o | . w of videncE [LEADING CASES, MATERIALS & Q.A.] Dr. ASHOK K. JAIN LLM; PhD Delhi) — 7 Ascent Publications 21/29, Shakti Nagar, Delhi-110007Corriscit © 1998 - ASCENT PUBLICATIONS, Dau. Fist Epmon, 1998 4 Revnast 2001/2003/2005/2006/2009 ‘Secon Enmox, 2008 ‘Tearp Extarcep Epmon, 2010 Fourt Epox, 2012 ‘Frtx Epon, 2013 1 ‘Socru Eprrion, 2014 - ‘Reprovr,2015/2016/2017/2018 Price: 250.00 ISBN: 978-81-935556-4-4 AIL RightsReserved. Nopartofthis work may be copied reproduced, adapted, ‘abridged or ranslated stored nay camper or ransmited inary form by ‘ry means without prir writen permission othe publishers. Pustisiiep By Ascent Pupticarions, 21/29, Sakti Nacar, Deuit Pamvrep at GS, Orrser, Det. ConTENTS "A. INTRODUCTION Substantive and Procedural Laws 1 Law of Evidence in India 3 Application of the Indian Evidence Act, 1872 4 SEC. 1:Short Title, Extent and Commencement 4 SEC, of Enactments 5 SEC. itions: Interpretation Clause 6 Cuet 6 Fat 6 Factsin Isue? Releuant Facs9 Evidence\0 Different Kinds of Evidence 12 Evidence Recorded through Video-Conferencing 15 Document 18,22 ~ India'9 Proved, Disproved, Not Proved 19 Standand/Degree of Proof in respec: of Cvil/ Criminal proceedings 21 SEC. 4: May Presume, Shall Presume and Conclusive Proof 13, 3, RELEVANCY AND ADMISSIBILITY OF FACTS SEC. 5: Of What Fact May Evidence be Given 24 ily 25 Reevancyand Admisibilizy Evidence obtained by Undesirable Methods Whether Admissible 27 SEC. 6: Relevancy of Facts forming Part of Same- ‘Transaction 28 Resgestae® SEC. 7: Facts which are the Occasion, Cause or Effect of Facts in Issue 34 iyw Law of Evidence SEC. 8: Motive, Preparation and Previous or Subsequent Conduct 36 SEC. 9: Facts Necessary to Explain or Introduce Relevant Facts #2 Hdentity ofa person/ ing (Identification Parade) 44 SEC. 10: Relevance of Conspiracy Evidence 68 Difference between English and Indian Laws79 SEG. 11: When Facts Not Otherwise Relevant Become Relevant 47 Inconsistent Facts (Plea of Alibi) 47 SEC. 12: Facts Enabling Court to Determine “Amount of Damages 52 . SEC, 13: Facts Relevant when Right/ Customisin Question 52 SEG. 14: Facts showing Existence of State of ‘Mind/ Body/ Bodily Feeling 33 ‘SEC. 15: Facts Bearing on Question whether Act was ‘Accidental/ Intentional 56 SEC. 16: Existence of Course of Business when Relevant 57 3. ADMISSIONS AND CONFESSIONS ‘SEC. 17: Admission Defined 82 ‘Reasonsfr Adis of Admisions 4 Forms of Admisions 85 SECS. 18-20: Persons Whose Admissions are Relevant 87 SEC. 21: Against whom Admission May be Proved 88 SEC. 22-23: Admissions How Far Relevant 92 ‘SEC. 22: When Oral Admissions as to Contents of Documents areRelevant 92 | ‘SBC. 22A: When Oral Admissions asto Contents of Electronic ‘Records are Relevant 92 ; SEC. 33: Communication without Prejudice 92 Euidentiary Valueof Admissions 94 ‘SEC. 24-30: Confessions 95 Ceaser 98 2 Confessions Carrying incalpatoryand Exeupatory Statements 95 Formsof Confession 8. Law of Evidence SEC. 24-30: Confessions when Irrelevant confessions) 100 ‘SEC. 24: Confession caused by Inducement, Threat ‘or Promise 100 ‘SEC. 25: Confession to Police 102 ‘SEC. 26: Confession in Police Custody 105 SEC. 27-29: Confession when Relevant 107 SEC. 27: How Much of Information Received from Accused ‘May be Proved 107 ‘SEC. 28: Confession made After Removal of Threat, Inducement, etc. 117 SEC. 29: Confession Otherwise Relevant Not to become Irrelevant Because of Promise of Secrecy, etc. 117 SEC. 30: Confession of Co-Accused 55 Evidentiary Value of Confession 118 Retracted Confessions 119 SEC. 31: Admissions Not Conclusive Proof, but they May Estop 120 Admission made in an Earlier Suit 121 Distinction Between Admission and Confession 122 4, STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES: DYING DECLARATION SEC. 32: Cases in which Statements of Relevant Fact by Person ‘who is Dead or Cannot be Found, etc. is Relevant 129 ~s, Sec.32(1):Dying Declaration 130 ‘Distinction berween Englshand Indian Law 132 Evidentiary Value of Dying Dedaration 136 Relewaee of Cercumstancesof Transaction which Rested in Death 138 Dying Declaration can be wserlasa Sole Basis of Conviction 143, Discrepancy in Dying Decarations: Credibility of Dying Declaration 149 ‘Dying Declaration Madeto Police whether Admisible 150 Medical Opinion and Dying Declaration 151 Sec. 32 (2 ratements Made in Course of Business 153 Sec. 32 (3): Statements Against Interest of Maker 153Law of Evidence Sec. 32 (4): Declaration as to Public Rights 154 Sec. 32 6) & (6): Declaration as to Relationship or Pedigree 154 Sec. 32 7): Statements in Documents asto Custom or Right 155 Sec. 32 8): Statement of Several Persons a - Feelings 155 2 SEC. 33: Relevancy of Evidence in Prior Judicial Proceedings 155 ‘Statements Made Under Special Circumstances 155 SEC. 34: Entriesin Books of Account when Relevant 155 SEC. 35: Relevancy of Entries in Public/ ~ Electronic Record 156 SEC. 36: Relevancy of Statements in Maps, Charts, et. 156 SEC. 37: Relevancy of Statements in Acts of Parliament of England or India 156 SEC. 38: Relevancy of Statements as to Law in Law Books ofa Foreign Country 158 How Much ofa Statement is to be Proved 158 SEC. 39: What Evidence to be given whet Statements forms Part of a Conversation, Document, etc. 158 Judgments of Courts of Justice When Relevant 158 SEC. 40: Previous Judgment Relevant to Bar a Second Suit or Trial 159) SEC. 41: Relevancy of Certain Judgments in Probate; etc. Jurisdiction 159 ‘SEC. 42: Relevancy and Effect of Judgments, etc. ‘Other than those Mentioned in Sec. 41 160 ‘SKC. 43: dgments, etc. Other than those mentionedin . Secs. 40-42 when Relevanz 160 ‘SEC. 44:Fraud or Collusion in Obtaining Judgment/ Incompetency of Court 162 EXPERT EVIDENCE AND RELEVANCY OP " CHARACTER SECS. 45-51:Opinion of Third Persons when Relevant 164 SEC. 45: Opiion of Experts 165 Diffeenceletween exper tstimonyandihatof ordinary witness 166 Value of Expert Opinion 168 ©. SEC. 46: Facts Bearirig upon Opinion of Experts 173 SFC. 47+ Onininn acea Flandre Dele 174 Law of Evidence Imputed, Irrelevant 177 SEC. 53: In Criminal Cases Previous Good Character Ere Relevant 178 ~ 54: Previous Bad Character Not Relevant, Except in Reply 178 me SEC. 55: Character as Affecting Damages 179 No Proof & Oral/Documentary Evidence SECS. 56-58:Facts Which Need Not be Proved 180 SEC. 56: Facts Judicially Noticeable Need Not be Proved 180 Facts of which Court Must take Judicial Notice 180 "acts Admitted Need Not be Proved 180 Modes of Proof 183 SECS. 59-60: Oral Evidence 183 SEC. 59: Proof of Facts by Oral Evidence 183 SEC, 60: Oral Evidence Must be Direct 184 Hearsay Evidence 184 SECS. 61-90: Documentary Evidence 186 SEC. 61: Proof of Contents of Document 186 SEC. 62: Primary Evidence 187 SERIE py EC. 64: ‘Documents by Primary Evidence 188 SEC. 65: When Secondary Evidence Relating to Documents May be Given 188 SECS. 65A/ 65B: Admissibility of Electronic Records in Evidence 190 SEC. 66: Rules as to Notice to Produce 191 SEC. 67: Proof of Signature and Handwriting of Person alleged to have Signed or Written Document Produced 192 SEC. 67A: Proof as to Digital Signature 192 SEC. 68: Proof of Execution of Document Required by Law to be Attested 193 Re cane| | | i Law of Evidence SEC. 70: Admission of Execution by Party to Arcested Document 194 SEC. 71: Proof when Attesting Witness Denies the Execution 194 SEC. 72: Proof of Document Not required by Law to be Attested 195 SEC. 73: Comparison of Signature, Handwriting, te. by the Court 195 SEC. 73A: Proof as to Verification of Digital Signature 196 Public Documents 197 SEC. 74: Public Documents 197 SEC. 75: Private Documents 198 SEC, 76: Certified Copies of Public Documents 198 SEC, 77: Proof of Documents by Rroduction of Certified Copies 198 SEC. 78: Proof of Other Official Documents 199 ‘SECS. 79-90: Presumptions As to Documents 199 - Presumption as to Genuineness of Certified ‘Copies 200 80; Presumption as to Documents Produced as Records of Evidence 200 ‘SEC. 81: Presumption as to Gazettes, Newspapers, Private Acts of Parliament 200 SEC. 81A: Presumptionas to Gazettes in Electronic Forms 201 SEE g2- Presumption astoDocument Admisiblein England ‘without Proof of Seal or Signatures 201 SEC. 83: Presumption as to Maps of Plans 201 SEC, 84: Presumption as to Collection of Lawsand cof Decisions 201 SEC. 85: Presumption as to Power of Attorney 202 SEC. 85A/85B/85C: Presumption as o| ° "Agreements, Records, etc. 202 SEC, 86: Presumption asto Certified Copies of Foreign, Judicial Record 202 SEC. 87: Presumption as to Books, Maps and Charts 202 SEC, 88: Presumption asto Telegraphic Messages 205 SEC. 88A: Presumption as to Electronic Messages 203 ‘SEC. 89: Presumption in Relation to Documents ‘Not Produced 203 HC. 90: Presumption as to Documents Thirty Years O14 203 Law of Evidence ix SEC. 90A: Presumption as to Electronic Records Five Years Old 205 ‘of Oral by Documentary Evidence SEC. 92: Exclusion of Evidence of Oral Agreement. 209 ;- When Oral Evidence can be Gi y Document 211 AmbiguousDocuments 2/9 SEC. 93: Exclusion of Evidence to Explain or Amend “Ambiguous Document 220 ‘SBC. 94: Exclusion of Evidence against Application of ‘Document to Existing Fact 220 ‘SEC. 95: Evidence sto Document Unmeaning in Reference to Existing Facts 22 ‘SEC. 96: Evidence as to Application of Language ‘which can Apply to One Only of Several Persons 221 ‘SEC, 97: Evidence sto Application of Language to One of “Two Sets of Facts 222 ‘SEC. 98: Evidence as to Meaning of Hegible Characters, ete. 222 SEC. 99: Evidence by Non-Parties 222 ‘ © SEC. 100: Saving of Provisions of Indian Succession ‘Act relating to Wills 223 8.Byrden of Proof and Presumptions SECS, 101-111: Burden of Proof 224 jurden of Proof 225 SEC. 102: On Whom Burden of Proof Lies 226 ‘SEC:103: Burden of Proof asto Particular Fact 227 Burdenand Onus of Proof 227 Importance’ 228 SEC. 104: Burden of Proving Factto be Provedto Make Evidence Admissible 229 ! SEC. 105: Burden of Proving Exception in Criminal Cases 229 SEC. 106: Burden of Proving Eact Especially within Knowledge 231x Law of Evidence SEC. 107: Burden of Proving Death 232 SEC. 108: Burden of ProvingthatPersonisAlivi whiois “Unheard af for7 Years 232. SEC. 109: Burden of Proof as to Relationship of in Kind 233 Certain SEC. 110: Burden of Proof as to Ownership 234 SEC. 111: Proof of Good Faith 234 Presumptions 235 AS Kinds of Prssomptions 236 ) @Presumption of Fact 236 “May Presume 236 (©) Presumption of Law 237 ‘Shall Preseme’ 237 SEC. 111-A: Presumption as to Offences in Disturbed Areas 240 SEC. 112: Presumption of Legitimacy 251 SEC. 113: Proof of Cession of Territory 240 SEC. 113-A: Presumption as to Abetshent of Suicide by a Married Woman 240 SEC. 113-B: Presumption as to Dowry Death 241 SEC. 114: Presumption of Existence of Certain Facts 242 SEC. 114-A: Presumption in Rape Cases 249 Conclusive Proafv Conclusive Evidence 258 9. Estoppel SEC. 115: Estoppel 261 Promisory Etoppel 264 Exceptions tothe Doctrine of Extoppel 266 SEC. 116: Estoppel of Tenant and of Licensee of Person in Possession 270 . SEC. 117: Estoppel of Acceptor of Bill of Exchange, Bailee/ Licensee 271 Comparison of Epp with Ouker Concepts 271 Etoppel agsnst Universes 274 Law of Evidence x 10. Witnesses ‘Competency of Witnesses 277 SEC. 118: WhoMay Testify 277 Child witnes 78 Partisan/ Relation Witness 279 SEC. 119: Dumb Witness 280 ‘SEC. 120: Parties to Suit or Proceeding/ Husband or Wife 260 SEC. 123: Evidence as to Affairs of State 287 SEC. 124: Official Commisnications 289 125: Information aso Commission of Offences 289 SEC. 126: Professional inications 3Q3 126 to Apply to Interpreters, ete. 304 aived by Volunteering Evidence-306> SEC. 129:Confidential Communication wi Advisers 306 (C. 130: Production of Title deeds of Witness, Not 2 Party 290. roduction. of Bement ‘or Electronic Records 290 ~ * Winness Not Excused from Answering Incriminating Questions 290 “ Accomplice Evidence 292,307 SEC, 133: Accomplice 292 NoAntithesis between Sec. 133 and See. 114293 Evidentiary ualueofan Accomplice 293 (Confsion of Coraccised v Accomplice Evidence 300 11. Examination of Wi SEC. 1, SEC. 13. esses SEC. 134: Number of Witnesses 311 ‘SEC. 135: Order of Production and Examination of Witnesses 313 SEC..136: Judge to Decide as vo Admissibility of Evidence 313, SEC. 137: Examination in-Chief, Cross Examination, - ReExamination 315 SEC. 138: Order of Examination 316Law of Evidence ‘SEC. 139: Cross-Examination of Person Called to Produce a Document 318 rhen They Must Not be Asked 318 When They May be Asked 319 wvidence as to Matters in Writing 320 : Cross-examination asto Previous Written Statements 320 SEC. 146: Questions Lawful in Cross-examination 322 SECS. 147-152: Rules for Checking Improper Use of Crossexamination 323 SEC. 147: When Witnesses to be Gompelled to Answer 324 SEC. 148: Court to Decide when Question Shall be Asked ‘and When Witness Conipelled to Answer 324 SEC. 149: Questions Not to be Asked without Reasonable Grounds 325 SEC. 150: Procedure of Court in case of Reckless Questions 326 ‘SEC. 151: Indecent and Scandalous Questions 326 SEC. 152: Insulting or Annoying Questions 326 ‘SEC. 153: Exchusion of Evidence to Contradict Answersto Questions ‘Testing Veracty 327 SEC. 154: Questions by Party to His Own Witness [Hostile Witness] 328 Value of the Evidence ofa Hostile Witness 330 ‘SEC. 155: Impeaching Credit of Witness 331 Stock Witness 332 Material Witness 333 SEC. 156: Questions tendingto Corroborate Evidence of ‘Relevant Facts Admissible 333 SEC. 157: Former Statements as Corroboration 334 SEC. 158: Corroboration or Contradiction of the Statements of Bersons Who Cannot be Found 335 SECS. 159-1612 Rule as to Refreshing Memory 336 SEC. 159: Refreshing Memory 336 SEC, 160: Testimony to Facts Stated in Document mentioned | in Sec. 159.337 ¢ : Right of Adverse Party as to Writing used to Refresh Memory 338 SEC. 1¢ Law of Evidence ai ‘SECS. 162-164: Rules as to Production of Documents 338 SEC. 162: Production of Documents 338 SEC. 163: Giving, as Evidence, of Document Called forand. ‘Produced on Notice 339 ‘SEC. 1642 Use of Document Not Produced on Notice 340 SEC. 165: Judge’s Power to Put Questions or Order Production 341 SEC. 166: Power to Jury or Assessors to Put Questions 343 ‘SEC. 167: NoNew Trial for improper Admission or Rejection of Evidence 343xiv Law of Evidence REFERENCES, Agency) 2. Batuk Lal: The Law of Evidence (Central Law Agency) 3. Ratanlal & Dhirajlal: The Indian Evidence Act (Wadhwa & Co.) 4. Vepa P. Sarathi: Elements of the Law of Evidence (Easter Book Company) 5. Monir: The Law of Evidence (Short Edition) i 6. Sarkar on Evidence . . 7. AN. Saha: Law of Evidence . 8. Phiphson & Elliot: Law of Evidence 9. Wigmore on Evidence &Co) Other Sources 1. The Landmark Judgments of 1997-1998 ~ Ashok K. Jain, j 2. Supreme Court Yearly Digests - SCYD (1995-2009) ~ Shailendra Malik (Ed.) (Eastern Book Co.). } 3. Caises and Materials on Law of Evidence - Faculty of Law, Delhi University, Delhi. 4. Question Papers Referred — Delhi and Other Indian Universities; Competitive Exams like IAS. t: The Law of Evidence (Central Law t, 1872 10. NE Jhabvala: The Indian Evidence Act (C. Jamnadas TABLE OF CASES A AP. Potion Control Board v Prof. MV. Nayudu 231 Abdul Razak v State of Maharastra 65 Abdul Waheed Khan v Stato of AP. 45 ‘Agassiz v London Tramways Co. 30 ‘AGHNOO NAGESIAVSTATE OF BIHAR 124 ‘Aan v State of Rajasthan 280 ‘Ait Savant v Sate 196 ‘hil Kumar (Oe) v State 237 ‘Alamgir State (NCT) of Deh 172 ‘Alama v Stato of Assam 242 ‘amar Chand Buia v Sato 268 ‘Amar Sigh v Sate of Punjab 169 ‘Amari Singh v Sate of Pj 242 Amitabh Gagehi vEna Bagchi 18 ‘Amit BanaspatiCo, vUOI 227 ‘ber Singh v Sato of Rajasthan 115 ‘ani Kumar State of UP. 45, ‘nil Roy v State of Bihar 170 ‘nil Sharma v State of Jharkhand 316 fntav Atal Biba 167 Anurag Nairv Stat of TN. 225 ‘appa State 288 ‘un Kushwaha v State of MP. 241 Ashish Batham v State of MP. 21, Ashok v Madho Lal 188 : ‘Awachesh v Stato of UP. 28 B B, Singh (Dr) v Union of india 201 B. Venkata Rao v Principal, Andhra Medical College 275 BRB VJB 255 Babloo v State 170 Babuda v State of Rajasthan 20 Badri Narayanan v Rajabsjyathammal 195 Badri Raiv State of Bihar 70,72 Badri v Stato of Rajasthan 312 hadur Singh v State of U.P. 313 ‘Bal Krishan v Rewal University 267 Balu Sonba Shinde v State of Maharashtra 330 ‘Banarsi Das v Maharaja Sukhi Singh 187 Basant Singh v'Janki Singh 121 ‘Basin v State of HP. 31 BasavarajR. Patil State of Karnataka 16 Bater vB 22 ‘ejay Krishna v N.B, Sugar Mills Co, 213, ow)wi Law of Evidence Bhagbaticharan v Emperor 102 Bhagwan Singh v State of MP. 278 Bhagwan Swarup v State 178 Bharat Singh v Bhagirath 94,122,322 ‘Bhiva Doulu Patil State of Maharashtra 207 ‘Bhogilal Chua v State 334 ‘Bhola Nath v Emperor 79 ‘Bhola Ram Khushwaha v State of MP. 331 BHUBONI SAHU vEMPEROR 308, Bikam Pandey v State of Bihar 50 Birad Mal Singhvi v. Anand Purohit 167 BBishwanath Prasad Singh v Rajendra Prasad 219 BISHWANATH PRASAD v DWARKA PRASAD 94,121 Bodala Murali Krishna v Sint. Bodala Prathima 18 BODHRAJALIAS BODHA v STATE OF J8K 112 Bri Kishore v Lakhan Tiwari 212 C.K. Raveendran v State of Kerala 100 “®. ‘G.R. Mehta v State of Maharashtra 67 ‘CENTRAL BUREAU OF INVESTIGATION vV.C. SHUKLA77, 186 ‘Chacko v State of Kerala 311,312 CChaitan Charan v Maheshwar Parida 195, ‘Champa Rani Mondal v State of WB. 97, CChandabal v Anwarkhan 204 CChandramathiv Fazhetti Balan 254 hari v State 323 ChavdhariRamjibhalv State of Gujarat 312 ‘Chaudhri Mohd. Mehdi Hasan Khan v Mandi Das 245 ‘Chetan Constructions Lta. v Om Prakash 85 ‘Chhaganlal Mehta v Haribhai Patel 273 {Chief Conservator of Forest v Collecior 234 CChilukuri Venkateswarlu v Chitukuri Venkatanarayana 254 CITI Bank NA. v Standard Chartered Bank 244 D. Veerasekaran v State of TN. 305 Dagdu v Siate of Maharashtra 293, Dalbir Singh v State of UP. 140 Dali Singh v State of Punjab 151 Darshan Singh v Guljar Singh 233, Dasari Siva Prasad Reddy v Public Prosecutor, High Court, AP. 60 » Dayabhai v State of Gujarat 230 ‘Dayamathi Bai v KM. Shaff 190: Delhi Transport Corporation v Shyam Lal 85 ‘Devender Pal Singh v State (NCT) of Delhi 248 Devidas Jagivan vPijada Begam 343, Dhanajaya Reddy v Sigte of Kamataka 99 hv State of Rajasthan 205" Law of Evidence E Emperor Balmukand 47 Emperor v Ganesh Raghunath 72 Emperor v Jagia 106 Emperor v Lal Miya 342 Emperor v Mahadeo Dewoo 337 Emperor v Malangowds 108 Emperor v Vaishampayan 81 E Fagnu Bhai v State of Orissa 250 Fakhruddin v State of MP. 174 Fraji Bhicaj v Mohan Singh Ohan Singh 304 G Viayavardhan Rao v State of AP. 30 Gade Lakshmi Mangraju v State of AP. 13,60,54 Goffar Badshaha Pathan v State of Maharashtra 153 Ganesh K. Gulve v Siate of Maharashtra 11 Gangabal v Chabbubai 211,218 ‘Gangamma v Shivalingaiah 204 Goniala Rao v State of Andhra Pradesh 33 George-v State of Kerala 245 Girdhar Shankar Tawade v Stale of Maharashtra 160 ‘Gopal Sarvan v Satya Narayan 317 ‘GOUTAM KUNDU vSTATE OF W.B. 254 Govind Narain v State of Rajasthan 136 Govt. of AP. v Karr Chinna Venkata Reddy 188 ‘Govt of NCT of Delhi v Jaspal Singh 76 Habib Usman v State of Gujarat 137 Habib v Slate of Bihar 48 Hans Raj v Stale of Haryana 240 Hanumant Govind Nargundkar v State of MP. 13. Hanumant v State of UP. 167 Hargdvind Soni v Ramdulari 256 Haricharan Kurmlv State of Bihar 11 Haroon Haji v State of Maharashira 295,309 Harphool Singh v State 275 Hawkins v PovellsTilary Coal Co. Lid. 20 Hazara Singh v State of Punjab 333 Hazari Lal v State (Delhi Adm’) 260 Hem Chand v State of Haryana 242 Heramba Brahma v State of Assam 99 Housing Board Cooperative Society v State 268 In Re Jhoubhoa Mahton 338 Ince, N. Ramaratnam 80 Ishwar Dass Jain v Sohan Lal 218 lsrar Ahmad v State 275iit Law of Evidence 4 -Jadunath Singh v State of UP. 46 ‘Jai Prokash v State of Haryana 136 Law of Evidence Re Dannu Singh v Emperor 134 Reetanjai Pat! v Board of Sec. Education 275 Reg 'v Prabhudas 50 Rita Lal v Raj Kumar Slogh 270 ROOP KUMAR v MOHAN THEDANI 208,210,215 Rumping Di. of Pubic Prosecutions 286, s SS. Saktivel VM. Venugopal Pilal 219 'S. Venugopal vA. Karrupusami 85 ‘SK. Belal State 167 ‘SK Sharma v Mahesh Kumar Verma 270, ‘SP. Gupta v Union of india 288 Sahoo v State of UP. 18, Salim Akhtar v State of U.P. 115, ‘Samir v State of West Bengal 241. =~ ‘Sanatan Gauda v Berhampur University 275 ‘Sanjay Dutt v Stale 231 ‘Sanmugam alias Kulandal Vellyv State of TN. 162. Santa Singh v State of Punjab 51 Sara Veeraswami v Talluri Narayya 214 Sardar Sardul Singh v State of Maharashtra 69 Sardul Singh Caveeshar v State of Bombay 75,333 ‘Sarvan Singh v State of Madras 120, ‘Sashi Jena v Khandal Swain 334 Sat Paul v DethiAdron. 229 Sabir Singh v State of Punjab 101 Satrucharla Vijaya Ram Raju v Nimmaka Jaya Raju 8S Secy. of State v Tatya Holkar 263, Sethu v Palani 262 ‘Shabad Pulla Reddy v State of AP. 97 ‘Shahnaz v Dr. Vijay 245 Shankar v State of TN. 120 ‘Shanti Kumar Panda v Shakuntala Devi 162 Sharad Birdhichand Sarda v State of Mahgrashira 134,199,185 ‘Sharrighan v State of MP. 250 ‘Shashi Nayar v Union of India 182 ‘Sheikh Menboob alias Hetak v Slate of Maharashtra 150 ‘Shyamdas Kapur v Emperor 341 ‘Sida Nitinkumar v Gujarat University 264 Sidharth v State of Bihar 76 Sita Ram v State 104 . ‘Sivakumar v State 09 ‘SJE Benezer v Velayudhan 225 ‘Smt. Dukhtar Jahan v Mohammed Farooq 256 ‘SOMWANTIv STATE OF PUNJAB 258 Si Krishna v Kurushetra Univ. 275 ‘Slate (NCT of Delhi) v Navjot Sandhu 76,96,106,116,190 ‘State Govt. of Delhi v Sunil 105 State of AP. v Gangula Satya Murthy 106 State of AP. v Vasudeva Rao 235 State of Assam v M. Ahmed 137 Law of Evidence >a ‘Slate of Bihar v Laloo Prasad 329 Sate of Bar v PP. Sharma 245 ‘State of Gujarat v Mohd. Atik 76 State of Gujarat v V.C. Patni 173, Stale of HP. v Jai Lal 167, State of HP. v Jeet Singh 112,116 _ ‘State of H.P.v Prem Chand 46 ‘State of H.P. v Shree Kant Shekari 226 Siate of Haryana v Bhagirath 170 ‘Slate of Haryana v Jagbir Singh 196 ‘State of Haryana v Rajinder Singh $7 State of Kamataka v David Rozario 116,243 Saate of Kamataka v K. Yarappa Reddy 337 ‘State of Karnataka v MY. Manjunathagowda 241 State of Kamataka v R. Yarappa Reddy 328, STATE OF KARNATAKA SHARIFF 147,150 State of MP. v Dharkole 21,312 ‘Stale of MP. v Sanjay Rai {74 State of Maharashtra v Bharat Fakira Ohiwar 112,116 ‘State of Maharashtra v C.K. dain 279,902 State of Maharashtra v Damu 115, Slate of Maharashtra v Md. Yakub 20 ‘STATE OF MAHARASHTRA v PRAFULB. DESAI(OR) 15. ‘State of Maharashtra v Suresh 114 State of Punjab v Amarjit Singh 151 ‘State of Punjab v Gurdeep Singh 99 ‘Slate of Punjab v Gurmit Singh 324 Slate of Punjab v Karnall Singh 232 ‘Slate of Punjab v8.5. Singh 339° 4, State of Punjab v Sukhdev Singh Sodhi 67> Slate Rajasthan v Ani 342 ‘State of Rejasthan v Bhup Singh 108 State of Rajasthan v Mahavir Ol Mis 268 ‘Siate of TN. v J. Jayalaltha 77 Slate of TN. v Kutty 119 Slate of TN. v Nalini (Rajiv Murder case") 76 State of TN. v Suresh 309 ‘State of U.P. vAnil Singh 311 Sate of U.P. v Babu Ram 33, Sate of U.P. v Madan Mohan 148 STATE OF U.P. v RAJ NARAIN STATE OF U.P. vRAJ NARAIN 268, Siate of UP. v Ram Sagar Yadav 147 ‘State of U.P. v Ramesh Prasad Mishra 330 Sale of U.P. v Ravindra Prakash Mital 12 ‘Sate of WB. v Orial Jaiswal 241 ‘Sate v Madhukar Keshav Maity 119 Sate v Mani 14 ‘State v S.J. Choudhary 16 ‘Subba Mukherjee v Bharst Coking Coal Ltd, 226,227 Sucha Singh v State of Punjab 232 ‘SUDHAKAR v STATE OF MAHARASHTRA 141 ‘Suk Bahadur Subba v State of Sikkim 279vaiv Law of Evidence 'SUKHAR v STATE OF UP.32 ‘Sukhwant Singh v State of Punjab 318 {00 Oza v State of Bihar 148 CChunder Dey v Gopal Chander Laha 263 ‘Surendera Prasad v State of Bihar 108 ‘Surendra Kumar Vokilv Chief Executive Officer 162 ‘Surendra Narain v State of U.P. 45, ‘Suresh Chandra Bahri v State of Bihar 295,207 ‘Suresh Pal v State of Haryana 264 ‘Suresh v State of Maharashtra 240, ‘. Lakshmipathi v P. Nithyananda Reddy 270 ‘Tapan Das v Sasti Das 322 ‘Tarseem Kumar v DelhiAdmn. 38 Tirumala Tirupati Devasthanams v KM. Krishniah 53, Tulsi Ram Sahu VRC. Pal 329 ‘Tushar Roy v Sukla Roy 254 u LUmeddhaiv State of Gujarat 13 *. Union of India vK.S. Subramaniam 267 Union of India v Mokshi Builders 94 Union of india v Niemal Singh 188 Union of india v Savita Sharma 278 Univ, of Madras v Sundara Shett 274 ‘tam Singh Duggal & Co Ls. v United Banko naa 83 Varkey Joseph v Stato of Kerala 319 Vasa Chandrasekhar Rao v Ponna Satyanarayana 34 Vashu Deo v Balkrishan 270, \asu v Santha 255 \eora Ibrahim v State of Maharashtra 97.123, vighyadhar v Manikrao 12 Vijayan v State 328 ijender v State of Deihi 335, Vilas Pandurang Pali v State of Maharashtra 99 \Vimal Bai v Hiralal Gupta 158 Vinayak Shivajirao v State $9 \Viendra Nath v Mohd. Jamil 183, Vishnu v State of Maharashtra 171 w Wakil Singh v State of Bikar 312 Wilayat Khan v State 170 y ‘Yusufalll,v State of Maharashtra 65 z Zahira Habibullah Sheikh v State of Gujarat 277 Recent Amendments and Case Law RECENT AMENDMENTS Insertion of new Section 53: Evidence of character or previous ‘sexual experience ‘not relevant In certain cases ‘This new section has been insted by the Criminal Law (Amendment) ‘Act, 2013: 453A. In a prosecution for an offence under Sec. 354, Sec, 354A, Sec. 354B, Sec. 354C, Sec. 354D, Sec. 376, Sec. 376A, Sec. 376B, Sec. 4376C, Sec. 376D or Sec. 376E of the Indian Penal Code or for Zrtempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous senual experience with any person shall not be relevant on the Kssue of such consent or the quality of consent.” Substitution of new Sectlon for Section 144A: Presumption as to absence of consent In certain prosecution for rape : For Sec. 114A of the Evidence Act, the following section shall be ‘wéstied, by the Criminal Law (Amendment) Act, 2013, namely:- ~"{14A. In a prosecution for rape under clause (2), clause (2), ‘dause (9, clause (d), clause (@), clause (}, clause Q, clause (#), clause (), lause (), clause (8), clause () clause (n) or clause (1) of sub-see. (2) (1$2 Law of Evidence of Sec. 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the conserit of the woman alleged to have been raped and such woman” states in her evidence before the court that she did not consent, the court shall presume that she didnot consent. Explanation. In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (@)to.(@) of Sec. 375 of the Indian Penal Code. Substitution of new Section for Section 149: Witness unable to communicate verbally For Sec. 119 of the Evidence Act, the following section shall be * swbstituied, by the Criminal Law (Amendment) Act, 2013, namely- “L19. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence: Provided that ifthe witness is unable to communicate verbally, the Court shall take the assistance of an interpreter ora special educator in recording the statement, and, such statement shall be videographed.” ‘Ainendment of Sec. 446: Questions Lawful in Cross-exemination In the principal Act, after Sec. 146(3), the following pron shall be incted [Evidence Act (Amendment) Act, 2002 (4 of 2003) wae. 31- 12:2002}Provided that ina prosecution for rape or atempt to commit This proviso has been further sdutinaed by the following proviso via 2013 Amendment: “Provided that in a prosecution for an offence under Sec. 376, Sec. 376A, Sec. 376B, Sec. 376C, Sec. 376D ot Sec. 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue; it shall not be permissible to adduce evidence 6r to put questions in the cross-examination of the victim as Recent Amendments and Case Law $3 to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.” Amendment of Sec. 154: Question by Party to his own Witness In the principal Act, Sec. 154 shall be numbered as sub-section (1) thereof and after sub-section (1) as so numbered, the following sub- section shall be inserted, namely. “@) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such se ‘The aforesaid amendment in relation to ‘hostile witness’ has been inserted by the Criminal Lav (Amendmen) Act, 2005 (2 of 2006) (wae. 16-4-2006). RECENT CASES ™ Supreme Court rules ‘on Dying Declaration “The law on the issue can be summarized to the effect that law does not provide who can record a dying declaration, nor is there any ibed form, format or procedure for the same,” said a Supreme Court bench while reversing a Madhya Pradesh high court order on acquittal in a dowry death case (dated 24-5-2013). This means that one need not be a District Magistrate or Government Doctor or a Police Officer to record a dying declaration by someone accusing those responsible for the death of the person - ‘ling his or hr last statement. The trial cour or the High Court may not look for corroboration of a dying declaration, particularly in dowry ‘cases, to prove the guilt of an accused unless this statement suffers from any infirmity, the Supreme Court has held, Writing the judgment, Justice Chauhan said a dying declaration could be oral or written. Any addquate method of comennicatinnS4 Law of Evidence Recent Amendments and Case Law $5 full of kerosene oil fell upon her and thus, she suffered burn use of words, signs or otherwise - would suffice “provided that the indicat injuries. On the basis of the same an FIR was registered. indication is positive and definite” While indicating that any member of pb coud end he ates ying pron tench id by ¢ only caveat was that the person recording the dying declaration ive Magistrate afer geting cert trot be seth the one takiag the anternent was ina proper mental the Bccoutve Magister ging certifi of fines ome condition todo so. “The person who records a dying declaration must be satisfied that the maker is ina fair state of mind and is capable of making such a statement,” said Justice Chauhan, “Moreover, the requirement ofa certificate provided by a doctor in respect of such remained admitted in the hospital. On 28.4.2000, her another dying declaration was recorded by the Executive Magistrate ‘wherein she alleged that on 14.4.2000 at about 1.30 p.m. while the deceased was cooking food and all the students had gone state of the deceased, is not essential in every case,” the bench said. Leapina Case: BHADRAGIRI VENKATA RAVI v PUBLIC PROSECUTOR, HIGH COURT OR. A.P., HYDERABAD [DECIDED ON MAY 29, 2043 (SC)] [lf the dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon’ without any corroboration. But the statements should be consistent throughout. In case there are interse discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same. In fact it is not the plurality of the dying declarations but the xeliability thereof that adds weight to the prosecution cast] ‘The married life of the appellant and the deceased was not very happy. Their marriage was dissolved and the appellant ind depeased stood separated. The deceased was a well qualified wottiaht. fn order go'earn her livelihoods she had been giving nuitiops to rhe student in rented premises. The appellant, as. alleged! in spite of their divorce, was having visiting terms with -the'deceased. On 15.4.2000, Ratna Kumari (deceased) was . Sdenitted in the Govt. Hospital, Vijianagaram at 1.30 p.m, with 44% burns. Her’statement/complaint was recorded by the, head gonstable of police wherein she had stated that a stove home, the appellant poured kerosene on her body and threw the burning stove on her, due to which she received severe burn injuries. The deceased raised hue and cry which attracted some of the neighbours. ‘Ratna Kumari deceased) expired on 3.6.2000 in the hospital and on getting the information, the police altered the FIR into Sections 302 and 498A IPC. The'doctor conducted the post ‘mortem and opined that the éause of death was septicaemia shock due to antemortem burns. After necessary investigation, the police filed charge sheet on 2.12.2000 against the appellant and his parents for offences under Sections 302 and 498A IPC. "The Trial Court acquitted all the accused observing that prosecution could not prove any case whatsoever against either of them as there was no iota of evidence to show the involvement of either of them. _. Aggrieved, the State preferred Criminal Appeal before the High Court of Andhra Pradesh at Hyderabad. The High Court convicted the appellant under Section 302 IPC and awarded the sentence to undergo life imprisonment. Appellant ‘was acquitted of all other charges. Hence, this appeal. ‘The counsel appearing for the appellant has submitted that admittedly after the marriage the parties had separated themselves and therefore, there was no question of living as husband and wife even after 8 years of their divorce. Just jmimediately after the incident when Ratna Kumari, deceased -was taken to the hospital, she lodged a complaint/FIR which was recorded by the Head Constable though after her death$6 Law of Evidence the same was treated as her dying declaration. On the same day, her dying declaration was also recorded by the Executive Magistrate and both these dying declarations clearly speak non- involvement of the appellant or anybody els. It isa clear case of accident. The deceased was tutored by her mother and hence in third dying declaration, the appellant and his parents were enroped, in the offence. The declaration dated 28.4.2000 is self contradictory. The learned counsel appearing forthe State has subfnitted that the High Court has appreciated the evidence and the dying declarations of Ratna (deceased) recorded on 15.4.2000 and on 28.4.2000, and the latter clearly involved the appellant and his parents. The High Court has taken a lenient view and did not admit the-appeal against the parents of the appellant. Hence, the appeal is liable to be dismissed, ‘The Apex Court observed: The FIR/dying declaration recorded on 15.4.2000 reads as under “I belong to Phoolbagh Colony, Vijianagaram. I married 10 years back with Ramana of Kamma while I was studying at Tirupathi. After one year living together, we got divorced through Vijanagaram District Tam living alone and gave tuitions to children and studying law. I forgone my relation with my own people. There is nobody of my own. Yesterday on 14.04.2000 night at about S hours time the current was cut off lit my kerosene stove and prepared tea, In the darkness, my polyster saree got fire and my entire body, chest, hands, face, legs, foot and some portion of the stomach were burnt. I phoned to my known friend i.e. Bhadragin Lalita, She came and took me to the Pradeep Nagar. By then I purchased ointment and applied it. Not cured, Today i.e. 15.04.2000 morning by 10 hours I came to Government Hospital, Vijianagaram with the help of my friend, Nobody is aware due to air and rain while I was burning. Doctor gave medicines.” The Doctor has put an endorsement on the détlatation that she was fit to make the declaration and signed the same. The declaration bears signature ‘of the maker (deceased) and the person recording the same, Recent Amendments and Case Law The dying declaration recorded by the Executive Magistrate dated 15.4.2000 reads as under: “Yesterday night at about 8 hours when I was lighting the kerosene stove to Drepare tea, huge winds are coming, in the meanwhile my saree was burnt and flames came out. Likewise my body was burnt. have no children. I got divorced with my husband through Court ten years back. I alone present when this happened. There are no disputes in between myself and my husband. My husband never came to my house after divores. There are no disputes between myself and neighbours. Though 1 mised cries none of neighbours came as-huge winds are flowing. Hence it might not be heard. My friend Lalitha took ‘me to the Hospital. Thave no relationship with my parent in. {aw’s house. This is happéned unexpectedly. Nobody did this” This declaration also contains the endorsement by the Doctor in respect of the fit condition of the maker. It bears the signature of the deceased and the Executive Magistrate. However, in the third dying dedaration made on 284.2000 before the Magistrate, she has stated that she had been brought to the hospital by her husband Ravi, mother-in-law Lolitha, and father-in-law Gangataju. That they got married on 26.10.1991, She was preparing food on kerosene stove in the tid day between 1.30 to 2.00 p.m, on 144.2000. Her husband asked her whether she had paid the electricity ill. She replied that she could not deposit as the office was closed. Her husband sent one student to the electricity office to see whether it was opened or closed. He came back and answered that it was closed. However, there was exchange of words between therm. He took up a kerosene tin lying there and poured the kerosene on her shoulders and immediately threw her on the burat stove. She got burn injuries. Her husband took the water from the bath room and Poured on her. Srinu, a next door neighbour came there and also poured water on her. The fmes were put off. No neighbour came except Srinu, Her husband requested Srinu not te reveal anything about the incident to anybody. Her husband arranged S758 Law of Evidence some medicines and gave injections to her. He gave her tablets frequently. He had given six injections within a period of 3 days at home, Her parents-in-law came from Rajahmundry on 15,4.2000. They also requested the deceased not to reveal anyone about the incident. ‘On 16.4.2000, her husband and parents-in-law took her to a privare hospital, The doctor gave her glucose and one injection. On the same day at about 12 noon, she was taken to Government hospital on cot by her husband and inlaws and thereafter, none of them could be found. She had earlier made a statement before the police as narrated by her husband and indaws, She has no consciousness to such extent, but the persons were visible. Previously, the lice or Magistrate had not taken any statement forcibly from her. The first two dying declarations were made in the Government Hospital, Vijianagaram and the Magistrate had reached there on being called by the police. There is no inconsistency between the first wo dying declarations and itis cevident from the said dying declarations recorded on 15.4.2000 that both of them had been recorded in the Government Hospital, Vijianagaram. The third dying declaration makes it evident that on 15.4.2000 she had not been taken to the Government Hospital and her inlaws were ti6t available on 144.2000, Her husband had been treating her at home and had admitted to the private hospital on 16.4.2000. As she could not recover therein, then she was transfered to Government Hospital, ‘Vijianagaram on that day. ‘Anasuya, mother of the deceased has deposed that Ratna (deceased) used to tell her that she was harassed by her husband to bring dowry, though she had given sufficient dowry at the time of marriage. She came to know about the ‘burn injuries of her daughter on 15.4.2000 and imimediately ‘went to the Government Hospital. There she found the appellant and his parents, On being asked, Ratna Kumari told her that she Recent Amendments and Case Law 89 suffered the burn injuries by accident. Ten days later, she told the ‘wittiess that the appellant poured kerosene on her and pushed her on a burning stove that is why she sustained burn injuries. “That her another daughter was a police constable and therefore, the appellant apprehended some action by the police against him and his parents. She has further deposed that prior to the death of her daughter, the appellant had developed illicit relationship swith another woman just after Sankranthi festival and she had ‘been informed about this by her daughter that appellant wanted to marry that woman. ‘Kondru Srinivasrao, a second year student and neighbour of the deceased used to come for tuition to the deceased. He deposed that he had heard shrieks coming from the house of Ratna and reached the place of occurrence. He found Ratna in bath room and appellant was pouring water on her. On her request, the witness also brought water from the well and given to the appellant who poured the water on het. He has further deposed that he had not told about this incident to anybody. Dr. Ch. Suryanarayana deposed that he had signed the dying declaration dated 28.4.2000. That Ratna was having 44% of burns. The record of the hospital revealed that she had been admitted in the hospital on 14.5.2000 and had been given regular treatment and blood many times between 145.2000 and 31.5.2000. As per the hospital record she had been brought there by Lalita, a friend of Ratna (deceased). She had given the name of her husband as-Ramana and it has further been mentioned in the hospital record that the patient herself had stated that she suffered with burn injuries accidentally. “The Trial Court has found material inconsistencies in the ‘case of the prosecution and did not sée any reason whatsoever to rely upon the dying declaration dated 284.2000 as the contents thereof were admittedly false and could not be relied upon. If the dying declaration has been recorded by the Executive “Magistrate on 15.4,2000 in the Government hospital, the question of her being treated by her husband for 2-3 days and then her oy AO RR ES SINR TRAE RAMS10 Law of Evidence admission in a private hospital did not arise at all. Her version that she was admitted to the Government hospital, Vijanagaram on 16.4.2000 could not be true. The contents of the dying _ declaration dated 28.4.2000 being full of contradiction do not inspire confidence. Admittedly, there was a divorce between the parties, Therefore, the question of demand of dowry or illxreatment or harassment could not arise after 8 years of divorce decree by the court. The mother of Ratna kas deposed about the _ illicit relationship of the appellant and another woman and the appellant wanted to marry that woman, In case the parties had separated by a divorce through court, we fail to understand how Ratna (deceased) or her parents were concerned about * such a relationship, [kis settled legal proposition that in gase here are discrepancies in two dying declarations it would be until vo convict the accused. In such a factsituation, the accused gets the benefit of doubt [Vides Saniy v State of Mabaracira (2007) 9 SCC 148; and Heenalal v State of Madkya Pradesh (2009) 12 SCC ei}. In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein, In case there are interse ies in the depositions of the ‘witnesses given in suppért of one of the dying declarations, it would not be safe to rely upon the same. In fact it is not the Plurality of the dying declarations but the reliability thereof that adds weight to the prosecution, case. te dying declaration i: found 40 be voluntary, reliable and made in aft mental condition, it can be reed ‘upon without any corroboration, But the statements should be consistent throughout. In ease of inconsistencies, the court has to examine the nature of the same ie. whether they are material or not and ‘while scrutinising the contents of various dying declarations, the court has to examine the same in the light of the various surrounding facts and circumstances. Incase of dying declaration, Recent Amendments and Case Law su as the accused does not have right to cross-examine the maker and not able to elicit the truth as happens in the case of other witnesses, it would not be safe to rely if the dying declaration oes not inspire fll confidence ofthe court about its correctness, as it may be result of tutoring, prompting or product of ‘imagination. The court has to be satisfied that the maker was in a fit state of mind and had a clear opportunity to observe and identify the assailant() [Vide: Sm. Kamla v State of Puyjab ATR 1993 SC 374; Kishan Lalv Stat of Rajasthan AIR 1999 SC 3062; Lalla Srinivasa Rao v State of AP. AIR 2004 SC 1720; Amol Singh ¥ State of MP. (2008) 5 SCC 468; State of Andhra Pradesb vy P. Kagja Husain (2008). 15 SCC 1205 and Sharda v State of Rajasthan AIR 2010 SC 408}. This court has time and again laid down parameters for interference by a superior court against the order of acquittal. In exceptional cases where there are compelling circumstances and the judgmepr under appeal is found to be perverse, tie appellate court Ban interfere with the order of acquittal. The appellate.court should bear in mind the presumption of innocence of the accused and further that the trial court's: acquittal bolsters the presurnption of his innocence, Interference ina routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The High Court did not consider the matter in correct perspective 1or observed the parameters laid down by this court to interfere against the order of acquittal. In view of the above, the appeal is allowed and the judgment and order of the High Court is set aside, The judgment and order of the Sessions Court is restored. The appellant is on bail. His bail bonds stand discharged.1 Introduction Substantive and Procedural Laws? Laws may be divided into substantive and procedural laws. The laws by which rights, duties and liabilities ae defined ae called substantive laws eg, IP.C. (which defines several offences and also lays down the punishment for such offences). The laws which prescribe the mode by which the application of the substantive law is regulated are called procedural laws eg. CrP.C. The procedural laws can be further divided into two parts: firstly, there are rules dealing with various procedures to be followed in a court of law. Secondly, there are rules dealing with the mode of the proof of the existence or otherwise of rights, duties and liabilities-e.g. Evidence A © ‘The object of every judicial investigation is enforcement of some right or liability which invariably depends upon certain facts. Law of evidence is a system of rules for ascertaining the controverted questions of facts in jhdicial inquiries. The substantive law merely defines what facts go to constitute aright or liability. The law of evidence inquires isto these facts; it is a procedural law which provides, inter alia, how a fact is to be proved. . ‘The law of evidence bears the same relation to a judicial investigation 4s logical to the reasoning, Howevef, there are limitations on the free process of reasoning in the form of certain rules or principles. The law nt from procedural law? Explain briefly while n Evidence Act, 1872 {0.U.-2007) a2 Law of Evidence of evidence is a system of rules which a court has to follow. The law of ‘evidence is basically procedural and does not affect substantive right of parties. However, it has here and there overtones of substantive law: For example, the law of estoppel can defeat a man’s right. It shuts his mouth. Ic would not permit him to speak of his rights. Role of law of Evidence in Civil/Criminal proceedings The rules of law of evidence for civil and criminal cases are, in general, the same e.g. the method of proving that a particular person is dead in respect of civil case (person executing the will died or not on a particular date) or criminal case (a person charged with murder). But, there are certain sections of Evidence Act which apply only to the civil cases(eg. Ss.115 -117 dealing with estoppel) and some only to the eriminal cases (eg, Ss. 24-30 dealing with confessions). ‘The method of proving (ie. burden of proof is on the prosecution /plaintiff) is same in both, but there is a marked difference as to the | effect of evidence (or weight of evidence) in civil and criminal cases, ‘There are marked variations in standards of proof in civil and criminal cases (discussed later) Criticism of Law of Evidence A crucial question is: Does this elaborately framed code of law of evidence give any assistance to the judge, whether and how far he ought to believe what the witness say? The answer isa judge cannot absolutely rely on the rules of evidesice. No rule of evidence can guide the judge on the fundamental question of whether evidence as to a relevant fact should be believed or not; and if believed what inference to be drawn from it as to the main fact- Again, the rules of evidence are.not rules of logic - they throw no light at all on a further question 6f-equal importance to the one first stated. Rules of evidence are artificial. The best guide of judge on a ‘question is his own common sense and experience of human nature. A person ignorant of those rules may give a much better answer than a judge. (Owing to the difficulty and abstruseness of the docitinés propounded, the courts are less eager to entertain and the lawyers ae difident to urge, Introduction 3 the questions of law of evidence which requires closer and critical study of the provisions of Evidence Act. It is suggested that the rules of evidence should not be pedantic nor should discretion be too wide. Law of Evidence In India ‘he word ‘evidence’ is derived from the Latin word evident or evider, [hich means “to show clearly, to discover cleaty, to ascettin, 10 prove” Historically described as child ofthe jury system, the system associating With the judge “twelve men” in the administration of justice, The object of rules of evidence is to help the courts to ascertain the truth to prevent protracted inquiries, and to avoid confusion in the ‘minds of judges, which may result from the admission of evidence in excess. Thus, the Indian Evidence Act, 1872 was passed with the main objet of preventing indisciplne inthe admission of evidence by enacting 4 correct and uniform rule of Practice, ‘There are three main principles which underlie the law of evidence:- @ Evidence must be confined to the matters in issue, Hearsay evidence must not be admitted. GH) The best evidence aust be given in all cases, The Indian Evidence Act, 1872.is mainly based on the English law of evidence, It was drafted by Sir James Stephen.? The Act is not ezhausrive it does not purport to contain all the rules of evidence. For the interpretation of the sections of the Act, the courts can lok to the ‘elevant English common law. However, the courts cannot impor any Principle of English law which is inconsistent with wht i laid dow by the Act, ‘Scheme of the indian Evidence Act, 1872 ‘The Indian Evidence Act is divided into three main Parts: © Relevancy of Facts (Chapter I containing Sees. 14 deals with Preliminary points; Chapter It deals with ‘what fxéts may and may not be proved’ ~ Secs. 5~55). es 2 Win dente4 Law of Evidence (0) Mode of Proof (Chapters III to VI deals with ‘how are the relevant facts to be proved’, etc. ~ Secs. 56-100). (UD) Production and Effect of Evidence (Chapters VII to XI deals with ‘by whom and in what manner must the evidence be produced’ ~ Secs. 101-167). “The provisions of the Indian Evidence Act are intended to separate the grain from the chaff, and secure for the consideration of the court the best evidence. Till 2000, nineteen amendments have been made in the Ac Application of the Indian Evidence Act, 1872 “The Act applies to all judicial proceedings in o®before any court, including courts-martial (except under the Army Act, Naval Discipline Act and Air Force Act), but not to affidavits presented to any court or officer, nor to proceedings before any arbitrator. It shall come into force on Ist September 1872 (ec. 1). “The Act applies to judicial inquiries only and not an administrative inquiry. An enquiry is judicial ifthe object of it is to determine a jural relation between the parties. A judicial proceeding is one in the course of which evidence is or may be legally taken on oath (Sec. 2), Cr-P.C]. An execution proceeding is a judicial proceeding, but a contempt proceeding js not, Proceedings under the Income Tax are not judicial proceedings ‘under this Act, but proceedings before Industrial Tribunal has been held 10 be judicial proceéding, For the purposes of the Evidence Act, an inquiry i judicial if itis ‘under an obligation to take evidence from both sides, to hear both sides and then to formulate a judgment by the use of discretion. Such an inquiry is different from a fact-finding inquiry in which only discovered facts have to be recorded and there is to be no use of discretion ie. an administrative inquiry. “The Act does not apply to ‘affidavits’ because the deponent’s assertion of facts om the basis of his personal knowledge does not constitute ‘evidence’. An affidavit is, however, used as a mode of proof. It can become evidence only by consent ofthe party or if specifically authorized by any proviston of law viz. Order 19, C.P.C.s Secs. 295-297, Cr.P.C. Introduction 5 Further, arbitrators have to follow the principles of narural justice but they are riot bound by the law of evidence (Munic. Corpn. Delhi v Jagan Nath Ashok Kumar ATR 1987 SC 2316). Still further, the Evidence Act has no application to enquiries conducted by the tribunals, even though they may be judicial in character; such tribunals follow rules of natural justice. Lex fry ~ Law of evidence is the lex for‘ i.e. law of the forum (or court) in which a case is tried (law of the place of the action’). ‘Whether 2 witness is competent or not; whether certain evidence proves a fact or not; that is to be determined by the law of the country where the question arses, where the remedy is sought to be enforced and where the court sits to enforce it. ‘Where evidence is taken in one country in aid of a suit or action (proceeding in another country, either on ordinary commission or with the assistance of the local courts, the law applicable to the recording of evidence, would be the law prevailing in the country where the proceeding, is going on [Praful B. Desai (2003) 4 SCC 60}, Repeal of Enact ments . Sec.2 (1) repealed all rules of evidence which were not contained in any Statute, Act or Regulation in force in any part of British India. Before péssing ofthe Indian Evidence Act the rules of evidence were governed by the rules of English Common Law, Hindu and Mohammedan Laws, and the rules of Equity, Justice and Good Conscience. Sec. 2 (1) repealed all those rules of evidence. “The Repealing Act, 1938, has repealed Sec. 2 and Schedule, ‘The Act a Complete Code “The Indian Evidence Act, 1872 is mainly based on the English law of evidence. The Act consolidates, defines and amends the law of evidence. The Act, however, is not exhaustive, i. it does not purport to contain all the rules of evidence. For the interpretation of the sections of the Act, the courts can look to the relevant English common law. However, the courts cannot import any principle of English law which is inconsistent ‘with what is laid down by the Act.6 Law of Evidence The law of evidence is contained in the Evidence Act and in otber ‘Acts and Statutes which make specific provisions on matter of evidenee viz. Order XXVI, CP.C,5 Secs. 291-292, ‘CrP.C.s Secs. 59 and 123, TP. Act. It may be noted that the Evidence Act deals with the particular subject of evidence and is a ‘special’ law. Hence, no rule about the relevancy of evidence contained in the Evidence Act is affected by any Provision in the CrP.C or any other enactment unles iis so specifically stated in the Code or it has been repealed or annulled by another stare. Evidence exclided by the Evidence Act is inadmissible even if it seems essential for ascertainment of truth, Further, parties caninot contract themselves out of the provisions of the Act. Likewise, a court cannot om { the ground of public policy, exclude evidence relevant under this Act. Derinirions: INTERPRETATION CLAUSE Tnthis Act the following words and expressions are used inthe following sense unless-a contrary intention appears from the context: “Court “Fact”; “Relevant”; “Facts in Issue”; “Document”; “Evidence”; “Proved”: “Disproyed”; “Not Proved”; “India” (Sec. 3), Court “Court” includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence. This definition is not Tr may be noted that ina trial by jury, the Court includes jury. A Court does not include an arbitrator though he is legally authorized vo take evidence. Fact? “Fact” means and includes - (any thing, state of things, or elation of things, capable of being Perceived by senses [ie, external fats illustrations (a), (8) and Oh ee 3. What is a fact? How is it cliferent from ‘fact in Issue’? Give two istration of each. nee Introduction 7 @) any mental condition of which any person is conscious [internal facts; illustrations (d) and (¢). ustrations That there are certain things arranged in a certain order in a certain place, is a fact. (©) That a man heard or saw something is a fact. (© That a man said certain words is a fact. (@ 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, isa fact. (© That a man has a certain reputation is a fact, Law has not merely to deal with things physically but also with things ‘which are so hidden as to be beyond physical observation, such as, a state or condition of a person's mind. Thus, intention, fraud, good faith, negligence, etc. are facts. It has been said that “a state of man’s mind is as much a fact as the state-of his digestion”. The state of person's health isa fat. The psychological fact can only be proved by circumstantial evidence. The facts may be positive or negative. The existence of a certain state of things is a positive fact; the non-existence of it is a negative fact. ‘The fact sought to be proved (factum probandur) is called “principal facts”, the facts which lead to establish it are called ‘evidentiary facts’ {fctum probs). Facts in Issue® “Facts in issue” means and includes - (1) any act from which either by itself or in connection with other facts, the existence, non-existence, 4. Give an example of fact which is not capable of being perceived by the senses, {L.c.-2006) 5. Write a short note on ‘Facts in issue ILC.H94m6 1 Ciednn8 Law of Evidence nature or extent of any right, liability or disability, asserted. ied i ; fs 7 » or denied in any suit or proceeding, necessarily follows, (2) any fac asserted or denied in answer to an issue of fact recorded under the Civil Procedure Code. Facts which are in dispute are facts in issue. Evi ; ic Evidence becomes necessary only in reference o facts which arin comtroverry or dispute between the parties. Further, the fact should be such that the question of fhfikiey should depend upon it. The following ilutration makes clear it “A is accused of the murder of BY. At his tril the folowi is ; following fac my be in issue - chat A caused B's death; that A intended wo case Bt e th; that A had received grave and sudden provocation from By that at the time of doing that act which eayged B’s death, was, by reason of unsoundness of mind incapable of kknowitig its nature, Thus, every fact which a plaintiff must prove i Thu a plaintiff must prove in orde adjudication in his favour, or which a defendant may prov to delet the sus becomes fit ins. Fain ine wil depend pon the povidone the aubranve hw applible othe offence. for example, the action i for the tor of negligence, such ofthe ingredients of lability for negligence which are in dispute shall be the facts in issue. Ifthe plaintiff alleges that the defendant was under duty of care towards him and the defendant denies the fact, this fact will be a fact in issue between the pares, Ths facts in sue depend yon the ingress fhe offence and the state of the partes pleadings. A fact in ise is called the ‘principal’ fact; of factum proband. In criminal matters, the allegations inthe chargesheet constitute the fas ins neil mates, the proces of cei ct ine is known as framing isues, The issue of fac’ under CPC. is the fac in ise" of the Evidenoe Ace nema Whatever be the facts in issue, there existence has ay issue, there existence has to be the satisfaction of the court before the court can be ‘alled up me pronounce a judgment on the bass of those fact. ” Introduction 9 Relevant Facts® “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”, viz. @ facts logically connected with facts in issue (Ss. 6-16), admissions and confessions ($s.17-31), i) statements by non-witnesses (6. 32-33), Gs) starements under special circumstances (Ss. 34-38), (judgment in other cases (Ss. 40-44), (0) opinions of third persons (6s. 4551), (ai) evidence as to character (6s. 52-55). It is to be noted that the section does not define the term “relevant”. Rather, it simply indicates when one fact becomes relevant to another. Normally, facts relevant to an issue ate those facts which are necessary for proof or dsproof ofa fat in issue, Thus, relevant facts (or evidentiary facs) or faci probans are those which are capable of affording a reasonable presumption as to either the facts in issue or the principal matters in dispute. The word ‘relevant’ has been held to be ‘admissible’ (Lakbmai v Haider, 3 CWN 268). Relevant facts are not themselves in issue, but are foundations of inferences regarding them. For example, “when A is accused of the murder of B”, the ‘relevant facts are — A had a motive and opportunity to kill B, he had made prepatations by buying a knife, etc., or after the murder he was seen running with blood-stained knife in hand. Relevancy implies relationship and such relationship with the facts in issue as convinces or has a tendency to convince the judge as to the ~ existence o otherwise of the facts in issue. The word ‘relevant’ means ‘that any two facts to which ivis applied are so related to each other that according to the common course of events one taken by itself or in conection with other facts proves or renders probable the existence or non‘existence of the other. It may be noted that circumstantial evidence 6. Wie a short note on ‘Relevant facts: [LCH95, Los-94/05)10 Law of Evidence ‘Wit a short note on ‘Definition of Evidence! un Introduction u The definition of ‘evidence’ given in the Evidence Act is incomplete and defective. It excludes the statements and admissions of the parties, their conduct and demeanour (outward behaviour) before the court, circumstances coming under the direct cognizance of the court, facts of ‘hich the court can take ‘judicial notice’ of and the fact which the court must or may presume. The confession of an accused person is not evidence in the ordinary sense of the term, as defined in this section (as ‘not taken on oath and not subject to cross-examination) though it has to be given due consideration in deciding the case. Similarly, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because ‘whatever is considered by the court is evidence’s circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense (Harichanan Kurmi v State of Bihar, ATR 1964 SC 1184). Similarly, statements of parties when examined otherwise than as witnesses, material objects other than documents, etc. are not evidence according to the definition given in Sec. 3, but these are matters which the court may legitimately consider. The definition given in Sec. 3 is, however, exhaustive in the sense that every kind of evidence can ultimately be reduced either to the categorjef oral or documentary evidence. Difference between ‘evidence’ and ‘proof ~"The word ‘evidence’ includes all the legal means, exclusive of mere argument, which tend to prove or disprove any matter or fact, the truth of which is submitted to judicial investigation, ‘Proof is the establishment of fact in issue by proper legal méans to the satisfaction of the cour. It isthe result of evidence, while evidence is only the medium of proof. : Appreciation of Evidence ‘Whatever be the kind of evidence, namely, whether facts are reported to the court through the mouth of a witness or by means of a document, jin either case the court has to examine the reliability quotient of the evidence produced. This is called “appreciation of evidence”. Evidence is required to be appreciated to find out what part of it represents the tru¢ and correct state of things. Its the function of separating the grain from the chaff (Ganesb K. Gulve v State of Mabarashtra ATR 2002 SC 3068}. Evidence is to be tested by its inherent consistency and inherent12 Law of Evidence probability of the prosecuti i ee prosecution story [Ramakant Rai v Madan Rai AIR wimastt3 Pay fhe ult does not give evidence and des nat ofr e for conrexaminaion, a presumption would arise that the case up by ‘is not correct [1idbyadhar v Manikrao AIR 1999 SC 1441}. Different Kinds of Evidence There are different types of evidence: (1) Din exidne ~ It is the testimony of the witnesses 25 to the principal fact to be proved e.g. the evidence of a person who ss ie he saw the commission of the act which constitutes the eed cine " ee eed crime Ie ato includes the production of an orginal Heme ay fact which without the intervention of any other fact proves a of afact in issue. The fact of a marriage, for example, between czrain persons may be proved by producing the weiing photographs Diet evden gnerily of sper cogs i rene advantage i that there is only one source of error, namely, fallibility of testimony. @ eee ~ Itis the testimony of a witness to other fae from which the fact in issue may be inferred. In a - on circumstantial viene, such evidence should be so strong 2s to point vinmistakably to the guilt ofthe accused. ‘Circumstantial evidence’ includes all the relevant facts, Ii rot bese secondary evidence; it is merely direct evidence applied indirectly. State of UP. Ravindra ; tn Sac Prakarh Mital (ATR 1992 SC 2045) the court The circumstances from which the conchsion is drawn: be fully established. . dewnstoul @ The circumstances should be conclusive in nature. Gi) All the facts so established should be consistent only with the hypothesis of guil in is rith i hyperbns of pi and inconsinns with nnocene ofthe 8. Discuss: Value and proof of ‘Circumstantial evidence [o.u-2010) Introduction i (&) The circumstances should, to a moral certsiny, exclude the possiblity of guile of any person other than the accused. Inthe absence of direet evidence, a person can be convicted om the basis af circumstantial evidence alone ifthe conditions mentioned above are satisfied (Umedbhai v State of Gujarat AIR 1978 SC 424). In appreciating ease based on circumstantial evidence, one circumstance by itself may tor unerringly point to the gui of the acused, Iti the cumulative result fall the circumstances which could matter (Gade Lakshmi Mangraj State Of AP. AIR 2001 SC 2677). Thus, there must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent Til che ipnocence of the accused and it must be such as to show that vr thin all human probability, the act must have been done by the acrused (Hanumant Govind Nargundkar vStateof MP. AIR 1952 SC343) Sometimes the facts happen suddenly and do not leave behind much direct evidence. In such cases the main event will have to be reconstructed before the court with the help of the surrounding Groumstances such asthe cause or the effects of the event. Circumstances sometimes epeak as forcefully s does the direct evidence. For examples there fsa quite ide vilge touched by aroad which ends there, Occasionally driver who belongs to the village comes there with his lorry for night rests. The night, on ‘which the truck came, a man of the village was found ying dead by the road-sde, The postion of his body and the navi of injuries leave on doubt that he was dragged by a vehicle for a liele “Touance and then one wheel ran over him. There was no dust storm, rain or mist'to obstruct visibility. From these circumstances ‘certain facts may sasonably be inferred and many others can be safely presumed a8 4 tnater of probability The fats tell the story beyond a shadow of doubt that itis the work of the village lorry and that it must have been negligently handled. “Where the circumstantial evidence only showed that the accused and deceased were seen together the previous night, it was held to be nor talfiient (Prem Thakur v State of Punjab AIR 1983 SC 446) The Kerala High Court has observed tht, ina murder eas, just beeause the doctor conducting the autopsy is not in a position to give a definite opinion regarding the cause of death, the court does not become helpless. can ‘all convict the accused on the basis of other circumstantial evidenceLaw of Evidence (State v Mani, 1992 Gr Ly 1682) In Laxman Naik v State of Orisa (AIR 1995 SC 1387), the conviction and sentence i 'S SC 1387), the convie sentence of death sustained on th bats of circumstantial evidence showing an unbroken and comple of events leading to the rape and murder of a seven yearold | daughter of the brother of the accused. erceives itself eg. that a man standing before a jud - . iudge bi 3S on his face, objets lke murder weapon, Blooded clothes, photographs, etc. ‘Personal’ evidence i is Pe enchanted evidence is that which is (Hearsay evidence -Iv is also called derivative or secondhand evidence. Is the testimony of a witness as to statements made out of coure which are offered as evidence oftheir own teat Thus, A’s evidence that A beard that a murder had taken plaen is hearsay’ evidence. u ©) Primary evidence - It means the bes or original evidence. (©) Secondary evidence - Its an indirect evidence? ©) Pasitive/ negative evidence-"The former tends to prove the exence of a fact, while the latter non-existen a fact, while the latter non-existence of a fact. Nesath evidence is ordinarily no good evidence,” NYE @) Ondevidence, o Decionentery evidence. Under Sex. 3, Evidence Ac, evidence can be both oral and documentary and “ i 7 prodaeed a geeamentay and ‘lectronic records! can be (10) Conclusive evidence - Where the connection between the Principal and evidentiary fact is a necessary conclusion. ee %. ‘What isthe ference Between primary evidence and secondary evidence? Introduction 5 Evidence Recorded through Video-Conferencing Leaoine Case: STATE OF MAHARASHTRA v PRAFUL B. DESAI (DR.) {(2003) 4 sce 603) Facts and Isue ~ Ta this case, the complainant's wife was suffering from terminal cancer. It is the case of prosecution that the ‘complainants wife examined by Dr. Greenberg (US.A) who opined that she was inoperable and should be treated only with medication. ‘Thereafter, the complainant and his wife consulted the resporident who is consulting surgeon for the last 40 years. In spite of being made aware of Dr. Greenberg's opinion, the respondent suggested surgery to remove the uterus. The Maharashtra Medical Council in an inquiry held the respondent guilty. The prosecution made an application to examine Dr. Greenberg through video- conferencing, The rial court allowed i; the respondent challenged that order in the High Court. The High Court held that as per Sec. 273, Cr-P.C,, the evidence must be recorded in the presence of the accused. In this case, question for consideration was whether in a criminal trial, evidence catf’be recorded by “video conferencing,” Observations ~ The Supreme Court rejected the view taken by the High Court and held that the High Court has failed to read Sec. 273, Cr.P.C. properly. Sec. 273 provides for dispensation from personal presence. In such cases, evidence can be recorded in the presence of the pleader which is deemed to be presence of the accused. Thus, Sec. 273 contemplates constructive presence. ‘This indicates that actual physical presence is not must. ‘As to the question whether evidence can be recorded by video-conferencing, the US Supreme Court in Maryland v Santra Aun Craig [497 US 836 (1990)] has held that recording of evidence by video-conferencing was not a violation of 6th Amendment (Confrontation Clause). ‘This court also observed that court must endeavour to find out the truth. There would be failure of justice not only by an unjust conviction but.also by acquittal of the guilty for16 Law of Evidence “unjustified failure to produce available evidence [Naesbuaar Krishna Ghobe v State of Maharashtra (1973) 4 SCC 23}. Justice Bhagwati in the case of National Textile Workers’ Union v PR. Ramakrishnan (1983) 1 SCC 228 held that, Law cannot stand still, it must change with the changing social concepts and values. If the law fails to respond to the need of changing society, then it wil stifle the growth ofthe society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. In State v SJ. Choudbary (1996) 4 SCC 567, it was held that the Evidence Act was an ongoing Act and the word “handwriting” in Sec. 45 of that Act was construed to include “typewriting”, (On the same principle, courts have jterpreted, over a period of time, various terms and phrases. Examples: “Telegraph” to include “Telephone”; “Banker's books” to include “Microfilm”; “To take note" to include “Use of Tape recorder”; “Documents” to include “Computer databases”. In Basavaraj R. Patil v State of Karnataka (2000) 8 SCC 740, the question was whether an accused needs to be physically present in court to answer the questions put to him by court whilst recording his statement under Sec. 313, Cr.P.C. It was held that the section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in facilities for legal aid in the country. It was not necessary that in all cases the accused must answer by personally remaining present in court, In the present case, the court observed. @ Video-conferencing is an advancement in science and technology which perinits one to see, hear and talk with someone far away, withthe same fclcy and ease as if he is present before you ic. in your presence. Except for touching, one can see, hear and observe as if the party is in the same room. ‘This is not virtual reality, ivis actual reality. Thus, in video-conferencing both parties are in the presence ‘of each other. Ii clear that so long as the accused Introduction and/or his pleader are present when evidence is recorded by video-conferencing that evidence is being. recorded in the “presence” of the accused. @ Normally, when a commission is issued by the court for the examination of a witness, the recordings would have to be atthe place where the witness is. If the witness is outside India, arrangements are required between India and that country because the services of an official of the country (mostly a judicial officer) would be required to record the evidence and to ensure attendance. However, new advancement of science and technology permit official of the court, in the city where a video- ‘conferencing isto take place, to record the evidence. ‘Thus, where a witness is willing to give evidence, an official of the court can be deputed to record evidence on commission by way of video- conferencing. Gi) The evidence will be recorded in the studio/court where the video-conferencing takes place. The judicial officer shall ensure that the respondent and his 7 counsel are present when the evidence of Dr. - Greenberg is recorded and that they are able to observe the demeanour and hear the deposition of Dr. Greenberg, The officer shall also ensure that the respondent has full opportunity to cross-examine Dr. Greenberg. . i) If nist be clarified that adopting such a procedure may be possible if the’ witness is out of India arfd not willing to give evidence. Decision ~ Held that under Sec. 3, Evidence Act, evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in ctiminal matters, can also be by way of electronic records. This would include vvideo conferencing. LLL LEE LL ILE LE LEE LES IE TEI ETE A A SN ES RRAS EA Ro ann etn18 Law of Evidence (Comments ~ Examination of witnesses through video-conferencing has been approved in Badala Murali Krishna v Sint. S. Bodala Prathima (AIR 2007 A.P. 43). In Amitabh Bagebi v Ena Bagchi (AIR 2005 Cal 11), the court said that there was no bar on examination of a witness through video-conferencing. It'was a case for claim of pendente lite maintenance. The husband was permanently living in America. His statement was allowed to be recorded by the electronic evidence.) ; Document? - | ‘The term “document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more sha ne of those means, intended tg be used, or which may be used, for the purpose of recording that énatter. lastrations ~ @) A writing, (i) words printed, lthographed or hororarias (ii) a map or plan, (v) an inscription on a metal plate or stone, and (9) 2 caricature ~ are all documents. ; “This definition of the word ‘document’ similar to the one contained in the Indian Penal Code. Stephen defines a ‘document’ as “any arer having any matters expressed or described upon it by marks capable o being read”. Thus, letters imprinted on trees as evidence that they have been passed by the Forest Ranger are documents. . In R. v Daye, the term ‘document’ was defined as “ay wing or inti ing made evidence, no matter on what i sree cen indicate by notches the number of loaves of bread or quarts of mil supplied to their customers are also documents - as much as more advanced computerised methods of keeping accounts. A musical composition is also a document. 10. Feplain the term ‘Document. [Lcres6, Introduction 19 India india” means the territory of India excluding the State of Jammu and Kashmir, Proved, ‘See under the Questions section. FURTHER QUESTIONS Q.1. (a) Explain the terms ‘Proved’, ‘Disproved’, and ‘Not proved’, , (0.U-200772017 (©) Write a short note on ‘Standard/Degree of proof in respect of civilleriminal proceedings’ (Lc 9405) A. (@) Proved, Disproved, Not Proved (Sec. 3) “A fact is said to be “proved” when, after considering the matters before i the cour either believes ito exist, or considers its existence so probable that a prudent man ought, under he circumstances of the Particular case, to act upon the supposition that it does exists, A facts said to be “dipromd’™ when, after considering the matters before it, the court either believed that it does not exist, or considers ite nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist, A fact is said to be “rot promd” when it is neither proved nor disproved.” It means neither the facts proved with certainty nor the free is believed to exist. In other words, the man of ordinary prudence neither believes thatthe fac exists nor he believes that the fact does not exist, ‘These provisions of the Act deal with the degree or standard of proof. These are the only provisions that deal with the matter. Evidence of fact and proof of a fact are not synonymous terms, Proof is the effect of evidence. ‘Proof’ considered as the establishment of material facts inl issue in each particular cace hy nennar20 Law of Evidence means to the satisfaction of the court is effected by: () evidence or statements of witnesses, admissions or confessions of the parties, production of documents; (ji) presumptions; (ii) judicial notice; and @iv) inspection. Te may be noted that the word “matters” (and not the term evidence) is used in the definition of the term ‘proved! and ‘disproved’. For instance, a fact may be orally admitted in Court; such an admission would not come within the definition of term ‘evidence’, yet itis a matter which the court, before whom the admission was made, would have to take into consideration, in order to determine whether the particular fact was proved or not proved. It is because of the use of this wider term that a court can attach due weight to the demeanour of a witness, ie. the ‘matter in which he gives evidence in the court. In State of Maharashtra y Mad, Yakub (AIR 1980 SC 1111), iewas pointed that the word ‘proved’ does not draw any distinction between direct or circumstantial evidence. Proof does not mean proof of rigid mathematical demonstration Gbsolute certainty or accuracy of statements), because that is impossible; it must mean such evidence (such degree of probability) as would induce ‘a reasonable man to come to the conclusion [Hawkins v Povells Tillary Coal Co, Ltd. (1911) 1 K.B. 988; 2005 SCC (Cri.) 225]. Suspicion cannot take the place of proof, nor moral belief of the judge in the guile of the accused. The sea of suspicion has no‘shore and the court that embarks upon it is without rudder and compass. In M. Narsingha Rao v State of Andhra Pradesh (ATR 2001 SC 318), the Supreme Court held that a fact is said to be “proved,” when after considering the matter before it the court either believe it to exist or considers its existence so probable that a prudent man ought, under ‘circumstances of particular case, to act upon supposition that it exists. “This is the definition of the word ‘proved’ in the Evidence Act. What is required is production of such materials on which the court reasonably acts to reach the supposition that the fact exist. Proof of facts depends upon degree of possibility of having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. ‘In Babuda v State of Rajasthan (ATR 1992 SC 2091), it was held the accused not to be convicted of theft where there was nothing to show his presence in the house from where the articles supposed to have been Introduction 21 olen from removed, the only evidence being recovery one and half months at later from the person to whom the articles were allegedly sold, conviction not to be based upon suspicion. The extent to which a particular evidence aids in proving the fact in controversy is called as the ‘probative force’. What and how much proof is necessary to convince the judge of the existence of a fact in issue? The answer depends upon many circumstances as different standards of proof are demanded in civil and criminal cases. In civil cases, a matter is taken to be proved when the balance of probability suggests it, but in ‘criminal cases the court requires a proof beyond reasonable doubt. Graver the offence, stricter should be the degree of proof [Ashish Batham v State of M.P. (2002) 7 SCC 317; Mausam Singha Roy v State of W.B. (2003) 12 SCC 377]. A reasonable doubt is not an imaginary, trivial or a mere possible doubt, but a fair doubt based upon reason and common sense. 1k must grow out of the evidence in the case [State of MP. v Dharkole AIR 2005 SC 44]. (b) Standard/Degree of Proof in respect of Civil and Criminal proceedings. ‘The Evidence Act makes no distinction between the degree of proof or probability requisite for criminal as distinguished from civil cases. However, as remarked by Best in his book on Evidence, “There is marked difference a3 to the effect, ie. probative force of evidence, in civil and criminal proceedings. In civil cases, mere preponderance of probability is sufficient; ‘whereas, in criminal cases, issues must be proved beyond any reasonable doubt”. The rule is based upon the maxim of English law laid down by Holroyd J. that “Is better that ten guilty men should escape, rather than one innocent should suffer”. In civil cases, the rule-of evidence may be relaxed by consent of parties or by cours order eg. proof of affidavit It is not so in criminal cases, With regard to proofix ‘criminal’ cases, the following general rules have to be observed: @ The accused is always presumed to be innocent until the prosecution proves him to be guilty. While in civil cases, all that is necessary to insist upon is thatthe proof adduced in support of a fact is such that should make a prudent man to act upon the supposition that it exists.22 Law of Evidence @ The evidence must be such 2s o exclude every reasonable doubt of the guilt of the accused. : G@_In case of any reasonable doubt as to the guilt of the accused, the benefit of doubt should always be given to the accused. ») ‘There must always be clear proof of corpus delit, ie, the fact of commission of the crime. () The hypothesis of delinquency should be consistent with all the facts proved. aS As regards the standard of proof in civil and criminal cases, Denning J, observed in Bater v B., “It is true that by our law, there is a higher standard of proof in criminal cases than in civil cases; but this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard, So also, in civil case, there may be degrees of probability”. The general rule in civil actions (except matrimonial causes) is that an uncontested case may be established by a minimum of proof, and a contested case by a balance of probabilities, ‘The same evidence which may be sufficient to regard a fact as proved in a civil suit may be considered insufficient for a conviction in 4 criminal action [Razik Ram v Jaswant Singh (1975) 4 SCC 769) 2. Whether the following can be characterized as ‘documents’: (Writings on the walls of Red Fort. (i) The words ‘owned by L.C.t written on the fans hanging in the classroom of a school. (i) Inscriptions on the bricks embedded inthe walls and plastered +. from outside, (®) Inscription on a stone. A2. Document According to Sec. 3, ‘document’ means any matter expressed of 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. ILer9406 Introduction 23 Mlustrations ~ A writing; words printed, ithographed or photographed; a ‘map/plan; an inscription on a metal plate or stone; and, a caricature ~ are all documents. Speaking generally, it means anything or matter which contains a permanent record of a relevant fact or a fact in issue. Thus, a paper on which a contract is written isa document, so is a wall or chattel or stone ‘on which something is inscribed. It has been sai that the word ‘document™ 4s used in the law of evidence ‘should not be construed restritively*. Etymologically the word means something which shows or teaches and is evidential or informative of its character. Of course, much depends upon the context in which the word ‘document’ is used. ‘Thus, in the case in question, (), (i), (ii) and Qi) are ‘documents’.2 Relevancy and Admissibility of Facts Of What Fact May Evidence be given (Sec. 5) “Evidence may be given of the existence or non-existence of every fact in issue and of relevant facts, and of no oflfes”. Explanation ~ This section shall not enable any person to give evidence of a fact which he is disenttled to prove by any provision of law for the time being in force relating to Civil Procedure. Ilystration ~ A is tied for-the murder of B by beating him with a club ‘with the intention of causing his death. At A’s trial the following facts are in issuer A’s beating B with a club; As causing B's death by such beating; A’s intention to cause B's death. ‘According to Sir James Stephens, the most universal rule of evidence is that the evidence adduced should be alike directed and confined to the matters which are in dispute. Anything not directly connected is irrelevant. “Thus, evidence of all collateral facts, which are incapable of affording any reasonable presumption as to the principal matters in dispute, are excluded to save public time. Logical and Legal Relevancy In order to prove the existence or nonexistence of the facts in issue, certain other facts may be given in evidence, called relevant or evidentiary facts (See Chapter 1). Such facts may have such a direct or indirect connection with the fact in issue, that they render the latter probable or improbable. (24) Relevancy & Admissibility of Facts 25 A fact is said to be hgaily relevant to another when it bears such ‘a casual relation with the other as to render probable the existence or non-existence of the latter. All facts which are logically relevant are not legally relevant. One fact is said to be dgaly relevant to another only when the one is connected with the other in any of the ways referred to in Secs. 655 of the Act. Whatever i legally relevant is logically relevant. However, onily legally relevant facts are considered as relevant facts. A confession made toa police officer may appear to be logically relevant, but itis not legally relevant, for Sec. 25 declares that it cannot be used as evidence against the person making it. The question of relevancy is a question of law to be decided by the Judge If irrelevant evidence is so mixed up with relevant evidence that it cannot be separated, the whole of the evidence should be rejected. The question of relevancy isa question of law and can be raised at any stage of the proceeding, The Explanation to Sec. 5 lays down that if some provision in Civil Procedure Code disentitles the person to give evidence ofa fact, he will not be entitled as of right to adduce that evidence in the court. Relevancy and Admissibility Relevant means that which is logical probative. Admissibility is not based ‘on logic but on law and strict rules. The terms ‘relevancy’ and ‘admissibility’ are not co-extensive or interchangeable terms. All admissible evidence is ‘usually relevant, but all relevant evidence is not admissible. All facts which are allowed by the provisions of the Evidence Act to be proved are relevant; but, however relevant a fact may be, unless it is allowed to be proved by the provisions of the Act itis ot admissible. Relevancy (Ses. 658) theans, “what facts may be proved before a court”. The admissibility (Gee. 56 onwards) is the means and the method of proving the relevant facts. Relevancy is the gems of which admissibility isa spies 4: Distinguish between relevancy and admissibilty. [Ler-96, Lei-93) Discuss: Concept of relevancy under the Indian Evidence Act. {0.u-2007 Give one example of () facts though relevant are not ackissible under the Evidence Act (i) facts though admissible are not relevant under the Evidence Act TLe-2006) - “All that is relevant may not be admissible but all that is admissible has to be ‘elevant.” Elaborate. Mention exceptions toi, any. [D.U-2010)26 Law of Evidence disclosure. Though where the relevancy of a fact is established, there is Presumption ofits admissibility and its for the other side to show that the fact is not admissible. Ir may be noted that if admissblry is concidred synonymous with the receivability in evidence, then every admisiie fcr ‘snot necessarily relevant. Thus, the previous statements to contradict ¢ witness and the facts to impeach the eredit ofa witness, are receivable in evidence but they are not relevant. 5 ‘The court is to decide the question of admissibility of an evidence Gee 136) Admissibility isa quay standing beeen relevancy (r probatne Yalue) on the one hand and proof (or weight of evidence) on the other hand. A fact may be relevant but the proof of it may be such as nse. allowed in the case ofthe ‘hearsay’ rule (cg. statements made out of the cours witness asserts andthe accused sid ‘so and so), Thus, orl statements which are hearsay may be relevant, but are not admissible, In Ram Bibari Yadav v State of Bibar AIR 1998 SC 1850, the Supreme Court explained the point of difference between relevancy of evidence and its admissibility. ‘The court said that. frequently the expression ‘relevancy’ and ‘admissibility’ are used as being synonymous with each other but their legal implications are different, because facts which we relevant may not be admissible. For example, the communication made by spouse during marrage, the communication between an advovate cad his cliené may be very much relevant but at a matter of policy they are not admissible, On the other hand, there are fats which, though admis, ace not relevant. Their admissibility is grounded on other considerations, and nor the consideration of relevancy. Evidence in terms elicited from 4 wings in crossekamination a o his character to find out his credibly is admissible although it may have nothing to do with the facts of the case, Ici a fundamental rule of the law of evidence that evidence must be relevant in order to be admissible. But the converse is not true, because much relevant evidence may be inadmissible under the specific Relevancy & Admissibility of Facts ar rales of evidence affecting admissibility. Evidence may be produced to show that a witness was biased or suffered from some mental condition which rendered his evidence unworthy of belief; or showed that a confession was admissible because it was made without oppression, or that a secondary evidence of the contents of a’document might’ be adduced because the origina} was lost. These are facts which go to the admissibility of evidence. Hearsay evidence is excluded, even ifit is relevant, because it may be repeated version and may suffer from exaggeration or undertoning with no chance to cross-examine the original narrator. Evidence of character of an affected person may be materially relevant but is excluded from admission because of the unnecessary prejudice to the mind of the judge and the chance of deni of fair trial. Admissibility has nothing to do with relevancy or'probative value. Admissibility is a matter of legal policy. It is a question of law to be determined by lex fori. Evidence obtained by Undesirable Methods - Whether Admissible ‘The relevant evidence remains relevant, even ifit was obtained by improper cor unlawful means. “The test to be applied in considering whether evidence is admissible is whether it is réevant to the matter in issue. If itis, it is admissible and the court is not concerned with how it was obtained” (Magraj Patodia v R,K. Birla (1970) 2 SCC 889]. The House of Lords would sanction the exclusion of such evidence only where the accused ‘had been lured into incriminating himself by deception after the commission of an offence [R. v Sang (1979) 2 All ER 1222). The Supreme Court noted the only exception to this rule, which is that where after the alleged offence, improper methods have been used to obtain evidence for it and the judge is of the view that the prejudicial effect of such evidence would be out of propostion to its evidentiary Value, the judge may exclude it (Pushpadevi v ML. Wadhawan AIR 1987 SC 1748). The impact om the fairness of the proceedings is the crucial determining factor. In R. v Christon (1992) 4 AUER 559, the police operated for about 3 months by establishing a shop of jewellers and putting up the shady image of being interested in buying ‘stolen property”. The object was to28 Law of Evidence recover stolen goods and to obtain evidence against those involved in theft and handling, All the transactions in the shop were filmed and conversations recorded. The evidence so collected was admitted at the trial, The court reasoned, “the trick was not applied 16 the appellants (accused persons): they voluntarily applied themselves to the trick. It is not every trick producing evidence against an accused which results in unfairness”. Relevancy of Facts forming Part of Same Transaction (Sec. 6) Facts which, though not in issue, are so connected with a fact in issue, ‘sto form part of the same transaction, are ena, whether they occurred at the same time and place or at different times and places”. “The principle of the section is that whenever a “transaction” such asa contract or a crime, is a fact in issue, then evidence can be given of every fact which forms part of the same transaction. Transaction refers to a series of acts so connected together as are capable of being, Called by a single name e.g a contrac, a crime, ete. Roughly a transaction tay be described as any physical act, or series of connected physical acts, together with the words accompanying such act or acts. ‘A ‘transaction’ may consist of a single incident stretching over a few minutes, or it may be spread over a variety of facts, occupying a much longer time, and occurring on different occasions or at different places. ‘Where the transaction consists of different acts, in order that the chain of such acts may constitute the same transaction, they must be connected rogether by proximity of time, proximity or unity of place, continuity of ction, or community of purpose or design. A transiction can be truly ‘understood only when all ts integral parts are known and not in isolation from each other. Iustrations to Sec. 6 . (6) Ais accused of B's murder by beating him. Whatever was said ‘or done by A or B or by the by-standers at the beating or so shortly before or after it as to form part of che transaction, is a rekoant fact? 2. in case of prosecution of A, for B's murder, evidence of two by-standars is produced, who heard A immediatly after beating B to death saying "I feet Satisfied now: Is the fact relevant? [D.U.-2012) Relevancy & Admissibility of Facts 29 (8) Ais accused of waging war against the Government of India by taking part in an armed insurrection in which property i destroyed, troops are attacked and gaols are broken open. The occurrence “of chese facts is relevent, a forming part of the general transaction, though A may not have been present at all of them. (© A sues B for a libel contained in a leer forming part of 2 correspondence. Leters berween the parties relating ro the subject Gut of which the libel arose, and forming part of the correspondence in which itis contained, are relewant facts, though they do not contain the libel itself? (The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery isa relevant fact. Res Gestae* Facts forming part of atransaction ae described by English and American svriters as being part of res gestae, ic., things done in the course ofa Transaction, The illustrations (a) to (d) above, are all instances of res gestae. ‘The term res gestae is equivalent to the ‘facts’ mentioned in Sec. 6 However, itis also used in the following senses ~ as equivalent to fact jeoue, as equivalent to details of facts in issue, and fact in issue and ‘Surrounding circumstances. Taylor defines this expression as including everything that may be fairly considered as an incident of the event under consideration, Thhus, res gestae are those circumstances which are the istinctive (qtomatic) and undersigned incidents of a particular act. They arete ats talking for themselves not what people say when talking about the at. Circumstantial facts are admitted as forming part of res gestae, Le, as being part of the original proof of what has taken place. Statements nay also accompany physical happenings. An injured person, for example, js naturally bound to cry. Ifthe transaction e-g. an. accident, happened in a public place, a sumber of by-standers will make mutual conversation Ss 13, Adquestion based on the same facts, (LeL-95, 4. White a short note on Res gest [e.L.c-919372006, L.C.-94)30 Law of Evidence G@) Wthe statement is made after the act is over andi ; de after the act is over and its maker kiss had the time for reflection and deliberation (abrication); and/or Go) The statement must be a statement of fct and not an opinion, | Thefollowing iain cs wl lp cle the pint @ A, while running'in street, cry i erying that B has stabbed him, isa | relevant fac. Similarly, the statement of a raped woman ‘ayy . for help’ isa relevant fact menos @ Statements made during the investigations of a crime are noe (A, when reached the murder spot, heard people piesene there a Saying that someone murdered. someone. It was not stated that the persons who made above statements were prewar artic ae of murder, Teis not a relevant fact. However, if a witness after Witnessing the incident goes to the police station and flee a FIR, the making ofthe repor is part ofthe tatsaction and amouar, to res gestae, G): In Agasiz v Loidon Tramways Co. (1872) 21 WR 199, there was atram, collision. and. an action was brought ‘against the | ‘uamway Coin respect of injury to a pasenger. A remark by amethe, Relevancy & Admissibility of Facts 31 passenger to the effect that the driver ought to be reported and the conductor's reply, “He has already been reported for he has been off the line 5 or 6 times to-day” were rejected, the transaction being over, and as the remarks referred not to the rer, but to the past acts of the driver. (%) In another case, A was tried for the murder of B by shooting hhim with a gun. The facts that the person, who was at that time in the same room with B, saw aman with a gun in his hand pass by a window of that room and thereupon exclaimed “There is the butcher” (‘A was known by that name’) were held to be relevant’S (i) Where shortly after a murder, the person suspected of it explained away the absence of the deceased by saying that he had left the village, the court held the statement to be a part ofthe transaction and thus relevant (Basanti v State of HLP. (1987) 3 SCC 227). (cil) A man was prosecuted for the murder of his wife, His defence was that the shot went off accidentally. There was evidence to the effect that the deceased telephoned to say: “Get me the police please”. Before the operator could connect the police, the caller, who spoke in distress, gave her address and the call ended. Thereafter the'police came to the house and found the body of a dead woman, Her call and the words she spoke were held to be relvan as-a part of the transaction which brought about her death® [Ratton v The Queen (1971) 3 WLR 930}. However, where the raped girl made a statement to her mother after the rape when the culprit had gone away and the girl came home from the scene of occurrence, held that it is not admissible under Sec. 6.6 5. _A.question based on the same fats [cc-92, 6. Ima tit for dowry murder of B; the fact.that on the alleged murder night the police had received a distress telephonic cal from & in which before abrupt Aisconnection she could only say: “Please help me, | fear immediate harm to myself. Is the fact relevant? [eL.c-95{0.U.-2007) 6a. In case of attempted rape, statement of victim, a day after the rape to her "mother is produced as evidence. Is the fact relevant? [0.u-2012132 Law of Evidence Criticism of res gestae doctrine “The doctrine of res gestae is applicable to “hearsay” evidence also, which is not considered a good piece of evidence. In R. v Foster (1834) 6 C & the witness had seen only a speeding vehicle, but not the accident. The injured person explained him the nature of the accident. He was allowed to give evidence of what the deceased said, although it was only a derived knowledge, it being a part of res gestae? Similarly, collateral facts are res inter alios actae (ie. transactions berween others, for example, statements ‘made behind the accused’s back and to be used as evidence against him), and included in res gestae. As a matter of fact the famous English judge Mr. Justice Blackstone is said to have told an advocate struggling to introduce an irrelevant fact as relevant evidence, t6 ty to bring it under res gestae, because the phrase can take in ‘anything’ if the judge is so inclined. ™. ‘According to Professor Stone, “no evidential problem is so shrouded in doubt and confusion”. The rule is not only useless but also harmful. It is wsless because every part of itis covered by some other rule, for example, declarations as to the state or mind or health. It is harmful because it catsed confusion about the limitations of other rules. “The precise limits of res gestae are not themselves not easy tc define. Facts differ so greatly that no fixed principle can be laid down as to the ratters that will form parts of a transaction. Because of its confusing nature, the phrase res gestae has not been included in Indian Evidence Act. [And it is left vo the judges to find the necessary connection and treat a fact as relevant. Leaoina Case: SUKHAR v STATE OF UP. (4999) 9 Scc 507] Facts and Issue ~ This case inter alia revolved round the scope of, Sec. 6 of the Evidence Act. The victim was'shot at by the accused and he raised an alarm. When a witness rushed to the spot, the victim told him that it was the accused who shot at him. ‘The victim survived and so the accused was charged with an 7. Agquestion based on the same facts. IoLc-93 Relevancy & Admissibility of Facts offence under Sec. 307, IPC. However, during the pendency of the trial, the victim died because of some other cause. The question arose whether the witness could give evidence of what the victim told him? (Olservations and Decision ~The Supreme Court observed that Sec. 6 of the Evidence Act is an exception to the general rule that the hearsay evidence is not admissible. But for bringing such hearsay evidence within the provisions of Sec. 6, what is required. to be established is that it must be almost contemporaneous with the fact in issue and there should not be an interval which would allow fabrication, so that it forms part of the same transaction as the fact in issue. “This principle of law embodied in Sec. 6 of the Evidence ‘Actis usually known as the rule of res gestae recognized in English Jaw. The essence of the doctrine is that a fact which, though hot in ssue, isso connected with the fact in issue “as to form part of the same transaction” it becomes relevant by itself. The rationale in making certain statement of fact admissible under Sec. 6 is on account of the spontaneity and immediacy of such statement or fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement + must have been made contemporaneous ‘with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient ~ ¢nough for fabrication then the statement is not part of res gestae” [Gentala Rao v State of Andhra Pradesh AIR 1996SC 2791}. The Supreme Court also referred to the ratio of Rattan Singh v State of Himachal Pradesh (AIR 1997 SC.768).In this case, the act of the assailant intruding into the courtyard at dead of night, the victim’s identification of the asailant, her statement that the appellant was standing with a gun and that he fired at her were so intertwined with each other by proximity of time and space, that they formed part of the same transaction and therefore held relevant under Sec. 6. “Tithe present cas, the court held thatthe evidenee of the witness is admissible as res gestae.] 33