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LAW OF EVIDENCE

Law Students Federation

Sultan-ul-Uloom, College of Law

Law of Evidence
Compiled by : Mohammed Abdul Kareem,
Emal : wecare.ak@gmail.com ; lawstudentsfederation@gmail.com
Phone : 7799224814

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Evidence Act

Q: Explain salient feature applicability and Historical Background of


Evidence Act 1872 ?

Law is divided into two categories and it is substantive law and procedural
law. The object of law is creation of Legal rights and to enforce it. Law of
evidence in administration of justice are of high importance.

Salient feature:-

1. It is codified law
2. It was drafted by second law commission established in 1853 and
came into force from 1872 since British period.
3. There is detail relating to evidence in Kantilya Shastra, Manusmiriti,
Yajnvalkya.
4. There are 167 sections in evidence act.
5. It is applicable in all type of cased which include civil and criminal
cases.
6. It is also applicable before Tribunal, tax, authorities, executive
Magistrates, lok adalats and all administrative authorities.
7. It is oral or in writing or in form of documents.
8. Any number of witnesses are allowed.
9. Witnesses are examined and cross examined.
10. In royal charter of Britishers also importance was given to
evidence.
11. In Mofussil courts and Adalats also evidence was recorded
12. IN 1835 first attempt was made to enact and codify evidence
Act.
13. In 1835 first evidence act was enacted.

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14. In 1853 eleven enactment were passed dealing with eh Law


of evidence.
15. IN 1868 a commission was set up under the chairmanship of
Sir Henry Maine and it submitt3d report but it was unsuitable to
Indian conditions.
16. In 1870 this task of codification of evidence was assigned to
Sir James Fitz Stephen and he submitted report.
17. Report was referred to eh select committee and member of
bar for their opinion.
It recommended the Act and draft was placed before the
legislature and it was enacted.
The Evidence Act came into force on 1st September 1872.
This is Historical background of Evidence Act 1872.

APPLICABILITY

Evidence Act came into effect from 1st September 1872. It is


applicable in all cases of civil and criminal nature including Labour,
Taxation and tribunal arbitrator and complete ADR machinery of dispute
resolution.

Evidence are of different kinds such as oral evidence, documentary


evidence, Hearsay evidence, primary and secondary evidence, expert
evidence, circumstantial evidence. They are produced according to its
availability and requirement from both side parties to prove and disprove
the facts.

Even through evidence is produced its applicability and admissibility


is decided by court by giving reasons for it. It can also be decided by
examining credibility, reliability trustworthiness of witness.

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These are the provisions relating to salient features, Historical


Background and applicability of Evidence Act in introductory part of the
Act.

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UNIT – I

Q: What do you mean by relevancy of facts explain provisions of relevancy


of facts with specific reference to res Gastae alibi and conspirators.

Ans: - Relevancy of facts mean all the facts which court may consider to
prove of section 5. It includes legal relevancy and Logical relevancy.
There are number of provisions about relevancy of facts specified from
section 6-16 of evidence Act. Relevancy is not proof but means to
establish proof. These facts are as follows.

1. Res Gastae – Sec.6


2. Occasion, cause, effect, opportunity, Sec 7
3. Motive and preparation. Sec -8
4. Fact introduce, explain and support Sec -9
5. Thing said or done by conspirators – Section 10
6. Probable, improbable, alibi. Sec-11
7. Amount of damages – Sec 12
8. Right or custom – Sec 13
9. State of mind or bodily feeling – sec-14
10. Accidental or intentional act – sec – 15
11. Course of business. Sec -16

Res Gastae

Res Gastae means same transaction in sequence then it is treated as


one act and there is one charge sheet and one trial.

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When similar nature or crimes or illegal acts are committed on different


occasions and places then also res gastae is applicable. It is also
treated as one act for filing charge sheet and conducting trial of the
case.

Ex.

1. A broke lock of the house and committee crime to steal articles and
also killed one family member. A has committed crime of theft,
Criminal trespass and Murder. It is committed in some transaction
and according to Res Gastae there is one trial for all offence.
2. A Committed theft of 10 scooters at different places and on different
occasion or dates. Res Gastae is applicable to treat it as one act to
file charge sheet and conduct trial.

Occasion, cause, effect, opportunity.

All above elements have relevancy under section 7 court may


consider it in deciding cases.

Ex.

1. A relative stayed at right time and went away in the morning. Later
on it is found that some articles are missing. Because of occasion
and opportunity there is relevancy that ‘A’
2. There is enmity between A and B. Later ‘A’ invited B for dinner and
after taking dinner B died in suspicious circumstance. There is
relevancy that A might have committed murder of B due to occasion,
opportunity and effect.

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Motive and preparation


Motive means mental elements such as bare intention, Negligence,
Ill will, revenge Preparatory is taking any step in that direction. It be
relevancy whether there is effect or not.
Ex.
1. A Catch hand of a woman with bad intention then its s a crime. If
woman fallen in well and he removes her then it is not crime
because motive is not bad.
2. A added poison and served milk to B even through B may not drink,
It is a crime because there is preparation to do illegal.

Fact Introduce, explain, support.

Introduction is due, explanation is information and support is more


information than it has relevancy to prove the facts.

Ex. A girl disappeared from college. She had fast friendship with
particular boy in introduction of fact, some persons have seen them on
railway station is explanation and boy also disappears from same day
in support. There is relevance.

Things said or done by conspirators

Conspirators means more number of persons commit a crime with


common intention or under conspiracy. They are also called as co-
accused or accomplice. Any talk or correspondence between them before
and after commission or crime have relevancy.

Probable, inprobable, alibi

Probable means possible, improbable means impossible, alibi


means elsewhere. It is stated as facts otherwise not relevant are treated
as relevant.

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Example.

1. There is a charge against boy of 10 years old that he has


committed rape. Judge may consider it as imporbable due to
tender age of child. If there is a charge on 20 years old person
that he committed rape on 10 year old girl then it is probable and
Judge may consider such relevancy.
2. There is murder charge against ‘x’ that he committed murder of
‘y’ if he proves that on that day he was in America, Police
Custody admitted in hospital and inpatient then it has relevancy
under ‘alibi’ and x might not have committed murder.

Amount of damages.

When there is accident resulting in death, disablement, injury then


compensation can be claimed by victim or his family members. There is
relevancy of number of points to fix amount of damages such as age of
the person. Expectation of life, nature of injury, qualification status, cost of
living, medical expenses, number of dependants. After considering
relevancy of all above point’s court may be consider and fix amount of
compensation.

Right or Custom

When there is dispute then rights and customs have relevancy. According
to Nature of dispute it is considered and decided by the court.

Example.

1. Right of a priest to worship GOD in a temple pass on from


generation to generation and it has relevancy.
2. A marriage is performed without saptpadi. If there is no custom of
Saptpadi in particular community then it is valid other it is invalid.

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Historical Background

In ancient period witness was known as Sakshi, Person making


attestation were called as sasaksika. Document written in hands was
called as Asakhika. Document executed by kind was called as
Rajasaksika. Documents in possession was called as Bhukhti. Orders of
king were called as Divya. Therefore in ancient period also different forms
were used for various concepts of evidence Act.

It developed in various stages as follows

1. There was Muslim jurisprudence in which there is reference of


evidence.
2. In holy Quran also it is stated that facts to be proved and disproved
on bases of evidence
3. Administration of justice was based on evidence specified by the
priest Sir Abdul Rahim

State of Mind or bodily feeling

State of mind includes ill will, negligence bad intention, fear, overacting.
Bodily feeling is reaction on body having relevancy.

Example.

1. Police officer goes to ‘A’ for interrogation. By seeing Police ‘A’ ran
away. This state of mind have relevancy.
2. A gives a low to B at the time of quarrel later on B found fracture in
x ray report.. It has relevancy and it is grievous hurt.

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Accidental Act or intentional Act


In accidental act there is no knowledge about consequences of the
act. In intentional act there is knowledge about nature and
consequences of the act and it has relevancy in deciding the case.
Example.
1. A added poison in food of B is intentional act and murder if B
dies. If lizard fell while cooking then it is accidental act.
2. A hits on head of B while he is going is Intentional act and if he
is cutting fire wood and axe slipped from hand resulting in death
of B is accidental Act.

Course of Business

When any party, officer makes entry in record, register and documents
then it has relevancy even though there is no signature of party.

Example.

1. Bank accountant made entry on Ledger that A has deposited


Rs.10,000/- it has relevancy.
2. Postman returned money order with endorsement and stamp as
refused to accept has relevancy.

These are the provisions about relevancy of fact in evidence.

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Unit - II

Explain the terms, admission and confession and its relevant


provision distinguish between admission and confessions.

The term admission has been explained from section 17 to 23 and


confession from section 24 to 31 of evidence act.

When any person by his act declaration writing, conduct approve or


accept certain facts or facts then it is called as admission. When
admission done before any person other than Judge then it is called as
extra – judicial admission when admission is done before Judge then it is
called as judicial admission. It is applicable to both the parties and also
witnesses. When anybody makes admission then court may not allow to
deny it according to rule of estoppel. According to section 58 admitted
facts need not be proved by opposite party.

Example.

1. A states in the court that B is his wife. This is admission of A relating


to married relationship between them
2. A stated in the reply notice that he has taken Rs.10,000 loan from
B. this is admission relating to was transaction between them.

Confession means. Acknowledgement of Guilt done by accused or


co-accused in a criminal case. Confession is done relating to
commission or crime or guilt. It is general done because of religious or
moral pressure on accused, when there is no scope to escape from
clutches of Law. To get sympathy or the Judge. When there is
confession and Judge is satisfied then there is no need to conduct trail
and judgement can be declared on basis of confession. If judge or
magistrate is not satisfied then even after confession trial may be

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conducted and prosecution is directed to prove the charges levelled


against accused.

When confession is done before police officer or any other authority


then it is called as extra Judicial confession.. When confession is done
before Police officer then it is brought on record for charge sheet. If
confession is done before Judge or magistrate then it is called as
judicial confession.

There is a popular statement “all confessions are admissions but all


admissions are not confessions. It means admission also comes in
criminal matter but confession comes exclusively in criminal cases.

Examples.

1. A says before Police Officer that he has committed murder of B.


This is extra Judicial confession.
2. A says before Magistrate that he has committed theft is judicial
confession.

Provisions relating to admission.

1. It is done by plaintiff or defendant or witnesses in civil proceedings


and except in civil and criminal proceedings.
2. It is done at any stage of the proceedings.
3. Facts written in plaint, written statement, Notice, affidavit,
documents is admission.
4. It can be done orally or in writing.
5. Admitted facts not to be denied according to rule of estoppel.
6. Admission to be done voluntarily and with free consent.
7. If admission is done under threat, influence, pressure then court
may give opportunity to make subsequent admission
8. On behalf of party his counsel can also make admission.

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9. When there is death of any party hen legal representative who


comes into his shoes and pursues case can also make admission.
10. On behalf of Govt authorised official, on behalf of trust
trustees, on behalf of institution head or institution or correspondent
on behalf of company directors, on behalf of firm partners can do
admission.
11. If power or attorney is given then such person can also make
admissions.

Provisions relating to confession

1. Confession to be done by accused or co accused and not by


authorised person.
2. If confession is done under threat or during then fresh confession
can be recorded after removal of threat.
3. Confession to be done voluntarily and with free consent.
4. Confession done before police officer can be denied in the court
under section 25 because they use third grade methods to record it.
5. Confession done by accused in police custody can also be denied
in the court under section…..
6. Confession can be recorded under promise of secretary if accused
is under threat from other accused persons. It is disclosed at the
time of trial of criminal case.
7. Confession done by one accused person is made applicable against
other accused person having common intention.
8. Confession leading to discovery of facts is having weightage. It is
called as corroboration or confession such as to recover stolen
article dead body, weapons.
9. Confession can be recorded under promise of secrecy if necessary.

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10. If accused is likely to change his confession then it is called


as hostile and in such case he is taken to magistrate to record in
advance.
Distinction between admission and confession
1. It is applicable in civil and 1. It is applicable only in
criminal proceedings. criminal proceedings.
2. It is not recorded in 2. It can be recorded in
advance advance by magistrate.
3. There is less scope to 3. There is more scope to
deny it according to rule deny it.
of estoppel
4. Judge generally believes 4. Judge may believe it or
it refuse to believe it.
5. It cannot be corroborate 5. It can be corroborate
6. It can be done by parties 6. It can be done by
or authorised persons accused or co-accused
and not authorised
person.
7. It may not include 7. It includes admission.
confession

These are the provisions relating to admission and confession


and distinction between it.

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Unit -II

Question : What do you mean by Dying declaration, explain


provisions and admissibility of dying declaration ?

The term dying declaration has been explained from sections 32(1)
to 32(b) of evidence act.

Dying declaration means all the statement made by victim of any


crime, accident or incident in anticipation of death. It is not necessary
unless it is case of any investigation or enquiry. Dying declaration is
helpful in investigation and trial. There is presumption that all statements
made by victim in death bed are true and correct. Burden to disprove it is
on opposite party.

Ex. 1. A married woman has been admitted in hospital with serious


burn injuries. If she says on death bed that it has been caused by
her husband and mother in law then it is dying declaration of the
victim.

2. A stabbed B because of enmity and B says in the hospital that it


has been done by A then it is dying declaration of B helpful to detect
crime and conduct trial in the court.

Dying declaration is not conclusive proof for conviction but court given
opportunity to opposite party to disprove it at the time of criminal
proceedings.

Objects to rely upon dying declaration

1. Truth sits on lip of dying person.


2. A person may not tell lie who is likely to die.
3. Person speaks truth when he is leaving this world.

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4. Victim who has undergone trauma knows better than others and he
has first-hand information of the incident.
5. There is moral and religious pressure on the mind of such person
and there is no reason to disbelieve him.
Provisions relating to dying Declaration
1. It is recorded when victim is serious as there is possibility of his or
her death.
2. It may be recorded by police officer, doctor or any respectable
person but not relative or interested party.
3. Medical expert have to certify that his mental condition is prover and
he is in the position to give his declaration.
4. Dying declaration cannot be recorded by victim is in coma or
abnormal mental condition
5. It can be recorded in question answer manner or summary manner
6. It is taken into writing and his signature or thumb impression to be
taken on it after reading it before him.
7. It has to be attested by two witnesses.
8. If dying declaration is given under threat pressure, influence then
again fresh dying declaration is recorded.
9. If victim is not acquainted with the language known to parties then
translator to be arranged to translate his declaration.
10. If victim is unable to speak but he wants to say facts by
gestures or expression then it is also recorded.
11. If victim is in position to write then he is allowed to give it in
writing.
12. Dying declaration is valid up to 6 months and if such person is
alive then again fresh dying declaration can be recorded.

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13. If magistrate is called the he can personally visit the hospital


to record dying declaration. When magistrate record dying
declaration then there is no need to attestation.
14. If declaration is given partly and victim dies then investigation
is done to complete it afterwards.
15. If victim cures then there is not weightage to dying declaration.
He has to appear personally in the court and subject himself for chief
and cross examination.

Therefore dying declaration have much weightage and relevancy.


There is presumption that it is true and correct unless opposite party
disproves it.

It is important provision applicable in criminal matters and not matters


of civil nature. It also helps investigation and for court to conduct trial on
basis of presumptions relating to it.

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Extra Question

Question:

Explain the relevancy of statements by persons who cannot be


called as witness.

There are some person who cannot be called as witness. It has


been specified under section 32, 33 and 158 of evidence act. It can be
summarised as follows.

1. Dying declaration

When any person make statements in death bed then it has


relevancy. Person who is victim of any accident or incident can

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make statement about trauma which he has undergone in particular


circumstance. Victim of any criminal act knows better than others.
He cannot be called as witnesses because such person dies and
court have to only proceed on basis of his dying declaration. There
is presumption that it is true and correct unless disproved by
opposite party.

Example.

1. A married woman given dying declaration on death bed that her


husband and mother in law have caused burn injured for demand
of additional dowry. It has relevancy because such person dies
and cannot be subjected for examination in the court.

2. Ordinary course of business

When entries are done in records letters are written, document is


prepared then it has relevancy even through such person dies and
he is not more.

Ex.

An officer have done certain entries in record even though he


is not alive such record have relevancy and burden is on subsequent
official who comes into shoes to prove it.

3. Against interest of maker


When a case is pending against any person then he cannot be
witness in that case. No person can be forced to give
incriminating witness or witnesses against his own interest. A
person who is party in the case can make deposition about his

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contention but cannot be forced to give witness against his own


interest.
Example.
A trial is being done for Theft. In that case he cannot be called as
witness to say anything contrary to his interest.
4. Opinion to right or custom
When any right or custom to be proved then such person are
called who is

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UNIT-III

Question who is an expert? Explain various kinds of expert evidence


and distinction between ordinary evidence and expert evidence.

Expert is the person who is having particular qualifications, diploma,


knowledge, skill, training recognised by the government and court. In
some civil and criminal cases expert opinion is necessary for court to
dispose the cases. IN May criminal cases there is important role of expert
evidence. It can be stated that expert knows more and more about less
and less. Detail of expert evidence has been given from section 45 to 51
of the Act.

Kinds of Expert

There are various kinds of experts. It is difficult to give exhaustive list of


experts but some important experts are as follows.

1. Medical Expert
This expert is enrolled under Medical council Act. He should have
degree in particular medical field and super speciality. In many
cases, medical expert has to give opinion when it is referred to him.

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Medical expert gives opinion in the matters such as simple hurt and
grievous hurt. Cause of death, unsound mind, impotency, rape,
adultery, age and nature of injury. It is helpful in investigation and
trial of the case.
2. Chemical analyser
This expert have specialisation in particular science subject. When
there is adulteration in food stuff, oil, pulses, and articles of human
consumption then chemical analyser gives report on basis of testing
and experiment. Such persons are appointed in the laboratories.
They also give report relating to duplicate medicine and other matter
injurious to public health. Food adulteration inspectors book the
cases under Food adulteration Act 1954 and court dispose it on the
bases of report of Chemical analyser.
3. Archaeologist
This expert is in historical matter, when dispute arises in such matter
then it is referred to particular experts.
Ex. This expert gives opinion in the matter of historical places, coins,
idols, statutes, old painting and hidden treasury.

4. Explosive expert
This expert given opinion in the matter of explosives used in crime,
arms, weapons ammunition. It helps in investigation.
5. Finger Print expert
When finger prints of accused then it is tallied with other fingers
prints suspicious person. When there is finger on document but
party challenge it then opinion is only helpful to dispose case. It
given on basis of microscopic observation.

6. Signature expert

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When Signature of any person is in dispute then court have to


decide valid of document by obtaining expert opinion. Judge can
personally from opinion by compare of signature. If such person is
not alive his singed documents are referred to expert. He can give
opinion whether it is signature of same person or not.

7. Handwriting expert
Hand writing of every person differs from each other. When it
is challenged then expert opinion may be obtained. If a suicide note
found in pocket of dead person then it has to ensure whether it is
writing of deceased person or not, to decide the case.
Hand writing is proved on bases of various methods and last
method is expert.
1. Judge make comparison of writing himself and decide it.
2. It is shown to other parties to ensure whether writing is of
same person or not.
3. By verification of signature after such writing of the party.
4. By taking witness of the person who has seen him while
writing it.
5. By taking witness of the person or person who are
acquainted with particular writing of the person.
6. When above methods are not free from suspicion then
Judge may refer it for expert opinion.

Provisions relating to expert opinion

1. Expert opinion is recommendatory and not mandatory for judge.


He can record reasons for admitting or denying it.
2. Court can refer it to more number of experts to ensure certainty
and clarify doubts if any.

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3. Expert has to file relevant record and document in the court for
forming the opinion.
4. Expert has to attend court when summoned and subject himself
for chief and cross.
5. Expert have to give opinion with certainty and confidence and it
should not be vague.
6. He has to answer question to clarify his stand and opinion.
7. He can verify the record at the time of examination in court.

Distinction between ordinary evidence and expert evidence


1. This witness need not 1. It requires particular
require any qualifications qualification and skill.
or skills.
2. There is no need to file 2. Filing of documents or
any document or record. record is necessary.
3. He can make statements 3. This opinion is on basis of
according to opinion experiments and
formed by using sensible knowledge.
organs.
4. He cannot see and verify 4. He is allowed to verify
record at the time of record when there is
examination. examination.
5. He cannot be expert 5. He can be ordinary
evidence. evidence.

This is detail relating to expert, it kinds and distinction from ordinary


evidence under the Act.

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UNIT - III

What do you mean by proof? Explain various kinds of evidence


specified under the Act with specific reference to documentary
evidence.

When any party approach the court for remedy. It is also called as
onus of proof. It shift from party to party depend on their admission and
denials. If no proof is given then it is not proved and there is possibility of
dismissal of the case. Proof is given on bases of evidence and difference
kinds of evidence are recognised and allowed under evidence act. Such
detail has been proved from sections 59 to 100 of the Act. It is difficult to
give proof unless there is base of evidence.

Kinds of Evidence

There are different kinds of evidence which are as follows.

1. Oral Evidence.

2. Hearsay evidence.

3. Documentary evidence

4. Primary and Secondary evidence.

5. Circumstantial evidence

6. Expert Evidence.

Oral Evidence

Oral evidence is given by the person relating to his opinion, observation

and inference drawn by using sensible organs. It includes following points.

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i. Any number of witnesses are allowed to give oral evidence but

Judge can decide its admissibility.

ii. A Witness can give evidence partly or complete according to his

inference and information.

iii. Such witness have to take oath before making deposition in

court.

iv. It is given only about known facts.

v. It is recorded in question answer manner or summary manner.

vi. If documents are enclosed then also oral evidence is recorded

about its contents.

vii. It should be given with certainty and confidence and not vague

or uncertain

viii. Court records it and obtain his signature called as deposition.

ix. Witness should be competent to give oral evidence.

x. It should be given only about known facts.

Hearsay evidence.

It is weal type of evidence and court may allow it if there is not direct or

first-hand evidence. It includes following points.

i. It refer to ear and not to eye.

ii. It pass on from person to persona and there may not be originality

iii. Such person can refuse to take oath

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iv. Many times it is based on rumours and there is no truth

v. Such witness cannot be prosecuted for false evidence.

vi. Every person may concentrate or dilute it.

vii. It is difficult to reach up to actual person who made the statement.

viii. It may be baseless

ix. He cannot be examined properly

x. It has some weightage if corroborated by investigation

authorities.

Documentary evidence

It is best type of evidence because it is in permanent form. Document

includes any letter writing, photo, certificate, map, plan chart, publication,

pamphlet, cassette etc.

Kinds of documents.

1. Private documents

2. Public documents

3. Ancient document

Private documents are executed between two or more parties

relating to their transaction. It includes partnership deed, Lease

deed, mortgage deed, tenancy deed, promissory note. The

signature of relevant parties on private documents some private

documents have to and stamp duty also necessary.

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Public documents are issued by government public authorities,

company, corporation, and in and state instrumentalities under

their official capacity. There is signature and seal of relevant

public official. It is more reliable and there record of such

document in public office.

Example. Certificates, LIC policy, Bank draft, degree of

University, Share Certificate.

Ancient Document is any document which is 30 years or more

period old. There is presumption that such documents are

genuine unless opposite party disproved it.

Documentary evidence includes following point.

i. It should be certain, definite and without any ambiguity.

ii. It should be signed by relevant parties or officials.

iii. There should be clarity and all terms and conditions to be

specified.

iv. It has to be filed in the beginning or latest stage by

permission of Judge.

v. It should have relevancy to subject matter dispute or case.

vi. Both side parties can file it in support of the case.

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Primary and Secondary Evidence.

Primary evidence means original documents court always prefers

filing of primary evidence.

Secondary evidence means true copy attested copy, Xerox copy,

photo copy or any copy of primary evidence prepared by mechanical and

artificial process. Court may allow secondary evidence in particular

circumstance such as

i. It is in possession of opposite party

ii. It is not traceable

iii. It contains numerous accounts.

iv. It is difficult to carry it.

v. It take time to obtain it

vi. It is destroyed.

There are some documents which are same as primary and

secondary evidence such as photo taken from negative,

newspaper, magazine, pamphlets.

Following are the points of distinction between primary

and secondary evidence.

1. Primary evidence is generally one and secondary evidence

may be more in number.

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2. There is signature of relevant parties or officials on primary

evidence but on secondary evident it is not necessary.

3. Primary evidence need not be attested except private

documents and secondary to be attested.

4. Primary evidence is more reliable and there is less scope

to challenge it. Secondary document is less reliable and

there is more scope to challenge it.

5. One can make secondary evidence from primary but

cannot make primary from secondary document.

Circumstantial evidence

This evidence arises out of circumstances, it has relevancy in

deciding cases. Circumstance evidence is bridge to establish facts.

Ex. There is enmity between A and B about property. A threatened to kill

B. He invited B for dinner. After taking dinner B died in suspicious

circumstance. In such case dispute, enmity, threatening, inviting for dinner

is circumstantial evidence that A might have committed murder or B.

Expert Evidence

Expert is the person having degree, diploma, knowledge, skill training in

particular field recognised by government. It is also necessary to establish

some cases.

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Ex. Wife filed a divorce case on the ground of impotency of husband.

Court requires evidence of Medical expert to prove impotency on which

remedy is depend on.

These are the different kinds of evidence required for proof of cases in the

court.

*_ ( Law Student Federation )_*

UNIT - IV

Explain the concept of Burden of Proof with specific reference to

presumptions of facts.

Burden of proof is also called as onus of proof which shift from party

to party. In many cases burden of proof is on first party. When there are

presumptions of the court then it directly shift to second party and not first

party. Details of Burden of proof has been specified from sections 101 to

114 of the Act. If facts are admitted then it need not be proved. If its s

rejected or denied then there is burden of proof on party who claims its

existence.

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Provisions of Burden of Proof

Following are the provisions relations to Burden of proof.

Legal Right

When any party wants to enforce his legal right though court has to prove

it.

Ex. A files a case that he has legal right to claim seat in reservation

category of B.C or S.C. He has to produce case certificate and prove his

right.

Liability

That there is Liability of defendant then he has to prove it.

Example. A files a case against B that he has Given 10,000 Rs Loan and

he has liability to repay it. A has to prove Loan transaction and liability of

defendant who did not refund it.

Ownership

Owner can deprive illegal possession of other party. When any person is

having possession of property contrary to law called as adverse

possession then owner can deprive but burden of proof is on owner and

not possessor.

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Examples. A found a gold ring belonging to B., under Quasi contract B

can deprive his possession and take back the ring but he has to prove his

ownership.

Negligence

When a party wants to claim remedy for negligence of another then

Burden of proof is on him.

Example. A files a case against doctor to claim compensation for latter

negligent treatment burden of proof is A that doctor committed negligence

in treatment.

Relationship

Some remedies are available because relationship between parties.

Burden of proof is on party who claims it such as employer and employee.

Landlord and tenant partner and firm.

Examples. A files a case of maintenance against B stating that he is her

husband. She has to prove this relationship if B denies it.

Criminal Charges

When police officers have framed criminal charges against a person then

they have to prove. Prosecution have to prove criminal charges which they

levelled against accused.

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Example. Police Officer, filed charge sheet that ‘A’ committed murder of B

then they have to prove it.

Defence

When accused is taking defence on particular ground then burden of

proof is on accused to establish it.

Ex. Defence advocate takes defence that his client was unsound mind

person when he committed murder. Burden of proof of insanity of client is

on him.

Knowledge of Fact

When a party has knowledge of existence of particular fact then he has to

prove it.

Ex. Passenger has to prove that he purchase ticket and produce it.

Customer submit that he has paid electricity bill, college telephone bill,

municipal tax then he is having burden to prove it.

Good Faith

When a party claims that he has committee particular act in good faith and

there is not bad intention then he has to prove.

Ex. Examiner have given less marks then he has to prove that it is in good

faith and there is no negligence.

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Will

When a party claims property stating that testator has given it to him under

will executed by him. He has to produce will and prove it.

Presumptions

There are presumptions of court and burden of proof is on opposite party

and not first party.

1. Ancient Document

A document which is 30 years or more period old is treated as

genuine. Burden of proof is on party who denies it.

2. Disappearance

When a person disappeared for 7 years or more period then there

is presumption that he is dead. Anybody submitted that he is alive

then he has to prove it.

3. Legitimacy

Child taking birth after 280 days of marriage is presumed as

legitimate. Person who challenge legitimacy has to prove that child

is illegitimate.

4. Cruelty against married woman

When a married woman gives complaint about cruelty of in laws

under section 498-A IPC then there is presumption that it is true and

burden to disprove it on in Laws.

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5. Rape

When there is complaint of Rape then it is presumed as true and

accused have to disprove it.

6. Suspicious death

When there is suspicious death of married woman within 7 years

period of marriage then it is treated as dowry death or abetment to

suicide and burden is on in Laws to disprove it under section 113-A.

These are the provisions relating to Burden of proof and

various presumptions of court relating to it under the Act.

*_ ( Law Student Federation )_*

Unit – IV

What do you mean by estoppel and its kind and provisions? How it

differs from Resjudicate and presumptions.

Estoppel means to prevent or to stop when a party or witness admits a

fact then subsequently he is not allowed to deny it. Every party have to

stick up to his position. This principle is exclusively applicable in Civil

Proceedings and not criminal cases. Detail of Estoppel has been specified

from section 115 of Evidence Act.

Object of Estoppel

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1. A party who admits a fact at one stage and denies it afterwards

cannot be reliable.

2. One should not blow hot and blow cold

3. There should be an end to litigation

4. If estoppel is not applied then there will be more scope to parties to

manage and manipulate the facts.

5. It is based on public policy

6. Conduct of parties and witnesses should be beyond suspicion

7. One should not probate and reprobate

8. It controls unjust behaviour

9. It is based on principles of equity

Provisions relating to estoppel

1. It is applicable against parties and witnesses.

2. It is applicable at any stage of proceedings

3. Objection of estoppel can be taken by opposite party and also court

4. When admissions are done in plaint, written statement, Notice,

affidavit then estoppel is applicable for denial of any fact.

5. If admission is done under threat, coercion influence then court may

not apply estoppel if its s proved.

6. Estoppel is effective against admitted facts for further refusal or

denial

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7. It is not effective if accused makes confession which he can deny in

the court

8. Estoppel does not apply against statue which can be replaced or

amended.

Kinds of Estoppel

1. Estoppel by record

When facts are specified in the record then it is admission. Record

maintained by public office or private party cannot be denied

according to principal of estoppel.

Ex. Record of date of birth, Municipal record hospital record,

university record.

2. Estoppel by deed

When any document is executed between parties then all terms and

conditions specified in the document are binding on the estoppel is

applicable to deny or reject any content or condition specified in the

deed.

Ex. 1. In tenancy deed tenant have agreed to pay electricity charges.

Estoppel is applicant to deny it afterwards.

3. In a lease deed period of lease has been mentioned as 10 years.

Estoppel is applicable to deny or alter it.

4. Estoppel by conduct

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There are same admission presumed from conduct of party. Court

applies estoppel for denial of such facts.

Ex.

1. Land lord allowed a family to live in the house. He has neither

executed tenancy deed nor gave receipt. His conduct showed

that he has accepted him as tenant and cannot deny it.

2. Employer allowed a person to do work but he has not given any

appointment order. He cannot reject him as employee because

his conduct to allot him work and court applies estoppel against

denial of such fact.

5. Estoppel by Judgement

When court gives any Judgement then estoppel is applicable to

alter, withdraw or deny it.

6. Estoppel by negligence

When any person has done negligence then it cannot be denied

subsequently according to estoppel.

Ex.

A surgeon have kept blade negligently in the stomach at the time of

operation. He cannot deny it according to estoppel when it is visible

in ‘x’ ray photo.

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7. Estoppel on Benami transaction

When a party has done benami transaction to avoid effect of any

law then he cannot revoke it according to estoppel.

Ex. A has transferred 20 acres of land to B as sale to avoid effect of

ceiling Act. Later on he cannot revoke sale stating that he has not

done sale and transferred it without consideration.

8. Estoppel on point of Law

When advocate of a party has should nay precedent or point of law

and its benefit goes to opposite party then he cannot withhold it

according to estoppel.

9. Estoppel by waiver

When a party waives some right voluntarily then estoppel is

applicable to claim it again.

Ex.

1. A creditor accepts lesser amount for full satisfaction of debt from

an insolvent person. He cannot claim balance of amount

according to estoppel

2. One brother surrendered his share in property to other brothers

by execution of document. He cannot claim it again according to

estoppel.

Estoppel and Resjudicata

It differs on two points

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1. Estoppel is applicable at any stage of proceedings but

resjudicata is applicable at the time of filing case when it is

already filed.

2. Estoppel effects parties and Resjudicata effects court to admit

more cases in same matter.

Estoppel and Presumption

1. Estoppel effects admitted facts from denial, presumption is fact

which court believes.

2. Estoppel restrict party from denial of admitting facts. Presumption

throws burden on opposite party to prove contrary otherwise it is

believed.

This is detail relating to estoppel, Kinds.

*_ ( Law Student Federation )_*

EXTRA Question

Explain means of Autrefois acquit and Autrefois convict,

jurisdiction, estoppel in fair trial.

Provisions relating to above terms have been specified from

section 40 to 44 of evidence Act which are applicable in

CR.P.C.

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Autrefois Acquit

After trial of a criminal case is there is acquittal then again trial,

cannot be conducted by same court. This provision of Evidence

Act is also having constitutional support under Article 21 called

as double Jeopardy. Under provision of Sec. 300 of Cr.P.C.

There is rule of double Jeopardy is applicable. It means there

should not be risk of trial for more than one time for one crime

against same accused person. Therefore autrefois acquit is

acquittal after trial but an end for re-trial again even though there

may be proof against accused. It is part of fair trail. Accused

should not be harassed repeatedly in same court for same

offence.

Autrefois Convict

When there is trial of criminal case and accused is convicted then

again there cannot be re-trial. Once Judgement is given there is

no question to re-consider accused person or person. After

conviction though accused may have sufficient proof of his

innocence but court is not supposed to make re-trial and make

acquittal, court should have stability and consistency in

pronouncement of Judgement. Re-trial after conviction in same

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court create much suspicion in Judgements of the court. This rule

also having support of Article 21 and Section 300 of CR.P.C.

It is not binding rule on any appellate court. Appellate court

have to make hearing of both sides and decide validity and

legality of Judgement of sub-ordinate court and cannot be called

as re-trail of the case.

Therefore, Autrefois convict is restriction on trial court to make

re-trial after conviction.

*_ ( Law Student Federation )_*

Jurisdiction?

There is also rule of jurisdiction applicable for trial of criminal

cases. Jurisdiction is necessary for court to conduct trial of

criminal case. Following are the Jurisdictions of Criminal courts.

1. Jurisdiction of cause of action.

2. Jurisdiction of powers.

3. Extra Ordinary jurisdiction

4. Concurrent Jurisdiction.

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Territorial Jurisdiction

It is the jurisdiction of court within whose limits crime is

committed, place of commission of crime is territorial Jurisdiction

for trial of criminal case.

Ex. A is from Mumbai but committed theft in Hyderabad. There is

Jurisdiction of court at Hyderabad to conduct his trial.

Jurisdiction of Powers
Judges of criminal courts have been delegated powers under

CR.P.C. And according to it they can conduct trial.

Ex. First class magistrate have Jurisdiction to entertain and

decide cases having conviction up to 3 years imprisonment and

not exceeding it.

Chief judicial magistrate can decide the criminal cases where

conviction is not exceeding and years’ imprisonment.

Extra – ordinary Jurisdiction

In some crimes court have extra –ordinary Jurisdiction. Such court

can entertain and decide such cases.

Ex. ‘A’ and B performed marriage in Hyderabad but they are living

in Delhi. If husband or in Laws cause cruelty to Married woman in

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Delhi then she can give complaint under section 498-A at Delhi.

There is Jurisdiction of criminal court at Delhi to conduct trial under

Sec. 498-A of IPC even at Delhi. Marriage have taken place at

Hyderabad but they are residing at Delhi and court at Delhi have

extra Ordinary Jurisdiction to conduct such trial.

Concurrent Jurisdiction

In some crimes there is jurisdiction of two or more criminal courts

to conduct trial of particulars criminal case. It falls within

Jurisdiction of both the courts. In such case any court can extent

Jurisdiction and conduct trial. High Court can also give such

direction for trial if it is referred.

Example. : A have done kidnapping of ‘b’ from Hyderabad and his dead

body found in Bangalore. There is Jurisdiction of both the courts because

kidnapping has been done from Hyderabad and murder has been

committed in Bangalore.

A have committed theft in Hyderabad and sold stole articles in pune which

have been recovered there. Trial can be done in court at Hyderabad or

Pune because both the courts have concurrent jurisdiction.

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Estoppel

Rule of estoppel has been specified form section 115 to 117 of Evidence

Act but it is also applicable in Cr.P.C.

Estoppel means not to change admitted facts. If confession is made by

accused in custody of police officer or before police officer then he can

deny it in court under sec. 25, 26 of Evidence Act, without effect of

estoppel If confession is made before magistrate voluntarily and with

consent by accused then estoppel is applicable. Such accused may not

be given opportunity to deny or reject his confession according to rule of

estoppel.

These are provisions relating to autrefois acquit, autrefois conduct,

estoppel Jurisdiction applicable in Cr.P.C. procedure.

*_ ( Law Student Federation )_*

Unit – V

Explain the provisions relating to incompetent of witnesses with

specific reference to privileged communications.

It is general rule that all witnesses and parties are competent to give

evidence in the court. There are some witnesses who are treated as

incompetent. Court case use discretionary power to decide whether a

witness is competent or not. Incompetent witness is not allowed to give

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evidence and if he gives it then Judge may reject it or may not admit it by

giving reasons of incompetency.

Provisions relating to competency

Child of Tender Age

Child of any age is competent witness if there is mental maturity to

understand the question and reply it after rational thinking. Judge can test

the child by putting general questions. If child has not developed mental

maturity to understand and reply the question the child is incompetent

witness.

Person of extreme Old age

When a person is of very old age then there is possibility of loss of

memory power and also mental Balance. If a person lost his mental

balance due to old age then he is incompetent party to give evidence. If it

is not so then he is competent. It also happens when there is sickness for

longer period.

Unsound mind person

A person who is unsound mind or Lunatic then he is incompetent.

Unsound mind person has no rational thinking to understand and reply

and question. If he is normal at the time of giving evidence then he is

competent to make disposition in court during his lucid hours.

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Dumb Witness

A dumb witness is unable to speak but he can listen. If such witness is

educated then he can give answers in writing. If he is illiterate and his

gesture are understandable then he is competent otherwise such witness

is incompetent.

Deaf Witness

A deaf witness is unable to listen but he can speak. He is examined by

putting question in writing if he is educated person and he can give reply

for it. If he is illiterate then such witness is incompetent.

Dumb and deaf witness

Such witness is unable to speak and listen. He is treated as incompetent

witness such witness is not allowed to make deposits.

Judge or Magistrate

A judge or magistrate who is deciding particular case is incompetent with

in that matter. Same person should not witness as well judge in same

matter case is before any other Judge then he is competent witness.

Contd.. *_ ( Law Student Federation )_*

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Privilege communication

In privileged communication witness competent but there is privilege to

refuse to answer questions or to disclose the facts. There are three kinds

of privilege communications.

1. Matrimonial communication.

2. Professional communication

3. Official communication

Matrimonial communication

In this communication witness is competent but there is privilege

not to disclose the facts. This privilege is given to protect

matrimonial relationship between spouses and family relations. If

any witness want to make deposition voluntarily and with consent

then court may consider it and reliability of such deposition.

Example. Husband has committed theft and wife knows it. She cannot be

compelled to give evidence against husband. She can refuse to disclose

any facts. This provision is also applicable for family members against any

other members.

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Professional communication

There are various professional having privilege not to disclose which

are harmful to his clients. Professional person have to maintain secrecy

of facts otherwise it may have adverse effect on his client and his interest.

There is confidential communication between professional person and

client to be kept secret as part of code of conduct and professional dignity.

Example. Advocate can refuse to answer questions which incriminate his

client. Advocate knows that his client has committed crime but he has

privilege not to disclose it as a witness.

Ex.2 : There is abortion or a unmarried girl in a nursing home. After her

marriage husband files a case of divorce on ground of her immorality.

Doctor has privilege to refuse to disclose this fact in court even though he

is competent witness.

Official Communication

There are some secret matter of government and public which have to be

kept secret by public officer. There is separate act to protect it called as

official secrecy Act. If disclosure of any fact is harmful to office or

department or his position or it is part of code of conduct then there is

privilege to such witness in court.

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Example. Finance minister can refuse to disclose content of budget

before its declaration in court.

Public servant can refuse to disclose police matter of employer in advance

that he is going to retrench or terminate some employees.

These are provisions in evidence Act relating competency and

incompetency of witnesses.

*_ ( Law Student Federation )_*

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Unit – V

What do you mean by examination of witnesses and various kind of

examinations and its provisions specified under the Act.

Examination of parties, witnesses, investigation officer, exert is routine

procedure of the court. According to principles of natural Justice nobody

can be condemned unheard.

Therefore examination of witnesses is based on rule of law and natural

justice.

1. To test reliability and credibility of witness and parties.

2. To test veracity in their statements.

3. To record contradictions and omissions in the statements.

4. To take necessary explanation about the case because everything

cannot be written in plaint and written statements.

5. To do face reading and psychological reading which is helpful to

form opinion.

6. To get information about circumstances of the case.

7. To expose parties and witnesses to know their character.

8. To extract truth when he became hostile or try to suppress the facts.

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Kinds of examinations

There are 3 kinds of examinations details about all examinations

has been given from section 135-166 of evidence act.

1. Chief Examination or examination in chief

2. Cross examination

3. Re-examination

Chief Examination

This examination is conducted by advocate or the party who calls the

witness in the court. If plaintiff calls the witness then he conducts chief

examination and if defendant calls the witness then he conducts chief

examination. It includes following points.

1. Oath is administered before examination.

2. In the beginning introductory question

3. It is relating to all material facts so that judge gets complete idea

about the case.

4. This examination may be conducted in summary manner or

question answer.

5. It is not necessary to record it

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6. Leading questions should not be asked in Chief Examination.

Leading question means such question in which answer is

suggested.

It is prohibited under section 141 and 142 of the Act. Originality of

witness cannot be tested by putting leading question witness should

not be mouth piece of advocate. He is not supposed to extract

expected answers from him

Ex. Have you seen murder at 4 pm?

This is leading question because time is specified in the question

itself which witness can answer it should be asked as what was the

time when you saw the crime. Objection of leading question can be

taken buy opposite party and also judge.

Cross Examination

This examination is conducted by opposite party advocate. This

examination is not compulsory but court may give opportunity to the

conduct it. It includes following points.

1. There is no need to administer oath again.

2. There is no need to put introductory question.

3. It is conducted only in question answer manner and not summary

manner.

4. Any number of Question can be asked.

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5. Answers given in cross examination to be recorded by court in

writing called as deportation and there is signature of deponent to

be obtained on it.

6. Relevant and additional question can be asked for which judge can

take objection or overrule the objection.

7. In this examination impeachment of credit (defamation) of witness

is allowed under section 156 which includes following points.

a. Previous conviction or acquittal record in any court.

b. Police record as rowdy, goonda, antisocial.

c. Illegal or immoral business such as gambling, horse race,

betting satta.

d. Suspended or terminated from service.

e. Having keep or illegitimate children.

f. Personal life question such as divorce, debaucher prostitute.

Purpose of such questions is to defame and demoralise witnesses in

opinion of judge who can decide to rely upon him or not.

RE-Examination

This examination is not compulsory but on reasonable grounds judge calls

witness again for second time voluntarily or on request for any party

witness is subject to examination again on the following grounds.

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Earlier examination in complete. When mental condition of witness is not

better at that time to answer the question then he is called again.

When Judge is transferred and new Judge wants that any key witness or

important witness in the case to be examined before him to ensure his

trustworthy nature.

When a new fact or information comes to notice of party of the case or the

court such as clothes, article knife which is relevant in the criminal act and

its identification is necessary to be done by particular witness.

When witness wants to give some additional information relating to the

case.

For refreshing memory of witness under section 159-161 refreshing

memory means to recollect the facts relevant in the case witness is not

able to remember some facts and he wants some period to do so then

court may do so and call the witness against for re-examination.

These are the provisions relating to purpose of examinations, kinds of

examination and its detail in evidence act.

- - The End - -

*_ ( Law Student Federation )_*

All the Best; from Law Students Federation

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