1. General Issues relating to law of evidence
(a)(i) Re enactment of past events for deducing blameworthiness or entitlements of the parties is the core enquiry of Evidence Law. Similarities between the historians, authors, media persons and lawyers in their re-enactment of past event enterprise.
(a)(ii) Why rules of evidence have different significance under the Adversarial System and Inquisitorial System of Justice?
(b) History of statutory evidence law in India - Pre and post Indian Evidence Act, 1872 realities - Role of Judiciary, particularly the apellate judiciary in updating the Evidence Law rules by Judicial creativity.
(c) 'Facts', 'Facts in Issue', 'Relevant Fact', 'Evidence-Oral and Documentary', 'Proved', 'Disproved' and 'Not proved'.
(d) Relationship between law of Evidence and substantiative laws (Criminal and Civil Laws) and procedural laws ( CrPC & CPC )
S 3. Interpretation clause -
In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:—
“Court”. —“Court” includes all Judges1 and Magistrates, 2and all persons, except arbitrators, legally authorized to take evidence.
“Fact”.—“Fact” means and includes—
(1) any thing, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
“Relevant”.—One fact is said to be relevant to another when the one is
connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
“Facts in issue”.—The expression “facts in issue” means and includes—
any fact from which, either by itself or in connection with other facts, the
existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation.—Whenever, under the provisions of the law for the time being in force relating to Civil Procedure,3any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.
Illustrations
A is accused of the murder of B.
At his trial the following facts may be in issue:—
That A caused B's death;
That A intended to cause B's death;
That A had received grave and sudden provocation from B;
That A at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature.
“Document”.—“Document”4 means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
Illustrations
A writing5 is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.
“Evidence”.—“Evidence” means and includes—
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry,
such statements are called oral evidence;
(2) 6[all documents including electronic records produced for the inspection of the Court],
such documents are called documentary evidence.
“Proved”.—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
“Disproved”.—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
“Not proved”.—A fact is said not to be proved when it is neither proved nor disproved.
7[“India”.—“India” means the territory of India excluding the State of Jammu and Kashmir.]
8[the expressions “Certifying Authority”, “digital signature”, “Digital Signature Certificate”, “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act, 2000.]
COMMENTS
Admissibility of contemporaneous tape-record
A contemporaneous tape-record is admissible under section 8 if (i) the conversation is relevant to the matters in issue; (ii) there is identification of the voice; (iii) the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record; R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157.
Court to scrutinize evidence
(i) It is the duty of court to scrutinize the evidence carefully and to see that acceptable evidence is accepted; State of Gujarat v. Gandabhai Govindbhai, 2000 Cr LJ 92 (Guj).
(ii) Court should adopt cautious approach for basing conviction on circumstantial evidence; State of Haryana v. Ved Prakash, 1994 Cr LJ 140 (SC).
Evidence of eye witness
(i) Having examined all the eyewitnesses even if other persons present nearby, not examined, the evidence of eyewitness cannot be discarded , courts are concerned with quality of evidence in a criminal trial. Conviction can be based on sole evidence if it inspires confidence; Sheelam Ramesh v. State of Andhra Pradesh, AIR 2000 SC 718: 2000 Cr LJ 51 (SC).
(ii) Where there are material contradictions creating reasonable doubt in a reasonable mind, such eye witnesses cannot be relied upon to base their evidence in the conviction of accused; Nathia v. State of Rajasthan, 1999 Cri LJ 1371 (Raj).
(iii) Evidence of an eye witness cannot be disbelieved on ground that his statement was not recorded earlier before he was examined in motor accident claim case by police; Fizabai v. Namichand, AIR 1993 MP 79.
(iv) Where court acquitted accused by giving benefit of doubt, it will not affect evidence of eye witnesses being natural witnesses; Krishna Ram v. State of Rajasthan, AIR 1993 SC 1386.
Identification by photo admissible
There is no legal provision that identification by photo is not admissible in evidence; Umar Abdul Sakoor Sorathia v. Intelligence Officer M.C. Bureau, 1999 Cr LJ 3972 (SC).
Interested witness
(i) It has been held regarding “interested witness” that the relationship is not a factor to affect credibility of witness; Rizan v. State of Chhattisgarh, AIR 2003 SC 976.
(ii) Testimony of injured eye witnesses cannot be rejected on ground that they were interested witnesses; Nallamsetty Yanasaiah v. State of Andhra Pradesh, AIR 1993 SC 1175.
(iii) The mechanical rejection of evidence on sole ground that it is from interested witness would invariably lead to failure or justice; Brathi alias Sukhdev Singh v. State of Punjab, 1991 Cr LJ 402 (SC).
Maxim “Falsus in uno falsus in omnibus”
(i) “Falsus in uno, Falsus in Omnibus” is not a rule of evidence in criminal trail and it is duty of the Court to engage the truth from falsehood, to shift grain from the chaff; Triloki Nath v. State of U.P., AIR 2006 SC 321.
(ii) The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. The maxim merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence“; Israr v. State of Uttar Pradesh, AIR 2005 SC 249.
Natural witness
Witnesses being close relations of deceased living opposite to house of deceased, are natural witnesses to be believed; Om Parkash v. State of Punjab, AIR 1993 SC 138.
Testimony: when to be relied
(i) The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds; Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311.
(ii) Rejection of whole testimony of hostile witness is not proper; Ashok Kumar v. P.M.A. Chanchal, AIR 1999 Guj 108.
(iii) Where evidence of some witnesses was found not safe for conviction, whole of their testimony should not be rejected; Nadodi Jayaraman v. State of Tamil Nadu, AIR 1993 SC 777.
(iv) The testimony of a single witness if it is straightforward, cogent and if believed is sufficient to prove the prosecution case; Vahula Bhushan alias Vehuna Krishna v. State of Tamil Nadu, 1989 Cr LJ 799: AIR 1989 SC 236.
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2. RELEVANCY AND ADMISSIBILITY OF FACTS
(a) (i) Logically relevant facts ( Ss 5-9, 11)
Section 5(IEA). Evidence may be given of facts in issue and relevant facts -
Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation - This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.1
Illustrations
(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.
At A's trial the following facts are in issue -
A's beating B with the club;
A's causing B's death by such beating;
A's intention to cause B's death.
(b) A suitor does not bring with him and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to product the bond or prove its contents at a subsequent stage of the proceedings otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.
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6. Relevancy of facts forming part of same transaction -
Facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact.
(b) A is accused of waging war against the 1Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
(d) The question is whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.
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Sec 7. Facts which are occasion, cause or effect of facts in issue -
Facts Which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.
Illustrations
(a) The question is, whether A robbed B.
The facts that, shortly before the robbery B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant.
(b) The question is, whether A murdered B.
Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.
(c) The question is, whether A poisoned B.
The state of B's health before the symptoms ascribed to poison and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts
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Sec 8. Motive preparation and previous or subsequent conduct -
Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1. - The word "conduct" in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
Explanation 2. - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
Illustrations
(a) A is tried for the murder of B.
The facts that, A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.
(b) A sues B upon a bond for payment of money. B denies the making of the bond.
The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, it relevant.
(c) A is tried for the murder of B by poison.
The fact that, before the death of B,A procured poison similar to that which was administered to B, is relevant.
(d) The question is, whether a certain document is the will of A.
The facts that not long before the date of the alleged will A made inquiry into matters to which the provisions of the alleged will relate that he consulted vakils in reference to making the will, and that he caused drafts or other wills to be prepared of which he did not approve, are relevant.
(e) A is accused of a crime.
The facts, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favorable to himself, on that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.
(f) The question is, whether A robbed B.
The facts that, after B was robbed, C said in A's presence - "the police are coming to look for the man who robbed B" and that immediately afterwards A ran away, are relevant.
(g) The question is, whether A owes B rupees 10,000.
The fact that, A asked C to lend him money, an that D said to C in A's presence and hearing "Advice you The Orient Tavern to trust A, for he owes B 10,000 rupees" and that A went away without making any answer, are relevant facts.
(h) The question is, whether A committed a crime.
The facts that, A absconded after receiving a litter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.
(i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.
(j) The question is whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made, are relevant.
The facts that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.
(k) The question is whether A was robbed.
The fact that, soon after the alleged robbery, he made a complaint, relating to the offence, the circumstances under which, and the terms in which the complaint was made, are relevant.
The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.
COMMENTS
Ground for rejection of testimony of eye witness
The conduct of an eye witness in non-disclosing the incident to anybody for a number of days, is highly unnatural one and is sufficient to reject his testimony; Ganpat Kondiba Chavan v. State of Maharashtra, (1997) 2 Crimes 38 (Bom).
It is well settled that the conduct of a witness in not disclosing the incident to person(s) whom he must have met after the incident is indicative of the fact that he had not seen the accident; Ganpat Kondiba Chavan v. State of Maharashtra, (1997) 2 Crimes 38 (Bom).
Role of motive in an offence
If motive is proved, the case of prosecution becomes more easier to connect accused to the alleged incident; P.V. Narayana v. State of Andhra Pradesh, (1997) 2 Crimes 307 (AP).
Normally there is a motive behind every criminal act; Barikanoo v. State of Uttar Pradesh, (1997) 1 Crimes 500 (All).
When motive is not sine qua non
Where the ocular evidence is very clear and convincing and the role of the accused person in the crime stands clearly established, establishment of motive is not a sine qua non for proving the prosecution case; Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539.
It is well settled that where the direct evidence regarding the assault is worthy of the credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes the motive is shrouded in the mystery and it is very difficult to locate the same. If, however, the evidence of eye witnesses is credit-worthy and is believed by the court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant; Raja v. State, (1972) 2 Crimes 175.
Motive is a thing primarily known to the accused himself and it may not the possible for the prosecution in each and every case to find out the real motive behind the crime; Barikanoo v. State of Uttar Pradesh, (1997)1 Crimes 500 (All).
It is well established that where there is an eyewitness account regarding the incident, the motive loses all its importance; Barikanoo v. State of Uttar Pradesh, (1997) 1 Crimes 500 (All).
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Sec 9. Facts necessary to explain or introduce relevant facts -
Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.
Illustrations
(a) The question is, whether a given document is the will of A.
The state of A's property and of his family at the date of the alleged will may be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A;B affirms that the matter alleged to be libelous is true.
The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.
The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.
(c) A is accused of a crime.
The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 8, as a conduct subsequent to and affected by facts in issue.
The fact that, at the time when he left home he had sudden and urgent business at the place to which he went is relevant, as tending to explain the fact that he left home suddenly.
The details of the business on which he left are not relevant except in so far as they are necessary to show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract of service made by him with A.C, on leaving A's service, says to A - "I am leaving you because B has made me better offer." The statement is a relevant fact as explanatory of C's conduct which is relevant as a fact in issue.
(e) A, accused of theft is seen to give the stolen property to B, who is seen to give it to A's wife. B says as he delivers it "A says you are to hide this." B's statement is relevant as explanatory of a fact which is pat of the transaction.
(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.
COMMENTS
Identification accused
(i) If the test identification parade regarding accused was not conducted properly and suffered from unexplained delay, he is entitled to benefit of doubt; Rajesh Govind Jagesha v. State of Maharashtra , AIR 2000 SC 160: 2000 Cr LJ 380 (SC).
(ii) The possibility of wrong identification due to loss of memory cannot be discounted; Pravakar Behera v. State of Orissa , (1997) 2 Crimes 108 (Ori)
(iii) When conviction was based on evidence of eye witness and not on identification parade it cannot be set aside on ground that identification was not reliable; Mullagiri Vajiram v. State of Andhra Pradesh, AIR 1993 SC 1243.
(iv) In dacoity case where all witnesses identified suspects as culprits without margin of error creating doubt in mind of court, such identification is liable to be set aside; Tahir Mohamad, Kamad Girendra Singh and Badri Singh v. State of Madhya Pradesh, AIR 1993 SC 931.
(v) Where both the trial court and the Appellate Court had assessed the evidence in the proper perspective and attached much importance to the evidence in regard to the identification of the appellant in finding him guilty, the Supreme Court would not re-assess that evidence in absence of an exceptional ground necessitating such re-assessment; Ramdeo Rai Yadav v. State of Bihar, (1990) Cr LJ 1183 (SC).
(vi) If there is unexplained and unreasonable delay in putting up the accused persons for a test identification the delay by itself detracts from the credibility of the test; Raj Nath v . State of Uttar Pradesh, 1988 Cr LJ 422: AIR 1988 SC 345.
(vii) The test identification parade conducted three and a half months after the dacoity took place, it would be wrong to convict the accused on single testimony; Wakil Singh v. State of Bihar, 1981 BLJ 462.
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Sec 11. When Facts not otherwise relevant become relevant -
Facts not otherwise relevant, are relevant.
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
Illustrations
(a) The question is, whether A committed a crime at Calcutta on a certain day.
The fact that, on that day, A was at Lahore, is relevant.
The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant.
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(ii) Special class of relevant facts relating to Conspiracy - S10
Sec 10. Things said or done by conspirator in reference to common design -
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose showing that any such persons was a party to it.
Illustration
Reasonable grounds exists for believing that A has joined in a conspiracy to wage war against the 1Government of India.
The facts that, B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D Persuaded persons to join the conspiracy in Bombay. E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.
Comments
Existence of conspiracy
If prima facie evidence of existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all; Jayendra Saraswati Swamigal v. State of Tamil Nadu, AIR 2005 SC 716.
Object
Section 10 has been deliberately enacted in order to make acts and statements of a co-conspirator admissible against the whole body of conspirators, because of the nature of crime; Badri Rai v. State of Bihar, AIR 1958 SC 953.
Significance of “common intention”
The words “common intention” signify a common intention existing at the time when the thing was said, done or written by the one of them. It had noting to do with carrying the conspiracy into effect; Mirza Akbar v. Emperor, AIR 1940 PC 176.
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(b) Stated relevant facts
(i) Admissions - Ss 17-23
S 17. Admission defined -
An admission is a statement, 1oral or documentary which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.
Comment
Admissibility is substantive evidence of the fact
Admissibility is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness; Bishwanath Prasad v. Dwarka Prasad, AIR 1974 SC 117.
S 18. Admission by party to proceeding or his agent
Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to made them, are admissions.
By suitor in representative character - Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.
Statements made by -
(1) by party interested in subject matter; persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested; or
(2) by person from whom interest derived; persons from whom the parties to the suit have derived their interest in the subject-matter of the suit,are admissions, if they are made during the continuance of the interest of the persons making the statements.
Sec 19. Admissions by persons whose position must be proved as against party to suit-
Statements made by persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against the made if they are made whilst the person making them occupies such position or is subject of such liability.
Illustration
A undertakes to collect rent for B.
B sues A for not collecting rent due from C to B.
A denies that rent was due from C to B.
A statement by C that he owned B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.
Sec 20. Admission by persons expressly referred to by party to suit -
Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.
Illustration
The question is, whether a horse sold by A to B is sound A says to B "Go and ask CC knows all about it" C's statement is an admission.
COMMENTS
In eviction suit where person having power of attorney for tenant admits arrears of rent tenant subsequently cannot resile from such admission; Ram Sahai v. Jai Prakash, AIR 1993 MP 147.
21. Proof of admission against persons making them, and by or on their behalf -
Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they con not be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases.
(1) An admission ma be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead it would be relevant as between third person under section 32.
(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.
Illustrations
(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged.
A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine nor con B Prove a statement by himself that the deed is gorged.
(b) A the captain of a ship, is tried for casting her away.
Evidence is given to show that the ship was taken out of her proper course.
A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statement, because they would be admissible between third parties, if he were dead under Section 32, Clause (2).
(c) A is accused of a crime committed by him at Calcutta.
He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day.
The statement in the date of the letter is admissible, because if A were dead it would be admissible under Section 32, Clause (2).
(d) A is accused of receiving stolen goods knowing them to be stolen.
He officers to prove that he refused to sell them below their value.
A may prove these statements though they are admissions, because they are explanatory of conduct influenced by facts in issue.
(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit.
He offers to prove that he asked a skilful person to examine the coins as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine.
A may prove these facts for the reasons stated in the last proceeding illustration.
S 22. When oral admission as to contents of documents are relevant -
Oral admissions as to the contents of a document are not relevant unless and until the party proposing them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.
S 22A.When oral admissions as to contents of electronic records are relevant.-
1[22A. When oral admissions as to contents of electronic records are relevant.—Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.]
23. Admission in Civil cases, when relevant -
In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given
Explanation - Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under Section 126.
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(ii) Confessions - Ss 24 - 30
24. Confession by inducement, threat or promise when irrelevant in criminal proceeding -
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, 1having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.
COMMENTS
Extra judicial confession
Extra-judicial confession made to village Administrative Officer by accused is admissible; Shiv Kumar v. State by Inspector of Police, AIR 2006 SC 653.
It is difficult to rely upon the extra judicial confession as the exact words or even the words as nearly as possible have not been reproduced. Such statement cannot be said to be voluntary so the extra judicial confession has to be excluded from the purview of consideration for bring home the charge; C.K. Raveendran v. State of Kerala, AIR 2000 SC 369.
The extra-judicial confession cannot be sole basis for recording the confession of the accused, if the other surrounding circumstances and the materials available on the record do not suggest his complicity; Chaya Kant Nayak v. State of Bihar, (1997) 2 Crimes 297 (Pat).
An extra-judicial confession, if it is voluntary truthful, reliable and beyond reproach, is an efficacious piece of evidence to establish the guilt of the accused and it is not necessary that the evidence of extra-judicial confession should be corroborated on material facts; Laxman v. State of Rajasthan, (1997) 2 Crimes 125 (Raj).
Where confession was not disclosed to the wife of deceased but it was disclosed to the police officer and was not corroborated, the extrajudicial confession is not reliable; Surinder Kumar v. State of Punjab, AIR 1999 SC 215.
An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extra-judicial confession; Balwinder Singh v. State of Punjab, (1995) Supp (4) SCC 259.
It is well settled now that a retracted extra-judicial confession, though a piece of evidence on which reliance can be placed, but the same has to be corroborated by independent evidence. If the evidence of witness before whom confession made was unreliable and his conduct also doubtful and there is no other circumstance to connect accused with crime, conviction based solely on retracted extra-judicial confession is not proper and the accused is entitled to acquittal; Shakhram Shankar Bansode v. State of Maharashtra, AIR 1994 SC 1594.
The extra-judicial confession not trustworthy cannot be used for corroboration of any other evidence; Heramba Brahma v. State of Assam, AIR 1982 SC 1595.
Where confessional statement is inconsistent with medical evidence, conviction of accused solely based on extra-judicial confession is not proper; Chittar v. State of Rajasthan, 1994 Cr LJ 245 (SC).
Tape-recording of confession denotes influence and involuntariness. Accused is entitled to be acquitted; State of Haryana v. Ved Prakash, 1994 Cr LJ 140 (SC).
The confessional statement recorded by 1st Class Magistrate rightly held to be correct; Manguli Dei v. State of Orissa, 1989 Cr LJ 823: AIR 1989 SC 483.
The general trend of the confession is substantiated by some evidence, tallying with the particulars of confession for conviction of the accused; Madi Ganga v. State of Orissa, AIR 1981 SC 1165: 1981 Cr LJ 628: (1981) 2 SCC 224: 1981 SCC (Cr) 411.
When statement Amounts to confession
A statement in order to amount to a ‘confession’ must either admit in terms of offence, or at any rate substantially all the facts which constitute the offence; Veera Ibrahim v. State of Maharashtra, AIR 1976 SC 1167.
25. Confession to police officer not to be proved -
No confession made to police officer1 shall be proved as against a person accused of any offence.
COMMENTS
Admissibility
Any confessional statement given by accused before police is inadmissible in evidence and cannot be brought on record by the prosecution and is insufficient to convict the accused; Ram Singh v. State of Maharashtra, 1999 Cr LJ 3763 (Bom).
Scope
If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by section 25; Aghnu Nagesia v. State of Bihar, AIR 1966 SC 119.
26. Confession by accused while in custody of police not to be proved against him -
No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate1, shall be proved as against such person.
,2[Explanation.—In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George ,3[***] or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882),4].
COMMENTS
The confession made while in custody is not to be proved against the accused as the provisions of sections 25 and 26 do not permit it unless it is made before a magistrate; Kamal Kishore v. State (Delhi Administration), (1997) 2 Crimes 169 (Del).
27. How much of information received from accused may be proved
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
COMMENTS
Applicability
For the application of section 27 the statement must be split into its components and to separate the admissible portion. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected; Mohd. Inayatullah v. State of Maharashtra, AIR 1976 SC 483.
Condition for operation
The condition necessary to bring the section 27 into operation is that the discovery of a fact in a consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved; Pulukuri Kottaya v. Emperor, AIR 1947 PC 119.
Discovered fact
A fact discovered in an information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered from the accused which was not within the knowledge of the police before recording the disclosure statement of the accused; Kamal Kishore v. State (Delhi Administration), (1997) 2 Crimes 169 (Del).
Where a witness was related to deceased and resident of another place, even then his evidence regarding recovery of weapons and clothes cannot be discarded; State of Madhya Pradesh v. Rammi, 1999 (1) JLJ 49.
Scope
Under section 27 it is not necessary that a disclosure statement must be signed by maker of the same or that thumb impression must be affixed to it; K.M. Ibrahim alias Bava v. State of Karnataka, 2000 Cr LJ 197 (Karn).
A confession made by an accused person while he is in custody must be excluded from evidence and permits the admission of such a confession under the condition prescribed by this section; Kamal Kishore v. State (Delhi Administration), (1997) 2 Crimes 169 (Del).
S 28. Confession made after removal of impression caused by inducement, threat or promise, relevant -
If such a confession as is referred to in Section 24 is made after the impression caused by any inducement, threat or promise has, in the opinion of the Court been fully removed it is relevant.
S 29. Confession otherwise relevant not to become irrelevant because of promise of secretary etc. -
If such a confession is otherwise relevant, it does not become it was made under a promise of secrecy. or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to question which he need not have answered, whatever may have been the form of those question, or because he was not warned that he was bound to make such confession, and that the evidence of it might be given against him.
S 30. Consideration of proved confession affecting person making it and others jointly under trail for same offence -
When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
1Explanation - "Offence" as used in this Section, includes the abutment of, r attempt to commit, the offence.
Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said - "B and I murdered C". the court may consider the effect of this confession as against B.
(b) A is on his trail for the murder of C. There is evidence to show that C was murdered by A and B, and that B said, "A and I murdered C". The statement may not be taken into consideration by the Court against A as B is not being jointly tried.
COMMENTS
Accused's confession cannot be used against co-accused
The statement of the accused leading to the discovery, or the informatory statement amounting to confession of the accused, cannot be used against the co-accused with the aid of section 303; Kamal Kishore v. State (Delhi Administration), (1972) 2 Crimes 169 (Del).
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(iii) Dying Declarations - S32(1)
S 32. Case in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant -
Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases -
(1) When it relates to cause of death - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
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(c) Opinion of third person when relevant - Ss 45 - 51
45. Opinions of experts -
When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing 1or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, 2or in questions as to identity of handwriting 1or finger impressions, are relevant facts.
Such person called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.
The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant.
Comments
Conflict of opinion of Experts
When there is a conflict of opinion between the experts, then the Court is competent to form its own opinion with regard to signatures on a document; Kishan Chand v. Sita Ram, AIR 2005 P&H 156.
Expert opinion admissibility
Requirement of expert evidence about test firing to find out whether double barrel gun is in working condition or not, not necessary; Jarnail Singh v. State of Punjab, AIR 1999 SC 321.
The evidence of a doctor conducting post mortem without producing any authority in support of his opinion is insufficient to grant conviction to an accused; Mohd Zahid v. State of Tamil Nadu, 1999 Cr LJ 3699 (SC).
Opinion to be received with great caution
The opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution; Ram Narain v. State of Uttar Pradesh, AIR 1973 SC 2200.
S 46. Facts bearing upon opinions of experts -
Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts when such opinions are relevant.
Illustrations
(a) The question is, whether A was poisoned by a certain poison.
The fact that other persons who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.
(b) The question is, whether an obstruction to a harbour is caused by a certain seawall.
The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time is relevant.
COMMENTS
Admissibility
The science of identification of footprints is not a fully developed science and therefore if in a given case, evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence; Mohd. Aman v. State of Rajasthan, (1997) 4 Supreme 635.
S 47. Opinions as to handwriting, when relevant -
When the Court has to form an opinion as to the person by whom document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received document purporting to be written by that person in answer to documents written by himself to under his authority and addressed to that person, or when in the ordinary course of business document purporting to be written by that person have been habitually submitted to him.
Illustrations
The question is whether a given letter is in the handwriting of A, a merchant in London.
B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. G is B's clerk, whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted thee letters purporting to be written by A for the purpose advising with him thereon.
The opinions of B,C and D on the question, whether the letter is in the handwriting of A, are relevant though neither B, C or D ever saw A, write.
S 47A. Opinion as to digital signature when relevant -
(1)47A. Opinion as to digital signature when relevant.—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.
S 48. Opinion as to existence of right or custom when relevant -
When the Court has to form an opinion as to existence of any general custom or right, the opinions as to the existence of such custom or rights, of persons who would be likely to know of its existence if it existed, are relevant.
Explanation - The expression "general custom or right" includes customs or right common The Orient Tavern any considerable class of persons.
Illustrations
The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.
S 49. Opinion as to usage's, tenants, etc., when relevant -
When the Court has to form an opinion as to -
the usage's and tenants of any body of men or family,
the constitution and government of any religious or charitable foundation,
or
the meaning of words or terms used in particular districts or by particular classes of people,
the opinions of persons having special means of knowledge thereon, are relevant facts.
S 50. Opinion on relationship, when relevant -
When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
Illustrations
(a) The question is, whether A and B were married.
The fact that they were usually received and treated by their friends as husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.
Comments
Contradiction in evidence of relationship of witness of triffle nature, not material in a partition suit; Gowhari Das v. Santilata Singh, AIR 1999 Ori 61.
S 51. Grounds of opinion when relevant -
Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.
Illustration
An expert may give an account of experiments performed by him for the purpose of forming his opinion.
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(1) St of Mah vs Prafulla B Desai(Dr) (2003) 4 SCC 601
wife - terminal cancer - Dr Greenberg(USA) -Inoperable - Mah Med Council - Evidence via video conferencing - S 273 CrPC - Maryland v Santra( US SC) Rec of evi via video conferencing not a violation of 6th Amendment(Confrontation clause) - endeavour to provide truth - Nageshwar Krishna Ghobe vs St of Mah - Just Bhagwati in National Textile Worker's Union vs P.R Ramakrishnan(1983) held law cannot stand still, must change with changing social concepts & values - St vs SJ Choudhary IEA1872 an ongoing act S45 handwriting incl typewriting, same principle - telegraph incl telephone, banker book -> microfilm, to take note incl tape recording, docs incl comp databases - Basavaraj R Patil v St of Karnataka - whtr acc needs to physically present in court to ans question put to him whilst recording his stmnt under 313 CrPC - held sec to be held in light of revolutionary change in technology - court observed vid conf adv in sci & tech - rec in court in pres of resp & his council - offr ensure resp council has full opp to cross exam Dr Greenberg - Decision S3 IEA, evi can be both oral & doc, and electronic records(incl video conferencing) can be produced as evidence
(2) R.M Malkani vs State of Mah AIR 1973 SC 157
Tape rec conv admissible in evidence provided conversation relevant to matter in issue, voice identifiable, possibility of erasing parts of tape eliminated - when tape rec is a contemporous rec of such conversation its relvant under S6 - res gestae - also admissible under S7 - doc under S3 - also under S8,9,10,11 - Evidentiary value - with caution - genuine nd free frm tampering - if tape obtained unlawfully then also admissible - detection by deception - form of police procedure - Magraj Patodia vs RK Birla held doc even if obtained by improper means it is admissible if relevant and genuine - Madras HC in R Venkatesan vs St evidentiary val of tape - broken, voice not audible nd not properly identified - held unsafee to rely on - Bom HC in CR MEhta vs St of Maharashtra - tape rec evidence if its to be acceptable has to be sealed at earliest pt of time and not be opened except under order of court - Ram Singh vs Col Ram Singh SC tightened the rule as to relevancy of tape - must be shown tape in safe custody after recording - Dep Comm left tape with Stenographer enough to destroy authenticity of tape - how cassete came into existence - an imp consideration - Quammaral Islam vs SK Kanta - election speech - police officer - no reason why tape recorded - Rejected tape evidence
(3) Mirza Akbar vs Emperor AIR 1940 PC 176
W wife of X & her paramour B hired C (assassin to kill X) - C caught red handed - B who reached the spot pleaded that C is innocent - W,B & C prosecuted for murder & conspiracy to murder - principle evidence - love letters bw W & B - expressed deep love reffered to money & means - W made stmnt befr magistrate after arrest - her letters nd stmnts admitted against B as evi -> common intention - B appealed to Privy C against relevancy of dis evidence - held that letters relevant under S10 as terms were only consistent with a conspiracy bw W & B to procure death of X as letters written when conspiracy was going on and fr the purpose of attaining their object - Stmnt to magistrate held nt relevant u/s10 as object of conspiracy hd cme to an end(X killed) - Common intent - Emperor vs Ganesh Raghunath distinction rightly drawn bw communcation bw conspirators while conspiracy ws on and stmnt made after arrest or after conspiracy hd ended - Badri Rai vs St of Bih - Ramji & Badri arrested fr bribing a police offr - Inspector on way to Police St - Both Ramji & Badri approached him and req hush up a case(offrd bribe) - Insp askd them to come to Police St(reported matter to senior) - Badri came with packet(currency) - He told inspector Ramji hd sent the money as consideration fr hushing up case - insp siezed money & FIR - question befr SC whtr St of Badri nd money packt in Pol St relevant against Ramji - SC held common intent - relevant against Badri also relevant against Ramji
R vs Blake & Tye - S ws an officer emplyd in Customs House and R an agent fr importers at sme place - Both charged with conspiracy to dodge customs dept by passing goods w/o paying full duty - R made 2 entries in book - 1 of the book ws used for carrying out fraud and entries were neccessary for that purpose - Othr his private record - held tht book used fr carrying out fraud relevant but othr book nt relevant - 2nd book mere share of plunder - after conspiracy has ended - Essence act of conspirator relevant against other only if act ws done to achieve the object of conspiracy i.e. in furtherance of common object - "Any narrative or stmnt or confession made to 3rd party after common intent or conspiracy ws no longer operating nt relevant "
(4) Badri Rai vs St of Bihar, AIR 1958 SC 953
S10 neccessary evil - BP Sinha J - "S10 deliberately enacted in order to make acts against whole body of conspirators admissible against the other becoz of nature of crime. A conspiracy is hatched in secrecy & executed in darkness. Thr4 nt feasible fr prosecution to connect each isolated act/stmnt of one accused with acts/stmnts of the others, unless thr is a common bond linking all of them 2gethr"
Ramji & Badri arrested fr bribing a police offr - Inspector on way to Police St - Both Ramji & Badri approached him and req hush up a case(offrd bribe) - Insp askd them to come to Police St(reported matter to senior) - Badri came with packet(currency) - He told inspector Ramji hd sent the money as consideration fr hushing up case - insp siezed money & FIR - question befr SC whtr St of Badri nd money packt in Pol St relevant against Ramji - SC held common intent - relevant against Badri also relevant against Ramji
(5) Mohd Khalid vs St of WB (2002) 7 SCC 334
Appellants chrgd fr striking terror in ppl using explosive & killing large no of ppl in pursuance of criminal conspiracy - TADA court found them guilty of offences - imp ques raises during appeal - whthr confessional stmnt of a co-conspirator recorded 2 days after incident & nt immediately(while it was possible to do so) can come withing ambit of S10 IEA? - Court Observed - no distinction bw mode of proof of offence of conspiracy & tht of any othr offence, it cn be estb by direct or circumstantial evidence - privacy & secrecy r more characteristic of a conspiracy than of a loud discussion in an elevated place open to public to view - Direct evid in proof of consipiracy seldom available - Offence of conspiracy cn be proved by either direct or circumstantial evidence - nt always possible to give affirmative evidence abt date of formation of conspiracy - abt persons who took part in the formation of conspiracy abt the object of conspiracy, abt manner in which obj of conspiracy to be carried out - all this is neccessary a matter of inference - thr4 circumstantial evidence proved befr & after occurence have 2 be considered to decide abt complicity of accussed - express agreement need nt be proved - nor actual meeting of two persons in neccessary - nor neccessary to prove actual words of communication - evidence of transmission of thoughts sharing unlawful design sufficient - whr trustworthy evidence estb all links of circumstantial evidence available the confession of co-accused as to conspiracy even without corrobrative evidence can be taken into consideration - S10 existence of reasonable ground to believe the conspirators have conspired 2gether - dis condition satisfied even when thr is sme prima facie evidence to show criminal conspiracy - if above condition fulfilled then anything said by one of the conspirators becomes substantiative evidence against the others provided stmnt in ref to their common intention - stmnt in ref to common intent wider than stmnt in furtherance to common intention - intention -> volition of mind immediately preceding act, object -> end to which effort is directed - Intent implies resolution of mind, object means purpose fr which resolution ws made
But contention tht any stmnt of conspirator wud gain admissibility u/s 10 if made "in ref" to common intent is too broad a proposition for acceptance - basic principle underlining S10 is theory of agency - every conspirator is an agent of associate carrying out the object of conspiracy - S10 execption to general rule while permitting stmnts made by 1 conspirator as against anothr restricts it to the stmnt made during the period when agency subsisted - once it is shown tht person out of conspiracy any stmnt made subsequent thereto cannot be used against othr conspirators u/s10 - othr words post arrest stmnt to police offr whtr confession or not wud nt fall within ambit of S10 - Mirza Akbar vs King Emperor - "Any narrative or stmnt or confession made to 3rd party after common intent or conspiracy ws no longer operating nt relevant " - Sardul Singh Caveeshwar vs St of Bom - held rule in S10 confines the principle of agency in criminal matters to the acts of the co-conspirator within period during which it can be said tht conspirator ws on foot and in carrying out the conspiracy - evidence of co-consps outside the period not recievable as evidence - Given case -> obj of conspiracy hs nt been achvd n thr is still agreemnt 2do d illegal act d offence of conspiracy continues nd S10 applies - Prosecution hs led no evidence to show tht any particular accused continued to be a member of the conspiracy after his arrest
Conspirators connection w/ conspiracy automatically snapped after arrest(St of TN vs Nalini - Rajiv Gandhi murder case) - St of Guj vs Md Atik held that the prinicple is no longer res integra tht any stmnt made by accused after his arrest whtr as a confession or othrwse cannot fall within ambit of S10. Court also said confessional stmnt by person no longer alive wud vanish frm ken of evidentiary use
Sidharth vs St of Bihar -> held that a confessnl stmnt implicating othrs made after common intention no longer in existence is not admissible.
Jayendra Saraswati Swamigal vs St of TN - stmnt of conspirator recorded long after murder and made in absence of othrs w/ ref to past acts done in the actual course of carrying out the conspiracy were held to be stmnts taking pl aftr comm Intent ws no longer thr
St(NCT of Delhi) vs Navjot Sandhu -> .confessions made by conspirators in police custody u/s 32 POTA nt admissible agnst co-accusd u/s 10 IEA
Gov of NCT of Delhi vs Jaspal Singh -> suff material to reasonably believe thr ws a concert & connctn bw persons chrgd w/ common design, immaterial whtr they were strangers to each othr or ignorant of role of othr or no joint efforts bw them
Ram Narayan Popli vs CBI & K Hashim vs St of TN -> held thngs said done or written befr co-conspirator agnst whom evidence is sought to be prvd hd entrd d field of conspiracy or aftr he left it ws clearly covrd inspite of the fact it being related prior to commision of offence
St of TN vs J Jayalalitha - SC obsrvd -> ques of using anything said, done or written by any1 of such conspirators wud arise only if facts were to help to sustain d 1st limb of S10 i.e. reasonable grnd to believe tht 2 or more persons hv conspired 2gether to commit an offence but it is open to d court even at dis stage to consider d materials relating to wht an accused wud hv said, done or written w/ ref 2 common intent bw accused fr purpose of deciding whtr thr is reasonable grnd to believe tht d said accused wud hv been one of the conspirators
(6) Jayantibhai Bhenkerbhai v St of Guj (2002) 8 SCC 165
Q rgd plea of alibi u/s 11 nd burden of proof u/s 103 of IEA ws raised - court obsrvd - alibi - latin orig means elsewhere - alibi nt an exception (spcl or general) envisaged in IPC or anyothr law - only a rule of evidence recognized in S11 of IEA that facts whch r inconsistent with facts in issue are relevant - burd of proof -> accused - prosecution case nt weakened by mere fact tht accused used defence of alibi - court to weight scales - S103 burd of proof of any fact lies on d person who wants the court to believe of its existence - if balance of scales in favor accused then benefit of reasonable doubt
Munshi Prasad vs St of Bih -> held presence of a person at distance of 400-500 yards frm place of occurrence cannot be termed as elsewhere - plea of alibi based on physical impossibility of being at the scene of the crime hence distance is a material factor
Dasari Siva Prasad Reddy vs Public Prosecutor, HC , AP -> held failure on part of accused to estb alibi does not help prosecution case and cannot be held that accused ws present on scene of crime merely becoz he failed to estb alibi
Bikram Pandey vs St of Bih -> plea of alibi cannot be accptd in favor of accused becoz same ws accptd in fav of coaccused
Gade Lakshmi Mangraju vs St of Andhra Pradesh -> held presence of finger prints at scene of occurence is a +ve evidence but absence of fingerprints is nt enough to foreclose the presence of the persons concerned at the scene - 2 persons invlvd in murder - finger print of only one ws found on an almirah - accused did nt challenge the evidence when produced by the prosecution - held othr accuse cud nt challenge it - he ws nt heard to say that absence of his finger impression ws a guarantee of his absence frm scene of crime
(7) Bishwanath Prasad vs Dwarka Prasad, AIR 1974, SC 117
Q ws whtr certain properties belonged to the defndnt nd certain othrs were liable to partition? - opp party hd made stmnts in dispositions in an earlier suit tht they belonged to the defndnt - similar admission occurred in written stmnt filed by the plaintiff nd his father in d suit - it ws contended on behalf of plaintiff, relying on S145 IEA tht if a witness is to be contradicted by his own earlier stmnt, the stmnt must be put to him so tht he may hv an opportunity to explain it nd this ws nt done in the present case - thrfr admission in a prev case cannot be used against the plaintiff - Court obsrvd -. cardinal distinction bw a party who is d author of a prior stmnt nd a witness who is examined nd is sought to be discredited by the use of his prior stmnt - in d former case admission by a party is substantiative evidence if it fulfills the reqmnts of S21, in the latter case the a prior stmnt is used to discredit the credibility of witness nd does nt becme substantiative evidence - in former no neccessary reqmnt of the stmnt containing the admission having to be put to the party becoz its evidence proprio vigore(of its own force ) - latter case the court cannot be invited to disbelieve a witness on the strength of the prior contradictory stmnt unless it hs been put to him as reqd by S145 - admissions are substantiative evidence by themselves,though they are nt conclusive proof of the matters admitted - admissions duly proved r admissible evidence irrespective of whthr party making them appeared in the witness box or not & whthr he ws confronted w/ these stmnts in case he made a stmnt contrary to these admissions (vide Bharat Singh's case) - court further said tht admissions are usually telling against the maker unless reasonably explnd and no acceptable grnd to extricate the appellants frm the effect of their own earlier stmnt hs been made out - court thus held tht an admission is an earlier suit is relevant evidence against the plaintiff
(8) CBI vs VC Shukla, AIR 1998, SC1406 ( Hawala Case)
Alleged tht during 1988 - 1991 the Jains(accused) entered into a criminal conspiracy among themselves, the obj of which ws to recieve unaccounted money & to disburse the same to their companies, frnds, close relatives and othr persons including public servants and political leaders of India - in pursuance of said conspiracy S.K. Jain lobbied w/ various public servnts and govt orgs to persuade them to award contract to diff foriegn bidders with motive of getting illegal kickbacks(through hawala channels) frm them - an accnt of receipts & disbursements of the monies ws maintained by J.K. Jain in dairies n files recovrd frm his house- Jain bros authenticated the same - held tht entries in the diary showing the names of certain persons to whom payments were supp to hv been made were nt suff to create a reasonable ground to believe tht a conspiracy existed bw the persons whose name ws mentioned in the diary and person who was keepng the diary - diary does not amt to an admission of conspiracy - court obsrvd ordinarily a person cannot be made resp fr acts of othrs, unless they hv been instigated by him or done w/ his knowledge or consent - S10 provides an exception to this rule by laying down tht an overt act, committed by one of d conspirators is sufficient on the principles of agency to make it an act of all - but such concept of agency can only be availed if the court is satisfied tht thr is reasonable grnd to believe tht they have conspired to commit an offence or an actionable wrong - court also held tht only voluntary & direct ack of guilt is a confession but if it falls short of actual admission of guilt it may be used as evidence against the person who made it or his authorized agent as an admission under S21 - thus entries in diaries nt relevant against persons named as the recipient of the money but as bw Jain bros they were relevant as admissions under S18 as the stmnt of an agent who ws authorized to make the payments - further it ws held on facts tht entries in the Jain hawala diaries, though admissible were nt capable of charging anybody with liability being nt supported by independent evidence as to their truthfulness
(9) Veera Ibrahim vs St of Mah, AIR 1976, SC 1167
Person being prosecuted under Customs Act told customs officer that he did nt knw tht the good loaded in his truck were contraband, nor they were loaded on his instructions. Court held stmnt ws nt a confession but it did amt to an admission of an incriminatory fact(namely load of contraband goods) thr4 it ws relevant under S17 rw S21
(10) Aghnoo Nagesia v St of Bihar, AIR 1966, SC 119
X goes to Police St -> confessional FIR (narrates full facts on how he killed his girlfrnd)-> Police reg case u/s 302 IPC against X -> FIR hs 4 distinct parts particulars relating to (a) his identity, address, etc (b) motive nd preparations (c) actual killing (d) after killing conduct such as hiding the dead bodies, concealing the knife and his blood stained clothes. On the basis of this info police recovered the dead bodies, knife & clothes. X is on trial and the FIR is the only evidence against him - principle evidence: confessional FIR containing 18 parts nd thr ws no eye witness - medical report confirmed wound on dead body caused by sharp weapon - ques -> whtr FIR or any portion of it ws admissible in evidence - appellants contention tht entire stmnt is a confession made to a police offr and is nt proved u/s 25 against the appellants - Respondent contended S25 only protects only those stmnt which disclose the killing by the appellant(confessional parts) and rest of the stmnt is nt protected u/s 25 relevant u/s 27 - Court obsrvd:- A confession or admission is evidence against the maker unless its admissibility is excluded by some provisions of law - S24 excludes confessions caused by certain inducements, threats & promises - S25 provides tht no confession made to a pol offr shall be proved as against a person accused of any offence - thrfr a confessional FIR is thus hit by S25 - S26 prohibits proof against any person of a confession made by him in custody of a pol offr unless it is made in the immediate presence of a magistrate - S27 a proviso or exception partially lifts the ban imposed by S25/26 - provisions -> public policy -> fullest effect given to them - Court further obsrvd -> A confession may consist of several parts and may reveal nt only the actual commission of the crime but also the motive, prep, opprtnty, provocation, weapon used, intent, concealment of weapon, subsequent conduct of accused - if confession is tainted, the taint attaches to each part of it - nt permissible in law to separate one part and to admit it as non-confessional stmnt - each part discloses some incriminating fact, i.e. sme fact which by itself or along with othr admitted or proved facts suggest the inference tht the accused committed the crime, & though each part taken singly may nt amt to confession, each of them being part of the confessional stmnt partakes of the character of the confession - if proof of the confession excluded by any provision of law, the entire confessional stmnt, in all its parts, including the admissions of minor incriminating facts, must also be excluded, unless proof of it is permitted by sme othr section - if evidence contains inculpatory & exculpatory parts - then prosecution nt at liberty to use inculpatory part only - accused entitled to insist on exculpatory part also - Court held tht in present case no part of stmnt can be separated and entire confessional stmnt is hit by S25, except formal part identifying the accused as maker of the report and portions within the purview of S27. Thus info leading to discovery of dead bodies, knife and clothes is admissible in evidence, being the discovery of facts as u/s 27. Evidence insuff to convict appellant of the offence u/s S302 IPC - Corroboration by medical evidence nt sufficient - X hit by only part (d) of it and discovery of facts frm it making it admissible u/s 27 (Pulukuri Kotayya vs Emperor, Md Inayatulla vs St)
(11) Pulukuri Kottaya v Emperor, AIR 1966 PC 67
Appellants guilty of murder made some confessions in the police custody - in appeal, they contended tht their stmnts admitted in violation of S26 & 27 - The stmnt of one of them ws "I, Kottaya and othrs beat Sivayya & Subbaya to death. I hid the spear & my stick in the rick of the village. I will show you if you come. We all did this at the instance of P. Kottaya" - Anothr accused said "I stabbed Sivayya with a spear. I hid the spear in a yard in my village. I will show you the place." - relevant articles produced frm respective places of hiding - Privy Council obsrvd - S27 provides an exception to the prohibition imposed by S26 and enables certain stmnts made by a person in police custody to be proved - Condition of neccessity to bring S27 into operation in that discovery of a fact in consequence of info rcvd frm accused(in police custody) must be deposed to - thrfr so much of the info as relates distinctly to the fact discovered may be proved - sec based on view of a fact is discovered in consequence of information given, sme guarantee afforded tht info is true & can safely be allowed to be givn in evidence - normally this section brough in op when a person in police custody produces frm sme pl of concealment sme obj eg dead body, weapon or ornaments, said to be connected with the crime of which the informant is accused - expl relationship bw S26 & S27 their Lordship said :- the proviso to S26 added by S27 shld nt held to nullify the substance of the section, its fallacious to treat "fact discovered" as equivalent to the object produced; fact discovered also embraces the place frm which the object is produced and the knwledge of accused as to this, and info given must relate distinctly to this fact - info related to past use of this object nt related to its discovery - info suppld by a person in custody tht "I will produce a knife concealed in my roof of my house" does not lead to discovery of a knife, it leads to discovery of a fact that a knife is concealed in the house of the informant to his knowledge and if the knife discovered is proven to hv been used in the commission of the offence then fact discovered is very relevant - but if to the stmnts the word "I stabbed A" are added, these words are inadmissible bcoz they do nt relate to the discovery of the knife in the house of the infrmnt - the part which relates as to 'what he did to the object' and not 'what he did with the object' is relevant u/s 27, bcoz latter entails a remote connection w/ d fact - furthr if no othr evidence connecting the knife w/ the crime & the only evidence is stmnt coming u/s 27 then accused must be acquitted. - referring to facts of case their Lordship held tht whole of passage except the passage "I hid it(spear) and my stick in the rick of the village. I will show you if you come" is inadmissible. The above passage is admissible as it served to connect the object discovered w/ offence charged - othr portion relates to past history of the obj produced, thus nt admissible
SC in Prabhu vs St of UP apprvd the test layed down in the above case, in this case a blood stained axe, clothes, etc ws held admissible but a stmnt to police tht such clothes belonged to him(accused) and the axe ws used in the murder ws held inadmissibe u/s 27
Md Inayatullah vs St of Maharashtra - accused chrgd with theft - stmnt "i will tell the place of deposit of 3 chemical drums which i took out frm Haji Bunder on 1st August" - facts discovered were chemical drums, and accused knwldge of such deposit - SC laid down some propositions (1) 1st condition neccessary fr bringing S27 into operation is discovery of fact, albeit a relevant fact, in consequence of the info rcvd frm a person accused of an offence (2) 2nd is tht discovery of such fact must be deposed to - discovery of fact includes the obj found, the place frm which is produced and knwledge of accused as to its existence (3) in police custody at time of receipt of info (4) only "so much of the info" as relates distinctly to fact thrby is admissible - word "distinctly" means "directly", "indubiously", "strictly", "unmistakably" - however relevant portion nt enough fr conviction - drums lying on public place(railway platform) & nt a place of hiding, anyone cud hv put them thr & accused might hv only knwldge of fact - thr4 benefit of doubt given - incorrect to say tht when recovery of an incriminating article frm a public place would vitiate the evidence - crucial ques is nt whtr place ws accessible to othrs but whtr it ws ordinarily visible to othrs (St of HP vs Jeet Singh). Article cud be concealed beneath dry leaves or tall grass on public places so as to be out of visibility of othrs in normal circumstances ( St of Mah vs Bharat Fakira Dhiwar )
(12) Bodhraj alias Bodha v St of J & K (2002) 8 SCC 45
Question ws whtr discovery of weapon of assault on basis of info given by accused while in custody ws sufficient to fasten guilt of the accused - Obsvtn & Decision - Court held exact info given by accused which leads to recovery of the incriminating article must be prvd and only then could such info become the basis of convictinng the accused - Court obsrvd (1) S27 of IEA ws enacted proviso to S25 & S26 which imposed a complete ban on admissibility of any confession made by accused either to police or to any one while the accused ws in police custody. The obj of making provision in S27 ws to permit a certain portion of stmnt made by an accused to police offcr admissible in evidence whthr such stmnt is confessional or non confessional. Ban imposed by S25 & 26 wud be lifted if stmnt is distinctly related to discovery of facts ( Pandurang kalu Patil vs St of Mah) (2) U/S 27 in order to render the evidence admissible, info must come from any accused in police custody - stmnt which is admissible u/s 27 is the one which is the info leading to discovery - so what is admissible is the info & nt the opinion formed on it by the police offcr (3) info given shld be recorded and proved, if nt recrded and prvd then it must be adduced with evidence - Doctrine of Confirmation by subsequent events (4) Doctrine founded on principle if any fact is discovered in a search made on the strength of any info obtained frm a prisoner, such a discovery is a guarantee tht the info supplied by the prisoner is true - info might be confessional or non-inculpatory in nature but if it result in discovery it becomes a reliable info (5) Now well settled tht recovery of an object is nt discovery of fact as envisaged in S27 - obj - place - knwledge (6) extent of info must depend on exact nature of fact discovered to which such info is reqd to relate - info permitted to be admitted in evidence is confined to tht portion of the info which distinctly relates to facts thereby discovered - must not be truncated to make it insensible or incomprehensible - extent of info admitted shld be consistent w/ understandibility - Court held tht mere stmnt tht accused let the police & witness to the place whr he hd concealed the article is nt indicative of the info as contemplated u/s 27
St of Mah vs Suresh SC obsrvd -> when a dead body ws recovered frm a place pointed out by accused 3 possibilies - (i) he himself - (ii)he saw someone (iii) someone told him . If he declines to tell the court tht his knwledge ws on acc of last 2 possibilities then court can presume 1st possibility becoz accused only person who can offer explanation, such presumption nt inconsistent with principle embodied in S27
St of Mah vs Damu subsequent to discovery of dead body frm canal, a stmnt ws made by accused to the Investigating offcr tht the dead body ws carried by him & the co accused on the latter's motorcycle and thrown into the river - broken glass pcs discvrd found to be part of missing tail lamp - held tht this info suppld tht accused carried body on mcycle to river ws admissible as evidence - proves prosecution case to above mentioned aspect
Salim Akhtar vs St of UP disclosure stmnt made by accused led to recvry of polythene bag containing pistol - knwldge of pistol by accused ws held admissible - the fact tht sme terrorist org hd given the pistol nd sme othr articles to appellant ws nt admissible
Anber Singh vs St of Raj - part of stmnt which is direct and immediate cause of discovry
Pandurang Patil vs St of Mah - firearm behind old house under heap of wood - fact discvrd nt gun but obj, pl knwledge
St(NCT) of Delhi vs Navjot Sandhu - discovry of fact by reason of stmnt of accused exhibits his knwldge or mental conciousness
St of HP vs Jeet Singh :- nothing in S27 whch renders stmnt of the accused inadmissible if recvry of articles ws made frm any place which is open or accessible to othrs
St of Mah vs Bharat Fakir Dhivar -> ....
St of Karn vs David Rozario Apex Court obsrvd - to make stmnt(disc of facts) admissible u/s 27 info must come accused in custody of police
(13) Khushal Rao v St of Bom, AIR 1958, SC 22 ( Dying Dec sole basis of conviction )
deceased made 4 separate and identical declarations befr doctor, Police Insp, Magistrate and to othr persons, stating he had been assaulted by Kushal and one another person - question ws whthr accused can be conviceted only on basis of this declaration or ws corroboration needed - divergent views of HCs - BomHC -> dying dec weak type of evidence reqs corroboration, CalHC nt possible to accept declaration in 1 part & reject another part, MadrasHC a decl can be relied w/o corroboration if the court is convinced of its truth i.e. no suspicion of its credibility - SC agreed with Madras HC, laid down following principles (1) No absolute rule of law tht a dying declaration cannot be sole basis of conviction unless corroborated (2) Each case on its own facts (3) dying declaration nt a weaker kind of evidence than anyothr evi. same footing as any othr piece of evidence (4) Dying Declaration cannot be equated with a confession or evidence of of apprvr, as it may nt come frm a tainted source. if its made by a person whose ancedents are as doubtful as in the othr cases , tht may be ground fr lukng upon it with suspicion (5) neccessity fr corroboration arises nt frm any inherent weakness of a dying decl as a piece of evidence but frm a fact tht the court in a particular case come to the conclusion tht a particular declaration is nt free frm infirmities (6) To test the reliability of a dying declaration, the court hs to keep circumstances in view i.e opportunity of the dying man of observation eg suff light if crime committed at night, capacity of declarant ws nt impaired; consistency of stmnt; whtr stmnt made at earliest opp ; no chance fr tutoring
(7) Dyind Declaration recrded by competent Magistrate in a proper manner (Q&A form in words of the maker as far as practicable) stand on a much higher footing than a dying declaration which depends upon oral testimony which may suffer frm infirmities of human memory & character
(8) Duty to convict if court fully convinced of the truth even w/o corroboration
Kusa vs St of Orr - deceased dying declaration befr a doc - it ws clear in all respects - appellants challenged it on follwng grnds (1) did nt contain all those names whch were included in the FIR (2) Acc of eye witness ws different (3) deceased ws in a state of shock thr4 stmnt cud nt be relied upon (4) Declaration ws incomplete as deceased did nt answer the last question put to him ( lapsed into unconcious state )
Court obsrvd - merely because names in FIR nt in dying declarations wont detract the value of the dying declaration nd wud nt itself prove the falsity of the dying declaration - In Surat Singh's case the 1st declaration didnt mention the names of eye witnesses but 2nd decl more detailed contained it - court obsrvd 1st declaration ws a summary of the entire incident and contained true facts when deceased ws under great pain - stmnt of docs ws tht deceased became semi-conscious when last ques ws put to him - logically it means prior to this he ws fully concious - last question ws in nature of a mere formality i.e."What more do you want to say" and all neccessary questions hd been asked - thr4 stmnt ws nt incomplete - held tht once declaration is beleived(true, consistent, coherent) it can be relied upon fr convictions, even if thr is no corroboration(Khushal rao vs St of Bom) - Lallu bhai vs St of Guj - married woman burnt to death by inlaws, her dying declaration ws accpted & conviction based solely on basis of declaration - held tht truthfulness of a dying declaration is accepted, it cn always form the basis of conviction of the accused - court in present case convicted appellants on the basis of dying declaration
P V Radhakrishna vs St of Kar - wife burning case - SC highlighting the utility of dying decl obsrvd "nemo moriturus proesumitur mentiri, a man will nt meet his maker with a lie in his mouth - court further obsrvd tht a person on death bed is in a position so solemn and serene tht it is equal to the obligation under oath - fr this reason the req of oath and cross exam are dispensed with - victim being generally the only eye witness to the crime, the exclusion of the declaration might defeat the ends of justice - Guiding Principles (1) neither rule of law or prudence tht dyng dec cannot be acted w/o corroboration - if court satisfied dyng dec true and voluntary -> convctn w/o corroboration (2) DynDec suffering from infirmity cannot form basis on conviction (3) dying dec to be scrutinized - no tutoring, prompting or imagination (4) When deceased ws unconscious & cud never make any dying declaration, evidence with regds to it is to be rejected (Kaka Singh vs St of MP)
(5) merely becoz dying declaration does nt contain details it cannot be rejected (6) Brief stmnt nt to be discarded. Shortness of stmnt guarantees truth( Surajdeo Oza vs St of Bihar) (7) whr prosecution version differs frm the version(dyn dec) such declaration cannot be acted upon(St of UP vs Madan Mohan) (8) in case of more thn one stmnt 1st in point of time must be preferred . if plurality is trustworthy and reliable it hs to be accptd (Mohanlal Gangaram Gehavi vs St of Mah) (9) Normally court in order to satisfy whtr deceased ws in a fit mental condition relies upon medical opinion but whr the eye witness or the Magistrate said tht the deceased ws in a fit & conscious state to make the dying declaration, the medical opinion cannot prevail (Laxman vs St of Maharashtra) - Apex Court held HC ws right in placing reliance on dying declaration - as %age of burns wud nt determine the probability or othrwise of making a dying declaration - no hard n fast rule of application in this regard - depends on what the impact of burns on faculties(mental abilities)
Narain Singh vs St of UP -> test of credibility
Ravi vs St of TN -> truthfulness of dying decl cannot be doubted -> conviction w/o corroboration
R Mani vs St of TN -> dying dec must be wholy reliable - if nt can only be treated as a piece of evidence - no conviction on basis of it
Pramod Mahajan Murder -> dying decl to Gopi Nath Munde a former minister - conduct of accused befr nd after shooting went against his favor
Kishan Lal - certain dying decl made 2 months after incidence of burning - discrepancy between 1st & 2nd declaration -> cannot convict -> Court obsrvd dying declaration relevant when person under reasonable apprehension of death , while english law admits stmnts only whn declarant is in actual danger of death(imminent death/hopeless condition/full apprehension of death)
Girdhar Shankar Tawade vs St of Mah -> SC -> dyng dec due care n admitted as evidence only upon proper circumspection
Sheikh Mehboob alias Hetak vs St of Mah -> history of accidental burns and self inflicted burns -> dyng declaration nt relied upon -> self harm
(14) Sudhakar v St of Mah (2000) 6 SCC 671
Facts n Issue - School teacher(20 yrs) ws alleged raped by head master nd a coteacher - prosecutrix narrated the incident to her mother, brother and uncle and two or three days later to her father - matter ws reported to the police 11 days after the incident in which she narrated the whole incident and explained the delay fr nt lodging the report earlier - doc who examined the prosecutrix reported she hd been subjected to sexual intercourse in the recent past - unable to withstnd humiliation she committed suicide - autopsy showed the cause of death ws poisoning. Prosecution relied upon the stmnt made to the police - courts also relied upon the aforesaid stmnt treating it as the dying declaration being admissible of the aforesaid stmnt as a dying declaration
Obsrvtn - Stmnt of prosecutrix does nt directly state any fact rgdnd to cause of her death - at most it wud be said to relate to "circumstances of transaction" resulting in her death -
Phrase "circumstances of transaction" explnd in Pakala Narayan Swami vs Emperor - the circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whthr of a particular individual or othrwise and not directly related to the occassion of the death will not be admissible - but stmnts made by deceased tht he ws proceeding to the spot whr he ws infact killed or as to his reason fr proceeding or tht he ws going to meet a particular person, or tht he had been invited by such person to meet him wud each of them be circumstances of the transaction, & wud be so whtr the person ws unknown or ws nt the person accused - such a stmnt might be exculpatory of the person accused - circumstances of the transaction is a phrase no doubt tht conveys some limitations - it is nt broad as the analogous use in 'circumstantial evidence' which includes evidence of all relevant facts - it is on other hand narrower than res gestae - circumstances have some proximate relation to the actual occurence: though as for instance, a case of prolonged poisoning they may be related to dates at a considerable distance frm the actual date of the fatal dose - it will be obsrvd tht 'the circumstances r the transaction which resulted in the death of the declarant - its nt neccessary tht thr shld be a knwn transaction othr thn tht death of the declarant hs ultimately been caused, fr the condition of admissbility of the evidence is that the cause of (the declarant's) death comes into question"
Decision - in d present case, thr is no legal evidence on record to that the prosecutrix at or about the time of making the statement had disclosed her mind fr committing suicide allegedly on account of the humiliation to which she ws subjected to on account of rape committed on her person - circumstances stated in the stmnt made to the police do nt suggest tht a person is making such a stmnt wud under the normal circumstances, commit suicide after more than 5 n 1/2 months. HC thr4 nt justified in relying upon the above stmnt as a dying declaration holding tht the said stmnt ws in series of circumstances of the transaction which resulted in the death of the deceased
Comments - "As to circumstances of transaction which resulted into his death appearing in S32 makes it clear that the circumstances resulting in death must have proximate relation to actual occurence . in othr words the stmnt of the deceased must be sufficiently and clearly related with the actual transaction [Kans Raj vs St of Punjab, SC]
(15) Patel Hiralal Joitaram v St of Guj (2002) 1 SCC 22
lady burned - 1st declaration -> Hiralal Lalchand,wrongly mentioned 2nd part of name, Subsequent clarification under S161 CrPC Hiralal Joitaram & nt Hiralal Lalchand - issue defamation -> illicit relation with her sister . main dying declaration to executive magistrate to whom she clarified tht earlier stmnt assailant mistakenly named - Issue whtr stmnt ws covered by S32(1) of Evidence act to be a relevant dying declaration - Apex Court obsrvd by S32(1) two categories of stmnts r made admissible in evidence and further made as substantiative evidence. they are (a) stmnt as to the cause of death (b) stmnt as to any of the circumstances of the transaction which resulted in death. 2nd category can include a far wider range of facts than the first category. Court observed - stmnt as to any of the circumstances r themselves capable of expanding the width n the contours of the scope of admissibility - when word circumstance linked to transaction which resulted in his death, the sub section casts the net in a very wide dimension - anything which has a nexus with his death, proximate or distant, direct or indirect can also fall within the purview of this section - admissibility 1st step then reliability 2nd final is the finding the utility of the stmnt by the court wrt case - Sharad Birdhichand Sarda vs St of Mah - 3 judge bench considered scope of 32(1) - laid down tht legislature has intended to widen scope of S32 fr avoidng injustice , "test of proximity cannot be too literally construed and practically reduced to cut and dry formula of universal application so as to confine in a straightjacket - distance of time wud vary with the circumstance of each case .. entire stmnt to be read as an organic whole and nt torn frm the context - smetime stmnts relevant to or furnishing an immediate motive may also be admissible as being part of the transaction of death
Decision :- Clarificatory stmnt made by deceased under S161 CrPC wud fall within ambit of S32(1) IEA. Further prosecution case ws strengthened by the fact that she(deceased) recalled the scooter reg number of accused correctly in her stmnt and to top that the accused also laid claim on the scooter which ws seized by the police, as his.
Rattan Singh vs St of HP Woman stmnt accused standing wid a gun - stmnt held relevant under S32(1) - cause proximate in pt of time & space to the happening
Dalbir Singh vs St of UP - letter written by deceased wife prior to her death ws held to be admissible in evidence as it disclosed the cause of her death or circumstances which resulted in her death
However telephonic conv between deceased & one of the witnesses but it did nt relate to cause of his death or to any circumstances of the transaction which resulted in his death it ws held tht the stmnt did nt come within the purview of S32(1) [Jayendra Saraswati Swamigal vs St of TN]
(16) Laxman vs St of Mah (2002) 6 SCC 710
Normally court in order to satisfy whtr deceased ws in a fit mental condition relies upon medical opinion but whr the eye witness or the Magistrate said tht the deceased ws in a fit & conscious state to make the dying declaration, the medical opinion cannot prevail
(17) Ram Narain vs St of UP, AIR 1973 SC 2200: (1973) 2 SCC 86
Child kidnapped - parent rcvd handwritten post cards (ransom 1000) & inland letter(5000) respectively - author of letter traced - handwriting experts confirmed & testified - accused convicted on basis of above evidence - SC upheld conviction - Obsrvd:- Both u/s 45 & 47 the evidence is an opinion, in the former by scientific comparison & in the latter by familiarity resulting frm frequent observation. In either case court must satisfy itself by such means as are open tht the opinion may be acted upon. 1 such means is to apply its own observation to the admitted or proved writings, not become a handwriting expert by to verify the opinion of the witness - not to say that court may play the role of an expert, but to say that the court may accept the fact only when it has satisfied itself on its own observation that it is safe to accept the opinion of the expert or othr witnesses" - Dua J, himself compared the handwriting in question with a proven handwriting of the accused and satisfied himself and held that no further corroboration ws neccessary
St of Guj vs VC Patni - SC ptd out that expert opinion is relevant but nt conclusive
Murari lal vs St of MP SC laid down imp principles in reln to the value of the opinion of a handwriting expert (i) No rule of law nor any rule of prudence which hs crystallised into a rule of law, tht the opinion evidence of an expert must never be acted upon, unless substantially corroborated (ii) having due regrd to various adverse factors operating in case of expert opinion, the approach shld be one of caution. Reason for opinion shld be carefully looked into & all othr relevant evidence to be considered (iii) appropriate cases corroboration shld be sought, convincing reasons, reliable expert evidence -> no corroboration neccessary (iv) hazard in accepting expert opinion nt becoz experts in general r unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witnesses - but becoz all human judgement is fallible and an expert may go wrong becoz of some defect of observation, or honest mistake of conclusion - more developed & perfect a science less is the chance of an incorrect opinion eg science of finger print identification attained near perfection, on d othr hand science of handwriting recognition not so perfect susceptible to error (v) opinion of expert is nt decisive or conclusive of the matter - expert deposes & does nt decide - duty to furnish the judge with neccessary scientific criteria fr testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgement by the application of those criteria to the facts proved in evidence.
Excercise of comparison permissible u/s 73 IEA, S45 & S73 complementary to each other [Lalit popli vs Canara Bank)
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3. ON PROOF
(a) (i) Facts which need not be proved Ss 56-58
S 56. Fact judicially noticeable need not be proved -
No fact of which the Court will take judicial notice need be proved
Comments
Judicial notice of fact that many blind persons have acquired great academic distinctions, can be taken by court; Jai Shankar Prasad v. State of Bihar, AIR 1993 Pat 22.
S 57. Facts of which Court must take judicial notice -
The Court shall take judicial notice of the following facts;
1. All laws in force in the territory of India;
2. All public Acts passed or hereafter to be passed by Parliament of United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;
3. Articles of War for the Indian Army, Navy of Air force;
4. The course of proceeding of parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the Legislature established under any law for the time being in force in Province or in the States;
5. The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;
6. All seals of which English Courts take judicial notice; the seals of all the 6Courts in 7India and of all Courts out of 5India established by the authority of 8the Central Government or the Crown representative; the seals off Court of Admiralty and Maritime jurisdiction and of Notaries Public and all seals which any person is authorized to use by the 9Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in 7India;
7. The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any state, if the fact of their appointment to such office is notified in any 10official Gazette;
8. The existence, title and national flag of every State or Sovereign recognized by 11the Government of India;
9. The divisions of time, the geographical divisions of the world, and public festivals, facts and holidays notified in the Official Gazette;
10. The territories under the dominion of 11the Government of India;
11. The commencement, continuance and termination of hostilities between 11the Government of India and any other State or body of persons;
12. The names of the members and officers of the Court, and of their deputies and subordinate officers and assistants and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;
13. The rule of the road, 12on land or at sea.
In all these cases, and also on all matters of public history, literature, science or art, the Court may report for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.
Comments
What court may take judicial notice
Court may take judicial notice of widespread malaise of illegal immigration and exploitation of young-ones by unauthorised recruiting agents; M.D.K. Immigration Consultant, Chandigarh v. Union of India, 2000 Cr LJ 252 (P&H).
S 58. Facts admitted need not be proved -
No fact need be proved in any proceeding, which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings;
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.
COMMENTS
Implied admission
Implied admission in written statement cannot be allowed to be withdrawn. However, the plaintiff can be insisted upon to prove his case; Uttam Chand Kothari v. Gauri Shankar Jalan , AIR 2007 Gau 20.
(a) (ii) Facts which the parties are prohibited from proving - Doctrine of Estoppel Ss 115-117
S 115. Estoppel -
When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
Comments
Doctrine of Election
‘The Doctrine of Election’ is a branch of rule of estoppel. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them; National Insurance Co. Ltd. v. Mastan, AIR 2006 SC 577.
Effect of estoppel
(i) An estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it; B.L. Sreedhar v. K.M. Munireddy (dead), AIR 2003 SC 578.
(ii) It is settled canon of law that equity follows the law. Equity would tilt in favour of law and not against violation thereof. To claim equity, the petitioner must explain previous conduct; Bhopal Singh v. Chatter Singh, AIR 2000 P&H 34.
(iii) In terms of compromise name of tenant is deleted, order reached to finality. Dispute regarding tenancy in the subsequent proceeding are estopped; Vijayabai v. Shriram Tukaram, AIR 1999 SC 431.
(iv) The party in one hand volunteered before the Arbitration for extension of time and opposed to extension of time, the plea reverse to such conduct cannot be said to be good; F.C.I. v. Dilip Kumar, AIR 1999 Cal 75.
(v) The petitioner did not raise the print that the State Transport Authority was not properly constituted at the time of consideration of her petition, thereby taking a chance of succeeding in the proceedings before it. Therefore, she is now debarred by her own conduct from raising the contention before the Court; Sushila Chand v. State Transport Authority, AIR 1999 Ori 1.
(vi) Where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights; B.L. Sreedhar v. K.M. Munireddy, AIR 2003 SC 578.
Object
The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Therefore, when one person makes a misrepresentation to the other about a fact he would not be shut out by the rule of estoppel if that other person knew the true state of facts and must consequently not have been misled by the misrepresentation; Maddanappa v. Chandramma, AIR 1965 SC 1812.
Promissory Estoppel
Doctrine of promissory estoppel is not applicable to ultra vires decisions; M. Deo Narain Reddy v. Govt. of Andhra Pradesh, AIR 2004 NOC 332 (AP).
When plea of estoppel does not arise
If the statutory requirements for grant of lease are not fulfilled, the question of raising any plea of estoppel would not arise; Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia, AIR 2004 SC 1159.
S 116. Estoppel of tenant and of license of person in possession -
No tenant of immovable property of person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and not person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person has a title to such possession at the time when such license was given.
COMMENTS
Tenant can contest title of landlord
If old tenancy continues, notwithstanding attornment, tenant can always contend that plaintiff who claims to be landlord had not really derived title from original inductor; Sambhunath Mitra v. Khaitan Consultant Ltd., AIR 2005 Cal 281.
S 117. Estoppel of acceptor of bill of exchange, bailee or licensee -
No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority of draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or license commenced, authority to make such bailment or grant such license.
Explanation (1)
The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.
Explanation (2)
If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.
(a) (iii) Privileged communications Ss 122 - 129
S 122. Communications during marriage -
No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
S 123. Evidence as to affairs of State -
No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except wit the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
S 124. Official communications -
No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
S 125. Information as to commission of offences -
Information as to commission of offences.- No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.
Explanation
"Revenue officer” in this section means an officer employed in or about the business of any branch of the public revenue.
S 126. Professional communications -
No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure—
(1) Any such communication made in furtherance of any 1[illegal] purpose;
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, 2[pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation
The obligation stated in this section continues after the employment has ceased.
Illustrations
(a) A, a client, says to B, an attorney—“I have committed forgery, and I wish you to defend me”.
As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
(b) A, a client, says to B, an attorney—“I wish to obtain possession of property by the use of a forged deed on which I request you to sue”.
This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.
S 127. Section 126 to apply to interpreters etc. -
The provisions of Section 126 apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.
S 128. Privilege not waived by volunteering evidence -
If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126, and if any party to a suit or proceeding calls any such barrister, 1pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.
S 129. Confidential communication with Legal Advisers -
No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has give, but not others.
(b) (i) Oral and documentary evidence Ss 59-78
S 59. Proof of facts by oral evidence -
All facts, except the 1contents of documents, may be proved by oral evidence.
S 60. Oral evidence must be direct -
Oral evidence must, in all cases, whatever, be direct; that is to say;
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds -
Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
S 61. Proof of contents of documents -
The contents of documents may be proved either by primary or by secondary evidence.
COMMENTS
Admission of contents
Admission of documents amounts to admission of contents but not its truth; Life Insurance Corporation of India v. Narmada Agarwalla, AIR 1993 Ori 103.
A man may lie but a document will never lie; Afzauddin Ansary v. State of West Bengal, (1997) 2 Crimes 53 (Cal).
S 62. Primary evidence -
Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1. - Where a document is executed in several parts, each part is primary evidence of the document.
Where a document is executed in counterparts, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2. - Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
Illustration
A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
S 63. Secondary Evidence -
Secondary evidence means and includes.
1. Certified copies given under the provisions hereinafter contained;
2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;
3. Copies made from or compared with the original;
4. Counterparts of documents as against the parties who did not execute them;
5. Oral accounts of the contents of a document given by some person who has himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photo graph or machine copy of the original, is secondary evidence of the original.
COMMENTS
Admissibility
Application moved for permission to lead secondary evidence based on ground of loss of document. Presence of document proved from the facts pleaded - Allowing secondary evidence not illegal; Sobha Rani v. Ravikumar, AIR 1999 P&H 21.
Tape-recorded statements are admissible in evidence; K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad 59.
Certified copies of money lender’s licences are admissible in evidence;K. Shivalingaiah v. B.V. Chandrashekara Gowda, AIR 1993 Kant 29.
S 64. Proof of documents by primary evidence -
Documents must be proved by primary evidence except in the cases hereinafter mentioned.
S 65. Cases in which secondary evidence relating to documents may be given -
Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1India to be given in evidence2;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collections.
In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
Comments
When attesting witness not necessary
In case the document is registered then except in the case of a will it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed; Ishwar Dass Jain (dead) through L.R. v. Sohanlal (dead) by LRs, AIR 2000 SC 426.
S 65A. Special provisions as to evidence relating to electronic record -
Special provisions as to evidence relating to electronic record.- The contents of electronic records may be proved in accordance with the provisions of section 65B.
S 65B. Admissibility of electronic records -
Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, 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 (hereinafter referred to as the 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.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said 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 or 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 in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of 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 during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is 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 the 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 of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,—
(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is 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 to be supplied to it in the course of those 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 therefrom by calculation, comparison or any other process.
S 66. Rules as to notice to produce -
Secondary evidence of the contents of the documents referred to in Section 65, Clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, 1or to his attorney or pleader such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case;
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:
1. When the document to be proved is itself a notice;
2. When from the nature of the case, the adverse party must know that he will be required to produce it;
3. When it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
4. When the adverse party or his agent has the original in Court;
5. When the adverse party or his agent has admitted the loss of the document;
6. When the person in possession of the document is out of reach, or not subject to, thee process of the Court.
S 67. Proof of signature and handwriting of person alleged to have signed or written document produced -
If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his hand writing.
Comments
Admissibility
Non-examination of executants of receipt, admissibility of receipts not proper; Ramkrishna Dode v. Anand, AIR 1999 Bom 89.
S 67A. Proof as to digital signature -
Proof as to digital signature.- 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.
S 68. Proof of execution of document required by law to be attested -
If a document is required by law to be attested it shall not be sued as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to he process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied.
Comments
Endorsement by Sub-Registrar
Endorsement by Sub-Registrar that executant had acknowledged execution before him amounts to attestation; Pentakota Satyanarayana v. Pentakota Seetharatnam, AIR 2005 SC 4362.
Scope
One of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory. Section 68 speaks of as to how a document required by law to be attested can be proved. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence; Janaki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761.
S 69. Proof where no attesting witness found -
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.
S 70. Admission of execution by party to attested document -
The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.
S 71. Proof when attesting witness denies the execution -
If the attesting witness denies or does not recollect the execution of the document its execution may be proved by other evidence.
Comments
Object
Section 71 is in the nature of a safeguard to the mandatory provisions of section 68, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. Aid of section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence; Janaki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761.
Section 71 is meant to lend assistance and came to the rescue of a party who had done his best, but driven to a state of helplessness and impassibility cannot be left down without any other means of proving due execution by “other evidence” as well; Janaki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761.
S 72. Proof of document not required by law to be attested -
An attested document not required by law to be attested may be proved as if it was unattested.
S 73. Comparison of signature, writing or seal with others admitted or proved -
In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which s to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also with any necessary modifications, to finger-impressions.
Comments
Powers of Court
The court is entitled to make comparison of disputed and admitted signature for just conclusion as a rule of prudence expert opinion can be obtained. Reasons necessary to reach conclusion; Ashok Kumar Uttam Chand Shah v. Patel Mohmad Asmal Chanchad, AIR 1999 Guj 108.
It is within jurisdiction of court to instruct a party to submit his writing or signature, enabling court to compare and decide a case, if the instructions are not followed court is free to presume what is most closer to the justice; Shyam Sundar Chowkhani v. Kajal Kanti Biswas, AIR 1999 Gau 101.
It is not open for court to compare a handwriting and/or a signature of its own, services of experts are liable to be taken for this purpose; Shyam Sundar Chowkhani v. Kajalkanti Biswas, AIR 1999 Gau 101.
Under the law the court has power to compare signatures/handwriting strengthening its finding based on other cogent material and evidence on record; Satish Jayanthilal Shah v. Pankaj Mashruwala, (1997) 2 Crimes 203 (Guj).
S 73A. Proof as to verification of digital signature -
Proof as to verification of digital signature.- 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—
(a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate;
(b) any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person.
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.
S 74. Public documents -
The following documents are public documents :—
(1) Documents forming the acts, or records of the acts—
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, 1[of any part of India or of the Commonwealth], or of a foreign country;
(2) Public records kept 2[in any State] of private documents.
S 75. Private documents - All other documents are private.
S 76. Certified copies of Public Documents -
Every 1public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
Explanation
Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
S 77. Proof of documents by production of certified copies -
Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
S 78. Proof of other official documents -
The following public documents may be proved as follows -
(1) Acts, orders or notifications of 1the General Government in any of its departments, 2or of the Crown Representative or of any State Government or any department of any State Government.
By the records of the departments, certified by the heads of those departments respectively, or
By any document purporting to be printed by order of any such Government 2or as the case may be, of the Crown Representative;
(2) The proceedings of the Legislatures -
by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting The Orient Tavern be printed 3by order of the Government concerned;
(3) Proclamations, orders or regulations issued by 4Her Majesty or by the privy Council, or by any department of Her Majesty's Government,
By copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer;
(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country -
By journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some 5Central Act;
(5) The proceedings of a municipal body in a 6State, -
By a copy of such proceedings certified by the legal keeper thereof of by a printed book purporting to be published by the authority of such body,
(6) Public documents of any other class in a foreign country, -
by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of 7an Indian consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original and upon proof of the character of the document according to the law of the foreign country.
State Ammendment
West Bengal
After section 78, insert the following section, namely:—
78A. Copies of public documents, to be as good as original documents in certain cases.—Notwithstanding anything contained in this Act or any other law for the time being in force, where any public documents concerning any areas within West Bengal have been kept in Pakistan, then copies of such public documents shall, on being authenticated in such manner as may be prescribed from time to time by the State Government by notification in the Official Gazette, be deemed to have taken the place of and to be, the original documents from which such copies were made and all references to the original documents shall be construed as including references to such copies."
[Vide West Bengal Act 29 of 1955, sec. 3 (w.e.f. 6-10-1955) as amended by West Bengal Act 20 of 1960, sec. 3 (w.e.f. 5-1-1961)].
S 79. Presumption as to genuineness of certified copies -
The Court shall presume 1to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer 2of the Central Government or of a State Government, or by any officer 3in the State of Jammu and Kashmir who is duly authorized there to by the Central Government:
Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper.
(b) (ii) Exclusion of oral by documentary evidence Ss 91-92
S 91. Evidence of terms of contracts, grant and other dispositions of property reduced to form of documents -
When the terms of a contract, or of a grant, or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence1 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.
Exception 1.
When a public officer is required by law to be appointed in writing, and when it is shown that any particular person had acted as such officer, the writing by which he is appointed need not be proved.
Exception 2.
Wills 2admitted to probate in 3India may be proved by the probate.
Explanation 1.
This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.
Explanation 2.
Where there are more originals than one, one original only need be proved.
Explanation 3.
The statement, in any document whatever of a fact other than the facts referred to in this section shall not preclude the admission of oral evidence as to the same fact.
Illustrations
(a) If a contract be contained in several letter, all the letters in which it is contained must be proved.
(b) If a contract is contained I a bill of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
(d) A contracts, in writing with B, for the delivery of indigo upon certain terms. The contract mentioned the fact that B had paid A the price of other in contracted for verbally on another occasion.
Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.
(e) A gives B a receipt for money paid by B.
Oral evidence is offered of the payment.
The evidence is admissible.
S 92. Exclusion of evidence of oral agreement -
When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1)
Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 1[want or failure] of consideration, or mistake in fact or law:
Proviso (2)
The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:
Proviso (3)
The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:
Proviso (4)
The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:
Proviso (5)
Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:
Proviso (6)
Any fact may be proved which shows in what manner the language of a document is related to existing facts.
Illustrations
(a) A policy of insurance is effected on goods “in ships from Calcutta to London”. The goods are shipped in a particular ship which is lost. The fact that that particular ship was orally excepted from the policy, cannot be proved.
(b) A agrees absolutely in writing to pay B Rs. 1,000 on the 1st March, 1873. The fact that, at the same time, an oral agreement was made that the money should not be paid till the thirty-first March, cannot be proved.
(c) An estate called “the Rampure tea estate” is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed, cannot be proved.
(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B’s as to their value. This fact may be proved.
(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.
(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.
(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words “Bought of A a horse for Rs. 500”. B may prove the verbal warranty.
(h) A hires lodgings of B, and gives B a card on which is written—“Rooms, Rs. 200 a month”. A may prove a verbal agreement that these terms were to include partial board.
A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally.
(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this.
(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered.
Comments
Deed of collateral security: manner of execution
If it is a deed of collateral security of defendant, then the defendant would have had to execute a deed in favour of plaintiff and not vice versa, where the plaintiff has executed the mortgage the plea of evidence of collateral security offered by defendant appears not to fit into a situation; Ishwar Dass v. Sohan Lal, AIR 2000 SC 426.
Inference can be drawn regarding proof of document by admission of parties either oral or other evidence; B.B. Lohar v. P.P. Goyal, AIR 1999 Sikkim 11.
Position of stranger
The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being; Parvinder Singh v. Renu Gautam, (2004) 4 SCC 794.
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(18) R S Maddanappa vs Chandramma (1965) 3 SCR 283
A suit for possession of plaintiff's half share of certain properties, decree passed in favor defendant No 1 w.r.t othr half share. In appeal by othr defendants it ws contended tht defendant no 1 was estopped frm claiming half share(decreed) becoz (i) he did nt reply to a notice by the plaintiff asking him to file a suit jointly (ii) he wrote a letter to his step mother disclaiming interest in suit property (iii) he attested a will executed by his father disposing of suit properties
SC held tht (i) conduct in nt replying to notice does nt mean thr ws implied admission(or acquiescence) tht he hd no interest in properties, justifying an inference of estoppel (ii) when the father(defendant no 2) knew abt true legal position tht he ws nt the owner of properties & his possession ws on behalf of plaintiff and defendant no 1, the def1's letter to stepmother cud nt hv created an erroneous or mistaken belief in father's mind abt his title to the suit properties (iii) similarly, the reason of conduct of def1 in attesting his father's will cud nt justify an inference of estoppel. S115 does nt apply to a case whr the stmnt relied upon is made to a person who knws the real facts & is nt misled by untrue stmnt. Also in prsnt case no detriment to othr party by actions of def1.
(19) Madhuri Patel vs Addl Commissioner Tribal Development, AIR 1995, SC 94
SC did nt allow benefit of promissory estoppel to a candidate who secured admission through false caste certificate. It ws held tht a candidate obtaining admission to educational course by fraud cannot claim to continue on the basis of estoppel.
Exceptions to doctrine of estoppel (i) No estoppel against a minor (ii) When true facts are known to both parties (iii) Fraud or negligence on part of othr party i.e. othr party does nt believe the representation & acts independently of such belief or to whom representation is made is under a duty to make further inquiry the estoppel will nt operate, similarly when fraud on part of othr party estoppel nt to operate (iv) When both parties plead estoppel i.e. both estoppel(successful) cancel each othr out , futhr if both side labored under a mistake however bonafide or genuine, plea of estoppel may nt be available (v) No estoppel on a pt of law - estoppel refers only to belief in a fact Representation u/s 115 shld be of facts not of law or opinion( UoI vs KS Subramaniam AIR 1989 SC 662) e.g. one cannot be estopped frm challenging a effectiveness of something(say paritition deed) fr want of law(say registration) (vi) No estoppel against statute/sovereign acts - a rule of law cannot be nullified by resorting to the doctrine of estoppel. A person who makes a stmnt as to the existence of a provision of a statute is nt estopped subsequently frm contending tht the statutory provision is different frm wht he has previously stated
Bal Krishan vs Rewa University AIR 1978 MP 86 - ptd out if a candidate hs appeared at an examination by misrepresenting facts(viz, a graduate appearing at law exam by misrepresenting facts) the University will nt be estopped frm cancelling the exam if his candidature is against a rule of law
(20) Sanatan Gauda vs Berhampur University, AIR 1990 SC 1075
Appellant candidate while securing his admission in law college hd submitted his MA mark sheet along with the application fr admission. Law college hd admitted him. Pursued study fr 2 years. Uni also grantd him amission card fr the pre law and intermediate law exam. He ws admitted to the final year of the course. Uni raised an objection abt his eligibility at the stage of declaration of result of pre & intermediate stage. Uni contended tht since appellant hd nt secured the reqd number of marks in the MA exam, he ws nt entitled to be admitted to the law course - Appellant scored few marks in certain papers in MA & Uni relied on certain technical rules which ws challenged by the appellant. Held tht Uni is clearly estopped frm refusing to declare the result of the appellant or from preventing him frm pursuing the final year course - Appellant hd produced his mark sheet befr the college authority with his application fr admission, & cannot be accused of making any false stmnt or suppressing any fact befr anybody - it ws bounden duty of the uni to hv scrutinized the matter thoroughly befr permitting the appellant to appear at the examination & nt having done so it cannot refuse to publish his results
(21) M.C. Vergheese vs T.J. Ponnam, AIR 1970, SC 1876
husb letter to wife containing defamatory imputation abt her father - f-i-l brought defamatory suit against him based on these letters - letters passed on by wife to father - Kerala HC rejected evidence u/s 122 - SC overruled the decision - SC laid down propositions with regard to S122 (i) protection conferred by S122 limited to such matters as hv been communicated during the marriage; communication before marriage wud nt be protected, bt privelege continues even after marriage hs been dissolved by death or divorce [present case decree of nullity hd been passed against husb on grnds of impotency ](ii) bar relates to the status on date when communication ws made & nt on the date when evidence given in the court (iii) word communication does nt extend to correspondence - thus even though a spouse is debarred frm deposing to the contents of such correspondence, same can be proved by a third party(wife's father in present case) (iv) Except whr the spouse to whom the communication is made is a witness & claim privelege(u/s 122), the evidence as to communications between husband and wife is admissible, under any other provisions of the Act or on the grounds of public policy.
Rumping vs Dir of Public prosecutions - letter by appellant to wife containing confession of murder - given to collegue to hand over to wife - after his arrest collegue handed over letter to captain of the ship, who gave it to the police - letter held admissible in evidence - crew members and captain gave evidence, but wife nt called as witness
(22) St of UP vs Raj Narain, AIR 1975 SC 865
defendant quoted certain parts of the blue book - an off doc (relating to security arrangements of the PM) and its production as evidence, as it ws nt an unpublished document - court held tht the disclosure of certain portions does nt render it published - fr such portions may hv no concern with 'affairs of the state' - SC laid down some authoritative propositions
(i) Foundation of la behind S123 & S162 is injury to public interest (ii) Public interest which demands evidence to be withheld must be weighed against public interest in the administration of justice tht the courts shld have the fullest possible access to all relevant materials. when public interest outweighs the latter, evidence cannot be admitted. (iii) Confidentiality of the matter hs to be decided by the head of dept, however the court can summon any document not withstanding any objection u/s 162 & can discuss the admissibility(as an evidence) and can get the help of translators to decide whtr the docs relates to the affair of the state (iv) if court is satisfied with the reason then the matter ends there (v) if nt court may inspect the docs and if it finds tht any part of the doc is innocuous(nt related to affairs of state) it could order disclosure of such part. While ordering of the disclosure of innocuous part, the court must seal the other parts whose disclosure is undesirable
RK Jain vs UoI - SC reaffirmed above views by observing tht courts can 'see in camera' & tht no privelege is available against the court(in othr words court can examine the documents) - in dis case appointment in accordance with appended rules, merits of the apointee & the reasons behind the amendment were nt permitted to be examined in a pil
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4. ACCOMPLICE EVIDENCE - S133 rw S114(b)
S 133. Accomplice -
An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
COMMENTS
Accomplice need not be judged by independent evidence
Every detail of the story of the accomplice need not be confirmed by independent evidence although some additional independent evidence must be looked for to see whether the approver is speaking the truth and there must be some evidence, direct or circumstantial which connects the co-accused with the crime independently of the accomplice; Haroon Haji v. State of Maharashtra, AIR 1968 SC 832.
Importance of corroboration
On reading section 133 with illustration (B) to section 114. It is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respect so as to implicate the accused and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice; Bhuboni Sabu v. Emperor, AIR 1949 PC 257.
Every approver comes to give evidence in some such manner seeking to purchase his immunity and that is why to start with he is an unreliable person and the rule of caution calling for material corroboration is constantly kept in mind by the court by time-worn judicial practice; Ravinder Singh v. State of Punjab, AIR 1975 SC 856.
The evidence of approver in regard to complicity of accused appellant in the conspiracy lacks corroboration on certain material particulars necessary for connecting the appellant; Balwant Kaur v. Union Territory of Chandigarh, 1988 Cr LJ 398: AIR 1988 SC 139.
rw S 114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustration (b) That an accomplice is unworthy of credit, unless he is corroborated in material particular;
(23) Bhuboni Sahu vs The King, AIR 1949, PC 257
8 persons prosecuted fr a murder - 4 acquitted - of remaining 1 appealed to the privy council - evidence against the appellant consisted of (a) evidence of an accomplice who hd taken part in the murder & hd also become an approver (b) confession f anothr accused person implicating himself & the appellant (c) recovery of a cloth which the deceased ws wearing & a khantibadi(instrument fr cutting grass) in circumstances which were taken to verify the evidence of the accomplice - appellant acquitted by the court - court obsrvd -> A combined reading of S133 & S114 Illustration(b) makes it clear tht whilst it is nt illegal to act on an uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amt almost to a rule of law tht it is unsafe to act on the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused - corroboration must be nt only with regd to occurence but also as against each of the accused - an accomplice cannot corroborate himself - prev stmnt of approver(recorded under 164 CrPC) cannot be used to corroborate himself - a tainted evidence does nt lose its taint by repetition - the danger of acting on accomplice evidence is nt merely tht accomplice on his own admission is a man of bad character .. the real danger is that he is telling a story which in its general outline is true, & its easy fr him to work into the story matter which is untrue - he may implicate 10 ppl in an offence & the story may be true in all its details as to 8 of them but untrue as to othr 2 whose names hv been introduced becoz they were enemies of the approver - the tendency to incl innocent with the guilty is prevalent in India - the only real safeguard against the risk of condemning the innocent with the guily lies in insisting on independent evidence which in some measure implicates each accused - court shld be slow to depart frm rule of caution which requires some independent evidence implicating the accused persons - evidence of one accomplice cannot corroborate the testimony of anothr accomplice - present case discovery of cloth & khantibadi cud nt corroborate the story held out by the accomplice becoz the discovery of cloth at the suggestion of the accomplice did nt show tht it ws put thr by the appellant & recovery of khantibadi frm him ws nt an unusual thing (it ws nt bloodstained) for farmers are like to possess it
As to confession of co accused u/s 30 can be taken into consideration by the court, illustration (b) to Sec 114 says it so - present case court held tht as the opportunity of previous concert cud nt be ruled out and thr is no independent evidence corroborating the accomplice evidence, the appellant is to be accquitted.
(24) Haroon Haji Abdulla vs St of Mah, AIR 1975, SC 856
SC reaffirmed decision of Rameshwar vs State of Raj- no opportunity of prev concert the conviction of the accused ws upheld - thrfr if several accomplices give evidence (identical version) implicating the accused the court may act on it if satisfied tht thr ws no opportunity fr concert - however such confession must inspire confidence both in its content & in manner & circumstances of its making eg. all accused were detained separately & they hd no chance of meeting each othr befr the trial.
St of TN vs Suresh - the law is nt tht evidence of an accomplice deserves outright rejection if thr is no corroboration, wht is reqd is to adopt great circumspection & care when dealing with the evidence of an accomplice".
Ramadhar Basu vs St of WB - fact tht testimony of an accomplice ws found to be nt acceptable in respect of one of the accused persons fr want of independent corroboration shld nt be taken to case a doubt upon her reliability as a witness in respect of othr accused persons.
(25) Ravinder Singh v St of Haryana, AIR 1975, SC 856
SC reaffirmed decision of Rameshwar vs State of Raj - accused charged with murder of his wife - frnd turned approver - accused hatched conspiracy with help of approver, it ws held tht approver ws reliable & his stmnt ws corroborated by independent witnesses (tht the accused ws accompanying the deceased in the train ) - subsequent conduct of accused ws a true tell tale of his guilty mind; real motive fr the crime being illegitimate intimacy with a girl - court held apprvr's test is fulfilled if the story he relates involves him and the story must implicate the accused in such a manner as to give rise to conclusion of guilty beyond reasonable doubt
Suresh Chandra Bahri vs St of Bih - SC re-emphasised the need for raising the presumption tht apprvr is untrustworthy unless corroborated.
M.O. Shamsuddin vs St of Kerala - 2 appellants found guilty under Prev of Corruptn Act & u/s 161 rw S120B, IPC - SC held S133 of evidence act lays down tht an accomplice is a competent witness against an accused person - conviction nt illegal merely becoz - uncorroborated stmnt - however rider in S114 Illustration(b) which provides tht the court may presume tht accomplice is unworthy of credit unless corroborated in material particulars - precautionary presumption
Rameshwar vs St of Raj - SC allowed stmnt of a young girl - victim of rape to be corroborated with the girl's own stmnt to her mothers 4hrs after incident to the effect tht she hd been raped by the accused
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5. WITNESS; COMPETENCE AND EXAMINATIONS
(a) (i) Child Witness - S118
S 118. Who may testify? -
All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind, or any other cause of the same kind.
Explanation
A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
COMMENTS
Reliability of witness
Testimony of a relation or a friend normally would not falsely implicate a person thereby shielding the actual culprit; Narasingh Challan v. State of Orissa, (1997) 2 Crimes 78 (Ori).
It is true that by itself the evidence of a chance witness may not necessarily be false but as has often been said that it is unsafe to be relied upon; Ganpat Kondiba Chavan v. State of Maharashtra, (1997) 2 Crimes 38 (Bom).
It is thoroughly unsafe to rely on the evidence of the tutored witness; Krishna Mohali v. State of Bihar, (1997) 2 Crimes 146 (Pat).
Relative or interested witnesses are not necessarily unreliable witnesses; Sawai Ram v. State of Rajasthan, (1997) 2 Crimes 148 (Raj).
No doubt, an approver in the eye of law is a competent witness; Murlidharan v. State of Tamil Nadu, (1997) 1 Crimes 515 (Mad).
Evidence of child witness is not reliable who is under the influence of tutoring; Changan Dame v. State of Gujarat, 1994 Cr LJ 66 (SC).
Testimony of independent witness
It is true that there is no immutable rule of appreciation of evidence that the testimony of independent witnesses should be ipso facto accepted but all the same the circumstance that witnesses are independent goes miles and miles to ensure their truthfulness. Criminal Courts decide cases and the question of acceptance of evidence of witnesses on sound common sense and when they find witnesses to be wholly independent they endeavour to fathom the reason as to why their evidence should not be accepted. Ordinarily it is a safe and sound rule of appreciation of evidence to accept the testimony of an independent witness provided it is in consonance with probabilities. It is better if it is corroborated by inbuilt guarantees which ensure the truthfulness of the prosecution case, such as a prompt F.I.R., recoveries at the instance of accused person and the presence of injured eyewitnesses, etc.; Shravan Dashrath Datrange v. State of Maharashtra, (1997) 2 Crimes 47 (Bom).
(a) (ii) Dumb Witness - S119
S 119. Dumb witnesses -
A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.
COMMENTS
Where the witness is dumb, recording of his evidence should be of his signs and not interpretation of signs; Prakash Chand v. State of Himachal Pradesh, 1999 (1) Crimes 675 (HP).
(a) (iii) Hostile Witness - S154
154. Question by party of his own witness -
1[(1)] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
2[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.]
COMMENTS
Grounds
Mere possibility of not supporting case by person without any positive indication is no ground to invoke section 154 and permit cross-examination. More so, when said person is not yet examined as witness; Rehana Begum v. Mirza M. Shaiulla Baig (Dead) by L.Rs., AIR 2005 Kant 446.
Cross-examination of own witness
Grant of permission by court to cross examine his own witness by a party should be judicially exercised—deposition in opposition, permission by court to declare him hostile not proper; S. Murugesan v. S. Pethaperumal, AIR 1999 Mad 76.
In a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto; Pandappa Hanumappa Nanamar v. State of Karnataka, (1997) 3 Supreme Today 63.
Evidence of hostile witness
The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused; Lella Srinivasa Rao v. State of Andhra Pradesh, AIR 2004 SC 1720.
Reliability of hostile witness
It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence; Koti Lakshman Bhai v. State of Gujarat, AIR 2000 SC 210.
The entire evidence of a prosecution witness, who turns hostile and is cross-examined by the Public Prosecutor with the leave of the court, is not to be discarded altogether as a matter of law; Pandappa Hanumappa Nanamar v. State of Karnataka, (1997) 3 Supreme Today 63.
Cross-examination of a hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence; Pandappa Hanumappa Nanamar v. State of Karnataka, (1997) 3 Supreme Today 63.
(b) Examination, Cross Examination and re-examination - Ss 137-139, 155
S 137. Examination-in-chief -
The examination of a witness, by the party who calls him, shall be called his examination-in-chief.
Cross-examination
The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination
The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
S 138. Order of examinations -
Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts but the cross-examination need not to be confined to the facts which the witness testified on his examination-in-chief.
Direction of re-examination
The re-examination shall be directed to the explanation of matters referred to in cross-examination, and if new matter by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
COMMENTS
Scope
Section 138 lays down the manner of examining a particular witness and creates three distinct rights viz., examination-in-chief, cross-examination and re-examination so far as the examination of a witness is concerned. The right of cross-examination available to opposite party is a distinct and independent right. When accused declined to cross-examine witness and thereafter the said witness is not available for cross-examination, the evidence of such witness recorded is admissible in evidence but that will have to be true to that account; Nandram v. State of Madhya Pradesh, 1995 FAJ 1 (MP).
S 139. Cross-examination of person called to produce a document -
A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examination, unless and until he is called as a witness.
S 155. Impeaching credit of witness -
The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him:—
(1) By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has 1[accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
2[***]
Explanation
A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.
Illustrations
(a) A sues B for the price of goods sold and delivered to B.
C says that he delivered the goods to B.
Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B.
The evidence is admissible.
(b) A is indicted for the murder of B.
C says the B, when dying, declared that A had given B the wound of which he died.
Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence.
The evidence is admissible.
(26) St of Bihar vs Laloo Prasad (2002) 9 SCC 626
prosecution witness did nt make stmnt in consonance with prosecution case - public prosecutor did nt seek permission of court to cross exam the witness - adverse party cross examined the witness - witness only stated the details of wht he hd stated in examination-in-chief - after cross examination, public prosecutor sought the witness to be treated as hostile on the grnd tht he gave answers in favor of defence during cross examination - trial judge declined to permit cross examination - SC refused to interfere -> held trial court justified in decling to exercise discretion u/s 154 - however during final consideration it ws open to public prosecutor to tell the court tht he ws nt inclined to own the evidence of the said witness - Court obsrvd:- though it is open to party who calls the witness to seek the permission of the court at any stage of the examination, nonetheless a discretion hs been vested with the court whtr to grant the permission or nt - normally when the public prosecutor requests for permission to put cross questions to a witness called by him, the court wud grant it - public prosecutor if nt prepared to own the testimony of the witness examined by him he can give expression to it in different forms u/s 154 or to tell the court during final arguments tht he is nt relying on the evidence of the witness
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6. PRESUMPTIONS
Ss 4,41,105, 111-A, 112, 113, 113-A , 113-B, 114 and 114-A
S 4. "May presume" -
Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
"Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
"Conclusive proof" - Where one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
S 41. Relevancy of certain judgments in probate etc., jurisdiction -
A final judgment, order or decree of a Competent Court, in exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or to take away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing not as against any specified person but absolutely, is relevant when the existence of any legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof -
That any legal character which it confer accrued at the time when such judgment, order or decree come into operation;
That any legal character to which it declares and such person to be entitled, accrued to that person at the time when such judgment, 1order or decree declares it to have accrued to that person;
That any legal character to which it takes away from any such person ceased at the time from which such judgment, 1order or decree declared that it had cased or should cease.
And that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, 1order or decree declares that it had been or should be his property.
S 105. Burden of proving that case of accused comes within exceptions -
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind,
he did not know the nature of the act.
The burden of proof is on A.
(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control.
The burden of proof is on A.
(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances bringing the case under section 335 lies on A.
COMMENTS
Plea of self-defence
When the prosecution has established its case, it is incumbent upon the accused, under section 105 to establish the case of his private defence by showing probability; Samuthram alias Samudra Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185 (Mad).
The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record; Rizan v. State of Chhattisgarh, AIR 2003 SC 976
S 111A. Presumption as to certain offences. -
Presumption as to certain offences.- (1) Where a person is accused of having committed any offence specified in sub-section (2), in-
(a) any area declared to be disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or
(b) any area in which there has been, over a period of more than one month, extensive disturbance of the public peace,
and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contary is shown, that such person had committed such offence.
(2) The offences referred to in sub-section (1) are the following, namely -
(a) an offence under section 121, section 121-A, section 122 or Section 123 of the Indian Penal Code (45 of 1860);
(b) criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860).
S 112. Birth during marriage, conclusive proof of legitimacy -
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
Comments
‘Conclusive evidence’ and ‘conclusive proof’ not different
There is no difference between ‘conclusive evidence’ and ‘conclusive proof’, the aim of both being to give finality to the establishment of the existence of a fact from the proof of another; Somwanti v. State of Punjab, AIR 1963 SC 151.
DNA Test
The DNA test cannot rebut the conclusive presumption envisaged under section 112 of the Indian Evidence Act. The parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof; Shaik Fakruddin v. Shaik Mohammed Hasan,AIR 2006 AP 48.
Presumption of proof
Refusal by wife on a genuine ground, to go to Delhi and get hers and her child’s blood got tested there, does not support drawing an adverse inference against her; Devesh Pratap Singh v. Sunita Singh, AIR 1999 MP 174.
In absence of dislodging of presumption by proof a husband cannot derive much help from her admission that when she met him, she was in period of menses and after that she gave birth to a child who is an illegitimate one, born validly out of wedlock of hers with her husband; Devesh Pratap Singh v. Sunita Singh, AIR 1999 MP 174.
Scope
Section 112 read with section 4 really have the effect of completely closing and debarring the party from leading any evidence with respect to the fact which the law says that to be the conclusive proof of legitimacy and paternity of child covered by 112. The Parties to the marriage had no access to each other and to test blood group violates right under article 21 of Constitution; Ningamma v. Chikkiah, AIR 2000 Karn 50.
S 113. Proof of cession of territory -
A notification in the Official Gazette that any portion of British territory has 1before the commencement of Part III of the Government of India Act,1935, (26 Geo. 5 Ch. 2) been caddied to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.
S 113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a women had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation
For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).
COMMENTS
Relevant portion of section 498A of the Indian Penal Code, (45 of 1860), is reproduced below:
Explanation
For the purpose of this section, "cruelty" means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limit or health (whether mental or physical);
or
(b) harassment of the woman where such harassment is with a view to view concerning her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
S 113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.
Explanation
For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).
COMMENTS
Husband being the direct beneficiary can be inferred to have caused life of wife so miserable that she was compelled to commit suicide; Surinder Singh v. State of Punjab, 1999 (1) Crimes 4296.
Relevant portion of section 304B of the Indian Penal Code, (45 of 1860), is reproduced below:
304B. Dowry death.—(1) Where the death of a woman is caused by any burn or bodily injury or occurs otherwise than 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”.
S 114. Court may presume existence of certain facts -
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustration
The Court may presume -
(a) That a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particular;
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;
(e) That judicial and official acts have been regularly performed;
(f) That the common course of business had been followed in particular cases;
(g) That evidence which could be and is not produced would, if produced be unfavorable to the person who withholds it;
(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavorable to him;
(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it -
As to illustration (a)—A shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;
As to illustration (b)—A, a person of the highest character, is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;
As to illustration (b)—A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;
As to illustration (c)—A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was young and ignorant person, completely under A’s influence;
As to illustration (d)—It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;
As to illustration (e)—A judicial act, the regularity of which is in question, was performed under exceptional circumstances;
As to illustration (f)—The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
As to illustration (g)—A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;
As to illustration (h)—A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
As to illustration (i)—A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.
COMMENTS
Presumption
(i) Presumption is rebuttable. If there is any such circumstance weakening such presumption, it cannot be ignored by the court; Sobha Hymavathi Devi v. Setti Gangadhara Swamy, AIR 2005 SC 800.
(ii) When oral and other reliable evidences are satisfactorily giving evidence that the pair lived together as husband and wife, merely because family register does not show them as husband and wife is not a clinching evidence to deny their relationship of husband and wife; Lalta v. District IVth upper Distt. Judge Basti, AIR 1999 All 342.
(iii) Execution of will made under fraud and under influence not denied. Evidence not adduced in support of allegation inference drawn that will is valid; S. Kaliyammal v. K. Palaniammal, AIR 1999 Mad 40.
(iv) Genuine and correctness of document have to be proved by a person believes upon it by cogent and direct evidence; Ashok Kumar Uttam Chand Shah v. Patel Mohmad Asmal Chanchad, AIR 1999 Guj 108.
(v) A court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder; Mukund alias Kundu Mishra v. State of Madhya Pradesh, (1997) 4 Supreme 359.
(vi) The recovery made some days after the dacoity does not raise a presumption under section 114(a) in respect of the offence of dacoity; Vasant alias Roshan Sogaji Bhosale v. State of Maharashtra, (1997) 2 Crimes 104 (Bom).
S 114A. Presumption as to absence of consent in certain prosecutions for rape.- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual inter course by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
(27) Gautam Kundu vs St of WB, AIR 1993 SC 2295
Courts do nt normally order anybody to submit himself fr blood test, no one can be compelled to give sample of blood fr analysis, whr the presumed father of the child prayed fr blood test of the child fr the purpose of denying legitimacy & liability to maintanence, his prayer ws nt accepted - held tht only way to rebut presumption u/s 112 is by proving non-access & biomedical evidences like blood test, DNA test, etc cannot be allowed - court pointed out tht S112 is based on maxim Pater est quem nuptiae demonstrant (he is the father whom marriage indicates) - irreputable presumption of law tht a child is born during lawful wedlock is legitimate & tht thr ws access b/w parents - presumption cn only be displaced by a strong preponderance of evidence & nt by a mere balance of probabilities - thr must be strong prima facie case in tht husband must establish non access - to dispel the presumption arising under this section - access or non access means existence or non-existence of opportunities fr sexual intercourse, it does nt mean actual cohabitation
B.R.B vs J.B - England, judge hs power to order blood test whenever its in best interest of child - however court hs no power to order blood test against the will of the parties - but refusal can be taken as evidence against the party (civil cases)
US & othr european countries -> court hs statutory authority to order blood test(blood grp serology/genetic marker mapping)
India no such spl statute governing this
Kerala HC in Vasu vs Santha obsrvd - A special provision is given by the law to the status of legitimacy in India - law very strict regarding the type of evidence which can be let in to rebut the presumption of legitimacy of a child - even proof of adultery with any number of men is nt enough to rebut if she hd access to husband during the time the child could have been begotten - law will nt countenance any attempt on the part of the husband to prove tht the child is nt actually his - presumption of law of legitimacy will nt be lightly repelled
In present case Apex Court obsrvd: Rigours imposed by Evidence act are justified by considerations of public policy fr thr r a variety of reasons why a child's status is nt to be trifled with - stigma of illegitimacy is veru severe & we do nt have any protective legislations as in England to protect illegitimate children - no doubt this may require in some cases a husband to maintain children of whom he is probably nt their father - but legislature can alone change the rigors of law & nt the court
Hargovind Soni vs Ramdulari - held "blood grouping is a perfect test to determine questions of disputed paternity of a child and can be relied upon by courts as a circumstantial evidence - no person can be compelled to give sample of blood against his will and no adverse assumptions can be drawn against him for the refusal
Smt Dukhtar Jahan vs Md Farooq - obsrvd tht courts in general incline towards upholding the legitimacy of a child unless the facts are so compulsive and chinching as to neccessarily warrant a finding tht the child cud nt at all have been begotten to the father & as such a legitimation of the child wud result in rank injustice to the father
Presnt case court concluded
(1) Courts in India cannot order blood test as a matter of course (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer fr blood test cannot be entertained (3) must be strong prima facie evidence to estb non access in order to dispel the presumption arising in S112 (4) court must carefully examine as to wht wud be the consequence of ordering the blood test; whtr it will hv the effect of branding -illegitimacy - mother unchaste (5) no one can be compelled to give sample of blood fr analysis, the reason being tht this test is a constraint on one's personal liberty
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