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LAW OF EVIDENCE (SECTION 101 TO 153 )
BURDERN OF PROOF (SEC 101 TO 114)
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::
- Burden of proof as a matter of law and pleading : which means the burden of proving all the facts or establishing one’s case. This burden rests upon the same party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is fixed, at the beginning of the trial, by the statements of pleadings, and it is settled as a question of law, remaining unchanged under any circumstances whatever.
- Burden of proof as a matter of adducing evidence : either at the beginning or at any particular stage of the case. It is always unstable and may shift constantly throughout the trial It lies at first on the party who would be unsuccessful if no evidence at all was given on either side. The burden must shift as soon as he produces evidence which prima facie gives rise to a presumption in his favour. It may again shift back on him, if the rebutting evidence produced by his opponent preponderates. This being the position. Difference between ouns of proof and burden of proof Ouns of Proof Burden of Proof
- the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Burden of proof lies on the person who has to prove a fact and it never shifts, Onus Probandi : if a fact has to be proved, the person in whose interest it is to prove it, should offer some evidence, however slight, upon which a court could find the facts which he desires the court to find. The onus is always on a person who states a fact which is not self-evident. Section 102: To whom BOP lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. SECTION 103 : BOP AS TO PARTICULAR FACT. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustration : a person who signed a loan document admitted the loan and if he says that he signed a blank paper, the burden would lie upon him to prove that fact Amir Hussain v State of Tripura : It has been held that the accused pleaded alibi, the burden of proof lies on the accused. Section 104 : Burden of Proving Fact to be Proved to Make Evidence Admissible The burden of proving any fact necessary' to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.” Illustration : A wishes to prove a dying declaration by B. A must prove B’s death. Sec 105. Burden of proving that case of accused comes within exceptions
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]:
- There must have been a representation by a person to another person, which may be in any form — a declaration or an act or an omission.
- Such representation must have been of the existence of a fact\ and not of future promises or intention.
- The representation must have been meant to have been relied upon.
- There must have been belief on the part of the other party in its truth.
- There must have been some action on the faith of that declaration, act or omission.
- In other words, such declaration, etc., must have actually caused the other person to act on the faith of it and to alter his position to his prejudice or detriment.
- The misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice.
- The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. There can be no estoppel if such a person was aware of the true state of affairs or if he had means of such knowledge.
- Only the person to whom the representation was made or for whom it was designed can avail of the doctrine. The burden of proving estoppel lies on such person. SEC. 116: Estoppel of Tenant and of Licensee of Person in Possession A person who comes into an immovable property taking possession from a person who he accepts as the landlord, is not permitted during the continuance of tenancy to say as against his landlord that he had no title to the property at the commencement of the tenancy. Similarly, a person who comes upon any immovable property with the licence of the person in possession is not permitted to say afterwards that his licensor had no right to the possession of the property.
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 —
- disclose any communication made to him by or on behalf of his client84, or any advise given by him to his client in the course and for the purpose of his employment;
- state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his professional employment;
- disclose any advice given by him to his client in the course and for the purpose of such employment. Provided that nothing in this section shall protect from disclosure -
- any such communication made in furtherance of any illegal purpose,
- any fact observed by barrister, etc. in the course of employment showing that any crime or fraud has been committed since the commencement of his employment. professional communication” means a confidential communication between a professional (e.g. lawyer) and his client made to the former in the course, and for the purpose, of his employment as such adviser. Exceptions to Sec. 126
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
- his title-deeds to any property,
- any document by which he became the pledgee or mortgagee of any property,
- any document which might tend to criminate him. But he can be so compelled if he has agreed to produce any such document with the person seeking its production.
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:
- Cross-examination can extend to all the relevant facts, whether touched in the examination- in-chief or not. 2. A witness cannot be thrown open to cross-examination unless he is first examined-in-chief. Where the prosecution did not examine its witness and offered him to be cross-examined, held that this amounted to abandoning one’s owm witness. Such an approach seriously affected the credibility of the prosecution case [ Sukfjtvant Singh v State of Punjab AIR 1995 SC 1601] SEC. 139: Cross-Examination of Person called to Produce a Document “A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.” SEC. 140: Witnesses to Character Witnesses to character may be cross-examined and re-examined”. A witness who appears to give evidence of a party’s character may be cxamined-in-chief and may abo be cross- examined and re-examined. The evidence of character is meant to the mouth of a witness. SEC. 141: Leading Questions Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.” SEC. 142: When They Must Not be Asked examination-in-chief or in a re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion, been already sufficiently proved.” SEC. 143: When They May be Asked “Leading questions may be asked in cross-examination.” A ‘leading question’ is one which suggests to the witness the answer which it is desired he should give.
But, in addition to such questions, that a witness can be asked questions which tend:
- to test his veracity,
- to discover who he is and what is his position in life, or
- to shake his credit by injuring his character, although the answer to such questions might tend directly or indireedy to criminate him or to expose him to a penalty or forfeiture. A witness may always be subjected to a strict cross-examination as a test of his veracity or accuracy, his understanding, his integrity, his basis and his means of judging. Sec. 146 supplements Sec. 145. Rules for Checking Improper Use of Cross-examination [Secs. 147-152] Sections 147 to 152 lay down rules against aggressive cross-examination. Since the character of a witness is allowed to be opened up in the course of cross- examination for the purpose of ascertaining his credit worthiness, it is natural that a person would not like to appear as a witness unless he were assured of some protection against aggressive cross-examination. SEC. 147: When Witnesses to be Compelled to Answer Sec. 147 supplements the provision in Sec. 146 by providing that if the question put to the witness relates to a relevant fact, the provisions of Sec. 132 will apply. Under Sec. 132, a witness will have to answer the question notwithstanding that the answer may criminate him. SEC. 148: Court to Decide when Question Shall be Asked and When Witness Compelled to Answer In the course of a cross-examination the question asked to the witness is not relevant to the facts, but is asked only to shake his credit by exposing his character, the court has to decide whether or not the witness shall be compelled to answer it. The court may warn the witness, if it thinks necessary that he is not bound to answer it’. In deciding as to whether a witness should be compelled or not to answer a question the court shall have regard to the following considerations: (1) Proper questions. If the court is of the opinion that the truth of the imputation could seriously affect the court’s opinion as to credibility of the witness the court should allow the question. (2) Improper questions'. Such questions are improper if the truth of the imputation is very remote in time or is of such a character that it would not affect at all or would affect only very slightly, the credibility of the witness as to the matter on which he gives evidence.
(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.
