LAW OF EVIDENCE UNIT - I : Preliminary Indian Evidence Act, 1872—scope, object and applicability of Indian evidence act and exclusion ~ Statutory definition. Indian Law of Evidence and English Law of Evidence - Comparison - Constitutional perspective of Evidence ~ Golden Rule Evidence, Presumption of Law and fact - Kinds of Evidence. UNIT - II : Relevancy of Facts Relevance of facts and admissibility of facts - Res Gestae — Hearsay. Occasion, cause and effect etc., - Motive, preparation and conduct - explanatory facts — Acts of conspirators - When facts not otherwise relevant become relevant ~ Facts determining quantum of damages — customs — State of mind, body or bodily feeling - Similar facts — Course of business. Admission and confession. UNIT - III : Relevancy of Third Person Evidence Relevancy of statement made by person who cannot be called as witness. Relevance of Judgements of Courts. Relevance of opinion of third persons — Expert Cases. Law of Forensic Science ~ Forensic Institutions ~ Principles of Forensic Science proof and Forensic technology — Forensic science and criminal Justice system ~ Criminal trial, Scientific Examination and Expert witness w/s 112A. Relevance of character in civil and criminal cases. UNIT - IV : of Proof Facts which need not be proved Judicial notice - Modes of Proof - Oral Evidence ~ Hearsay evidence ~ Exceptions ~ Primary and Secondary evidence — Documentary evidence - Documents - Public and private documents - Presumptions as to the documents - Exclusion of oral evidence by documentary evidence. Burden of proof - Rules relating to burden of proof and Doctrine of Estoppel. UNIT - V: Witnesses ‘Witnesses - Categories of witnesses - communications - Accomplice -Examination of witnesses — questions tobe and not to be asked — Hostile witness - Impeaching credit of witness — Refreshing memory ~ Judges question Appeal against improper admission and rejection of evidence. Books prescribed: 1. Ratanlal : Law of Evidence 2. Avatar Singh : Law of Evidence 3. Vepa Sarathi : Law of Evidence 4, Dr.V.Krishnamachari : Law of Evidence 5. P.S, Achutan Pillai : Law of Evidence 6. B.R. Sharma: Forensic Science in criminal trial and Investigation Books for Reference: 1. Sankar : Law of Evidence (2 Volumes) 2. Sir John Woodroffe and Syed Amir Ali: Law of Evidence (4 Volumes) 3, Walls HJ. : Forensic ScienceCONTENTS Part I RELEVANCY OF FACTS Chapter I Preliminary 1 1. Short title, extent, commencement. ~ 2. [Repeal of enactment.] Rep. By the Repealing Act,1938 (1 of 1938), S.2 and Sch... 3. Interpretation clause— 4. “May presume” — Chapter IT Of the relevancy of facts 19 5. Evidence may be given of facts in issue and relevant facts — 6. Relevancy of facts forming part of same transaction — 7, Facts which are occasion, cause or effect of facts in issue ~ 8, Motive preparation and previous or subsequent conduct - 9, Facts necessary to explain or introduce relevant facts - 10. Things said or done by conspirator in reference to common design — 11. When Facts not otherwise relevant become relevant — 12. In suits for damages, facts tending to enable Court to determine amount are relevant - 13, Facts relevant when right or custom is in question - 14, Facts showing existence of state of mind or of body or bodily feeling - 15, Facts bearing on question whether act was accidental or intentional - 16. Existence of course of business when relevant — 17. Admission defined — 18, Admission by party to proceeding or his agent 19, Admissions by persons whose position must be proved as against party to suit- 20. Admission by persons expressly referred to by party to suit — 21. Proof of admission against persons making them, and by or on their behalf - 22, When oral admission as to contents of documents are relevant — 22A.When oral admissions as to contents of electronic records are relevant.-23, Admission in Civil cases, when relevant — 24. Confession by inducement, threat or promise when irrelevant in criminal proceeding - 25. Confession to police officer not to be proved ~ 26. Confession by accused while in custody of police not to be proved against him — 27. How much of information received from accused may be proved 28, Confession made after removal of impression caused by inducement, threat or promise, relevant — 29. Confession otherwise relevant not to become irrelevant because of promise of secretary etc. — 30. Consideration of proved confession affecting person making it and others jointly under trail for same offence — 31. Admissions not conclusive proof but may stop — RELEVANCY OF FACTS GROUP IIT STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES 45 32. Case in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant - 33, Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated — RELEVANCY OF FACTS GROUP IV STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES 6 34. [Entries in books of account including those maintained in an electronic form] when relevant — 35, Relevancy of entry in public [record or an electronic record] made in performance of duty - 36, Relevancy of statements in maps, charts and plans — 38, Relevancy of statements as to any law contained in law books — . HOW MUCH OF A STATEMENT IS TO BE PROVED 39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers JUDGEMENTS OF COURTS OF JUSTICE, WHEN RELEVANT 40. Previous judgments relevant to bar a second suit or trail - 41. Relevancy of certain judgments in probate etc., jurisdiction - 42. Relevancy and effect of judgment, order or decrees, other than those mentioned in Section 41.— 43, Judgment etc., other than those mentioned in Section 40 to 42 when relevant — 4. Fraud or collusion in obtaining judgment, or incompetence of Court may be proved -RELEVANCY OF FACTS GROUP VI OPINIONS OF THIRD PERSONS, WHEN RELEVANT 74 45. Opinions of experts 46, Facts bearing upon opinions of experts — 47. Opinions as to handwriting, when relevant — 47A. Opinion as to digital signature when relevant 48. Opinion as to existence of right or custom when relevant — 49. Opinion as to usages, tenants, etc., when relevant - 50. Opinion on relationship, when relevant - 51. Grounds of opinion when relevant — OF RELEVANCY FACTS GROUP VII 89 52. In civil cases character to prove conduct imputed irrelevant - 53. In criminal cases, previous good character relevant - 54, Previous bad character not relevant except in reply — 55. Character as affecting damages — PART II ON PROOF 7 CHAPTER III Facts which need not be proved 56. Fact judicially noticeable need not be proved - 57. Facts of which Court must take judicial notice - 58. Facts admitted need not be proved — Chapter IV OF ORAL EVIDENCE 99 ‘59. Proof of facts by oral evidence — 60. Oral evidence must be direct —Chapter V OF DOCUMENTARY EVIDENCE 103, 61. Proof of contents of documents — 62. Primary evidence - 63, Secondary Evidence- 64. Proof of documents by primary evidence - 65. Cases in which secondary evidence relating to documents may be given — 65A. Special provisions as to evidence relating to electronic record — 65B, Admissibility of electronic records — 66. Rules as to notice to produce — 67. Proof of signature and handwriting of person alleged to have signed or written document produced — 67A. Proof as to digital signature 68, Proof of execution of document required by law to be attested ~ 69. Proof where no attesting witness found - 70. Admission of execution by party to attested document - 71. Proof when attesting witness denies the execution - 72. Proof of document not required by law to be attested - 73. Comparison of signature, writing or seal with others admitted or proved — BA. Proof as to verification of digital signature — PUBLIC DOCUMENTS 1 74. Public documents ~ 75. Private documents — 76. Certified copies of Public Documents — 77. Proof of documents by production of certified copies — 78. Proof of other official documents — PRESUMPTION AS TO DOCUMENTS 4 79. Presumption as to genuineness of certified copies — 80. Presumption as to documents produced as records of evidence - 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents — 81A. Presumption as to Gazettes in electronic forms —82, Presumption as to document admissible in England without proof of seal or signature ~ 83, Presumption as to Maps or Plans made by authority of Government — 84, Presumption as to collections of laws and reports of decisions — 85. Presumption as to powers of attorney — 85A. Presumption as to electronic agreements — 85B. Presumption as to electronic records and digital signatures - 85C, Presumption as to Digital Signature Certificates ~ 86. Presumption as to certified copies of foreign judicial records - 87. Presumption as to Books, Maps and Charts — 88, Presumption as to Telegraphic Messages — 88A. Presumption as to electronic messages - 89. Presumption as to due execution etc., of documents not produced ~ 90. Presumption as to documents thirty years old - 90A. Presumption as to electronic records five years old ~ Chapter VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE 121 91. Evidence of terms of contracts, grant and other dispositions of property reduced to form of documents ~ 92, Exclusion of evidence of oral agreement - 93, Exclusion of evidence to explain or amend ambiguous document - 94, Exclusion of evidence against application of document of existing facts. — 95. Evidence as to document unmeaning in reference to existing facts. ~ 96. Evidence as to application of languages which can apply to one only of several persons 97. Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies — 98. Evidence as to meaning of illegible characters, etc. - 99. Who may give evidence of agreement varying term of document - 100. Saving of provisions of India Succession Act relating to Wills. —PART IIT PRODUCTION AND EFFECT OF EVIDENCE Chapter VII OF THE BURDEN OF PROOF 127 101. Burden of Proof - 102. On whom burden of proof lies. — 103. Burden of proof as to particular fact. - 104. Burden of proving fact to be proved to make evidence admissible ~ 105. Burden of proving that case of accused comes within exceptions - 106. Burden of proving fact specially within knowledge - 107. Burden of proving death of person known to have been alive within thirty years. — 108. Burden of proving that person is alive who has not been heard of for seven years. — 109. Burden of proofas to relationship in the case of partners, landlord and tenant, principal and agent - 110. Burden of proof as to ownership - 111. Proof of good faith in transactions where one party is in relation of active confidence. — 111A. Presumption as to certain offences. - 112. Birth during marriage, conclusive proof of legitimacy — 113. Proof of cession of territory — 113A. Presumption as to abatement of suicide by a married women - 113B. Presumption as to dowry death — 114. Court may presume existence of certain facts — 114-A Presumption as to absence of consent in certain prosecutions for rape - CHAPTER VIII ESTOPPEL 134 115. Estoppel - 116. Estoppel of tenant and of license of person in possession ~ 117. Estoppel of acceptor of bill of exchange, bailee or licensee ~CHAPTER IX COMPETENCY AND COMPELLABILITY OF WITNESSES 136 118. Who may testify? - 119. Dumb witnesses — 120-Parties to civil suit, and their wives or husbands, Husband or wife of person under criminal trial — 121. Judges and Magistrates — PRIVILEGED COMMUNICATIONS 140 122. Communications during marriage - 123, Evidence as to affairs of State — 124. Official communications ~ 125. Information as to commission of offences — 126. Professional communications ~ 127. Section 126 to apply to interpreters etc. - 128, Privilege not waived by volunteering evidence - 129. Confidential communication with Legal Advisers — 130. Production of title-deeds of witness, not a party — 131. Production of documents or electronic records which another person, having possession, could refuse to produce - 132. Witness not excused from answering on ground that answer will criminate- ACCOMPLICE WITNESS 147 133. Accomplice ~ 134, Number of witness — CHAPTER X OF THE EXAMINATION OF WITNESSES 152 135. Order of production and examination of witness — 136. Judge to decide as to admissibility of evidence — 137. Examination-in-chief— 138, Order of examinations - 139. Cross-examination of person callled to produce a document — 140. Witness to character — 141. Leading questions —142. When they must not be asked ~ 143. When they must be asked ~ 144. Evidence as to matters in writing - 145. Cross-examination as to previous statements in writing - 146. Questions lawful in cross-examination — 147. When witness to be compelled to answer — 148. Court to decide when question shall be asked and when witness compelled to answer - 149. Question not to be asked without reasonable grounds — 150. Procedure of Court in case of question being asked without reasonable grounds — 151. Indecent and scandalous questions ~ 152. Question intended to insult or annoy — 153. Exclusion of evidence to contradict answer to questions testing veracity — 154, Question by party of his own witness ~ 155. Impeaching credit of witness — 156. Questions tending to corroborate evidence of relevant fact, admissible — 157. Former statements of witness may be proved to corroborate later testimony as to same fact — 158. What matters may be proved in connection with proved statement relevant under Section 32 or 33— 159. Refreshing memory. — 160. Testimony to facts stated in document mentioned in Section 159 - 161. Right of adverse party as to writing used to refresh memory — 162. Production of document - 163. Giving, as evidence, of document called for and produced on notice - 164. Using, as evidence, of document, production of which was refused on notice ~ 165. Judge's power to put questions or order production - 166. Power of jury or assessors to put questions — CHAPTER XI OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE 160 167. No new trail for improper admission or rejection of evidence -LAW OF EVIDENCE [ihe object of every judicial investigation is the enforcement of aright or liability that depends on certain facts, The law of evidence can be called the system of rules whereby the questions of fact in a particular case can be ascertained. It is basically a procedural law but it has shades of substantive law]Law of Evidence is one of the fundamental subjects of law. The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act does not claim to be exhaustive. Courts may look at the relevant English Common Law for interpretation as long as itis not inconsistent with the Act. The Act consolidates, defines and amends the laws of evidencef Iris a special law and hence, will not be affected by any other enactment containing provisions on matter of evidence unless and until itis expressly stated in such enactment ort has been repealed or annulled by another statute]Parties cannot contract to exclude the provisions of the Act. Courts cannot exclude relevant evidence made relevant under the Act. Similarly, evidence excluded by the Act will be inadmissible even if essential to ascertain the truth. ‘The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that mean ‘to show clearly, to discover, to ascertain or to prove.” OBJECT OF THE STUDY OF THE LAW OF EVIDENCE Evidence refers to anything that is necessary to prove a certain fact. Thus, Evidence is a means of proof. Facts have to be proved before the relevant laws and its provisions can be applied. It is evidence that leads. to authentication of facts and in the process, helps in rationalising an opinion of the judicial authorities. Further, the law of evidence helps prevent long drawn inquiries and prevents admission of excess evidence than needed. Law related to evidence and proof is nothing but rules that must be observed in particular situations before certain forums. Ifthe other party in a legal proceeding admits guilt, all is well. The other party can also deny the allegations in the plaint and the existence of certain facts may be called into question. Then the parties or their witnesses have to give evidence in the court of law so that the court may decide whether the facts exist or not. Interpretation of agreed facts is rarity and in most cases the existence or non existence of facts as to be shown and therefore, the law of evidence playsa very important role. Utustration: X has entered into a contract with ¥ to sell his house for an amount of INR 10,000. In case of a breach of contract of contract by either X or Y, a Court of Law cannot decide the rights and liabilities, unless the existence of such a contractiis proved] tay #44: ‘The rules and regulations of evidence are essential. One view says that the court has to arrive at the truth and hear all there is to a case and then arrive at a just conclusion. And accordingly, the law of evidence poses a hindrance with its qualifications and requisites. Other view says that without rules it will take ages to resolve any case and it is too much discretion at the hands of men who will remain unchecked. The Indian Evidence Act, 1872 maintains the right proportion of rules that are not too pedantic or too discretionary. Rules of the law of evidence have to be strong so that the foundation of the administration of justice remains intact and strong. It can also be said that the Act seeks to enact a correct and uniform rule to followed and prevent indiscipline in admitting evidence. THE LAW OF EVIDENCE IS THE LEX FORI [Law of evidence is part of the law of procedure. That why it is called the lex fori or the law of the court or forum. It means that Indian courts know and apply only the Indian law of evidence. Thus, the competency of a witness, whether a fact is proved or not is determined by the law of the country where the question arose, where the remedy is sought to be enforced and where the court sits to enforce it)For example, ifa legal proceeding is going on in Sri Lanka and evidence is taken in India for the said proceeding whether by commission or by assistance of courts in India, the laws which will be applied during such recording of evidence will Sri Lankan Law of Evidence. 1THE LAW OF EVIDENCE SAME IN CIVIL AND CRIMINAL PROCEEDINGS Gs vil case of will and murder will have the same law of eviden&e) For example, the date of death has to clarified or confirmed for the will to come into existence and a murder date has to be set for proceeding farther with the criminal investigations too, There are, however, certain sections that apply exclusively to civil matters and others that apply exclusively to criminal cases.!In civil cases, mere preponderance of evidence may be enough but in criminal cases the prosecution must prove its case beyond reasonable doubt and leave the other alternatives presented very unlikely and highly suspect. ‘WHAT IS PROOF? HOW DOES IT DIFFER FROM EVIDENCE? Anything that can make a person believes that an assertion is true or false. It is distinguishable from evidence such thar(proofis a broad term comprehending everything that may be adduced ata trial, whereas evidence is a narrow term describing certain types of proof that can be admitted at trial. A case that goes to trial must be strong in its legal submission and satisfy the Court of the claims made by producing evidence) To do this, there are certain documents and objects that are taken into consideration while deciding ona matter of evidenc The Law of Evidence governs this aspect of criminal proceedings. The level of proofin a criminal case is a strict requirement and the party alleging the crime must prove the claim beyond all reasonable doupt)This standard is examined by looking at whether a reasonable man would be convinced by the allegations leveled in the face of evidence to the contrary. This can be done by producing relevant documents, or eye-witnesses to the offending incident or circumstantial evidence that increases the probability of the incident. BASIC PRINCIPLES OF EVIDENCE (Che Act deals with Relevancy of Facts, Mode of Proofand Production and Effect of Evidence. The following Principles are called the basic principles and the exceptions to the above principles; the exact application has been set out very clearly in the Act: © Evidence must be confined to the matters in issue. © Hearsay evidence may not be admitted. © The best evidence must be given in all cases. ‘© Allfacts having rational probative value are admissible in evidence, unless excluded by a positive rule of paramount importance} There two fundamental principles of trial in the all judicial system, firstly, it must ensure that parties to the case are given full opportunity to prove their case, and secondly every dispute must come to an end. ‘These two rules which are juxtaposed to each other must be balanced and this is done by the blending of procedural law and rules of evidence. HISTORY OF THE LAW OF EVIDENCE ‘Today we have two basic of evidence upon which rules are formulated. One rule is that only the facts bearing importance to the matter being heard should be looked into by the courts and second that all facts. that will help the court to reach a decision are admissible unless otherwise excluded likea client confessing to his legal counsel.Among others from ancient Hindu Period, Vasistha recognised 3 kinds of evidence: © Lekhya (Documentary Evidence) © Sakshi ( Witnesses) © Bukhti (Possession) © Divya (Ordeals) Though the concept of justice in Islam is that itis a divine disposition, the Mohammedan law givers have dealt with evidence in various forms: © Oral that may be Direct Hearsay © Documentary (Less preferred than oral) Initially at many places and in many beliefs, the parties to litigation would fight each other and it was believed that divine help will come to the rightful party. Trial by battle has been abrogated only in 1817. The trials by ordeal included a person on bed of hot coals or putting ones hand n boiling water. Anyone who suffered injury was held to be impure and guilty. Though it was believed that providence will not let harm come to the innocent, often it was the priests who manipulated the tests so that certain people could goscot-free. Iwas believed that ifa guilty man touches the corpse it would show a reaction and then the man should be punished. Accordingly refusal to touch a corpse was also admission of guilt by the accused. ‘The most cruel evidence law existed in Europe with respect to witch hunts and witch craft. The woman suspected of being a witch was tied up and thrown into pond. Ifshe floated p, she was a witch and was burned alive at stake. Ifthe woman were to sink to the bottom of the pond, she was nota witch. Unfortunately she would be dead by then but nevertheless innocent in the eyes of law. Confessions due to torture are not unknown today either. THE MODERN LAW AS IT PREVAILS The concrete evidence of the ‘law of evidence’ comes from the times of the Britishers. In 1837, an Act was a passed whereby even a convicted person was allowed to give evidence. Subsequently, parties to litigation could be witnesses for their respective sides. Charles Dickens ridiculed this law and questioned the honesty of such witnesses. After all, who will testify against himself or to his disadvantage? Between 1835 and 1855, there are eleven Acts that touch upon the subject of law of evidence. And these were consolidated. In 1856, Sir Henry Summer Maine, the then law member of the Governor General's Council was asked to prepare and Indian Evidence Act. His draft was found unsuitable for the Indian conditions. So it fell to Sir James Fitzjames Stephan who became the law member in 1871 to come up with the Indian Evidence Act. His draft bill was approved and came into being as the Indian Evidence Act, 1872 and came into force from Ist September 1872. Before independence, many states had already accepted this law as the law in their respective state. After independence, the Indian evidence Act was held to be the law for all Indian courts Indian Evidence Act (IEA) makes provisions about rules regarding evidence and applies to all judicial proceedings in or before any court including court martial. However, if the court martial is done under- Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934, the Air Force Act, then it will have no application over these laws. It may also be noted that Evidence Act does not apply on affidavits presented to any Court or Officer, nor it applies to any proceedings before an arbitrator. 3CONSTITUTIONAL PERSPECTIVE OF EVIDENCE Clause (3) of Article 20 of the Indian Constitution, 1950 provides that “No person accused of any offence shall be compelled to bea witness against himself.” This principle isespoused onthe maxim “nemoteneteur prodre accussare seipsum”, which essentially means “NO MAN IS BOUND TO ACCUSE HIMSELF."| The Fundamental Right guaranteed under Article 20(3) is a protective umbrella against testimonial “Compulsion for people who are accused of an offence and are compelled to be a witness against themselves. The provision borrows from the Fifth Amendment of the American Constitution which lays down that, “No person shall be compelled in any criminal case to be a witness against himself”, same as mentioned in the Constitution of India embodying the principles of both English and American Jurisprudence. This libertarian provision can be connected to an essential feature of the Indian Penal Code based on the lines of ‘Common Law that, “an accused is innocent until proven guilty” and the burden is on the prosecution to establish the guilt of the accused; and that the accused has a right to remain silent which is subject to his much broader right, against self-incrimination. ‘The tendency of Indian legal system manifests skepticism of the police system. Thisis the reason confessions ofan accused is only admissible if recorded by a Magistrate in accordance with an elaborate procedure to ensure that they are made voluntarily. Protection is also accorded by the provisions of The Indian Evidence Act. This protection is available to every person including not only individuals but also companies and incorporated bodies. ‘This clause gives protection only ifthe following ingredients are present: _Itisaprotection available to a person accused of an offence; © _ Itisa protection against compulsion to be a witness against oneself; and ¢ It isa protection against such “Compulsion” as resulting in his giving evidence against himself. Person accused of an offence ‘Apperson accused of an offence means a ‘person against whom a formal accusation relating to the commission. of an offence has been leveled, which may result in prosecution”. Formal accusation in India can be brought by lodging of an F.LR or a formal complaint, to a competent authority against the particular individual accusing him for the commission of the crime. It is only on making of such formal accusation that Clause (3) of Article 20 becomes operative covering that person with its protective umbrella against testimonial compulsion. It is imperative to note that, “a person cannot claim the protection if at the time he made the statement, he was not an accused but becomes an accused thereafter.” Article 20 (3) does not apply to departmental inquiries into allegations against a government servant, since there is no accusation of any offence within the meaning of Article 20 (3). Self-incrimination has been extensively discussed in the case of Nandini Satpathy v. P.L Dani. In this case, the appellant, a former Chief Minister of Orissa was directed to appear at Vigilence Police Station, for being examined in connection to a case registered against her under the Prevention of Corruption Act, 1947 and under. 161/165 and 120-Band 109 of The Indian Penal Code, 1860. Based on this an investigation ‘was started against her and she was interrogated with long list of questions given to her in writing. She denied to answer and claimed protection under Article 20(3). The Supreme Court ruled that the objective of Article 20(3) is to protect the accused from unnecessary police harassment and hence it extends to the stage of police investigation apart from the trial procedure.Further, this right to silence is not limited to the case for which the person is being examined but also ‘extends to other offences pending against him, which may have the potential of incriminating him in other matters. It was also held that the protection could be used by a suspect as well. Protection against compulsion to be a witness (he protection contained in Article 20(3) is against compulsion “to be a witness” against oneself. In M.P Sharma v. Satish Chandra, the Supreme Court gave a wide interpretation of the expression “to bea witness” which was inclusive of oral, documentary and testimonial evidence. The Court also held that the protection not only covered testimonial compulsion in the Court room but also included compelled testimony previously obtained from him] To be a witness-- Furnishing Evidence In MP Sharma's case it was held that, Article 20 (3) was directed against self-incrimination by the accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in the Court. Exception It follows that giving thumb impressions, or impression of foot or palm or fingers or specimens of writings or exposing body for the purpose of identification are not covered by the expression ‘to be a witness’ under Article 20(3). The Court distinguished ‘to be a witness’ from ‘furnishing evidence’, and interpreted the former to mean imparting knowledge in respect of relevant facts by an oral statement or statement in writing made or given in court or otherwise. The latter included production of documents or giving materials which might be relevant at atrial to determine the guilt or innocence of the accused. Analysis ‘Thus, self-incrimination in context of Article 20(3) only means conveying information based upon personal knowledge of the person giving information. But where an accused is compelled to produce a document in his possession which is not based on the personal knowledge of the accused, in such a case there is no violation of Article 20(3). Searches & Seizures [IVs Kuttan Pillai v. Ramakrishnan, the Supreme Court held that search of the premises occupied by the accused without the accused being compelled to be a party to such a search would not be violative of the constitutional guarantee enshrined in Article 208} Section 27 of the Indian Evidence Act, 1872 $.27 of the Indian Evidence Act, 1872, provides that during investigation when the discovery of evidence by the police is led by some fact that was disclosed by the accused then so much of the information as relates to the facts discovered, may be proved irrespective of the fact whether that information amounts to a confession of not. It was held that the provisions of this section are not prohibited within the scope of Article 20(3) unless compulsion had been used in obtaining the information. Compulsion to give evidence “against himself” [te protection under Article 20(3) is available only against compulsion of the accused to give evidence against himself. Thus, if the accused voluntarily makes an oral statement or voluntarily produces 5documentary evidence, incriminatory in nature, Article 20(3) would not be attiacted. The term compulsion under Article 20(3) means ‘duress’. Thus, compulsion may take many forms. If an accused is beaten, starved, tortured, harassed etc. to extract a confession out of him/her then protection under Article 20(3) can be sought/A case at hand would be Mohd. Dastagir v. State of Madras where the appellant went tothe residence ofthe Deputy Superintendent of Police and handed him an envelope. On opening the envelope, the DSP found cash in it, which meant that the appellant had come to offer bribe to the officer. The DSP refused it and asked the appellant to place the envelope and the notes on the table, and he did as told, after which the cash was seized by the Police..In this case the Supreme Court held that, the accused wasn’t compelled to produce the currency notes as no duress was applied on him. Moreover the appellant wasn't even an accused at the time the currency notes were seized from him. Hence in this case the scope of Article 20(3) was not applicable. Tape Recording of statements made by the accused If statements recorded are made by the accused, without any duress, with or without his knowledge are not hit by Article 20(3). Scientific tests - involuntary? The issue of involuntary administration of certain scientific techniques, like narco-analysis tests, polygraph examination, etc. for the purpose of improving investigation efforts in criminal cases has gained a lot of attention. For a long time, there was a debate about whether such tests were violative of Article 20(3) or not and the same issue were brought to the Supreme Court in the case of Selvi v. State of Karnataka. In this case the Hon'ble Chief Justice, Justice K.G Balakrishnan spoke of behalf of the Apex Court, and drew the following conclusions: © — The right against self-incrimination and personal liberty are non-derogable rights, their enforcement therefore is not suspended even during emergency. © Theright of police to investigate an offence and examine any person do not and cannot override constitutional protection in Article 20(3); © The protection is available not only at the stage of trial but also at the stage of investigation; ‘© Thatthe right protects persons who have been formally accused, suspects and even witnesses who apprehend to make any statements which could expose them to criminal charges or further investigation; © The law confers on ‘any person’ who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that itis for the person being examined to decide whether the answer to particular question would be inculpatory or exculpatory; © Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings; © Compulsory narco-analysis test amounts to ‘testimonial compulsion’ and attracts protection under Article 203); © Conducting DNA profiling is not a testimonial act, and hence protection cannot be granted under Article 20(3);© That acts such as compulsory obtaining signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification. orcorroboration; © That subjecting a person to polygraph test or narco-analysis test without his consent amounts to forcible interference with a person's mental processes and hence violates the right to privacy for which protection can be sought under Article 20(3); ¢ That courts cannot permit involuntary administration of narco-tests, unless itis necessary under public interest. [Article 20 (3), invokes protection against self-incrimination and gives an accused the right to remain silent ‘Gver any issue which tends to incriminate him. This protection by the Indian Constitution is also extended to suspects. Article 20 clause 3, has been carefully drafted to protect the accused from further self- incriminating himself only if any statement of his might result in prosecution,]For the benefit of the Courts, the Supreme Court has distinguished between the terms “witness” and “furnish evidence”, the former including furnishing statements from one’s own knowledge and the latter referring to simply presenting documents required by the court under which protection under Article 20(3) cannot be sought. In addition it stretches its privileges toa person who is compulsorily being made a witness and also covers searches and seizures wherein, an accused or the person being searched is under no obligation to be a part of the search. Ifany confession or a mere statement is made based on which some material corroboration is found then that statement cannot be protected under Article 20(3). Under the law, an accused cannot be tortured to make a statement or a confession and no duress can be exercised in order to obtain some information out of him, in such a case the statement would be void and the privileges under Article 20(3) would be applicable. Narco-analysis tests, polygraph analysis etc. which refer to involuntary administration of mental processes, are considered violative of Article 20(3) and can only be done in a few cases as it disrupts the right to privacy. But with the advancement in medical sciences, the certainty of such scientific tests has increased and the author thinks that they provide an effective tool to furnish evidence which help in speedy disposal of cases. By balancing the harmony between the protective rights and the need for speedy disposal. KINDS OF EVIDENCES & WITNESSES (Evidence includes everything that is used to determine or demonstrate the truth of an assertion, Giving or procuring evidence is the process of using those things that are either (a) presumed to be true, or (b) which were proved by evidence, to demonstrate an assertion’s truth. Evidence is the currency by which one fulfills the burden of proof) (i law, the production and presentation of evidence depends first on establishing on whom the burden of proof lays. Admissible evidence is that which a court receives and considers for the purposes of deciding a particular case,|T wo primary burden-of- proof considerations exist in law. The first is on whom the burden rests. In many, especially Western, courts, the burden of proof is placed on the prosecution| The second consideration is the degree of certitude proof must reach, depending on both the quantity and quality of evidence. These degrees are different for criminal and civil cases, the former requiring evidence beyond reasonable, the latter considering only which side has the preponderance of evidence, or whether the proposition is more likely true or fee decision maker, often a jury{ but sometimes a judge, decides whether the burden of proof has beri Fulfilled. After deciding who will carry the burden of proof, evidence is first gathered and then presented before the court. ]Different Forms of Evidence 8) Oral Evidence~All those statements which the court permits or expects the witnesses to make in his. presence regarding the truth of the facts are called Oral Evidence. Oral Evidence is that evidence which the witness has personally seen or heard. Oral evidence must always be direct or positive. Evidence is direct when it goes straight to establish the main fact in issue. '§h) Documentary Evidence All those documents which are presented in the court for inspection such ‘documents are called documentary evidences. In a case like this itis the documentary evidence that would show the actual attitude of the parties and their consciousness regarding the custom is more important than any oral evidence. (0) Primary Evidence- Primary Evidence is the Top-Most class of evidences. It is that proof which in any possible condition gives the vital hint in a disputed fact and establishes through documentary evidence on the production ofan original document for inspection by the court. It means the document itself produced for the inspection of the court. In Lucas v. Williams Privy Council held “Primary Evidence is evidence which the law requires to be given first and secondary evidence is the evidence which may be given in the absence of that bettet evidence when a proper explanation of its absence has been given.” (@) Secondary Evidence-Secondary Evidence is the inferior evidence. It is evidence that occupies a secondary position. Its such evidence that on the presentation of which itis felt that superior evidence yet remains to be produced. It is the evidence which is produced in the absence of the primary evidence therefore it is known as secondary evidence. Ifin place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by secondary evidence. But where there is no secondary evidence as contemplated by Section 66 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence.” (6) Real Evidence- Real Evidence means real or material evidence. Real evidence of a fact is brought to 1e knowledge of the court by inspection of a physical object and not by information derived from a witness or a document. Personal evidence is that which is afforded by human agents, either in way of disclosure or by voluntary sign. For example, Contempt of Court, Conduct of the witness, behavior of the parties, the local inspection by the court. It can also be called as the most satisfactory witness. Hearsay Evidence- Hearsay Evidence is very weak evidence. It is only the reported evidence of a Avitness which he has not seen either heard. Sometime it implies the saying of something which a person has heard others say. In Lim Yam Yong v. Lam Choon & Co. The Hon'ble Bombay High Court adjudged “Hearsay Evidence which ought to have been rejected as irrelevant does not become admissible as against aparty merely because his council fails to take objection when the evidence is tendered.” So finally we can assert that Hearsay Evidence is that evidence which the witness has neither personally seen or heard, nor has he perceived through his senses and has come to know about it through some third person. There is no bar to receive hearsay evidence provided it has reasonable nexus and credibility. When a piece ofevidence is such that there is no prima facie assurance of its credibility, it would be most dangerous to act upon it. Hearsay evidence being evidence of that type has therefore, to be excluded whether or not the case in which its use comes in for question is governed by the Evidence Act. Giudicial Evidence- Evidence received by court of justice in proof or disproof of facts before them is called judicial evidence. The confession made by the accused in the court is also included in judicial evidence. Statements of witnesses and documentary evidence and facts for the examination by the court are also Judicial EvidenJudicial Evidence- Any confession made by the accused outside the court in the presence of any person or the admission of a party are called Non-Judicial Evidence, if proved in the court in the form of Judicial Evident) @ Direct Evidence- Evidence is either direct or indirect [Direct Evidence is that evidence which is very important for the decision of the matter in issue. The main fact when it is presented by witnesses, things and witnesses is direct, evidence whereby main facts may be proved or established that is the evidence of person who had actually seen the crime being committed and has described the offence) The evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police only is called circumstantial evidence of, complicity and not direct evidence in the strict sense. @ Circumstantial Evidence or Indirect Evidence- There is no difference between circumstantial evidence and indirect evidence. Circumstantial Evidence attempts to prove the facts in issue by providing other facts and affords an instance as to its existence. It is that which relates toa series of other facts than the fact in issue but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory conclusion. In Hanumant v. State of Madhya Pradesh, The Hon'ble Supreme Court Observed, “In in dealing with circumstantial evidence there is always the danger that suspicion may take the place of legal proof. It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance , be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In other words there can be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” In the case of Ashok Kumar v. State of Madhya Pradesh, the Hon'ble Supreme Court held- (1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. (2) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of accused. (3) The circumstances, taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) The Circumstantial Evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Direct Evidence V. Circumstantial Evidence Ge question that which evidence is superior is going from a long time, on this subjects jurists differ in ir views. Some jurists hold that direct evidence is superior evidence. When a particular says that he had seen a particular event happening then undoubtedly his evidence is superior, but even relying on direct evidence at once is also hazardous because a witness can make a completely false statement. In the same manner in the case of circumstantial evidence circumstances are also proved by witnesses. Particularly the manner in which the court draws inferences from circumstances they can be wrong and also and thus circumstances also become false. |In the case of Kallu v. State Of Uttar Pradesh, the accused was tried for the murder of the deceased by shooting him with a country made pistol. A cartridge was found near the bed of the deceased. The accused was arrested at a distance of 14 miles from the village which was the place of occurrence. He produced a pistol from his house which indicated that he could have alone have known of its existence there. The fire- arms expert proved that it was the same pistol from which the shot was fired and deceased was killed. The Hon'ble Supreme Court while convicting the accused held “Circumstantial Evidence has established that the death of the deceased was caused by the accused and noone else.” Different Kinds of Witnesses ‘The witness can be divided mainly into two categories- (1) Eye Witness (2) Circumstantial Witness Witness can be further divided into following kinds- (1) Prosecution Witnese- Prosecution is the institution or commencement of criminal proceeding and the process of exhibiting formal charges against an offender before a legal tribunal and pursuing them to final judgment on behalf of the state or government by indictment or information. A prosecution exists until terminated in the final judgment of the court to write the sentence, discharge or acquittal, a witness which appears on behalf of the prosecution side is known asa Prosecution Witness. (2) Defense Witness- Defense side in a criminal proceeding is opposing or denial of the truth or validity of the prosecutor's complaint, the proceedings by a defendant or accused party or his legal agents for defending himself. A witness summoned on the request of the defending party is known as a Defense ‘Witness. (3) Expert Witnese- An ‘expert’ is not a ‘witness’ of fact. His evidence is really of an advisory character. The duty of an ‘expert witness’ is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data furnished which form the basis of his conclusions. (4) Bye Witness A witness who gives testimony to facts seen by him is called an eye witness, an eye witness is a person who saw the act, fact or transaction to which he testifies. An eye witness must be competent (legally fit) and qualified to testify in court. A witness who was intoxicated or insane at the time the event occurred will be prevented from testifying, regardless of whether he or she was the only eyewitness to the occurrence. Identification of an accused in Court by an ‘Eye witness’ is a serious matter and the chances of a false identification are very high. Where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although asa rule of prudence courts call for corroboration. “It isa platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.” “Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, 10then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in and no amount of corroboration can cure that defect.” ‘Ona conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis of the statement ofa single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he isa truthful witness. The court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred ata time or place when there was no possibility of any other eye witness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence.” (5) Hostile Witnese-The witness who makes statements adverse to the party calling and examining him and who may with the permission of the court, be cross examined by that party. Now it istrue that in Coles v. Coles, and it may be in other cases, a hostile witness has been described as a witness who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court. This. is nota very good -definition of a hostile witness and the Indian Evidence Act is most careful in Section 154 not to restrict the right of ‘cross-examination’ even by committing itself to the word ‘hostile’. This Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In State of U.P. v, Ramesh Prasad Misra the Supreme Court held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted. In Balu Sonba Shinde v. State of Maharashtra 2003 SCC (Crl.) 112 the Supreme Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance. The testimony of hostile witness has to be tested, weighed and considered in the same manner in which the evidence of any other witness in the case. Thus we can finally conclude that in order to provide justice Evidence and witnesses are very necessary and they hold a very important place in the Law. With the help of Evidence the judge reaches a verdict. The evidence heard by the court is the most important factor in determining whether the judgment will be in favour of Prosecution side or Defense side. 6) Child witness In State v Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967) it was observed that the burden of proving incompetence is on the party opposing the witness. Courts consider 5 factors when determining competency ofa child witness. Absence of any of them renders the child incompetent to testify. They are (1) anunderstanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) _amemory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) _thecapacity to understand simply questions about it. 11PRESUMPTIONS OF LAW” AND “PRESUMPTIONS OF FACT Presumption ‘An idea that is taken to be true on the basis of probability PRESUMPTION a] Of law Of tacts (May presume) Rebuttable Irrebuttable [Sections 86, 87, 88, (Shall preeume) (Conclusive proof) 90 and 114) (Sections 79 to [Sections, 41, 112. 85, 89, 105] 113) Presumptions of Law: 1. Discretion of Court — No discretion is vested in the Court at all. The law peremptorily requires a certain inference to be made whenever the facts appear which the law assumes as the basis of the inference. 2. Rules of law — Presumptions of law are, in reality rules of law and part of the law itself. 3. Presumptions of law must be drawn. 4. Kinds — There are two kinds of presumptions of law — rebuttable and irrebuttable. Presumptions of Fact: 1. A discretion, more or less extensive as to drawing the inference, is vested in the tribunal. 2. Presumptions of fact are not rules of law. 3. Presumptions of fact may or may not be drawn. 4. There is no such division in the case of presumptions of fact Conclusive presumptions are inferences which the law makes so peremptorily that it will not allow them to be overturned by any contrary proof, however strong. Rebuttable presumptions are rules defining the nature and the amount of the evidence which is sufficient to establish a prima facie case and to throw the burden of proof upon the other party; and, if no opposing evidence is offered, the Court is bound to come to a conclusion in favour of the presumption. ‘Mixed presumptions or presumptions of law and fact, lie in- between the above two, and consist mainly of certain presumptive inferences which attract the observation of the law. 12‘Presumption’ and ‘Proof: “Proof” is that which leads to the conclusion as to the truth or falsity of alleged facts which are the subject of inquiry. Proof may be effected by (1) evidence, (2) admissions, or (3) judicial notice. Thus, presumptions are the means, and proof is the end, of judicial inquiry. Presumption is merely an inference. When a rebuttable presumption operates in favour of a party, it is for the opponent to disprove it by adducing evidence to the contrary. FEATURES OF THE INDIAN EVIDENCE ACT ‘The Indian Evidence Act or The Law of Evidence is a subject which cannot be understood without understanding these important features which forms the basis of the Law of Evidence. For a good Lawyer skills and hands on the subject these features are a must on tips. Only then can you jump onto the next level tounderstand and study the Law of Evidence ‘These important features are- Court Fact Relevant fact Facts in issue Per- Document 2 of flu Evidence . Proved - Disproved cae Not proved 10. Affidavit 11. Motive 12. Circumstantial Evidence 13. May presume 14. Shall presume 15. Conclusive proof 1) Court- Court includes all Judges and Magistrates, and all persons except Arbitrators, legally authorized to take evidence. A Court is a governmental institution with the authority to decide legal disputes between the parties. All kinds of persons are free to bring their disputes to the court and seek a fair judgment. The Judiciary is the system who interprets and applies the Law. The place where the court sits is known as a venue. The room where the court proceedings are held is known asa Court room. A Court is constituted bya minimum of three parties- Pern avr ene © The Plaintiff-isa person who complains for an injury caused to him. © The Defendant-is a person who defenses himself against the complaint made by the plaintiff against the defendant and, — The/Judicial power-which is to examine the truth of the fact and deliver a judgment. © Besides this Advocates of both the parties. 132) FACT- (Gection 5 of IEA, provides that evidence may be given on fact in issue ot on relevant facts but no other facts. Ir means, during trial parties are allowed to prove fact in issue, relevant facts but they are not allowed to prove anything which is neither\ Facts: means anything or state of things or relations of thing which can be perceived by senses (see, touch, taste, hear, and smell). Particular ‘state of mind’ is also a fact. Examples of facts: The term “fact” means and includes- Anything, state of things, or relation of things, capable of being perceived by the senses; any mental condition of which any person is conscious. Example- ‘That man heard or saw something, isa fact. ‘That a woman has a certain reputation is a fact. The jar kept on the table, is a fact. eoee ‘That a man holdsa certain opinion, has a certain intention, acts in good faith, acts fraudulently, or uses a word in a particular sense, or is or was at a specified time conscious ofa particular sensation, isa fact. © That girl has so and so name, is a fact. 3) Relevant fact- ‘A factis said to be relevant to another when one fact is connected with the other fact in any ways referred tojin the provisions of this act in the chapter of relevancy of facts. Relevant fact-The word ‘relevant’ means that any two facts to which itis applied are in such a way related to each other that, one, either taken by itself or in connection with the other facts, proves or renders probability of the past, present or future existence or non-existence of the other{ Relevant’ means admissible in evidence. Of.ll the rules in evidence the most important is that the evidence adduced should be confined only to the matters which are in dispute, or which form the subject of investigation However, itis to be noted here that every facts connected with ‘facts in issue’ is not relevant, unless the said fact is connected with ‘facts in issue’ in the same way as. described in section 6-55 of IEA. Categories of relevant facts are: Facts forming part of same transactions Certain Statements like admission, confession or dying declarations Earlier judgment pertaining to the said cause of action Opinion of expert of facts disputed Character of parties 4) Facts in issue- yeene Defined under section 3 of IEA, which simply means those facts which can establish right, duty, liabilities or obligations. ‘The expression “facts in issue” means and includes—any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. 14Explanation —Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, isa fact in issue. ‘Thus, ina dispute relating to possession of house, ownership would be fact in issue, since once the ownership is decided, who should have possession can easily be decided just by application of law. In criminal law, ingredients of an offence are facts in issue’. Say example, in case of murder, whether death is caused or not, whether death was caused with same intention as required by section 300 IPC or not? Whether accused is entitled for any right of private defense or not? These are ‘facts in issue’. Example given in the IEA is: Illustrations @ — Aisaccused of the murder of B. At his trial the following facts may be in issue:- © That A caused B’s death; (will fix the liability as required by section 300 IPC) © That A intended to cause B's death; ( will fix the liability as required by section 300 IPC) © ThatA had received grave and sudden provocation from B; (will reduce the liability as provided in section 300 IPC) © ThatAatthe time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature. (will absolve from any liability since it general exception toany offence and a very good defense) 5) Document- The term “document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Example- © Writing is a document; © Words printed, lithographed or photographed are documents; © Amaporplan isa document; ¢ _Aninscription on a metal plate or stone isa document; . A caricature is adocument. The term document includes all material substances on which thoughts of the people are expressed by writing or in any other way, by a mark ora symbol. For instance, the wooden board on which the bakers, the milk men, indicate by notches, the number of loaves of bread or liters of milk supplied to the customers, are documents. 6) Evidence- ‘The word ‘Evidence’ has been derived from the Latin word ‘evidere’ which implies to show distinctly, to make clear to view or sight, to discover clearly, to make plainly certain, to certain, to ascertain, to prove. According to Sir Blackstone, ‘Evidence’ signifies that which demonstrates, makes clear or ascertain the truth of the facts or points in issue either on one side or the other. According to Sir Taylor, Law of Evidence means through argument to prove or disprove any matter of fact. ‘The truth of which is submitted to judicial investigation. 15Section 3 of The Indian Evidence Act, defines evidence in the following words- Evidence means and includes- (1) All the statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry; such statements are called Oral evidence; (2) All the documents including electronic records produced for the inspection of the court; such documents re called documentary evidence; The definition of Evidence given in this Act is very narrow because in this evidence comes before the court by two means only- (1) The statement of witnesses. 2) Documents including electronic records. But in them those things have not been included on which a Judge or a Penal authority depends for this position. The Hon'ble Supreme Court of India in Sivrajbhan v. Harchandgir held “The word evidence in connection with Law, all valid meanings, includes all except agreement which prove disprove any fact or matter whose truthfulness is presented for Judicial Investigation. At this stage it will be proper to keep in mind that where a party and the other party don’t get the opportunity to cross-examine his statements to ascertain the truth then in such a condition this party's statement is not Evidence.” 7) Proved- A fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. When the Court believes it to exist, it means itis proved beyond reasonable doubt. In the case of criminal proceeding the guilt of the accused is tobe proved beyond reasonable doubt. In civil proceedings proving beyond reasonable doubt is not necessary, only balancing of possibilities and probabilities is sufficient. The meaning of proved means positive findings. 8) Disproved- ‘A factis said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. Disproved is contrary to proved. It also means negative findings. In disproved the existence of such fact is not proved but its non-existence is proved. 9) Not Proved- A fact is said not to be proved when it is neither proved nor disproved. There is no positive or negative findings. [tis situation where the parties fail to explain precisely, how the matter stands. 10) Affidavit- An affidavit isa written statement made voluntarily by an affiant or deponent under an oath administered by a person who is legally authorized to do so. Affidavits are confined only to those facts which the deponent is able of his own knowledge to prove. An affidavit filed by a party cannot be termed as evidence. Affidavits cannot be used in evidence. It can only be used if the Court permits to be used for sufficient reasons. 1611) Motive- ‘A motive in law is the cause that moves the people to commit a certain act. The motive isa very essential factor to be seen behind every act, specially a criminal act committed. It can be explained with the help of an example- Rekha, who was the owner's daughter, was killed by the tenant dheeraj, who had a evil eye on Rekha. Dheeraj had tried to rape Rekha but Rekha managed to escape and told her mother about the incident on account of which Rekha’s father abuseingly told dheeraj to vacate the house immediately. This may be taken as the motive of the Murder. If the prosecution is able to prove the motive, then the Court has to consider it and see whether it is adequate or not. Where there isa direct evidence, the evidence of motive is not of much significance. 12) Circumstantial evidence- It is one of the well established fact in law that the witness may lie but the circumstances never lie. Itis not necessary that a direct ocular evidence is needed to prove that a person was behind the crime. The guilt of a person can also be proved by circumstantial evidence. For conviction in the case of circumstantial evidence the following conditions must be accomplished. They are- ‘The circumstances from which the conclusion of the guilt isto be drawn should be fully established. © The actsestablished should be consistent and they should not be explainable on any other hypothesis except that the accused is guilty. © Thenature ofthe circumstances should be conclusive. © They should include only the facts which are to be proved. © There must be a chain of evidence completely showing that in all human probability the act must have been done by the accused. 13) May Presume- (ite term “may presume” means that the Court has the authority to presume the fact as proved, or to call ‘upon for a confirmatory evidence, as the circumstances require. In such a case the presumption is not a hard and fast presumption, incapable of rebuttal. Such presumptions in law are called as ‘juris et de jury’. The Court may presume a fact or regard such fact as proved, unless it is disproved, or it may ask for its 14) Shall Presume- ‘When a Court presumes a certain fact it has no other option except considering the fact as proved unless evidence is given to disprove that fact. The party interested in disproving that fact can produce evidence if he can. In such a case the Court will have the power to allow the opposite party to disprove the fact which is presumed as proved and if the opposite party is successful in disproving the fact then the Court shall not presume the fact. The words “shall presume” indicates that presumption therein is unrebuttable. 15) Conclusive Proof- ‘When one fact is declared by this act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.EXTENT AND APPLICATION OF EVIDENCE ACT SECTION 1 Whole of India- except state of Jammu and Kashmir Applies to all judicial proceedings in or before any court including court martial, but not to affidavits nor the proceedings before an arbitrator. Judicial proceedings: Includes any proceeding in the course of which evidence is or may be legally taken onoath. © Administrative Tribunals- not bound to follow the technical rules of evidence ~ principles of natural justice © Commission of inquiry- not bound to follow the technical rules of evidence — principles of natural justice © Income tax tribunals- certain powers of civil court exercised in certain specified matter- judicial proceedings only for limited purposes- bound to follow the technical rules of evidence for limited Purpose. © Election tribunals- bound to follow the technical rules of evidence ~subject to the provisions of the Representation of Peoples act Industrial tribunals- deemed to be judicial proceedings - bound to follow the technical rules of evidence © Departmental proceedings- not bound to follow the technical rules of evidence - principles of natural justice © Court martial- act applies to court martial proceedings other than the court martial convened under the Army Act, the Naval Discipline Act, or the Indian Navy (Discipline)Act 1934 or the Air Force Act. Evidence law applies to all native court martial but not to foreign court martial. © Affidavits- not bound to follow the technical rules of evidence — principles of natural justice © Arbitration proceedings- not bound to follow the technical rules of evidence - principles of natural just 18COMMENCEMENT OF THE ACT ISeptember 1872 OF THE RELEVANCY OF FACTS Section 5 Evidence may be given of facts in issue and relevant facts Theory of relevancy of facts Evidence may be given in any suit or proceeding of the existence of non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. Explanation. —This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure. Frusstra probatur quod probatum non relevant Tt would be frustrating and disgusting to prove facts which are irrelevant. Ilustrations A is tried for the murder of B by beating him with a club with the intention of causing his death. At A’s trial the following facts are in issue:-— A’s beating B with the club; A's causing B's death by such beating; A’s intention to cause B's death. SCHEME OF INDIAN EVIDENCE ACT Three broad categories, firstly what to prove (5 t0 55), Secondly, Who to prove (100-115), Lastly how to prove (rest of IEA). PRINCIPLE OF RES GESTAE inciple of Res gestae in English law all facts which are connected through ‘part of the same transaction’ are called as evidence of ‘res gestae’, however in India such facts are codified from section 6 to section 11. Res Gestae in IEA are: Facts forming part of same transaction (section 6) Facts which are occasion, cause or effect of facts in issue (Section 7) Facts suggesting Motive, preparation and previous or subsequent conduct (Section 8) Facts necessary to explain or introduce relevant facts (section 9) ‘Things said or done by conspirator in reference to common design (Section 10) ‘When Facts not otherwise relevant become relevant because these facts make other facts in issue orany relevant fact either highly probable or highly improbable (section 1 19 ay eweFacts forming part of same transactions (Section 6): [Facts which, though notin issue, are so connected with a fact in issue as to form part of the same transaction “Gre relevant, whether they occurred at the same time and place or at different times and places. All facts which are connected with the ‘facts in issue’ due to: 1. Proximity of time 2. Proximity ofplace 3. Continuity of action 4, Purposes, whether happen at same time and place or different time and different place ‘Then, they are said be ‘part of the same transactions. | For example (@) ("Ais accused of the murder of B by beating him. Whatever was said or done by A or Bor the by- inders at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact. (b) Aisaccused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them. (©) - Asues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which itis contained, are relevant facts, though they do not contain the libel itself (@) The question is whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery isa relevant fact. [Facts which are occasion, cause or effect of facts in issud| (Section 7): “These facts are those which provide either occasion or cause or create effect over ‘facts in issue’. For example in murder case, ‘presence’ of accused and victim at the place of occurrence at same time or accused ‘*having gun’, at given time, or ‘altercation between’ accused and victim are the facts proving occasion, and thus they are relevant in this section. ‘Firing’ of bullet is cause of death, so ‘firing’ as such is a relevant fact; ‘firing of bullet’ may have effect of causing death or serious injuries, here injuries or death is effect of ‘firing of bullet’, so such injuries are relevant facts. Illustrations @The question is, whether A robbed B. ‘The facts that, shortly before the robbery B went to a fair with money in his possession, and that he showed itor mentioned the fact that he had it, to third persons, are relevant. (b) The question is, whether A murdered B. ‘Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts. (c) The question is, whether A poisoned B. ‘The state of B's health before the symptoms ascribed to poison and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts. 20Facts suggesting Motive, preparation and previous or subsequent conduct (Section 8): (Facts suggesting motivp (say example previous fighting, property dispute, love affair, family dispute, business rivalry etc.)6r preparatio) (say example just before the murder accused purchased a gun or bullets, or took training for shooting, or in case of forgery, he purchase few stamp papers to forged a sale deed etc) (orconduct, whether previous or subsequent of the parties are also relevan) (examples of previous conducts Tike, previous attempts, any fights; example of subsequent conduct such as being missing from house after committing murder, suspicious act of hiding himself or certain goods used for the offence etc.) cis important to note that conducts of parties as well as their agents both are relevant in any suit or proceedii@) Illustrations GY A is tried for the murder of B. The facts that, A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant. (b) A sues B upon a bond for payment of money. B denies the making of the bond. The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, itrelevant. (0) Ais tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant. (d) The question is, whether a certain document is the will of A. The facts that not long before the date of the alleged will A made inquiry into matters to which the provisions of the alleged will relate that he consulted vakils in reference to making the will, and that he caused drafts or other wills to be prepared of which he did not approve, are relevant. (e) Ais accused of a crime. The facts, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favorable to himself, on that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, ot suborned persons to give false evidence respecting it, are relevant. Generally, conduct does not include a bare statement, however, if such statement has affected the conduct ofthe parties, then not only such conduct but also statement both will be relevant. For example: (6 The question is, whether A robbed B. The facts that, after B was robbed, C said in A’s presence — “the police are coming to look for the man who robbed B” and that immediately afterwards A ran away, are relevant. (g) The question is, whether A owes B rupees 10,000. ‘The fact that, A asked C to lend him money, and that D said to Cin A’s presence and hearing “Advice you The Orient Tavern to trust A, for he owes B 10,000 rupees” and that A went away without making any answer, are relevant facts. 21