law of evidence of guru gobind singh university, Essays (university) of Law of Evidence

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CONTENTS

1. INTRODUCTION

2. RELEVANCY AND ADMISSIBILITY OF FACTS

3. ADMISSIONS AND CONFESSIONS

4. DYING DECLARATION

5. EXPERT EVIDENCE AND

RELEVANCY OF CHARACTER

6. FACTS REQUIRING NO PROOF

AND ORAL/DOCUMENTARY EVIDENCE

7. BURDEN OF PROOF AND PRESUMPTIONS

8. ESTOPPEL

9. WITNESSES

122-137TABLE OF CASES

Agassiz v London Tramways Co. —17 Aghnoo Nagesia v State of Bihar — Akhil Kumar (Dr.) v State------------ Amar Chand Butali v State---------- Awadhesh v State of UP.------------- B. Venkata Rao v Principal, Andhra Medical College----------------------- Babuda v State of Rajasthan--------- Badri Rai v State of Bihar--------37, Bal Krishan v Rewa University -— 116 Basant Singh v Janki Singh---------- Basanti v State of H.P.----------------- Bater v B.---------------------------------- Bejoy Krishna v N.B. Sugar Mills Bhagbaticharan v Emperor------------ Bharat Singh's case---------------------

K. Ramachand Reddy v Public

Muhammad Sharif v Bande Ali —-104 Munic. Corpn. Delhi v Jagan Nath Ashok Kumar------------------------------ Murari Lai v State of M.P.--------80, Muthuswamy v Stated---------------- Naraindas v Papammal----------------- Nishi Kant Jha v State of Bihar —50 Oriental Fire & Gen. Ins. Co. v Bondili------------------------------------ Oza v State of Bihar-------------------- Pakala Narayan Swami v Emperor------------------------------------ Palaka Narayana Swami v Emperor —--------------------------------- Palvinder Kaur v State of Punjab —50 Pandu Khadia v State of Orissa- — IPandurang Jivaji Apte v Ramc Handra------------------------------------ Pickard v Sears------------------------- plyare Lai v State of Rajasthan — Prabhu v State of UP.------------------ Prem Thakur v State of Punjab------- Pulukuri Kottayav Emperor----------- Pushpa Datta Mishra v Archana Mishra-------------------------------------- Pushpadevi v Ml. Wadhawan------- Pyare Lai v State of Rajasthan------ Quammaral Islam v S.K. Kanta------ Queen Empress v Babu Lai---------- Queen Empress v Danoghue-------

Ravlnder Singh v State of Haryana--------------------------------- Re Dannu Singh v Emperor---------- Reetanjal! Pati v Board of Sec. Education------------------------------- Reg v Prabhudas----------------------- Rumping v Dir. of Public Prosecutions-------------------------- S.P. Gupta v Union of India—'------ Sahoo v State of U.P.-----------------61- Samir v State of West Bengal —105^1 " Santa Singh v State of Punjab------- Sardar Sardul Singh v State of Maharashtra---------------------------- Satbir Singh v State of Punjab------- Secy, of State v Tatya Holkar------ Sethu v Palani------------------------- Shahnaz v Dr. Vijay------------------ Sharda Birdichand Sharda v State of Maharashtra------------------------- Sharrighan y State of I^.P.---------- Shashi Nayar v Union of India------- Sida Nitinkumar v Gujarat University------------------•------------- Sita Ram v State------------------------ Somwanti v State of Punjab-------- Sri Krishna v Kurushetra Univ.— State of Assam v M. Ahmed-------— State of Bihar v P.P. Sharma-------'

State of Maharashtra v C.K. Jain -123 State of Maharashtra v Md. Yakub -10 State of Punjab v Sukhdev Singh CoHhi............... ......... 197 State of U.P. v Raj Narain— 127,128 State of U.P. v Ravindra Prakash Mlttal---------------------------------------- State v Mani------------------------------- Surat Chunder Dey v Gopal Chander Laha-------------------------- Surendera Prasad v State of Bihar--------------------------------------- Suresh Chandra Bahri v State of Bihar---------,------------------------- Suresh Pal v State of Haryana— 114 Suresh v State of Maharashtra — 105 Tarseem Kumar v Delhi Admn. —21 Union of India v K.S. Subramaniam--------------------------- Union of India v Mokshi Builders -49 Union of India v Savita Sharma — 123 Univ. of Madras v Sundara Shetti-120 Veera Ibrahim v S*".te of Maharashtra------------------------------5^1

Substantive and Procedural laws Laws may be divided into substantive and procedural laws. The laws by which rights, duties and liabilities are defined are called substantive laws e.g. I.P.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 e.g. Cr.P.C. The procedural laws can be further divided into two parts : firstly, there are rules dealing with various procedures

INTRODUCTION

LAW OF EVIDENCE

The method of proving (i.e. 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). Law of Evidence in India The word 'evidence' is derived from the Latin word evident or evidere, which means "to show clearly, to discover clearly, to ascertain, to prove". 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 object of preventing indiscipline in the admission of evidence by enacting a correct and uniform rule of practice. There are three main principles which underlie the law of evidence :-(i) Evidence must be confined to the matters in issue. (ii) Hearsay evidence must not be admitted. (iii) The best evidence must be given in all cases. The Indian Evidence Act, 1872 is mainly based on the English law of evidence. The Act is not exhaustive, i.e. 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. The Indian Evidence Act is divided into three main parts {Scheme of the Act) :

(i) Relevancy of Facts ( what facts may and may not be proved) -Sees. 6-55. «* (ii) Mode of Proof (how are the relevant facts to be proved, etc.) -Sees. 56-117. (iii) Production and Effect of Evidence ( by whom and in what manner must the evidence be produced) - Sees. 118-167. 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. 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|NTRODUCTION 3

t0 believe^ what^ the^ witness^ say^?^ The^ answer^ is^ a^ judge^ cannot absolutely (^) rely on the rules of evidence. 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 •f 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 of equal importance to the one first stated. Rules of evidence are artificial. The best guide of judge on a question jS his own common sense and experience of human natUre- A person ignorant of those rules may give a much better answer th^n a judge. Owing to the difficulty and abstruseness of the doctrines propounded, the courts are less eager to entertain and the lawyers are diffident to urge, the questions of law of evidence which requires closer and critical study of the provisions of Evidence Act.

Evidence^1 (Sec.3) "Evidence" means and includes - (1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry (oral evidence). (2) all documents produced for the inspection of the court (documentary evidence); This is not a real definition of the term "evidence", but is rather a statement of what the term "evidence" includes. The word 'evidence' implies the state of being evident i.e. plain, apparent or notorious; but it is applied to that which tends to render evidence or generate proof of a fact. The term 'evidence' means anything by which the alleged matter or fact is either established or disproved. Anything that makes the thing in question evident to the court is evidence. For example, where the question is whether an explosion took place before a fire occurred. The noise of the explosion and its flash are evidence of it. Persons who saw the flash or heard the noise can give evidence of the fact of the explosion. If the happening of a fact is recorded on anything apart from human memory, that record is also an evidence of the happening. The definition as given here includes only two kinds of evidence, i.e., statements of witnesses and documents. But this does not mean that there cannot be any other kind of evidence. For example, when the judge inspects the scene of occurrence and draws a chart of it, that is also an evidence though it is neither an oral statement of a witness nor a document produced by the parties. But in a way it is a document. 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 generarway, because 'whatever is considered by the court is evidence'; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense (Haricharan Kurmi v State of Bihar, AIR 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 jense that every kind of evidence can ultimately be reduced either to the category of oral or documentary evidence.

1. Write a short note on 'Definition of Evidence'. [L.C. 1-94/95]f INTRODUCTION 5 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 means to the satisfaction of the court. It is the result of evidence, while evidence is only the medium of proof. Different kinds of evidence There are nine different types of evidence : (1) Direct evidence - It is the testimony of the witnesses as to the principal fact to be proved, e.g. the evidence of a person who says that he saw the commission of the act which constitutes the alleged crime. It also includes the production of an original document.

instructed before the court with the help of the surrounding ^rcumstances such as the cause or the effects of the event. Circumstances sometimes speak as forcefully as does the direct evidence. For example, there is a quite little village touched by a road which ends there. Occasionally a 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 lying dead by the road-side. The position of his body and the nature of injuries leave on doubt that he was dragged by a vehicle for a little distance and then one wheel ran over him. There was no dust storm, rain or mist to obstruct visibility. From these circumstances certain facts may reasonably be inferred and many others can be safely presumed as a matter of probability. The facts tell the story beyond a shadow of doubt that it is 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 not sufficient (Prem Thakur v State of Punjab AIR 1983 SC 446). The Kerala High Court has recently observed that, in a murder case, just because 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. It can still convict the accused on the basis of other circumstantial evidence (State v Mani, 1992 Cr LJ 1682). In Laxman Naik v State of Orissa (AIR 1995 SC 1387), the conviction and sentence of death sustained on the basis of circumstantial evidence showing an unbroken and complete chain of events leading to the rape and murder of a seven year-old daughter of the brother of the accused.

Unlike direct evidence, the circumstantial evidence suffers from fallibility of inference. The weight of evidence varies according to the number of independent facts supported. (3) Real evidence - It refers to any matter which the court perceives itself e.g. that a man standing before a judge has got a scar on his face, objects like murder weapon, blood-stained clothes, photographs, etc. (4) Hearsay evidence -It is also called derivative or second-hand evidence. It is the testimony of a witness as to statements made out of court which are offered as evidence of their own truth. Thus, A's evidence that A heard that a murder had taken place is 'hearsay' evidence. (5) Primary evidence - It means the best or original evidence. (6) Secondary evidence - It is an indirect evidence. (7) Oral evidence. (8) Documentary evidence. m
IINTRODUCTION 7 (9) Conclusive evidence - Where the connection between the principal and evidentiary fact is a necessary conclusion. Fact (Sec.3) "Fact" means and includes - (1) anything, state of things, or relation of things, capable of being perceived by senses, (2) any mental condition of which any person is conscious.! Illustrations (a) That there are certain things arranged in a certain order in a certain place, is a fact.

question of liability should depend' upon it. The following illustration make clear the Joint :-

3. Write a short note on 'Facts In issue'. [LC.I-94/95; LC.II-94/95\o LAW OF EVIDENCE "A is accused of the murder of B". At his trial the following facts may be in issue - that A caused B's death; that A intended to cause B's death; that A had received grave and sudden provocation from B; that A at the time of doing-that act which caused B's death, was, by reason of unsoundness of mind incapable of knowing its nature. Thus, every fact which a plaintiff must prove in order to get an adjudication in his favour, or which a defendant may prove to defeat the suit, becomes a fact in issue. Facts in issue will depend upon the provisions of the substantive law applicable to the offence. If, for example, the action is for the tort of negligence, such of the ingredients of liability for negligence whfch are in dispute shall be the facts in issue. If the 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 parties. Thus, facts in issue depend upon the ingredients of the offence and the state of the parties' pleadings. A fact in issue is called the 'principal' fact; or factum probandum. In criminal matters, the allegations in the charge-sheet constitute the facts in issue. In civil matters, the process of ascertaining facts in issue is known as framing issues. Whatever be the facts in issue, there existence has to be proved to the satisfaction of the court before the court can be called upon to pronounce a judgement on the basis of those facts. Relevant facts^4 (Sec.3)

"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. (i) facts logically connected with facts in issue (Ss. 5-16), (ii) admissions and confessions (Ss. 17-31), (iii) statements by non- witnesses (Ss. 32-33), (iv) statements under special circumstances (Ss. 34-37), (v) judgement in other cases (Ss. 40-44), (vi) opinions of third persons (Ss. 45-51), • (vii) evidence as to character (Ss. 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 are those facts which are necessary for proof or disproof of a fact in issue. Thus, relevant facts (or evidentiary facts) or factum probans are those which are capable of affording a reasonable presumption as to either the facts in issue or the principal INTRODUCTION patters in dispute. The word 'relevant' has been held to be 'adr"''^18 ®' f (Lakhmi v Haider, 3 CWN 268). Relevant facts are not themselves in ISS ' but are foundations of inferences regarding them. For example, "when A is accused of the murder of B", the >(^ ^^& facts' are - A had a motive and opportunity to kill B, he ha" ^ preparations by buying a knife, etc., or after the murder he W0*^5 running with blood-stained knife in hand. Relevancy implies relationship and such relationship with the ~Q ^ issue as convinces or has a tendency to convince the judge aSmstnat existence or otherwise of the facts in issue. The word 'relevant' mea^ any two facts to which it is applied are so related to each otn« ^ ^ according to the common course of events one taken by its0' (^) or connection with other facts proves or renders probable the ex"s?ence js