LAW OF EVIDENCE
The Indian Evidence Act, 1872 comprises of 167 sections
divided in to 11 chapters under 3 parts.
Part-I deals with relevancy of facts [Ss.1-55]
Part-II deals with on proof [Ss.56-100]
Part-III deals with production and effect of evidence
[Ss.101-167].
Preliminary:
Law of Evidence is a procedural code which determines
what sort of facts have to be proved to establish a matter in dispute and what
sort of proof is to be given and by whom and in what manner such proof is to be
given. Law of Evidence regulates both civil as well as criminal trial.
The fundamental rules of evidence are:
1.
Evidence should be
confined to the facts in issue,
2.
Hearsay evidence
should not be admitted i.e., hearsay evidence is not an evidence, and
3.
Best evidence rule or
best evidence must be given in all cases.
RELEVANCY
Facts in issue
[Sec.51]
·
It means matter in
controversy
Relevant facts which
may be-
·
facts connected with
the facts in issue [Ss.6-16]
·
Admissions and confessions[Ss.17-31]
·
Statements by persons
who cannot be called as witnesses [Ss.32-33]
·
Statements made under
special circumstances [Ss.34-39]
·
Judgments in other
cases [Ss.40-44]
·
Opinions [Ss.45-51]
·
Character [Ss.52-55]
Doctrine of Res-Gestae:
It means “the thing done, a subject matter, a transaction
or essential circumstances surrounding the subject”. It is things done
including words spoken, forming a part of the same transaction.
R vs Foster, [1941] SC 363
The
accused was charged with manslaughter for killing a person by driving over him.
A witness saw the vehicle at a high speed, but did not see the accident. On
hearing cries of the victim, he reached the spot. The victim died after making
statement as to cause of the accident. The statement was held to be admissible.
Identification parade [Sec.9]:
Identification is an important process in the
administration of justice. Identification parades are held for the purpose of
identifying the properties, which are subject matter of an offence or persons
concerned in an offence.
Conspiracy [Sec.10]:
Where
there is reasonable ground to believe that two or more persons have inspired together
to commit an offence or an actionable wrong, then anything that is said, done
or written by any one of the conspirators with reference to a common design,
can be used as an evidence against all other conspirators.
L.K.Advani vs C.B.1. [1997] Cr.L.J 2559.
C.B.I.
seized certain diaries from the residence of one S.K.Jain. The entries in the
diary showed that a payment of Rs. 60 lakhs has been made as an illegal gratification
to Mr.L.K.Advani for pursuing the award of Govt. contract to foreign bidders.
The court refused to accept the diary as a piece of evidence against Advani, on
the ground that, the prosecution had failed to prove primafacie case of
conspiracy and there is no evidence to show that the entries were made only in
reference to a common design.
Alibi [sec.11 ]:
Facts not otherwise relevant are made relevant-
•
if they are
inconsistent with any fact in issue or relevant fact
•
if by themselves or
in connection with other facts they make the existence or nonexistence of any
fact in issue or relevant fact highly probable or improbable.
Admissions and confessions [Ss.17-31]:
Admission:
Admission means acknowledgement of existence or truth of
a particular fact. The statements made by the parties during judicial
proceedings are ‘self regarding statements’. It is of two types:
1.
Self-serving
statements; and
2.
Self-harming
statements.
Sections 18-20 of the Act lay down the provisions
relating to persons competent to make admissions.
1.
Parties to the suit,
2.
Authorized agents of
the parties expressly or impliedly assigned,
3.
Persons having
proprietary or pecuniary interest in the subject matter of the suit, and
4.
Persons from whom the
party to the suit has derived his interest.
Confession [Sec 22]:
If a person accused of an offence makes a statement
against himself, it is called confession. The confession made to a police
officer cannot be proved against the accused person. “all confessions are
admissions, but all admissions are not confessions”.
A person may be convicted on the basis of his confession
enshrined in two latin maxims such as:
1.
Confession in Judicio Omini Probatione Major Est:
It means ‘confession in
judicial proceedings is greater than any other proof’.
2.
Confession Facta in Judicio Est Plena Probatio:
Confession is the absolute
proof’.
Sitaram vs State [1996] Supp. S.C.R. 265
The accused after commiting murder left a confessional
letter on the dead body. The letter was addressed to police officer. The court
treated the letter, not addressed to police, since police officer was not
nearby. The confession was admitted and the accused was convicted.
Dying declaration: [Ss.32 and 33]
A
dying declaration is a declaration written or verbal 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.
Sec 32 makes relevant statements made by person.
1.
Who is dead,
2.
Who cannot be found,
3.
Who has become
incapable of giving evidence, or
4.
Whose attendance
cannot be procured without unreasonable delay or expenses.
Dying declaration is of the utmost importance and the
evidence as to it should be exact and full. The general Ie is that hearsay
evidence is no evidence and is not admissible in evidence. But Ss.32 and 33 are
exceptions to it.
Moti Singh vs State of U.P, [A.I.R. 1964
SC 900]
It was held in this case that, if the person survives,
his statement cannot said to be the statement as to cause of his death.
Pakala Narayana Swamy vs Emperor [A.I.R.
1939 PC 47]
The
accused Pakala has borrowed a sum of Rs. 3000/- from the deceased. The deceased
received a letter from the accused’s wife asking him to come down to Berhampur
to collect the money. After 2 days, his dead body, cut in to seven pieces, was
found in a trunk in a railway compartment. After investigation the accused was
arrested and he was tried for murder. At the trial the statement made by the
deceased to his wife, while showing the letter, that he is proceeding to
Berhampur to collect money was held to be admissible as dying declaration.
The Privy Council was of the opinion that this statements
related to the circumstances that he was proceeding to the spot where he was
killed, that he was invited by a particular person and all those constituted
circumstances that brought about his death and are therefore admissible as
dying declarations.
Judgments: [Ss. 40-44]
Ss. 40-44 lays down the provisions relating to judgments
of court of justice, when relevant judgments are categorized it to 2 types:
1.
Judgments in rem; and
2.
Judgments in
personam.
For the application of sec.41, the following conditions
are to be satisfied:
1.
It should be final
judgment and not an interlocutory one,
2.
The court must be
competent,
3.
The judgment must be
in exercise of any of following jurisdictions namely; probate, admiralty,
matrimonial and insolvency,
4.
Such judgment must
confer upon or take away from any person any legal character or declare that
any person is entitled to any specific thing absolutely.
Opinion of experts: [Ss. 45-51]
An expert is a skillful professional in particular field
viz., art or trade, foreign law, identity of hand writing and finger
expressions etc. the expert opinion is only a piece of evidence and cannot be
taken as substantive evidence since it is to be judged along with the other
evidence.
Mubarak Ali vs State of Bombay [A.I.R.
1957 SC 857]
The Supreme Court laid down that a witness must confine
himself to the facts and not to the state of his opinion.
Relevancy of character: [Ss.52-55]
In civil proceedings, the evidence of good character or
bad character is not relevant except in cases where such a bad conduct is
itself a fact in issue in that particular case. In civil cases whenever damages
are claimed, if evidence of character is likely to affect or mitigate such damages,
the evidence of character becomes provable and not otherwise.
In criminal proceedings, the previous bad character of
the accused is not relevant except under the following circumstances.
1.
Where the accused
himself comes forward and gives evidence of his good character and challenges
the prosecution to prove his bad character, then as a reply to his challenge,
the prosecution can let in evidence to prove the bad character of the accused.
2.
Where the character
of the accused itself is in dispute then evidence regarding bad character may
be placed.
3.
If the accused person
has already been convicted for some other cases, theprevious conviction can be
used as an evidence for enhancement of punishment under section 75 of I.P.C.
Burden of Proof:
On Proof
Type of evidence to be given
Facts which need not
be proved
·
Facts judicially Noticeable
·
Facts admitted
Other facts if in
issue may be proved by
·
Oral evidence
·
Documentary evidence
Whenever a party approaches the court for redressal for
any injustice done to him, he releases upon certain facts to claim his legal;
right. Then, a question arises before the court is, who has to prove these
facts, whether the plaintiff or the defendant?
In other words, on whom the burden of proof shall lie.
The burden of proof signifies on obligation imposed on a party to prove a fact.
The general rule is whoever approaches the court to get a judgment in his
favour, relying upon certain facts, he has to prove those facts. Whenever some
facts which are within the special knowledge of a party and places as evidence,
then the party who has such special knowledge should prove it.
Whenever an accused person pleads that his action does
not constitute an offence, and his activities squarely fall within the general
exceptions, that it is for the accused to prove that he comes within the
general exceptions.
Where there is a question whether a man is alive or dead
and if it shown that he was alive with in a period of 30 years, the burden of
proving that he is dead is on the person who affirms it. On the other hand, if
it is proved that he has not been heard for 7 years by those who would naturally
have heard of him if he had been alive, the burden 0 proving that he is alive
is shifted to the person who affirms it.
Estoppel:
When a person tells us something we generally hear him.
If he says something different or contradicting, we would not hear any more and
contradict such statement. This principle is enshrined in the maxim:
“ Aligans
Contraria Non Est Audiendus” which means “a man alleging contradictory facts ought not to be heard”.
The principle of estoppels was laid down in the case of -
Pickard vs Seers [1832 A and E 469]
A was the owner of machinery. A allowed his friend, B to
be in possession of the machinery. C obtained a decree against B and seized the
machinery for which A did not raise any objection immediately. Later, C sold
the machinery to other persons. Then, A raised an objection and sued C for
getting up his title. The suit was dismissed on the ground that C cannot be
stopped from sale.
The doctrine is based upon 3 moral principles namely;
1.
No one can blow hot
and cold in the same breath.
2.
No one can take the
advantage of one’s wrong.
3.
No one can accept and
reject at the same time.
M.P.Sugar Mills vs State of U.P [A.I.R.
1979 SC 621]
The Government through the Chief Secretary announced
categorical assurance for the total exemption from the sales tax. Basing on
this promise, the defendant setup a hydro generation’s plant by raising huge
loan. Later, the Government challenged its policy and announced the exemption
of sales tax at 3, 2.1/2 and 2 for the 1 S\ z= and 3rd years respectively. The
tax exemption was completely withdrawn latter, when the defendant’s factory
started its production. The Supreme Court held that the Government is bound by
its promise and directed to give exemption to the defendant’s company.
Privileged communication: [Ss. 122-132]
The expression ‘privilege’ means ‘a peculiar advantage or
some special benefit conferred by virtue of sex or one’s position’. Such
persons are immune from liability or privileged. Any statements made by such
persons is said to be privileged communication. Following are theinstances of
privileged communication.
1.
Communication during
marriage [Sec.122]
2.
Evidence as to
affairs of state [Sec.123]
3.
Official
communication [Sec.124]
4.
Information as to
commission of offences [Sec.125]
5.
Professional
communications [Sec.126]
T.J.Ponnen vs M.C.Verghese [AIR 1970 SC
1876]
The defendant i.e., husband of the plaintiff’s daughter
addressed a letter containing defamatory matter to his wife about the father
i.e., plaintiff. Plaintiff noted the defamatory contents through his daughter
i.e., wife of the defendant. In an action by the plaintiff against the
son-in-law i.e., defendant the Kerala High Court held that suit was not
actionable. But the Supreme Court reversed the above decision on the ground
that if the communications between husband and wife have fallen into the hands
of third person, they can be proved in any other way.
Examination of witness: [Ss.135-166]
Examination of witness consists of the following stages:
1.
Examination-in-chief
2.
Cross examination
3.
Re-examination
Leading questions: [Ss.141-143]
Leading question means “a question, which by itself
suggests the answer as expected by the person asked the same”. The court shall
permit leading questions as to matters which are introductory or undisputed, or
which have, in its opinion, been already sufficiently proved.
Leading questions can be asked in cross-examination. They
cannot be asked during chief examination or re-examination if they objected to
by the adverse party except with the permission of the court. Indecent,
scandalous questions intended to insult or annoy the witnesses shall not be
asked.
Hostile witness: [Sec.154]
The word ‘hostile’ literally means “unfriendly”. A
witness is generally expected to give evidence in favour of the party by whom
he is called. But in certain cases such witness may unexpectedly turn hostile
and gives evidence against the interest of the party, who has called him. He is
known as “adverse witness” or “unfavourable witness”.
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