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SIDDHARTH LAW COLLEGE GANDHINAGAR SECTOR - 16

MASTER OF LAWS (LL.M.) SEMESTER- 3 2016 GROUP – B (CRIMINAL LAWS)

PAPER-502 ECL LAW OF EVIDENCE

Prepaid By RANAVADIYA MANOJKUMAR J LLM STUDENTS SIDDHARTH LAW COLLEGE GANDHINAGAR

Cot No. 9924840059 – 8401616211

PAPER-502 ECL LAW OF EVIDENCE LAW 502 ECL LAW OF EVIDENCE OBJECTIVES OF THE COURSE:

The law of evidence, is an indispensable part of both substantive and Procedural laws. It imparts credibility to the adjudicatory process by indicating the degree of veracity to be attributed to 'facts' before the forum. This paper enables the student to appreciate the concepts and principles underlying the law of evidence and identify the recognized forms of evidence and its sources. The subject seeks to impart to the student the skills of examination and appreciation of oral and documentary evidence in order to find out the both. The art of examination and crossexamination and cross-examination and the shifting nature of burder of proof are crucial topics. The concepts brought in by amendments to the law of evidence are significant parts of study in this course.

SYLLABUS :

1. CENTRAL CONCEPTIONS IN LAW OF EVIDENCE

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Facts : Section 3 definition : distinction -relevant facts/facts in issue .

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Evidence : Oral and documentary.

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Circumstantial evidence and direct evidence.

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Presumption (Section 4)

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"Proving" "Not providing" and "Disproving" Witness Appreciation of evidence.

2. ADMISSIONS AND CONFESSIONS : •

General principals concerning admission (Section 17,23)

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Differences between "admission " and "confession"

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The problems of non -admissibility of confessions caused by "any inducement, threat of promise " (Section 24)

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Inadmissibility of confession made before a police officer (Section25)

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Admissibility of custodial confessions (Section 26)

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Admissibility of "information" received from accused person in custody with special reference to the problem of discovery based on.

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"Joint statement " (Section 27 )

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Confession by co-accused (Section 30) The problems with the judicial action based on a "retracted confession”

3. ORAL AND DOCUMENTARY EVIDENCE & EXPERTS EVIDENCE: •

General principles concerning oral evidence (Section 59-60)

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General Principles concerning Documentary Evidence (Section 6790)

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General Principles Regarding Exclusion of Oral by Documentary

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Evidence Special problems re-hearing evidence

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General Principles

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Types of expert evidence

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Opinion on relationship especially proof of marriage (Section 50)

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The problems of judicial defense to expert testimony Dying Declaration.

4. WITNESSES, EXAMINATION AND CROSS EXAMINATION

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Competency to testify (Section 118)

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State privilege (Section 123)

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Professional Privilege (Section 126,127,128)

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Approval testimony (Section 133)

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General Principles of examination and cross examination (Section 135-166)

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Leading questions (Section 141-143)

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Lawful questions in cross -examination (Section -146)

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Compulsion to answer questions put to witness Hostile witness (Section 154)

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Impeaching of the standing or credit of witness (Section 155)

5. BURDEN OF PROOF:

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The general conception of onus probandi (Section 101)

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General and special exceptions to onus probandi.

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The Justification of presumption and of the doctrine of judicial notice.

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Justification as to presumptions as to certain offences (Section 111A)

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Presumption as to dowry death (Section 113-B)

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The Scope of the doctrine of judicial notice (Section 114)

LAW OF EVIDENCE 1.

CENTRAL CONCEPTIONS IN LAW OF EVIDENCE

Introduction of the course In every civilized legal system we can be classified the laws in two categories 1. Substantive Law 2. Procedural The Law of evidence is one of the most important part of the procedural law. The law of evidence plays a very important role in the effective functioning of the judicial system. The law of evidence is an indispensable part of both substantive and procedural laws. It imparts credibility to the adjudicatory process by indicating the degree of veracity to be attributed to 'facts' before the forum. This paper enables the student to appreciate the concepts and principles underlying the law of evidence and identify the recognized forms of evidence and its sources. The subject seeks to impart to the student the skills of examination and appreciation of oral and documentary evidence in order to find out the truth. The art of examination and crossexamination, and the shifting nature of burden of proof are crucial topics.The concepts brought in by amendments to the law of evidence are significant parts of study in this course. Contents 1. Introductory (7 Lectures) 1.1 Preamble. 1.2 Short title, Extent and Commencement. 1.3 Acts which deal with evidence. 1.4 Applicability of Evidence Act. 1.4.1 Judicial proceedings. 1.4.2 Court.

1.4.3 Court martial. 1.4.4 Tribunals. 1.4.5 Commissions of inquiry. 1.4.6 Arbitration. 1.4.7 Affidavits. 1.4.8 Contempt of court. This chapter deals with history of statutory Evidence Law in India – Pre and post Indian Evidence Act, 1872 realities – Role of Judiciary, particularly the appellate judiciary in up-dating the Evidence Law rules by judicial creativity, general issues relating to law of evidence and also deals with object of the Act and applicability of the Act. 2. Central Conceptions in Law of Evidence (7 Lectures) 2.1. Facts: Definition (Section 3) 2.2. Evidence: Meaning and kinds (Section 3) 2.3. Presumption (Section 4) 1/3 2.4. "Proved", "Disproved" and "Not proved” (Section 3) 2.5. Witness. 2.6. Appreciation of evidence. This chapter deals with understanding of the concepts such as, ‘Facts’, ‘Facts in issue’, ‘Relevant Fact’, ‘EvidenceOral and Documentary’, ‘Proved’, ‘Disproved’ and ‘Not Proved’ under section 3 and 4 of the Act.

3. Relevancy of Facts (7- Lectures) 3.1. Doctrine of res gestae (Section 6, 7, 8, 10) 3.2. Evidence of common intention (Section 10) 3.3. Facts not otherwise relevant (Section 11) 3.4. Relevant facts for proof of custom (Section 13) 3.5. Facts concerning bodies & mental state (Section 14, 15) This Chapter puts its emphasis on: Logically relevant facts – sections 5-9, 11and also deals with Special class of relevant facts relating to Conspiracy – section 10 4. Admissions and confessions (8- Lectures) 4.1. General principles regarding admission (Section 17, 23) 4.2. Differences between "admission" and "confession" 4.3. Non-admissibility of confessions caused by "any inducement, threat or promise' (Section 24) 4.4. Inadmissibility of confession made before a police officer (Section 25) 4.5. Admissibility of custodial confessions (Section 26) 4.6. Admissibility of "information" received from accused person (Section 27) 4.7. Confession by co-accused (Section 30) 4.8. Admissions are not the conclusive proof of the matters admitted (Section 31) The Chapter 4 explains the relationship between law of Evidence and substantive laws (Criminal and Civil laws) and procedural laws (Code of Criminal Procedure and Civil Procedure Code).

Cases:Bhuboni Sahu v. The King, AIR 1949 PC 257 158; Haroon Haji Abdulla v. State of Maharastra, AIR 1975 SC 856 163; Ravinder Singh v. State of Haryana, AIR 1975 SC 856 169

5. Dying Declarations (3- Lectures) 5.1. Relevancy of dying declarations (Section 32) 5.2. Judicial standards regarding evidentiary value of dying declarations. 6. Relevancy of Judgments (2- Lectures) 6.1. General principles 6.2. Admissibility of judgments in civil and criminal matters (Section 43) 6.3. "Fraud" and "Collusion" (Section 44) 7. Expert Testimony (3- Lectures) 7.1. General principles. 7.2. Who is an expert? : Types of expert evidence 7.3. Opinion on relationship especially proof of marriage (Section 50) 7.4. The problems of judicial defence to expert testimony. 8. Relevancy of Character (2- Lectures) 8.1 In civil cases (Section 52) 8.2 In civil criminal cases (Section 53) 8.3 Previous bad character (Section 54)

9. Oral and Documentary Evidence (5- Lectures) 9.1. General principles concerning oral evidence (Sections 59-60) 9.2. General principles concerning Documentary Evidence (Sections 67-90) 9.3. General Principles Regarding Exclusion of Oral by Documentary Evidence. 9.4. Special problems: re-hearing evidence 2/3 9.5. Issue estoppel 9.6. Tenancy estoppel (Section 116) Cases:R. S. Maddanappa v. Chandramma (1965) 3 SCR 283 114. Madhuri Patel v. Addl. Commissioner, Tribal Development, AIR 1995 SC 94 120. Sanatan Gauda v. Berhampur University, AIR 1990 SC 1075 131. M.C. Vergheese v. T.J. Ponnan, AIR 1970 SC 1876 136. State of U.P. v. Raj Narain, AIR 1975 SC 865 140. 10. Burden of proof (5- Lectures) 10.1. The general conception of onus probandi (Section 101) 10.2. General and special exceptions to onus probandi. 10.3. Presumption as to certain offences 10.4. Presumptions as to abetment of suicide by a married women (Section 113-A) 10.5. Presumption as to dowry death (Section 113-B) 10.6. Presumptions as to absence of consent in certain prosecution of rape. 11. Estoppel (5-Lectures)

11.1. Estoppel: General Principle (Section 115) 11.2. Estoppel, res judicata and waiver and presumption. 11.3. Estoppel by deed. 11.4. Estoppel by conduct. 11.5. Equitable and promissory estoppel. 12. Witnesses (4- Lectures) 12.1. Competent witness (Section 118) 12.2. State privilege (Section 123) 12.3. Professional privilege (Section 126, 127, 128) 12.4. Accomplice (Section 133) 13. Examination and Cross Examination of witnesses (6- Lectures) 13.1. General principles of examination and cross examination (Section 135-166) 13.2. Leading questions (Section 141-143) 13.3. Lawful questions in cross-examination (Section 146) 13.4. Compulsion to answer questions put to witness. 13.5. Hostile witness (Section 154) 13.6. Impeaching of the standing or credit of witness (Section 155)

2. ADMISSIONS AND CONFESSIONS : “Confession” The word “confession” appears for the first time in Section 24 of the Indian Evidence Act. This section comes under the heading of Admission so it is clear that the confessions are merely one species of admission. Confession is not defined in the Act. Mr. Justice Stephen in his Digest of the law of Evidence defines confession as “confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.” In Pakala Narayan Swami v Emperor Lord Atkin observed “ A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession”. In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the Privy Council decision in Pakala Narayan Swami case over two scores. Firstly, that the definition if confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence. Secondly, that a mixed up statement which even though contains some confessional statement will still lead to acquittal, is no confession. Thus, a statement that contains self-exculpatory matter which if true would negate the matter or offence, cannot amount to confession. However in the case Nishi Kant Jha v State of Bihar the Supreme Court pointed out that there was nothing wrong or relying on a part of the confessional statement and rejecting the rest, and for this purpose, the Court drew support from English authorities. When there is enough evidence to reject the exculpatory part of the accused person’s statements, the Court may rely on the inculpatory part.

Admission and confession Section 17 to 31 deals with admission generally and include Section 24 to 30 which deal with confession as distinguished from admission.

Confession

1. Confession is a statement made by an accused person which is sought to be proved against him in criminal proceeding to establish the commission of an offence by him.

Admission

1. Admission usually relates to civil transaction and comprises all statements amounting to admission defined under section 17 and made by person mentioned under section 18, 19 and 20.

2. Confession if deliberately and voluntarily made may be accepted as conclusive of the matters confessed.

2. Admissions are not conclusive as to the matters admitted it may operate as an estoppel.

3. Admissions may be used on behalf of 3. Confessions always go against the person making it

the person making it under the exception of section 21 of evidence act.

4.Confessions made by one or two or more accused

4. Admission by one of the several

jointly tried for the same offence can be taken into

defendants in suit is no evidence against

consideration against the co-accused (section 30)

other defendants.

5. confession is statement written or oral which is direct admission of suit.

5. admission is statement oral or written which gives inference about the liability of person making admission.

The acid test which distinguishes a confession from an admission is that where conviction can be based on the statement alone, it is confession and where some supplementary evidence is needed to authorize a conviction, then it is an admission as stated in Ram Singh v. State Another test is

that if the prosecution relies on the statement as being true it is confession and if the statement is relied on because it is false it is admission. In criminal cases a statement by accused, not amounting to confession but giving rise to inference that the accused might have committed the crime is his admission. Forms of confession A confession may occur in many forms. When it is made to the court itself then it will be called judicial confession and when it is made to anybody outside the court, in that case it will be called extra-judicial confession. It may even consist of conversation to oneself, which may be produced in evidence if overheard by another. For example, in Sahoo v. State of U.P. the accused who was charged with the murder of his daughter-in-law with whom he was always quarreling was seen on the day of the murder going out of the house, saying words to the effect : “I have finished her and with her the daily quarrels.” The statement was held to be a confession relevant in evidence, for it is not necessary for the relevancy of a confession that it should be communicated to some other person. Judicial confession- Are those which are made before a magistrate or in court in the due course of legal proceedings. A judicial confession has been defined to mean “plea of guilty on arrangement (made before a court) if made freely by a person in a fit state of mind. Extra-judicial confessions- Are those which are made by the accused elsewhere than before a magistrate or in court. It is not necessary that the statements should have been addressed to any definite individual. It may have taken place in the form of a prayer. It may be a confession to a private person. An extra-judicial confession has been defined to mean “ a free and voluntary confession of guilt by a person accused of a crime in the course of conversation with persons other than judge or magistrate seized of the charge against himself. A man after the commission of a crime may write a letter to his relation or friend expressing his sorrow over the matter. This may amount to confession. Extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Extra-judicial confession is generally made before private person which includes even judicial officer in his private capacity. It also includes a magistrate not empowered to record confessions under section 164 of the Cr.P.C. or a magistrate so empowered but receiving the confession at a stage when section 164 does not apply. Section 164 of the Criminal Procedure Code-

Difference between judicial and extra-judicial confession-

Judicial confession

Extra-judicial confession

1. Extra-judicial confession are those 1. Judicial confessions are those which are made to a judicial magistrate under section 164 of Cr.P.C. or before the court during committal proceeding or during trial.

which are made to any person other than those authorized by law to take confession. It may be made to any person or to police during investigation of an offence.

2. To prove judicial confession the person to whom 2. Extra-judicial confession are proved by judicial confession is made need not be called as

calling the person as witness before whom

witness.

the extra-judicial confession is made.

3. Judicial confession can be relied as proof of guilt 3. Extra-judicial confession alone cannot against the accused person if it appears to the court

be relied it needs support of other

to be voluntary and true.

supporting evidence.

4. A conviction may be based on judicial confession.

4. It is unsafe to base conviction on extrajudicial confession.

Voluntary and non-voluntary confession- the confession of an accused may be classified into Voluntary and non-voluntary confession. A confession to the police officer is the confession made by the accused while in the custody of a police officer and never relevant and can never be proved under Section 25 and 26. Now as for the extra-judicial confession and confession made by the accused to some magistrate to whom he has been sent by the police for the purpose during the investigation, they are admissible only when they are made voluntarily. If the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the change against the accused person proceeding from a person in authority and sufficient in opinion of the court to give the accused person grounds, which would appear to him reasonable for supporting that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him, it will not be relevant and it cannot

be proved against the person making the statement. Section 24 of the Evidence Act lays down the rule for the exclusion of the confession which are made non-voluntarily. Section 24 of Indian Evidence Act - confession caused 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 having 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 supporting that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceeding against him. If a confession comes within the four corners of Sectio...