court Cases 23 (Karnataka).
[307] 2004(1) Criminal Court Cases 551 (Bombay).
[308] Ss.145 & 155.
[309] Ss.146 & 155.
[310] S.146.
[311] S.155.
[312] A.I.R. 1975 S.C. 1788.
[313] AIR 1954 SC 322.
[314] AIR 1990 SC 287.
[315] Ram Chander v. State of Haryana, 1981 Cri LJ 84 (Cr).
[316] 1997 (1) KLT SN 41 P.30.
[317] AIR 1981(4) SCC 191.