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Evidence ACT - Nil
3 year /5 year LL.B. (PP101)
Mahatma Gandhi University
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EVIDENCE ACT
[ INDIAN]
M S RAMA RAO B.,M.,M
Textual and Reference Books:
Ratanlal : Law of Evidence Sarkar : Law of Evidence Cross •: Law of Evidence
- Admissions & Confessions
- May presume etc.
- -as to documents
- Admissions <\
- Confessions
- Distinguished
- Retracted confession
- Exceptions 4. Hearsay & Dying declaration
- Dying declaration
- Privileged Communications
- Onus of Proof
- Character
- Examination in chief and cross-examination
- Documents Public and Private
- Documentary 10. Evidence
- Secondary
- Exclusion of Oral evidence
- Oral evidence
- Estoppel - Accomplice Miscellaneous - Attestation - Facts which need not be proved - Best Evidence
INTRODUCTION
The available books on the Law of Evidence, crowded with references, explanations and commentaries, adding to the volume, generally pose a serious problem to the student of law, who is confronted with the Law exam. The bewildering maze of legal jugglery adds to his confusion. Some serious students of law suggested to me, to reduce my lectures to a size sufficient to face the exam with success.
An attempt is made here to present the subject shorn of all frills in the form of references to academic literature. The basic principles of all important and relevant topics are discussed with cases and illustrations. The Law of Evidence is of paramount importance to the legal practitioner and to the judiciary. The student must evince more interest in learning the rudiments of the subject, and, any attempt at specialisation is to be made only after entering the legal profession. A special reference section is added at the end. Your familiarity with the sections, contents and illustrations would be of immense value as additions to the text given by me. ....
QUESTIONS BANK
Define 'Evidence'. Explain 'Fact' and 'Facts in issue'
What is the law relating to 'Confession' in the Evidence Art?
Distinguish Admission from confession.
When are statements made by persons who cannot be called as witnesses admissible (Sn) or What is Dying declaration? When is it admissible in evidence?
What are privileged communications? Explain the circumstances when a witness may claim a privilege.
Discuss,how far character is relevant in Criminal and Civil cases.
What are Public documents?
Distinguish between Private and Public documents. Discuss the mode of proving these documents. How are attested and unattested documents proved?
Explain the scope of oral and documentary evidence and discuss how far documentary evidence excludes oral evidence.
a) Explain Examination in Chief, Cross examination and Re-examination. b) What are leading questions? When are they allowed and when not?
What are presumptions? Explain rebuttable and irrebuttable presumptions with examples.
i)Explain Primary evidence and Secondary evidence,
ii) Explain when Secondary evidence is admissible.
Explain the doctrine of Estoppel with illustrations. What is 'Onus of proof? Briefly explain the law relating to it.
Explain facts which need not be proved.
Write Short Notes on:
i) Relevant Facts ii) Res Gestae iii) Ancient documents iv) Judgment in rem v) Child witness vi) Proved, Disproved and not proved vii) Experts opinion viii) Hearsay evidence ix) Hostile witness x) Testimony of an Accomplice xi) Dumb witness xii) Retracted confession xiii) Presumption of Legitimacy xiv) Evidence xv) Attestation xvi) Competent witness xvii) Judicial notice
CHAPTER 1 DEFINITIONS Ch.1. Evidence: Evidence means and includes: i) all statements which the court permits or requires to be made before it by witness in relation to a matter of fact under inquiry such statements are called oral evidence.
ii) all documents produced for the inspection of the court Evidence may be oral or documentary. Evidence is defined as any matter of fact the effect or tendency of which is to produce in the mind a persuasion of the existence (or otherwise) of some other matter or fact,. The textual definition refers only to oral and documentary evidence and hence incomplete. The judge may rest his judgment on various other media of proof as well. Inspection report, facts which the court may take judicial notice etc. are not covered by the definition.
An affidavit is not 'evidence' under this section. Similarly confessions of Co-accused, Mahajar report, finding of the tracker dogs or tape recordings etc; are not evidence. These are to be proved and then the court may decide their admissibility and evidentiary value. Three major principles of evidence are i) it must be confined to facts in issue and relevant facts ii) Hearsay evidence is not admissible iii) Best evidence must be produced before the court. Ch.1 Fact and Fact in Issue; 'Fact' means anything or state of thing which is capable of being perceived by the senses. It also includes any mental condition of which a person is conscious.
Eg.: i) if a man hears something then that he heard something is a fact. ii) That a person has said certain words is a fact. Facts are of two kinds : Physical Psychological (item which exists in mind) Facts in issue means any fact from which either by itself or in connection with other facts there necessarily follows the nature of the right asserted or denied in any civil or criminal proceedings. 'A' is accused of murder. The following are the facts in issue: 1) A caused B's death ii) A intended to cause the death of B iii) A had received a grave and sudden provocation from B. Matters which are in dispute or which form the subject of investigation are to be determined by the court. When the Court investigates the facts there may be allegation and denials by the parties to the dispute. From these the court settles the facts in issue. These are called issues under Civil Procedure Code. Ch.l.3 Facts: Facts mean: i) anything capable of being perceived by the senses and ii) any mental condition of which any person is conscious. Facts in issue are matters which are in dispute or subjects for determination.
Relevant facts are defined in Sns. 3 & 5. Evidence may be given of i) facts in issue and ii) of such other facts declared to be relevant by the Evidence Act, and of no others.-Generally speaking, evidence should to be confined to the facts in issue. But there are collateral facts which are intermixed with the facts in issue and according to the Evidence Act these are relevant and admissible. Relevancy is the test of admissibility.
i) A fact not relevant may become relevant because of a presumption. ii) The terms of a contact may be relevant but no oral evidence is allowed except the document itself.
iii) In examination in chief though there may be facts leading questions concerning them are not admissible. But in cross examination leading question may be freely asked.
The objective of the evidence Act to save public time and to prevent fanciful inferences which may prejudice and mislead the court. Hence only collateral facts which are relevant according to the Evi dence Act are admissible. All others are inadmissible. The discretion of the court is guided by the provisions of 'the Act.
Ch.1 Res Gestae (Sn): These are facts surrounding or accompanying a transaction. This has a reference to the circumstances which are the automatic and the unsigned incidents. The incidents may consist of the sayings and doings of persons. Res Gestae according to Cross's Law of Evidence, is a blanket phrase covering, a variety of items of evidence for variety of purposes. Eg.: A sues B for a lible. The libel was in a letter. The correspondence between the parties relating to the subject of libel are relevant facts. A is accused of murder of B by beating. All things said or done by A & B, or by the by-standers, at the time of beatings or just before it are relevant facts (Res Gestae). Of course, Hearsay evidence is not admissible. Hence. Res Gestae refers to statements relating to and contemporaneous with a relevant fact. The essence of it is that there must be continuity of action and purpose. (i) R. Thompson (committing abortion of a woman), all acts done and statements made before or after abortion were allowed as Res gestae.
(ii) In R. Lillyman, the accused had ravished a woman W. The particulars given by her in her complaint, were allowed as they were consistent with her conduct and for not giving her consent for ravishment. Ch.1. 30 Years Old Document (Ancient Document) (Sn. 90): There is a presumption in respect of a document which is 30 years old that the signature and other parts of the document which purport to be in the handwriting of a particular person, is in that persons handwriting. In respect of its execution or attestation, the court may presume that it has been duly done. Such a document must be in the proper custody of a person ,who would naturally be in possession of it. The legitimate origin can be proved.
Eg.: A produces title deeds relating to his land. The custody is proper.
Alibi means elsewhere. It is a complete defence in Criminal Cases. (i) The Charge is that A has committed theft at Bombay on 25-12-92. The fact that on that day A was in Calcutta is a relevant fact. The fact that A was far away from the place of crime makes it highly improbable (though not impossible) that A has committed theft.
(ii) The charge is that A has committed an offence. The circumstances are such that A,B,C, or D must have committed the offence. The fact that it was not committed by B,C, or D is relevant.
The leading case in R.V. In this R committed murder of a peasant girl in a cottage but claimed alibi. The circumstances showed that the plea was bad. He was found guilty. The principle of alibi is: Facts (not otherwise relevant) are relevant (i) if they are inconsistent with any fact in issue or relevant fact. (ii) if the facts in connection with other facts make the existence of the fact in issue or relevant fact, impossible. Thus, in the illustration, if A is elsewhere at the time of the crime, it is inconsistent with the fact in issue. This also makes it improbable that A who is at Calcutta could commit theft, at that time at Bombay. Ch.1. Child Witness:
A child of tender age is competent to be a witness before a court but it must have intellectually and sufficiently developed to understand what it has seen and also to tell the court about the same. Whether a child is sufficiently developed or not may be tested in examination-in-chief. The child must be capable of giving rational answers is left to the discretion of the court to decide the compe- v' tency of the child. In criminal cases, it has been held, that, the conviction of the accused cannot be based solely on the solitary evidence of a child, because children are the most untrust-worthy class of witnesses. They may mistake dreams for realities and are greatly influenced by fear of punishment, by hope of reward and by a desire of notoriety. In Abbas Ali Shah Vs. Emperor, the Privy Council said that it is not sound rule to act on the uncorroborated evidence of a child. This is only a rule of prudence and not law.
Ch.1. Proved, disproved and not proved:
Proved: A fact is said to be proved when the court after considering the matters before it, believes its existence or believes it to be so probable that a prudent man would conclude it to exist under the circumstances of the case. This definition indicates, the degree of certainty which must be reached. Proof means anything which helps to convince the mind, of the truth or falsehood of a fact. Absolute certainty may not be had in the affairs of life. Practical good sense and prudence consist in judging matters with a degree of probability or certainty. Suspicion will not give probative force to testimony and an accused cannot be convicted on grounds of suspicion.
Disproved: A fact is said to be disproved when the court after considering the matters before it, believes that it does not exist or considers its non-existence so probable that a prudent man would conclude it, not to exist under the circumstances of the case. Not proved: A fact is said to be not proved when it is neither proved nor disproved. (i) A is tried for murder of B. On the basis of evidence the court is satisfied that A has murdered. Here, the charge is proved. (ii) A is tried for theft. The prosecution could not convince the court with evidence available. The accused, showed evidence that he has not committed theft. The judge is convinced. The charge is disproved. (iii) A is charged with receiving of stolen property. The evi dence could not establish beyond doubt that A is guilty. The court may declare the charge as not proved.
Proof may be direct or circumstantial. The court decides whether a fact is proved or disproved. A fact is proved when the court believes it to be certain and most probable. It is disproved when it is uncertain or improbable or not possible. A stage between these two is 'not proved. That is, the court will not be able to say precisely, how the matter stands.
Ch.1. Expert Witness (Sn. 45)
An expert witness is one who has devoted his time and study to a special branch of learning and so is skilled specially on the points on which he gives the opinion. His evidence is admissible, doctors surgeons, engineers, fingerprint and Handwriting experts, Chemical examiners etc, are Expert witnesses.
The principle of the Evidence Act is that the "opinion evidence" should not be entertained. Expert opinion is an exception to this rule. Opinion of experts on points of i) Foreign Law ii) Art iii) Identity of handwriting or fingerprints or other impressions, are admissible as facts in evidence.
Eg.: i) The question is whether 'A' died of poison. The opinion of an expert relating to the symptoms of such poison is relevant.
ii) The question is whether a signature is that of 'A'. Handwriting experts opinion is relevant. In the Meerut Conspiracy case, the Supreme Court laid down that after hearing experts opinion the court'may come to its own conclusions and it is not bound by experts opinion.
The experts opinion is rebuttable. Facts which support or are inconsistent with experts opinions are relevant to rebut or affirm such opinions. Eg. : A was poisoned by B. The fact other persons showed similar symptoms with that poison, is relevant.
When the court is to form its opinion, in respect of relationship between one person and another, the opinion of a member of a family who has special knowledge on the subject, is relevant. Exceptions: Such an opinion is not admissible to prove a marriage; or to prosecute for Bigamy under I.P. " Ch.1. Hearsay Evidence Sn:
The general rule of evidence is that Hearsay evidence is not admissble. Sn provides that oral evidence must be direct. This means if it refers to a fact which could be seen, it must be the evidence of a witness who says he has seen it. If it refers to a fact which could be heard, it must be the evidence of a witness who says he has heard it. Similarly, if it could be perceived by any other sense or manner, it must be the evidence of a person, who has perceived it by that sense or manner. An opinion is to be by a person who holds that opinion. Hearsay evidence is opposed to direct evidence. - Hearsay refers to what is done or written or spoken and the evidence does not solely,evolve from the witness. It is partially based on the varacity and competence of some other person. Hearsay is inadmissible as, otherwise, frauds may be practised and legal proceedings may be protracted. In fact, it is a second hand proof. All evidence must be under the personal responsibility, of the witnesses. This rule is subject to an exception in S. Statements made by a person ! who is dead who cannot be found . who has become incapable of giving evidence or (d) whose attendance cannot be procured without unreason able expense or delay, are admissible subject to the provisions made in Sn. Eg.: Opinion of experts expressed in a treatise or commentary may be proved by producing the book, if the author is dead.
Ch.l.l3 Witness:
A witness is a person who is produced before the court with whose support the proceedings take place. (Sn)
A Hostile witness is one who from the manner in which he gives evidence, shows that he is not desirous of telling the truth to the court. An unfavorable witness is not necessarily hostile. He is one who is gained over by the opposite party. As far as the courts are concerned, he should not be believed unless the
testimony is supported by satisfactory evidence.
The court in its discretion may allow the concerned party to cross-examine him. Leading questions may be put to him. Also, questions relating to his previous statements may be put to him. His credit may be impeached.
The result is that the whole of the evidence of the witness does not become worthless. It is left to the discretion of the court to consider his evidence, and a part of his evidence may be utilised by the parties. Corroboration is required if the court wants to give any credence.
The principle underlying the law relating to hostile witness is that one's own witness unexpectedly may make statements adversely and in such cases, it is common fairness that such statements should be tested by cross-examination. The utility of cross-examination is to get at the truth more readily.
Ch.1. Leading Questions:
Any question suggesting the answer which the person putting it wishes or expects, is called a leading question.
A leading question should not be asked in examination-in-chief-or re-examination. The reason is, it will enable a party to prepare his story and evolve it in his very words from the mouth of his witness in
the court. A false gloss may be put. Hence concocted stories may be built up. As the witness is presumed to be in favor of his party, he might be prompted. Eg.: Question asked by the Prosecutor: Did Accused Jones attack you with a knife as soon as you met him on 1st January 1983? This is a leading question and is inadmissible As Cross on 'Law of Evidence' points out Leading question is a question which suggests a desired answer. Hence they are not admitted in evidence. Leading questions may be asked in examination-in-chief when they refer to matters which are introductory, undisputed or sufficiently proved i., to abridge the proceedings. Leading questions may be freely asked in cross-examination. As the purpose of cross-examination is to test the accuracy, credibility and the general value of evidence and also to sift the facts already stated, it is necessary to put leading questions to elicit facts. Leading questions may be freely asked to a hostile witness to test the truth or veracity of such a witness.
course, access to the parties. iii) Cession of territory made by Government-conclusive if it is in official gazette. These are irrebuttable presumptions and hence are conclusive in nature. c) Mixed Presumptions: This stands midway between presumption of fact and of law. These are inferences but because of their strength, importance or occurrence, they have gained the force of law. Eg.: A person is presumed to be dead when it is proved that he has not been heard of, for seven
years. (Sn).
Ch.2. May presume, Shall presume and Conclusive proof: a) May Presume: Whenever the Evidence Act provides that the court may presume, what is understood is, that the court treats the fact as proved until it is disproved or it may call for proof of it. A Presumption is a rule of law. The court shall draw an inference from a particular set of facts, or, from a particular evidence. 'May Presume' refers to natural presumptions. These are inferences drawn naturally and logically from the experience of mankind, usage and habits of society. These are rebuttable: Eg.: i) Certified copy of foreign records may be presumed genuine. ii) Ancient documents (30 years old documents), the Presumptions is that the handwriting is that of the person concerned. b) Shall Presume: Whenever the Act provides that the court shall presume, what is understood, is, that the court shall regard the fact as proved unless it is disproved. This is rebuttable and stands good until disproved Eg.: i) Official Gazette notifications shall be presumed to be genuine. ii) Maps and plans published under the authority of law shall be presumed to be genuine.. c) Conclusive Presumptions: -These are inferences which the law makes so peremptorily that it will not allow them to be over turned by any contrary proof however strong. Eg.: i) Judgment in rem is conclusive in respect of the legal character it declares.
ii) Sn. 112: The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after divorce (the mother remaining unmarried) shall be conclusive proof that the son is legitimate. The burden is on the husband to show that he had no access to his wife at all and very strong proof is required by courts to establish this.
Eg. Husband living abroad for over one year. Here,H had no access to his wife, when the child would have been begotten.
iii) Sn. 113: Cession of territory by Govt.: The official gazette notification is conclusive proof.
Ch.2. Presumptions as to documents (Sns to 90):
i) A Presumption is a rule of law that Courts and judges shall draw a particular inference from a particular set of facts, or from a particular evidence. The Evidence Act has classified these presumptions into three groups:
a) May Presume b) Shall Presume and c) Irrebuttable Presumptions. ii) In regard to documents produced before the Courts or their certified copies as required by the Evidence Act, the Courts start with some presumption for example about the genuineness of the document. This presumption is rebuttable, and, the party who asserts that the document is not genuine, should prove or establish his assertion.
iii) May Presume: Certified copies of foreign judicial records: The Court may presume them to be genuine and accurate if duly certified by the concerned authority. Sn 86
Books/Maps and Charts: The court which may refer for information on matters of public or general interest, as relevant facts, may presume that these were written and published duly at the place, by the persons there of. Sn 87
Telephonic Message: The court may presume that telegraphic message received by the addressee corresponds with the message given
for transmission. However, the court will not make any presumption as to who has sent the message. Sn 88
Ancient documents: In regard to such documents which are thirty years old, and produced from proper Custody, the court may presume that the signature, the hand-writing, are proper ; and, that the attestations and execution are duly done.
iv) Shall Presume: Certified Copies: Every Certified copy duly issued by the concerned authority shall be presumed to be genuine, and, duly certified by that authority and that authority held the official status stated therein. Sn 79 Records of evidence in judicial proceedings: The Court shall presume, that such documents forming part of judicial proceedings, are genuine, that the statements contained therein were duly taken or recorded. (This refers to Confession Statements, or any document or memorandum before any judicial proceedings). Sn 80 Gazette, Newspaper, Acts of Parliament (Or Legislature) and other documents, shall be presumed to be genuine. Sn 81
Evidence ACT - Nil
Course: 3 year /5 year LL.B. (PP101)
University: Mahatma Gandhi University
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