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section 101 to 153 of the Indian Evidence Act
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Section 101 Burden of proof: Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. the obligation to prove a fact, Every party has to establish facts which go in his favour or against his opponent, The strict meaning of the term ‘burden of proof’ ( onus probandi ) is that if no evidence is given by the party on whom the burden is passed the issue must be found against him. Burden of proof has two distinct meaning::
where certain persons are shown to have acted as partners, or as landlord and tenant, or as principal and agent, the law presumes them to be so related and the burden of proving that they were never so related or have ceased to be so shall lie upon the party who says so. thus, there is a presumption against change of status quo, namely that any existing state of things will continue as it is. SEC. 110: Burden of Proof as to Ownership when a person is in possession of anything as owner, the burden of proving that he is not owner is on the person who affirms that he is not the owner. This section gives effect to the principle that possession is the prima facie evidence of a complete title. The possession contemplated is the actual physical possession. Sec 110 is not limited to immoveable property and applies to moveable property as well. SEC. 111 : Proof of Good Faith When a person stands towards another in a position of active confidence, the burden of proving the good faith of any transaction between them lies on the person in active confidence. Active confidence means : relation of trust and confidence , the person have a power to influence will of other. (doctor , lawyer ) PRESUMPTIONS IN CERTAIN CASES A presumption is an inference of fact drawn from other known or proved facts. It means a rule of law that courts and judges shall draw a particular inference from a particular fact, or from a particular evidence, unless and until the truth of such inference is disproved Sec 111- A Presumption as to certain offences. A person accused of the commission of certain offences under IPC , in a disturbed area is to be presumed guity unti proven innocence , BOP is on the accused. Section 112. Birth during marriage, conclusive proof of legitimacy. during the continuance of a valid marriage between his mother and any man, or
Within 280 days after its dissolution (the mother remaining unmarried), is conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. The following important points, regarding Sec. 112, may be noted: The point of time of the birth of the child as the deciding factor and not to the time of conception of that child; the latter point of time has to be considered only to see whether the husband had no access to the mother. There is a presumption when a child is conceived and born during marriage that sexual intercourse took place at a time when according to the laws of nature, the husband could be the father of child. The presumption applies with equal force even where the child is born within a few days or even hours after the marriage. Further, it is immaterial that the mother was married or not at the time of the conception. SEC. I 13-A: Presumption as to Abetment of Suicide by a Married Woman When the question is whether the commission of suicide by a women had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage That her husband or such relative of her husband has subjected her to cruelty. the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. S 113B. Presumption as to dowry death When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry the court shall presume that such person had caused the dowry death.
When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Following conditions must be satisfied to bring a case within the scope of estoppel as defined in Sec. 115 [Chhaganlal Mehta v Haribhai Patel (1982) 1 SCC 223]:
Bilas Kunwar v Desraj Ranjit Singh : A tenant who has been let into possession cannot deny his landlord’s title however defective it may be, so long as he has not openly restored possession by surrendering to his landlord.” SEC. I 17: Estoppel of Acceptor of Bill of Exchange, Bailee/ Licensee. No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence. COMPETENCY OF A WITNESS (SECTION 118 TO 120) SBC. 118: Who May Testify all persons are competent to testify, unless the court considers that, by reason of tender age, extreme old age, disease (of body or mind), or infirmity, they are incapable of understanding the questions put to them, and of giving rational answers. no person is particularly declared to be incompetent It is wholly left to the discretion of the court to see whether the person who appears as a witness is capable of understanding the questions put to him and of giving rational answers. Child wintness — A child (even of 6 or 7 years) is a competent witness, unless he is unable to understand the questions or is unable to give rational answers There is no provision in India by which corroboration to the evidence of a child is required. It is a sound rule in practice not to act on the uncorroborated evidence of a child, but this is a rule of prudence, and not of law Chance witness — If by coincidence or chance a person happened to be at the place of occurrence when the incident is taking place, he is called a chance witness Merely because there is no compelling reason for him to be present at the time of the occurrence, that by itself need not necessarily mean that his evidence has to be rejected. Victim of rape — She (prosecutrix) is a competent witness under Sec. 118 and her evidence must receive the same weight as is attached to an injured in cases of violence.
Protection When Not Available: Exceptions to Sec. 122 (1) Acts apart from communications — The acts or conduct of spouses apart from communications are not protected under Sec. 122. A wife can testify as to what her husband did on a certain occasion, though not as to what he said to her. (2) Waiver of privilege - Evidence of a privileged communication can be given by a spouse with the consent of the party who made the communication. This is known as waiver of the privilege. (3) Suit or criminal proceeding between the two spouses - As the basis of Sec. 122 is to preserve mutual confidence, it is obvious that the section docs not apply when the spouses are ranged on opposite side SEC. 123. Evidence as to Affairs of State No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer as the head of the department concerned, who shall give or withhold such permission as he thinks fit”. Sec. 123 protects unpublished State records from being disclosed. It is based on the maxim “Salus poputi est suprema le i.e. regard for public welfare is the highest law. SEC. 124: Official Communications No public officer shall be compelled to disclose communications, made to him in official confidence, when he considers that the public interest would suffer by the disclosure. This section is confined to public officers whereas Sec 123 embraces everyone. The court can compel the disclosure of document, if the court disagrees with the officer.
Further, people have a ‘right to know* how their State is functioning; the State cannot withhold information on matters which have nothing to do with sovereignty or State secrets. SEC. 125: Information as to Commission of Offences No Magistrate or Public Officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue Officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue. SEC. 126: Professional Communications No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to —
They are also likely to come to know of the confidential information relating to litigation. A paid or salaried employee advises his employer on all questions of law and relating to litigation must get th same protection of law. SEC. 128: Privilege Not Waived by Volunteering Evidence if the party making the communication under Sec. 126 gives evidence (at his own instance or otherwise) of the matter covered by the communication, that does not amount to a waiver of privilege. Even if such party calls the lawyer as a witness, it will not amount to a consent to disclosure. But if he questions the lawyer on the very matter of the communication matter will amount to consent and by reason of it the lawyer can disclose the communication. SEC. 129: Confidential Communication with Legal Advisers The bar of Sec. 126 is partially lifted by Sec. 129 — No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal adviser; but when a client offers himself as a witness, he may be compelled to disclose such communication as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others. SEC. 130: Production of Title deeds of Witness, Not a Party According to this section, an ordinary witness i.e. a witness who is not a party, cannot be compelled to produce
SEC. 131: Production of Documents or Electronic Records if any person is entided to refuse the production of a document, the privilege or protection of the document/ electronic record should not suffer simply because it is in the possession of another person. Thus, a person in possession of other person’s documents is not compellable to produce them, unless that person (owner of documents) consents to their production. SEC. 132: Witness Not Excused from Answering Incriminating Questions. where a question put to a witness is relevant to the matter in issue in any suit or in any civil or criminal proceeding, the witness can be compelled to answer it and he cannot be excused from answering it simply because the answer would tend to criminate him to civil or criminal liability or to a penalty Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. ACCOMPLICE EVIDENCE An accomplice is a person who has taken part in the commission of a crime - a guilty associate or partner in crime. When more than one person in concert commits an offence, every one participating in its commission is an accomplice. SEC. 133: Accomplice An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Confession of Co-accused v Accomplice Evidence Sec. 30 (Confession of co-accused) lays down that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. The confession of a co-accused is not treated in the same way as the testimony of an accomplice:
But the question of admissibility is to be decided after the counsel has been given an opportunity to address the court on the point. Sec. 136 also empowers the court to control the sequence of the production of evidence in the case where the proof of one fact is dependent on the proof of another fact. In such cases, the other fact should be proved before the evidence of the first fact is offered. Thus, if a person wants to prove a dying declaration he must prove that the person whose declaration it is supposed to be, is dead SEC. 137: Examination-in-Chief, Cross-Examination, Re-Examination The testimony of a witness is recorded in the form of answers to questions putto him. Witnesses are not permitted to deliver a speech to the court. This way, their testimony can be confined to the fact relevant to the issue. Such questioning of the witnesses is called his examination. the examination of a witness by the party who calls him shall be called his _examination-in-chief _ ‘the examination of a witness by the adverse party shall be called his cross-examinatiotf ; and, ‘if the party who has called a witness seeks to question him again after the cross-examination that is known a re-examination. Examination-in-chief : When a witness appears before the court, he is given oath or affirmation; his name and address is taken down. Then the party who calls him, examine him to elicit the truth and to prove the facts which bear upon the issue in favour of that party.. Cross-examination-. After the party calling a witness has finished the examination- in- chief, the opposite party has a right to cross-examine the witness The purpose of ‘cross-examination* is to expose the truth about the testimony of the witness SEC. 138: Order of Examination Witnesses shall be first examined-in-chief, then cross-examined, then if the party calling him so desires re-examined. The examination and cross-examination must relate to relevant facts, but the cross- examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination. The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if, new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter. The following important points may be noted:
But, in addition to such questions, that a witness can be asked questions which tend:
(3) Improper questions -. Such questions are improper if there is a great disproportion between the importance of the imputation and the importance of his of a party’s date of birth, and it is imputed to him that he belonged to a gang of dacoits. SEC. 149: Questions Not to be Asked without Reasonable Grounds Important safeguard against assassination of the character of a witness in that no question carrying an imputation to the witness shall be asked unless the person asking the question has reasonable ground to believe that the imputation contained in the question is well founded. SEC. 150: Procedure of Court in case of Reckless Questions If the court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney, reportthe circumstances of the case to the High Court/other authority to which such barrister, etc. is subject in the exercise of his profession. Sec. 150 is the penalty that may ensue against a reckless cross-examination, if the court is of opinion that the questions were asked without reasonable grounds. Any advocate who asks such questions without written instructions shall be guilty of ‘contempt of court’ and that the court may record any such question, if asked by a party to the proceedings SEC. 151: Indecent and Scandalous Questions The court can prevent indecent and scandalous questions from being asked even if the question has some bearing upon the matter in hand. Such questions may be allowed only if they relate to the facts in issue or are necessary for determining whether the facts in issue existed’. The Supreme Court has held that no such questions should be put unless there are reasonable grounds to believe them to be true [Prakash v State, 1975 CrLJ 1297]. SEC. 152: Insulting or Annoying Questions Sec. 152 enables ‘the court to forbid questions which are asked only to insult or annoy the witness’. Even if the question is on a proper point, the court may forbid it if it is needlessly offensive. SEC. 153: Exclusion of Evidence to Contradict Answers to Questions Testing Veracity (perjury ) According to Sec. 153, ‘if a witness has answered a question as to his credit, whatever be his answer, no evidence is allowed to be given to contradict his answer.