Law Of Evidence Chapter-11

Law of Evidence

What is Law of Evidence all about?
  • In any suit or judicial proceeding in or before a court, rights or liabilities of any person can be ascertained on the basis of some facts.
  • Law of Evidence provides us rules or principles of ascertaining the facts like
    • which fact is relevant and which is relevant
    • how to determine the relevancy of a fact
    • how to produce the evidence to proof a fact
Applicability of Law of Evidence
  • It extends to whole of India except J&K
  • Provisions of this Act are applicable to all judicial proceedings (civil or criminal) in or before a court, including court martial

Non-applicability of Law of Evidence
Provisions of this Act is not applicable to

  • affidavits presented to/before any court or officer (because affidavit is a declaration sworn or affirmed before a person competent to administer an oath. Thus, an affidavit per se does not become evidence in the suits but it can become evidence only by consent of the party or if specifically authorised by any provision of the law).
  • any proceedings before an arbitrator
  • Court-martial convened under the Army Act, the Naval Discipline Act or the Indian Navy Discipline Act, 1934 or the Air Force Act

Some Important Definitions (Section 3)

Evidence” – “Evidence” means and includes

  • 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;
  • all document including electronic records produced for the inspection of the Court, such statements are called documentary evidence;

Presumptions

The Act recognises some rules as to presumptions. A presumption is not in itself an evidence but only makes a prima facie case for the party in whose favour it exists.

There are three categories of presumptions:

  • Presumptions of law
    It is a rule of law that a particular inference (conclusion) shall be drawn by a court from particular circumstances.
  • Presumptions of fact
    It is a rule of law that a fact otherwise doubtful may be inferred from a fact which is proved.
  • Mixed presumption
    They consider mainly certain inferences between the presumptions of law and presumptions of fact.

Section 4 of Indian Evidence Act deals with presumptions. According to Section 4,

  • Whenever it is provided by this Act that 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
  • 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 disproved;
  • When 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.

"Relevancy of Fact"

(Section 5 to 55 – But only few section are covered in the syllabus)

Evidence may be given of facts in issue and relevant facts (Section 5)
Evidence may be given in any suit or proceeding of the existence or non-existence of

  • of every fact in issue and
  • of such other facts as are hereinafter declared to be relevant,

No evidence shall be given of any other fact.
It means facts other than fact in issue and relevant facts are of no importance in any suit or proceeding.

Illustrations
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.

Other facts like A is a dancer or A is married are of no importance if they are not relevant as per the provisions of this Act.

Relevancy of facts forming part of same transaction (Section 6)
Whether facts forming part of same transaction are relevant? – Yes, even if they are not in issue
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 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 or after it as to form part of the transaction, is a relevant fact.
  • A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and gates 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.
  • A sues B for a libel contained in a letter forming part of a correspondence. Other 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.
  • 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.

Facts which are the occasion, cause or effect of facts in issue (Section 7)
Facts

  • which are the occasion, cause, or effect (immediately 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

  • 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.
  • 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.
  • 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.

Motive, preparation and previous or subsequent conduct (Section 8)
Whether facts which show or constitute a motive or preparation for any fact in issue or relevant fact are relevant? – Yes
Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

Diagram

Conditions

  • If such conduct influences or is influenced by any fact in issue or relevant fact
  • It doesn’t matter whether such conduct was previous or subsequent thereto.
    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.
(a)A is tried for the murder of B.
The facts that
  • A murdered C,
  • B knew that A had murdered C, and
  • B had tried to had extort money from A by threatening to make his knowledge public,

are relevant.

(b)A sues B upon a bond for the payment of money. B denies the making of the bond.
The fact that, at the time when the bound was alleged to be made, B required money for a particular purpose, is 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 the consulted vakils in reference to making the will, and
  • 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 acts that, either before or at the time of, or after the alleged crime, A proved evidence which would tend to give to the facts of the case an appearance favorable to himself, or 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 committed a crime.
The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal and the contents of the letter, are relevant.
(h)A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was in possession of 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
(i)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.

Facts necessary to explain or introduce relevant facts (Section 9)

Facts

  • necessary to explain or introduce a fact in issue or relevant fact, or
  • which support or rebut an inference suggested by a fact in issue or relevant fact, or
  • which establish the identity of anything or person whose identity is relevant, or
  • fix the time or place at which any fact 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

  1. 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.
  2. 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 it is affected the relations between A and B.
  3. 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 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.
  4. 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 a better offer” . This statement is a relevant fact as explanatory of Co’s conduct, which is relevant as a fact in issue.
  5. 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 your are to hide this”. B’s statement is relevant as explanatory of a fact which is part of the transaction.
  6. 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.

Statements about the Facts to be Proved

  1. Admissions and Confessions (Section 17-30)
  2. Statements by persons who cannot be called as witnesses (Section 32)
  3. Statements made under special circumstances (Section 34-38)

Admissions

According to Section 17, an admission is a statement,

  • oral or
  • documentary or
  • contained in electronic form,

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.

Diagram
Admission- by party to proceeding or his agent (Section 18)
Statements made

  • by party to the proceeding, or
  • by an agent to any such party,

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 are made while the party making them held that character.

Admissions by persons whose position must be proved as against party to suit (Section 19)
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 them, and

if they are made whilst the person making them occupies such position or is subject to such liability.

Illustration
A undertakes to collect rents for B.
B sues A for not collecting rent due from C to B.
A denies that rent was due from C to B.
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.

Admissions by persons expressly referred to by party to suit (Section 20)
Statements made by persons to whom 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 C, knows all about it” C’s statement is an admission.

Proof of admissions against persons making them, and by or on their behalf (Section 21)
Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:-

  1. An admission may 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 persons 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.

Illustration

  1. The question between A and B is, whether a certain deed is or 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 can B prove a statement by himself that the deed is forged.
  2. 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 statements, because they would be admissible between third parties, if he were dead, under section 32, clause (2)
  3. A is accused of a crime committed by him at Calcutta.
    He produces a letter written by himself and date 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).
  4. A is accused of receiving stolen goods knowing them to be stolen.
    He offers 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.
  5. 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 skillful person to examine the coin 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 preceding illustration.

    An admission must be clear, precise, not vague or ambiguous.
    Admission means conceding something against the person making the admission. That is why it is stated as a general rule (the exceptions are in Section 21), that admissions must be self-harming; and because a person is unlikely to make a statement which is self-harming unless it is true evidence of such admissions as received in Court.

    In Basant Singh v. Janky Singh, The Supreme Court held:

    1. Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admission. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive and it is open to the party to show that it is not true.
    2. All the statements made in the plaint are admissible as evidence. The Court is, however, not bound to accept all the statements as correct. The Court may accept some of the statements and reject the rest.”

Confessions

The term confession is not defined under the Act. As per dictionary meaning, confession is a formal statement admitting that one is guilty of a crime. Thus confessions are special form of admissions. Every confession must be an admission but every admission may not amount to a confession.

  • Sections 27 to 30 deal with confessions which the Court will take into account. A confession is relevant as an admission unless it is made:
    to a person in authority in consequence of some inducement, threat or promise held out by him in reference to the charge against the accused;
  • to a Police Officer; or

to any one at a time when the accused is in the custody of a Police Officer and no Magistrate is present.

General Rule:- The confession is evidence only against its maker only.
Exception:- The confession made in front of magistrate in a native state recorded is admissible against its maker and also admissible against co-accused under Section 30.

diagram

 

Confession caused by inducement, threat or promise is irrelevant in criminal proceedings (Section 24)
According to Section 24, confession caused by inducement, threat or promise is irrelevant in criminal proceedings if following conditions are satisfied:

  1. that the statement in question is a confession;
  2. that such confession has been made by an accused person;
  3. that it has been made to a person in authority;
  4. that the confession has been obtained by reason of any inducement, threat or promise proceeded from a person in authority;
  5. such inducement, threat or promise, must have reference to the charge against the accused person;
  6. the inducement, threat or promise must in the opinion of the Court be sufficient 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 proceedings against him.

Is it necessary to prove that it was the result of inducement, threat or promise?
No, it is not always necessary to prove that it was the result of inducement, threat or promise. It is sufficient if a legitimate doubt is created in the mind of the Court or it appears to the Court that the confession was not voluntary.
It is however for the accused to create this doubt and not for the prosecution to prove that it was voluntarily made. A confession if voluntary and truthfully made is an efficacious (ultimate) proof of guilt.

The Privy Council in Pakala Narayanaswami v. Emperor, observed that:

  •  No statement that contains self-exculpatory matter (favorable to the defendant in a criminal trial) can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.
  • All confessions are admissions but not vice versa.
  • A confession must, either admit, in terms the offence, or substantially all the facts which constitute the offence.
  • An admission of a gravely incriminating fact (making someone appear guilty), is not of itself a confession. For example, an admission that the accused was the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man’s possession of the knife or revolver.

Confessions are classified as:
(a) Judicial Confession, and
(b) Extra-judicial Confession

Judicial Confession
Judicial confessions are those made before a Court or recorded by a Magistrate under the Criminal Procedure Code after following the prescribed procedure such as warning the accused that he need not to make the confession and that if he made it, it would be used against him.

Extra-judicial Confession
Extra-judicial confessions are those which are made either to the police or to any person other than Judges and Magistrates as such.

Are extra-judicial confession relevant
An extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence. It will have to be proved just like any other fact.

In Ram Khilari v. State of Rajasthan, the Supreme Court held that where an extra-judicial confession was made before a witness who was a close relative of the accused and the testimony of said witness was reliable and truthful, the conviction on the basis of extra judicial confession is proper.

In another case, the Supreme Court has held that when confession was proved by an independent witness who was a responsible officer and one who bore no animus against the accused, there is hardly any justification to disbelieve it.

Confessions Vs.Admissions

Admissions

Confessions

There can be an admission either in a civil or a criminal Proceedings

There can be a confession only in criminal proceedings

An admission need not be voluntary to be relevant, though it may effect its weight;

A confession to be relevant, must be voluntary.

There can be relevant admission made by an agent or even a stranger

A confession to be relevant must be made by the accused himself

Confession to police officer not to be proved (Section 25)
No confession made to a police officer shall be proved as against a person accused of any offence.

Confession by accused while in custody of police not to be proved against him (Section 26)
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 Magistrate, shall be proved as against such person.

Consideration of proved confession affecting person making it and others jointly under trial for same offence (Section 30)
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 makes such confession.

Illustrations

  • A and B are jointly tied 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.
  • A is on his trial 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”.
    This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.

Statements by persons who cannot be called as witnesses (Section 32)
Statements, written or verbal, or 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 expenses which, under the circumstances of the case, appears to the Court unreasonable,

are themselves relevant facts in the following cases:-

  • 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.
  • Or is made in course of business 
    When the statement was made by such person in the ordinary course of business, and in particular when it consists
    • of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or
    • of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or
    • of a document used in commerce written or signed by him; or
    • of the date of a letter or other document usually dated, written or signed by him.
  • Or against interest of maker
    When the statement is against the pecuniary or proprietary interest of the person making it or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
  • Or gives opinion as to public right or custom, or matters of general interests 
    When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
  • Or relates to existence of relationship 
    When the statement relates to the existence of any relationship by blood, marriage or, adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
  • Or is made in will or deed relating to family affairs
    When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
  • Or in document relating to transaction mentioned in section 13, clause (a) 
    When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a). (Any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence)
  • Or is made by several persons and expresses feelings relevant to matter in question 
    When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Statements by persons who cannot be called as witnesses (Section 32)
Statements, written or verbal, or 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 expenses 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.
  2. Or is made in course of business 
    When the statement was made by such person in the ordinary course of business, and in particular when it consists
    • of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or
    • of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or
    • of a document used in commerce written or signed by him; or
    • of the date of a letter or other document usually dated, written or signed by him.
  3. Or against interest of maker
    When the statement is against the pecuniary or proprietary interest of the person making it or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
  4. Or gives opinion as to public right or custom, or matters of general interests 
    When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
  5. Or relates to existence of relationship
    When the statement relates to the existence of any relationship by blood, marriage or, adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
  6. Or is made in will or deed relating to family affairs
    When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
  7. Or in document relating to transaction mentioned in section 13, clause (a) 
    When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a). (Any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence)
  8. Or is made by several persons and expresses feelings relevant to matter in question 
    When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.
Illustrations
(a) The question is,
  •  whether A was murdered by B, or
  • where A dies of injuries received in a transaction in the course of which she was ravished, whether she was ravished by B; or
  • whether A was killed by B under such circumstances that a suit would lie against B by A’ widow.
Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong consideration, are relevant facts.
(b) The question is as to the date of A’s birth.| An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day, he attended A’s mother and delivered her of a son, is a relevant facts.
(c) The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.
(d) The question is, whether a ship sailed from Bombay harbor on a given day. A letter written by a deceased member of a merchant’s firm by which she was chartered, to their correspondents in London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbor, is a relevant fact.
(e) The question is, whether rent was paid to A for certain land. A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders is a relevant fact.
(f) The question is, whether A and B were legally married. The statement of a deceased clergymen that he married them under such circumstances that the celebration would be crime, is relevant.
(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.
(h) The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact. The question is, whether a given road is a public way. A statement by A, deceased headman of the village, that the road was public, is a relevant fact.
(i) The question is, whether a given road is a public way. A statement by A, deceased headman of the village, that the road was public, is a relevant fact.
(j) The question is, what was the price of grain on a certain day in a particular market. A statement of a price, made by deceased banya in the ordinary course of his business is a relevant fact.
(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact.
(l) The question is, what was the date of the birth of A. A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.
(m) The question is, whether and when, A and B were married. An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.
(n) A sues B for libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved.

Statements made under special circumstances (Section 34 to 38)
The following statements become relevant on account of their having been made under special circumstances:

  1. Entries made in books of account, including those maintained in an electronic form regularly kept in the course of business. Such entries, though relevant, cannot, alone, be sufficient to charge a person with liability; (Section 34)
  2. Entries made in public or official records or an electronic record made by a public servant in the discharge of his official duties, or by any other person in performance of a duty specially enjoined by the law; (Section 35)
  3. Statements made in published maps or charts generally offered for the public sale, or in maps or plans made under the authority of the Central Government or any State government; (Section 36)
  4. Statement as to fact of public nature contained in certain Acts or notification; (Section 37)
  5. Statement as to any foreign law contained in books purporting to be printed or published by the Government of the foreign country, or in reports of decisions of that country. (Section 38)

Opinion of Third Persons when Relevant

The general rule is that opinion of a witness on a question whether of fact or law, is irrelevant. However, there are some exceptions to this general rule. These are:

Opinions of Experts (Section 45)
When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.

Such persons are called experts.

Illustrations

  • 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.
  • The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the Act, that what he was doing 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 of knowing that what they do is either wrong or contrary to law, are relevant.
  • 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 opinions of experts on the question whether the two documents were written by the same person or by different persons are relevant.

Facts bearing upon opinions of experts (Section 46)
Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.

Illustrations

  1. 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 symptoms of that poison, is relevant.
  2. The question is, whether an obstruction to a harbor is caused by a certain sea-wall.
    The fact that other harbors similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time, is relevant.

Opinion as to handwriting, when relevant (Section 47)
When the Court has to form an opinion as to the person by whom any 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.

Illustration
The question is, whether a given letter is in the handwriting of 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. C 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 the letters purporting to be written by A for the purpose of 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 and D ever saw A write.

Opinion as to digital signature where relevant (Section 47A)
When the Court has to form an opinion as to the digital signature or any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.

Opinion as to existence of right or custom, when relevant (Section 48)
When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, or persons who would be likely to know of its existence if it existed, are relevant.

Illustrations
The right of the villages of a particular village to use the water of a particular well is a general right within the meaning of this section.

Opinion as to usage, tenets, etc., when relevant (Section 49)
When the Court has to form an opinion as to-

  • the usages and tenets 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 or by particular classes of people,

the opinions of persons having special means of knowledge thereon, we relevant facts.

Opinion on relationship, when relevant (Section 50)
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, of 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 India Divorce Act, 1869

Illustrations

  • 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.
  • 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.

Facts of which Evidence cannot be Given (Privileged Communication)

Judges and Magistrates (Section 121)|
No Judge or Magistrate shall, except upon the special order to some Court to which he is subordinate, be compelled to answer any questions

  • as to his own conduct in Court as such Judge or Magistrate, or
  • as to anything which came to his knowledge in Court as such Judge or Magistrate.

But he may be examined as to other matters which occurred in his presence whilst he was so acting.

Illustrations

  • A, on his trial before the Court of Session, says that a deposition was improperly taken by B’ the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.
  • A is accused before the Court of Session of having given false evidence before B, a Magistrate, B cannot be asked what A said, except upon the special order of the superior court.
  • A is accused before the Court of Session of attempting to murder a police officer whilst on his trial before a Session Judge. B may be examined as to what occurred.

Communications during marriage (Section 122)
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.

Evidence as to affairs of State (Section 123)
No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

Official communications (Section 124)
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.

Information as to commission of offences (Section 125)
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 any officer employed in or about the business of any branch of the public revenue.

Professional communication [Section 126]
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 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, pleader, attorney or vakil was or was not directed to such fact by or on behalf on his client.

Explanation – The obligation stated in this section continues after the employment has ceased.

Illustrations

Section 126 to apply to interpreters etc. (Section 127)
The provision of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.

Privilege not waived by volunteering evidence (Section 128)
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;

If any party to a suit or proceeding calls any such barrister, pleader, 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 or matters which, but for such question, he would not be at liberty to disclose.

Confidential communications with legal advisers (Section 129)
No one shall be compelled to disclose to the Court any confidential communication which has take place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be complete to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.

Oral, Documentary and Circumstantial Evidence

The two broad rules regarding oral evidence are:

  • all facts except the contents of documents may be proved by oral evidence (Section 59);
  • oral evidence must in all cases be “direct”. (Section 60)

Oral evidence means statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. But, if a witness is unable to speak he may give his evidence in any manner in which he can make it intelligible as by writing or by signs. (Section 119)

Direct Evidence (Section 60)
An evidence is direct

  • if it refers to a fact which could be seen,
    • it must be the evidence of a witness who says who says he saw it;
  • if it refers to a fact which could be heard,
    • it must be the evidence of a witness who says he heard it;
  • if it refers to a fact which could be perceived by any other sense or in any other manner,
    • it must be the evidence of a witness who says he perceived it by that sense or in that manner;
  • if it refers to an opinion or to the grounds on which that opinion is held,
    • it must be the evidence of the person who holds that opinion on those grounds.

Provided 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.

Documentary Evidence (Section 61)
Proof of contents of documents (Section 61)
The contents of documents may be proved either by primary or by secondary evidence.

Primary evidence (Section 62)
Primary evidence means the documents 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 counterpart, 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.

Illustrations

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.

 

Secondary evidence (Section 63)
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 ensure 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 documents given by some person who has himself seen it.

Illustration

  • 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.
  • A copy compared with a copy of a letter made by a 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.
  • A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but he copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
  • Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.

Proof of documents by primary evidence (Section 65)
Documents must be proved by primary evidence except in the cases hereinafter mentioned.

Special Provisions as to Evidence Relating to Electronic Record (Section 65A)
The contents of electronic records may be proved in accordance with the provisions of Section 65B.

Under Section 65B(1), any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (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.

The conditions in respect of a computer output related above, have been stipulated under Section 65B(2) of the Evidence Act.

Circumstantial evidence
In English law the expression “direct evidence” is used to signify evidence relating to the ‘fact in issue’ (factum probandum) whereas the terms circumstantial evidence, presumptive evidence and indirect evidence are used to signify evidence which relates only to “relevant fact” (facta probandum).

However, under Section 60 of the Evidence Act, the expression “direct evidence” has altogether a different meaning and it is not intended to exclude circumstantial evidence of things which could be seen, heard or felt.

Thus, evidence whether direct or circumstantial under English law is “direct” evidence under Section 60.

Principle of Estoppel

Estoppel is based on the maxim ‘allegans contratia non est audiendus’ i.e. a person alleging contrary facts should not be heard.

According to this principle, a man shall not say one thing at one time and later on say a different thing.

According to Section 115 of Indian Evidence Act, 1872, 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.

However, there is no estoppel against the Statute. Where the Statute prescribes a particular way of doing something, it has to be done in that manner only.

In a case, Mohori Bibee v. Dharmodas Ghosh, (1930), Privy Council held that the rule of estoppel does not apply where the statement is made to a person who knows the real facts represented and is not accordingly misled by it.

The principle is that in such a case the conduct of the person seeking to invoke rule of estoppel is in no sense the effect of the representation made to him.

In Biju Patnaik University of Tech. Orissa v. Sairam College, one private university permitted to conduct special examination of students prosecuting studies under one time approval policy. After inspection, 67 students were permitted to appear in the examination and their results declared.

However, university declined to issue degree certificates to the students on the ground that they had to appear for further examination for another condensed course as per syllabus of university.

It was held that once students appeared in an examination and their results declared, the university is estopped from taking decision withholding degree certificate after declaration of results.

Types of Estoppel

  • Estoppel by Attestation
  • Estoppel by Conduct
  • Constructive Estoppel
  • Estoppel by Election
  • Equitable Estoppel
  • Estoppel by Negligence
  • Estoppel by Silence

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