Notes on Acts and Laws
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Contents
Notes
on Acts and Laws
BURDEN OF PROOF
6. Nature Of Evidence
Required For Proof
7.
Discharge Of The Burden
Of Proof
Nature of Evidence Required for Proof
Summary
of the Law
I.
THE RULE OF BEST EVIDENCE.
REQUIREMENTS
OF
THE RULE OF BEST EVIDENCE.
(i) The rule of Best Evidence requires. (a) That if the
Evidence is oral then it must be direct. (b)
Exceptions.
(ii) The rule of Best Evidence requires that if the
Evidence is documentary then.
(i) It
must be original.
(a)Exceptions.
(ii)
it be exclusive.
(a)
Exceptions.
§
The Rule of Best Evidence:
1.
It is an incontrovertible proposition of law that the party who is to prove any fact must
do it by the best
evidence of which the nature of the case is capable.
2.
This rule, really speaking, underlies the whole law of Evidence.
(i)
It is because of this rule that the law requires as a condition precedent to the admissibility
of Evidence that there should be an open and visible connection between the principal and
evidentiary facts.
(ii)
It is because of this rule that the law requires that Evidence in order to be receivable
should come through proper instruments.
(iii) It is because of this rule that the law requires
that the evidence to be admissible should be original and not derivative.
3.
At one time the rule of Best Evidence was very strictly applied. But its application is
now greatly relaxed and what were once objections to admissibility now went merely to
sufficiency on weight.
4.
But the rule still survives and is illustrated by the requirements of the law of evidence
in respect of oral Evidence and documentary evidence.
§ Oral Evidence:
1.
The rule of best Evidence requires that if the evidence is oral then it must be direct.
2. This rule is embodied in section 60 of
the Evidence Act.
3. What is meant by Direct Evidence ?
4.
The answer that is commonly given is that oral evidence must not be hearsay evidence. This
leads to the consideration of hearsay evidence.
The
rule excluding Hearsay is subject to three main classes of Exceptions:
(i) Admissions and Confessions :
Statements made in the presence of the party.
(ii) Statements made by persons since deceased. (iii)
Statements made in public Documents.
§ What is hearsay evidence:
1.
Hearsay evidence has been defined in many different ways :
(i)
All Evidence which does not derive its value solely from the credit given to the witness
himself, but which rests also in part on the veracity and competence of some other person.
(ii)
The statement as to the existence or non-existence of a fact which is being enquired into,
made otherwise than by a witness whilst under examination in Court can be used as
evidence.
2.
Hearsay evidence is evidence reported by witnesses of statements made by non-witnesses.
§
Why hearsay evidence is excluded ?
1.
When A sworn
in Court, details something which he did not see with his own eyes immediately but which
he heard from B immediately he is not giving expression to the evidence
of his own bodily senses, but is the medium merely of communicating that which save third
unsworn
person has said he saw. He is bringing evidence to birth, obstetricante manu, with the hand of a midwife;
and is a mere channel or conduct pipe for communicating the information of a party not
before the Court. A may most correctly
and truthfully
report
what has been related to him, but it is never the less apparent that the real truth of the
original statement cannot under such circumstances be tested. The originator of the report
is not subjected to an oath or to Cross Examination Non Constat but he may have spoken idly or
jocularly
;
and he would be unwilling to repeat on oath what he had not hesitated to narrate in
ordinary conversation. Non
constat
that he might not have wilfully fabricated a story or been the dupe of some one still
farther hid behind the scenes or that though perfectly veracious as to intention, he might
have been the victim of his faulty impressions or unretentative
memory ;
and so have utterly broken down, if only exposed to the test of Cross Examination.
Therefore the law determines that such evidence shall not be receivable ;
that if
it is important to the party calling A, to establish the facts which A has heard from B,
B
himself shall be produced, make his own statement in Court, be subjected to the two tests
of oath and Cross Examination and the scarcely less terrible detector of inaccurate or
fallacious evidence, the observation to which a Judge, experienced in forensic practice,
and skilled in the knowledge of human nature, subjects the demeanour, the department, the
manner, of every witness who comes before him.
§ Does the rule of Exclusion apply to all Hearsay
Evidence ?
1.
Hearsay is the statement of a person who is not a witness in the Court and which is sought
to be tendered as evidence through another person who comes as a witness.
2.
The question is, does the rule of exclusion apply to all statements of a person who is not
a witness in Court.
3.
To understand,
this question it is necessary to realise that a statement when tendered in evidence wears
two different aspects. A statement is a fact and it is also the statement of a fact.
When
A gives Evidence that B said this or that
(i) taken
as a fact the question is did say so or did he Not
(ii) taken
as a statement of a fact the question is is what said false
or true.
4.
The Evidence of a statement by a person who is not a witness may be given for two purposes
:
(i) To prove that such a statement was made. (ii) To
prove that a statement made is a true statement.
In
its former aspect it is merely a fact in issue. In its latter aspect it is an assertion to
prove the truth of the matter stated.
5.
Whether a statement by a non-witness sought to be tendered in evidence and the admissibility
is in question is tendered merely as a fact in issue or relevant fact and is tendered as
an assertion to prove the truth of the matter, depends upon the purpose for which it is
tendered. The test is the purpose.
6.
The Rule of Exclusion of hearsay is stated in a narrow sense as well as in a wider sense.
In its narrower sense, it is confined to unsworn statements used to prove the truth of the
facts stated. In its wider sense, it is used to inched
all statements by unsworn witnesses for whatever purposes tendered i. e. including
statements used merely as facts.
The
Rule adopted in the Evidence Act.
1. The Indian Evidence Act does not recognise the
rule that " no statement as to the existence or non-existence
of a fact which is being enquired into, made otherwise than by a witness whilst under
examination in Court can be used as evidence "— Markby.
2.
Under the Indian Evidence Act statements by nonwitnesses are admissible where the making
of the statements not its accuracy is the material point.
3.
Therefore
(i) Statements which are parts of the resgestee,
whether as actually constituting a fact in issue or accompanying it (ss
5,8),
(ii)
Statements amounting to acts of ownership, as leases, licenses and grants (Sec. 13),
(iii) Statements which corroborate or contradict the
testimony of witness (ss. 155,157,158)
are
admissible even though they are statements by non-witness.
4.
The rule of the exclusion of hearsay applies only to statements made by non-witnesses
which are used to prove the truth of the facts stated.
4.
What are the exceptions to the rule ?
1.
Under the rule of evidence contained in the Evidence Act a statement made by a non-witness
to prove the truth of the facts stated therein is inadmissible.
2.
There are exceptions to this rule.
§
Exceptions contained in Section 32.
1.
When
a person is dead or cannot be found or has become incapable of giving evidence or whose
attendance cannot be procured without delay or expense, statements written or verbal made
by such persons may be proved if the statements fall under any one of the 8 categories
mentioned in Section 32.
(i)
When it relates to the cause of his death (a)
(ii)
When it is made in the course of business. Illus
(b)
(j)
(iii)
When it is against the pecuniary or proprietary
interest of the maker or which if true would have exposed him to criminal prosecution or
suit for damages. Illus (e)
(f)
(iv) When the statement gives his opinion as to public
right or custom or matters of general interest provided such opinion was given before
controversy had arisen. (Illus) (i)
(v) When it relates to the existence of relationship by
blood, marriage or adoption and the person had special knowledge and was made before
controversy.
(vi) When it relates to the existence of relationship
between persons deceased and is made in any will or deed relating to family affairs, in a
family pedigree, upon any tombstone, family portrait etc., and is made before controversy.
(vii) When it is contained in any deed, will or other
document which relates to any transactions as is mentioned in Sec. 13, clause (a).
(viii) When it is made by a number of persons expressing
feelings or impressions. Illus. V.
§ Exceptions contained in Section 33.
1.
When a person is dead, or cannot be found, or is incapable of giving evidence or is kept
out of the way
by the adverse party or if his presence cannot be obtained without unreasonable delay on
expense then
the
Evidence given by such a person as a witness in a former judicial proceeding or before any
person authorised by law to take it,
can
be tendered in a subsequent judicial proceedings or in a later stage of the same judicial
proceedings to prove the truth of the facts which it states.
PROVIDED
(i) That the proceeding was between the same parties or
their representative in interest
(ii) That the adverse party in the first proceeding had
the right and opportunity to cross examine
(iii) That the questions in issue were
substantially
the same in the first as in the second proceeding, (Further portion not forthcoming—ed.)
35
§ Entries in any book, register or record
1. Conditions of admissibility.
(i) Two classes of entries are contemplated by the
section,
(a) By public servants and (b) by persons other than public servants. If it is by
a public servant then it must be in the discharge of his official duty. If it is by
persons who are not public servants then the duty to make the entry must have been
specially enjoined by the law. The former is as a matter of course. The latter is as a
matter of special direction.
(ii)
The book, register or record must be either public or an official one.
Official
does not mean maintained for the use of the office. It means maintained by the State as
distinguished from anything maintained by a private individual.
Public means for the use of the public. Public does
not mean open to every one. It means open to every one having a concern to it. 18 Cal. 584.
(iii)
The Book, Register or Record may be in the book, register or record kept in any country
not necessarily in India, provided it satisfied the conditions. An entry in a book,
register or record of any foreign country can be proved.
Points
to be noted.
(1)
The entry is evidence ;
though the person who made it is alive and is not called as a witness—For the proof
of public and official documents see Sections 76-78.
(2) The Sections does not make the book, register or
record evidence to show that a particular entry has not been made— 10 Cal. 1024; 25 All. 90.
(3)
The Section is not confined to the class of cases where the public officer has to enter in
a register or other book some actual fact which is known to him— 20 Cal. 940.
(4)
Although the entry must have been made by a public servant in the discharge of his
official duty or in the performance of a duty specially enjoined by law, but it must not
be such an entry which a public servant is not expected or permitted to make, or which
from ignorance of his duties or caprice or otherwise, he may choose to make at the
dictation of a person who had a personal knowledge of the truth of the facts stated in the
entry. 25 All. 90. F.B.101.
2. It is not necessary that the entries must have
been made up from day or (as in banks) from hour to hour as the transactions take place.
Time when the entries are made is not essential. All that is necessary is that they must
have been made regularly in the course of business. Delay in entry may affect its value
but cannot affect its admissibility—-27 Cal. 118 (P.C.); 13 C.
L.
J.
139.
3.
Although the actual entries in books of account regularly kept in the course of business
are relevant, the book itself is not
relevant
to disprove an alleged transaction by the absence of any entry concerning
it. 10 Cal. 1024.
note
: It may be admissible under Sec. 9 and 11—19 C. N. 1024.
For inference to be drawn from absence of entry. 30 Cal. 231 (247) P .C.
4.
The entry must be in some book, register or record. Entry does not include correspondence
7 M.L.I.
117.
1.
Entries in Birth and Death Registers.
2.
Entries in Birth and Revenue Registers.
3..
Entries in Birth and Marriage Registers.
36
§ Statements of fact in issue or relevant facts made in Maps, Plans and Charts.
I Conditions of admissibility.
The
section refers to two classes of Maps and Plans.
(a)
Those generally offered for public sale and
(b) Maps or Plans made under the authority of Government.
Reasons
for the admissibility of (a)
The
publication being accessible to the whole community and open to the criticism of all the
probabilities are in favour of any inaccuracies being challenged or exposed.
Reasons
for the admissibility of (b)
Being
made and published under the authority of Government, they must be taken to have been made
by and to be the result of the study or inquiries of competent persons.
37
§ Statement made in a recital in any Act or in a notification of the Government appearing
in the Gazette.
Reasons.
1.
The Gazettes and Acts are admissible because they are made by the authorised agents of the
public
in the course of an official duty and published under the authority of the State and facts
stated in them are of a public nature and notoriety.
2. As the facts stated in them are of a public
nature, it would often be difficult to prove them by means of sworn
witnesses.
1.
Relevant only if the Court has to form an opinion as the existence of any fact of a public
nature.
2.
Public nature,
(not explained—ed.)
3.
The section
draws
no distinction between a public and private Act of Parliament. It merely requires that the
fact recited in either case should be a public nature.
4.
The recitals are not conclusive so far as the Evidence Act is concerned. However they may
be expressly declared to be conclusive.
5. A recital is to be proved for showing the
existence of a fact. It is no evidence that the particular person knows its existence.
Knowledge of a fact although it be of a public nature is not to be conclusively inferred
from a notification in the Gazette; it is a question of fact for the determination of the
Court. It must be shown that the party affected by notice has probably read it.
38
S.
1.
Statement of the law of any country in
(a)
book purporting to be printed or published under the authority of the Government of such
country and to contain any such law.
2.
Report of a ruling of the Court of such country contained in a book supporting to be a
report of such rulings.
This
applies where the Court has to form an opinion as to a law of any country.
Particular
instances of facts which are inconsistent with facts in issue or relevant facts or which
make them highly improbable.
They
are (1) Admissions (2) Confessions and (3) Judgements.
§
Admissions
Sec. 27.
1.
Admission may be proved against the person who makes them or against his representative in
interest.
2.
Question is what is an admission? Before that certain points regarding the relevancy of
admissions must be noted.
(1)
Admission can be proved against a person. Admission in favour of a person cannot be proved
by him. A plaintiff can prove an admission made by the Defendant if it is necessary for
this case. A defendant can prove an admission made by the plaintiff if it is necessary for
his case. But a plaintiff cannot prove an admission made by him however helpful it may be
for his own case. Similarly a Defendant cannot give evidence of an admission made by him
however hopeful it may be for his own case.
The
reason is that a party cannot be allowed to create evidence in his own favour.
There
are three exceptions to this rule under which a party is permitted to give evidence of an
admission in his own favour.
(a) If the Admission is relevant under Sec. 32. (b) If the
Admission relates to a state of mind or body made about the time and is accompanied by
conduct. (c) If the admission is relevant otherwise than as an
admission.
Illus:
(d)and(e)
Sec.
23.
(2)
Barring these three cases ,
an admission, if it is to be proved can be proved only against a party. But there is a
case in which proof of an admission cannot be given. This is a case where admission was
made on
the express condition
that proof of the admission shall not be given.
Sec.
31.
(3) Admissions are not conclusive proof of the
matter admitted. An admission may become an estoppel if the elements necessary for
estoppel exist in which case a party against whom it is sought to be proved cannot give evidence to disprove it
or explain it away. But if it is not an estoppel, evidence can be given by the party
against whom it is proved to disprove it or to explain it.
3.
Admissions can only be proved against the party who made them but they can also be proved
against his representative- interest.
Who
is a representative-in-interest ?
(i) There
is no definition of the term given in the Act.
(ii) It
is held to be wider than the term Legal representative which according to the penal code
means a person who represents in law the estate of a deceased person.
(iii) It
not only includes a ' legal representative ' but also includes the privies of a person.
(iv) The
privies of a person are :—
(i)
Privies
in blood,
such as ancestors and heirs.
(ii) Privies
in law,
such as executor of a testator or administrator to an intestate.
(iii)
Privies in estate or interest, such as Vendor
and Purchaser, grantor and grantee, donor and donee, lessor or lessee.
So
that an admission :
(1) made by the father can be proved against the son
;
(1) made
by the deceased against the executor or administrator ;
(2) made
by the Vendor against the Purchaser.
17-20
§ What is an Admission.
1.
Admissions
are (1) Formal or (2) Informal. (1) Formal admissions are :
(i)
Admissions
contained in the pleadings.
(ii) Admissions
in answers to interrogatories.
(iii) Admissions
on notice to admit facts.
(iv) Admissions
on notice to admit documents.
(vi) Admissions
by Counsels.
(2) Informal Admissions are :
(ii) By
Conduct—
(1)
Act or Omission.
(2)
Silence.
(3)
Acquiescence.
4.
Admissions the proof which is allowed by section 21 do not Formal Admissions. Section 21
deals with informal admissions only. But it does not deal with all the classes of informal
admissions. It does not deal with informal admissions by conduct. It only deals with
informal admissions contained in statements. It deals with assertions and not acts.
5.
The definition of an admission as used in Section 21 is spread over sections 17-20.
An
admission is a statement, oral or documentary, which suggests an Inference as to any fact
in issue or relevant fact made by a person specified in Sections 18, 19, 20.
Two
things are necessary.
The
statement may not be directly touching the fact in issue or a relevant fact. It is enough
if it suggests an inference of acknowledging the fact in issue or relevant fact.
Illus
—
A
sues X
for damage done by K's
cattle to A's
crop and for the purpose of showing an admission on the part of
X that his cattle had caused the damage. X offers the
testimony of B to the effect that X told that X had offered a
certain sum to cover the damage.
This is a statement which can sustain the inference
that X's admission
that his cattle did do the damage.
IIIUS—
A sued X for the loss of his sheep alleging that X'
s
dog had killed them. As proof he adduced evidence that X had killed his dog at the time remarking that it
will not kill any more sheep.
Is this an Admission ?
II.
It must have been made by persons specified in Sections 18-20.
1.
Deference to sections 18-20 shows that the reasons specified fall into categories.
(1)
Persons who are parties to the proceedings and
(2)
Persons who are not parties to the proceedings-strangers.
Persons who are parties to the proceedings include :
(1)
Parties.
(2)
Agents of the parties.
(3)
Persons jointly interested in the subject-matter of proceedings .
e.
g.
partners, joint contractors.
(4)
Persons from whom parties have derived their interest.
I.
Strangers.
Where
can a statement of a person who is a stranger and is not in any way related to a party to
the proceedings mentioned in Section 18, be treated as an admission by a party.
Two
cases. (1) Statement is that of a referee—Section 20.
II.
When the liability or position of that stranger is subject-matter of the proceedings.
and
(2) When the statement of the stranger, be such
as to amount to admission by him of his liability i. e. it must come within Section 17-18.
Illus. To the section —of liability. Illus. 5 Mad. 239—of
position.
A and
B are jointly liable for a sum of money to C who
brings an action against A alone.
A objects that he cannot singly or severally be
made liable and that B
should be joined as a co-defendant being jointly liable.
An admission by B to D as to his joint liability is relevant between A and C and may be proved.
D may prove it although B is not called.
§
Confession
1.
Evidence may be given of a confession provided it be not expressly excluded whether made
to a private person or to a Magistrate.
2.
That a confession was made is a fact which must be proved like any other fact.
9
Mad. 224 (240).
5 Lah. 140.
4
All. 46 (94).
3. Two Questions arise :
I.
What is a Confession.
II.
What are the cases in which the Evidence of a Confession is excluded.
1.
What is a Confession :
1.
The Act contains no definition of the term Confession.
2.
The definition
of the term is therefore a matter of judicial interpretation.
3. A confession is a statement. An Admission is also
a statement although the one is a statement by an accused while admission may be statement
by a party. Two questions arise :
( 1 )
What is the precise difference between Confession and Admission.
(2)
When is a statement by the accused a Confession and when it is an admission.
1.
Statements made by an Accused person belongs to a class which the Evidence Act calls "
admissions "
(sections 17,18) and. .
..
..
they are evidence against the maker but not in his favour.
2. Confessions are a sub-species of "
statements "
and a species of admissions.
3.
The following table illustrates the relationship.
Statements
|
|
|
Those which amount
Those which do not amount admissions,
to admissions.
|
|
|
Admissions
which amount to
Admissions which do not confessions.
amount
to Confessions.
4.
The common feature of confessions and admissions is that they are both of them are statements made by the party to the proceedings.
5.
Two questions arise.
1.
A statement is an admission even though it is not made by the party himself. If it is made
by a person defined in Sections 18-20 it will be an admission. Can a statement rank as a
confession if it is made not by the Accused himself but by persons specified in Sections
18-20.
1. To be a Confession, it must be by the Accused
himself. If it is not by the accused it is not a Confession :
1.
An exculpatory statement by the Accused is not a Confession.
2.
An inculpatory statement by the Accused which involves him but does not incriminate him is
not Confession.
3.
An inculpatory statement which not only involves but also incriminates is a Confession.
Points
to be noted.
1.
The incrimination may be direct or may be by inference. A statement which can by itself be
the foundation of conviction is a confession.
2.
The statement may be intended by the accused to be self-exculpatory but it may
nevertheless be an admission of an incriminating circumstance in which case it will amount
to a Confession. 6 Bom. 34.
§
Two sorts of Confessions.
1.
Confessions are either Judicial or Extra Judicial.
(i) Judicial Confessions are those which are made
before a Magistrate or in Court in the due course of legal Proceedings. (ii) Extra
Judicial Confessions are those which are made by the party elsewhere than before a
Magistrate or in Court.
§
What are the cases in which Evidence of Confession excluded
1. The Evidence Act has considered three possible
cases : (i)
Confession is made to a Police Officer. (ii) Confession is made while in the custody of
the Police. (iii) Confession which is made to a person who is not a
Police Officer and which is not made while in the custody of the Police.
With
regard to (i)
It
is excluded by Section
25. With regard to (ii)
It
is excluded by Section 25, 26. Exception.
Effect
of Sec. 27.
6All. 509(F.B.)
Question.
Is Section 27 an exception only to Section 26 and not to section 25 ?
or
Is it an exception to both ?
57Cal. 1062.
With
regard to (iii)
The
matter is governed
by Section 24. Explanation.
2.
Appears.
Points
to note:
1.
Sec. 28 Confession after...... ...... is removed.
2.
Sec. 29
Queries.
1.
Does Sec. 24 apply to statements made by the Accused under Sec. 287 Cr.
P. C.
before the Committing Magistrate.
Q. Not settled.
17 Bom. L.R. 1059.
II. Does Sec. 24 apply to statement of an Approver
under pardon under Sec. 339 (2) Cr. P. C. (22 Bom. L. R. 1247).
§
Use of Confessions.
1.
Statement made by an Accused person binds him only so because of two reasons.
(i) The general rule of law is that an Admission made
by one person could prejudicially
affect another person.
(ii) The statement made by an accused person is not on
oath.
(iii) The statement is not subject to cross-Examination.
2.
But if the statement is a Confession which affects both himself and another person, then
Section 30 says the Court may take into consideration the confession made by the Accused
against other persons mentioned in the Confession.
3.
Section 30 is therefore an exception to the general rule. The reason for this exception is
the fact of self- implication which is said to take the place as it were of the sanction
of an oath or is rather supposed to serve as same guarantee for the truth of the
accusation against the other.
4.
With regard to the use of the confession of one Accused against another accused, the
important words are "
Court may take into consideration
".
This means,
(1)
That the use is not obligatory. It is permissive and discretionary. Court is permitted to
use it. Court is not bound to use it.
(2)
Court may Consider it. The word consider is significant.
(1)A statement made by a witness is "
evidence ", according to the definition of that term. A
confession by an accused person affecting himself and his co-accused is not "
evidence " in that special sense. It is in the sense that it
is a matter before the Court which it may consider. The question is while allowing it to
be so considered, does it do away with the necessity of other evidence ? There is
no direct answer given in the Evidence Act. But all the Courts have held that it does not
do away with the necessity of other evidence. The reasons are:
(1)
Confession is never a complete guarantee of its truth against the other persons whom it
involves. A confession may be true so far as it implicates the maker but may be false and
concocted through malice and revenge so far as it affects others.
(2) Confession cannot be placed above the testimony
of an accomplice because the latter is subject to Cross Examination while the former is
not and if testimony of an accomplice requires corroboration a confession must.
Conclusion.
If there is (a) absolutely no other evidence in the case, or (b)
the other evidence is inadmissible such a Confession alone will not sustain a Conviction.
There must be corroboration.
When
persons are accused of an offence of the same definition, arising out of a single
transaction, the Confession of one may be used against the other, though it inculcates
himself through acts separable from those ascribed, to his accomplice, and capable,
therefore of constituting a separate offence from that of the accomplice.
8
Bom. 223.:7 Mad. 579 Abatement—Same
offence
1. Importance of the words made and proved. Does the section include
statement made by one accused at the trial which incriminates himself and implicates a
co-accused ?
The
answer is that it does not.
The Section is not to be read as though the words "at the trial " were inserted after "made " and
the word "
recorded " substituted
for " proved ". (1890) 14 Mo. Jur. N. S. 516.
The
Section does not refer to the statements made at the trial. It refers to statements made before and proved at the trial. The use of
the term proving a Confession is inapplicable to the procedure where the Judge asks
questions and the accused gives explanation. 45 All.
323.
2.
Importance of "Jointly tried ".
In
this connection two important questions arise—When one Accused confesses and in his
confession implicates a co-accused and pleads guilty.
(i) In such a case can he be treated as being jointly
tried with the rest, as to let in his confession under this section against co-accused ?
(2)
In such a case can
an Accused who pleads quilty
be called as a witness against those who do not plead guilty ?
Q. 1. His Evidence cannot be taken into consideration
because he ceases to be jointly tried. 5 Bom. 63; 7
Mad. 102; 19 Bom. 195.
Although
it is open to the court to continue the trial without convicting the Accused who pleaded
guilty, yet it is unfair to defer convicting them merely in order that their confessions
may be considered against the other accused. 23 All.
53.
Q. II. This depends upon the definition of the word
accused :
When does an accused person cease to be an accused person ?
Until
an Accused person who has pleaded guilty is convicted or acquitted, he is still an accused
person and is therefore not a competent witness against the co-accused. 13 C. W. N. 552.
Until an Accused person who has pleaded guilty is convicted and sentenced, he is still an Accused person and is
therefore not a competent witness against the coaccused. 3 Bom. L. R.
Summary.
1.
When a person pleads guilty—he ceases to be jointly tried but he does not cease to be
accused person. So that on plea of guilty his confession cannot be taken into
consideration against other accused because they are not co-accused jointly tried :
nor can he be called as a witness because he continues to be an accused until sentenced.
2.
When a person pleads guilty and he is jointly tried and ceases to be an accused person,
his Confession cannot be used but he becomes a competent witness.
Relevancy
of Judgements. Sec. 40
Where
the question is whether a Court ought to take cognisance of a suit or to hold such trial.
The
existence of a judgement order or decree which
prevents any Court from taking cognisance of a suit or holding a trial is relevant
fact.
Comment.
1. The law by which a prior judgement order or
decree prevents a civil court from taking cognisance of a suit is contained in the Civil
Procedure Code and the law by which a prior judgement prevents a criminal Court from
holding a trial, is contained in the Cr. P. C.
2. The relevant Sections of the C. P. C.are
11-14. Provisions summarised in Field p. 260.
3.
The relevant Section of Cr. P. C. is section 434.
4.
Under Section 40 a Judgement is relevant if its effect is to conclude the court.
5.
Such a judgement must be just between the same
parties and on the same issues.
6.
A Judgement inter panes does not bind a
stranger. The principle underlying the rule is that no man ought to be bound by
proceedings to which he was a stranger and over which he had no control.
Exception
to the Rule
(I) Sec. 41. enacts an
exception to the rule, under it. A final Judgement of a competent court in the exercise of
(i) Probate
|
(ii) Matrimonial | Jurisdiction
(iv) Insolvency.
which
confers or takes away a legal character or which declares any person to be entitled to any
specific thing is admissible.
Comment:
1. This means that a judgement infer parties
is admissible in a proceedings between persons who were not parties to that proceedings.
2.
This section deals with what are called judgements in
rem without
using that expression. All judgements are inter
panes. But some inter
partes judgements are judgements inper-sonam and some are judgements in rem. Both are inter
partes. Instead of defining judgements in
rem—the section enumerates them.
3.
The result is that every judgement which gives or takes away a character is not
admissible. It is only judgements given in the exercise of particular kind of jurisdiction
which is admissible.
Illus.
Adoption
is not admissible as between strangers.
It is
a
Judgement
which
confers
a statics. But
it
is
not admissible because it is not under any of the jurisdiction mentioned.
Judgement in personam is relevant as between strangers if the judgement
relates to a subjects of a public nature.
Subjects
of a public nature.
(1)
Customs.
(2)
Prescriptions.
(3)
Tolls.
(4)
Boundaries.
(5)
Rights of Ferry.
(6)
Sea Walls etc.
(Ill) Exception
Sec. 43. Under this section Judgements in personam
are admissible as between strangers under two circumstances
(i) Where the existence of such judgement is a fact in
issue. (ii)
Where the Judgement is relevant under some other provision of the Evidence Act.
Comment:
1.
The
first circumstance is easy to conceive.
Illus.
(1)
A sued
B for slander in saying that he had been convicted of
forgery. B justified it upon the ground that it was true.
The
conviction of A
forgery would be a fact in issue and a judgement supporting his conviction would be
admissible also. B was not a party to that
judgement.
(2)
A Judgement against a surety obtained by the creditor will be admissible in a suit by the
surety against the principal debtor although the principal debtor was not a party to it.
(3)
Upon a trial for intentionally giving false Evidence in a Judicial proceedings the record
will be evidence that there was a Judicial proceedings.
2. It is the second circumstance which has created
difficulty. What are the sections under which a judgement is likely to be relevant ?
Under
sec. 7—Show cause, occasion. Under sec. 8—Motive conduct. Under sec.
9—Facts necessary to explain relevant facts. Under sec. 11—Facts inconsistent.
Under sec. 13—Transaction.
3.
Two Questions.
I.
Is a Judgement a fact.
II. Is a Judgement a transaction. 6. Cal. 171 F. B.
4.
Comment on 6 Cal. 171. that it is a fact. p. 181.
Fact:
(1) Anything state of things, or relation of things capable of being perceived by the
senses.
(2)
Any mental condition of which any person is conscious.
II
Documentary Evidence.
1.
The subject to be dealt with is the proof of the statements made in a document i.
e.
proof of the contents of a document. Oral Evidence deals with the proof of the statements
made verbally by a party.
2. What are the requirements of the Rule of Best
Evidence with regard to the proof of the contents of a Document ? There
are
two requirements'—
(i)
In certain cases the Evidence must be documentary and not oral.
(ii) In those cases where the Evidence must be
documentary that evidence must be primary.
§
Cases where Evidence must be documentary
1.
Many matters are reduced to writing. But because they are reduced to writing, the Law does
not require that every such case they shall be proved only by the production of the document. Some may be
proved by oral Evidence and others must be proved by documentary Evidence.
2. For this purpose it is necessary to note that the
Indian
Evidence Act makes two distinctions—
(1)
between documents which are dispositive in
character and documents which are non-dispositive in character and
(2)
between transactions which are required by law to be in writing and those which are not.
3.
Dispositive and non-dispositive.
Dispositive means transactions in which parties dispose of their rights, such
as a Contract, grant etc., Non-dispositive means transactions in which no disposition of
rights is involved.
4. The rule embodied in the Evidence Act is twofold :
(i) When a document is a dispositive document and when the matter is
such that the law requires it to be reduced to writing no evidence shall be given in proof
of the matter except the document. In other words oral Evidence in such cases cannot be
substituted for documentary Evidence. But if the document is of a non-dispositive
character or if it is one which is not required by law to be reduced to writing then
although the transaction may have been reduced to writing yet oral
evidence may be given in proof of the transaction.
(ii) If the transaction is a dispositive transaction or
is one which is required by law to be in writing then not only oral Evidence cannot be
substituted for the documentary Evidence but oral evidence cannot be admitted to
contradict, modify or vary the terms of the document.
5.
This rule is contained in Sections 91-92.
§
Exceptions to the Rule contained in Secs. 91-92.
1.
There are exceptions to this rule. They fall into classes. They must be kept separate. One
class deals with cases where the question is whether oral evidence may be substituted for
documentary Evidence. The second deals with cases where the question is whether oral
evidence may be admitted not to substitute but to modify documentary evidence where the
rule requires that the Evidence shall be documentary.
§
Exceptions which permit substitution of oral Evidence for documentary Evidence.
1. They are contained in Section 91 and cover the
following cases:
(i) Appointment of a Public Officer. (ii)
Will may be proved by the probate.
§
Exceptions which permit oral Evidence to be given to modify the terms of the document.
1.
They are contained in Sec. 92 and cover the following cases.
2.
The first
thing to note is that such evidence can always be given by persons who were not parties to
the document or who are not representatives in interest of the parties to the document.
3. The cases in which parties to the document or
their representatives in interest can give oral Evidence are as follows :— (i) Fact which would invalidate a document e. g.
fraud, want
of
capacity.
(ii) Fact on which document is silent and which is not
inconsistent with its terms. (iii) Condition precedent. (iv) Subsequent oral agreement. (v) Usage
or custom by which incidents are attached to
contracts. (Bakers dozen). Provided it is not
inconsistent. (vi) Fact showing how the language is related to
existing
facts.
§
Cases where oral Evidence may be admitted to Explain documentary Evidence.
There
are two propositions of law which arise out of the first rule of Best Evidence relating to
Documentary Evidence.
1:
Where the transaction embodied in a document is of a nondispositive character or is one
not required by law to be in writing the fact of the transaction may be proved by oral
Evidence.
2.
Where it is dispositive or required by Law to be in writing then oral evidence not only
given to prove the transaction but it cannot be given to contradict, modify or amend the
terms of the transaction as embodied in the document.
3. One question however remains. Can oral Evidence be given to explain documentary
Evidence ? This is a distinct question and must be separated
from the question whether evidence can be given to modify contract etc. the terms of the
documentary
evidence.
4.
This question is dealt with in Sections 93-100.
5. In dealing with documentary Evidence disputes may
arise on three counts:
(i) Disputes regarding applicability or
non-applicability of the language of the document to existing facts.
(ii) Disputes regarding the meaning of the documents
where the language used is ambiguous or defective.
(iii) Disputes regarding the meaning of the words used in
the document.
1.
Under I there are three possible cases of disputes.
(1)
Where language applies accurately to facts and the contention is that it was not meant to
apply— Evidence may not be given in support of the contention to show that it was not
meant to apply to the existing facts to which they do apply—Sec. 94.
(2) Where language applies to one of the existing
facts but not to all of them— and the contention is that it applies to one
specified fact— Evidence may be given in support of the contention to show to which
particular fact it was intended to apply.—Sec. 95.
(3)
Where language applies partly to one set of facts and partly to another set of facts and
whole does not apply correctly to either and the contention is that it applies to one set
and not to the other—Evidence may be given in support of the contention to show to
which of the two it was meant to apply—Sec. 97.
1.
Under the second Head of Disputes there are two possible cases:
(i)
Where language is ambiguous or defective and the contention is that the parties meant a
particular thing— Evidence may not be given in support of the contention to show its
meaning or to supply its defects— Sec. 93.
(ii)
Where the language is plain in itself but is unmeaning in reference to existing facts and
the contention is that it was meant to indicate a particular thing—Evidence may be
given in support of the contention to show what was meant —Sec. 95.
.
Under the third head of disputes there arises the following
case—
(i)
... (Space
left blank in M.S.—ed.)
Difference
between latent ambiguity and patent Ambiguity. II How to prove the contents of a Document ?
1. What are the requirements of the Rule of Best
Evidence with regard to the proof of the Contents of a Document ?
2.
There are two requirements in this respect as laid down in the Evidence Act.
(i)
The contents of a document
must be proved by Primary Evidence.
(iii) The
document must be proved to be genuine.
§
What is meant by Primary Evidence ?
Sec.
62.
( 1 )
Primary Evidence means the document itself produced for the inspection of the Court.
Explanation (Space left blank in M. S.—ed.)
§
How to prove that the document is genuine ?
1.
For the purpose of proving their genuineness the Evidence divides documents into two
classes (1) Public Documents and (2) Private Documents.
2.
Public Document is defined in Sec. 74.
3.
Section 75 declares that any document which is not a public document is a private
document.
4.
The rules for proving the genuineness of a document differs according as the document is a
public document or a private document.
5.
The mode of proving the genuineness of a public document is stated in Sections 76-78.
6.
The mode of proving the genuineness of a private document is stated in Sections 67-75.
7.
Private documents must generally be proved by the production of the original coupled with
the evidence of the handwriting, signature or
execution as the case may be. Exception—
will may be proved by probate.
8.
The genuineness of public documents may be proved either by the production of certified
copies under Section 77 or if they be documents of the kind mentioned in Section 78 the
various modes prescribed in that section.
9.
With regard to the burden of the genuineness of a document whether it is public or
private, the Evidence Act enacts certain presumptions which are contained in Sections
79-90 although they are not conclusive presumptions.
10. These presumptions fall into classes :
(1)
Those in which the Court shall presume. 79-85 and 89.
(2)
Those in which the Court may presume. 86-88 and 90.
§
When is Primary Evidence dispensed with ?
(Space
left blank in M.
S.—ed.)
§ How are the Contents of a document proved where
Primary Evidence is dispensed with ?
1.
By Secondary Evidence.
(Space
left blank in M.S.—ed.)
§ What is Secondary Evidence ?
(Space
left blank in M. S.—ed.)
BURDEN OF PROOF
1.
The law requires the person on whom the burden of evidence is placed to discharge the
burden.
2. In discharging this Burden of Proof the following
considerations must be borne
in mind :—
(i) There are matters of which Proof is not required. (ii) There
are matters of which Proof is not allowed.
3. Under (i) his burden is lightened while under
(ii) his burden is increased.
(i)
Matters of which Proof is not required by Law
1. Matters of which Proof is not required by Law fall under three heads:
(a) Matters which are judicially noticed. (b) Matters
which are admitted by parties. (c) Matters the existence of which is presumed by Law.
§ Matters which are judicially noticed
1.
Sections 56 and 57 deal with facts which are judicially noticed. Section 57 enumerates 13
matters of which judicial notice must be taken.
Section
56 says that no fact of which the Court will take judicial notice need be proved by
evidence. Parties are relieved from the burden of adducing evidence to prove a fact which
falls under any one of the matters falling under Section 57 of which judicial notice must
be taken.
2.
The principle underlying the Sections.—
Certain matters are so notorious and are so clearly established that it would be useless
to insist that they should be proved by evidence.
1.
The commencement and continuance of hostilities.
2.
The Geographical Divisions of the Country.
These
facts are so notorious that proof of them by evidence is superfluous.
2.
Matters
enumerated in Section 57.
(i)
RULES HAVING THE FORCE OF LAW.
Many Acts contain a Section empowering the Local
Government to make rules for carrying into effect the provisions of the Act and declaring
that such rules shall have the force of Law e. g.
Rules made under the Government
of India Act. Such rules fall within the purview of this section.
2.
Distinction must be drawn between rule having the force of law and custom which is the
source of Law. A large part of Hindu Law is based on custom. But the Court will not take
judicial notice of a custom. The party who relies on a custom must prove the existence of
the custom. When the party has proved the existence of the custom the Court will give
effect to it only if it comes to the conclusion that it is a valid custom.
3.
It is true that there are some customs for the proof of which the Court does not require
Evidence. But that is not because the Court is bound to take judicial notice. The Court
does not require formal proof because by the rule of precedent, the Court is bound to
uphold a custom, the existence and validity of which has been recognised in an earlier
decision by a Court to which it is Subordinate.
(ii) STATUTES. The
statutes passed by Parliament are either general or special.
A
General Statute is universal in its application and extends to all persons and to all
territories.
A
Special Statute is either local or personal and operates upon particular persons and
private concerns.
2. All Acts of Parliament are to be presumed to be
public unless the contrary be declared therein - Section 13 of 14 Vict. c.
21.
3. Judicial notice must be taken of all public Acts. Court is not
bound to take judicial notice of a Private Act unless the particular Private Act contains
a direction
to the Court to take judicial notice. If it does not contain such a direction, the party
must prove that a Private Act relied upon is an Act of Parliament.
(iii) INDIAN
ARTICLES OF WAR.
These
are rules of discipline for Native Officers, soldiers and other persons in His Majesty '
s
Indian Army. They are contained in the Indian Army Act of 1911.
(iv) COURSE OF
PROCEEDINGS OF PARLIAMENT AND COUNCIL.
1.
Course of Proceedings must be distinguished from proceedings themselves.
2.
The Court will take judicial notice of the course of proceedings and not of the
proceedings.
Foreign
State
Court
will take judicial notice whether a foreign State is recognised or not by His Majesty or
by the Governor-General in Council.
State
of War
The
existence of a State of War between foreign States will not be taken judicial notice of.
Rules
of the Road on Land or Sea
Effect of the last para.
1.
Court can refuse to take judicial notice under certain circumstances of matters of which
they are bound to take judicial notice.
2.
Party is bound to produce the necessary material to enable the Court to take judicial
notice.
Gazette
must be produced if the party wishes the Court to take judicial notice of a Proclamation.
Mode
of Proof
1. The general rule regarding mode of proof may be
stated thus:
The law requires evidence to be given by a
person— (i) Who is present in the Court. (ii) Who is
legally competent as a witness. (iii) Upon oath
or affirmation. (iv) In regular course of Examination. (v) Subject
to contradiction as to facts. (vi) Subject to discredit as to veracity.
1.
PRESENCE IN COURT.
1.
It is a duty of the citizens to appear and testify to such facts within their knowledge as
may be necessary to the due administration of justice. It is a duty which has been
recognised and enforced by the Common Law from an early period.
2.
The right to compel the attendance of witnesses was incidental to the jurisdiction of the
Common Law Court, and the statutes have conferred this power upon other officers such as
Arbitrators. Every Court having power definitely to hear and determine any suit, has by
the Common Law, inherent power to call for all adequate proof of the facts in controversy
and to that end, to summon and compel the attendance of witnesses before it.
3.
The wilful neglect to attend and to testify after proper and reasonable service of the subpoena and in civil cases, after payment or
tender of the witnesses fee of waiver of payment is a contempt of Court.
4.
The process to compel attendance of witnesses to give testimony or to produce documents is
not provided for in the Evidence Act. It is provided for in the Civil and Criminal
Procedure Codes.
1.
The
following matters are in the Country provided for by the Civil and Criminal Procedure
Codes.
(i) Summoning of witnesses :
Civil
Pro. C.
0. XII
Cr. Proc.
C.
68-74 (Summons)
90-93
(Other rules regarding Process)
328
(Summons
on Juror or Assessor)
244 (Issue
of Process in Summons Cases)
540 (Power
to summons material witness on Examine person present)
(iii) Production
of documents and other things:
Civil
P. C. 0. XI, XVI.
Cr.
P. C. 94,95 (Summons
to produce documents or other thing)
96-99
(Search warrants)
485 (Consequences of refusal to produce)
(iii)
Expenses of the witnesses :
Cr. P. C.
244, 257.
(iv) The freedom of complainants and witnesses in
criminal cases from police restraints.
Cr.
P. C. 171.
(v) Recognisance for the attendance of complainants and
witnesses in Criminal proceedings.
Cr. P. C. 217, 170.
NOTE.—
Not
provided for in Civil cases.
(vi) Exemption of witnesses from arrest under Civil
process. Civil Pro. Code
S. 135.
NOTE.—there
is no protection given against Criminal process.
6. Not only is there provision for summoning a witness, there are provisions for compelling his attendance.
(1)
Non-attendance in obedience to a Summons is made an offence by Section 174, 175,1. P. C.
(2)
Non-attendance in obedience to a summons may be followed by Warrant of arrests under Sections 75-86 and by
Proclamation and Attachment under Sections 87-89 of the Cr. P. C.
(3)Non-attendance
may further render a witness liable to a Civil action for damages under Section 26 of Act
XIX of 1853 (in force in Bengal) and under Section 10 of Act X of 1855 (in force in Bombay and Madras).
24W.R.72.
7.
Although the law requires persons summoned as witnesses to attend inperson, the law also excuses
non-attendance in certain cases.
(i) By reason of non-residence within certain limits.
Civil P. C. 0. XVI R. 19. (ii) By reason of the witness being a purdanashin lady.
Civil
P. C. Section 132.
(iii)
By reason of the witness being a person of Rank. Civil P. C. Section 133.
§
The witness must be competent to give evidence
1.
The question of competency of a person may be considered from two points of view.
(1)
From the point of view of his intellectual capacity.
(2)
From the standpoint of his veracity.
1.
COMPETENCY FROM THE STANDPOINT OF
INTELLECTUAL CAPACITY.
1.
Section 118 deals with the question of competency from the standpoint of intellectual
capacity.
2.
The rule enacted in Section 118 is a rule which recognises the power of understanding as
the only test of competency.
3. As every normal person has the intellectual
capacity to understand things and to grasp their importance. Section 118 declares that
all persons
are competent to testify
unless they suffer from want of understanding.
4.
The law of competency is therefore practically the law of incompetency. A person is a
competent witness who is not incompetent.
5.
Incompetency therefore means want of understanding. This want of understanding may arise
from
(iii)
Disease
whether of body or mind.
(iv)
Any
other cause of the same kind.
6.
Comment. (i) Tender year or (ii) Extreme old age— is not defined.
A
boy of 7 may not be incompetent but 12 may be, if the former has an understanding which
the latter has not. A man of 60 may be incompetent and a man of 80 may not be.
The test is not the age. The test is the Existence
or non-Existence of understanding.
(iii)
Disease of the body
A witness may be in such extreme pain as to be
unable to understand or if able to understand to answer questions. He may be unconscious,
as if in a fainting fit, catalepsy or the like. Here again it is a question of fact
whether in any particular case the disease of the body is such as to deprive a
person of his power of understanding.
(iii)
Disease of the mind
1.
This contemplates the case of an idiot and a lunatic, both suffer from the disease of the
mind.
2. An idiot is one who is born
irrational, without the reasoning faculty. A lunatic is one who is born rational, has
subsequently become irrational and lost his reasoning faculty.
3.
A lunatic is either a monomaniac or is a
maniac for the time being. That being so, a lunatic is not incompetent merely because he
is a lunatic. Lunacy does not mean complete annihilation of understanding. If it is
general lunacy, he may be lucid at intervals. If he is a monomaniac, his understanding
about other matters may be clear.
Illus.
of partial lunacy.
(1)
Murder discussion in Lunatic Asylum.
(2)
Interview by a person with his lunatic friend in the asylum and his remark about time.
Illus. of
Monomaniac,
(1)
R. V. Hill—Hill was tried for murder. Donelly
witness— lunatic—suffered from the delusion that he had 20000 spirits about him
which were continually talking to him.
That
being so a lunatic can be a competent witness. This is recognised in the Explanation. (iv)
Any other cause.
This
means any other cause depriving a person of his power of understanding,
e.
g.
drunkenness.
Some
of these disabilities are coextensive with the cause, therefore, when the cause is removed
the witness becomes competent.
e.g.
When pain ceases
drunkenness
ceases
Lunacy
ceases
Whether
there is understanding or not in the witness, is a matter which is determined by the Court
by questioning the witness.
§
Accused as a witness
1.
While all persons who have understanding are competent as witnesses, there is one
exception to the rule. That is, an accused person cannot be examined as a witness in a
criminal case in which he is being tried.
There
is a case of the disease of the body which does not affect the mind of the understanding.
Dumbness is such a disease.
Section
119
deals with the case of such a witness. The Section does not declare him to be incompetent.
On the other hand, it treats him as a competent, and permits him to give evidence in any
manner by writing or by signs made in open Court.
§
Competency from the standpoint of the veracity of the witness
1.
The motives, which prevent a person from telling the truth, are more numerous in judicial
proceedings than in ordinary affairs of life because of the fact that, result of a
judicial proceeding cannot be flouted and are binding in a more absolute manner than other
informal proceedings of a Panch
are. Consequently the law at one time rendered many people intellectually competent
incompetent to give evidence in a cause.
2.
Formerly, therefore, not only mental incapacity was a good ground for incompetency but interest was also a ground for incompetency. Reason
was that, an interested person would not tell the truth. Consequently, at one time, the
following persons were deemed incompetent.
1.
Parties to the suit.
2.
Husband and wife against each other.
3.
Accused against himself.
4.
An Accomplice.
3. This view of the law is now changed and the
principle has undergone a change. Question of competency or incompetency has been
converted into a question of credibility or incredibility. So that every son is rendered
competent to give evidence but it is left to the Court to believe him or disbelieve
him.
4. This new principle is embodied in Sections 120 and 133.
§
Section 120
I.
CIVIL PROCEEDINGS (i)
The parties to the suit are competent witnesses.
(ii) The husband and wife of any party to the suit are
competent witnesses.
II.
CRIMINAL PROCEEDINGS
1.
The husband or wife of the accused is a competent witness either for or against.
§
Section 133
1. This section deals with the competency of an
accomplice. The evidence of an Accomplice is held untrustworthy for three reasons:
(i)
because an accomplice is likely to swear falsely in order to shift the guilt from himself.
(ii)
because
an accomplice as participator in crime, and an immoral person, is likely to disregard the
sanction of the oath.
(iii) because
he gives his evidence under a promise or hope of not being prosecuted,
if he discloses all he knows against his participators in the crime.
2.
But his evidence has to be admitted from necessity, it being often impossible without
having recourse to such evidence to bring the principal offenders to justice.
§
Difference between the value of Evidence of Accomplices and other persons
1.
Persons other than accomplices are not only competent but are also credible. An Accomplice
on the other hand is only competent but is not credible.
2.
Witnesses may be incredible in the eye of the Judge. But they are not incredible in the
eye of the law. An Accomplice has a statutory incredibility attached to him by the law.
3. This statutory incredibility arises from
illustration (b) to Section 114 of the Evidence Act. The presumption
is sanctioned by the Act and although it is rebuttable, it would be an error of law not to disregard.
4. For attaching this statutory incredibility, it
would be necessary to determine whether the witness is an Accomplice. The term is not
defined.
(i) An Accomplice is a person who is concerned with
another or others in the commission of a crime. He is a participant. But it is not every
participation in a crime which makes an accomplice. Much depends on the nature of the
offence and the extent of the complicity of the witness in it. 5 W. R. Cr. 59.
(iii)
An
Accomplice is a person who is a guilty associate in crime or who sustains such a relation
to the criminal act, that he can be justly indicted with the Accused who is being tried. 27 Mad. 271.
§
Effect of Sections 120 and 133
1. The sections enumerate certain persons as being
competent to give evidence. Question is, Are other persons not competent ? The
sections are not to be understood to mean that these are the only persons who are
competent and others are not. The effect of the sections is that all persons are competent
including those mentioned in Sections 120 and 133.
2.
The reason why it was necessary to specifically deal with these classes is, because under
the earlier law they were incompetent. The ban against them had to be lifted and therefore
the specific provisions relating to them. Other classes of persons were already deemed to
be competent and it was unnecessary therefore to say anything about them.
3.
The Effect of Sections 120 and 133 is this, that not only
(1)
Parties to suits.
(2)
Husbands and wives.
(3)
Accomplices.
are
competent witnesses, but
(1) Jurors and Assessors—Section 294 Cr. P. C.
(2)
The Executor of a Will
(3)
An Advocate for a party may be competent witnesses in the case to which they are a party,
although it is a cause in which they are interested.
Evidence must be given on Oath
1.
Oath is not a requirement of the Indian Evidence Act. Left to the Indian Evidence Act,
evidence by a witness would be legal evidence although the witness had given evidence
without taking oath.
2. Oath is a requirement of the Indian Oaths Act X of 1873.
Section 5 of the Oaths Act lays down.
1.
That oaths or affirmation shall be made by the
following persons.
(a) all witnesses. (b) interpreters. (c)
Jurors.
3. Section 6—permits a person who objects to
the oath to affirm.
4.
Section 14.—Every person giving evidence before any Court or person authorised to
administer oaths or affirmation shall be bound to state the truth on such subject.
5.
There are three questions that arise for consideration.
(1)
Can a Court decline to administer oath or affirmation to a
witness?
(2)
Can a party decline to take oath or make affirmation?
(3)
Effect of the refusal
of a witness to take oath or affirm and of the failure of the
Court to administer oath.
Answer to
Question 1. It is a statutory duty of the Court to administer
oath.
There is one qualification, namely, Court is bound
to administer it to a person who is competent and not bound to administer it to one who is
incompetent, e. g. a child.
Answer
to Question
2. The answer is given in Section 12. Party shall not be compelled to make it. But the
Court is to make a record of his refusal and the reasons, if any, given by him.
Answer
to Question 3.
Part
I— Effect of the refusal
1. ....................
of
the party to take oath or make an
affirmation
2. Such refusal only affects the value of
the evidence.
Part
II—Effect of the failure
1. The evidence remains of the Judge to give oath.
admissible.
2.
Obligation to tell the
truth
remains.
6.
The Provisions of the Oaths Act in India are not so strict as they are in England.
(1)
Oath is not a necessary condition precedent for the obligation of telling the truth. It is
necessary merely to remind a witness of its sanction.
(2)
The Indian Act condones
the failure to remind or failure to take oath. The English law makes the evidence
inadmissible.
IV.
course oF examination
1.
There are two possible ways in which a witness can depose (i)
By narrating the facts. (ii)
By answering questions put to him.
2.
The Evidence Act provides that the testimony of a witness shall be taken in the form of
Examination, not in the form of a narration. The reasons why the law prefers examination
as the mode of giving evidence are to be traced to the rules of relevancy. A person is permitted to give evidence of
matters which are relevant. He is not permitted to give evidence of all matters relating
to the issue. Matters which are related to the issue are not necessarily relevant to the
issue and under the Evidence Act it is the duty of the Judge to decide whether any
particular fact is relevant or irrelevant and to rule out the irrelevant then and there.
If
a witness is permitted to give his testimony in the form of a narration two things will
happen :—
(i)
The witness will in all probability tell all
tacts relevant as well as related and this introduce irrelevant matter and
(ii)
The action that a Judge may be able to take to rule out irrelevant matters will be ex-post facto.
On the other hand if the witness was required to
give his testimony in the form of answers to questions, two
objects will be achieved:—
(i) his testimony could be made to confine to relevant
matters only not being permitted to wander and
(ii) the Court can immediately check and rule out the
introduction of irrelevant testimony.
4.
With regard to the examination of witnesses, there are two questions which are distinct
and which are regulated by different law. The order
in which parties are to produce their witnesses for examination, and the course of Examination to which each witness is to
be subjected when he is produced before the Court, are two separate questions.
Sections
135,138
The
order in which witnesses are to be produced by the parties is a matter which is regulated
by the Civil and Criminal Procedure Codes. While the course of examination to which a
witness is to be subjected, when produced, is laid down by the Evidence Act.
§
Order of Production of
Witnesses
1.
In Civil cases
In Criminal cases
Order
XVIII Rule 1.
Summons cases 224 Cr.
P. C.
Warrant
cases 252
254
257
Summary
cases 262.
Rule
seems to be this.
1.
The first question to be determined is who has the right to begin.
2.
The right to begin depends upon on whom is the burden of proof.
§
Course of Examination
1.
The Course of examination of a witness prescribed by the Evidence Act is to consist of 3 parts.
Section
138
(i) Examination in chief. (ii) Cross Examination. (iii) Re-Examination.
2.
Examination in chief is the Examination of the witness by the party who calls him.
Section
137
Cross
Examination is the examination of the witness by the adverse party.
Re-Examination
is the examination of the witness by the party who called him subsequent to his cross
examination by the adverse party.
Questions
to be considered
3.
Examination in chief is a matter of choice. No one can compel a party to call witnesses.
But if witnesses are called and examined in chief, then the question that arises is
this:— Is Cross-Examination and Re-Examination a matter of right or a
matter of privilege, which may be granted or withheld according to the
discretion of the Court ?
The answer to this question is that
Cross-Examination and Re-examination are matters of right and not of privilege. The Court
cannot stop a party from Cross-examining or Re-examining a witness who has been examined
in chief by the party. What about a witness
who is called by the Court and not by any party
to the proceedings ? Is there any right to cross examine such a witness ? If so
which party ?
The Evidence Act makes no provision for such a case. It has however been held that a
witness summoned and examined by the Court cannot
as of right be Cross-Examined by either party without the permission of the Judge.
(1894) 2 Q.B. 316,
24 CaL 288
5 Cal. 614
4. When can the right to Cross examine be exercised ?
As
to this, there is a difference between civil cases and criminal cases.
(i) In Civil
Cases, the right must be exercised immediately. It cannot be postponed to a future
date.
(ii) In Criminal Cases, in a summons case before the
Magistrate and in the Sessions case the right must be exercised immediately. But in a
warrant case, the accused has a right to postpone the Cross-examination of the prosecution
witness to the next date of hearing.
The case of a person who is called as a witness by
both the parties : In a litigation between A and B, C
is cited as a witness by both A and B. First he is called as a witness by A on his behalf.
After his cross-examination by B and Re-Examination by A, he is called as a witness by B
on his behalf.
Can B Cross-examine C ?
There
is no specific provision answering this question in the law of evidence. It is a question
of judicial opinion. On this question there is a divergence of view.
(1)
One view is that,
when a person once gets a right to Cross-examine a witness, that right continues to him at
all subsequent stages of the case against that witness, no matter
in what role the witness reappears, so that, even if he comes as his own witness he can
Cross-examine him. This view is based on the theory that every witness is favourably
disposed towards the party calling him.
(2) The other view is that, each party should alternatively
have the right of X Examining such a witness as to his adversary's
case, while both should be precluded in the
course of the respective Examinations-in-Chief from
leading questions with regard to their own case. So that a Plaintiff may Cross-Examine any
of his own witnesses, on hearing afterwards called on behalf of the Defendant.
The
better opinion is that the right to X Examine does not survive and he cannot be asked
leading questions on his Second Examination. If the adversary again called the same
witness who has been examined by the other side and Cross-examined by him, he could
clearly examine him in-chief.
This
rule appears to have been adopted by the Evidence Act.
5.
Does this prescribed course of Examination apply to every witness ?
1.
There are three sorts of witnesses who are called before the Court:
(i)
Those
who are called to depose to relevant facts.
(ii)
Those
who are called to speak to character.
(iii)
Those
who are called to produce documents.
2.
With regard to witnesses who are called to depose to relevant facts or to speak to
character, they are subject to the full prescribed course of examination.
Cross-examination and Re-examination. But the witness, who is called to produce documents,
stands on a different footing. He is not a witness and therefore cannot be cross-examined.
6. Can one Co-accused Cross-examine a witness called by another co-accused ? Can one Co-defendant Cross-examine
another co-defendant or the witness called by a
co-defendant ?
(1)
The Section does not make special provision for the case of Cross-examination by
co-accused and co-defendants.
(2)
The Evidence Act gives a right to Cross-examine witnesses called by the adverse party and to no other.
Consequently, it follows that
one co-accused can cross-examine a witness called by another Co-accused only when the case
of the second is adverse to that of the first. 21
Cat. 401.
(3)
The rule of English law in this respect is different. Under the English law the right of a
defendant (and a fortiori an Accused) to Cross-examine a co-defendant or
co-accused is, according to the English-cases, is unconditional and not dependent upon the
fact that the cases of the accused and co-accused are adverse or that there is an issue
between the defendant and his co-defendant. And one co-defendant may Cross examine a
co-defendant's witness and the co-defendant if he gives evidence.
The reasons for this English rule are :
(i)
It is settled that the evidence of one party cannot be received as evidence against
another party unless the latter has had an opportunity of testing it by Cross-examination.
Allen vs.
Allen. L.R.P.D. (1894) 248/254.
(ii)
It is also Settled that all evidence taken, whether in
examination-in-chief or Cross-examination, is common open to all the parties. Lord vs. Coloin.
3 Drewery 222.
(iii)
It follows that if all evidence is common and that which is given by one party may be used
for or against another party, the latter must have the right to Cross-examine.
7.
What is the effect of a default in the course of the examination of a Witness prescribed
by law ?
(1)
This question can arise only when there is a default in Cross examination or
Re-examination. Until there is Examination-in-Chief, there
is no evidence at all in the legal sense of that term.
It
is only when evidence has been given by the witness in his Examination-in-Chief that this
question can arise. The question to be considered reduces itself to the effect of default
of Cross-examination or Re-examination on the testimony of a witness.
(2) Such default takes place when the witness dies
or falls ill, becomes insane or paralytic or disappears after his Examination-in-Chief or
before X
Examination.
(3)
The Evidence Act does not in clear terms state in express terms what the effect will be.
Whether, for want of Cross-examination or Re-examination of a witness, his testimony given
in Examination-in-Chief will cease to be evidence in the legal sense of the word and will
have to be cancelled and excluded from the consideration of the Court or whether it will
merely affect its evidentiary value, is not stated in the Evidence Act. The question is
determined by Judicial interpretation.
According
to judicial interpretation, two propositions are well established.
(1)
Such default does not make the evidence inadmissible. It only affects its credibility.
(2)
Whether it would be credible or incredible, must depend upon the reasons for the default
in Cross-examination.
There
are two ways in which default in X Examination may take place:
(i) Where a party could have X Examined but did not do
so. (ii)
Where a party would have X Examined but could not do so.
The
question of credibility could arise only in the second case. It could not arise in the
first. The Law can give an opportunity and nothing more. If opportunity is not taken,
the law holds there is no injury.
§
Regular Course of Examination
1.
The Course of examination of a witness must be regular.
2.
A Course of Examination to be regular must be in
accordance with the rules laid down in the Evidence Act ?
3. The rules for a Regular Course of Examination
relate to :
(iii) Limits
of Examination.
§
Scope of Examination of a witness
Under
this head, we must deal with matters on which it is permissible to a party to ask
questions to a witness.
1.
The objects underlying the examination of a witness are chiefly two: (i) to elicit from him what he knows. (ii) to test
the truth
of what he states.
2.
The object of testing the truth of what the witness has stated can be achieved, only if,
the Examination of the witness is extended to such questions as relate : (i)
to the corroboration
and contradiction of the witness.
(ii)
to the confirmation or impeachment of the credit or character of the witness.
3.
Under Scope of examination, we shall therefore
be concerned
with Rules relating to the following subjects :
(i)
Rules relating to matters which can or cannot be elicited in the course of the
Examination
of the
witness.
(ii)
Rules
for testing
the credibility or incredibility of a witness.
(iii)
Rules regarding the
corroboration or contradiction of matters deposed to by the witness.
l§
Matters which can or cannot be elicited in the course of an Examination
1.
This question is dealt with by Sections 138 and 146. The effect of these sections is that
there are two kinds of matters which can be elicited from a witness in the course of his
examination.
(i)
Matters
which are relevant to the issue and (ii) Matters which relate to the credibility of the
witness.
These
are the only two matters on which a witness can be examined.
2.
But every party is not entitled to examine a witness on both these matters
(1)
With regard to matters which are relevant, both parties are entitled to examine the
witness, the party who called him and the adverse party. Indeed the rule is not that the
party is entitled to examine the witness on all relevant matters ;
the rule is that the examination of a witness must be confined to relevant facts.
This rule applies not only to Examination-in-Chief but also to Cross-examination. The only difference
is that Cross-examination need not be confined to matters raised in Examination-in-Chief.
It may be extended to other matters not raised in Examination-in-Chief. But these other
matters must also be relevant matters. Nothing
that is irrelevant is permissible either in Examination-in-Chief or Cross-examination.
There
is therefore no difference in the scope of the Examination-in-Chief or Cross-examination
so far as relevant matters are concerned.
(Here
concludes
Page
203 of the
M.S. Page
204
is missing.
Following
text starts
from Page 205—ed.)
There
is agreement on the absence of the particular virtue of truth telling has the necessary
effect of shaking the man's credit and therefore such questions as relate to this aspect
of the witness character are always permissible and can be asked in Cross examination.
But
there is no general agreement as to the absence of general good character on the veracity
of a witness.
There
are two views on the subject. One is that, bad general character necessarily involves an
impairment of the truth telling capacity and therefore to show general moral degeneration
is to show an inevitable degeneration in veracity. The other view is, a bad general
disposition does not necessarily or commonly involve a lack of veracity and that,
therefore, a bad general disposition is of no probative value for the purpose of shaking a
witness's credit.
Under
the English law, for the purposes of shaking credit by injury to character, general
character is excluded and character for veracity only is taken into account.
§
Impeachment of Character otherwise than by Cross-examination
Section
155
1.
Impeachment of character of a witness is permitted by the production of independent
evidence under the provisions of Section 155.
2.
This again is a right of the adverse party. So
that a party who calls a witness cannot impeach the character of that witness by evidence
of other persons.
3.
The impeachment may be undertaken in the following ways
.
(1)
by evidence of persons who testify from personal knowledge that the witness is unworthy of
credit.
(2) by proof that has been bribed or
accepted the offer of a bribe or has received other corrupt inducement to give his
evidence.
(3)
by proof of former statements inconsistent with
any part of his evidence which is liable to be contracted.
(4) by proof in rape that the prosecutrix
was of generally immoral character.
3 § Rules regarding corroboration and contradiction of a witness
1.
Definition of a Corroborative Evidence—Corroborative
evidence simply means evidence which has the effect of confirming the truthfulness of the
testimony of a witness. It is evidence which makes the assurance of a witness doubly sure.
2.
Kinds of Corroborative Evidence.—The
Evidence Act recognises two kinds of Corroborative Evidence. (i) Evidence of facts other than relevant facts. (ii)
Additional evidence of.
Section
156. §
Corroborative Evidence of facts other than relevant facts
There
are two requirements which must be fulfilled.
(i) The Corroborative circumstance of which evidence is
being given must have been observed by the witness at
or near to the time at which the relevant fact occurred.
(ii) The Court must be of opinion that such
circumstances, if proved, would corroborate the testimony of the witness as to the
relevant fact
A
and B
jointly committed robbery at a certain place. B is charged and A, the accomplice gives
evidence against him. In his evidence A describes various incidents
unconnected with the robbery which occurred on the way.
Prosecution
call independent witnesses to prove the truth of the testimony of the accomplice relating
to the incidents on the way.
The
relevant question is whether B committed
robbery. The Evidence tendered by the prosecution does not relate to the relevant
question. Still it will be allowed as a corroborative evidence if the Court is of opinion
that it will help to corroborate the testimony of the accomplice as to robbery.
§
Corroborative Evidence byway (of)*[f1]
Additional Evidence of relevant facts
1.
This can be done by giving evidence of any former
statement made by the witness relating to the same fact. This is based upon the
principle that he, who is consistent, deserves to be believed. The mere fact of a man,
having on a previous occasion made the same assertion, may add little or nothing to the
truthfulness. One may persistently adhere to falsehood once uttered, if there is a motive
for it so that if consistency was conclusive nothing would be easier for designing and
unscrupulous persons to procure the conviction of any innocent man, who might
be obnoxious to them, by first committing offences and afterwards making statements to
different people and at different times or places implicating the innocent man. R. vs. Malappa, 11 Bom. H. C.R. 196 (198).
2. The previous statement may be a statement made on
oath or otherwise and either in ordinary conversation or before some persons who had
authority to investigate and question the person who made it. It may be verbal or in writing. There is one distinction between a previous statement
made before a person who has authority to investigate and a previous statement made
before a
person not so authorised. If not made before any person legally complain to investigate the fact, then to be
admissible, must have been made at or about the time when the fact took place. This
condition does not apply to a previous statement made before a person having authority to
inquire.
25 Mad. 210. Illus.
(i) A statement by a girl, alleging that she was raped
made immediately after the rape, is admissible.
(ii) The dying declaration
of a man, who chances to live, is admissible as a corroborative piece of evidence.
(iii) The first information given to the police is
admissible as corroborative evidence of the testimony of the informant.
(iv) The Panchnama
is admissible as a corroborative. Two points must be
urged by way of caution.
(1)
The use of statements made to the police in the course of investigation under Section 162,
Criminal Procedure Code. These are also previous
statements made before a person who is authorised to investigate.
Can they be used for the purposes of corroboration ?
At
one time it was held that they could be so used.
36 Cal. 281.
35
Mad. 397.
39
Bom. 58.
The Amendment to Section 162 of the Criminal
Procedure Code excludes both the written record and viva
voce
statement made to the Police. Though previous statements, they cannot be used as a
corroboration.
(2)
The distinction between corroborative evidence and substantive evidence is important,
because, on this depends the use of corroborative evidence. Corroborative evidence is not
substantive evidence.
In
a trial of a prisoner, the depositions of witnesses given in a previous trial of other
persons charged with having been engaged in the same offence, were used against him. The
witnesses instead of being examined in the ordinary way, were re-sworn and said "
I gave evidence before in this Court and that evidence is true ".
Held that this evidence was inadmissible. It was
only corroborative evidence and could be used only when substantive Evidence is given. If
substantive Evidence is not given, then corroborative evidence cannot be given.
Similarly—If
a panch does not identify the accused, the Panchanama
of identification as corroborative evidence could be inadmissible.
In this connection there arises the question of
giving corroborative evidence of a person who cannot be called to give substantive
evidence by reason of the fact that the witness is deader who cannot be found or who has become incapable of
giving evidence or whose attendance cannot be procured without an amount of delay or
expense, which under the circumstances the Court thinks unreasonable.
Section
158 permits corroborative evidence being given although no substantive evidence is
tendered. This is an exception to the general rule. That exception applies only if the witness cannot be procured.
This is an exception created by Statute. Another
exception created by Statute is contained in Section 288 of the Criminal Procedure Code.
By that Section, evidence before the committing Magistrate is treated as evidence before
the Sessions Court for all purposes i. e.
substantive Evidence of all facts deposed therein.
§
3/2 § Rules regarding the contradiction of a witness
1.
This is a matter which must necessarily be governed by two considerations:
(i)
The object of inquiry by the Court is to get at the truth and therefore contradiction must
be permitted.
(ii) If contradiction is permitted, the inquiry will be
endless and therefore there
must be some limit on the process of contradiction.
2. In what
cases can a witness be contradicted ?
The
Section which deals with the contradiction of a witness is Section 153. For the purposes
of contradiction, the Section divides the answers of the witness into two classes (1)
Answers to questions relating to relevant facts and (2) Answers to questions relating to
the credit of a witness.
3.
Are the answers of a witness to questions relating
credit liable to contradiction ?
The
answer given in Section
153 is positive to the effect that such answers shall not be contradicted.
There are only two exceptions to the rule :
(i) If previous conviction is denied, you can
contradict it by evidence. (ii)
If the witness denies partiality he may be contradicted.
In this connection, it must be borne in mind that
under the provisions of Section 155, the answers of a witness giving reasons in X-Examination for his belief in the untrustworthiness of another witness are not liable to be
contradicted.
In
all these cases, where the answers of a witness to questions relating to credit are not
liable to contradiction, the law provides that if their answers are false they may
afterwards be charged with giving false evidence.
4. Are answers of a witness to questions on relevant
facts liable to contradiction ?
(1)
Section 153 is negative in character and merely states cases in which contradiction is not
allowed. It does not state in what cases contradiction will be allowed.
(2)
It does not include answers to relevant questions in its prohibition. By implication it
seems to permit contradiction of such answers.
(3) There is illustration (c) to Section 153 which shows that the legislature
intended to permit contradiction of such answers.
5.
Section 153, therefore, lays down the rule that you can contradict answers to relevant
questions. But you cannot contradict answers to questions on credit.
§
Contradiction on relevant facts
1.
The next question is ; Is such
contradiction permitted to the party who called the witness or Is it permitted to the
adverse party only ?
2. That, a party may contradict the answers given by
the witness called on behalf of the adverse party, is beyond question and is always
permissible. The defence witnesses are thereto contradict. But it does not seem to be
quite so obvious in the other case. A witness is called on behalf of a party. In answer to
a question on a relevant fact, he gives a particular answer which the party who called him
feels is untrue. Can the party, who called him, call another witness to contradict him ?
3.
The answer is that he can. The law seems to make
difference between discrediting his own witness by attacking his general character and
showing that in a particular respect his testimony is incorrect.
§
Manner of Examination of a Witness
1. Manner of
Examination means the manner of interrogating the witness, i. e.
the manner of putting questions.
2.
This matter is left not to the discretion of the party interrogating the witness, but is
regulated by law.
3.
From the standpoint of the manner of putting questions, questions are either leading
questions or not leading questions.
4.
A leading question is generally said to be a question which can be answered by a mere yes
or no. Although, all such questions undoubtedly come within the rule, the character of
leading question is not limited to them.
The Evidence Act defines a leading question as
one, which suggests a particular answer, which the questioner expects to have from the
witness.
On a charge for murder by stabbing, to ask a witness
' Did
you see the accused covered with blood and with a knife in his hand coming away from the
corpse ?
' is a leading question.
5.
A distinction must be made between two sorts of leading questions,
(i) A leading question which suggests the answer. (ii) A
leading question which directs the attention of the witness to the subject respecting which he is questioned.
As
an illustration of the second sort of leading question, take the following:
A was sued
for defamation by B for having said in a conversation to C
that
B
was in bankrupt circumstances and that his name would appear in the London Gazette among
bankrupts. Question was asked to the witness.
" Was anything
said about the Gazette ? "
This
is not a leading question in the sense of a question which suggests an answer. It is a
leading question which directs the attention of the witness to the subject about which he is being questioned.
The manner of interrogation in Examination-in-Chief varies from the manner of investigation in
Cross-examination.
In
Cross-examination, a witness may be interrogated in the form of leading questions. But
leading questions must not be asked in Examination-in-Chief, if objected to by the
opposite party.
In
Examination-in-Chief, the witness must be asked merely such question as "
What did you see ?
"
"
What did you hear ?
"
"
What happened next ?"
Reasons
for the Rule
(1)A
witness has a bias in favour of the party calling him and hostile to the opponent. He is,
therefore,
likely to agree to the answers suggested to him by the pleader of the party.
(2)
That the party calling a witness has an advantage over his adversary, in knowing before
hand what the witness will prove, or at least expected to prove ;
and that, consequently, if he were allowed to lead, he might interrogate him in such a
manner as to extract only so much of the knowledge of the witness as I would be favourable
to his side, or even put a false gloss upon the whole.
Exceptions
to the Rule.
Leading questions are permissible in Examination-in-Chief in the following cases :—
(i)
Where
the matters are merely introductory, such as a name, occupation of a witness.
(ii)
Identification
of persons or thing.
(iii)
About
matters which are not in dispute.
(iv)
When
a question from its very nature cannot be put except in a leading form.
(v) To contradict evidence already given by a witness
on the other
side.
E. G.—If the Plaintiff has sworn that the defendant
said, " The goods need not all be equal to sample ", the
Defendant can and should be asked, " Did you ever say to the Plaintiff that the Goods
need not all be equal to sample or any other words to that effect ? "
(vi) Where the witness is hostile. Difference between a
hostile and a witness who is unfavourable.
A
Witness should always state what happened according to his own personal recollection, and
not according to what he has since been told.
Suppose
the witness cannot recall the facts and his memory fails, what is to be done ?
There
are two ways open :
(1)
To assist the memory of a witness by leading questions.
(2)
To permit him to refresh his memory by permitting him to refer to any writing which is a
record of the fact.
Examples
of writings used to refresh memory are—
(i)
Entries in diaries. Entries in call books. Entries in account-books. Entries in Railway
time-tables.
A
witness may refresh his memory by referring to any writing or document made by himself. But he may also refresh his
memory from documents made by other persons under his immediate observation.
The
only condition is that the document must have been made at the time when the transaction
was fresh in his mind or was read by him, if
made by another person, at the time when the transaction was fresh in his memory and knew
it to be correct.
A
copy may be used if the original cannot be produced for reasons which satisfy the Court
for its non-production.
Refreshing
memory by inspecting a writing or document does not make it documentary evidence. So that
a document which could be inadmissible in evidence for want of stamp would be admissible
for refreshing memory.
There is a difference between referring to a writing
for refreshing memory and using a document for corroboration.
A
document which could not be used for corroboration can be used for refreshing.
Example : USE OF POLICE DIARIES
In
connection with a document used for refreshing memory, it must be ascertained whether a
memorandum does assist the memory or
not.
The
law, therefore, requires that such writing shall be produced and shown to the adverse
party, if he requires it and he may cross examine the witness thereupon, if he so desires.
8 Cal. 739 (745).
The
grounds upon
which the opposite party is permitted to inspect are threefold :
(i) to secure the full benefit of the witness 's recollection
as to facts ;
(ii) to check the use of improper documents and (iii)
to compare his oral testimony with his written word.
Can
the adverse party compel the witness to refresh his memory by referring to the writing.
It
may be very advantageous to an accused person that Police Officer should state a certain
fact. The Police Officer does not recall fact and would not refresh his memory by reference
to his diary.
(8
Cal. 154), (8 Cal. 739)
Says he cannot be compelled. A. I. R. (1924)
Pat. 829, Says he can be compelled.
§
On the Limitations on the Examination of a witness
1.
The subject-matter to be considered under this head relates to the questions a witness is
bound or is not bound to answer.
2.
The general rule is that a witness must answer all
questions put to him.
Section
132, Section
132 puts the matter negatively.
3. This
rule is subject to two qualifications : (i)
Certain questions a witness cannot be compelled
to answer. (ii) Certain questions a witness is not to be empowered
to answer.
4. Sections which deal with questions which cannot
be compelled to answer are : 121,122,
124,125,129.
5.
Sections which deal with questions which a witness is not empowered to answer are :
123, 126, 127, 128.
DISCHARGE OF THE BURDEN OF PROOF
1. Effect of Evidence may be : (i)
To prove a fact. (ii)
To disprove a fact. (iii)
To fail to prove and therefore disprove.
2. Burden of Proof is discharged when : (i) The fact required to be proved is prove. (ii)
The fact required to be disproved is disproved.
3.
Burden of proof is not discharged when the Party
on whom the Burden lies fails to prove or disprove as the case may be.
4. When can a fact be said to be proved or disproved
? And
when can it be said to be not proved.
The
answer to this question is given in section 3.
NOTE.—TWO
things
must be noted.
(i)
Proof does not mean rigid mathematical demonstration. (ii) Moral conviction is not proof.
Proof
means Evidence.
But
such evidence as would induce a reasonable man to come to some conclusion. (1911) 1. K. B. 988 (995). 31 Bom.
L. R.
516.
The
question of proof is one of probability and not of certainty.
Discharge
of Burden of Proof and Quantum of Evidence
(1) Under the English Law corroboration is necessary in certain cases:
(1)
High Treason—Two witnesses.
(2)
Perjury—
(3)
Breach of Promise—
(4)
Bastard—Mother's testimony must be corroborated.
(II)
Under the Indian Law the rule is absolute. The Court may act on the testimony of a single
witness even though uncorroborated.
Exception. ***