Evidence Study Material 3ydc Osmania University. PDF

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INDIAN EVIDENCE ACT, 1872EVIDENCE IMPORTANT QUESTIONSSHORT ANSWER QUESTIONS1. DEFINITION OF EVIDENCE2. HEARSAY EVIDENCE3. TYPES OF PRESUMPTIONS RECOGNISED BY INDIAN EVIDENCE ACTSHALL PRESUMPTION, IRREBUTTABLE PRESUMPTION, CONCLUSIVE PROOF4. DOCTRINE OF RES GESTAE5. TEST IDENTIFICATION PARADE, UNDER ...

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EVIDENCE ACT, 1872-JH INDIAN EVIDENCE ACT, 1872

EVIDENCE IMPORTANT QUESTIONS SHORT ANSWER QUESTIONS 1. DEFINITION OF EVIDENCE 2. HEARSAY EVIDENCE 3. TYPES OF PRESUMPTIONS RECOGNISED BY INDIAN EVIDENCE ACT SHALL PRESUMPTION, IRREBUTTABLE PRESUMPTION, CONCLUSIVE PROOF 4. DOCTRINE OF RES GESTAE 5. TEST IDENTIFICATION PARADE, UNDER WHICH CIRCUMSTANCES IT'S INVALID 6. AMBIGUITY, PATENT AMBIGUITY 7. JUDICIAL NOTICE 8. ACCOMPLICE LONG ANSWER QUESTIONS 1. WHEN FACTS NOT OTHERWISE RELEVANT BECOME RELEVANT? ILLUSTRATE PLEA OF ALIBI 2. ADMISSION, DISCUSS THE RELEVANCY OF ADMISSIONS 3. DEFINE & DISTINGUISH ADMISSION AND CONFESSION ALL CONFESSIONS ARE ADMISSIONS BUT ALL ADMISSIONS ARE NOT CONFESSIONS 4. DYING DECLARATION, CONDITIONS FOR THE RELEVANCY & ADMISSIBILITY 5. EXPERT OPINION, KINDS & THEIR ADMISSIBILITY AS EVIDENCE 6. WHO IS AN EXPERT? WHEN ARE OPINIONS OF EXPERTS RELEVANT? 7. BURDEN OF PROOF, GENERAL RULES RELATING TO BURDEN OF PROOF 8. DEFINE ESTOPPEL? EXPLAIN THE DIFFERENT KINDS OF ESTOPPEL 9. EXPLAIN "EXAMINATION-IN-CHIEF". CROSS-EXAMINATION & RE-EXAMINATION (DISCUSS THE DIFFERENT STAGES IN THE EXAMINATION OF WITNESSES)

CASE LAWS 1.Sec 115 Estoppel 2.Section 30, Confession against the co-accused 3.Section 105, Burden of Proof 4.Section 11, (Alibi) 5.Section 114, Court may presume existence of certain facts 6.Section 118, Who may testify 7.Section 93, Patent Ambiguity

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PAPER-V: LAW OF EVIDENCE – SYLLABUS Unit-I: The Indian Evidence Act, 1872 — Salient features of the Act – Meaning and kinds of Evidence – the impact of the Information Technology Act, 2000 on the Indian Evidence Act – Interpretation clause — May Presume, Shall presume and Conclusive proof – Fact, Fact in issue and Relevant facts —Distinction between Relevancy and Admissibility – Doctrine of Res gestae — Motive, preparation and conduct — Conspiracy —When Facts not otherwise relevant become relevant — Right and custom — Facts showing the state of mind etc. Unit-II: Admissions & Confessions: General Principles concerning Admissions — Differences between “Admission” and “Confession” — Confessions obtained by inducement , threat or promise – Confessions made to police officer – Statement made in the custody of a police officer leading to the discovery of incriminating material — Admissibility of Confessions made by one accused person against coaccused. Dying Declarations and their evidentiary value — Other Statements by persons who cannot be called as Witnesses —Admissibility of evidence of witnesses in previous judicial proceedings in subsequent judicial proceedings. Unit-III: Relevancy of Judgments — Opinion of witnesses — Expert’s opinion — Opinion on Relationship especially proof of marriage — Facts which need not be proved — Oral and Documentary Evidence – General Principles concerning oral evidence and documentary evidence — Primary and Secondary evidence — Modes of proof of execution of documents — Presumptions as to documents — General Principles regarding Exclusio n of Oral by Documentary Evidence – Relevance of social media in the law of evidence Unit-IV: Rules relating to Burden of Proof – Presumption as to Dowry Death — Estoppels — Kinds of estoppels — Res Judicata, Waiver and Presumption. Unit-V: Competency to testify — Privileged communications – Testimony of Accomplice — Examination in Chief, Cross examination and Re-examination — Leading questions — Lawful questions in cross examination —Compulsion to answer questions put to witness — Hostile witness — Impeaching the credit of witness — Refreshing memory — Questions Suggested Readings: 2

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1. Batuk Lal: The Law of Evidence, Central Law Agency, Allahabad. 2. M. Monir: Principles and Digest of the Law of Evidence, Universal Book Agency, Allahabad. 3. Vepa P. Saradhi: Law of Evidence Eastern Book Co., Lucknow. 4. Avatar Singh: Principles of the Law of Evidence, Central Law Publications. 5. V. Krishnama Chary: The Law of Evidence, S.Gogia & Company Hyderabad. 6. V. Nageswara Rao: The Evidence Act, LexisNexis.

SHORT ANSWERS 1. DEFINITION OF EVIDENCE. Answer: Meaning of Evidence:

 “Evidence” is a word derived from the Latin word “evidera” which means to discover clearly, to ascertain or to prove.  According to Blackstone, evidence “signifies that which demonstrates, makes clear or ascertains the truth of the facts or points in issue either in one side or the other”.  Taylor describes evidence as “all means which tent to prove or disprove any matter, fact, the truth of which is submitted to judicial investigation.  Section 3 of the Indian Evidence Act defines “evidence” in these words : 1. All statements which the Court permits or requires to be made before it by witnesses in relation to matters of facts under enquiry; such statements are called oral evidence. 2. All documents including electronic records produced for inspection of the Court, such documents are called documentary evidence.” The answer to the objection can be given that Section 3 is an interpretation clause which only explains the evidence. The definition of “evidence” considered with the definition of “proved” in the Act, will not give rise to such objection.  “Evidence” means that which makes evident. 2. HEARSAY EVIDENCE.

Answer: Hearsay is what one hears (but does not know to be true). It means gossip.  Hearsay evidence is the evidence learnt by witnesses not through the medium of their own senses but through the medium of third person. It signifies the evidence heard and said.  It is called as second hand or an unoriginal evidence.  Peter Murphy states that “ Hearsay evidence is given when a witness recounts a statement made (orally, in a document or otherwise) by another person and where the proponent of the evidence asserts that what the person, who made the statement, said was true”

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 Hearsay is that of which one has heard from another without himself having any direct knowledge thereof.  Section 60 of the Indian Evidence Act prohibits hearsay evidence from being offered in judicial proceedings subject to the exception provided in the Evidence Act. Why hearsay evidence is excluded or discarded: 1. The irresponsibility of the original declarant, whose statements were made neither on oath, not subject to cross-examination, 2. The depreciation of truth in the process of repetition, 3. The opportunities for fraud its admissions would open, 4. The tendency of such evidence to protract legal enquiries, 5. Encourages the substitution of weaker evidence in place of stronger proof, 6. The person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility Exceptions to the hearsay rule: A number of exceptions have been recognized to facilitate for the admission of hearsay evidence. 1. 2. 3. 4. 5.

Res gestae, Admissions and Confessions, Statements by persons who cannot be called as witnesses (Sec 32), Evidence given in the former proceedings (sec 33), Entries in books of account including those maintained in an electronic for are relevant (Sec 34), 6. Relevancy of entry in public record or an electronic record made in performance of duty (Sec 35), 7. Opinions of experts (Secs 45 & 46), 8. Opinion as to handwriting (Sec 47), 9. Opinion as to digital signature when relevant (sec. 47-A), 10. Opinion as to existence of right or custom (Sec. 48), 11. Opinion as to usages, tenets, etc. (Sec . 49), 12. Opinion on relationship (Sec. 50), 13. Statements incorporated in Acts and Notifications, Government maps, Charts, Plans etc., (Secs 34 to 39), 14. Provision 1, Section 60, 15. Proviso 2, Sec 60. 16. Statements in public documents,

3. TYPES OF PRESUMPTIONS RECOGNISED BY INDIAN EVIDENCE ACT. Answer:  The term presumption is not defined in the Indian Evidence Act, 1872. 4

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 Presumption means, taking a fact as true without examination or proof.  Presumption means things taken for granted. It is an inference of fact drawn from other known or proved facts.  In Law of Evidence, a presumption is a conclusion or inference as to the truth of som fact in question, drawn from some other fact judicially noticed or proved or admitted to be true.  Presumptions are drawn from the course of nature, the usage of the society and transactions in business.  Presumption is an inference drawn by a judicial officer positively or negatively about a fact.  Presumption is a matter of opinion.  It is a rule of law that attaches definite probative value to specific facts or directs that a particular inference as to existence of one fact not actually known shall be drawn from a fact which is known and proved.  It is an assumption of a fact and furnishes prima facie evidence of the matter to which it relates and relives, until it is rebutted.  It means, it holds the field in the absence of evidence but when facts appear presumptions goes back.

Provisions of law:  Sections 79 to 90 of the Indian Evidence Act, 1872 deal with the presumption as to the genuineness of a certain kind of documents.  Section 111A of the Indian Evidence Act, 1872 Act, deals with presumptions as to certain offences.  Section 112 deals with presumptions as to birth of a child during marriage.  Section 113A of the Indian Evidence Act, 1872 deals with presumption as to abetment of suicide by a married woman.  Section 113B of the Indian Evidence Act, 1872 deals with presumption as to dowry death.  Section 114 deals with presumptions as to the existence of certain facts. Types of presumption (Classification): Presumptions are of three kinds: 1. Presumption of fact (Natural Presumptions or May Presume): It is an inference which is drawn from the observation of the human mind. Sections 86, 87, 88 and 90 of the Indian Evidence Act, 1872 deal with the presumption of fact. These presumptions are generally rebuttable. They may be correct or they may not be correct. The court may presume that a document or an account book or a telegraphic message etc., are correct; but, this presumption may be disproved also. e.g., (i) a watch of Ram is stolen and soon after it is recovered from the possession of Shyam. There shall be a natural inference (Presumption) that Shyam either stolen the watch himself or received it from some thief knowing it to be stolen, (ii) From the fact that a letter has been posted, the natural inference (presumption) would be that it reached the addressee, 2. Presumption of law (artificial presumptions): Presumptions of law are divided into two categories.

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(A). Rebuttable (shall presume) presumption: Section 4 of the Evidence Act defines ‘shall presume’ “Wherever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved”. This kind of presumption arises when presumptions of law are certain legal rules, defining g the amount of evidence requisite to support a particular allegation, which facts being proved, may be either explained away or rebutted by evidence to the contrary, but are conclusive in absence of such evidence. Legal presumptions of this kind are definitions of the quantity of evidence sufficient to make a prima facie case: in other words of the circumstances under which the burden of proof lies on the opposite party. Sections 107, 108, 112 are the examples of this presumption. e.g., (i) Thus a man is presumed innocent until he is proved guilty; (ii) a child born in a legal wedlock shall be presumed to be legitimate and one who questions his legitimacy must disprove it; (iii) if a child is born during divorce he must be presumed illegitimate unless the contrary is proved. (B). Irrebuttable presumption: The conclusive or irrebuttable presumptions of law are those legal rules which are not overcome by any evidence that the fact is otherwise. A well-known instance of an irrebuttable presumption of law can be found in Section 82 of the Indian Penal Code, wherein it is laid down that “nothing is an offence which is done by a child under seven years of age”. In this type of presumption there will not be any evidence to rebut them. These presumptions are the rules deciding the quality of evidence required by law. Irrebuttable presumptions are deemed to be correct, because of greater certainty. Irrebuttable presumptions are normally the laws of the land, like ignorance of law is no excuse. e.g., where a man having no title obtains possession of land under lease by a man in possession who assumes him to give a title as a tenant he cannot deny his landlord’s title. Thus it is clear that this kind of presumption of law is conclusive. 3. Presumption of Fact and Law (mixed presumptions): Mixed presumptions of law and fact are chiefly confined to the English law of real property, and it is no place in India as Evidence Act, has made provisions for the presumptions of fact (may presumption) and the presumptions of law (shall presume). There are certain sections in which it is said that a certain fact is conclusive proof of a certain another fact. Conclusive proof: Whenever it is mentioned that a fact is a “conclusive proof” of another fact, the court has no discretion at all. It cannot call upon a party to prove that fact nor can it allow the opposite party to adduce evidence to disprove the fact. Section 41 of the Evidence Act provides inter alia that a final judgement, order or decree of a competent court in exercise of matrimonial jurisdiction is a conclusive proof of that legal character. For example, suppose A files a suit in a court of law for declaration that B is his legally married wife. The court gives a decree in favour of A and declares that B is his wife. After a few years in the lifetime of A, B files a suit against D for the property of one C, alleging that she is a widow of C. In this case there will be an issue whether B is the wife of C. D files the copy of the judgement of the previous case (A versus B). This judgement will prove that B is legally married wife of A. Now that B is legally married wife of A is a conclusive proof of the fact that she is not the wife of C. Therefore, after the judgment mentioned above has been filed, the court cannot allow B to adduce evidence to prove that she is wife of C and not of A.

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“Conclusive proof” in Section 4 of the Evidence Act – 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. 3. DOCTRINE OF RESGASTE. Answer: The doctrine of res gestae has been borrowed from English Law and is incorporated in Sections 6 and 7 of the Evidence Act states that: “Relevancy of facts part of same transaction – Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations: (a). ‘A’ is accused of the murder of ‘B’ by beating him. Whatever was said or done by ‘A’ or ‘B’ or the bystanders at the beating or so shortly before or after it as to form part of the transaction is a relevant fact. (b). ‘A’ sues ‘B’ for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained are relevant facts, though they do not contain the libel itself. ©. 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. Same transaction: “Same Transaction” means a transaction in a group of facts, connected together to be referred to by a single legal name as a crime, a contract, a wrong or any other subject to enquiry which be in issue. Facts forming part of the same transaction are relevant. All the facts which are parts of the same transaction are relevant to each other so that when one of such facts in issue, the other are admissible. One of the essential conditions is that, the statement must relate to the main event or explain the main event. Res gestae must not be a product of a pre-plan; it must be a result of deliberation instead. It must be a statement by a person who has either participated in or witnessed the act and res-gestae is incidental to the main fact and explains its occurrence. All acts which are part of one transaction or acts constituting a series or showing continuing facts would be admissible as part of res-gestae. All statements which are accompanied in explaining the facts in issue are also relevant. Res gestae is an exception to hearsay: The res gestae is an exception to the principle that hearsay evidence is no evidence. In R. v. Foster, the deceased had been killed in an accident by the speeding truck. The witness had not seen incident but only the speeding truck. The deceased stated to him what had happened with him in the accident. The court held the statement of the deceased to the witness to be admissible in evidence as res gestae. 4. TEST IDENTIFICATION PARADE, UNDER WHICH CIRCUMSTANCES IT’S INVALID? Answer: There was no specific provision in the Indian Evidence Act or Code of Criminal Procedure regarding identification parade of the accused till 2005. By the amendment of Cr.P.C. in 2005, a new Section 54A was inserted for identification of person arrested. Section 54A is as follows: “Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the court, having jurisdiction, may on the request of the officer-in-charge of police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit”. Necessity of test identification parade: 7

EVIDENCE ACT, 1872-JH 1. Test Identification Parade is meant to test the veracity of the witness and his capacity to identify unknown persons. 2. Test Identification Parade is not necessary where all the witnesses state that they otherwise know accused persons and they are not strangers to them and in the moonlight and lantern, they clearly identified them. 3. The evidence with regard to Test Identification Parade may be used by the Court for the purpose of corroboration. 4. The purpose of test Identification Parade is to test and strengthen trustworthiness of substantive evidence. 5. Where the eye-witness cannot give the name of the offender but claims that he can identify him, it is necessary to hold Test Identification Parade. Procedure of Identification Parade: 1. The Test Identification parade has to be conducted by the Magistrate or an authorised person of Court, 2. The Magistrate has to make sure that at least 10 persons of similar appearance or build or height are paraded with each suspect separately. 3. The Magistrate has to examine the marks likely to affect Identification of the suspect. 4. The Identification should be hold as early as possible. 5. It is not safe to place reliance on the identification of an accused for the first time in Court by a witness after an inordinate delay. 6. If the accused is known to the witness, the need Identification Parade is not necessary. Circumstances of invalidity of Test Identification parade: In the following circumstances, the evidence of a witness in the Test Identification becomes invalid. 1. Most of the crimes are committed in darkness and at secluded places. In such cases light becomes a matter of crucial importance to see the accused at the time of offence. 2. The eye-sight of the identifier has to be taken into consideration and at the time of offence whether he is using his spectacles (if needed) or not also important. 3. If the identifier is in stirred minds, for excitement, fear or terror, 4. If the witness was in drunken position at the time of offence. 5. If the witness saw only the back side of the accused. 6. I...