AL-AMEEN COLLEGE OF LAW

VI SEMESTER OF 3 YEARS AND X SEMESTER 5 YEARS LL.B.

LAW OF EVIDENCE

DURATION: 3 HOURS MAX MARKS: 100

INSTRUCTIONS: 1. Answer all 5 questions.

2. One essay type and one short note question or problem

from each unit have to be attempted.

3. Figures to the right indicate marks.

4. Answers should be written either in English or Kannada

completely.

UNIT-I

1.(A) EXPLAIN THE RELEVANCY OF INTRODUCTORY OR EXPLANATORY

FACTS. Marks-15

SYNOPSIS:
Definitions
Scope
Illustration
Conclusion.

Section 9: Facts necessary to explain or introduce relevant facts, or

which support or rebut an inference suggested by a fact in issue or
relevant fact, or which establish the identity of anything or person
whose identity is relevant, or fix the time or place at which any fact in
issue or relevant fact happened, or which show the relation of parties by
whom any such fact was transacted, are relevant in so far as they are
necessary for that purpose.
Scope: under Section 9 the following facts are relevant:-
1. Facts which are necessary to explain a fact in issue or relevant fact.
2. Facts which are necessary to introduce a fact in issue or relevant fact.
3. Facts which support an inference suggested by a fact in issue or
relevant fact.
4. Facts which rebut an inference suggested by a fact in issue or
relevant fact.
5. Facts which establish the identity of anything or person whose
identity is relevant.
6. Facts which fix the time or place at which the facts in issue or
relevant fact happened.
7. Facts which show the relation of parties by whom any such fact was
transacted.

1. Facts which are necessary to explain a fact in issue or relevant fact:

This kind of evidence which is considered separately and alone from
other evidence would not amount to anything; but if it is taken into
consideration in connection with some other facts, proved in the case it
explains and illustrates them. Sometimes it gives strength to the
evidence given by the other side. Such facts which are necessary to
explain the fact in issue or relevant are relevant under section 9. The
explanatory evidence is not relevant in itself. An explanation made
equally will be intended to diminish the force of the evidence produced
by the adversary.

2. Introductory facts: In conducting a suit or proceedings we cannot

jump directly to the main fact. The judge should look out for some
introductory matter and lookout for circumstances leading up to it
and the result that follows it. These facts which are introductory of a
relevant fact are often of a great help in understanding the real
nature of the transaction, and in supplying the missing link.

3&4. Facts which support and facts which rebut an inference: there are
certain facts which are neither relevant as facts in issue nor as relevant
facts. But they either support the inference suggested by the fact in
issue or relevant fact or they contradict the facts in issue or relevant
facts and for the purpose they are relevant.

5. The facts establish the identity of anything or person: in judicial

proceeding, civil or criminal, the courts have very often to determine the
identity of persons or things. it is held that identification of accused by
the witness in the court is substantial piece of evidence where the
accused is known previously by the witness. However, when the accused
had been seen by the witness for quite number of times at different
point of time and places no test identification is necessary.

The object of conducting such identification parade is two fold: first is

to enable the witnesses to satisfy themselves that the prisoner whom
they suspect is really the one who was seen by them in connection with
the commission of the crime. Second is to satisfy the investigating
authorities that the subject is the real person whom the witnesses had
seen in connection with said occurrence.

Apart from the identification parade, identity by voice and gait, finger
print, foot marks, identification of accused during night, family
resemblance, sniffer dogs and things.

6. Facts which fix the time or place in issue or relevant facts:

The fact of time and place become very important when the accused
pleads alibi.

8. Facts showing relations: facts showing relationships of parties by

whom such facts was transacted are relevant.

Illustration:

1. The question is, whether a given document is the will of A.

The state of A’s property and of his family at the date of the alleged will
may be relevant facts.

2. A, accused of theft, is seen to give the stolen property to B, who is

seen to give it to A’s wife. B says as he delivers it- “a says you are to
hid this” B’’s statement is relevant as explanatory of a fact which is
part of the transaction.

Conclusion: Section 9 is important and should not be lost in sight while

applying. Collateral facts enumerated under this section are ordinarily
not admissible in evidence unless appears that such facts are directly
connected with the facts in issue. In other words, explanatory or
introductory facts can be proved if they have a direct bearing on the fact
in issue.

OR

DEFINE ADMISSIONS. STATE THE PERSONS WHOSE ADMISSIONS ARE

RELEVANT.

SYNOPSIS:

Introduction
Definition
The list of persons whose admissions are relevant
Conclusion

Introduction: Admission plays a very important part in judicial

proceedings. If one party to a suit or any other proceeding proves that
the other party has admitted his case, the work of the court becomes
easier. Section 17 to 23 of the Indian Evidence Act deals with
Admissions. Admission is positive act of acknowledgement or
confession. It is conscious and deliberate act and not something which
would be inferred. A party by voluntary acknowledgement of the
existence of certain facts during the judicial or quasi judicial proceedings
can concede as true or valid the allegation made in proceeding or in
notice.

Definition: Section 17 to 20 define admission. Section 21 gives as to

which party to the proceedings can use admission/ persons whose
admissions are relevant. Section 22 excludes the oral evidence against
the contents of documents. Section 23 deals with relevancy in civil cases
of admission made upon an expressed condition that it shall not be
given in evidence.

Section 17,18,19 and 20 together define admission. Section17 lays down

that statements, oral or documentary, which suggest any inference to
any fact in issue or relevant fact made by admissions.
The list of persons whose admissions are relevant:
Admission to parties to proceedings: Under the designation of parties
the law includes not only those who appear on the record in that
capacity, but also persons who are actually parties without so appearing.
Persons who are not parties on the record but who are interested in the
subject matter of the suit are considered but the law as real parties in
interest and accordingly their admissions have the same weight as
though they were parties on record.
Admission by agent: The statements by agent are admissible against
their principals for the reasons similar to those which govern the
statement of coparceners. It should be borne in mind that admissions of
the agent bind the principal only when made during the continuance of
the agency. The agents should be authorised either expressly or
impliedly to admit.
Admission by agents in criminal cases: The rules of admissibility are, in
general, the same for the trial of civil and criminal cases. one principle in
criminal jurisprudence is that he who commands or procures a crime to
be done, if he done, if it is done is guilty of the crime and the act is jos
act. Sometimes it so happens that the agent is quite innocent and the
principal is held guilty as in the cases of infants and idiots.
Admissions by pleaders, attorneys and counsels in civil cases: if the
client appoints the pleaders, attorneys and counsels in civil cases and
gives him full authority to conduct his case and gives him full
information about facts, then the admission made by such a counsel
under his signature without some serious mistake is conclusively binding
upon the client and cannot afterwards be withdrawn. But an admission
of law, where it is erroneous, by the vakil is not binding on the client.
Admission by counsel in criminal cases: the law makes no provision for
admission by counsel in criminal case. No admission by counsel can
relieve the prosecution of the duty to prove the case. But when the
counsel of the accused appears as witness to prove some facts tje above
principle does not apply.
Statements made4 in representative character: Where the party sues or
is sued in a representative capacity, the representative is different from
the ordinary capacity and only admissions made in former quality are
receivable.
Persons having any proprietary or pecuniary interest: Where several
persons are jointly interested in the subject matter of the suit, the
general rule is that the admissions of any one these persons are
receivable against himself and fellows, whether they all be jointly suing
or sued or whether an action be brought in favour of or against any one
or more of them separately, provided the admissions relate to the
subject ,after in dispute and made by the declarant in his character of a
person jointly interested with the party against whom the evidence is
tendered. In general the statement of defence made by one defendant
cannot be read in evidence for or against his co-defendant.
Admissions of persons having joint interest: An admission is ordinarily
in evidence against the party making it. But admission of one party may
be given in evidence against another, when the admission is sought to
be used has a joint interest with the party making the admission, in the
subject matter of the thing to which his admission relates the statement
made4 by a person who has any proprietary or pecuniary interest in the
subject matter of the proceeding or persons having derivative interest
during the continuance of the interest or admissions.
Persons from whom the parties derive interest: a former owner of a
land is so identified in interest with a subsequent owner, holding under
the same title, that his respecting the title, made while in possession and
vested with the title, are receivable in evidence. This evidence is based
on the theory that the self interest involved in the ownership of the title
is sufficient guarantee for the truthfulness of the statement against an
interest made by the owner. It must be borne in mind that the
statement of one person is binding upon the other only when the latter
derives his title through the former.
Admissions by person whose position must be proved as against a
party to a suit: when two parties are litigating, statement of any one of
them made prior to the litigation may be proved at the trial if it amounts
to admission. Ordinarily statements by statements to a suit or
proceeding are not relevant as against the parties.
Admission by persons expressly referred by party to a suit: This is
another class of admission of persons other than the parties when a
party refers to a third person for some information or an opinion on
matter in dispute, the statement made by third person are receivable as
admission against the person referring.

Q.No.1. (b) A SUES B AS LIBEL CONTAINED IN A LETTER FORMING PART

OF A CORRESPONDENCE. LETTERS BETWEEN THE PARTIES RELATING TO
THE SUBJECT OUT OF WHICH THE LIBEL AROSE, AND FORMING PART
OF THE CORRESPONDENCE IN WHICH IT IS CONTAINED, ARE THESE
FACTS RELEVANT.
Section 6 of Indian Evidence Act: State that Relevancy of facts forming
part of the same transaction. In this case even though the facts which,
though not in issue, are so connected with fact in issue as to form part of
the same transaction are relevant, whether they occurred at the same
time and place or at different times and places.

In this, instant case even though the letters were not depicting the libel
it is still relevant because the letters between the parties were related to
the subject out of which the libel arose and correspondence of this
letters could be considered as relevant facts in this instant case.

OR

MOTIVE, PREPARATION AND PREVIOUS OR SUBSEQUENT CONDUCT.

Section 8: any fact is relevant which shows or constitutes a motive or

preparation for any act in issue or relevant fact.

Section 8: lays down the provisions relating to the relevancy of three

principal facts, which are very important in connection with every kind
of civil or criminal cases. They are:

1. Motive
2. Preparation; and
3. Conduct.

It lays down that (1) a fact which shows or constitutes a motive for any
fact in issue or relevant fact is relevant; (2) a fact which constitutes or
shows preparation for an for any fact in issue or relevant fact is relevant;
(3) previous or subsequent conduct of any party or of any agent to any
party too any suit or proceeding in reference to such suit or proceeding,
or in reference to any suit or issue or relevant fact, are relevant provided
such conduct influences or is influenced by any fact in issue or relevant
fact; (4) previous or subsequent conduct of any person an offence
against whom is the subject of any proceeding or suit is relevant
provided such conduct influences or is influenced by any fact in issue or
relevant fact; (5) statements accompanying and explaining acts; (6)
statements made in the presence and hearing of a person whose
conduct is relevant provided the statement affects such conduct.

Motive:

There is any act without a motive. Motive is the moving power which
implies one to an act. It is the inducement for doing the act. It is an
emotion or state of mind, which leads a man to do an act. Motive by
itself is no crime, however heinous it may be. But once the crime has
been committed, the evidence of motive becomes important. therefore,
evidence of motive for the crime charged is admissible. The absence or
presence of a motive and evidence of preparation, previous attempt,
previous or subsequent conduct of the parties are relevant as they help
in proving or disproving a fact in controversy.

Motive differs from intention. Intention refers to immediate

consequences, whereas, motive refers to ultimate purpose with which
the act is done. Motive cannot always be shown directly. It has to be
inferred from the facts and circumstances in evidence.

Preparation: preparation consists in arranging the means necessary for

the commission of a crime. Every crime is necessarily preceded by
preparation. The second stage in Commission of a crime is preparation,
which is punishable in certain cases. The preparation on part of the
accused may be, to accomplish the crime, to prevent discovery of crime
or it may be to aid the escape of the criminal and avert suspicion.

Conduct: conduct is what a person is in the estimation of others.

Conduct is different from the character. The relevancy of the conduct of
the following persons is admissible in evidence. They are as follows:

1. Parties to the suit and their agents.

2. Persons, an offence against whom is the subject of proceedings.

The conduct of any person is admissible only against himself and not
against any other person. The conduct of an accused is not, therefore,
admissible, against a co-accused.
Conditions of admissibility: the conduct is admissible only if the
following conditions are satisfied:

1. It must be in reference to the suit or proceeding or in reference to

any fact in issue therein or relevant thereto.
2. It must directly influence or be influenced by any fact in issue or
relevant fact.

The conduct remains inadmissible if any one of the above two conditions
is not satisfied.

UNIT-II

2(A) WHAT IS CONFESSION? STATE THE CONDITIONS OF THEIR

RELEVANCY.

Section-24: confession caused by inducement, threat or promise when

irrelevant in criminal proceeding.

Meaning and definition: The expression Confession means a statement

made by an accused admitting his guilt. It is an admission or
acknowledgement as to commission of an offence. If a person accused of
an offence makes a statement against himself, it is called confession or
confessional statement. This section comes under the heading of
Admission so it is clear that the confession are merely one species of
admissions.

Mr. Justice Stephen in his Digest of the law of Evidence defined

confession as “ Confession is an admission made at any time by a person
charged with a crime stating or suggesting the inference that he
committed that crime”. The statement of the accused will amount to a
confession if it fulfils many of the two conditions:

1. If he states that he committed the crime he is charged with, or

2. If he makes a statement some inference may be drawn that he might
have committed the crime.

It is a rule of universal law that a person may be convicted on the basis

of his confession made in a judicial proceeding. The underlying principle
is enshrined in two Latin maxims as stated below:
1. Confessio in Judicio Omini Probatione Major Est: it means confession
in judicial proceedings is greater than any other proof.
2. Confessio Facta in Judicio Est Plena Probatio: it means confession is
the absolute proof.

Evidentiary Value of confession:

Confessions are of two kinds namely- judicial and extra judicial.

Confessions made during the course of judicial proceeding are called
Judicial Confession. Confessions made outside the course of judicial
proceedings are called Extra judicial Confessions.

Confession, whether it is judicial or extra judicial, must be clear and

unequivocal. Judicial confessions should be distinguished from extra-
judicial confession. No reliance can be placed on confessions which are
in general or vague terms.

A confessional statement made by the accused before a magistrate is a

good evidence and accused be convicted on the basis of it. A confession
can obviously be used against the market of it and is in itself sufficient to
support his conviction.

Rajasthan High court has also held that the confession of an accused
person is substantive evidence and a conviction can be based solely on a
confession. The law does not require that a confession must be
corroborated before it can be acted upon. It is the duty of the court to
decide whether it believes a confession or not. Thus the court must
apply double test:

1. Whether the confession was made free, voluntary and genuine

2. If so, whether it is true and trust worthy.

Normally speaking, it would be quite safe, as a matter of prudence if not

of law to base a conviction for murder on the confession of the alleged
murder by itself and without more. It would be extremely unsafe to do
so when the confession is open to a good deal of criticism and has been
taken in the jail without adequate reason and when the story of murder
as given in the confession is somewhat hard to believe.
 The value of extra judicial confession is very weak piece of evidenced.
The extra judicial confession must be received with great care and
caution. It can be relied upon only when it is clear, consistent and
convincing. There are three things which the prosecution must establish.

First, the confession was made.

Secondly, that evidence of it can be given that is to say that it was

voluntary, and

Thirdly, that it is true.

OR

WHAT IS MEANT BY DYING DECLARATION? EXPLAIN ITS EVIDENTIARY

VALUE.

SYNOPSIS:

Meaning and definition

Illustration
Reasons for admissibility of dying declaration
Conditions
Evidentiary value of dying declaration.
Conclusion

Meaning and definition: Under Section 32, statements written or verbal, of

relevant facts when made by a person:

i. who is dead
ii. who cannot be found
iii. who has become incapable of giving evidence or,
iv. whose attendance cannot be procured without an amount of delay
or expenses which under circumstances of the cases, appears to the
court unreasonable and inadmissible.
1. when it relates to the cause of his death, or to any of the
circumstances of the transaction which resulted in his death, or
2. when it is made in course of business, or
3. it is made against the interest of the maker, or
 4. when it gives its opinion as to public right or custom or matters of
general interest, or,
5. when it relates to existence of relationship, or
6. when it is made in will or deed relating to family affairs, or
7. when it is made in document relating to transactions relating to
section 13.

Meaning of dying declaration: “ a dying declaration is a declaration written or

verbal made by a person , as to the cause of his death or as to any of the
circumstances of the transaction, which resulted in his death.

Illustration: A has been attacked by B. If A, shortly before death, makes a

declaration holding B, responsible for his injuries, it is called dying declaration.

Reasons for admissibility of dying declaration:

Dying declaration is admissible for the following two reasons:

1. As the victim is sole eye witness, exclusion of his evidence defeats the
ends of justice.
2. Declarations made by a person under expectation of death are
presumed to be true.

Conditions: For admissibility of dying declaration, the following conditions are

to be satisfied:

1. The person making the statement must have died

2. Injuries must have caused the death.
3. Statement must have been made as to cause of his death or as to
circumstances of the transaction resulting in his death.
4. The cause of his death must be in question.
5. The person making statement must be in a fit condition to make the
statement.
6. The statement must be complete.
7. Declaration must be competent.

Evidentiary value of dying declaration: the evidentiary value of the dying

declaration will vary according to the circumstances of a particular case in
which it is made. While considering the value of dying declaration, the courts
take into account the whole but not a part of it. It cannot be allowed as sole
basis for conviction for the following reasons:

1. The declarant is not subject to cross-examination.

2. The declarant may be in a state of confusion.
3. The declarant may take last opportunity to take revenge against his
enemies.

Conclusion: Pakala Narayana Swamy Vs. King Emperor is a leading case. In

this case the court (Privy Council) made it clear, that the evidence of any
such circumstances must be proximately related to the actual occurrence
only then it shall be admissible in evidence as dying declaration.

Q.No. 2.(B) A WAS CALLED TO POLICE STATION FOR INTERROGATION.

DURING INTERROGATION ‘A’ COMPLAINED OF SEVERE STOMACH PAIN.
HE WAS TAKEN TO HOSPITAL IN A POLICE VAN, WHILE IN HOSPITAL, HE
CONFESSED TO A DOCTOR THAT THE COMMITTED ROBBERY. IS THE
CONFESSION ADMISSIBLE?

Section 32 (1) of the Evidence Act states that the dying declaration is that
the statement made by a person to the cause of his death or as to any of
the circumstances of the transaction which resulted in his death and such
details which fall outside the ambit of this are not strictly within the
permissible limits as laid down in the section.

The section is clear that such statements are relevant whether the person
who made them was or was not at the time when he made the statements
was under the expectation of death.

In this instant case the declarant was neither in contemplation of death nor
was the death due to the injuries. Hence the confession made by A could
not be considered as dying declaration.

A SUES B FOR TRESPASS ON HIS LAND. B ALLEGES THE EXISTENCE OF A

PUBLIC RIGHT OF WAY OVER THE LAND, WHICH A DENIES.

SECTION-42- Relevancy and effect of judgments, orders or decrees,

other than those mentioned in Section 41, are relevant if they relate to
 matters of a public nature relevant to the enquiry, but such judgments,
orders or decrees are not conclusive proof of that which they state.

In this case the existence of a decree in favour of the defendant, in a suit

by A against C for a trespass on the same land, in which C alleged the
existence of the same right of way, is relevant, but it is not conclusive
proof that the right of way exists.

UNIT-III

3(A) WHAT ARE PUBLIC DOCUMENTS? STATE HOW PUBLIC DOCUMENTS ARE
PROVED?

SYNOPSIS:

Introduction
Section 73 Public documents
Proof as to public documents
Conclusion

Introduction: in Evidence Act, the Documents have been divided into two
groups:

1. Private Documents; and

2. Public documents.

Public documents has been defined under section 74 and section 75

defines private documents.

Section 74: Public Documents: the following documents are public

documents:

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

(i) Of the sovereign authority.
(ii) Of official bodies and tribunals, and
(iii) Of public officers, legislative, judicial and executive, of any part of
India or of the Commonwealth, or of a foreign country.
2. Public records kept in any state of private documents.
The mere fact that its copy is in office does not lead to the inference that it
is a public document. It must be prepared by the public servant in his
official duty.

Eg: An electoral roll, records maintained by revenue officers, documents

issued by the concerned Government Department, public records, original
will, registered documents, memorandum of Association and Articles of
Association of a company are public documents.

Section 76: Certified copies of public document: Every public officer having
custody of a public document can give any person on demand a copy of it
together with a certificate that it is a true copy of such document. Such
certificate should be dated and subscribed by such officer with his name
and his official title. It should also be sealed, if such officer is authorised by
law to make use of a seal. Such copies so certified shall be called certified
copies.

Section 78: Proof of official documents: the following public documents

may be proved as follows:

1. Acts, orders or notifications of the Central Government in any of its

departments, or of the Crown Representative or of any of its state
government or any departments any state Government, by records of
the departments, certified by the heads of those departments
respectively, or by any document purporting to be printed by order of
any such government or; as the case may be, of the Crown
Representative:
2. The proceedings of the Legislatures, by the journals of those bodies
respectively, or by published Acts or abstracts, or by copies purporting
to be printed by order of the Government concerned.
3. Proclamations, orders or regulations issued by Her Majesty or by Privy
Council, or by any department of Her Majesty’s Government, , or by
copies or extracts contained in the London Gazette, or purporting to be
printed by the Queen’s Printer.
4. The Acts of the Executive or the proceedings of the Legislature of a
foreign country, by journals published by their authority, or commonly
received in that country as such or by copy certified under the seal of
 the country or sovereign, or by a recognition thereof in some Central
Act.
5. The proceedings of a municipal body in a State, by a copy of such
proceedings, certified by the legal keeper thereof, or by printed book
purporting to be published by the authority of such body.
6. Public documents of any other class in a foreign country, by the original,
or by a copy certified by the legal keeper thereof, with a certificate
under the seal of a Notary Public, or of an Indian Council, or diplomatic
agent that the copy is duly certified by the officer having a legal custody
of the original, and upon proof of the character of the document
according to the law of the foreign country.

Conclusion: This section gives the method of proof of the document

mentioned in the section. A newspaper is not one of the documents
referred in section 78,(2) by which an allegation can be proved.

OR

EXPLAIN THE RULE OF EXCLUSION OF HEARSAY EVIDENCE AND STATE

EXCEPTIONS.

SYNOPSIS:

Introduction
Section 60
Direct Evidence (Best Rule of Evidence)
Hearsay evidence
Rule of exclusion of Hearsay evidence
Exceptions
Introduction: The Evidence given by the witness may be oral or documentary.
All facts except the contents of documents may be proved by oral evidence.
Thus oral evidence is the evidence which is confined to words spoken by
mouth. Oral evidence if worthy of credit is sufficient without documentary
evidence to prove a fact or title. In simple words, the evidence of witnesses
given oral is called oral evidence. Oral evidence includes statements of
witnesses before the court and with the permission of the court.
Section 60: Oral evidence must be direct- Oral evidence must, in all cases
whatever, be direct, that is to say-

It refers to a fact which could be seen, it must be the evidence of a witness

who says he saw it;

If it refers to a fact which could be heard, it must be the evidence of a witness

who says he heard it;

If it refers to a fact which could be perceived by any other sense or in any other
manner, it must be the evidence of a witness who says he be perceived by any
other sense or in any other manner,

If it refers to an opinion or to the grounds on which that opinion is held, it must

be the evidence of the person who holds that opinion on those grounds:

Hearsay evidence: the word hearsay is used in various senses. Sometimes it

means whatever a person is heard to say; sometimes it means whatever a
person declares on information given by someone else.

Generally Hearsay evidence is no evidence at all. Hearsay evidence is that

evidence which is not based upon personal vision or hearing, but based on the
learning of the news through the medium of a third person.

For eg: if A says something to B and B comes and gives evidence in a court,
then it is hearsay evidence. Since hearsay evidence may lack truth, veracity and
is subject to rumours etc., it cannot be relied on.

Reasons for Exclusion of Hearsay evidence:

No single reason can be assigned for its exclusion. The following are the
reasons for exclusion:

1. The evidence is not given on oath or under personal responsibility by the

original declarant.
2. It cannot be tested by cross-examination.
3. It supposes some better evidence and encourages substitution of
weaker for stronger evidence.
4. It has a tendency to prolong legal investigation.
5. It a weak type of evidence
 6. As truth depreciates in the process of repetition, it is not reliable.
7. Its reception will increase opportunities for fabrication.

Exceptions :

Hearsay evidence is no evidence except for certain exceptions. In other

words hearsay evidence is admissible under the following circumstances:

1. Res Gestae (statements which form part of the same transaction Sec 6).

2. Admissions and Confessions (Section 17-23 and 24-30)

3. Statement by a person who cannot be called as witness (Section 32 Dying

declaration)

4. Evidence given in the former proceedings (Sec 33)

5. Entries in the books of accounts kept in the ordinary course of business

(Sec-34)

6. Statements in public Documents (Sec-35).

7. Opinions of Experts (Sec-45)

8. Statements contained in public documents (Sec-77)

9. Learned treatises.

10. Visual display of video-recording

11. Observation report of the investigating officer.

Q.No.3.(b) RELEVANCY OF CHARACTER IN CIVIL AND CRIMINAL CASES

Meaning of Character: “Character is the combination of quality distinguishing

a person, the individuality of which is the product of nature, habits and
environment”.

Section 55 defines character as includes both reputation and general

disposition which are the inherent qualities of the person. Reputation means
what is thought of a person by others or otherwise called public opinion.
Disposition refers to the whole personality.

In evidence the good character of the person is always relevant whereas the
bad character is also relevant perhaps not admissible. It is only to prove the
good character of the person the bad character of a person is allowed.

Relevancy of Character in civil case and criminal case:

In civil cases, character of any person concerned is not admissible. There are
certainly cases in which character is a fact in issue or a relevant fact. Eg:
defamation, character of female chastity for an action for breach of promise
for marriage.

The good character of an accused is always relevant and admissible in criminal

cases. But the bad character of the accused is not considered. There are two
exceptions:

Firstly, if the accused gives evidence of his good character, and then the
prosecution can disprove it by giving evidence of his bad character.

Secondly when the fact in issue is the bad character of the offender, then the
character of the person is admissible. For Eg; A previous conviction of the
accused is an evidence of his bad character.

Conclusion: By way of evidence one can prove the bad character of the
complainant. Eg: when a man is accused of rape, then, he can show evidence
for the immoral character of the women.

OR

SECONDARY EVIDENCE

Introduction:

The contents of the document can be proved generally by two methods:

1. Primary evidence
2. secondary evidence
1. Primary evidence: Primary evidence means the original document itself
produced for the inspection of the court. Eg: where a judgement
 originally written in English was translated into Urdu and the judge
signed the translation. It was held that it was a primary evidence of its
contents.
2. Secondary evidence: secondary evidence means and includes-
i. Certified copies given under the provisions hereinafter contained;
ii. Copies made from the original by mechanical processes which in
themselves ensure the accuracy of the copy, and copies compared
with such copies.
iii. Copies made form or compared with the original;
iv. Counterparts of documents as against the parties who did not
execute them;
v. Oral accounts of the contents of a document given by some
person who has himself seen it.

Secondary evidence may be given of the existence, condition or contents

of a document in the following cases-

a. When the original is in the possession or power

b. When the existence, condition or contents of the original have been
proved to be admitted in writing by the person against whom it is
proved or by his representative, then written admission is admissible.
c. When the original has been destroyed or lost or cannot produce
within reasonable time.
d. When the original is of such a nature as not be easily movable.
e. When the original is a public document within the meaning of section
74, then certified copies of the same can be produced.
f. When the original is a document of which a certified copy is
permitted by this Act, or any other law.
g. When the originals consists of numerous accounts of other
documents which cannot conveniently be examined in court.

UNIT-IV

Q.No. 4(a) WHAT ARE PRESUMPTIONS? EXPLAIN PRESUMPTIONS IN DOWRY

DEATH CASES.

SYNOPSIS:
Meaning of presumption
Classifications of presumptions
Section 113-B Presumptions as to dowry death

Meaning of presumptions: presumption is an inference, which takes place in

the absence of absolute certainty as to truth or falsehood of a fact. In other
words, presumption is an inference drawn by the court as to the truth of a
particular fact, forms other known or proved facts.

Classifications of presumptions: presumptions may be classified as follows;

1. Presumption of fact or natural presumption or May presume.
2. Presumptions of law or Artificial presumptions-
a. Rebuttable presumptions of law or shall presume.
b. Irrebutable presumptions of law or Conclusive proof.
3. Presumptions of mixed law and fact

Section 113-B Presumptions as to dowry death: Section 133-B- when the

question is whether a person had committed the Dowry Death of a woman
and it is shown that soon before her death such woman had been subjected
by such person to cruelty or harassment for or in connection with, any
demand for dowry, the court shall presume that such person had caused
the dowry death.
The presumption can be raised only on proof of the following essentials:
i. The presumption can be raised only if the accused has committed
the dowry death of a woman. If the accused is being tried for the
offence under section 304-B of I.P.C.
ii. The woman was subjected to cruelty or harassment by her
husband or his relatives.
iii. Such cruelty or harassment was for or in connection with, any
demand for dowry.
iv. Such cruelty or harassment must have taken place immediately
before her death.

In Kans Raj Vs. State of Punjab, the Supreme Court explained the term
soon before which occurs in Section 113-B. It is held that the term soon
before is a relative term which is required to be considered under
specific circumstances of each case, and no strait jacket formula can be
laid down by fixing any time. This expression is with the idea of proximity
bar.
 Soon before her death implies not much interval between cruelty or
harassment and death. There must be a proximate and live link between
the effect of cruelty based on dowry demand and the concerned death.
OR.

Q.No.4.b. (B) WRITE A SHORT NOTE ON BURDEN OF PROOF:

Section 101 to 114 A deals with the Burden of proof. When a fact is to e
given in evidence, the first quest5ion, which arises, is ‘Who has a duty to
prove the fact”. In other words, on whom does the burden of proof lies?

Meaning: The expression ‘burden of proof’ means an obligation to

prove a fact. Every party has to establish facts, which go in his favour or
against his opponent. In other words, “he who asserts must prove”. The
reason is one who drags another into the court must bear the burden of
proving the facts which he asserts.

Definition: Section 101: “ whoever desires any court to give judgement

as to any legal right or liability dependent on the existence of facts which
he asserts, must prove that these facts exists.

Example: Suppose A desires a court to punish B for commission of a

crime, the burden lies on A to prove the case.

Burden of proof in Civil and Criminal cases:

In criminal cases, there is a presumption in favour of innocence of the

accused and the burden rests on the prosecution to establish his guilt
beyond reasonable doubt. He is not required to rebut the case made out
against him until the evidence is sufficient to establish his guilt beyond
reasonable doubt and even in such case it would be enough for him to
introduce only such evidence as will again create a reasonable doubt as
to his guilt. It is only where the accused relies upon some independent
matters of defence or general exceptions that he has to offer evidence in
support of such defence or exceptions.

In civil cases the plaintiff is required prove his case by preponderance of

evidence. The reasons for this relaxed rule in civil cases are:
1. In criminal cases there is a presumption of innocence in favour of the
accused, but there is no such presumption in civil cases.
2. In civil cases proof may result in a judgement for pecuniary damages
or establishing a right, but in criminal cases reputation, freedom,
future livelihood, career and even life are involved.

OR

WRITE A NOTE ON PRESUMPTION OF LEGITIMACY OF A CHILD:

Section 112: Birth during marriage, conclusive proof of legitimacy:

The fact that any person was born during the continuance of a valid
marriage between his mother and any man, or within two hundred and
eight days after its dissolution, the mother remaining unmarried, shall e
conclusive proof that he is the legitimate son of that man, unless it can
be shown that the parties to the marriage had no access to each other
at any time when he could have been begotten.

Maternity admits of positive proof, but paternity is matter of inferences.

The connection of a child with his father is secret but it may be
ascertained by the subsisting facts. Section 112 lays down the rule for
the proof of the paternity of an individual. This section lays down that if
child is born during the continuance of valid marriage between the
mother and a man or within 280 days after the dissolution of the
marriage, the mother remaining unmarried it shall be presumed that the
child is a legitimate son of that man unless and until it is shown that the
parties to the marriage had no access to each other any time when the
child would have been begotten.

Essential conditions:

To establish legitimacy under section 112, the following conditions must

be satisfied:

1. The child must have born during the subsistence of a valid marriage.
2. The child must have born within 280 days of the dissolution of
marriage.
 3. When a child is born within 280 days of the dissolution of the
marriage, the mother must have remained unmarried; and
4. It should be shown that the husband and wife had no access to each
other.

In Thimmakku Vs. Rangappa’s case A child was born after 280 days
after the dissolution of the marriage the court held that the child is
illegitimate.

Conclusion: In Kamti Devi Vs. Poshi Ram, the supreme court held that
Section 112 of Evidence Act was enacted at the time when modern
scientific advancement with Dioxy Nucleic Acid (DNA) as well as Ribo
Nucleic Acid (RNA) was not even in contemplation of the Legislature.
Even though the result is genuine DNA test is said to be scientifically
accurate but even that is not enough to escape from the conclusiveness
of Section 112. If the husband and wife were living together during the
time of conception but if the DNA test reveals that the child was not
born to the husband the conclusiveness in law would remain
unrebuttable. However this hard point from view of the husband who
would e compelled to bear the fatherhood of the child of which he may
be innocent. But even such case the law leans in favour of the innocent
child from being a bastard.

UNIT-V

Q.No.5. (A) WHAT ARE LEADING QUESTIONS? WHEN THEY CAN BE ASKED?

SYNOPSIS:

Introduction

Meaning and definition

When leading questions must not be asked/ exceptions
When leading questions may be asked
Objection to leading questions

Introduction: Section 141 to 143 of the Indian Evidence Act deals with ‘Leading
Questions’. Section 141 defines leading questions. Section 142 and 143
prescribe the circumstances under which the leading questions may or may
not be asked.
Meaning and definition: the expression ‘Leading Question’ literally means a
question which by itself suggest an answer which the person putting the
question wishes to receive it is a leading question. The question is a leading
one when it indicates to the witness the real or supposed fact which the
examiner expects and desires to be confirmed by the answer.

Examples:

1. Is the plaintiff your brother?

2. Have you not lived for 10 years with him?
3. Is this boy 10 years of age?
4. Is your name Sharath?
5. Do you reside at Allahabad.

In these questions, the examiner clearly suggests the answer. In such questions
the person putting the question is really giving the answer instead of receiving
if from the witness. Generally, the answers to the leading questions are given
by “yes” or “no”.

When leading questions must not be asked/ exceptions:

Under section 142 lays down that leading questions should not e put in
examination-in-chief or re-examination if they are objected to.

Exceptions to this rule: this section provides exceptions to the general rule
stated above. Leading questions may be put in examination-in-chief or re-
examination by the order of the court.

1. As to matters which are introductory;

2. Which are undisputed; or
3. Which in the opinion of the court have already been proved
4. Besides these exceptions under Section 154, a court can allow a
party examining his own witness to put leading questions by way
of cross-examination.
5. Objection to leading questions:
 One should borne in mind that if the opposite side makes any
objection, leading questions may not be put in examination-in-chief
or re-examination but such questions may be put in examination-in-
chief or re-examination if the court overrules the objection. Objection
to leading question is not that they are illegal but only that they are
unfair. The Act gives absolute discretion to court to allow or disallow
leading questions.

When leading questions may be asked:

Section 143 of the Evidence Act lays down that leading questions may be put in
cross-examination. But the counsel cannot put a question in cross-examination
assuming that some facts have been proved or admitted though they can put
leading questions.

OR

WHAT ARE PRIVILEGED COMMUNICATIONS? EXPLAIN.

SYNOPSIS:

Introduction
Section 123
Object
When to claim privilege
Who is supposed to decide about the privilege
Conclusion

Introduction: Public interest demands for evidence which is withheld. The

public interest in the administration of justice demands the courts should have
fullest possible access to all relevant materials. When public interest outweighs
the latter, evidence cannot be admitted. It is not that the document should
contain the material which it would be damaging to the national interest to
disclose but rather than the documents would be of class which demand
protection.

Example: documents related to cabinet papers, foreign office dispatches,

papers regarding the security of the State and high level inter departmental
minutes.
In the ultimate analysis the contents of documents so described that it could
be seen at once that in public interest document is to be withheld.

Section 123:

No one shall be permitted to give any evidence derived from

unpublished official records relating to any affairs of State, except with
the permission of the officer as the head of the department concerned,
who shall give or withhold such permission as he thinks fit.

Object:

Section 123 is based on the legal maxim Salus populist suprema lex
which means Public welfare is the highest law. This principle is justified
or overriding and of paramount character of public interest. The theory
is based on the question of production of document as it would cause
injury to public interest and would lead rise to conflict between public
interest and private interest.

When to claim privilege:

 The discretion power to claim privilege is been left to the

responsible Government official to look at the document to
consider it and to decide for himself whether the document falls
in the category of document of state referred to in Section 123.
 This privilege can be taken in respect of any document only if it
applies to unpublished official records relating to any affairs of
state.
 Before the privilege can be claimed there must be an adjudication
that the documents in respect of which privilege is claimed, are
official records relating to affairs of state.
 The privilege relating to official records can be claimed only if the
disclosure of which would result in an injury cause to public
interest.
 If there is a conflict between public interest and private interest,
the public interest shall prevail over.
 The privilege should be claimed generally by the minister-in-
charge who is the political head of the department concerned.
  The claim should always be made in the form of an affidavit.
 Each document in question has been carefully read and
considered, only after it is satisfied that its disclosure would lead
to public injury then only the privilege shall be granted.
 The affidavit should also indicate briefly within permissible limits
the reason why it is apprehended that their disclosure would lead
to injury to public interest.
 If the affidavit produced in support of the claim for privilege is
found to be unsatisfactory a further affidavit may be called, and
improper case the person making the affidavit whether he is a
Minister or the Secretary should be summoned to face cross-
examination on the relevant points.

Who is supposed to decide about the privilege:

The final authority to decide as to whether a document is privileged,

rests with the head of the department concerned. According to the Act Section
162 reads that the court is the final authority.

Q.No.5. (b) ACCOMPLICE WITNESS.

Section 133: An accomplice shall be a competent witness against an

accused, and conviction is not illegal merely because it proceeds upon
the uncorroborated testimony of an accomplice.

The term accomplice has not been defined under the Act, the term
accomplice may include all particeps criminis. An accomplice is a person
who is guilty associate in crime or who sustains such a relation to the
criminal act that he can be jointly indicted with the principal criminal. In
general sense an accomplice means a guilty associate or partner in
crime, or in some way or other is connected with the offence in question
or who makes admissions of facts showing that he had a conscious hand
in the offence.

Kinds/categories of accomplice:

An accomplice may come under any one of the following categories:

  Principal offender of First degree or Second degree.
 Accessories before the fact and
 Accessories after the Crime/fact.
I) Principal offender of First degree or Second degree: Principal
offender of first degree is a person, who actually commits the crime,
while principal offender of second degree is a person who abets or
aids the commission of a crime.

Eg: A administers poison through B to kill C. A is the principal offender in first

degree, and B is the principal offender in second degree.

ii) Accessories before the fact: Those persons, who abet or incite the
commission of a crime are called ‘Accessories before the fact’. They
do not participate in commission of crime but make necessary
arrangements.

Eg: A gives financial aid or provides necessary facilities to B to commit

murder of C. Here, A is accessory before the fact.

iii) Accessories after the Crime/fact : Accessories after the fact, are
thos3e , who receive or protect or comfort the person who
committed the crime. In other words they help the accused in
escaping from punishment.

Eg: a commits murder of B. If C knowing that A committed the murder and

gives shelter to A, C is called accessory after the crime/fact.

Testimony of an accomplice: under section 133 an accomplice is a

competent witness and a conviction based on the sole testimony of a
accomplice is not illegal. The established rule of law relating to the evidence
of an accomplice, is whilst is not illegal to act upon the uncorroborated
evidence of an accomplice, it is a rule of prudence to be universally
followed as to amount to a rule of law that the courts ought not to pay any
respect to the testimony of an accomplice unless he is corroborated in
material particulars.

OR
A PROSECUTION WITNESS TURNED HOSTILE DURING EXAMINATION IN
CHIEF. THE PUBLIC PROSECUTOR WANTS TO CROSS EXAMINE HIM, CAN HE
DO SO?

Hostile Witness: A witness who has been called in expectation that he will
speak to the existence of a particular state of facts, pretends that he does not
remember those facts or deposes entirely different to what he was expected
to depose. Such witness is called adverse, unfavourable or hostile witness.

Yes, the public prosecutor wants to cross examine him. If the prosecution
witness turns hostile during examination-in-chief then the prosecution can
cross examine him. But, before calling the witness can cross-examine him, he
must obtain the permission of the court. The granting of permission is entirely
the discretion of the court. The discretion has to be exercised with caution. It
should not be exercised without sufficient reason.

The court ought not to exercise its discretion unless during the examination in
chief of the witness something happens which makes it necessary for the fact
to be got from the witness by means of cross examination. The permission
must be in explicit words.