1

Name : Mohd Faizan Abdul Hakeem

Ollachery
Std: TY LLB
DIV: B
Roll #: 23
College: M.S. College of Law, Mumbra.
Sub: Evidence Act
Topic: Assignment 3 – 10 Question’s /
Answer.
Prof Name: Nivedita Ghosh.
Submitted on: 2/25/2022
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Define estoppel with provision, illustration and case laws.

Estoppel Principle
"Estoppel may be defined as disability whereby a party is precluded from alleging
or proving in legal proceedings, that a fact is otherwise than it has been made to
appear by the matter giving rise to that disability." HALSBURY (4th Ed, Vol. 16,
para 1501, page1008).

The term "Estoppel," comes from an old-French word- "Estoupail" (or variation),
which means "stopper plug", referring to placing a brake on the imbalance of the
situation. The rationale behind estoppel is to prevent injustice owing to fraud or
inconsistency.

In its simplest sense, doctrine of Estoppels, precludes a person from denying or to

negate anything to the contrary of that which has been constituted as truth, either
by his own actions, by his deeds or by his representations or by the acts of judicial
or legislative officers. Estoppel is often described as a rule of evidence as indeed it
may be so described. But the whole concept is more carefully viewed as a rule of
substantive law.

To invoke the doctrine of estoppels, there are three conditions which must be
satisfied;

1. Representation by a person to another

2. The other should have acted upon the said representation and
3. Such action should have been detrimental to the interests of the person to
whom the representation has been made.

However in the case, "Gyarsi Bai vs. Dhansukh Lal,2" it was observed by the
Hon'ble Apex Court that even if the first two conditions are fulfilled, but the third
is not, then there is no scope to invoke the doctrine of estoppel.

Types of Estoppel

1. Estoppel by Silence or Acquiescence

2. Employment Estoppel
3. Reliance-based estoppels:

a. Promissory estoppel, without any enforceable contract a promise has

been made by one party to another.
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b. Proprietary estoppel, where the parties are litigating the title to land.
4. Estoppel by deed
5. Estoppel by record
6. Estoppel Against Minor
7. Estoppel by deed

International Prospective

The Development of Estoppel – U. K. In English law, a promise which has been

made without consideration is generally not enforceable. It is known as a bare
promise. The doctrine of promissory estoppel was first developed in Hughes v.
Metropolitan Railway Co.3

Thomas Hughes was the owner of the property which was leased to the Railway
Company. Under the lease agreement, Hughes was entitled to compel the tenant to
repair the building within six months of notice. The Notice was served to leasee on
22 October 1874, from which the tenants had until 22 April to make those repairs.
On 28 November, the tenant had sent an offer letter to owner for purchasing the
same property. Negotiations began and continued until 30 December, but there was
no settlement. The time of 6 months had elapsed; the owner sued the tenants for
the breach of contract and also tried to evict the tenant.

The House of Lords ruled that with the initiation of the negotiations there was an
implied promise by the landlord not to enforce their strict legal rights with respect
to the time limit on the repairs and the tenant acted on this promise to their
detriment, thus allowing the tenants more time to repair. Hence, the owner is
estopped from claiming to the contrary.

However, the doctrine of estoppel had lost its value for some time after this case
and it was resurrected by Lord Denning in the case "Central London Property
Trust Ltd v High Trees House Ltd"

In 1937, High Trees House Ltd leased a block of flats in Clapham, London, for a
rate £2500/year from Central London Property Trust Ltd. Due to the prevailing
conditions during the beginning of the World War II occupancy rates were
drastically lower than normal. In January 1940, to ameliorate the situation the
parties made an agreement in writing to reduce rent by half. However, neither party
stipulated the period for which this reduced rental was to apply. Over the next five
years, High Trees paid the reduced rate while the flats began to fill, and by 1945,
the flats were back at full occupancy. Central London sued for payment of the full
rental costs from June 1945 onwards.
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Based on previous judgments as Hughes v Metropolitan Railway Co, Denning J

held that the full rent was payable from the time that the flats became fully
occupied in mid-1945. However, he continued in an obiter statement that if Central
London had tried to claim for the full rent from 1940 onwards, they would not
have been able to. This was reasoned on the basis that if a party leads another party
to believe that he will not enforce his strict legal rights, then the Courts will
prevent him from doing so at a later stage. This obiter remark was not actually a
binding precedent, yet it essentially created the doctrine of promissory estoppel.

The Indian Development of Estoppel

Estoppel has been defined under Section 115 in "The Indian Evidence Act, 1872."

"When one person has, by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief,
neither he nor his representative shall be allowed, in any suit or proceeding
between himself and such person or his representative, to deny the truth of that
thing".

The History of doctrine of promissory estoppel in India can be traced to the case
of Ganges Mfg Co. v. Sourajmul6whereby the Calcutta High Court had held that
the doctrine of estoppel was not only limited to the law of evidence, but that a
person may be estopped from doing acts or relying on particular arguments or
contentions.

Estoppel against Government

In Motilal Padampat Sugar Mills vs. State of U.P.,7it was held that the
government was bound by its promise & was liable to exempt the appellant from
sales tax for a period of three years commencing from the date of production.

Estoppel against the private parties

Taking note of section 115 of the Indian Evidence Act, which would be the
governing law for deciding on the disputes between the parties, it can be held that
promissory estoppel also applies in cases of dispute between private parties. It was
held in the case, "Century Spinning and Mfg Co. Ltd. v. Ulhasnagar Municipal
Council"8 by Supreme Court, the concept of promissory estoppel also applies to
private individuals/ entities.
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No Estoppel can be made against Statutes

In Jatindra Prasad Das Vs. State of Orissa & others,9 Orissa High Court, held
that:

"There can be no estoppel against statutes and the Statutory Provisions and
therefore, the said statutory provisions cannot be ignored on the grounds of an
earlier administrative decision or precedent."

State of Bihar and others v. Project Uchcha Vidya, Sikshak Sangh and
others,10 in which it was laid that "We do not find any merit in the contention
raised by the learned counsel appearing on behalf of the respondents that the
principle of equitable estoppel would apply against the State of Bihar. It is now
well known, the rule of estoppels has no application where contention as regards a
constitutional provision or a statute is raised."

Olga Tellis v. Bombay Municipal Corporation (1985.07.10) (Right to Life and

Livelihood for Homeless), that there can be no estoppels against the constitution
of India or against the fundamental rights.

Some Case-laws related to Estoppel

i. International Amusement Ltd. v Entertainment Tax Officer & Ors12. It was

held that "Benefits of exemption which is available to Assessee shall not be denied
by Authority, unless it is justified by law."

ii. O.P. Sharma & Ors. Vs .Union of India & Ors.,, once the voluntary
retirement is taken by the petitioners and they have taken it without reserving any
right as claimed in the writ petition, the petitioners also would be estopped in
claiming any reliefs in the writ petition
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Illustrate various interpretation clause Under sec 3 with illustration and case
laws

Interpretation clause. —In this Act the following words and expressions are
used in the following senses, unless a contrary intention appears from the
context:— “Court”. —“Court” includes all Judges and Magistrates, and all
persons, except arbitrators, legally authorized to take evidence. “Fact”. —
“Fact” means and includes—

(1) any thing, state of things, or relation of things, capable of being

perceived by the senses;
(2) any mental condition of which any person is conscious.

Illustrations

(a) That there are certain objects arranged in a certain order in a certain
place, is a fact.

(b) That a man heard or saw something, is a fact.

(c) That a man said certain words, is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good
faith, or fraudulently, or uses a particular word in a particular sense, or is or
was at a specified time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact. “Relevant”. —One fact is
said to be relevant to another when the one is connected with the other in
any of the ways referred to in the provisions of this Act relating to the
relevancy of facts. “Facts in issue”. —The expression “facts in issue” means
and includes— any fact from which, either by itself or in connection with
other facts, the existence, non-existence, nature, or extent of any right,
liability, or disability, asserted or denied in any suit or proceeding,
necessarily follows.

Explanation.— Whenever, under the provisions of the law for the time being
in force relating to Civil Procedure, 3 any Court records an issue of fact, the
fact to be asserted or denied in the answer to such issue, is a fact in issue.
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Illustrations A is accused of the murder of B. At his trial the following facts

may be in issue:— That A caused B's death; That A intended to cause B's
death; That A had received grave and sudden provocation from B; That A at
the time of doing the act which caused B's death, was, by reason of
unsoundness of mind, incapable of knowing its nature.

“Document”. —“Document” 4 means any matter expressed or described

upon any substance by means of letters, figures or marks, or by more than
one of those means, intended to be used, or which may be used, for the
purpose of recording that matter. Illustrations A writing 5 is a document;
Words printed, lithographed or photographed are documents; A map or plan
is a document; An inscription on a metal plate or stone is a document; A
caricature is a document.

“Evidence” .— “ Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it
by witnesses, in relation to matters of fact under inquiry, such statements are
called oral evidence;

(2) 6 [all documents including electronic records produced for the inspection
of the Court], such documents are called documentary evidence.
“Proved” .—A fact is said to be proved when, after considering the matters
before it, the Court either believes it to exist, or considers its existence so
probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it exists.

“Disproved”. — A fact is said to be disproved when, after considering the

matters before it, the Court either believes that it does not exist, or considers
its non-existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it does
not exist. “ Not proved”. — A fact is said not to be proved when it is neither
proved nor disproved. 7 [“ India ”. —“ India ” means the territory of India
excluding the State of Jammu and Kashmir .] 8 [the expressions “Certifying
Authority”, 9 [electronic signature], 9 [Electronic Signature Certificate],
“electronic form”, “electronic records”, “information”, “secure electronic
record”, “secure digital signature” and “subscriber” shall have the meanings
respectively assigned to them in the Information Technology Act, 2000 (21
of 2000).]
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Describe the different provisions of burden of proof with illustration and case
law.

The Law of Evidence is a critical piece of legislature which supplements Court’s

proceedings. Evidence is the material that establishes a claim or an assertion and
enables the Court to come to a just decision. Oral or documentary evidence should
be produced before the Court to prove or disapprove respective contentions of both
parties. The rule of evidence requires the respective parties to place the best evidence
in hand to establish their assertion beyond the reasonable doubt. The Law of
evidence is said to be the law of the forum or the Lex fori.[i]

The concept of burden of proof is defined under Section 101 of the Law of Evidence
Act, states that when a person is bound to prove the existence of a fact, the burden
to provide evidence for the same lies upon him. Chapter VII of the Act deals with
provisions under burden of proof. The term “burden of proof” isn’t defined in the
Act, however it is the rudimentary principle of criminal that, that the presumption of
innocence lies with the accused unless proven otherwise.

Illustration: A wants the Court to convict B of theft. Since the assertion of theft was
made by A, the onus to provide evidence to support such assertion lies upon him.

Principles of Burden of Proof

The principle of Burden of proof is based on the concept of onus probandi (burden
of proof) and factum probans (proving a fact). While the burden of proof remains
constant, the onus for the same shifts from one party to another. The facts that are
required to be proved are those which are not self-evident in nature. In the case
of Jarnail Sen v. State of Punjab[ii] that in, if the prosecution fails to adduce the
satisfactory evidence to discharge the burden, they cannot depend upon evidence
adduced by the accused person in support of their defense.

Initial Burden of Proof:

In criminal cases, the principle remains constant that the initial burden is on the
prosecution to establish that the accused has committed a crime. If the prosecution
fails to establish beyond reasonable doubt that the accused is guilty, the accused is
entitled to an acquittal. If burden of proof is put on the shoulders of the wrong party,
the Supreme Court states that this would vitiate the entire judicial system. Wherein,
a landlord seeks eviction of the tenants on the grounds of bona fide personal need,
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the onus to establish the same is on him. In the case of Banwari Lal v. Road transport,
where good were lost by the carrier, the burden lies upon him to establish that there
was no negligence on his part. The defence version may even be false; nevertheless,
the prosecution cannot derive any advantage from the falsity or other infirmities of
the defence version, so long as it does not discharge its initial burden of proving the
case beyond ail reasonable doubt. In the case of Triro v. Dev Raj, there was a delay
in filing the case going beyond the limitation period, the onus to justify the delay
was on the prosecution.

In matrimonial cases, the principle of burden of proof relating to civil cases is

applicable. A party seeking divorce will have to prove the grounds for divorce such
as desertion, cruelty or infidelity.

Section 102

This section attempts to locate the party, upon whom the burden of proof lays, the
burden of proof lies upon the party whose stance will fail if no evidence is produced
by either of the parties. The burden of proof lies on the party who affirms a fact
rather than the party who denies it.[x] In the case of insanity or unsoundness of mind,
the law presumes sanity until proven otherwise.[xi] In the case of Ram Raja Ram v.
Dhruba Charan Jena, the party claiming no consideration under Section 118 of
Negotiable Instruments Act must provide proof for the same.[xii]

Illustration: A sues B for possession of family heirloom, which A asserts was left
by his family in the will, if no evidence is provided by either side, B will retain the
family heirloom.

Section 103

The section imposes the responsibility of burden of proof upon the party that wishes
the Court to believe and act upon the existence of a fact. This principles stays
unaffected by the fact that a particular fact being asserted is negative or affirmative.

Illustration: A stole B’s car. B subsequently admitted the same to see. For the Court
to believe the same, A will have to provide evidence that proves admission of theft
of car committed by B.
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Section 104

This section states that when admissibility of one fact depend upon the existence and
admissibility of another fact, the party which wants to prove it will depend upon the
fact that makes the subsequent fact admissible.

Illustration: A wants to prove dying declaration of B, A must prove B is dead.

Section 105

This section refers to the exceptions provided to the accused that will serve as benefit
of ‘the general exceptions of the Indian Penal Code or of any of the special laws’.
The general principle requires the Court to presume innocence of the accused until
proven otherwise and it is upon the prosecution to establish the guilt of the accused.
Once the guilt is established, the onus then shifts to the accused who can take the
defense of general exceptions in I.P.C.

In Pratap v Stare of U.P. where the probability that the accused had caused death in
self-defense was held to be sufficient even though he had not taken his defense in
the committal proceedings. Again the Supreme Court held that the burden of proving
that the case comes within any of the general exceptions can be discharged by
showing a preponderance of probability. Under section 105 of the Evidence Act the
burden of proof is on the accused, who sets up the plea of self-defence, and in the
absence of proof, it is not possible for the court to presume the truth of the plea of
self defense.

The standard of proof upon the accused whilst claiming an exception under section
105 is comparatively lower than that upon a prosecuting party in similar
circumstances. An accused may not have to bring forth evidence to prove innocence
beyond a reasonable doubt. However, an accused when asserting that his particular
circumstances fall within an exception under the said provision, he alone has the
onus of proving the same.

Section 106

Under the said provision, any person who is said to be aware of a particular fact has
the onus of proving such a fact is upon him. The section uses the term “Specially
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within knowledge” denoting that the possession of such knowledge also shifts the
burden of proof upon the possessor.

An example would be the case of Eshwarai v. Karnataka[xiv] wherein a man and a

woman were found in the bedroom of person who had been killed due to extensive
injuries, the burden to prove the rationale of their presence was upon them. It was
assumed that since they are present at the scene of the crime, they would specially
have knowledge regarding the circumstances under which the death of the person
was caused.

Burden upon affirmation:

A general trend that the Indian Evidence act follows is that of shifting the burden of
proof onto a person who affirms a fact or assertion. The same is visible in various
provisions of the act. The rationale behind the same is that if a person asserts
something, he may also prove the same. Such instances can be found in sections 107
to 110. Section 107 states that if a person who was alive within the last 30 years is
said to be dead by another person, the person affirming the same must prove the
death. Similarly, under section 108, person who hasn’t been heard from in 7 years
and is therefore presumed dead, the burden of proving that the person is on
whomsoever affirms it. The situation is similar under section 109 which talks about
establishing relationships between partners, landlords – tenants & principal – agents
and under section 110 regarding assertions of ownership. Whoever affirms it, must
prove it.

Presumption as to Burden of Proof

Section 111 to 114 lay down certain specific conditions that define the party upon
which the burden of proof lies. These provisions envisage the exceptions to the
doctrine of “Innocent Until Proven Guilty”.[xv] These enumerated conditions go
against the doctrine by shifting the onus onto the accused to prove innocence, as
opposed to the prosecution proving guilt. There are various examples in the Indian
evidence act:

Section 111A

This sec. states that a person accused of the commission of certain offences under
the Indian Penal Code such as conspiracies against the government etc. in a disturbed
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area is presumed to be guilty and must prove his innocence, thereby putting the
burden of proof onto him.

Section 112

It lays down that in the event a child is born during the course of a marriage or within
280 days of its dissolution, he may be presumed to be the legitimate child of his
father. This was characterized in the case of Smt. Dukhtar v. Mohd.Farooq as the
father would have the burden to prove that the child is not his or would owe the same
obligations as he would to a legitimate child.

Sections 113A & 113B

These create presumptions against the husband and his family in cases of allegations
of harassment, cruelty and dowry death. The burden of proof is on the husband and
his family to show innocence.

Section 114

It allows the court to presume certain facts such as that the possession of stolen
property means that the person is the thief. Another example would be that when a
person refuses to answer a question put to him in court, the presumption would be
that if he had given the answer, it would be unfavorable for him. Various other cases
have been enumerated in section 114 which allow for the court to presume the
existence of certain facts and accordingly shift the burden of proof. These
presumptions generally go against the generally established principles of burden of
proof. The burden of proof is always upon the party against whom the presumption
works.

The general principle, when it concerns the burden of proof, is that the person who
makes a particular assertion has the onus of proving the same. This is based on the
rationale that the party who seeks to initiate action against another by the way of
judicial dispute resolution must also be forced to prove why the other party must
undergo the said process. The Indian evidence Act allows for the courts to shift the
burden of proof onto the other party, in contradiction of the principle above, but only
in specific instances. The threshold for proof also decreases in certain cases when
that happens.
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What are the provisions for witnesses, explain it with illustration and case
laws
Introduction
The witnesses are a crucial part of a criminal case with their testimony being the
major proof in favour of or against the accused providing a fair judgement delivered
on the principle of justice. The Indian Evidence Act provides certain provisions as
to the persons capable of testifying in court of law and its admissibility. The article
covers an extensive research based article on the information of the provisions on
witnesses in the Indian Evidence Act.

Who is a witness?

The Criminal Jurisprudence in India has been established on certain principles

founded by the Judiciary through its pronouncements. These are exhaustive in nature
with wide acceptance across the country.

1. It is a presumption that every accused is innocent until proven guilty in a

court of law provided all principles of natural justice were followed in a
fair trial.
2. The burden of proof lies on the prosecution to prove the guilt of the accused
rather than him proving innocence.
3. The proof shall be conclusive enough to prove the guilt beyond the
reasonable doubt.
4. In case of any doubt regarding the guilt of the accused, the benefit of doubt
is provided to the accused and he shall be acquitted.
To satisfy all these requirements of criminal jurisprudence, just and fair trial are
carried out with each party putting their contentions before the judge. Investigation
is the tool to detect a crime which comprises omissions by the investigating officers,
later to be completed by the testimony of the witnesses that had first hand
information of the crime committed. The statements by the witnesses are submitted
as evidence in a Court made under an oath, whether oral statements or written
testamentary deposition. It is the obligation of the witness to assist the court in
delivering justice by attending the proceedings when required.

Who can be a witness?

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Section 118 of the Act states the persons who can be a witness. The court identifies
all competent individuals who can testify with proper knowledge of the crime. There
are restrictions placed in consideration by the court on those who are incompetent in
understanding the questions put to them, these include:

 by tender years;
 extreme old age;
 disease, whether of body or mind, or any other cause of the same kind.
The condition of the witness does not bar him from testifying but his incompetency
to understand the questions or answer rationally exclude him from being a witness.

Different kinds of witnesses

1. Prosecution witness – Any witness who has been brought into the court to
testify by the prosecution while supporting their claims.
2. Defence witness – Any person who justifies the contentions of the defence
by providing such statements that can discharge the accused from any
charges filed.
3. Eye witness – Any person who helps the court by describing the acts
committed on the crime scene with complete authenticity as it was present
there and has first hand information.
4. Expert witness – Any person who has the professional, educational or
judicial expertise on the matter beyond any average individual, and the
court can rely on its testimony to declare a verdict.
5. Hostile witness – Any person who by his consequent statements gives out
an impression of not letting out the truth or not desirous of hiding the truth.
6. Child witness – A child who has the understanding of the questions of the
court or has the rational answers to the questions put forward can testify in
a court as per section 118 of Indian Evidence Act.
7. Dumb witness – Any person who is not capable of giving oral statements
can be allowed to provide statements in written declaratory form in the
court. Such written statements shall be deemed as oral evidence.
8. Chance witness – Any person who by the matter of coincidence happens
to be present at the site of crime committed.
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9. Accomplice witness – Any person who was connected to the crime in its
illegal commission or omission provides the statements in the court.
10.Interested witness – Any person who has some interest in the case or its
verdict in order to extract some material benefit out of it.

Lakhan v. Emperor
This case states that if a person has vowed to keep silence owing to a religious
practice, he shall testify in writing answering all the questions put to him and this be
submitted in court as evidence.

Suresh v. State of Uttar Pradesh

This case states that a 5 year old child testifying would be admissible as evidence in
a court if he understands the question and has the capacity to answer rationally. It
was declared that no minimum age is required for a witness to testify in a court.

Santosh v. State of West Bengal

This case states that a child of 12 years is more mature than a 7-8 year old and that
on the satisfaction of the court on the competency of the child to understand the
questions put to him, he can be considered a witness to the case.

Principle of Vol dire Test

This test was established to identify the competency of the child to be a witness
according to the conditions provided in section 118 of the Indian Evidence Act, 1872.
The child can be asked some questions out of the scope of the case details which
include preliminary questions on name, father’s name or their place of residence. If
the court is satisfied with the answers of the questions, the capability of the child to
understand the questions and answer them rationally, can the child be allowed to
testify in court.

State v. Yenkappa

This case states that a man who killed his wife and his adolescent children gave
testimony against their father leading to his conviction. The question over admission
 16

of child witnesses was raised in the appeal. The man contended that his children
were tutored thus their statements need not be accepted. It was decided that the age
of the children does not restrict them from testifying but also an innocent cannot be
held guilty on the statements of child witnesses as they can be easily tutored.

Rameshwar S/o Kalyan Singh v. State of Rajasthan

This case states that every person is competent to testify in a court of law unless
restricted by the court itself in matters of the witness not understanding the question
put before him/her.
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What are the procedures for examination of witness, what are the provision?
Describe it with Illustration and case law.

Section 135 of Indian Evidence Act deals with the examination of witnesses present.
In the Code of Criminal Procedure Section 311 empowers the court to summon a
material witness, or to examine a person present at “any stage” of “any enquiry”, or
“trial”, or “any other proceedings” under Crpc, or to summon any person as a witness,
or to recall and re-examine any person who has already been examined if his
evidence appears to it. Examination of witnesses is there in the Code of Criminal
Procedure in all the trials either session trial, warrant trial,or summary trial.
Examination of witnesses in CrPC are as follows:

 Session trial on prosecution and defence examination (Section 225-237)

 Warrant trial on the police report (Section 238-243)
 Warrant trial on the complaint (Section 244-250)
 Criminal trial on summon cases (Section 251-259)
 Summary trial (Section 260-265)

Examination of witnesses in criminal cases

The examination of witnesses in criminal cases are present in all the trials of Code
of Criminal Procedure, in the warrant trial when police made the report, examination
of witnesses are performed by the prosecution after the charges are framed and
accused pleads guilty, then the court gives the chance to prosecution to prove the
guilt of the accused. Here prosecution needs evidence with statements from its
witnesses. This is an examination in chief. In this condition, the magistrate has the
power to issue summons to any person as a witness. After examination in chief,
defendant can ask the cross-questions from the prosecution witness that is called
 18

cross-examination. After the cross-examination if the prosecution has some queries

then he asks the question from the witness that is called re-examination.

The court will examine the witnesses and complainant in the examination of
witnesses in warrant trial on the same day after decide any offence is made against
the accused or not. Then the magistrate order an inquiry in which the matter submit
a report for the same. After the investigation and examination of complainant court
may reach the conclusion if the complaint is honest and the prosecution has sufficient
evidence against the accused. Then Court convict the accused and if the complaint
is not genuine and the court does not find sufficient material through which
complainant can convict the accused then Court dismissed the complaint.

At the end after the examination of the complaint and inquiry report, if the court
thinks evidence and material are sufficient, which are produced by the complainant
with the prosecution to charge the accused in this situation Court may issue a warrant
or a summons. There are different stages of the criminal trial in summons cases as
provided in Section 251 to 259 of the Code of Criminal Procedure.

The procedure of examination of witnesses in the summon cases are same as warrant
trial, after the plea of guilty prosecution start the examination of witnesses. The
examination of witnesses in a summary trial is same as summons cases and warrant
trial.

Examination of witnesses under CPC

Examination of witnesses is there in order XVIII of rule 4 to 16 in the Code of Civil

Procedure.

Order XVIII Rule 4

1. Rule 4 of Order XVIII said that party who called the witness for the
examination of witnesses in every case shall be on affidavit and copies of
the affidavit shall be supplied to the opposite party.
2. The examination of witnesses whether it is an examination in chief and
cross-examination or re-examination by affidavit has been furnished to the
court shall be taken either by the Commissioner or by the Court.
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3. The Court or the Commissioner shall record the statement of witnesses

during the examination of witnesses either in writing or mechanically in
the presence of the judge if there is Commissioner in a case then he shall
return such evidence together with his report in writing signed by him.
4. The Commissioner may record such remarks which are very important
when objection raised during the recording of evidence. Which are decided
by the Court at the stage of arguments.
5. The report which is made by the Commissioner must be submitted to the
Court within sixty days.
6. The High Court and the District Court Judge has the power of preparing a
panel of Commissioners to record the evidence under this rule.

Order XVIII Rule 5

How to take the evidence in appealable cases:

(a) brought down in the language of the Court;

(i) recorded as a hard copy by, or in the nearness and under the individual bearing
and superintendence of, the Judge; or

(ii) from the dictation of the Judge directly on a typewriter; or

(b) if the Judge, for reasons to be recorded, so coordinates, recorded precisely in the
language of the Court within the sight of the Judge

Order XVIII Rule 6

Where the evidence is brought down in a language not the same as that in which it
is given, and the witness does not understand the language wherein it is brought
down, the proof as brought down recorded as a hard copy will be converted to him
in the language in which it is given.

Order XVIII Rule 7

Evidence brought down under Section 138 of Indian Evidence Act and the evidence
shall be in the form which is prescribed in Rule 5 of Order XVIII, after the read and
 20

signed as the event may require, interpreted and repaired as though it wore proof
brought down under that rule.

Order XVIII Rule 8

When evidence not brought by the judge in writing for his command in the open
Court or recorded automatically in his presence now he shall be bound for the
examination of witnesses to make an update of the substance of what each observer
expel, and such remainder shall be written and signed by the Judge and will shape
some portion of the record.

Order XVIII Rule 9

Where English isn’t the language of the Court, yet every one of the gatherings to the
suit who show up face to face, if an advocate and the group of people does not know
the english language then evidence not produced in the Court in English language.

(2) Where proof isn’t given in English however every one of the gatherings who
show up face to face, and the pleaders of such of the gatherings as show up by
pleaders, don’t item to having such proof being brought down in English, the Judge
may takedown, or cause to be brought down, such proof in English.

Order XVIII Rule 10

The Court may of it if any party file an application regarding a particular question
and answer or any objection to any question brought down in the Court if there
appears to be any special reason for so doing then Court will accept that application.

Order XVIII Rule 11

If there is question objected by the adverse party and pleader during the examination
of witnesses then judge of the Court allows the same to be put and shall be brought
down the question, the answer, the objection and the name of the person making it,
with the decision of the Court.
 21

Order XVIII Rule 12

The Court may record such comments as it might suspect material respecting the
behaviour of any witness while under examination.

Order XVIII Rule 13

Cases in which appeal is not allowed then there is no need to bring down and
maintain a record of evidence of witnesses at length, but the judge of the Court
records all the examination of witnesses proceeds in a writing and prescribe to the
typewriter, or cause to be automatically recorded for the remainder of the case with
the sign of the judge.

Order of production and examination of witnesses

It is a lawyer’s privilege to check the order in which he examines the witnesses.

According to the experience and skill witnesses are arranged. Prosecutor has the
freedom to produce his witnesses in order which he likes. Section 135 of the Indian
Evidence Act gives the power to the court to command or order in which the
witnesses may be produced.

Exclusion of witnesses from the courtroom

When the party starts the examination of witnesses of the evidence then the other
witnesses must be kept out of the Courtroom. When the examination of one witness
is completed then the next witness is called for the examination. And witness whose
examination is completed, are not allowed to remain in the courtroom. If the witness
remains present in the courtroom then he should be asked to go out. If any witness
present during the examination of another witness then his examination can not be
refused only a note to be made by the judge that he was present in the courtroom
during the examination of another witness.

Delayed examination of a witness

If the examination of prosecution witnesses delayed then defence can not put any
question to the investigation officer, the accused had no right to contend that there
was a delay in recording the statement of prosecution’s witness and his evidence
should be viewed with suspicion. It is not a universal rule of application that the
 22

testimony of a witness becomes undependable merely because of delay in his

examination.

Admission and evaluation of witness statements

Evaluation of the testimony of a witness

After the examination of witnesses by the court, the opportunity must be given to
the party or parties for making observations. The observations may be made in
writing after transmission of the minutes of taking of evidence which is exceptional
or either in oral proceedings following the taking of evidence. The efficient
department will be decided on this matter. The parties may file requests accordingly.

Efficient department decide the matter of proceed to evaluate the evidence only
when a witness’s testimony which is crucial to the decision has been challenged by
a party but the department regards it as credible, or when the witness’s oral or written
testimony is forgotten in its decision as being not believable credible, the department
attentive must state the grounds for its view in its decision.

In assessing an observer’s oral or composed declaration, uncommon consideration

is to be paid to the accompanying:

(i) What is significant is the thing that an observer can relate concerning the focuses
at issue based on his own insight or perspectives, and whether he has useful
involvement in the field being referred to. Recycled statements dependent on
something got notification from outsiders are generally useless all alone. It is
additionally significant from the perspective of the assessment whether the observer
was engaged with the occasion himself or just is aware of it as an eyewitness or
audience.

(ii) In case of long interims of time (quite a long while) between the occasion being
referred to and the declaration, it ought to be borne as a main priority that a great
many people’s capacity of review is restricted without the help of narrative proof.

(iii) Where declaration seems to struggle, the writings of the announcements

concerned are intently contrasted and each other.
 23

Evident logical inconsistency in the declaration of observers may here and there be
settled along these lines. For instance, a nearby assessment of evidently conflicting
proclamations by observers about whether a substance X was usually utilized for a
specific reason may demonstrate that there is in actuality no logical inconsistency
by any stretch of the imagination, in that while one observer was stating explicitly
that substance X was not utilized for that specific reason, the different observer was
staying close to that substances like X, or a specific class of substances to which X
had a place, were ordinarily utilized for this specific reason without expecting to
own any expression in regards to substance X itself.

(iv) A representative involved with the procedures can be heard as an observer. The
conceivable prejudice of an observer decides how the proof is surveyed, not whether
it is allowable.

Relevance of the Testimony

During the examination of a witness when the witness gives the statement under oath,
the statement of the witness must be relevant to the case. At the end of the
examination of witnesses, the Judge of the court decides the relevancy of the
testimony of the witness and admit the statement of the witnesses.

Reliability of the Testimony

Statement of the witness which are given during the examination of witnesses must
be true under oath, and at last the Judge of the court decide the reliability of the
testimony of the witness and admit the statement of the witnesses.

Judge to Decide as to Admissibility of Evidence

Judges have the power under Section 136 of Indian Evidence Act for the
admissibility of evidence in the examination of witnesses and also check the
statement of the witnesses which is given by the witnesses during the examination
of witnesses that is relevant or irrelevant. Relevant evidence decided by the judges
on the basis of In assessing an observer’s oral or composed declaration, uncommon
consideration is to be paid to the accompanying:

(i) What is significant is the thing that an observer can relate concerning the focuses
at issue based on his own insight or perspectives, and whether he has useful
 24

involvement in the field being referred to. Recycled statements dependent on

something got notification from outsiders are generally useless all alone. It is
additionally significant from the perspective of the assessment whether the observer
has engaged with the occasion himself or just is aware of it as an eyewitness or
audience.

(ii) In case of long interims of time (quite a long while) between the occasion being
referred to and the declaration, it ought to be borne as a main priority that a great
many people’s capacity of review is restricted without the help of narrative proof.

(iii) Where declaration seems to struggle, the writings of the announcements

concerned are intently contrasted and each other.

Evident logical inconsistency in the declaration of observers may here and there be
settled along these lines. For instance, a nearby assessment of evidently conflicting
proclamations by observers about whether a substance X was usually utilized for a
specific reason may demonstrate that there is in actuality no logical inconsistency
by any stretch of the imagination, in that while one observer was stating explicitly
that substance X was not utilized for that specific reason, the different observer was
staying close to that substances like X, or a specific class of substances to which X
had a place, were ordinarily utilized for this specific reason without expecting to
own any expression in regards to substance X itself.

(iv) A representative involved with the procedures can be heard as an observer. The
conceivable prejudice of an observer decides how the proof is surveyed, not whether
it is allowable.

Scope

Scope of Section 136 of the Indian evidence act is very important as the witnesses
comes in the court with the relevant statement because if the witnesses come in the
court with irrelevant statement then judge of the court not admitted that statement of
the witnesses in the case and due to this all the facts of the cases must be clear, this
is also mentioned in the Section 5 of Indian Evidence Act all the facts of case must
be relevant. There are some rules of Section 136 of the Indian Evidence Act.

Rule 1
 25

If any fact proved in the case which is proposed by the party in the evidence then a
judge may ask the party in what the alleged fact would be relevant or not. A Judge
will decide the fact must be relevant. If the evidence would not be relevant then the
judge would not allow the party from proving it as because it would only waste the
time of the court. In such condition court may disallow evidence.

Rule 2

If the party suggested the fact of the evidence which is proved in the court and also
depend on another fact of the evidence then the other fact must be proved before
evidence of the first fact is given. For example dying declaration, if a person wants
to prove a dying declaration then he must prove that the declarant is
dead. [Illustration (a) and Illustration (b)]. Here admission of fact depends on
condition.

Rule 3

Rule 3 is the exception of rule 1 and 2. If there is a relevancy alleged fact is there
which depends on the proof of another alleged fact. In this condition, the judge may
allow in his discretion the first fact to be proved without proof of the second fact.
But in this condition, the party must undertake to prove the second fact to the
satisfaction of the court Illustration (e).

As per the above rules, the question of admission of witnesses in the witnesses is to
be decided by the judge. First, he invested all the evidence with wide discretion then
allow evidence to be placed on records.

Examination in Chief

Examination in chief is defined under Section 137 of the Indian Evidence Act, when
the party calls a witness in the examination of witnesses that is called examination
in chief. Examination in chief is the first examination of witnesses after the oath. It
is the state in which party called a witness for examining him in chief for the purpose
of eliciting from the witness all the material facts within his knowledge which tend
to prove the party’s case. It is also known as Direct Examination.
 26

The objective of Examination in Chief

1. It overcomes the burden of proof legally sufficient.

2. Remembered and understand.
3. Persuasive.
4. Hold the cross-examination.
5. Contradictory and anticipatory and of evidence that the opposition will
present.

There is more objective of examination in chief are as follows:

A.Major objectives

1. All the evidence must be admissible.

2. The witness needs to present as intended and capable of being believed.
3. Each and everything related to the fact of evidence of the offence must be
proven beyond a reasonable doubt through the witnesses oral evidence and
exhibits.

B. Minor objectives
You also achieve some additional objectives which are less essential but still
important:

1. Present a complete and logical, rational theory of the offence.

2. Witnesses present in the best possible light.
3. Mention all the facts in the evidence and attempt to explain the relation
between propositions that cannot both be true at the same time.
4. Limiting the exposure of witnesses through the shut down of potential
cross-examination.

Examination in chief questions

There would be general questions asked in the examination in chief which is related
to the facts of the evidence no leading questions are asked in the examination in chief.
Leading questions are asked only in cross examination and re examination, first of
all, prosecutor ask the question in the examination in chief in the criminal trial.
 27

Cross Examination

After finishing the examination in chief, cross-examination will start. In the cross-
examination defendant lawyer asks the cross-question which was asked by the
prosecutor. Defendant lawyer may ask the questions which are related to the facts
and the defendant can also ask the leading question in the cross-examination which
were not allowed in the examination in chief. Cross examination is very important
in the examination of witnesses, due to the cross-examination many facts get clear
because in the cross-examination defendant analyse all the statements of the
witnesses then asks cross question related to the statement which was given by the
witnesses in the examination in chief. The Defendant can also ask the question which
was not related to the examination in chief but related to the facts of evidence.

Cross Examination in civil cases in India

All the witnesses in civil cases which are produced or examined by the court on the
wish of parties must be presented before the court within 15 days from the date on
which issues are framed or within such other period as the court may fix. Then
parties have to file a list of witnesses in the suit. After that court can ask the witnesses
for examination by sending summons or parties may call the witnesses by
themselves. If the court issued a summons for asking the witnesses for the
examination then the expenses which arise due to the calling of witnesses by issuing
summons has to be deposited by the parties. The money deposited by the parties in
this condition is known as “Diet Money”. The date on which the parties wish to
produce and examine the witnesses in the court that is hearing. Now the hearing will
decide the court on the date of hearing. First thing is done by the plaintiff”s
examination in chief in which he asked the question which was seen by the witness.
After that defendant ask cross-questions which were asked by the plaintiff in the
examination in chief. And after the cross-examination is over at this stage the court
will fix a date for final hearing.

Cross Examination in criminal cases in India

There are different stages of cross-examination in criminal cases in the criminal trial
in a warrant case instituted on the police report After the charges are framed, and the
accused pleads guilty, then the court requires the prosecution to produce evidence to
prove the guilt of the accused. The prosecution is required to support their evidence
with statements from its witnesses. This process is called “examination in chief”.
The magistrate has the power to issue summons to any person as a witness or orders
 28

him to produce any document. After the examination in chief, the adverse party
asked the cross-questions to witnesses that is called cross examination.

Re examination

The party who attend the witness for the cross-examination shall be called re-
examination. If the party not subjecting to cross-examination as per the court order
then it is not safe to trust on examination in chief.
 29

What are the provision for exclusion of oral evidence by documentary evidence.
Describe it with Illustration & case laws

Section 92- Exclusion of evidence of an oral agreement.

If any contract, grants or disposition of property which is required by law to be in

writing in form of document and if it has been proved according to Section 91, then
for the purpose of varying it, contradicting it or subtracting it parties or their
representative is not required to give oral evidence and it is not admissible. Two
points are proved from this Section:

1-If any third party gives then it is admissible.

2-If any oral evidence is given which do not contradict the contract then it is
admissible.

Exceptions

 Validity of document
If any contract or grant is made between the parties and fraud is done by other party
or there is a mistake of fact, or mistake of law, or the party is not competent to
contract then in such circumstances oral evidence can be given and it is admissible.

 Matters on which document is silent

Oral evidence can be given when the documents are silent but subject to these two
conditions are there:

1- The oral evidence should not contradict the document. Illustration – A sells his
horse to B and told about the price but the soundness of horse is not told but oral
evidence can be given that horse is of sound mind because the document is silent
here.

2- In allowing the proof of oral understanding the court is to have respect the level
of the custom of the record. On the off chance that the report is formal, proof of oral
understanding will not be permitted even on issues on which the record is silent.

 Separate oral agreement as condition precedent

 30

In this situation, it is provided that if there is any condition precedent is constituted

to the existing separate oral agreement to attaching of any obligations under
a document , then it needs to be proved.

 Recession or modification
This provision permits the proof of oral agreement by which the document was either
revoked or altered. When documents are executed then parties orally agree to treat
it as canceled or alter some of its terms, such oral agreement is admissible.

 Usages or customs
If there is the existence of any particular usage or customs by which incidents are
attached to a contract then it can be proved.

 Relation of language to facts

If any document is written then oral evidence can be given of such a document that
what is mentioned in and in what circumstances it was mentioned and how to
interpret it but it should not exclusively contradict the document.

Section 93- Exclusion of evidence to explain or amend an ambiguous

document. If the language used in the document is defective or ambiguous, evidence
cannot be given of facts which would show it’s meaning. Illustration- A agrees to
sell his cow to B in writing for Rs. 1500 or Rs. 2000. Evidence cannot be given to
show which price wast to be given.

Section 94- Exclusion of evidence against the application of document to

existing facts. When the language used in the document is correct and when it
applies correctly to the facts mentioned, evidence cannot be given that it is to be
proved that it was not meant to apply on such facts.

Section 95- Evidence as to the document unmeaning in reference to existing

facts. When language used in a document is plain in itself, however, is unmeaning
in reference to existing facts, reality or situations, proof might be given to
demonstrate that it was used in an unusual or different way.

Section 96- Evidence as to the application of the language which can apply to
one of several persons. At the point when the facts are with the end goal that the
language utilized may have been intended to apply to anyone, and couldn’t have
 31

been intended to apply to multiple, of a few people or things, proof might be given
of certainties which shows the people or things, it was planned to apply to.

Section 97- Evidence as to the application of language to one of two sets of facts,
to neither of which the whole correctly applies. When the language used is applied
partially to other existing facts and partially to other existing facts but the whole does
not apply to either of the facts mentioned. Evidence can be given to show that which
of the two it was meant to apply.

Section 98- Evidence as to the meaning of illegible characters, etc. Proof might be
given to demonstrate the significance of obscured or not ordinarily clear characters,
of remote, out of date, specialized, and provincial expressions, of abbreviations and
of words utilized in an exceptional sense.

Canadian-General Electric W. v. Fatda Radio Ltd held that for the explanation of
artistic words and symbols used in the record oral evidence is admissible and can be
used for that purpose.

Section 99- Who may give evidence of an agreement varying term of the
document? The person who is not a party to a contract or their representative may
give evidence of any fact which do not contradict with the documents.

Conclusion

The value of documentary evidence is more than oral evidence. The court mainly
accepts documentary evidence but takes oral evidence into consideration. Briefly,
we can say that there are two types of documents- oral and documentary evidence.
In court, documentary evidence has more value. Court wants best evidence and
documentary evidence is the best evidence and it consists of two parts primary
evidence and secondary evidence. Primary evidence is the best evidence recognized
by the court. In the absence of primary evidence, secondary evidence is given to the
Court. On the other hand, oral evidence is evidence given by words and gestures and
are not permanent it can be changed. Hence Section 91 and 92 exclude oral evidence
by documentary evidence. Proof in the form of a document can be submitted instead
of giving orally.
 32

Describe documentary evidence, What are presumption explained in

documentary evidence. Explain with illustration and examples.

Documentary evidence refers to that evidence which is in Tangible, physical form.

It is different from other kinds of evidence in many ways. Other kinds of evidence
include oral evidence, circumstantial evidence, hearsay evidence, etc. Generally, the
credibility of the documentary evidence is comparatively higher than other types of
evidence.

According to the Indian Evidence act,1872, concerning documentary evidence, the

act requires that generally the original should be produced because it is considered
that copy of the document may contain omission or mistakes of a deliberate or
accidental nature.

Documentary evidence is defined in the act as all documents produced for the
inspection of the court. The purpose of producing documents is to rely upon the truth
of the statement contained therein. This involves when a document is produced in
court, analysis of three questions is taken into consideration:

 Is the document genuine?

 What are its contents?

 Are the statements in the documents true?

Explicit provisions regarding documentary evidence are contained in chapter V,
Section 61-90 of the Evidence Act, 1872. These provisions provide for the detailed
guidelines and procedure of how documentary evidence is to be admitted in a court
of law. It also provides for the evidentiary value for such kind of documents.

Proof of content of documents (Section 61)

Section 61 of the act provides that the contents of documents may be proved either
by primary or secondary evidence.

Section 3 defines documentary evidence-“Documentary evidence means all

documents produced for the inspection of the court”. Documents are of two kinds:
Public and private. Section 74 gives a list of public documents. Rest all other
documents are regarded as private documents. The production of documents in
courts is regulated by the Civil Procedure Code and the Criminal Procedure Code.

The contents of a document must be proved either by the production of the document
which is called primary evidence or by copies or oral accounts of the contents, which
 33

is called secondary. It was held by the supreme court that where there is documentary
evidence, the oral evidence must not be given much weight.

When a document is not required to be registered, it is admissible, even though

unregistered. An ex-parte affidavit without having to allow the other party to test the
veracity of its contents by cross-examination, cannot be a proof of its contents.

Primary Evidence: Section 62

Section 62 provides for the provision of Primary Evidence. Primary evidence means
the documents itself produced for the inspection of the court. Ingredients for section
62 are as follows:

 Primary evidence means the document itself produced for the inspection
of the court.
 Where a document is executed in several parts, each part is primary
evidence.
 Where a document is executed in counterpart, each counterpart is
primary evidence against the party executing it.
 Where several documents are made by a uniform process, such as
painting, lithography, or photograph, each one is primary evidence of
the contents of the rest.
 Where several documents are made by one uniform process, but they are
copies of the common original, they are not primary evidence of the
contents of the original.
This section defines the meaning of the primary evidence which means the
documents itself is produced for the inspection by the court. Where a document is
executed in several parts, each part is the primary evidence of the document. Where
a document is executed in counterparts, each counterpart is primary evidence.

Two wills in identical language were prepared by the process of typing in which the
second copy was obtained by carbon impression. Both were duly executed and
attested. Both were held to be original and not a copy of the other. The fact that the
testator inserted a remark on one of the “true copy” would not alter their character.

In Prithvi Chand v. state of H.P, it was held that a carbon copy was made by a
uniform process of the certificate of a doctor (as to the condition of a rape victim)
given in the performance of professional duty. It was held to be primary evidence
within the meaning of the explanation to section 62.
 34

Section 276 of the succession act 1925 requires that an application for probate or
letters of administration should be made with the “will” annexed. Since this does not
necessarily mean “original will”, a copy certified by sub-registrar was allowed to be
annexed

Secondary evidence: Section 63

Section 63 provides for Secondary evidence means and includes:

 Certified copies.
 Copies made from the original by a mechanical process and copies
compared with such copies.
 Copies made from or compared with the original.
 Counterparts, of documents as against the party who did not execute
them.
 Oral accounts of the contents of a document by a person who has seen it.
Clause 1 to 3 deals with copies of the documents, while clause 4 deals with
counterparts of documents, and clause 5 deals with oral statements.

At one instance a copy of the document was admitted in evidence in trial court
without objection, its admissibility cannot be challenged in the appellate court
because omission to object to its admissibility implies that it is a true copy and
therefore, it is not open to the appeal court to say whether a copy was properly
compared with original or not.

Documents that are merely copies of copies, the originals not having been
satisfactorily accounted for, are inadmissible in evidence and must be rejected.

In Idandas v. Anant Ram Chandra, when a document is executed in counterpart, each

virus signing only the part by which he is bound, each counterpart, each party signing
only the part by which he is bound, each counterpart is the best evidence against the
party signing it and his privies. As to other parties, it is only secondary evidence. A
landlord counterfoil was held to be not relevant for showing that the arrangement
was month-to-month tenancy.
ORAL STATEMENTS

Secondary evidence includes, according to cl.5, oral accounts of the contents of a

document, given by some person who has himself seen the original document. But
a written statement of contents of a copy of a document, the original of which the
person making the statement has not seen, cannot be accepted as secondary evidence.
 35

In Veerappa v. Md. Attavullah, it was held that secondary evidence of a document

which is lost or difficult to trace can be adduced in two ways:
 By oral evidence of persons who were present when the document was
executed.
 By a certified copy of the original document.
In Aher Ram Goa. V Gujral, The original dying declaration was lost, a head
constable who maintained a copy testified to its accuracy. This was allowed as
corroborative evidence.
Proof of documents by primary evidence: Section 64
Documents must be proved by primary evidence except in the cases hereinafter
mentioned.

Ingredients :

 Documents must be proved by primary evidence.

 Secondary evidence can be given under the circumstances described
under section 65.
A written document can only be proved by the instrument itself where the contents
of any document in question, either as a fact directly in issue or the sub-alternative
principal fact the document is proper evidence of its contents. But where a written
instrument or document of any description is not a fact in issue and is merely used
as evidence to prove some fact, the independent proof is required.

In P.C Purushathama v. S. Perumal, it was held that once a document is properly

admitted the contents of the document are also admitted in evidence, though those
contents may not be conclusive evidence.
Section 65 mentions cases in which secondary evidence relating to documents may
be given. It provides certain emergencies in which secondary evidence concerning a
document may be preferred. For example when the original is shown or appears to
be in the possession or power of the person against whom the document is sought to
be proved. Or when the original is of such a nature as not easily moveable. Etc

Special Provision as to evidence relating to electronic record and admissibility:

Section 65-A & 65-B
Section 65-A provides that the contents of electronic records may be proved in
accordance with the provision of section 65-B. It may be noted that section 65-A &
65-B are new insertions to the original act and are inserted by an amendment in the
year 2000. Earlier it was becoming a difficult task to prove the electronic evidence
in courts as no explicit provision provided an authenticity to the electronic records
 36

and with the increasing use of electronic mediums and with the emergence of the
digital era, it became imperative on Indian courts to make electronic records
admissible to ensure justice in its truest sense.

According to section 65-B, any information contained in an electronic record which

is printed on paper, stored, recorded, or copied in optical or magnetic media
produced by a computer shall be deemed to be also a document provided condition
mentioned in the section is satisfied.

The conditions shall be as follows:

 Computer output containing the information was produced by a

computer that was regularly used to store or process such information by
a person having lawful control over the use of a computer.
 Such information was regularly fed in such a computer during the
ordinary course of activities.
 The computer should be operating properly during the period for which
the information is sought. Even if the computer was not operating during
such a period then the defect was not as such to affect the electronic
record or the accuracy of its contents.
 The information contained in the electronic record reproduced or is
derived from such information fed into the computer in the ordinary
course of the said activity.
A certificate is required by virtue of section 65-B if the statement is to be given, then
following is be duly regarded:

 Identifying the electronic record containing the statement and describing

how it was produced.
 Giving such particular of any device involved in the production of that
electronic record as may be appropriate for showing that the electronic
record was produced by a computer.
 Dealing with any of the matters to which the condition as provided
above.
Rules as to notice to produce: Section 66
This section lays down that a notice must be given before secondary evidence can
be received under section 65-A. Notice to produce a document must be in writing.
Civil procedure code,1908 and Code of criminal procedure,1973 provide for
provision regarding the production of notice and documents.
 37

Ingredients are as follows:

 Secondary evidence of the contents of the documents referred to in

Section 65, clause (a), shall not be given.
 Unless the party has given notice to other parties to produce it as is
prescribed by law.
 Notice is not necessary in the following cases:
 When the document to be proved is itself a notice.
 When, from the nature of the case, the adverse party must know that he
will be required to produce it.
 When the adverse party has obtained possession of the original by fraud
or force.
 When the adverse party or its agent has the original in court.
 When the adverse party or his agent has admitted the loss of the
document.
 When the possessor of the document is out of the reach or not subject to
the process of the court.
Proof of signature and handwriting of person alleged to have signed or written
document produced: Section 67
If the document is alleged to be signed or to have been written wholly or in part by
any person, the signature or writing or so much of the document as is alleged to be
in that person’s handwriting must be proved to be in his handwriting. Section 67A
provides for proof as to digital signature.

Provisions related to Attested documents

Section 68 of the act provides that if a document is required by law to be attested, it

shall not be used as evidence until one attesting witness has been called to prove the
execution, provided there is an attesting witness alive and is subject to the process
of the court. This section is not permissive or enabling. It lays down the requirement
which the parties have to observe so that a document can be held to be proved. The
principle underlying the section is that execution of the will must be proved by at
least one attesting witness.

Section 69 provides for the situation in which there is no attesting witness found. As
per this section, if no such attesting witness can be found, it must be proved that the
attestation of at least one attesting witness is in his handwriting and that the signature
of the person executing the document is in the handwriting of that person.
 38

As per section 70 of the evidence act,1872, the admission of a party to an attested

document of its execution by himself shall be sufficient proof of its execution as
against him, though it is a document required by law to be attested. This section
serves as a proviso to section 68. The effect of this section is to make the admission
of executant a sufficient proof of execution of document as against the executant
himself even it may be a document for which attestation is required by law. Owing
to this reason only, the document does not become binding on other parties or
persons.

Section 71 provides for a Proof when attesting witness denies the execution. If the
attesting witness denies or does not recollect the execution of the document, its
execution may be proved by other evidence. In Ram Ratan v. Bittan Kaur, it was
held that this section only operates if the attesting witness denies or does not recollect
the execution of the document or has turned hostile.
When a document is not required by law to be attested, then provision of section 72
applies and the document shall be proved as if it was unattested.

As per section 73, to ascertain whether a signature, writing or seal is that of the
person by whom it purports to have been written or made, any signature, writing, or
seal admitted or proved to the satisfaction of the court to have been written or made
by that person may be compared with the one which is to be proved, although that
signature, writing, or seal has not been produced or proved for any other purpose.

While section 73 A provides for proof as to verification of the digital signature. In

order to ascertain whether a digital signature is that of the person by whom it purports
to have been affixed the court may direct:

 That person or controller or the certifying authority to produce the

digital signature certificate.
 Any other person to apply the public key listed in the digital signature
certificate and verify the digital signature purported to have been affixed
by that person.

Provisions Regarding Public Document

Section 74 enumerates that the following are public documents:

1. Documents forming the acts, or records of the acts-

 39

2. Of the sovereign authority,

3. Of official bodies and tribunals, and
4. Of public officers, legislative, judicial and executive of any part of India
or the commonwealth, or a foreign country.
5. Public records kept in any state of private documents.
Documents are divided into two categories:

 Public
 Private

The section states what comes in the category of public documents. Section 75 states
that all other documents are private documents. Section 74-78 deal with:

1. Nature of public document, and

2. The proof which is given of them.
Section 74 defines their nature and section 76-78 deals with the exceptional mode of
proof applicable in their case. The proof of private documents is subject to the
general provisions of the act relating to the proof of documentary evidence contained
in section 71-73.

Public documents form an exception to the hearsay rule and their admissibility rest
on the ground that the facts contained therein are of public interest and the statements
are made by authorized and competent agents of the public in the course of their
official duty.

In Ram Jethmalani v. director CBI, it was held that statements recorded by police
officers under section 161 Cr.P.C are required by section 115(5) & (7) Cr.P.C read
together, to be furnished to the accused. Hence all earlier case, before this provision
was enacted in Cr.P.C 1973, which regarded such statement as a public document
entitled to the privilege against disclosure under section 123 of the evidence act
became out of date since then.

Presumptions as to documents

Section 79-90 Section deals with certain presumptions as to documents.

Section 79 provides that the court shall presume to be genuine every document
purporting to be a certificate, certified copy, or the document, which is by law
 40

declared to be admissible as evidence of any particular fact which purports to be

duly certified by any officer of central government or a state government, or by any
officer who is duly authorized by the central government. Provided that such
document is substantially in the form and purports to be executed in the manner
directed by the law in that behalf. This section proceeds upon the maxim Omnia
proesumuntur rite esse acta. It means all acts are presumed to be rightly done.
Though the courts are directed to draw the presumption in favor of an official
certificate, it is not a conclusive presumption, it is rebuttable.

Section 80 provides whenever any document is produced before any court,

purporting to be a record or memorandum of the evidence, or of any part of the
evidence given by a witness in a judicial proceeding or before any officer authorized
by law to take such evidence, or to be a statement or confession by any prisoner or
accused person, taken following the law, and purporting to be signed by any judge
or magistrate, or by any such officer, the court shall presume that the document is
genuine, that any statements as to the circumstances under which it was taken,
purporting to be made by the person signing it, are true and that such evidence,
statement or confession was duly taken.

Section 81 provides for presumptions as to gazettes, newspapers, private acts of

parliament, and other documents. This section casts a presumption on the courts to
presume documents purporting to be London gazette or any official gazette or to be
newspaper or journal and such documents to be genuine. Section 81 A is a
corresponding section and provides for the genuineness of documents in electronic
form.

Section 82 provides for presumption as to document admissible in England without

proof of seal or signature. These provisions have lost their relevance in today’s era
because India is now an independent nation and is not a colony of Britain. Section
83 relates to presumption regarding maps or plans made by the authority of
government.

Section 84 deals with presumption as to books and decisions printed or published

under the authority of government. While section 85 deals with presumption as to
power of attorney. According to section 85, the court shall presume that every
document purporting to be the power of attorney which is executed before Notary
public or any court, to be so executed and authenticated. Section 86 provides
presumption as to certified copies of foreign judgment and records.
 41

Section 87 provides for presumption as to maps and charts, provision regarding

telegraphic messages is dealt in section 88 of the act. Section 89 deals with
presumption as due execution of document not produced before the court. In Kodri
Smt. v. L.RS of Fakira, a document is shown to have remained unstamped for some
time after its execution, the party who relied on it must prove that it was duly
stamped.
While section 90 deals with documents more than 30 years old. Where any document
purporting or proved to be thirty years old, is produced from any custody which the
court in particular case considers proper, the court may presume that the signature
and every other part of such document, was duly executed and attested by persons.

What is Relevant Evidence?

All reality is relevant which is equipped for bearing any reasonable assumption as
to facts in issue or principal matter in dispute. Sir “Stephen,” said that relevancy
means a connection of event as cause and effect. By and large, the realities
significant to an issue are those actualities that are important for evidence or disproof
of reality in the issue. Such realities might be given in proof legitimately or
inferentially.

What is truly implied by ‘relevancy of fact’ is a fact that has a specific level of
probative power. They are not certainties in issue but rather may influence the
probability of reality in the issue.

Relevant evidence is auxiliary or collateral in nature, yet appropriate or likely in

offering ascend to a derivation of right or risk by a procedure of thinking.

A fact will be relevant only when it has a link with the facts in issue, but it is not
admissible. For example- communication between spouses during the marriage or
any professional communication or communication which is made regarding the
affairs of the state these all are not admissible but they are relevant. A particular fact
is reasonably connected to the main issue it can be easily ascertained by logic and
not by law. Therefore logical relevancy signifies a reasonable link between the facts.
Basically, it is a question of fact in which lawyer duty arises and they have to decide
whether to tender the proof in the court or not. The Relevant fact is given in evidence
to act from Section 5 to 55 and they are admissible in court.

Case – Knapp v. state

 42

In the American case of Knapp v. state, the standard of law expressed by the court
was that “the assurance of the determination of a particular thing of evidence lays
on whether verification of that evidence would sensible in general assistance settle
the essential issue at trial.

Essential ingredients of relevance

1. Relevancy is not totally dependent on law.

2. Relevancy is determined on the basis of practical experience, logic,
common sense, human experience and basic knowledge of affairs.
 43

What do you mean by relevancy of facts, What are the various provisions
related to relevance of facts. Explain with illustration and facts.

Relevant Evidence is evidence that makes a reality practically obligated to be

legitimate than it would be without confirmation. Relevant proof might be rejected
for unreasonable partiality, perplexity, or a waste of time. The relevant proof is
commonly permissible and irrelevant proof is never acceptable. Two main
fundamental standards on relevance:

1. Nothing is to be received which is logically not verified regarding the

matters which are required to be proved.
2. Unless and until the clear ground of law or policies excludes it, everything
which is verified or probative should come in. Relevancy act as a link
between a statement of proof and a statement that needs to be proved.
One fact is said to apply to one another when one is associated with the other in any
of the ways alluded to in the provisions of The Indian Evidence Act relating to the
relevancy of fact.

Indian Evidence Act does not give a particular meaning of relevancy or relevant fact.
It essentially depicts when one fact become applicable to another one.

Sec.5 to Sec.55 of Indian Evidence Act gives a few manners by which one fact might
be associated with another fact and in this way the idea of relevant fact can be
distributed. One fact is pertinent to another fact if they are associated with one
another in any of the ways as portrayed in Section 5 to Section 55. In the event, if a
fact isn’t so associated, then the fact is irrelevant.

A court may bar important proof when the probative estimation of the proof is
significantly exceeded by the peril of at least one of the accompanying: out of line
bias; confounding the issues; misdirecting the jury; undue postponement;
unnecessarily exhibiting aggregate proof.

Admissibility

All the relevant facts which are admissible by the court are called admissibility.
 44

As per the Section 136 of the Evidence Act, the final discretion of the admissibility
of evidence of the case lies with the judge. Section 136 of the Evidence Act states
that exactly when either assembling proposes to give proof of any reality or actuality,
the Lord justice may ask the social event proposing to give the proof how the alleged
truth, at whatever point illustrated, would be huge; and the judge will surrender the
verification if he envisions that the truth, at whatever point appeared, would be
relevant, and not something different.

Essential ingredients of Admissibility

1. The judge is the only person who determines relevancy and admissibility.

2. When an individual proposes to show proof of any fact, the judge may ask
an individual to explain ‘in what way’ the fact is relevant.

3. The judge would concede the particular demonstrated reality just if he is

content with the suitable reaction of the individual that it is, to be sure,
significant under either provision of S. 6 to 55. Hence the thought of
relevancy begins first and of admissibility later and the judge will concede
the reality only if it is relevant.

Relevant facts (Section 9)

Facts will help in supporting, refuting, clarifying or presenting significant realities

are additionally important under this section, for instance, if an individual is
absconding away not long after in the wake of being blamed for a wrongdoing, it is
applicable as lead ensuing and influenced by certainties in the issue. In Sainudeen v
State of Kerala (1992 Cr LJ 1644 Kerala), distinguishing proof of the blamed
through his voice was significant under this section.

This Section likewise covers test recognizable proof processions (TI parades). Its
utility was clarified by the Supreme Court in Ramanathan v State of TN (AIR 1978
SC 1201) expressing that the normal and old routine with regards to arranging
suspects for distinguishing proof by observers or by the unfortunate casualty winds
up fundamental where the personality of the culprit is obscure.

Case – Lakkshmandas Chaganla Bhatia v State

 45

Section 9 of the Evidence Act, 1872, brings out certain facts which can be treated as
applicable. On the basis of this case Lakshmandas Chaganlal Bhatia v. State, the
court laid down some of the following relevant facts:

1. Facts are important to clarify or present reality in issue or relevant fact.

2. Certainties that support or counter an induction proposed by a fact or truth
in issue or a relevant fact. Realities that set up the character of anything or
individual whose personality or identity is relevant. Substances which fix
the time and spot at which any reality in issue or noteworthy assurance
occurred. Certanities which shows the relationship of social events by
whom any reality in issue or fitting truth was executed.
Another section of the Indian Evidence Act which manages adequacy is Section 11.
Section 11 manages those substances which are not regularly noteworthy yet
somewhat wound up being significant in the event that they are conflicting with any
appropriate truth or they make the proximity or non-closeness of any relevant
sureness exceedingly more likely than not or fantastical.

Sheik Ketab-Uddin v. Nagarchand Pattak– In this case, it was held, that where
the executants of a record-holding presentations of cutoff purposes of property are
alive and don’t give their evidence, such records are not adequate around there.

Bibi Khaver v. Bibi Rukha,- In this case, the court said that all together that a
security truth might be passable as significant under this segment, the state of the
law is that:

The insurance truth must itself be developed by usually indisputable proof.

It must, when developed, bear the expense of a reasonable presumption or deducing

concerning the issue in the contest.

Numerous confinements are made in Section 11. R.v. Prabhudas– In a charge of

fraud, proof of ownership by the blamed for different records suspected to be forged
is prohibited.

Another constrainment referenced for the circumstance Bela Rani v. Mahabir. In this
case, the Section 11 is also obliged by Section 17-39. Besides, concerning the
appropriateness of declarations made by a person since perished, it has been held
 46

that except if on the off chance that they are acceptable in chapter 32 and Section 33,
Section 11 won’t profit to make them proof.

Conclusion

Relevancy is a test for admissibility. The topic of admissibility is one of the laws
and is controlled by the Court. In Section 136 of Evidence Act 1950, a variation is
made among relevancy and admissibility, on the off chance that it very well may be
demonstrated that the proof would be relevant whenever demonstrated, the court will
concede proof of it. All admissible evidence is relevant but all relevant evidence is
not admissible. An irrelevant truth isn’t allowable in court. Be that as it may, in
specific cases, proof which isn’t relevant under Section 5 to 55 may, in any case, be
acceptable.

Evidence is considered as more important in deciding cases over many years. The
power vested on the managing official in choosing whether a proof is permissible or
not is immense and must be limited through rules. the law identifying with proof
isn’t reasonable for the present age and it must be changed for the better working of
the legitimate framework. An unmistakable line must be drawn between the intensity
of the judge and the intensity of the judge all things considered a gigantic power
vested on individuals would just bring about defilement of intensity. the law is
incomparable and no man should given the optional capacity to twist it to his desire.
Each bit of proof which concerns the case must be admissible whether it is found
through illicit hunt or some other methods. There are many people among us who
envade the eyes of law forever because of inadmissible evidence.
 47

Which Fact need not to be proved. Explain with illustration and case law.

As a general rule of law, the party to a suit is required to establish his cause before
the Court by adducing either oral or documentary evidence which includes electronic
evidence. However, under certain scenarios, provided under the Indian Evidence Act,
1872, where the parties to a suit are not required to provide evidence in favor of their
assertions.

Section 56 to Section 58 of the Indian Evidence Act contains the provisions related
to non-imperativeness of admission of evidence by the parties to the suit before the
Court to endorse the credulity of their statements.

According to Section 56 of the Indian Evidence Act, 1872, the facts of which the
Court will take judicial notice need not be proved.

Simply put, any judicially noticeable fact does not require to be proven before the
Court. Now for comprehending this statement, first understanding the meaning of
the clause “taking judicial notice” is necessary.

This expression means recognizing something without proof of being existing or

truthful. Judicial notice is the acknowledgement by the Court on certain matters
which are so infamous or transparently established that their existential evidence is
deemed inessential. The clear reason behind this is that such facts are expected to be
within the ambit of knowledge of the Judge and therefore any attempt of proving
them would indirectly undermine the judicial competency.

According to Lord Stephen, certain facts are so notorious by nature or have such
authentic assertion and accessible publications that they do not require any proof.
The Court, if it is unknown to such facts, can inform itself about them, in prior to
taking evidence. These facts are deemed to be judicially noticed.

This Section has to be understood in unison with Section 57, reckoning the instances
when the Court shall take judicial notice such that adducing any evidence would be
unnecessary.

Facts of which the Court must take judicial notice

 48

According to Section 57 of the Indian Evidence Act, 1872, the Court shall judicially
notice the following facts:

 All existing laws within the territory of India;

 All previously enacted legislations or future legislations made by the UK
Parliament, and all local and personal legislations made under its direction;
 Articles of war for the Indian Army, or Navy, or Airforce;
This refers to the Articles contained in the Army Act (XLVI of 1950), for soldiers,
officers, etc.

The Parliamentary proceedings of the United Kingdom, the Indian Constituent

Assembly, and any other provincial or State Legislature;

This refers to all legislative and other proceedings by the Parliament of the United
Kingdom. Indian Constituent Assembly referred to the Central Legislature of the
British India, however, subsequent to Independence it refers to the legislative and
other proceedings held in the Upper House and the Lower House of the Parliament.
The provincial or the State Legislatures refer to the Legislative Assemblies located
in all the States constituting the Union of India. For Eg: the State of West Bengal,
Andhra Pradesh, Maharashtra, etc.

 The accession and the sign manual of the existing Sovereign of the United
Kingdom and Ireland;
Accession refers to the attainment or acquisition of a position of rank or power; and
Sign Manual is the signature of the Sovereign, by affixation of which it expresses its
pleasure either by order, or commission, or warrant. Here the Sovereign refers to the
King or Queen of the United Kingdom.

 The Seals of all the Indian Courts, the seals of all the Courts outside India
established under the jurisdiction of the Central Government or the
Representative of the Crown, the Seals of the Admiralty Courts and of
Public Notaries, and all other seals which any person is authorized of using
under the Constitution or a Parliamentary Act of the U.K. or an Act or
Regulation having a legal operation in India;
 The accession to office, names, titles, functions, and signatures of the
persons occupying any public office, in any state, if the fact of their
appointment has been declared by notification in the Official Gazette;
 49

 The recognition of the existence, title, and national flag of every State or
Sovereign by the Government of India;
 The time divisions, the geographical divisions of the world, public festivals,
facts and holidays which are promulgated by notification in the Official
Gazette;
 The territories which are located under the paramountcy of the Government
of India;
 Any “notification” related to commencement, continuance, and
termination of animosity between any other State or body of persons and
the Government of India;
In simpler words, any declaration by the Government of India in relation to the
beginning of hostility, continuation of hostility, and end of such hostility. For Eg:
Declaration of War, continuation of war, and end of war.

 The identity of the judicial officers and members, including their deputies,
subordinate officers, assistants, including all the officers acting towards
executing the judicial process. Also of all the advocates, the attorneys, the
proctors, the vakils, the pleaders and other persons legally authorized to
appear or act before the Court;
 The rule of the road, either at land or at sea.
In case of road, the horses and all other forms of vehicle should keep to the left side
of the road. At sea, it is the rule that ships and steamboats, on coming across, shold
port their helms for passing on the port or left side of each other; steam boats should
stay away from the route of sailing ships; and every vessel, while overtaking another
vessel should stay away from its way.

In all these cases, including all matters related to public history, literature, science
or art, the Court may refer to appropriate books or documents.

On being called upon to take judicial cognizance by any person, the Court may refuse
to do so unless and until that person produces any such book or document which it
may consider necessary to enable it to do so.

Facts admitted need not be proved

According to Section 58, no fact requires to be proved in any suit which the parties
to the suit, or their agents agree of admission at the hearing, or which they agree to
 50

admit in writing, prior to the hearing or which they under any existing rule of
pleading are deemed to have been admitted through their pleadings.

However, the Court by exercising its discretionary potency may require the
admission of such facts in some other way for submission.

Thus, this Section contains three circumstances:

1. Facts which the parties to the suit or their agents agree to admit at the
hearing.
2. Facts which the parties to the suit or their agents agree to admit, prior to
the hearing, in writing.

3. Facts deemed to be already admitted by the parties to the suit through

pleadings.

Case laws

Onkar Nath and Ors v. the Delhi Administration

In this case, the appellants were Union Leaders of the Northern Railwaymen’s Union.
They were accused of instigating other workmen towards striking and were booked
under Rules 118 & 119 of the Defence Of India Rules, 1971. They were sentenced
with 6 months of rigorous imprisonment by the Metropolitan Magistrate of Delhi.
The conviction order was upheld in a Revision Appeal by the Additional Sessions
Judge of the Delhi High Court.

However, the previous judicial decisions were set aside by the Supreme Court, which
observed that mere summary instead of the exact words cannot be deemed as the
ground for conviction. The statement of the only witness may although be truthful
cannot be relied upon, in absence of the exact words which were delivered at the
meeting by the accused. The list of facts of which the Court shall take Judicial notice
under Section 56 to be read with Section 57 is non-exhaustive, and shall, therefore,
depend upon the discretion of the Court and vary from case to case.

S. Nagarajan v. Vasantha Kumar & Anr.

 51

Here, in this case, the respondents were husband and wife by relation and had 2
shops located at Trivandrum. Their residences were also located in the vicinity of
those shops.

The petitioners, i.e. the Officers of the Customs Preventive and Intelligence Unit, on
obtaining information that foreign goods were being sold in those shops and also
stored in the houses of the respondents, searched the shops and also the house
premises and seized them.

A trial was held under the Customs Act, 1962 with the prosecution asserting that the
respondents were guilty of committing an offense under Section 135(1) of the said
Act.

However, the respondents contended that the seized and confiscated goods were not
for sale and also the notifications by the Central Government are not laws for
consideration under Section 57(1) of the Indian Evidence Act, 1872, thereby
pleading not guilty.

The Trial Court maintained the contention and ordered in favor of the respondents
to which the petitioners appealed before the High Court of Kerala.

The High Court of Kerala after making due observations and considerations,
overruled the trial Court’s decision and held that Central Government’s notifications
are indeed laws within the ambit of Section 57(1) and therefore the respondents were
held guilty.

Subhash Maruti Avasare vs State Of Maharashtra

In this case, the appellant along with the accomplices of four others were found
guilty of murdering one Babdya and were convicted under Section 323 of the Indian
Penal Code by the Trial Court.

The appellant was a friend of the main accused Subhash Maruti Avasare and was
also acquainted with the family of the deceased. The appellant had gone to inquire
of the whereabouts of the deceased at his house and was informed by his mother of
the deceased’s absence at that time. The deceased after returning had been informed
about it and then he allegedly disclosed to her mother that the accused no. 3 (Rakesh
Tukaram Pawar) had asked for a bottle of beer from him and on his refusal had
 52

slapped him. He further disclosed that an attempt of assault with a knife was also
made on him but he had managed to escape.

On 30.10.1996 at about 6:30 PM, i.e the day of the incident, the deceased had gone
to a clinic of a doctor with his wife for medical check-up of their ailing son. After
some time, the victim’s wife runningly returned home and informed the witness no.1
(the deceased’s mother) that some people had picked up a quarrel with her husband
in front of the hospital of Dr. Babar.

The prime witness went to the spot with her daughter-in-law and witnessed her son
being mortally stabbed by the appellants. By this time the victim’s father and his son
had also arrived at the spot, and the accused-appellants escaped in the meantime.
The deceased was first taken to a local hospital and then transferred to the Sassoon
hospital, where he died due to his injuries.

A post mortem was conducted and the cause of death was deemed to result from 7
succumbed external injuries and 5 internal injuries.

The Trial Court after observing the reports and testimonies of the accused persons
and witnesses of the cases convicted the accused persons. The decision of the Trial
Court was maintained both by the High Court of Maharashtra and the Supreme Court.
 53

Define Oral Evidence with case laws and illustration

All of us know what importance evidence holds under any court proceedings.
Evidence is a certain reliable and relevant set of facts which proves or abstains
from proving any matter; there is a prescribed manner on which the cycle of
evidence works which has been divided into two main heads- Oral and
Documentary evidence by the Evidence Act 1872. In this article we will be dealing
with oral evidence, how is it made and everything which will make us understand
Oral Evidence. Oral Evidence is dealt with under Section 59 and 60 of the
Evidence Act, 1872. Oral evidence is defined under section 3 (under evidence
head) which explains that “All statements which the court permits or requires to be
made before it by witnesses, in relation to matters of fact under inquiry, such
statements are called as oral evidence.”

The word ‘Oral’ itself describes its meaning as something spoken or expressed by
mouth; so anything which is accepted in the court in relation to the inquiry and
expressed by any witnesses who are called in the trial is termed as oral evidence.
Oral Evidence also includes the statements made by people in signs and writing
forms (inclusive of people who cannot speak).
Section 60 of the Indian Evidence Act says that oral evidence must be direct, that
is, if it refers to

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

This section, subject to the proviso excludes opinions given second-hand. The use
of the word “must” in the first clause of the section imposes a duty on the court to
exclude all oral evidence that is not “direct”, whether the party against whom it is
tendered objects or not.

The word “direct” is opposed to mediate or derivative or “hearsay”.

 54

The provisions of law laid down by this section will be clear by taking examples.
A files a suit against B for defamation. The allegations in the plaint are that B said
that A had committed burglary in Calcutta.

In this case, the witnesses who may come for A must say that B said in their
presence that A committed theft and they heard it. A witness who wishes to depose
that B said those defamatory words before C and then C told him about that, will
not be allowed to say so because here the evidence will not be direct. This witness
derives knowledge from C and his evidence is forbidden by this section.

In Hylife v. Murray, (1740) 2 All 58 at 60, it was observed where a person is a

witness of fact, his testimony is regarded as direct evidence, even if he is not able
to recollect the facts with precision and has to rely upon his “belief” as to what he
saw or heard.

“A witness who perceived an event with his senses is not confined, when giving an
account of it, to what he can swear to with complete certainty or with complete
precision as it has long been established that, in giving evidence of what he saw or
heard, he may swear, “to the best of his belief”, is sufficient, unless there is a
contrary indication to the same.”
Thus, oral evidence must be direct. This means that a witness can tell the court of
only a fact of which he has first-hand knowledge (eye-witness) in the sense that he
perceived the fact by any of the five senses. If, on the other hand, the statement
was not made in his presence or hearing and he subsequently came to know of it
through some other source, he cannot appear as a witness, for his knowledge is a
derived knowledge and is nothing but a “hearsay” and it is a maxim of law that
hearsay evidence is not relevant.

The doctrine of dying declaration is enshrined in section 32 of the Evidence Act,

1872 as an exception to the general rule contained in section 60 of the Evidence
Act, which provides that oral evidence in all cases must be direct i.e. it must be the
evidence of a witness, who says he saw it. The dying declaration is, in fact, the
statement of a person, who cannot be called a witness and, therefore, cannot be
cross-examined. Such statements themselves are relevant facts in certain cases.