Section 141 of the Indian Evidence Act, 1872 deals with leading questions. A leading question is one which suggests the answer or puts words in the mouth of a witness. It is a question that prompts or encourages a witness to give a particular answer.
Under the Indian Evidence Act, a leading question is defined in Section 142. According to Section 142:
“Leading questions are those that suggest to the witness the answer that the person posing the question desires. Leading questions are generally prohibited, but they are allowed in the cross-examination of a witness and in the examination of a witness who is declared hostile.”
In essence, leading questions are questions that guide or prompt the witness to answer in a specific way, often suggesting the desired answer. While they are generally not allowed during the examination-in-chief (the initial questioning of a witness by the party who called the witness), they are permitted in certain circumstances, such as during cross-examination or when a witness is declared hostile by the party who called them.
Under the Indian Evidence Act, Section 143 specifies the essentials for asking leading questions. According to Section 143:
“Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in re-examination, except with the permission of the Court.”
Therefore, the essentials for leading questions are:
Objection by the Adverse Party: If the adverse party objects to the asking of leading questions during examination-in-chief or re-examination, then the questions should not be asked unless the court grants permission.
Permission of the Court: The court has the authority to allow or disallow the asking of leading questions. If the adverse party objects, the party seeking to ask leading questions must seek permission from the court before proceeding.
In accordance with Section 141 of the Indian Evidence Act, 1872, the use of leading questions is subject to specific circumstances. Leading questions are permitted under the following conditions:
Examination of an Incapable Witness: Leading questions may be employed when examining a witness who is deemed incapable of providing a coherent response without the aid of such questions. This often includes individuals such as children or those with mental challenges, where the nature of their understanding requires guidance through leading queries.
Examination of a Hostile Witness: Another situation allowing the use of leading questions arises when dealing with a hostile witness. A hostile witness is one who demonstrates an adverse stance toward the party that called them a witness. In such instances, leading questions are permitted to extract information effectively.
Examination of an Expert Witness: Leading questions are generally admissible during the examination of an expert witness. This recognizes that experts possess specialized knowledge, and leading questions may be necessary to elicit precise and relevant information.
Certainly, here are a few examples of leading questions:
In a Criminal Trial:
Non-leading question: “Can you describe what you observed at the scene?”
Leading question: “Isn’t it true that you saw the defendant at the crime scene around midnight?”
In a Civil Dispute:
Non-leading question: “Please explain the events that led to the contract being terminated.”
Leading question: “Did the breach of contract by the other party force you to terminate the agreement?”
With a Child Witness:
Non-leading question: “What did you do after school?”
Leading question: “Did you go to the park after school, as your teacher told you to?”
In a Hostile Witness Situation:
Non-leading question: “Can you recall the details of your conversation with the plaintiff?”
Leading question: “Isn’t it true that you refused to cooperate during the conversation with the plaintiff?”
During Expert Testimony:
Non-leading question: “Can you explain the chemical properties of this substance?”
Leading question: “Would you agree that the substance’s volatility is a crucial factor in its chemical properties?”
Conclusion:
Leading questions are designed to guide or suggest specific answers, potentially influencing the response of the witness. It’s important to note that the permissibility of leading questions depends on the context, as outlined by Section 141 of the Indian Evidence Act. However, it’s crucial to note that in all other cases not falling under these specified circumstances, the use of leading questions is restricted during examination-in-chief or re-examination. This limitation is in place to prevent the questions from unduly influencing or shaping the testimony of the witness by suggesting answers. The aim is to maintain the integrity of the witness’s account and ensure a fair and impartial legal process.
Consent, a fundamental concept in legal and ethical frameworks, has undergone a remarkable evolution within the realm of criminal jurisprudence. The understanding and application of consent have transformed over the years, reflecting changes in societal norms, legal philosophies, and a deeper appreciation for individual autonomy. This article explores the historical development of consent in criminal law, its current significance, and the challenges posed by emerging issues.
Historical Perspective:
In ancient legal systems, consent was often overlooked, with a focus on external actions rather than the internal state of mind. The idea of consent as a defense gained prominence during the Renaissance, aligning with the emerging principles of individual rights and freedoms. However, the early formulations were limited and primarily applied to specific crimes.
The Modern Framework:
The 20th century witnessed a paradigm shift in the conceptualization of consent within criminal jurisprudence. Legal systems recognized the importance of distinguishing between consensual and non-consensual acts to ensure justice. Rape laws, for example, evolved to emphasize the significance of voluntary agreement as a crucial element, challenging traditional notions that focused solely on physical resistance.
Consent as a Defense:
The concept of consent has been employed as a defense in various criminal cases, including assault, battery, and even homicide. However, the effectiveness of this defense depends on the voluntariness, capacity, and legality of the consent provided. Courts have grappled with defining the boundaries of valid consent, considering factors such as age, mental capacity, and coercion.
Capacity to Consent:
One critical aspect of the evolving understanding of consent is the recognition of an individual’s capacity to give informed consent. Legal systems have become increasingly sensitive to issues of vulnerability, emphasizing the need for clear communication, understanding, and the absence of coercion. This is particularly evident in cases involving minors, persons with mental disabilities, or individuals under the influence of substances.
Informed Consent in Medical and Sexual Contexts:
In recent decades, the concept of informed consent has extended beyond the realm of criminal law. In medical ethics, informed consent is a cornerstone, ensuring that individuals have sufficient information to make autonomous decisions about their healthcare. Similarly, in sexual contexts, the emphasis on affirmative and explicit consent has gained traction, aiming to eliminate ambiguity and promote respectful communication.
Challenges and Emerging Issues:
Despite significant progress, challenges persist in the application of consent within criminal jurisprudence. Issues such as the impact of power dynamics, societal attitudes, and the role of technology in shaping consent present ongoing challenges for legal systems. The #MeToo movement and debates surrounding affirmative consent highlight the evolving nature of societal expectations and the need for legal frameworks to adapt accordingly.
Conclusion:
The evolution of consent within criminal jurisprudence reflects a broader societal shift towards recognizing and respecting individual autonomy. From its historical roots as a limited defense to its contemporary role as a central element in defining crimes, consent has become a dynamic and multifaceted concept. As legal systems continue to grapple with emerging issues, the ongoing evolution of consent is likely to shape the future landscape of criminal law, ensuring that justice remains attuned to the complexities of human relationships and individual rights.
As per the Indian Evidence Act, 1872 (hereinafter referred to as the Act), Section 3 of the Act āevidenceā 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, such statements are called oral evidence; (2) all documents including electronic record produced for the inspection of the Court, such documents are called documentary evidence. Thus, the word evidence, by its very definition means statements/documents which have been produced for the inspection of the Court and on basis whereof a Court decides a lis. Since the Act applies to both civil and criminal cases, the specific context in which evidence and its meaning is considered will depend on the facts, circumstances and kind of case being referred to. The Honāble Supreme Court of India in Sivrajbhan v. Harchandgir (AIR 1954 SC 564), held: āThe word evidence in connection with Law, all valid meanings, includes all except agreement which prove disprove any fact or matter whose truthfulness is presented for Judicial Investigation. At this stage it will be proper to keep in mind that where a party and the other party donāt get the opportunity to cross-examine his statements to ascertain the truth then in such a condition this partyās statement is not Evidence.ā
Role of Evidence
The object of rules of evidence is to help the courts ascertain the truth and to avoid the confusion in the minds of judges that may result from the admission of evidence in excess. Hales v. Kerr, (1908) 2 KB 601 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. The law of evidence is the lex fori which governs the courts: whether a writer is competent or not; whether a certain fact requires to be proved by writing or not; whether certain evidence proves a fact or not; that is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced and where the Court sits to enforce it.
The admissibility of evidence in Indian courts is governed by the Indian Evidence Act, 1872. The Act describes the production and impact of evidence, the general rules of evidence, and the relevance of the facts.1. In law, the reliability of the evidence is a matter of caution and judicial analysis. Evidence’s credibility is influenced by its evidentiary value, which in turn influences the evidence’s dependability and legal admissibility.
The decisive element in a case that leads to the accused’s conviction or acquittal in compliance with the law is evidence under the Evidence Act. Evidence is typically presented to support or refute a fact in question; however, each fact has a certain amount of evidentiary value, which directly influences the evidence’s relevance, admissibility, and reliability.
According to the Evidence Act, an admission is the voluntarily acknowledged existence or veracity of a particular fact. They include any oral, written, or electronic statements that suggest something about a relevant fact or a fact under dispute3..
Applicability of the Act to Judicial and Arbitral Proceedings
Under this Act, “Judicial Proceeding” is defined. Justice Spankie, however, held in the R v. Gholam case that any procedure in which evidence is or may be gathered, or in which a verdict, punishment, or final order is rendered based on documented evidence, qualifies as a court proceeding. In order for the adjudicator or magistrate to preside as a judge in a court of law, the Court must fulfill managerial or executive obligations in addition to legal obligations.
The Act expressly states that it has no impact on the arbitral procedure. As a consequence, unless the basic principles of justice and well-established principles of evidence are ignored, the judge is not bound by specialised standards of evidence.
It was thus decided that the Act’s regulations do not apply to proceedings before an arbitrator in the case of Halalal v. State Industrial Court. By bringing a dispute before an arbitrator, one hopes to settle it swiftly and avoid getting mired in the time-consuming and intricate procedures of a traditional trial or in procedural details.
Different Kinds of Evidence
There exist a multitude of methodologies and approaches for the diverse classification of evidence. While the Act defines only two types of evidenceāoral and documentary evidenceāit permits other kinds of evidence as well, which are discussed in the following sections:
Before exploring the conventional types of evidence, it is necessary to discuss a critical idea about corpus deliciti evidence. It suggests evidence that a crime was initially committed. Put another way, it is a strong piece of evidence that can help to reinforce and support the case. For example, an electrical cord wrapped around a deceased person’s neck is best viewed as corpus deliciti evidence of a homicide. Another sort of evidence that is almost always used is corroborated evidence. Corroborated evidence is additional data that bolsters and verifies previously published data.
For instance, when a suspect is captured close to a burglary scene, his fingerprints are taken. The testimony of a witness who saw the suspects fleeing the house would be a supported by the fingerprints. Additionally, evidence can be both dissociative and associative, meaning it can be used to demonstrate a lack of association between any of the same or to establish links between crimes, crime scenes, victims, and suspects.
The general rules of evidence, the relevance of the facts, and the creation and impact of evidence are all outlined in the Indian Evidence Act of 1872.1. The Indian Evidence Act recognizes the following categories of evidence:
Direct Evidence and Indirect or Circumstantial Evidence
Direct Evidence or Positive Evidence is the testimony of any evidence of a fact actually proved by the witness by his own opinion or senses about the existence or non existence about a fact in issue or relevant fact. It is the evidence about the real point in controversy. Examples: A kills B with a knife. C deposes that he saw A with the murder weapon and stabbing B.
It must be noted that small discrepancies or irrelevant details if left out in the witnessesā statement shall not corrode the credibility of the witness and will not in any way rejection of the witness statement by the Court.
Circumstantial Evidence is that which tends to establish the fact in issue by proving another fact. In proving other relevant facts, the cause and effect of the fact in issue may be proved that may lead to a conclusion. It is direct evidence indirectly applied. Thus, the facts from which the existence of facts in issue must be proved should be done by way of direct evidence. For example, if it is alleged that A killed B with a knife and C deposes that he saw A walk out of the room where C was killed with the knife, or with a splatter of blood on his clothes, the same would be circumstantial evidence.
Such kind of evidence is to be resorted to only in case no direct evidence is available.
In the case of Sharad B. Sharda v. MH, the SC held that circumstances must lead to guilt of the accused and exclude the innocence of the accused. Further, the cumulative effect of the circumstances must be such that it should establish that the accused and only the accused must have committed the crime.
The Supreme Court in the case of Birdichand Sarda v. State of Maharashtra, laid down the 5 Golden Principles of Circumstantial Evidence:
i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. ii. The facts so established must be consistent only with the hypothesis of the guilt of the accused, i.e. it should only explain the hypothesis of the guilt of the accused. iii. The circumstances should be of a conclusive nature. iv. They should exclude every possibility of any other hypothesis than the one to be proved. v. There must be a claim of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all possibility that the act must have been done by the accused.
In the case of Caestanco Fernandez v. Union Territory of Goa, a test was laid down for the acceptance of circumstantial evidence which is as follows: if 2 inferences are possible at the same time, one about the innocence and the other the guilt of the accused, the evidence indicating towards the innocence of the accused shall be used.
When a case squarely rests on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused.
It is a well settled principle now that if at all a case rests primarily or wholly on circumstantial evidence, the links in the chain of events must be proved completely.
Real Evidence/ Material Evidence and Personal Evidence
Real Evidence is that which is brought to the knowledge of the Court by inspection of an object and not by way of a witness or a document produced.
Personal Evidence is that which is afforded by a human agent by voluntary signs.
Original Evidence and Hearsay or Unoriginal Evidence
Original evidence is that which a witness reports himself to have heard or seen by way of his own senses.
Unoriginal or Hearsay Evidence is that in which a witness is merely reporting what he himself saw or heard but through the medium of a third person. Such evidence is not admissible at all.
Primary and Secondary Evidence
Primary evidence is when a document is produced before the court for inspection or proof of an admission of its contents by the parties.
Secondary evidence is inferior, which itself indicates that the existence of a fact is taken from the original source.
Oral and Documentary Evidence
Oral Evidence is that which is brought to the knowledge of the Court by verbal statements of the witness, qualified to speak on point under enquiry. [S. 59 & S. 60]
Documentary evidence is that evidence of a fact brought to the knowledge of the Court by inspection of any document produced. A documents means any matter expressed or described upon any substance by means of letters or figures intended to be used. [S. 61- S. 90]
Judicial Evidence and Non- Judicial Evidence
Judicial Evidence is that which is received by the Court of justice in proof or disproof of facts. Therefore, it is natural evidence modified by certain rules.
Non Judicial Evidence is that which is given in proceedings before an officer not in a judicial capacity but in an administrative capacity [S. 164].
Positive and Negative Evidence 1.Positive Evidence is that which tends to prove the existence of a fact whereas, by negative evidence the non-existence of a fact is proved. Therefore, the latter is not good evidence.
Substantive and Non- Substantive Evidence Substantive evidence is that evidence on which reliance can be placed. It relates to the rights and duties of the parties. Non substantive evidence on the other hand corroborates to increase the credibility of or contradicts in order to discredit the substantive piece of evidence.
Prima Facie Evidence and Conclusive Evidence
Prima facie evidence is accepted as reliable as it establishes or proves a fact in the absence of any contradictory evidence.
Conclusive evidence is the use of facts involving the application of the rule of law. (S. 41) Decree of a competent court is conclusive evidence.
Scientific Evidence and Digital Evidence
Scientific evidence the use of scientific basis from the point of view of cogency, weight or effect of the evidence. It is based on the fact that science confirms the facts stated. Digital evidence is the rule of modern concepts or electronic concepts in establishing or proving a part of facts in issue which is relied on by the Courts depending on the facts and circumstances of the case.
Pre-appointed and Casual Evidence
Pre-appointed evidence is also called Pre-Constituted evidence which is procured in anticipation of its use. Hence it may be voluntary or prescribed by law.
Casual evidence is the evidence which is not pre-constituted and depends on the circumstances of the case.
kind of evidence under the act as follows:
Oral Evidence: Those Statements are made by witnesses who testify in a court.
Documentary Evidence: Evidence that is presented in the form of documents.
Primary Evidence: Original documents that are presented in court.
Secondary Evidence: Copies of original documents that are presented in court.
Real Evidence: Physical objects that are presented in court.
Hearsay Evidence: Statements made by a person who is not present in court.
Judicial Evidence: Evidence that is presented in court.
Non-Judicial Evidence: Evidence that is not presented in court.
Direct Evidence: Evidence that directly proves or disproves a fact.
Circumstantial Evidence: Evidence that indirectly proves or disproves a fact.
Exculpatory Evidence: Evidence that tends to prove the innocence of the accused.
Impeaching Evidence: Evidence that is used to discredit a witness.
Opinion Evidence: Evidence that is based on the opinion of an expert.
Character Evidence: Evidence that is used to establish the character of a person.
Analogical Evidence: Evidence that is based on an analogy.
Anecdotal Evidence: Evidence that is based on personal experience.
Demonstrative Evidence: Evidence that is used to demonstrate a fact.
Digital/Electronic Evidence: Evidence that is stored in digital or electronic form.
Forensic Evidence: Evidence that is obtained through scientific methods.
Physical Evidence: Evidence that is tangible and can be seen or touched.
Statistical Evidence: Evidence that is based on statistical data.
Conclusion
Every piece of evidence, regardless of its typeātestimonial, ocular, or documentaryāis a crucial instrument for successfully establishing the case. Evidence is crucial in all legal proceedings, whether they are civil or criminal, as the absence of it will make it impossible to prove the existence of the facts. Furthermore, the kinds of evidence matter in terms of their admissibility and relevancy standards. Moreover, no watertight spaces exist where types of evidence can be placed. Based on multiple criteria, the evidence has been divided into distinct classes to make studying and comprehending the material easier. Certain evidence-related principles, such as the hearsay evidence principle, are significant and generally applicable unless there is a compelling reason why they might be considered an exception. Furthermore, in keeping with the evolution of legislation, the Evidence Act has expanded its purview to include digital and electronic evidence, which is crucial given the pervasiveness of the digital world in our daily lives.
“Relevancy of judgment” refers to the fact that each judgment is grounded in the specific facts of each case. Simplistically put, it asserts that every single case has unique significance. Every case is decided according to its own facts; the decisions made in one case do not always have to be connected to those in another. Even though it stems from the same fact, a civil judgment has no bearing on a criminal prosecution. A civil defamation case’s verdict has no bearing on a criminal prosecution. The later case is unrelated to the earlier ruling. The case facts and the criteria used to render a decision are given more weight.
First and foremost, it’s critical to understand what a 1908 Code of Civil Procedure judgment actually means. A judicial decision that affects a person’s rights, obligations, and liabilities is what Section 2(9) of the Criminal Procedure Code refers to. Every case is decided on its own facts, according to the fundamental tenet of law, meaning that decisions rendered earlier or later are immaterial. The outcome is determined by the particular facts of each case, not by precedent from earlier decisions.
Judgements of the court of justice are regarded as relevant in legal proceedings when they pertain to public matters. A number of sections of the Indian Evidence Act, 1872 address the applicability of justice court rulings. These are a few of the important sections:
Section 40: Previous judgments relevant to bar a second suit or trial
Section 41: Relevancy of certain judgments in probate, etc., jurisdiction
Section 42: Relevancy and effect of judgments, orders, decrees, other than those mentioned in Section 41 of the Indian Evidence Act.
Section 43: Judgment, order, etc., other than those mentioned in Section 40 to 42, when relevant.
The Indian Evidence Act, 1872, says that a final judgment, order, decree, or ruling of a court exercising probate (relating to will), matrimonial (marriage, divorce), admiralty (war claims), or insolvency jurisdiction is relevant.
This section consists of two parts:
1. It deals with judgement in rem, i.e., a kind of declaration about the status of a person and is effective for the entire world, whether he was a party or not.
2. A judgement in personam is when a judgment is given to the parties (e.g., a tort or a contract action), which binds only the parties and is not relevant in any subsequent case.
The Object of Section 40
The object of Section 40 is to save the time of the court and avoid the trial of similar suits as well; in simple words, it provides that the existence of previous judgment, order, or decree is a relevant fact.
For instance, if āxā and āyā are two parties, āxā sues āyā for fraud and the court has decided the case in favour of āyā but later āxā again filed a suit against āyā for the same case.
So, it can be said that once a judgment is given by a court over a particular subject matter, that court has a right to bar the trial of the case and here Section 40 will apply.
Section 40: Prior rulings applicable to preclude a retrial or lawsuit. A judgment’s existence will be relevant even in a retrial, according to Section 40 of the Indian Evidence Act, 1872. In this case, res judicata is applicable. It merely indicates that it will be a relevant fact if any judgment forbids the court from considering such a suit or petition.
Concerning the Section Section 40 refers to judgments, orders, and decrees that have the effect of prohibiting multiple suits in the same case. To establish Lis Pendens or Res Judicata, or the bar on a subsequent suit or trial, this section is crucial. Section 40 restricts itself to the admissibility of judgments and does not deal with the questions of evidence Collector of Gorakhpur vs Palakdhari: 12 A 1 FB.
It is based on two Latin maxims, which are:
Nemo Debet Bis Vexari Pro Una Et Eadem Causa, which means that no one can be vexed more than once for the same offense. It is based on the principle of private justice.
Interest Republicae Sit Finis Latium which means that having an end to litigation is in the best interest of the state. It is based on public policy and aims at the suits not being protracted Commissioner of Central Excise, Nagpur vs Shree Baidya Nath Ayurved Bhavan Ltd, (2009) 12 SCC 419.
The maxim interest was declared by the Apex Court in Indian Council for Enviro-Legal Action vs. UOI (2011) 8 SCC 161. Republicae ut sit finis litium states that the conclusion of litigation following a protracted hierarchy of appeals is in the public interest. Allowing a second appeal could be tantamount to opening a flood gate, resulting in more injustices overall at the expense of rights in society. The dictum guarantees that the idea of:
Private convenience: which states that a person should not be vexed twice for the same cause.
Public policy: that it is in the best interests of peace and harmony of a state and its people is followed, and the finality of litigation Nagabhushanammal vs Chandikeswaralingam, 2016 (3) can be ensured.
This section will be applicable where the court has jurisdiction to decide upon the matter and one of the parties to the case points out that the case shouldn’t be heard by the court, because it has already been decided Lakshanchandra v Ram Das, AIR 1929 Cal 374.
Case of Shrinivas Krishnarao Kango vs Narayan Devji Kango[6]
Mr. Siddopant and Mr. Krishnarao were members of a Hindu Undivided Family business that was the subject of the case. A disagreement over family property emerged in the wake of the deaths of Siddopant in 1899, Gundo (Siddopant’s son) in 1901, and Krishnarao in 1897.
When the matter reached trial, the plaintiff argued that the adopted son of Lakshmibai, Gundo’s wife, was a matter that needed to be decided upon by the court before any portion of the property could be distributed. The court held that since a court had previously made a decision on this matter, it was unnecessary for the court to delve further into this particular aspect of the case.
The question arises: what is āres judicataā? This word may be familiar to many of you. “Judicate” denotes “already decided,” while “Res” denotes “subject matter.” Consequently, it states that a decision has been made. Section 11 of the C.P.C. defines it. For instance: Two parties, “A” and “B,” are suing each other over property-related issues. However, the court dismissed the lawsuit, so “A” filed a new lawsuit against “B.” Therefore, it was stated that the res judicata formula applies and that a court loses jurisdiction once it issues a judgment on a specific matter. The Criminal Procedure Code prohibits a person who has been tried and found guilty from being tried again. Therefore, the judgment that found him guilty will be as such, the verdict that found him guilty will be applicable to any case or legal proceeding where he is accused of committing the same crime. The Criminal Procedure Code prohibits someone who has already been tried and found guilty from being tried again. As such, the verdict that found him guilty will be applicable to any case or legal proceeding where he is accused of committing the same crime.
Section 41- Relevancy of certain judgment in probate, etc., jurisdiction
The Indian Evidence Act, 1872 says that a final judgment, order, decree or ruling of a court exercising probate (relating to will), matrimonial (marriage, divorce), admiralty (war claims) or insolvency jurisdiction is relevant.
This section consists of two parts:Ā
It deals with judgement in rem i.e. a kind of declaration about the status of a person and is effective to the entire world whether he was a party or not.
A judgement in personam is when a judgment is given to the parties (e.g. a tort or a contract action) which binds only the parties and is not relevant in any subsequent case.
Such judgment is conclusive proof. It refers to a presumption of a particular set of facts which cannot be overruled or changed by additional evidence or argument.
State (Delhi Administration) & Anr v. Syed Askari Hadi Ali Augustine (2009)
Shamim Amna Imam was a testatrix in this instanceāsomeone who left a legacy or made a will. The aforementioned properties belonged to her. On 3.5.1998, she signed a will in support of the appellant, Syed Askari Hadi Ali, and on 23.5.1998 she passed away. Regarding the will, Syed Askari Hadi Ali submitted an application. In relation to the property, he also requests a grant of mutation; however, the request is denied for the following reasons:-
The appellant could not produce the original copy of the will.
The property which was in question was under possession.
And the Title Suit which was filed by the Testatrix against the appellant was pending in the civil court.
Following this, there were numerous appeals, and as a result of the absence of evidence that was necessary in this case, the court ultimately declared that, in light of the relevant facts and circumstances, it is not a suitable case for us to exercise our discretionary power or jurisdiction under Article 136 of the Indian Constitution.
Kinds of jurisdiction:
Probate jurisdictionĀ
It has the authority of an orphan’s court, surrogate court, or probate court. It covers the creation of wills, the distribution of a deceased person’s assets, and the oversight of child guardianship.
State of West Bengal v. Goutam Shantilal Shah, May 9, 1996
In this instance, the issue of whether district delegates could consider a request for the grant of probate of a will pertaining to immovable property under section 276 of the Indian Succession Act of 1925 emerged. However, in the end, it was decided that any application for the grant of probate of the will must be decided in compliance with the law.
2. Matrimonial jurisdiction
It uses the authority of nullity suits, et thoro, marriage, and divorce.
Vijaya Venketesh vs. Santhini (2017) In this case, which pertains to section 13 of the Hindu Marriage Act, it was decided that video conferences are not permitted in matrimonial proceedings. Give notice of the review petition under the given conditions.
3. Admiralty jurisdiction
In matters involving ships, the sea, and other navigable waters, it wields legal authority.
Gian Chand vs. Gobind Ram (2000) Admiralty court is the forum for this case. The jurisdiction of the admiralty court was invoked in England against the respondent, who was accused of breaching a contract in London.
4. Insolvency jurisdiction
It uses its authority as a Member State to initiate bankruptcy procedures on whose territory the center of the debtor’s primary interests is located.
T.V. Swaminatha Iyer vs. Krishnaswami Iyer and (1924) The question in this case is whether vakils have a right of audience in the Madras Presidency Town court’s insolvency. T.V. Swaminatha Iyer was the respondent, and G. Krishnaswami Iyer was the appellant. Following much deliberation, it was determined that Vakils was not entitled to an audience in the bankruptcy court.
Section 42- Relevancy and effect of judgments, orders, decrees, other than those mentioned in Section 41 of the Indian Evidence Act
The effect of judgment or order will be relevant, except those which are mentioned in section 42.
Judgements are relevant if they are related to matters of public nature.
But such judgment, order or proclamation is not conclusive proof of which they state.
Illustration: ā X sues Y for the murder of his brother i.e. Z. Y alleges the existence of a public right of a licensed gun which he used for his protection against Z. The existence of an order in favour of the defendant. Similarly in a suit by B against A for the murder of C in which A alleged the existence of the same right of way, is relevant but it is not conclusive proof that the right way of existence.
Vishnu Dutt Sharma v. Daya Sapra (2009)
In this instance, on August 10, 1999, the Respondent, Daya Sapra, borrowed rupees 1.5 lakhs from the Appellant, Vishnu Dutt Sharma. Respondent sent a check on October 20, 1999, following the appellant’s reminder; however, the appellant received the check with a notation indicating insufficient funds. After that, he brought a petition against the reply. Although it was previously stated that the case fell under “Res Judicata,” the ultimate ruling determined that this was not the case. Thus, the appeal is granted; however, due to the particular facts, issues, and circumstances of this case, no cost order will be issued.
Section 43- Judgment, order etc, other than those mentioned in Section 40 to 42, when relevant
Judgment, order or decree are irrelevant other than those mentioned in section 40, 41 and 42. In this, the previous judgments are not relevant with concern with the subsequent proceeding.
Let us understand with an illustration. āXā prosecutes āYā for stealing his horse from him. āYā is convicted. Afterwards āXā sues to āZā for the horse which āYā had sold to āZā before his conviction. As between āXā and āZā, the judgment which was against āYā is irrelevant.
In The Duchess of Kingston’s Case, it was decided that the House of Lords, who are her peers, tried and convicted the Dowager Duchess of Kingston, Countess of Bristol, of the bigamy charge.
Acceptability of verdicts in criminal and civil cases
The term “admissibility” refers to a judgment’s ability to be accepted or legitimate, particularly when used as evidence in a legal proceeding. This brings us to some admissibility of judgment in both criminal and civil cases
In civil lawsuits, the parties may rely on the “Res Judicata” principle.
The civil court’s decision would be relevant if all requirements of sections 40 to 43 are met if the criminal and civil proceedings are related to the same cause or reason. However, it cannot be stated that the decision would be conclusive unless section 41 is met.
According to section 300 of the Criminal Procedure Code, if the requirements outlined there are met, an individual who has been found guilty of a crime cannot be reexamined for the same offense.
Emperor Vs. Bhagwandas Tulsidas (1945)
The accused in this case was found to have killed both Dharamsey and Mr. Haji. He claims that the case will fall under the purview of Section 42 of the Indian Evidence Act, which deals with matters of public policy. However, it was decided that the public would not be concerned about such an unusual death. Therefore, it is inappropriate to present certain facts as evidence because they are not relevant under any Indian Evidence Act provision.
The accused in this case was found to have killed both Dharamsey and Mr. Haji. He claims that the case will fall under the purview of Section 42 of the Indian Evidence Act, which deals with matters of public policy. However, it was decided that the public would not be concerned about such an unusual death. Therefore, it is inappropriate to present certain facts as evidence because they are not relevant under any Indian Evidence Act provision.
Section 44- Fraud or collusion in obtaining judgment, or incompetency of court, may be proved.
Section 44 of the Indian Evidence Act states that a prior ruling that has been established to have been the result of fraud, collusion (illegal or covert cooperation), or incompetence of the court is not subject to res judicata.
A lawsuit or other legal action involves a minimum of two parties.
Any party may present any relevant judgment, order, or decree under sections 40, 41, or 42.
The act only stipulates that a judgment’s value may be rendered ineffective in the event that any of the following three conditions are met:
Incompetency of the court
If there is fraud
If there is collusion
Asharfi Lal Vs. Smt. Koili (Dead) by L.Rs. (1995)
The dispute surrounding land reform and the abolition of Zamindari is connected to this case because Raja Ram was Smt. Koili’s brother and Smt. Nanki’s husband. Thus, the appellant, Asharfi Lal, claimed to be the sole heir to Raja Ram and to be entitled to the latter’s agricultural land; however, Smt. Koili refuted Asharfi Lal’s claim to be Raja Ram’s son. Prior to the evidence of record being presented in the consolidation proceedings, the Deputy Director determined that Ashrafi Lal was the sole heir and the son of Raja Ram, overturning the earlier ruling in favor of Smt. Lal.
Conclusion
A decision should only be made based on the facts and arguments made in court. The legal doctrines that should apply in this case must also be determined by the court. It’s also criticized, though, that there’s always space for development. The judges rendered a decision holding that a system created and put into place in one nation need not be applicable in another. After all, none of the systems is perfect. Everyone gains knowledge from their experiences and errors, as Justice Sikri famously observed.
Documentary evidence means and includes all documents, including electronic records produced for the inspection of the Court. Document means any matter expressed or described. upon any substance utilizing letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used to record that matter.
To prove the documents original document is to be produced. Contents of it are to be proved so also signature on the same have to be proved. When the document appeals to the conscious of the Court that it is genuine, contents of the same need not be proved (āM. Narsinga Rao vs. State of Andhra Pradeshā AIR 2001 SC 318)
DEFINITION OF DOCUMENT:-Ā Document has been defined in section 3 of the interpretation clause of evidence act as under:-“document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter”Some illustrations have been appended with this section to explain the phrase `document’.The said definition has also been adopted in section 3(18) of the General Clauses act, 1897.Both these acts had been brought on the statue book in the nineteenth century. After the passage of one and a half century, the definition of a document has not undergone any change or modification till date.
How can you prove the contents of a document?
A document is said to be proved if following three criteria are satisfied:-
(a) Firstly, the execution (via Sections 67-73, IEA) of a document, i.e. the handwriting or signature on the document, if any, is proved. (Genuineness of a document)
(b) Secondly, contents/condition (via primary or secondary evidence/S.61-66, IEA) of a document, and
(c) Thirdly, truthfulness (via oral evidence/S.59-60, IEA) of the contents of a document
The contents of documents can be proved by oral evidence. However, the contents must be proved by admissible evidence. If the truth of the facts stated in the documents itself is in issue, then, proof of execution of the document should not be equated with the proof of facts stated in the document.
Proof of contents of the document:
Normally, any party who wants to prove the content of the document is required to lead evidence by production of the original document before the court through its author. Under Section 61, the original document can be presented before the Court through the author, who created the document, and it can be proved. G. Subbaraman vs. State, 2018 Cri. LJ 2377 (Mad).
Recitals in documents:
The recitals in the document do not become a part of the evidence. They are assertions by a person who is alive and who might have been brought before the Court if either of the parties to the suit had so desired. This distinction is frequently overlooked and when a document has been admitted in evidence as evidence of a transaction the parties are often apt to refer to the recitals therein as relevant evidence. Nihar Bera vs. Kadar Bux Mohammed, AIR 1923 Cal 290.
Proof of execution of documents:
Proof of handwriting: Except when judicial notice is taken of official signatures, the handwriting or signature of unattested documents must be proved. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that personās handwriting must be proved to be in his handwriting. This can be done in the following ways:
By calling the writer;
by an expert;
by a witness who is familiar with the handwriting of the writer; (AIR 1983 SC 684 āState of Bihar vs. Radha Krishna Singhā)
by comparison of the disputed writing, signature, or seal with some other admitted or proven writing, signature, or seal of the person; or
by admission of the party against whom the document is tendered
Proof of sealing: The sealing of a document can be the subject of judicial notice, proof, or presumption. When the seal of a foreign notary is put on a document, a presumption regarding the genuineness of the seal of the notary can be raised. Proof of attestation: If a document is required to be attested by law, it must not be used as evidence until one attesting witness has at least been called to prove its execution, if such a witness is alive and subject to the process of the Court and capable of giving evidence. (āH. Venkatachala Iyengar vs. B.N. Thimmajammaā AIR 1959 SC 443 ) If there is no denial of execution of the document, then it is not necessary to call a witness to prove the same. For the purpose of valid attestation of a Will under Sec.63, it is absolutely necessary that the attesting should either sign or affix thumb impression or mark himself, as the Section does not permit an attesting witness to delegate that function to another. In the decision reported in S.R.Srinivasa & others vs. S. Padmavathamma, AIR 2010 SCW 3935A it is held that mere signature of scribe cannot be taken as proof of attestation without evidence regarding other witnesses to Will.
Scribe:
The party who sees the Will executed, is in fact a witness to it; if he subscribes as a witness, he is then an attesting witness. The scribe or writer of a document may perform a dual role; he may be an attesting witness as well as the writer.
Sub-Registrar and Identifying Witnesses: A Will is not required by law to be registered Sec. 63 of Indian Succession Act, merely requires that the Will should be attested by two or more witnesses,. Each of whom, has either seen the testator sign, or affix his mark to the Will, or has received a personal acknowledgment of his signature from the testator, and each of the witnesses should sign the Will in the presence of the testator- no matter when, but before the Will had come into operation; where before it was presented for registration, it bore the signature of only one attesting witness, the signature of sub-registrar and of another person who are proved to have signed the Will in the presence of the testator, though as registering authority or an identifying witness, after,its execution had been admitted before them by the testator must be regarded as sufficient compliance with Sec. 63 Succession Act.
PROOF OF DOCUMENTS WHERE NO ATTESTING WITNESS IS FOUND
Section 69 of the Indian Evidence Act provides that if no such attesting witness can be found or if the document purports to have been executed in the United Kingdom it must be proved that the attestation of one attesting witness at least is in his handwriting and the signatures of the person executing the document is in the handwriting of that person. This section deals with the contingency where both the attesting witnesses are dead, then, their signatures, thumbmark can be proved by calling any person who can prove the said signatures or handwriting. The second requirement of this section is that the signatures/thumb mark of the executants has to be proved to be that of the executant in a legally permissible manner.
PROOF OF DIGITAL SIGNATURES
Section 73A of the Indian Evidence Act provides for the mode of proof of digital signatures of the person by whom it purports to have been affixed by modes provided in this section.
PROOF WHEN ATTESTING WITNESS DENIES THE EXECUTION
Section 71 of the Indian Evidence act provides that of attesting witness denies or does not recollect the exhibition of the document, its execution may be proved by other evidence. The phrase `other evidence’ has to be interpreted in terms of section 69 of Indian Evidence Act, 1872.
PROOF OF DOCUMENT REQUIRED BY LAW TO BE ATTESTED.
Section 68 of the act provides the mode of proof of execution of documents required by law to be attested. Such document shall not be used in evidence until one attesting evidence atleast has been called for the purpose of proving its execution if there be an attesting witness alive and subject the process of court and capable of giving evidence.Three ingredients can be culled out for application of this section
1. An attesting witness has to be alive.
2. He is subject to the process of court
3. He is capable of giving evidence. In case, any of the three ingredient is missing, the document cannot be said to be legally prove.
When attesting witness need not be called.
i) when the document is a registered one and its execution is not specifically denied. ii) Even though the execution of a Will is admitted, attesting witness has to be examined. {2008 (3) KCCR 1484 (23 and 31)} iii) When there is no attesting witness available. iv) When a party to the document against whom, it is sought to be used, admits its execution. v) When the document is not required by law to be attested. vi) When the document is thirty years old and there is a presumption of due attestation. vii) When document is called for and not produced. viii) When the document is a Will admitted to probate in India, in which case it may by the probate.
Sec. 69: Proof where no attesting witness found: The words ācan be foundā in the Section are not very appropriate and must be interpreted to include not only cases where the witness cannot be produced because he cannot be traced but also cases where the witness for reasons of physical or mental disability, or for other reasons, when the Court considers sufficient, is no longer a competent witness for the purpose, as is provided in Sec. 68 of the Act. If no attesting witness is available, it must be proved that attestation of one attesting witness is in his own handwriting and that the signature of the executants is in his handwriting. Signature includes mark. When both the attesting witnesses were no more a line, Section 68 Indian Evidence Act cannot apply. So by applying Section 69, it has to be proved by other evidence as mentioned in Section 69. The word not found occurring in Section 69 of the Act should receive a wider purposive interpretation.
Documents produced in court have to pass through two steps. They are:
Admission and exhibition (if relevant)
Proof (or truth of contents, veracity, reliability, etc.).
The question of proof comes for consideration only if the first step (admission and exhibition, as relevant) is successfully covered. In Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180, our Apex Court held as under:
āGenuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility.ā
Proof is of Two Types:
First, Formal Proof, or Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.
Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ātruthā of the contents of the document is established.
Proof as to truth is to be established-
(i) by oral evidence of one who can vouchsafe the same or
(ii) by circumstantial evidence or
(iii) by invoking āpresumptionā or
(iv) by express admission by the other side.
PROOF OF DOCUMENT
Different modes have been prescribed/demarcated under the evidence act 1872 about the proof of documents. The accepted mode of proof of documents can be summed as under:-
1. By admission of the person who wrote or signed the document
2. By calling a person in whose presence the document was signed or written(ocular evidence/attesting witness)
3. By calling a person who is acquainted with the writing of the person by whom the document is supposed to have been signed or written (Section 70)
4. By proof of an admission made by the person who is stated to have signed or written the document to that effect made in any other judicial proceedings.
5. By calling a handwriting expert who can compare in the Court the disputed signatures of writing with the admitted signatures or writing (opinion evidence/scientific evidence)
6. By calling a person who in routine has been receiving the document signed by the person in the course of his business or official duty though he may have never seen the author signing the document. All these modes have been explained in the judgment of the Himachal Pradesh High Court
Important Note:
i) An attested document not required by law to be attested may be proved as if it was unattested. ii) The Court shall presume that every document called for and not produced after notice to produce, was attested in the manner prescribed by law. Iii) There is a presumption of due attestation in the case of document thirty years old. The Court may in such cases dispense with proof of attestation. iv) Where a document is required by law to be attested, and there is an attesting witness available, then, subject to the proviso, at least one attesting witness must be called. v) If there be no attesting witness available, or if the document purports to have been executed in a foreign country, it must be proved by other evidence that the attestation of one attesting witness at least in his handwriting, and that the signature of the person executing the document is in his handwriting of that person. vi) The admission of a party to an attested document of its execution will, so far as such party is concerned, supersede the necessity of either calling the attesting witnesses or of giving any other evidence. vii) If the attesting witness available denies or does not recollect the execution of the document, its execution may be proved by other evidence. But where he fails to prove the execution of the document, the document is not legally proved.
Documentary evidence: Documentary evidence is defined as follows in Section 3 of the Indian Evidence Act: Documentary evidence is any material that is brought before the court to be examined, verified, or displayed. Electronic records submitted to the court are also covered by this definition. Documentary evidence is covered in Chapter 5 of the Indian Evidence Act. This section includes Sections 61 through 90A. The general guidelines for proving documentary evidence in various contexts are covered in Sections 61 to 73A of the Act. In particular, Sections 61ā66 of the Act address how the contents of a document are to be proven. Three sections can be made out of the content of documentary evidence:
b) How the record is to be proved to be authentic?
c) How far and in what instance oral evidence is excluded by documentary evidence?
Sections 74 to 78 deal with public documents and Section 79 to 90-A deal with presumptions as to documents
There is an ancient Roman proverb that is āVox Audita Perit, Littera Scripta Manetā which means that Spoken Word will Vanish, but the Written Word Remains. Hence the law of evidence recognises the superiority and credibility of documentary evidence as against oral evidence. There are two kinds of documentary evidence:
Public Documents (Section 74)
A certified copy issued by an authority or a reproduction of an entry from a book, record, or public register pertaining to pertinent facts are considered public documents. Public documents include things like birth and marriage certificates, utility bills for public utilities, police station complaints, and more.
Private Documents (Section 75)
Private documents are correspondence between opposing parties in a legal dispute, such as letters, agreements, emails, etc. Because there is a lower assumption that public documents can be tampered with, courts typically favor accepting public documents over private ones. Public documents can also be verified, if needed, by following their provenance to a trustworthy source.
Section 61 provides that the contents in documentary evidence can be proved by
a) Primary Evidence (Section 62)
These are the āoriginal documentsā that are produced in the court for inspection. There are 2 special circumstances explained under this section:
When a document is executed in parts. In such cases, each part is the primary evidence of the document.
2. Where several documents are made by one uniform process such as printing, lithography or photography, each is the primary evidence for the contents of the rest.
b) Secondary Evidence (Section 63)
Section 63 of the Act provides Secondary Evidence.
Secondary evidence means and includes:
1.Certified copies.
2.Copies made from the original using a mechanical process while ensuring the accuracy of the copy.
3.Copies made from and compared with the original.
4.Oral accounts of the contents of a document given by some person who has seen it.
When the contents of a document are to be verified by oral evidence then such document becomes secondary evidence
Official documents: These include powers of attorney, birth and marriage certificates, grants of probate, land certificates, and contracts.
Witness statements: These are written statements made by witnesses who have knowledge of the facts of the case.
Photographs and videos: These can be used to provide visual evidence of the events in question.
Correspondence: This includes letters, emails, and other written communications.
Notes of meetings: These can be used to provide evidence of what was discussed and agreed upon during a meeting.
Medical reports: These can be used to provide evidence of injuries or medical conditions.
Reports by other experts: These can be used to provide expert opinions on technical or scientific matters.
Ledgers and books: These can be used to provide evidence of financial transactions.
Video or audio recordings: These can be used to provide evidence of conversations or events.
Photos or screenshot images: These can be used to provide visual evidence of digital communications.
Physical copies or computer printouts of documents, files, records, messages, or emails: These can be used to provide evidence of digital communications or other records.
Writings on paper: These include invoices, contracts, or wills.
Photographs: These can be used to provide visual evidence of events or conditions.
Tape recordings: These can be used to provide evidence of conversations or events.
Films: These can be used to provide visual evidence of events or conditions.
Printed emails: These can be used to provide evidence of digital communications.
Oral Evidence
Evidence that is restricted to spoken words, gestures, or motion is known as oral evidence. It is evidence that has been personally heard or seen by the witness. Oral evidence must always be direct or positive, which means it goes straight to establishing the main fact in the issue. Section 3 of the Evidence Act 1872 defines evidence as āAll statements which the court permits or requires to be made before it by witnesses about matters of fact under inquiry; such statements are called oral evidence.” The word oral indicates something spoken or expressed by mouth, so anything which is accepted in court about the inquiry and expressed by any witnesses who are called in the trial is called oral evidence.
Oral evidence can only be given by such a witness who has heard the crime/ issue themselves. For example, A has heard the conversation of C over the phone to kill B. A will be the witness and give oral Evidence. If it refers to a fact which could be perceived by any other sense or in any other manner, by a witness.
Oral evidence can only be given by such a witness who has sensed the crime/ issue themselves. For Example, A finds the behaviour of B very odd around C who is Bās wife. Later C is found dead. If it refers to an opinion or to the grounds on which that opinion is held by the witness. It means that if a person has an opinion on an incident, it should be solely his opinion based on some grounds then only his testimony will be considered. For Example, If A thinks C is a wicked person and responsible for the incident, then Cās personal opinion shall be considered on those grounds.
Case law of Oral Evidence
Amar Singh v.s Chhaju Singh and another In this case, it was held that a relationship between section 50 and 60 of the Indian Evidence Act has been established which says that for proving evidence completely, two things shall be fulfilled firstly, there shall be a presence of relevant facts and those facts have been presented directly by the person who has either seen them, heard them, etc
There are two forms of evidence that are used in court: written and oral. Said testimony provided by a witness in court, typically under oath, is referred to as oral evidence. It comprises the testimony provided by witnesses during the main, cross-examination, and re-examination stages of the trial. The witness is required to swear or affirm under penalty of law that they will only testify truthfully. Documentary evidence, or evidence presented in the form of papers like contracts, letters, and photos, can be contrasted with oral testimony.
Contrarily, written evidence is defined as that which is provided through written means, including emails, letters, and contracts. Because written evidence offers a tangible record that can be shared, stored, and referred to, it can sometimes be more trustworthy than oral testimony. Oral evidence may be more trustworthy than written evidence, though, since written evidence is susceptible to fabrication and manipulation.
Oral testimony has less weight in court than written testimony. Because the India Evidence Act of 1872’s guiding principle, the “Best Evidence Rule,” is always required by law. Conversely, there are two categories of documentary evidence. Primary evidence is the most trustworthy type of evidence that the court will take into account. When there isn’t any primary evidence, the witnesses’ personal perceptions serve as secondary evidence. The best kind of oral evidence is direct evidence since it is verifiable. Cross-examination of the direct evidence provider is an opportunity to verify its accuracy. However, primary evidence is always the best evidence available.
DIFFERENCE BETWEEN ORAL EVIDENCE AND DOCUMENTARY EVIDENCE
BASIS
ORAL EVIDENCE
DOCUMENTARY EVIDENCE
MEANING
It is given by the witnesses in the court orally that is by mouth.
Documentary evidence that is written evidence is submitted in the court in form of hard papers, documents.
DEFINITION
It is given in section 3 of the act.
It is given in section 3 of the act.
SCOPE
It is included in section 59 and 60.
Written evidence ranges from section 61-66 of the act.
FORM
It has to be given in direct form although few exceptions are there.
It is proved through primary and secondary evidences.
SUBMISSION
It is submitted orally, signs or by gestures.
This is submitted in writing also includes electronic form.
CONCLUSION
Oral and written evidence are both reliable sources of information. However, each person’s power varies depending on the situation and the circumstances. Without a doubt, written evidence in the form of documentary evidence is stronger and more trustworthy than oral testimony. However, courts consider both of these since, in certain cases, it may not be possible to prove a fact through documentary evidence. As a result, each of these has equal weight, and how they are interpreted has opened the door to more equitable justice.
Procedural laws define the rulesĀ by which substantial laws may beĀ enforced. Thus, the Evidence Act is essentially a procedural law. The Latin term “evident,” also known as to prove or to show clearly,
It makes sense that courts base their decisions on the evidence, and the relevant laws provide guidance. One such law is the Indian Evidence Act of 1872, which specifies in great detail the types of evidence that are acceptable in court. In criminal cases, the gathering of evidence starts as soon as the police officials receive the First Information Report (FIR). The parties must independently provide pertinent evidence to support their position in civil proceedings. In most civil cases, the state does not have the police-like authority to help with evidence collection.
NATUREĀ OFĀ LAWĀ EVIDENCE
The most significant position in a adjective law is held by the law of evidence. The courts are responsible for determining whether or not specific facts exist, applying substantive law to the facts, and stating the parties’ rights and obligations to the extent that those facts affect them. Evidence is the way through which the courts are informed that these facts exist.
OBJECTĀ OFĀ LAWĀ OFĀ EVIDENCE
Preventing errors in evidence admissibility and implementing a more accurate and consistent set of guidelines are the court’s goals.
History of Indian Evidence Act, 1872
Facts, data, and other supporting evidence are always needed in arguments in order to establish the position being argued. To determine whether, why, and how things happen, it is based on logical reasoning and common sense. Evidence that leads to the truth, or “saakshya,” was prized even in Dharma-ruled ancient India. Since nobody could go back in time to witness the scene again, it is essential to remember the circumstances, objects, and people that prove the sequence of events in an act in order to establish the truth. Even during the Muslim dynasty, there were indications left behind.
The Indian Evidence Act, 1872, is credited to Sir James Fitz James Stephens and was passed during British rule in India. Even though the English government introduced it, it is still appropriate for India’s current legal system. The law of evidence has changed significantly over the last 75 years of legal evolution and independence as a result of amendments and case laws.
Main Features of Indian Evidence Act
In India, the Evidence Act is applicable to all court proceedings. Court martials are also included in this term. Affidavits filed with a court or before an officer are examples of exceptions, as are proceedings before arbitrators.
The Act and the development of criminal law go hand in hand.
Regarding the latest developments in technology, the applicability of electronic evidence is also examined.
The Indian Evidence Act recognizes the relative importance of first-hand witness testimony over hearsay. This reinforces the significance of concrete, authentic evidence.
Additionally, the law of evidence recognizes and makes provisions for the distinctions between civil and criminal law.
The Act also states whether a fact can be proven, refuted, or left unproven based on the evidence at hand.
In criminal cases, where one party is accusing the other, the prosecution bears the burden of proof; in civil cases, the burden of proof is with the plaintiff seeking relief.
The Evidence Act of 1872 makes clear the conditions under which the burden of proof is shifted by a particular fact.
Under the 1872 Act, suspects’ confessions made outside of court are not considered credible evidence against the accused.
The Act uses the phrase “court may presume” to validate circumstances, giving the judicial officer the discretion to accept or reject particular evidence.
Conversely, phrases such as “must presume” impose an obligation on the judge to accept particular evidence while leaving no room for discretion.
In terms of court evidence, the Act is not definitive. Additional laws, such as the Code of Civil Procedure, the Indian Penal Code, the Indian Stamps Act, etc., also supplement relevant provisions.Ā
Conclusion:
The facts and information offered on this legal blog are only a small portion of what the Indian Evidence Act is all about. For someone to represent a client in court, it is not sufficient to understand the offense and its components. Understanding the procedure, what is permissible according to it, and the phases of procedural law that limit particular aspects are all crucial. Particularly for criminal advocates, illicit production of evidence may tip the scales in your favor even if the case overall is against your client. The secret is to prepare the case thoroughly and to be aware of all relevant laws, such as the Evidence Act.
Every legal proceeding seeks to establish some sort of right or liability. These commitments and rights are predicated on facts that must be convincingly established in court. Who must submit the case’s evidence and persuade the court of its validity is specified in Sections 101 to 111. While Sections 101 to 103 discuss the duty of proof broadly, Sections 104 to 111 deal with situations where the burden of proof falls on a specific party. These principles are referred regarded as the “Burden of Proof” rules.
MEANING
The phrase “burden of proof” is not defined under the Indian Evidence Act. The legal duty or obligation for the parties to establish the facts that will help the court rule in their favour, however, is known as the burden of proof. The Burden of Proof refers to the responsibility in litigation to establish a fact.
If the person on whom the burden is passed fails to provide any evidence, the issue must be decided against him, according to the strict definition of the word “burden of proof” (onus probandi). Chapter VII of the Indian Evidence Act addresses the burden of proof requirements.
BURDEN OF PROOF (Section 101)
The “Burden of proof” is discussed in Section 101 of the Indian Evidence Act of 1872. According to this clause, a person must establish the existence of any facts he claims in order for the court to rule on his legal rights or obligations based on such facts. The burden of proof is stated to be on a person when they have a responsibility or obligation to establish a fact.
E.g.: If Ram is of the opinion that Shyam has committed a crime and that he must be punished for the same, then it is upon him to prove that Shyam has committed the said crime.
ON WHOM BURDEN OF PROOF LIES (Section 102)
Section 102 of the Indian Evidence Act, of 1872 speaks about, āOn whom the burden of proof liesā. Section 102 fixes the burden of proving the facts in any suit or proceeding on that person who would fail in case no evidence is given on either side.
E.g.: Sunil has filed a case stating that the land which is in possession of Anil belongs to him. Here, the burden of proof is on the one who will suffer if he/she does not prove the fact. Hence, if Sunil does not prove that the land belongs to him then Anil will continue to have possession of the land and Sunil will suffer by losing his land.
BURDEN OF PROVING A PARTICULAR FACT (Section 103)
The “Burden of proof as to particular fact” is discussed in Section 103 of the Indian Evidence Act of 1872. According to this clause, the burden of proof for a specific fact rests with the party seeking the court’s belief in its existence unless the legislation expressly states that the burden of proof rests with a certain party.
Accordingly, this section states that the burden of proof is on the party asserting the affirmative or negative of a certain fact, unless the evidence law or another applicable legislation expressly states otherwise. This clause therefore states that the maker of an assertion must provide evidence to support it.
The distinction between this section and Section 101 is that in Section 101, the person asserting a truth has the burden of demonstrating whether it is positive or negative, affirmative or denial, but in this section, the person asserting a fact has the burden of proving whether it is affirmative or denial.
E.g: Chirag says that at the time of his neighbourās murder, he was not at home and was at his uncleās place. In this case, it is upon Chirag to prove that he was at his uncleās place.
In Kamini Sahuani v. Purna Chandra Sahoo, a married woman who was maltreated by her in-laws and driven out of her matrimonial home filed a case for recovering her jewellery and other articles. Her in-laws pleaded that she had already taken these articles away, the court held that there cannot be any presumption that she has taken away any of her articles, and the burden of proof would be upon the in-laws to prove that she has taken away her jewellery and other articles.
Every person is required by Section 39 of the Criminal Procedure Code to report certain offences that they are aware of or appear to have committed to the nearest police officer or magistrate. If he fails to accomplish it, he is responsible for providing a justifiable explanation. The Indian Evidence Act’s second part, which reads, “if the law itself provides that the burden of proof lies on any particular person,” applies in this instance. The burden of proof, in this case, is with the party who failed to provide information to the nearest police officer or magistrate as required by law (in this case, Section 39 of the CrPC).
PARTICULAR CASES WITH REFERENCE TO THE BURDEN OF PROOF
These principles are called the rule of the convenience of the burden of proof which is covered under Sections 104-113 and Sections 113A and 114A.
BURDEN TO PROVE TO MAKE EVIDENCE ADMISSIBLE (Section 104)
The “Burden of proving fact to be proved to make evidence admissible” is mentioned in Section 104 of the Indian Evidence Act, of 1872. According to this provision, it is the responsibility of the person who intends to provide evidence for the latter fact to establish the earlier fact when it is required to do so in order for them to provide evidence for the latter fact.
Illustration: – A wishes to prove a dying declaration by B. A must prove Bās death. This illustration says that the fact necessary to be proved is the dying declaration of B and the fact necessary to prove the dying declaration is that B is dead. Mahboob Sab v. Union of India, (2011) In this case, the Railways’ contention was that the person who died by falling from a train was not a bonafide passenger being without a ticket, the court said that it was for the Railways to prove that fact.
BURDEN TO PROVE THAT THE ACCUSED COMES WITHIN EXCEPTION (Section 105)
Section 105 of the Indian Evidence Act, of 1872 speaks about the āBurden of proving that the case of the accused comes within exceptionsā.
The burden of establishing the existence of all circumstances bringing a case under any of these exceptions shall be on the accused when, under this section, an accused relies in his defence on any of the Exceptions provided in the Indian Penal Code or in any other statute defining the offence. A presumption that such circumstances don’t exist will be made by the court.
When making an exemption under Section 105, the level of proof required of the accused is far lower than it would be for the prosecution in a comparable situation. It may not be necessary for an accused person to present evidence to demonstrate their innocence. However, an accused person alone has the burden of proving that his specific circumstances fall under an exception to the said clause.
General presumption: According to the general premise, the accused is presumed innocent unless proven guilty, and the burden of proof rests with the prosecution to do so. Once guilt has been proven, the burden of proof shifts to the accused, who may then raise an I.P.C. general exceptions defence.
This overall burden is always on the prosecution and it never changes. An essential exception to this general rule is Section 105. The approach outlined in Section 103 is applied in this section and even extended. The specific responsibility placed on the accused under Section 105 does not conflict with the general burden, which always falls on the prosecution and never changes.
BURDEN TO PROVE FACT ESPECIALLY WITHIN KNOWLEDGE (Section 106)
The Indian Evidence Act of 1872 mentions the “burden of proving a fact, especially within knowledge” in Section 106. The exception to Section 101 is Section 106. According to this provision, the onus of proof rests with the individual who, in particular, has knowledge of the fact in question. It states that when a fact is specifically within the knowledge of a person, that person is responsible for establishing that fact. The reasoning behind this Section is that such a person is in a better position to show the reality, especially when it is within his knowledge, and it is challenging or nearly impossible for the opposing side to do so..
Illustration: – The body of B was found in the house of A. The onus is upon A to establish that even if the body of the deceased was recovered from his house, his involvement in the crime is negligible. The inmates of the house are also required to provide an explanation. If the defendant fails to provide a viable explanation and fails to establish his innocence, this would form a chain of circumstantial evidence establishing the guilt of the accused.
Section 106 applies only to the parties to a suit or proceeding. It is designed to meet certain exceptional cases in which it would be impossible or very difficult for the prosecution to establish facts that are especially in the knowledge of the accused.
Ram Gulab Chaudhury v. State of Bihar (2001) In this case, a dead body was not found but there was a clear witness by the eyewitness that the victim was killed by the accused before they took away the body. No explanation was given by the accused as to the disappearance of the dead body. The court said that it can convict the accused people by drawing the presumption that the accused people had a reason to take away the dead body and the reason being that the death was caused by them.
BURDEN TO PROVE THE DEATH OF PERSON (Section 107)
Section 107 of the Indian Evidence Act, of 1872 speaks about, the āBurden of proving the death of a person known to have been alive within thirty yearsā.
This section provides that where there is a question whether a man is alive or dead and if it is shown that he was alive within a period of 30 years, the burden of proving that he is dead is on the person who affirms it. Once it is shown or proved that a man was alive within a period of thirty years a presumption is allowed to be raised under this provision as to the continuance of life of such person.
In Surjit Kaur v. Jhujhar Singh, a person was shown to be alive in the year 1960 and was presumed by the court to be alive upto 30 years from that date. The evidence of his wife that her husband had gone to Indonesia and more than 7 years had elapsed and he neither had any communication nor was heard of by anyone since then, was held to be not sufficient to rebut the presumption under Section 107
BURDEN TO PROVE THAT PERSON IS ALIVE (Section 108)
The “burden of proving that a person is alive who has not been heard of for seven years” is mentioned in Section 108 of the Indian Evidence Act, of 1872. According to this section, the burden of proving that a man is alive shifts to the person who affirms that he is alive when it is disputed whether he is alive or dead and it is established that those who would ordinarily have heard of him had he been alive did not do so for a period of seven years.
Independent proof is required because there is only a basic presumption of death and not of the time of death. The person claiming a right for the establishment of which such fact is necessary bears the burden of establishing that death occurred at a specific moment within the span of 7 years.
BURDEN OF PROOF TO RELATIONSHIP (Section 109)
Section 109 of the Indian Evidence Act, of 1872 speaks about, the āBurden of proof as to relationship in the case of partners, landlord, and tenant, principal and agentā. According to this clause, the law presumes that any relationship or condition of affairs between individuals who have acted as partners, landlords and tenants, or principals and agents will continue to exist unless the contrary is established. When it is proven that people were in the aforementioned relationshipsāpartners in a partnership business, landlord and tenant, or principal and agentāand that they have been functioning in those capacitiesāa presumption may be made that they are still in those relationships. The burden of demonstrating that they do not stand or cease to stand in such a relationship is on those who wish to refute this presumption.
BURDEN OF PROOF TO OWNERSHIP (Section 110)
“Burden of proof as to ownership” is a concept mentioned in Section 110 of the Indian Evidence Act of 1872. When a person is demonstrated to be in possession of any property, Section 110 permits to raise a presumption that he is the owner of such property and the burden of demonstrating that he is not the owner is on the person who affirms that he is. Possession is the primary indicator of ownership, hence anyone wishing to dispose of the possessor must prove that they have the legal authority to do so. The rule will not hold true if the possession was obtained through deception or force. The term “possession” in this clause must be construed as an actual current possession rather than a legal one. Under this clause, a presumption may be raised in relation to both mobile and immovable property, as well as by the government. But in cases where there is a statutory presumption of ownership in favour of the government, it will not be applicable.
PROOF OF GOOD FAITH IN TRANSACTIONS (Section 111)
According to this clause, the duty of demonstrating the good faith of a transaction lies with the party who is in a position of active confidence with the other party whenever a doubt regarding the transaction’s good faith arises between the parties.
When two parties enter into a transaction while on equal footing, it is presumed that both parties have good faith; however, when they are on unequal footing and one party is in a position of active confidence over the other, it is their responsibility to demonstrate that both parties have good faith.
PRESUMPTION AS TO CERTAIN OFFENCES (Section 111-A)
Under this provision, where a person is accused of committing an offence under
(a) Section 121 (Waging or attempting to wage War or abetting Waging of war against the Govt. of India),
(b) Section 121-A (Conspiracy to commit an offence of waging or abetting to wage a War against the Govt. of India),
(c) Section 122 (Collecting arms etc., with the intention of waging war against the Govt of India) and
(d) Section 123 (Concealing with intent to facilitate design to Wage War) of the Indian Penal Code in any:
1. area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of Public Order; or
2. area in which there has been, over a period of more than one month, extensive, disturbance of public peace, and when it is shown that such person had been at a place in such area at the time firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order, acting in the discharge of their duties, the court shall presume that such person had committed such offence unless contrary is shown child. The same presumption arises where the marriage was dissolved and the child was born within 280 days after dissolution, the mother remaining unmarried in the meantime.
The essential conditions for the presumption to arise are:
1. The child should have been born during the continuance of a valid marriage, or if the marriage was dissolved, within 280 days after its dissolution, the mother remains unmarried.
2. The parties to the marriage should have had access to each other at any time when the child could have been begotten.
PRESUMPTION AS TO ABETMENT OF SUICIDE BYA MARRIED WOMAN (Section 113-A)
By virtue of this clause, the court may assume that a woman’s suicide was encouraged or that she was exposed to cruelty by her husband or any of his family if it occurs within seven years of the date of their marriage. The husband or his kin is required to provide evidence to overcome the assumption.
In Arvind Kumar v. State of M.P, where the deceased wife committed suicide by setting herself on fire because of harassment, humiliation and torture caused by the accused husband for bringing insufficient dowry, the fact that the accused though present in the house at the time of the incidence made no attempt to save the victim by not calling the doctor and not bothering to call a doctor, the presumption provided under Sec. 113-A would be applicable.
PRESUMPTION AS TO DOWRY DEATH (Section 113-B)
When the question arises whether a person has caused the dowry death of the woman, if it is shown that prior to the death of such woman, she had been subjected by such person to cruelty or harassment for or in connection with the dowry demand, the court shall raise a death.
An adverse presumption that the accused was responsible for the dowry death in question may be raised against him if the court determines that there are sufficient circumstances to demonstrate that the victim of the dowry death was subjected by the accused to cruelty or harassment prior to her marriage. The phrase “shall presume” in Section 113B requires the court to raise the presumption that the accused is to blame for the dowry death. The burden of proof is to disprove the presumption referred to in the Section and demonstrate that there are no circumstances that would indicate the putative victim of dowry death.
PRESUMPTION AS TO ABSENCE OF CONSENT IN CERTAIN PROSECUTION FOR RAPE (Section 114-A)
The new rule has the effect of giving the court a presumptive answer when determining whether sexual activity between a man and woman occurred with or without consent when the woman testifies in court that it did not occur with her consent. The onus of demonstrating consent is now placed on the accused. He commits a crime if he is unable to demonstrate that there was consent.
In re: State of Assam, Bipul Medhi The onus would then shift to the accused to demonstrate that his sexual act with the prosecutrix was with her consent when sexual intercourse between the accused and the prosecutrix is established to have occurred and the prosecutrix in such a case claimed in her testimony before the court that she had not consented to the sexual act.
The following conditions have to be satisfied in order to raise an adverse presumption against the accused for rape as to the absence of consent:
1. The fact of sexual intercourse between the accused and the victim must be proved.
2. The question must be before the court whether such inter-course was with or without the consent of the alleged victim.
3. The statement of the victim before the court that she had not consented.
The termĀ āconfessionāĀ is nowhere defined or expressed in the Indian Evidence Act. Section 17 expressly provides that any statement whether oral or in the form of documentary which put forward for the consideration of any conclusion to the fact in issue or to the relevant facts. The statements may infer any reasoning for concluding or suggesting that he is guilty of a crime. We may also define theĀ confessionĀ in other words that the admission by the accused in the criminal proceedings is aĀ confession. Sections 24 to 30 deal with confessions. However, the Act does not define a confession but includes in its admissions of which it is a species. Thus confessions are a special form of admission. Whereas every confession must be an admission but every admission may not amount to a confession. Sections 27 to 30 deal with confessions which the Court will take into account. A confession is relevant as an admission unless it is made: a) to a person in authority in consequence of some inducement, threat or promise held out by him in reference to the charge against the accused; b) to a Police Officer; or c) to anyone at a time when the accused is in the custody of a Police Officer and no Magistrate is present. Thus, a statement made by an accused person if it is an admission, is admissible in evidence. The confession is a piece of evidence only against its maker and against another person who is being jointly tried with him for an offence. The confession made in front of a magistrate in a native state recorded is admissible against its maker and is also admissible against co-accused under Section 30. Illustrations a) A and B are jointly tried for the murder of C. It is proved that A said-āB and I murdered Cā. The Court may consider the effect of this confession as against B. b) A is on trial for the murder of C. There is evidence to show that C was murdered by A and B and that B saidāāA and I murdered Cā. This statement may not be taken into consideration by the Court against A, as B is not being jointly tried. According to Section 24, confession caused by inducement, threat or promise is irrelevant. To attract the prohibition contained in Section 24 of the Evidence Act the following six facts must be established:
that the statement in question is a confession;
that such confession has been made by an accused person;
that it has been made to a person in authority;
that the confession has been obtained by reason of any inducement, threat or promise proceeding from a person in authority;
such inducement, threat or promise, must have reference to the charge against the accused person;
the inducement, threat or promise must in the opinion of the Court be sufficient to give the accused person grounds, which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
TYPES OF CONFESSION AND PROCESS OF RECORDING CONFESSIONS
Formal Confession: – Formal confession is also known as Judicial Confession, and it refers to claims made before a judge or in a court of law during a criminal proceeding. A judicial confession is nothing more than a “plea of guilty” as specified by Article 20(3) of the Indian Constitution; otherwise, any confession made against the person making the confession has no evidentiary value, and he cannot be found guilty of any crime on the basis of such confession.
Informal Confession: – Extrajudicial confession refers to claims made outside of a court or in the absence of a judge. It was not appropriate for the statements to be addressed to a specific person. Informal confession can be made in the form of prayer, in any private space, or in a self-conversation, just as it can be made in the form of judicial confession. However, the court must ensure that the accused’s confession, whether judicial or extrajudicial, is consistent with Article 20(3) of the Indian Constitution, which states that “No one should be coerced to give evidence against himself.” This means that the confession must be made freely and truthfully, and only then may a person be charged with a crime. Extrajudicial confession occurs when a person confesses his guilt of the crime he committed to a private person, such as a friend or a family member. In, Sahadevan v. State of Tamil Nadu13 the Supreme Court while deciding the case has made few principles in the form of guidelines where the court has to check such principles before admitting the confession of the accused, The following principles mentioned by the Supreme Court are:
Extrajudicial confessions are typically a very poor type of evidence on their own, and the court must thoroughly analyses such claims.
Extrajudicial confessions should be made with one’s own free will and must be truthful.
When extrajudicial confessions are backed up with other facts, their evidentiary value skyrockets.
The confessor’s comments must demonstrate his guaranty
3. Retracted Confession: – The concept of retraction in English is “the action of drawing back something.” Retraction confession is a form of confession in which the confessor makes a voluntary confession that is then reversed or retracted by the same confessor. If it is substantiated by other independent and corroborative facts, a retracted confession may be used against the individual who is confessing any retracted statements.
4. Judicial Confession: – Section 80 of the Indian Evidence Act gives judicial confessions evidentiary value, stating that if a confession is made in the presence of a magistrate or in a court and is registered by the magistrate as required by law, the confession is assumed to be valid and genuine, and the accused may be tried for the crime. Since section 164 of the Criminal Procedure Code empowers magistrates to record confessions, it is not important to know which magistrate reported the confession unless he is prohibited from doing so. As a result, in order to raise the presumption, the accused’s identity must be clear and proven in the confession in order to persecute him for the crime he committed.
5. Extra-Judicial Confession: – Though extra-judicial confessions have less evidentiary value than judicial confessions, in the case of a written confession, the accused’s writing is one of the strongest pieces of evidence the court has to convict the accused of the crime. If the accused’s confession is not available in the form of written statements, the court can examine the accused’s oral confession to some other individual. The remarks of the accused to any other person may be admissible at the court’s discretion and satisfaction, and the accused may then be tried for the crime for which he is convicted.
6. Confession by Co-accused:- The Supreme Court in the case of Pancho v. State of Haryana 2011 AIR, held that The co-confessions accused’s have no evidentiary value and cannot be regarded as a substantial piece of evidence. As a result, the co-confession accused’s can only be used to bolster the inference reached based on other facts.
WHEN IS A CONFESSION RELEVANT? Sections 24, 25, 26 and relevant part of Section 27 of the Indian Evidence Act, 1872 deal with the condition that when can confession be irrelevant. Section 24&17 of the same Act describes different instances when a confession on the basis of such instances becomes irrelevant. Section 24718 of the Indian Evidence Act provides that a confession made by a person who is accused of some offence is irrelevant if such confession comes out of any inducement, threat or promise and such instances have proceeded from a person in authority like police, magistrate, court etc., the other condition of this section is that inducement, threat or promise should be in reference to the charge of any offence and all such inducements, threat or promise should give the benefit of temporal nature. We can break down the entire structure into four separate essentials for a better understanding:
Confessions must be made as a result of coercion, danger, or pledge, among other things.
An individual in a position of authority should make such a confession.
It should be relevant to the charge at hand.
It should have either a temporal advantage or a temporal disadvantage. Thus, when these conditions are fulfilled then the confession becomes irrelevant.
Section 28- Confession Made After Removal Of Impression Caused By Inducement, Threat Or Promise, Relevant:Ā
If such a confession as is referred toĀ in section 24 is made afterĀ the impression caused by any such inducement, threat or promise has, inĀ the opinion of the court,Ā been fully removed, it is relevant.Ā Confession After Removal Of Threat OrĀ Promise- under section 24 we have seen thatĀ ifĀ the opinion of a courtĀ a confession seems to have beenĀ caused by any inducement, threat or promise having reference to the charge and proceeding from aĀ person in authority, it is irrelevant and cannot be proved even against a person making theĀ confession
The impression produced by promise or threat may be removed
ā¢ By lapse of time, orĀ ā¢ By an intervening cautionĀ given by some person of superior authority toĀ the person holding out the inducement, where a prisoner confessed some monthsĀ after the promise and after the warning hisĀ confession was received.Ā
Section 30- Consideration Of Proved Confession Affecting Person Making It AndOthers Jointly Under Trial For The Same Offence-
When more persons than one are being tried jointly forĀ the same offence and a confession made by one such person affecting himself and someĀ other such persons is proved, the court may take into consideration such confession asĀ against such other person as well as against theĀ person who makes such confession.Ā
Principle
when more persons than one are jointly triedĀ for the same offence, the confession made by one of them, if admissible in evidence, should be taken into consideration against all the accused, and not against the person who alone made it. It appears to be veryĀ strange that the confession of one person isĀ to be taken into consideration against another. Where the confession of one accused is proved at the trial, the other accused persons have noĀ other opportunity to cross-examine him. It isĀ opposed to the principle of jurisprudence to use a statement against a person without giving him the opportunity to cross-examine the person making theĀ statement. This section is an exception to the rule that the confession ofĀ one person is entirely admissible against the other.
CONFESSION ON PROMISE OF SECRECY, ETC- section 29 lays down thatĀ if a confession is relevant, that is, if it is notĀ excluded from being proved by any other provision of the IndianEvidence Act, it cannot be relevant if it was taken from theĀ accused by:Ā 1. Giving him the promise of secrecy, orĀ 2. By deceiving him, orĀ 3. When he was drunk, orĀ 4. Because it was madeĀ clear in answer to question whichĀ he need not have answered, or because no warning was given thatĀ he was not bound to sayĀ anything and that whatever will state will be used againstĀ him
INTERROGATION BY POLICE AND CONFESSIONS As can be seen by comparing Section 162(3) of the Cr. P.C. with Section 25 of the Indian Evidence Act 1872, the announcements made to the police are not conceded for the purposes of allowable bits of proof. Affirmations to the police are not to be recorded: In evidence in the use of explanations, A simple reading of sections 61 and 167 of the Cr.P.C. reveals that in the first instance, the police investigation of the crimes committed by a man apprehended without a warrant should be concluded within 24 hours under section 61, and if not, within 15 days under section 167. Any cop conducting an investigation may question orally any person presumed to be familiar with the facts and circumstances of the case; the conclusion can then be documented in writing; however, these statements are not to be marked by the maker of such declarations under Section 162. (2). In section 161 (2), the cop should follow those civilities while conducting an oral interview.
RECORDING OF STATEMENT According to the statute, the confession booth explanation must be registered “either in writing or on some mechanical or electronic device such as tapes, tapes, or soundtracks from which sound or pictures may be replicated” (Section 32 (1) POTA). Except for the extension of the term ‘electronic,’ this is a verbatim copy of the applicable structure in the TADA Act (Section 15 (1)). According to both of these agreements, the admission can only be recorded by a police officer who is not lower in rank than a Superintendent of Police.
CONFESSION UNDER MEDIA TRIAL Though shedding the old cover of accounting evidence, Indian courts have recently begun to recognize the importance of confession booth claims made in the media. By ruling that meetings provided by a denounced to TV channels could be considered evidence by courts, the Supreme Court added another, and notable, aspect to the conservative criminal law and gave a part to the media in criminal trials.
CONFESSION IN POLICE CUSTODY When it comes to the moment when a man is interrogated by police, the Evidence Act has a few safeguards. When cross-examining a suspect, the questioning should not be intimidating or frightening. The police do not prevent third-degree confirmation or admission. Aside from that part of the announcement that leads to the discovery of implicating material, the accused’s explanation to the cop isn’t admissible in evidence. The warning about the suitability of a confession made to a cop is suggested as a way to protect the accused against the police using third-degree tactics. The proving law is straightforward enough that an admission made to a cop isn’t allowed, but it can be used as part of the proof of the thing recovered as a result of the charged admission to a cop. As a result, if a firearm used in a number of cases is recovered by the police as a result of an admission made by a blamed party, the recovery is an important piece of proof. In this way, it would be accurate to conclude that the Evidence Act’s provisions unmistakably condemn the police and undermine public confidence in them. Under the plan of the Constitution and Evidence Act, a man cannot be undermined, tortured, or any other route regulated in order to elicit any form of explanation that has implicating sway over the arrested or blamed person.
Confessional FIR
Ā Only that part of a confessional First Information Report is admissible which does not amount to a confession or which comes under the scope of section 27. The nonconfessional part of the FIRĀ can be used as evidence against theĀ accused as showing his conduct under section 8.Ā Statement Not Amounting To ConfessionĀ A statement which does not amount to confession is not hit by the bar of the section. A statement in the course of the investigation was that the design was carried out according to the plan. The statement did notĀ refer to the persons who were involved in theĀ murder, nor did the maker of the statement refer to himself. This was held to be not a confessional statement. Hence, not hit by section 25.Ā The statement of the inspector(crimes)that the accused accepted before him that he got the counterfeit currency notes from a stranger but the accused denying to have soĀ stated, was not admissible in evidence
Case Laws :
In the case of Palvinder Kaur v State of Punjab 1952 AIR 354, the Supreme Court approved the Privy Council decision in Pakala Narayan Swami case over two scores. To begin with, confession is described as either admitting guilt in terms or admitting substantially all of the facts that constitute the offence. Second, a jumbled statement, even though it includes some confessional statements, would always result in acquittal, is not a confession. As a result, a statement containing self-exculpatory information that, if valid, would negate the issue or offence, cannot amount to confession.
In, State of Punjab v. Bhagwan Singh1992 AIR 1689 the Supreme Court in this case held that, In this case, the Supreme Court held that the validity of an extrajudicial confession increases only if it is clearly compatible and persuasive with the case’s conclusion; otherwise, the accused cannot be held responsible for his guilt solely on the grounds of his confession.
In Pyare Lal v. State of Rajasthan 1963 AIR 1094, the Supreme Court, In this case, the Court determined that a withdrawn confession has sufficient validity to provide all other legal basis for conviction only if the Court is satisfied that it was valid and made of someone’s own volition. However, the Court must testify that convictions cannot be based solely on confessions unless and unless they are corroborated.
Conclusion:
Ā Confession is not defined in the Act.Ā Mr Justice Stephenin his Digest of the LawĀ of Evidence defines confession as āconfession is an admission made at any time by a person charged with aĀ crime stating or suggesting the inference that he committed that crime. Confession is a statement made by an accused person which is sought to be proved against him inĀ criminal proceedings to establish the commission of an offence by him. Confession if deliberately involuntarily made may be accepted as conclusive of the matters confessed.
A dying man “rarely lies,” according to Indian law. Alternative phrase: “Truth sits upon the lips of a dying man.” The concept of a dying declaration is explored in Section 32(1) of the Indian Evidence Act, of 1872. Article 32 focuses on cases involving people who are either missing or dead. ”Leterm Mortem” is the term for a death declaration. ”Words said before death” is what the phrase ”Leterm Mortem” means.
Even if it was not made under oath and the maker cannot be cross-examined, a dying declaration may be used as evidence. It deviates from the general norm against hearsay evidence. The rule of necessity and traditional religious beliefs govern whether a dying declaration is admissible as pertinent evidence. The reason for this necessity is that if the victim is the only person who saw the crime, then including his testimony could undermine the goals of justice. A dying declaration must, however, be made by a person who is competent to do so at the time; otherwise, it is not accepted. A pronouncement of death is typical.
introduced by the prosecution, but may also be used by the accused. The task of recording a dying pronouncement is crucial. The recording of a dying declaration should be done with extreme caution. A dying pronouncement keeps its full worth if it is carefully written down by the right person while keeping in mind its key components.
Object
The main object behind the Dying Declaration, in a nutshell, is:- It is a presumption that ”A person who is about to die would not lie”. It is also said that ”Truth sits on the lips of a person who is about to die”. The victim is an exclusive eyewitness and hence such evidence should not be excluded.
Who may record a dying declaration?
It is best that it is recorded by the magistrate.
If there is no time to call the magistrate, keeping in view the deteriorating condition of the declaration, it can be recorded by anybody e.g. public servant like a doctor or any other person.
It cannot be said that a dying declaration recorded by a police officer is always invalid.
If any dying declaration is not recorded by the competent Magistrate, it is better the signatures of the witnesses are taken who are present at the time of recording it.
Important facts to be remembered before recording Dying Declaration: ļ· The declaring was in a fit condition of mind to give the statement when the recording was started and remained in a fit condition of mind until the recording of the dying declaration is completed. ļ· The fact of the fit condition of mind of declaring can be best certified by the doctor. ļ· Yet, in cases where it was not possible to take fitness from the doctor, the dying declaration has retained its full sanctity if there are other witnesses to testify that declaring was in a fit condition of the mind which did not prevent him from making the dying declaration. ļ· However, it should not be under the influence of anybody or prepared by prompting, tutoring or imagination. If any dying declaration becomes suspicious, it will need corroboration. If a declarant made more than one dying declarations and if these are not at variance with each other in essence they retain their full value. If these declarations are inconsistency or contradictory, such dying declarations lose their value
Form Of Dying Declaration
There is no specific format for a proclamation of death. However, important details like who stabbed the deceased and what must be mentioned in the dying declaration. One can make a deathbed proclamation in any of the following ways: Whether in writing, speaking, gesturing, or using signs, Narratives can be used as a dying declaration. It is suggested that it be written in the language that the patient speaks and understands.
Question Answer Form
Questions and answers are the finest format for a deathbed pronouncement. However, care should be taken to ensure that the exact questions asked and the patient’s responses are recorded whenever a dying declaration is documented in the form of questions and answers. It was decided that the deathbed declaration could not be disregarded for that reason alone when it was not recorded in question-and-answer format. A statement included in the story could sound more natural because it might present the victim’s side of the incident.
Signs & Gestures Form In situations where a person is unable to talk or write, he or she can nod in agreement or disagreement and even make a lawful declaration before passing away. The importance of sign language would depend on who recorded the signs, the gestures and nods used, the questions posed, whether they were straightforward or complex, and how clear and understandable the nods and motions were.
Oral Dying Declaration
The Hon’ble Apex Court stressed the need for such a declaration to be corroborated, particularly in a situation like this one where the injured party gave his mother an oral statement and she was an interested witness. Such a claim needs to be carefully and cautiously analyzed. For the purposes of Section 3, an oral statement from the person who was struck with a stick blow to the head and which was related by the witness who filed the F.I.R. was recognized as a reliable statement.
Exceptions To Dying Declaration
The exceptions of āDying declarationā stipulate, where the statements made by dying persons are not admissible:
If the cause of death of the deceased is not in question: If the deceased made statement before his death anything except the cause of his death, that declaration is not admissible in evidence.
If the declarer is not a competent witness: Declarer must be a competent witness. A dying declaration of a child is inadmissible. In Amar Singh v. State of Madhya Pradesh,1996 Cr LJ (MP) 1582, it is held that without proof of mental or physical fitness, the dying declaration is not reliable.
Inconsistent declaration: Inconsistent dying declaration has no evidential value.
Doubtful features: In Ramilaben v. State of Gujarat (AIR 2002 SC 2996): The injured died 7-8 hours after the incident, four dying declarations were recorded but none carried a medical certificate. There were other doubtful features too, so it is not acted upon.
Influenced declaration: It must be noted that a dying declaration should not be under the influence of anyone.
Untrue declaration: It is perfectly permissible to reject a part of a dying declaration if it is found to be untrue and if it can be separated.
Incomplete declaration: Incomplete declarations are not admissible.
If the statement relates to the death of another person: If a statement made by the deceased does not relate to his death, but to the death of another person, it is not relevant.
Contradictory statements: If a declarant made more than one dying declaration and all are contradictory, then all declarations lose their value.
Unsound person: The statement of unsound mind can not be relied upon.
If a dying declaration is not according to the prosecution: If a dying declaration is inconsistent with the case of prosecution it is not admissible.
Who May Record Dying Declaration? a) Keeping in mind the deteriorating condition of the declarant, it can be recorded by anybody e.g. public servants like a doctor or any other person. b) It cannot be said that a dying declaration recorded by a police officer is always invalid.
c) If any dying declaration is not recorded by the competent Magistrate, it is better that signature of the witnesses are taken who are present at the time of recording it. Condition Precedents For Admissibility Of Dying Declaration: a) The declarant who gave the dying declaration should die. b) The dying declaration must be complete. c) It must be voluntary and uninfluenced. d)The cause of death must be explained by the declarant or at least the circumstances which resulted in his death must be explained. e) The declarant who makes the dying declaration, must be conscious and coherent. f) The declarant must be of sound state in mind. g) The cause of death of the declarant must be in question
Evidentiary Value of Dying Declaration
The evidentiary value of a dying declaration depends upon the case-to-case and fact-to-fact. In K. R. Reddy v. Public Prosecutor [1976 (3) SCC 618] evidentiary value of dying declaration was observed as under:- a) The dying declaration is undoubtedly admissible under section 32 and not a statement on oath so that its truth could be tested by cross-examination. b) The court has to apply the scrutiny and the closest circumspection of the statement before acting upon it. c) Great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to connect a case as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. d) The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. e) Once the court is satisfied that the dying declaration is true and voluntary, it can be sufficient to record the conviction even without further corroboration.
CASE LAWS:
In the case of State of Karnataka v. Shivalingappa 2001 (4) RCR(Criminal) 237 the Supreme Court held that As a measure of safety original dying declaration should be sent to the court like FIR and its Photostat should be kept in the case file.
In the case, State of Gujarat v. RabriPanchaCri LJ. 1981; NOC: 171 (Guj), it was held that ” It retains its full value if it can justify that victim could identify the assailant, version narrated by a victim is intrinsically sound and accords with probabilities and any material evidence is not proved wrong by any other reliable evidence”.
CONCLUSION:
No doubt dying declaration is an important piece of evidence to guide the courts in the onerous task of finding the truth. Though the opportunity for cross-examination is not given, still carries much weight. Courts have never been allergic to allowing conviction solely on the basis of the testimony of a witness who cannot be available before the court to testify the substance of the statement that forms the basis of its judgment. It is suggested that whenever a dying declaration is to be recorded it should be recorded very carefully keeping in view the sanctity that the courts attach to this piece of evidence. It retains its full value if it can justify that victim could identify the assailant, the version narrated by a victim is intrinsically sound and accords with probabilities. It is perfectly permissible to reject a part of a dying declaration if it is found to be untrue and if it can be separated. A conviction can be based on it without corroboration if it is true and voluntary. The dying declaration becomes unreliable if it is not as per the prosecution version.
