PAHUJA LAW ACADEMY
[LECTURE-3]
[SECTION 14-16]
EVIDENCE OF SIMILAR FACTS
MAINS-QUESTIONS
A sues B for damage done by dog of B. B knows the dog to be ferocious. Whether the fact that
the dog had previously bitten X,Y,Z and they had made complaint to B is relevant ?
EVIDENCE OF SIMILAR FACTS
A fact is said to be similar to another when it is similar to a fact in issue, e.g. if a doctor is sued for negligently performing a surgical operation, a similar facts would be a negligent operation in other cases.
The problem before the law of evidence is whether evidence of similar facts should be allowed or not. The broad general principle is that the evidence of similar facts is not relevant.
Although the rule of exclusion is not specifically laid down in the Act or in any case decided under the Act, yet it seems to be a part of the law and has some obvious reasons to recommend itself.
Position under Indian Evidence Act
The Indian Evidence Act, 1872 does not anywhere mention the words “similar facts”. Since the evidence of similar facts is not “Specifically authorised,” the general rule under the Act in essence would be that the evidence of similar facts is not relevant. The courts have been proceeding on this hypothesis. For example, in Emperor v/s PanchuDas, at the trial of certain persons for robbery and murder, the Calcutta High Court refused to receive evidence of other robberies committed by the same accused in the same style.
Exceptions to exclusion of similar fact evidence.
But the law cannot afford to reject such evidence in all cases. To refer, for example Rex v/s Ball, the accused was tried for incest with his sister. The evidence showed that the parties had occupied the same room and the same bed at a hotel.
It was pointed out that though such evidence was not relevant to the proof of mens rea, it was relevant
under one of the recognized exceptions i.e. to over throw the defence of innocent relations.
Further evidence was then tendered to show that, these persons had previously carnally known each other and had a child in 1908. The object was to establish that the defence of innocent living together as brother and sister ought to fail.
The law tries to solve the problem by engrafting upon the main rule with a number of exceptions, which permit evidence of similar facts to be given. The Indian Evidence act contains no provision against the admissibility of the evidence of similar facts, but the exceptions recognized by the English Common Law are all covered, by one or the other section of the act, which are as follows.
The most important & comprehensive exception is recognized by S. 15 of the Act. The section comes into play two cases :-
In essence, both of these cases come to the same, for it the act was not accidental, it must have been done intentionally or with knowledge.
Facts which establish the identity of anything or person whose identity is relevant, are relevant in so for as there are necessary for that purpose.
The words of the section do not in terms impose any restriction as to nature of facts relevant under the section & therefore facts showing identity will be relevant even if they bring forth the evidence of similar offences on the part of the accused on other occasions. E.g. Choudhary J. observed in his dissenting judgment in Emperor v/s Panchudas:
It was competent for the prosecution in this case to prove facts showing that the two lived together, had business transactions together, that they had visited rich prostitutes together, one of them introducing himself as a rich Babu & the other as his Durwan, that they were the same person although they had given different names. These facts are relevant under S. 9 of Evidence Act for establishing their identity and association.
In England, the House of Lords in, Thompson v R. in relation to a charge of indecency with boys, admitted evidence of similar facts to establish identity.
Exclusion of similar facts evidence rule of practice, not of law:
In conclusion, it will be worthwhile to note that Viscount Simon L.C. in Harrish v. D.P.P., regarded the relevancy of similar facts not as a rule of law but of practice & observed:-
Noor Mohd. v/s The King, in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If so far as that purpose is concerned, it can in the circumstances of the case, have only trifling weight, the judge will be right to exclude it.
Evidence of modus operandi:
Evidence of thief’s modus operandi may be adduced as similar fact evidence to rebut the defence of mistake or accident. The accused even charged with stealing bacon from the shop, this defence was that of mistake. Evidence of similar earlier thefts under the pretence of mistake was allowed, the court saying that there was a sufficient nexus between the offence charged and the earlier offence which served to rebut the defence.
Section 16: Existence of course of business
The law attaches great evidentiary value to any general course of business or office. The effect of the provision is that if an act is shown to have been done in general course of business, the law draws a presumption that the act must have been done.
The presumption that arises in favour of the existence of things shown to have been done, in the earlier of the business is further fortified by illustration (f) to S. 114, which says that the court may presume that the common course of business has been followed in the particular cases.
Rebuttable Presumption: The presumption is, of course, rebuttable the party against whom it is drawn may deny it.
It was argued before the Supreme Court in Mobarik Ali Ahmad v. State of Bombay that the proof of mere posting of a letter is not presumptive evidence of the receipt thereof by the addresses unless there is also proof that the original has not been returned from the dead.
Letter office: Illustration (b) to S. 16 of the Indian Evidence Act, 1872, is relied on for the purposes and it is urged that the combination of two facts is required to raise such a presumption. We are quite clear that illustration only means that each of these facts is relevant. It cannot be read as indicating that without a combination of these facts no presumption can arise. The presumption applies to all kinds of post, whether registered, ordinary or under certificate of posting.
PAHUJA LAW ACADEMY
LECTURE-3
EVEDENCE OF SIMILAR FACTS
MAINS-QUESTION
(a) State of mind
(b) State of body
(c) Bodily feeling
(d) All of the above
(a) Intention and knowledge
(c) Rashness and negligence
(d) None of the above
(a) The previous commission of an offence by the accused is relevant
(b) The previous conviction of the accused is relevant
(d) None of the above
(d) None of the above
(d) None of the above
(a) Rash or negligent
(b) Accidental or intentional
(c) With motive or without motive
(d) All of the above
(a) All the acts have to form part of the same transaction
(b) All the acts have to be part of a series of similar transactions
(c) The accused has been convicted for similar transactions
(d) None of the above
PAHUJA LAW ACADEMY
LAW OF EVIDENCE
CONFESSIONS
PAHUJA LAW ACADEMY
LAW OF EVIDENCE
CONFESSIONS
Allahabad High Court in the case of Emperor v. Balmukund
Can the court if it is of the opinion that the inculpatory part commends itself, and the exculpatory part is inherently incredible, act upon the former and refuse the latter? The answer to the reference was that where there is no evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the court must accept or reject the confession as a whole and can’t accept only the inculpatory element while rejecting the exculpatory element as inherently incredible.
English Law:-
The principle of English Law is that the whole statement must be left to the jury who may attach different weights to different parts of it. The same rule applies in the case of confession.
The Supreme Court of India also appears to have influenced by this development. Its decision in Nishi Kant Jha v. State of Bihar, marks the turning point. The accused was charged with murdering his friend while travelling with him in a train. He was seen washing his clothes in a river flowing near the station where the murder was detected. Blood stained clothes, papers and a knife were recovered from him, and the blood on them agreed with the blood of the deceased. He admitted washing blood- stained clothes, but explained the presence of blood by two contradictory statements. In one of them, he explained that the blood spilled over him while a struggle between two persons in the compartment and one of them was killed. In the other version, he said that a herd boy robbed and injured him.
The Supreme Court upheld the conviction and pointed out that there was nothing wrong in relying on a part of the statement and rejecting the rest, and for his purpose the court drew supper from English authorities. The court did not mean to overrule Palvinder, Hanumat or Balmukund but distinguished the present case from them. Here there was enough evidence to reject the exculpatory part. The explanations were inconsistent in themselves and also with other evidence on record, and were, therefore, so obviously false that there was no chance of justice being miscarried in discarding them.
This approach has been adopted by the Supreme Court in Keshoram v. State.
Form of Confession
A confession may occur in any form. It may be made to the Court itself, when it will be known as judicial confession or to anybody outside the case, in which case it is called on extra judicial confession. It may even consist of conservation to oneself, where may be produced in evidence if overheard by another e.g. Sahoo v. State of U.P. The accused who was charged with the murder of his daughter-in-law with whom he was always quarrelling was seen on the day of the murder going out of the home, saying words to the effect: I have finished her and with her all the quarrels.
It was held to be a confession relevant in evidence, as it is not necessary for the relevancy of confession that it should be communicated to some other person.
The settled view of Supreme Court of India is that as a matter of prudence and caution , which has sanctified itself into a rule of law, a retracted confession cannot be made the sole basis of conviction unless the same is corroborated, but it does not necessarily mean that each and every circumstances mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated, not is it essential that the corroboration must come from the circumstances discovered after the confession was made.
Voluntary and Involuntary confession:-
A confession cannot be used against an accused person unless the court is satisfied that it was voluntary. The court has to be satisfied that at the time of making the confession the accused was a freeman and his movements were not controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession.
If the confession comes within the four corner of S. 24 it is irrelevant and cannot be used against the maker. The essential ingredients of S. 24 are as follows:-
CONFESSION TO POLICE:-
Confessional F.I.R.
Confession in police custody
Confession to police and consequential discoveries
Confession made under promise of secrecy etc. [S. 29]
Confession of co-accused
PAHUJA LAW ACADEMY
LAW OF EVIDENCE
CONFESSIONS
(a). section 24 of Evidence Act
(b) section 25 of Evidence Act
(c) section 26 of Evidence Act
(d) section 27 of Evidence Act.
(a) when the inducement, threat or promise comes from a person in authority
(b) when the inducement is of a temporal kind
(c) when the inducement is spiritual or religious
(d) only (a) & (b) are correct.
(a) section 24 of Evidence Act
(b) section 25 of Evidence Act
(c) section 26 of Evidence Act
(d) section 27 of Evidence Act.
(a) must relate to the same crime for which he is charged
(b) must relate to another crime
(c) may relate to the same crime or another crime
(d) only (a) is correct and (b) is incorrect.
(a) confessions made to custom officers
(b) confession made to a member of Railway Protection Force
(c) confession made to an officer under FERA
(d) all the above.
(a) can be made solely the basis of conviction
(b) cannot be made solely the basis of conviction under any circumstances
(c) can not be made solely the basis of conviction unless the same is corroborated
(d) both (a) & (c) are incorrect.
(a) section 25 of Evidence Act
(b) section 26 of Evidence Act
(c) section 27 of Evidence Act
(d) section 30 of Evidence Act.
(a) if made in the presence of a doctor
(b) if made in the presence of a captain of a vessel
(c) if made in the presence of a Magistrate
(d) all the above.
(a) section 24 of Evidence Act
(b) section 25 of Evidence Act
(c) section 26 of Evidence Act
(d) all the above.
(a) discovery of some fact which the police had not previously learnt from other sources and was first derived from the information given by the accused
(b) discovery of some fact which the police had previously learnt from other sources
(c) discovery of some fact which the police had previously learnt from other sources and the accused has also given information regarding the same
(d) all the above.
PAHUJA LAW ACADEMY
EVIDENCE ACT
MAINS
PAHUJA LAW AVADEMY
DYING DECLARATION
Dying Declaration: Sec. 32 (1)
“When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question”.
BASIS:
lips of dying men”.
There is no rule of law that a dying declaration should not be acted upon unless corroborated. But, ordinarily, it is not considered safe to convict an accused person only on the basis of a dying declaration because of its inherent weaknesses (discussed below):
The circumstances which lend strength and assurance to a dying declaration are as follow:
In Paniben v. State of Gujrat the Supreme Court on the basis of its own earlier decisions has summed up certain guidelines to be followed by the courts while dealing with the dying declarations:
In Ram Nath Madho Prasad v State of M.P. (AIR 1953 SC 420), the Supreme Court observed: “It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination…”
By subsequent decisions, however, the Court has over-ruled its above ruling.
KHUSHAL RAO v STATE OF BOMBAY (AIR 1958 SC 22)
The Supreme Court, agreeing with Madras High Court, laid down the following principles:
Thus, a true and voluntary declaration needs no corroboration.
P.V.Radhakrishna v. State of Karnataka
This court has laid down governing principles (precautions) in several judgments, which could be summed up as under:
Case laws :
Generally under section 60 there are several exception to the rule of excluding hearsay evidence. Section 32 and 33 are also exception to that rule. If a person makes a statement in judicial proceeding or before any person authorised by law to take evidence and afterwards he dies or cannot be found or is kept out of the way by adverse party etc and if the fact stated by him becomes relevant at the latter stage of the same proceeding or another subsequent judicial proceeding that previous statement can be proved without calling that person as a witness.
But the previous statement of such person can be admitted in evidence only when:
Shah Bharat Kumar vs Motilal Gujarat High Court said section 33 will apply when ex Parte decree is set aside.
But in case of Aziz Ahmed v S A Patel (Andhra Pradesh high court) and Malkhan Singh v Raghubir Singh Allahabad High Court when an ex Parte decree is set aside the evidence recorded becomes illegal. Moreover, defendant had no opportunity to cross examine the witnesses. Therefore, the evidence of plaintiff recorded prior to setting aside decree not relevant under section 33.
Gujarat High Court did not consider it necessary to recall his evidence when an ex Parte decree set aside and the defendant did not appear even at the Re instituted proceeding. Delhi also comply with the Gujarat High Court.
CONFLICT BETWEEN SECTION 299 OF CRPC AND SECTION 33 OF INDIAN EVIDENCE ACT.
Nirmal Singh vs State of Haryana Supreme Court held that on mere perusal of section 299 of CrPC deals with record of evidence in absence of the accused and section 33 of the Indian Evidence Act, It must be concluded that the pre conditions in both the sections must be established by the prosecution. It is only the statement of the witness recorded under section 299 of the CrPC before arrest of the accused can be utilised in evidence in trial after the arrest of such accused if it satisfies the condition mentioned under section 299(1).
Thus, Section 299 is one of exceptional procedure of section 33 of Indian Evidence Act 1872. Whether evidence recorded by criminal court may be used by civil court.
PAHUJA LAW ACADEMY
EVIDENCE ACT
PRELIMINARY
(a) section 31 of Evidence Act
(b) section 32 of Evidence Act
(c) section 60 of Evidence Act
(d) section 61 of Evidence Act.
(a) is dead or has become incapable of giving evidence
(b) is a person who can be found but his attendance can not be procured without unreasonable delay or expenses
(c) is a person who cannot be found
(d) all the above.
(a) must relate to the cause of his own death
(b) may relate to the cause of someone else’ death
(c) may relate to the cause of his own death or someone else’ death
(d) both (b) & (c) are correct.
(a) must be competent to testify
(b) need not be competent to testify
(c) may or may not be competent to testify
(d) only (a) is correct and (b) & (c) are incorrect
(a) only in criminal proceedings
(b) only in civil proceedings
(c) in civil as well as criminal proceedings both
(d) in criminal proceedings alone & not in civil proceedings.
(a) can form the sole basis of conviction without any corroboration by independent evidence
(b) can form the basis of conviction only on corroboration by independent witness
(c) cannot form the sole basis of conviction unless corroborated by independent witness
(d) only (b) & (c) are correct.
(a) must be made before a Magistrate
(b) must be made before the police officer
(c) may be made before a doctor or a private person
(d) may be made either before a magistrate or a police officer or a doctor or a private person.
(a) under section 32(1) of Evidence Act
(b) under section 32(2) of Evidence Act
(c) under section 32(4) of Evidence Act
(d) under section 32(7) of Evidence Act.
(a) under section 32(1) of Evidence Act
(b) under section 32(2) of Evidence Act
(c) under section 32(4) of Evidence Act
(d) under section 32(7) of Evidence Act.
(a) as to public rights & customs are admissible
(b) as to private rights & customs are admissible
(c) as to both public and private rights and customs are admissible
(d) only as to customs are admissible.
PAHUJA LAW ACADEMY
EVIDENCE ACT
MAINS
1.Write a short Note on ” Expert Witness”.
PAHUJA LAW ACADEMY
EVIDENCE ACT
What a person thinks in respect of the existence or non existence on a fact is opinion and whatever is presented to the senses of a witness and of which he receives direct knowledge without any process of thinking and reasoning is not opinion. The general principle of law of evidence is that every witness is a witness of fact and not of opinion. This means that a person who appears before a court is entitled to tell the court only the facts of which he has personal knowledge and not his opinion about the fact. He should speak of what he knows and not what he believes.
The Supreme Court of India in Mubarak Ali Ahmed v State of Bombay has preferred to rely upon this reason that if a witness were permitted to express his opinion, it would amount to delegation of judicial function. A witness has to state the facts which he has seen or heard or perceived and not the conclusion which he has formed on observing or perceiving them. The function of drawing inferences is a judicial function and must be performed by the court.
The exception to the rule are more prominent then the rule itself. The courts have been accustomed to act on the opinion of experts from early time. The reason is obvious. There are many matters which require professional or specialised knowledge which the court may not possess and may, therefore, rely on those who possess it.
Section 45 makes the opinion of persons especially skilled in some science,art, foreign law, identity of handwriting and finger impression is relevant, and such person is known as an expert.
An expert is not a witness of fact. His evidence is really of an ‘advisory’ character. An expert opinion will not be read into evidence unless he is examined before the court as a witness and is subjected to cross-examination. Thus the report submitted by an expert does not go in evidence automatically.
State of Maharashtra v Damu Gopinath Shinde ( SC 2000) the sc held that without examining the experts as witness in the court , no reliance can be placed on expert evidence.
PREREQUISITES OF EXPERT EVIDENCE:
Before expert testimony can be admitted two things must be proved namely
When the court is able to form its own opinion the expert opinion is not necessary. But wherein some technical question is involved which can be answered only by a person especially skilled, the expert opinion is necessary.
In order to bring the evidence of a witness as that of an expert, it has to be shown that he made a special study of the subject or acquired a special knowledge of the subject. The section permits only the opinion of an expert to be cited in evidence. Now a question arises who is an expert? The only guidance in the section is that he should be a person especially skilled on the matter. The question of competency of fitness of a witness as an expert is to be decided by the judge. Thus, no formal qualifications are necessary to qualify a witness as an expert. There must be something to show that the expert is a skilled and has an adequate knowledge of the subject.
Subjects on which exports can testify
– The supreme court said that section 45 is sufficient to include that the opinion of a person especially skilled in the use of typewriter and having scientific knowledge of typewriter would be an expert in this science and his opinion about the identity of typewriting for the purpose of identifying particular type writer on which the writing is typed is relevant under section 45 of the act. Further, the type writing is to be read within the meaning of the handwriting in the Act since type has become more common than handwriting on account of ability of the typewriters.
– Mode of proving handwriting
By the evidence of the writer himself.
By the opinion of an expert section 45.
the evidence of a person who is acquainted with the handwriting of the person in question section 47
Under section 73 by the court itself comparing the hand writing.
Value of Expert Opinion
The Evidence Act only provides about the relevancy of expert opinion but gives no guidance as to its value. It is often said that there cannot be any more unsatisfactory evidence than that of an expert. The value of expert opinion suffers from various drawbacks:
These factors seriously reduce the probative value of expert evidence. It would be highly unsafe to convict a person on the sole testimony of an expert. The reliability of such evidence has, therefore, to be tested the same way in which any other piece of evidence is tested. The Supreme Court has laid down following principles in this regard Murari Lal v State of M.P. AIR 1980 SC 531):
It is the duty of the court to remove chaff from the grain [Mohan Singh v State of M.P. (1999) 2 SCC 428]. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of an expert witness depends on the reasons stated in support of his conclusions and the data material furnished which form the basis of his conclusions.
Medical opinion– Opinion of medical officer cannot be taken as contradicting the positive evidence of the witness of the facts. Where the direct evidence about assault by a particular person is satisfactory and reliable medical evidence cannot override that because the latter is hypothetical (Punjab Singh v State of Haryana AIR 1984 SC 1223). However, where the medical report differed from injuries described by the witnesses, medical evidence should prevail (Amar Singh v State of Punjab AIR 1987 SC 726). Between the opinion of two doctors, the opinion which supports direct evidence should be accepted (Piara Singh v State of Punjab AIR 1977 SC 2274).
In Wilayat Khan v State (AIR 1962 SC 121), it was held that expert opinion is not to be believed upon when it is in conflict with direct evidence. It has been held that medical evidence cannot be decisive of the matter. In case of any conflict between eye-evidence and the medical evidence the court will have to go by the evidence which inspires more confidence. Thus, where the eyewitnesses testified to one lathi blow upon the head of deceased, but the medical evidence recorded four external injuries, the court held that the medical evidence was more trustworthy and it showed that the so-called eyewitnesses had not seen the incident.
In respect of nature of injuries and causes of death, most competent witness is the doctor examining the deceased and conducting post-mortem. Unless there is something inherently defective, the court cannot substitute its opinion in place of the doctor’s (Mafabhai N. Raval v State of Gujarat AIR 1992 SC 2186). Where the doctor failed to give his opinion about the nature of injury, the court cannot substitute its opinion assuming the role of an expert [Babloo v State, 1995 CrLJ 3534 (M.P.)].
In Mohd. Zahid v State of T.N. (1999) 6 SCC 120, it was held that while sufficient weightage should be given to the evidence of the doctor who conducted post-mortem examination, the evidence cannot be accepted if it is self-contradictory. The question in this case was whether death was homicidal, suicidal or accidental. The doctor’s opinion was at variance with statements in text books. The prosecution made suggestion to the doctor on the basis of statements found in authoritative textbook. The doctor conducted the post-mortem examination on a decomposed body eight days after it was buried. While the courts below accepted the evidence of the doctor, the Supreme Court did not.
While expert evidence is relevant from the point of view of weight, it is a very weak type of evidence. The court is not bound by the opinion of the medical expert, but has to form its own opinion. In this case, the medical witness ruled out the possibility of two successive blows by a sharp weapon falling at the same place. The court rejected this opinion and accepted the prosecution version [State of Haryana v Bhagirath (1999) 5 SCC 96]. Reliable direct evidence should not be rejected on the hypothetical medical evidence. Where medical evidence shows that there are two possibilities, the one consistent with the direct evidence should be accepted [Anil Roy v State of Bihar (2001) 7 SCC 318]. Credible ocular testimony was preferable to medical opinion [Ramakant Rai v Madan Rai (2003) 12 SCC 395].
The court should see whether the eye-witness account is consistent with the medical evidence and, if not, whether the accused should not get the benefit. The opinion of the medical officer is to assist the court as he is not a witness of fact and the evidence given by him is really of an advisory character and not annihilatory of the witness of fact [Vishnu v State of Maharashtra (2006) 1 SCC 283].
Admissibility of the result of a scientific test will depend upon its authenticity. Whether the “brain mapping test” is so developed a science that the report should have probative value for enabling the court to rely upon it requires consideration. Since the High Court did not place reliance upon it, the Supreme Court also thought it not necessary to do so [Ranjit Singh Brahamajeet Singh Sharma v State of Maharashtra AIR 2005 SC 2277].
Opinion of text writers – Opinion of Text Writers Opinion of text writers may have persuasive value, but cannot be considered to be authoritatively binding. Such opinion cannot be elevated to or placed on a higher pedestal than opinion of experts examined in courts. The trial court in this case held the accused to be guilty on the basis of books on medical jurisprudence. The Supreme Court did not approve this approach [State of M.P. v Sanjay Rai AIR 2004 SC 2174].
Value of opinion of handwriting expert – The opinion of an expert in writing is considered as the weakest and the least reliable evidence. It has been held that it is not safe to base conviction upon the opinion of writing expert alone. However, in Ram Narain v State of U.P. (discussed below), solely on the basis of expert evidence the accused was convicted by the court.
The handwriting experts’ opinion simply corroborates the circumstantial evidence. Therefore, it is not possible to accept the contention that the handwriting experts’ opinion being a weak piece of evidence ought not to be relied upon. Opinion of a handwriting expert’ can be relied on when it is supported by other there is no rule of law that without corroboration opinion evidence cannot be accepted but due care and caution should be exercised and it should be accepted after probe and examination. Even if in some earlier cases court passed some adverse remarks against him, his evidence cannot be on that ground alone. What is necessary to see is if the report relied upon suffers from any infirmity or not [Alamgir v State (NCT) of Delhi (2003) 1 SCC 21]. In this case, a woman met her death in a guest room and the police found two slips of paper and the evidence of the handwriting expert was that the writing on the papers was that of her husband the accused).
LEADING CAASE: RAM NARAIN v STATE OF U.P. (AIR 1973 SC 2200)
In this case, a child was kidnapped. The parent of the child received a handwritten post-card followed by an inland letter demanding Rs.1,000/- and Rs. 5,000/- respectively as ransom for the child. The author of the letters was traced and a handwriting expert testified the letters to be in the handwriting of the accused. Solely on the basis of this evidence the’ accused was convicted by the lower courts. Supreme Court upheld the conviction.
The Court said: “Both under Sec. 45 and Sec. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observation. In either case, the court must satisfy itself by such means as are open that the opinion may be acted upon. One such means is to apply its own observation to the admitted or proved writings, not become a handwritings expert but to verify the opinion of the witness. This is not to say that the court may play the role of an export, but to say that the court may accept the fact only when it has satisfied itself on its own observation that it is safe to accept the opinion of the expert or the other witness”.
In this case, Dua J. himself compared the handwriting in question with a proven handwriting of the accused and satisfied himself and held that no further corroboration was necessary.
The court held that if after comparison of disputed and admitted writings by court itself, it is consideration safe to accept the opinion of expert, then the conclusion so arrived at cannot be attacked on special leave merely on the ‘ground that comparison of handwriting is generally considered hazardous and inconclusive. It should be noted that the evidence of experts is not final or conclusive, The court may satisfy itself before relying on the expert opinion. Thus in many cases, their Lordships have come to the contrary opinion and rejected the expert opinion, it is more so in case of handwriting. In State of Gujarat v V.C. Patni (AIR 1967 SC 778), it was pointed out that expert opinion is relevant but is not conclusive.
Nate: In Murari Lal v State of M.P. (AIR 1980 SC 531), the Supreme Court had laid clown some important principles in relation to the value of the opinion of a handwriting expert (discussed earlier). In this case, the court upheld the conviction on the evidence that the piece of writing left behind by the murderer in the room, of the deceased was testified by a handwriting expert to be in the handwriting of the accused. The court also observed that even if no handwriting expert is produced before the court, the court has the power to compare the handwriting itself and decide the matter.
Such exercise of comparison is permissible under Sec. 73 of the Act. Secs. 45 and 73 are complementary to each other [Lalit Popli v Canara Bank (2003) 3 SCC 583].
Sec. 46 (Facts bearing upon opinion of experts)
“Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of expoerts, when such opinions are relevant”.
The effect of the provision is that when the opinion of an expert is relevant and has been cited, any fact which will either support his opinion or contradict it will also become relevant (Res inter alia acta). Thus, where the question is, whether A was poisoned by a certain poison; the fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.
Sec. 47 (Opinion as to handwriting when relevant)
According to Sec. 47, when the court had to determine the question whether a document is written or signed by a certain person, the court can admit the opinion of a person who is acquainted with that person’s handwriting. The explanation attached to the section gives guidance as to who is considered to be acquainted with another’s handwriting. It includes a person —
Illustration– The question is, whether a given letter is in the handwriting of A, a merchant in London.
B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted the letters purporting to be written by A. The opinion of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write.
In Fakhruddin v State of M.P. (AIR 1967 SC 1326), it was held that handwriting may be proved by evidence of a witness in whose presence the writing was done and this would be direct evidence and if it is available the evidence of any other kind is rendered unnecessary.
Modes of proving handwriting
Secs. 45 and 47 recognise the following modes of proving handwriting:
Sec. 47A (Opinion as to digital signature when relevant)
When the court has to form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.
Sec. 48 (Opinion as to existence of right or custom)
Sec. 48 makes those opinions relevant which proves the existence of any general custom or right. The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section [Also see Secs. 13 and 32 (4)].
Sec. 49 (Opinion as to usages, tenets, etc.)
Sec. 49 makes opinions of such persons relevant who have special means of knowledge regarding the usages and tenets of a body of men or family, the constitution and government of any religious or charitable foundation, and, the meaning of words or terms used in particular districts or by particular classes of people.
Sec. 50 (Opinion on relationship)
Sec. 50 makes the opinion of a person expressed by his conduct, who as a member of the family or otherwise has special means of knowledge as to the relationship of one person to another, relevant.
Illustrations: (a)- The question is, whether A and B, were married. The fact that they were usually received and treated by their friends as husband and wife is relevant.
(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family is relevant.
Relationship includes relation by blood, marriage or adoption. It may be noted that under Sec. 32, which also contains provision for proving relationship, the statements of dead persons are relevant; while, under Sec. 50 the opinion of a person alive is relevant. The opinion must have been expressed by conduct, and not merely by words or statements. It is very important to note that Evidence Act does not contain any express provision making evidence of general reputation admissible as proof of relationship. A was the father of C and V is the father of R as stated by witnesses was held not admissible under Sec. 50.
Proviso to Sec. 50- It lays down that in the cases under Secs. 494, 495, 497 and 498 of IPC and a proceeding under the Indian Divorce Act, the evidence of marriage cannot be given by opinion of an expert. In these cases, strict proof of marriage is necessary i.e. witnesses in whose presence the marriage was celebrated must be produced.
Sec. 51 (Grounds of opinion when relevant)
Sec. 51 provides that whenever the opinion of a living person is relevant, the grounds on which his opinion is based shall also be relevant. An expert may give an account of experiments performed by him for the purpose of forming his opinion.
The opinion of an expert by itself may be relevant, but would carry little weight with a court unless supported by a clear statement of what he noticed and upon what he based his opinion.
PAHUJA LAW ACADEMY
EVIDENCE ACT
PRELIMINARY
(a) under section 45 of Evidence Act
(b) under section 46 of Evidence Act
(c) under section 47 of Evidence Act
(d) under section 48 of Evidence Act.
2.Under section 45 of Evidence Act, the opinion of expert can be for
(a) identity of hand writing
(b) identity of finger impression
(d) neither (a) nor (b).
3.Under section 45 of Evidence Act the opinion of expert can be on the question of
(d) only (a) & not (b).
4.Opinion of an expert under section 45 of Evidence Act
(a) is a conclusive proof
(b) is not a conclusive proof
(c) is supportive & corroborative in nature
(d) either (a) or (c)
5.A disputed handwriting can be proved
(a) by calling an expert
(b) by examining a person acquainted with the handwriting of the writer of the questioned document
(c) by comparison of the two-admitted & disputed handwritings
(d) all the above.
PAHUJA LAW ACADEMY
Character when Relevant
Relevancy of character in civil cases:-
Section 52 lays down the broad general principle that evidence of a parties character cannot be given for the purpose of showing that it renders the conduct imputed to him as probable or improbable. The reason is that Court has to try the case on the basis of its facts for the purpose of determining whether the defendant should be liable or not. The court has not to try the character of parties and the evidence of character will not only prolong the proceedings but will also unnecessarily prejudice the mind of the judge on one way or the other. The business of the court is to try the case and not the man. A very bad man may have a very righteous cause.
The court is entitled to take note of the character of the plaintiff if it affects the amount of compensation which should be awarded to him. Section 55 Lays down this principle. The evidence of good or bad character of the defendant is irrelevant to damages. His good character cannot go to reduce damages and his bad character cannot aggravate them. It is only the character of the plaintiff which is declared to be relevant and that too when his character affects the amount of compensation which he ought to receive.
Character of the plaintiff however is not relevant in every case of tort e.g. accidental cases. But in cases of defamation the general reputation of the plaintiff may be proved. In cases of breach of promise of marriage plaintiff’s general character for immorality is relevant. In civil cases good character being presumed the plaintiff may not prove his good character in aggravation of the damages. But the plaintiff’s character is relevant in action for defamation, etc., in mitigation of damages.
When character is in issue
Evidence can be given of a party’s character when his character is itself a fact in issue. For example an action is brought for divorce on the ground of cruelty, the cruel character of the defendant, being a fact in issue the plaintiff can lead evidence of it. Although there is no direct provision on the point relating to Civil cases, this should follow from section 5 itself which provides that evidence can be given of the facts in issue.
A fact which is otherwise relevant cannot be excluded from evidence only because it incidentally exposes party’s character. When Hindu widow of a member of a joint family under customary law sues the other members for maintenance and the question is whether she had lost her right to maintenance because of her unchastity evidence of a bad character can be given because it is relevant.
Relevancy of character in criminal cases:
According to Section 53 in criminal cases good character of the accused is always a relevant fact. Evidence of good character is admitted as it is in compliance with the presumption of Innocence. Evidence of good character is also allowed because of the principle of benefit of doubt. In Habeeb Mohammed vs State of Hyderabad Supreme Court held that under section 53 evidence as to good character of the accused is always relevant in a criminal case for the purpose of showing the state of his mind. In criminal proceeding a man’s character is often a matter of importance in explaining his conduct and in judging his Innocence or criminality. If the case is clearly established against the accused the evidence of good character will not carry any weight but in doubtful cases such evidence is of great significance as it is strengthens the presumption of Innocence and can explain acts and conduct, which are otherwise suspicious and even prima facie criminal. The emphasis of section 54 is that the prosecution cannot lead evidence of the bad character of the accused as part of its original case. They can produce evidence of bad character only reply to the accused showing his good character.
Section 54 recognises this exception. It says that evidence of bad character is irrelevant unless evidence has been given that he is a man of good character, in which case it becomes relevant.
When character is an issue
Where the bad character of the accused itself is a fact in issue the evidence of bad character of the accused may be given. e.g. section 110 of Cr. PC.
Evidence that the accused had committed similar criminal acts previously is admissible upon the issue to decide whether the Act was intentional or accident.
If the evidence of bad character was introduced in order to establish a relevant fact which cannot be proved separately the evidence of that bad character is admissible. Where the previous conviction is relevant as evidence of bad character, evidence of bad character is relevant, e.g. section 75 of IPC.
When otherwise relevant
Evidence can always be given of facts which are relevant under any of the provisions relating to relevancy give an instruction 6 to 55 even if such facts incidentally involved reveal the character of the accused or of the prosecutor. If his bad character will show an essential state of mind it will be relevant under section 14 and if it is essential to show design or a system to overthrow the defence of accident it will be relevant under Section 15.
The explanation to section 55 gives the meaning of expression character.
Character includes reputation and disposition.
Reputation means what is thought of a person by others and is constituted by public opinion.
When a man says that another has a good character in this sense he gives the result of his own personal experience and observation or his own individual opinion of the person’s character. Disposition As for evidence of character evidence may be given only of general reputation.
PAHUJA LAW ACADEMY
LECTURE NOTES
Character when Relevant
(b) Criminal cases
(d) None of the above
(d) None of the above
(a) When evidence has been given that he has a good character, in which case it becomes relevant
(b) Cases in which the bad character of any person is itself a fact in issue
(d) None of the above
(a) The character of a party is not a fact in issue.
(b) The character of a party is a fact in issue.
(c) Either a or b
(c) Partly Correct
(d) None of the above
(d) None of the above
(d) None of the above
(a) In civil cases, character evidence is inadmissible unless the character of a party is a fact in issue.
(b) In criminal cases, the evidence of good character is admissible generally.
(c) Both a and b are correct
(d) None of the above
(a) Hearing on sentence
(c) Awarding compensation
(d) None of the above
PAHUJA LAW ACADEMY
Facts Need not be Proved
Section 56 lays down that when a fact, which is relevant in a case, is of such a nature that the court must take judicial notice of it, no evidence in proof of it should be given.
The Supreme Court has held that the court can take judicial notice of alternative sources.
Section 57 gives a list of facts of which the court must take judicial notice. Thus, when both the sections taken together it means that when controversy arises with regards to the facts enumerated in section 57, the parties when assert their existence, need not produces any evidence to prove the existence of such fact.
The judge may resort to any source of information which he finds handy and helpful. Thus, he might consult any book, or obtain information from any person.
No Judicial Notice:-
Facts admitted need not be proved. Section 58- lays down that if the parties to a proceeding to their agents agree to admit a fact at the hearing, or which they agree to admit by writing before the hearing, or which by any rule of pleading in force they are deemed to have admitted by their pleadings, it need not be proved by the opposite party.
e.g. A Sends a notice , to B in writing that B is a tenant in his house and he had not paid the rent for 6 months and so he should pay the rent and vacate the house. B sends a notice in reply that he is tenant of A but has paid the rent up to date afterwards A files a suit against B for ejectment and arrears of rent, denies the contract of tenancy between the parties. Here, B has admitted the fact of tenancy in writing before the hearing and so A may rely only on the notice and need not adduce any other evidence to prove the contract of tenancy.
Criminal cases:- it has been suggested that the section applies to civil suits only. Though it is not in terms strictly limited to the suggestion receives support from the phraseology employed which is more suitable to civil than to criminal proceedings in criminal cases the rules of evidence are subject to the general principles of jurisprudence that it is the duty of the prosecution to prove the case against the accused and that they should not rely upon the admissions made by him in the course of trial for convicting him.
It is a well established principle of criminal law that the prisoner can consent to nothing. It is an elementary rule that except by a plea of guilty admissions dispensing with proof are not permitted in a criminal trial no consent or admission by the prisoner to his counsel can dispense with proof.
Section 17 – Extra judicial admissions
Section 58 – judicial admissions
PAHUJA LAW ACADEMY
LECTURE NOTES EVIDENCE
ORAL EVIDENCE
According to Section 59, All facts except the contents of documents may be proved by oral evidence. This section lays down that where written documents exists, they shall be produced as being the best evidence of their own contents and no oral evidence can be adduced to prove as to what is wrong in the document.
Example: A and B enter into a contract that B shall be supplying 20 maunds of wool to A every month. This contract was reduced into writing. If controversy arises between the parties about the terms of the contract it can be proved only by the document oral evidence will not be allowed. The document must be produced before the court.
Section 60 lays down that oral evidence must be direct. By direct it is meant that –
Thus, oral evidence must be direct. This means that a witness can tell the court only a fact of which he has the first hand personal knowledge in the sense that he perceived by any of the fire senses.
If, on the other hand, the statement was not made in has presence or hearing and he subsequently came to know of it through other sources, he cannot appear as a witness. It is nothing but hearsay and it is maxim of law is not admissible.
Section 60 excludes hearsay evidence. Hearsay evidence means the statement of a witness not based on his personal knowledge but on what heard from others.
Thus, in all cases the evidence has to be that of a person who himself
Witnessed the happening of the fact of which he gives evidence in whatever way the fact was capable of being witnessed. Such a witness is called an eye- witness or a witness of fact and the principle is known as that of direct oral evidence or of the exclusion of hearsay evidence.
The general rule is that hearsay evidence is not admissible in proof of fact which has been stated by a third person. This rule has been long established as a fundamental principles, but certain exceptions have been recognised.
The statement of a person may be proved through another person who appears as a witness if the statement is a part of the transaction in issue.
In R. vs. Foster, the witness had only seen a speeding vehicle, but not the accident. The injured person explained him the nature of the accident. He was allowed to give evidence of what the deceased said, although it was only a derived knowledge, it being a part of res gestae. Thus, the doctrine of res gestae constitutes an exception to the principle of hearsay.
An admission of liability or confession of guilt which takes place outside the court is proved through the testimony of the witness, to whom the admission or the confession was made.
Such a witness is not a witness of fact, for he had not seen or observed the main occurrence through any of his senses, but had only heard about it from the mouth of the party who admitted his liability or confessed to his guilt. It follows that admissions and confessions constitute an exception to the hearsay rule. The reasons for this exception have already been noted before.
Statements which are admitted under section 32 are mostly the statements of deceased persons or persons who are not available as witnesses. The evidence of their statement in the circumstances mentioned in the section is received through the testimony of persons who heard their statements or otherwise acquired knowledge of the statements. The evidence of such statements is therefore, the evidence of hearsay and is specially declared to be relevant.
Statements in public documents, such as the Acts of Parliament, official books and registers, can be proved by the production of the document and it is not necessary to produce before the court the draftsmen of the document.
The rule of hearsay may not stand in the way of proving public documents once it is proved that the documents are official records or official correspondence, the court has to raise the presumption under section 114.
Section 33, provides that evidence given by a witness in a proceeding can be used as evidence of the truth of the facts stated in any subsequent proceeding between the some parties or their privies, provided that the witness has died or is for some reasons unavailable.
It says that the opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found or has incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable. Thus, the opinion of an expert can be cited in his absence only if it has been expressed in a book form and the expert himself is either dead or is otherwise unavailable as a witness.
The House of lord in Myres vs. Director of public prosecution, Lord Herschell expressed himself against the desirability of extending the exceptions. It was held that if it is done so, it would be introducing a dangerous uncertainty into the law of evidence.
It happens often enough that an eye- witness is related in some way to the party in whose favour he gives evidence. Such a witness is called an interested or partisan witness. Section 153 permits question to be asked to a witness to show that his testimony is likely to be partial. The principle to be kept in mind in such cases has been re- stated by Supreme Court.
It is well- settled that interested evidence is not necessarily unreliable. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor it can be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated in material particulars. All that is necessary is a careful scrutiny and caution. If on such scrutiny, the interested testimony if found to be intrinsically reliable, or inherently probable, it may be itself be sufficient to base a connection.
DOCUMENTARY EVIDENCE
According to section 3, the expression “documentary evidence” means- All documents produced for the inspection of the court, such documents are, called documentary evidence.
The expression “document” means any matter expressed or described upon any substance by means of letters, figures or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matters.
Illustrations :-
A writing is a document
A caricature is a document.
A map or plan is a document.
Words printed, lithographed or
Photographed are documents.
Spearing generally, it means anything or matter which contains a permanent record of relevant fact or fact in issue. Thus, a paper on which a contract is written is a document; so is a wall or chattel or stone on which something is inscribed. Photograph is a document. It has been said that the word “document” as used in the law of evidence should not be construed restrictively. Etymologically, the word means something which shows or teaches and is evidential or informative in its character.
Whether a mechanical device can be regarded as document? Although a gramophone or tape record is produced, the court cannuuot read or see any fact on it. It has to be played to the court and the court hears it as spoken words very much as the court hears a witness. For this reason tape recording have not generally been equated with documents. But the evidence of facts recorded in a tape or otherwise is admissible, and as compared with oral testimony, it is more akin to documentary evidence and is, therefore, generally held bound by principles relating to documentary evidence. With regard to relevancy of a recorded tape, it has been said that there is “no reason in principle why the recording in some permanent or semi-permanent manner of human voice or other sounds which are relevant to the issue to be determined, provided it furnishes information, cannot be a document. R.M. Malkhani
Proof of contents of document:-
According to section 61, the contents of document may be proved either by primary or by secondary evidence. There is no any third method of proving the contents of a document;
st March 1873. The fact that,at the same time, an oral agreement was made that the money should notbe paid till the 31 st March cannot be proved [illustration (b) to Sec. 92].
An estate called “Rampur Tea Estate” is sold by a deed whichcontains a map of the property sold. The fact that land not included inthe map had always been regarded as part of the estate and was meantto pass by the deed cannot be proved [Illust.(c)].
Exceptions – when Oral Evidence can be given regarding a Document
There are various exceptions to the general rule of exclusion of evidenceof oral agreement-
For example, A enters into a written contract with B to work certainmines of B, upon certain terms. A was induced to do so by amisrepresentation of B’s as to their value. This fact may be proved [Illust.(d)]. A institutes a suit against B for the specific performance of acontract, and also prays that the contract may be reformed as to one ofits provisions – inserted by mistake. A may prove that such a mistake wasmade as would bylaw entitle to have the contract reformed [Illust.(e)].
The owner of a house borrowed a sum of money and executed a nominal sale-deed and rent note. She was allowed afterwards to provethat the documents were not intended to be acted upon and that the rentpaid by her represented interest on the loan (Gangabai v Chabbubai AIR1922 SC 20).
The illustrations to Sec. 92 make clear the point. A written agreement, forexample, is silent as to the’ time of payment of the price. If there is anyoral agreement regarding this, it may be proved [Illust.(f)]. A sells B ahorse and verbally warrants him sound. A gives B a paper in these words:“Bought of A a horse for Rs.500”. B may prove the verbal warranty[Illust(g)]. Where a room is hired in a lodging on a fixed rent per monthby a written agreement, but the agreement does not make it clear whetherthe amount reserved was for lodging only or included boarding also. Ifthere was any oral agreement on the point the samemaybe proved [Illust. (h)].
In Brij Kishore v LakhanTiwari (AIR 1978 All. 374), the documentin question was one by which the existence of a deed was acknowledgedand it was on a stamp paper. The document was silent about the interestpayable and, therefore; oral evidence was offered on the point. Thequestion was whether the document was so formal as to shut out oralevidence. The court allowed the evidence.
The court observed: When the document is such that one mayreasonably believe that the entire terms and conditions agreed were soughtto be put into the document, then oral evidence should not be allowed.Generally speaking, mere acknowledgment of debt, even though stamped,cannot be deemed to be such a formal document as to incorporate allthe terms and conditions of the borrowing. It is basically an acknowledgmentof liability not mentioning the terms and conditions on which theborrowing was contracted. In that sense, it differs from a formal pronotewhich incorporates the terms and conditions of loan.
If a receipt for payment has been sent on an oral understanding that thereceipt was to apply only when payment was made, this fact may beproved [Illust.(i)]. Similarly, where the parties to a promissory note payableon demand, orally agreed that payment would not be demanded for fiveyears, the court allowed the oral agreement to be proved (Naraindas v Papammal AIR 1967 SC 333). A and B make a contract in writing to takeeffect upon the happening of a certain contingency. The writing is leftwith B, who sues A upon it. A may show the circumstances under whichit was delivered [Illust.(j)].
Where, for example, a person transfers the whole of his property, butdoes not describe or state what his property is. In such cases the propertyto which the document relates can be proved by oral evidence. A makesa will of his property to his children. He does not name them. Evidencemay be given to prove as to who are his children. Oral evidence is alsoreceivable to throw light upon the nature of a document.
Case Law
In Sam Veeraswami v TalluriNarayya (AIR 1949 PC 32), the appellant soldsome property through a registered sale deed in 1932. It was an outrightsale. But simultaneously, there was an oral agreement for sale and rightto re-conveyance if sale price was repaid within five years. The questioninvolved in dispute is whether the document is a sale with or without rightto re-conveyance as per oral agreement and benefit of proviso to Sec.92 is available? According to operating part of Sec. 92, written agreementwill prevail over oral agreement. But proviso 2, Sec. 92 makes a difference.In this case, it is necessary to see whether oral agreement as to the re-conveyance of property sold, contradicts, varies, adds to or subtractsfrom the term of sale document. The answer lies in the truth of theagreement.
The real issue was whether the transaction of sale and re-conveyanceare a single transaction or two separate ones? There can be differentagreements of sale and then resale or re-conveyance relating to the samesubject-matter. The Privy Council held that, there were two differenttransactions. The determining factor is the ultimate shape of the agreementrather than the process by which it is reached. An oral stipulation maybe purely collateral to the written agreement which it has induced, and,both written as well as oral agreement can be separate transactions thoughtouching on a common subject-matter.
Such was the character of transactions in this case and the oralagreement did not contradict, vary and subtract from the terms of saledeed (if the agreement was in truth a mortgage the oral agreement wouldobviously contradict the terms of the sale deed). On the contrary, it leftthose terms and the interest passing thereunder to the purchaser entirelyunaffected. Can it then be said to have added to the terms of the saledeed? The words ‘adding to’ which are part of Sec. 92 must receive theirdue weight, but they do not suffice to exclude the oral agreement reliedon by the appellants. It is of course, literally correct to say that as theagreement for re-conveyance related to the lands sold, it added a furtherstipulation respecting those lands. That, however, is not an appropriatetest of the applicability of Sec. 92 which is concerned to defeat themodification of a particular document. It is not enough to ask if the oralagreement relates to what has been sold. To be excluded it must bear, insome one or more of the ways specified in the section, upon the termsof sale as contained in the instrument. To add a stipulation which is quiteunconnected with the terms of sale is not an addition of the kind struckat by the section. Thus, proviso 2 to Sec. 92 is applicable and oralagreement is a valid separate transaction which will prevail. The appellantswill succeed.
LEADING CASE: ROOF KUMAR v MOHAN THEDANI [(2003) 6 SCC 595]
Facts and Issue– In this case the scope and ambit of Secs.91 and92 were in issue. The jural positions of these two sections wasanalyzed by the court.
Before the High Court the parties agreed that the basicquestion which required consideration was whether relationshipbetween the respondent and the appellant was that of licensorand licensee or it was that of lessor or lessee. The Trial Judgehad held that the transaction between the respondent and appellantevidenced by an agreement dated 15-5-1975 amounts to licenceand not sub-letting. There was a finding recorded by the trialcourt to the effect that the appellant was a party to earlierejectment proceeding which was not factually correct. The HighCourt held that the agreement dated 15-5-1975 was entered intobetween them with mutual consent and the appellant-defendant signed the same voluntarily and out of his free will; it was nota sham document; was in fact acted upon; the appellant-defendantwas an accounting party in terms of the agreement.
The question was whether the particular document wasintended by the parties to cover certain transactions betweenthem and, therefore, to deprive of legal effect all other utterances.
Observations and Decision– The Apex Court held that the HighCourt was justified in rejecting the plea of sub-tenancy. It observedthat every jural act may have the following four elements:
The first and fourth are necessarily involved in every jural act,and second and third may or may not become practicallyimportant, but are always possible elements. The integration ofthe act consists in embodying it in a single utterance or memorial- commonly, of course, a written one. When a jural act isembodied in a single memorial all other utterances of the partieson the topic are legally immaterial for the purpose of determiningwhat are the terms of their act. This rule is based upon anassumed intention on the part of the contracting parties, evidencedby, the existence of the written contract, to place themselvesabove the uncertainties of oral evidence and on a disinclinationof the courts to defeat this object.
The court cited Thayen’sPreliminary Law on Evidence (pp.397-398); Phipson on Evidence, 546 (7th Edn.); Wigmore’s Evidence,2406; Mckeivey’sEvidence, 294; Greenlear’s Evidence, 563, whereit is stated that one of the matters with which the best evidencerule is exclusively associated is the rule that when the contentsof a writing are to be proved, the writing itself must be producedbefore the court or its absence accounted for before testimonyto its contents is admitted.
The Apex Court observed: Sec. 91 relates to evidence ofterms of contract, grants and other disposition of propertiesreduced to form of document. It merely forbids proof of thecontents of a writing otherwise than by the writing itself; it iscovered by the ordinary rule of law of evidence. In Sec. 92, thelegislature has prevented the oral evidence being adduced for thepurpose of varying the contract as between the parties to thecontract; but, no such limitations are imposed under Sec. 91.Secs.91 and 92 apply only when the document on the face ofit contains or appears to contain all the terms of the contract.Sec. 91 is concerned solely with the mode of proof of adocument while limitations imposed by Sec. 92 relate only to theparties to the document. After the document has been producedto prove its terms under Sec. 91, provisions of Sec. 92 comeinto operation for the purpose of excluding evidence of any oralagreement or statement for the purpose of contradicting, varying,adding or subtracting from its terms. Secs.91 and 92 in effectsupplement each other. Sec. 91 would be inoperative without theaid of Sec. 92 and vice versa.
The two sections, however, differ in some materialparticulars. Sec. 91 applies to all documents, whether they purportto dispose of rights or not; whereas Sec. 92 applies to documentswhich can be described as dispositive. Sec. 91 applies todocuments, which are both bilateral and unilateral, unlike Sec.92, the application of which is confined to only bilateral documents.Both the sections are based on the “best evidence rule”, thusdeclaring a doctrine of substantive law. It would be inconvenientthat matters in writing made by advice and on consideration, andwhich finally import the truth of the agreement should becontrolled by the party’s memory. Even a third party if he wantsto establish a particular contract between certain others whensuch contract has been reduced to writing can only prove suchcontract by the production of such writing.
The grounds of exclusion of extrinsic evidence are: (i) toadmit inferior evidence when law requires superior would amountto nullifying the law, and (ii) when parties have deliberately puttheir agreement into writing, it is conclusively presumed, betweenthemselves and their privies, that they intended the writing toform a full and final statement of their intentions, and onewhich should be placed beyond the reach of future controversy,bad faith and treacherous memory.
This court in Gangabai v Chhabubai (AJR 1982 SC 20) andIshwarDassjain v SohanLal (AIR 2000 SC 426) with referenceto Sec. 92(1) held that it is permissible to a party to adeed tocontend that the deed was not intended to be acted upon, butwas only a sham document. The bar under Sec. 92 arises onlywhen the document is relied upon and its terms are sought tobe varied or contradicted. Oral evidence is admissible to showthat the document executed was never intended to operate as anagreement and that some other document was entered into betweenthe parties].
Comments– In IshawarDass Jain case (above), a mortgagor filed asuit for redemption. Oral evidence was sought to be given toprove that the mortgage deed, though executed, was not intendedto be acted upon and that it was a sham document executed onlyas a collateral security. Held that it would not amount to varyingor contradicting the terms of the document and would not behit by Sec.92.
In Parvinder Singh v Rena Gautam (2004) 4 SCC 794, it hasbeen held that oral evidence in departure from the terms of awritten deed is admissible to show that what is mentioned in thedeed was not the real transaction between the parties but that itwas something different. In R. Janakiraman v State (2006) 1 SCC697, the Apex Court clarified that Sec. 92 applies when a partyto the instrument seeks to disprove its terms, it does not applywhen anyone including a party to the instrument, seeks to establishthat the instrument itself is sham and fictitious, or nominal notintended to be acted upon. In Savitree Devi v State of Bihar (AIR1989 Pat. 327), the Patna High Court observed that effectivenessof a gift depends upon the fact that whether it has been actedupon. Hence, oral evidence can be given to show whether a giftdeed has been acted upon or not.
In S. Saktivel v M. VenugopalPillai (AIR 2000 SC 2633), thecourt observed that a disposition conferring title to property isrequired by law to be reduced to writing in order to ensure itsefficacy and effectiveness. The parties to the document cannotunder Sec. 92, proviso 4 be permitted to adduce oral evidenceto prove a subsequent agreement which has the result ofmodifying the written document especially when the documenthas been registered.
In Ramachandran v Y. ThevaNesomAmmal (AIR 2003 Mad.262), the sale-deed of property mentioned an amount ofconsideration. The vendor was not allowed to prove that realconsideration was agreed to be much more than what wasmentioned. In Bishwanath Prasad Singh v Rajendra Prasad (2006) 4SCC 432, in a sale of property with the condition of re-conveyancewithin a specified time, the seller failed to exercise the optionwithin the time delimited. He was not afterwards allowed to saythat the transaction was in essence a mortgage and he should beallowed to redeem it.
When a document is ambiguous i.e. either its language does not show theclear sense of the document or its application to facts creates doubts, howfar oral evidence can be allowed to clarify the language or to remove thedefect? Sections 93-98 lay down the rules as to interpretation of documentswith the aid of such ‘extrinsic evidence’ (evidence from the outside).
Ambiguities are of two kinds: ambiguitas patens i.e. patent ambiguity(Secs.93-94) and ambiguitaslatens i.e. latent ambiguity (Secs.95-97). Apatent ambiguity means a defect which is apparent on the face of thedocument. In such cases the principle is that oral evidence is not allowedto remove the defect. A latent defect implies a defect which is notapparent on the face of the record, but is in the application of thelanguage (used in the document) to the facts stated in it. The generalprinciple is that evidence can be given to remove such defects.
Sec. 93 (Exclusion of Evidence to Explain or Amend Ambiguous Document)
“When the language used in a document is, on its face, ambiguous ordefective, evidence may not be given of facts which would show itsmeaning or supply its defects.”
Illustrations: (a) A agrees, in writing, to sell a horse to B for Rs.1,000 orRs.1,500. Evidence cannot be given to show which price was to be given.
(b) A deed contains blanks. Evidence cannot be given of factswhich would show how they were meant to be filled.
The reason for the exclusion of evidence in such cases is that thedocument being clearly or apparently defective, this fact must be orcould’ve been known to the parties and if they did not care to removeit then it is too late to remove it when a dispute has arisen.
If the document had mentioned no price at all, oral evidence ofthe price could be allowed under Sec. 92 (2 nd proviso). While no extrinsicevidence can be given to remove patent defect, the court may, if it ispossible, fill up the gaps or blanks in a document with the help of theother contents of the document (e.g. where a lease deed left blanks at theplace of date, but in mother part it said that the first installment of rentwould be paid on a certain date).
Sec. 93 deals with the rules for construction of document with thehelp of extrinsic evidence or in other words with the interpretation ofdocuments by oral evidence.
Sec. 94 (Exclusion of Evidence against Application of Document to Existing Fact)
“When language used in a document is plain in itself, and when it appliesaccurately to existing facts, evidence may not be given to show that it wasnot meant to apply to such facts.”
Illustration: A sells to B, by deed “my estate at Rampur containing 100bighas.” A has an estate at Rampur containing 100 bighas. Evidence maynot be given of the fact that the estate meant to be sold was one situatedat a different place and of a different size.
Sec. 95 (Evidence as to Document Unmeaning In Reference to Existing Facts)
According to Sec. 95, when the language of a document is plain but inits application to existing facts it is meaningless, evidence can be given toshow how it was intended to apply to those facts. It is based on themaxim falsademonstratio non necet.
Illustration: A sells to B, by deed, “my house in Calcutta”. A had no housein Calcutta, but it appears that he had a house at Howrah, of which Bhad been in possession since the execution of the deed. These facts maybe proved to show that the deed related to the house at Howrah.
Sec. 95 is an instance of latent ambiguity. According to ‘Stephen’sDigest, evidence to show that common words, whose meaning is plain,not appearing from the contract to have been used in a peculiar sense,have been in fact so used, is not admissible. In North Eastern Railway v Hastings (1900) AC 260, it was held that written instruments if they areplain and unambiguous, must be construed according to the plain andunambiguous language of the instruments themselves.
Sec. 96 (Evidence as to Application of Language which can apply to One only of Several Persons)
According to Sec. 96, when the language of a document is clear and isintended to apply to only one thing or person, but in its application to theexisting facts it is difficult to say to which particular thing or person it wasintended to apply, evidence can be offered to clarify this matter.
Illustrations: (a) A agrees to sell to B, for Rs.1,000 “my white horse”. Ahas two white horses. Evidence may be given of the facts which showwhich of them was meant.
(b) A agrees to accompany B to Hyderabad. Evidence may be givenof facts showing whether Hyderabad in the Deccan or in the Sind wasmeant.
Where a pronote mentioned a date according to the local calendarand also according to the international calendar, the evidence could beoffered to show which date was meant. In one case, a Vakalatnama didnot contain the name of the pleader after the word “Mr.” in the printedform but bore the signature of the party as well as the pleader. Held thatthe ambiguity in the document was not patent but latent which could becleared up by extrinsic evidence under Sec. 96.
Sec. 97 (Evidence as to Application of Language to One of Two Sets of Facts)
According to Sec. 97, when the language of a document applies partly toone set of facts and partly to another, but does not apply accurately toeither, evidence can be given to show to which facts the document wasmeant to apply.
Illustration: A agrees to sell to B “my land at X in the occupation of Y.”A has land at X, but not in the occupation of Y, and he has land in theoccupation of Y, but it is not at X. Evidence may be given of factsshowing which he meant to sell.
Sec. 98 (Evidence as to Meaning of illegible Characters, etc.)
According to Sec. 98, evidence may be given to show the meaning ofillegible or not commonly intelligible characters of foreign, obsolete,technical, local and provincial expression, of abbreviations and of wordsused in a peculiar sense.
Illustration: A, a sculptor, agrees to sell to B, “all my models”, A has bothmodels and modelling tools. Evidence may be given to show which hemeant to sell. Thus, oral evidence is permissible for the purpose ofexplaining artistic words and symbols used in a document.
Sec. 99 (Evidence by Non-Parties)
“Persons who are not parties to document, or their representative-in-interest, may give evidence of any fact tending to show a contemporaneousagreement varying the terms of the document”. It may be noted that theparties to a document or their representative-in-interest cannot give evidenceof a contemporary agreement varying the terms of the document (Sec.92). But, Sec. 99 provides that a third party can give evidence of suchan oral agreement if he is affected by it.
Illustration: A and B make a contract in writing that B shall sell A certaincotton, to bepaid for on delivery. At the same time, they make an oralagreement that 3 months’ credit shall be given to A. This could not beshown as between A and B, butit might be shown by C, if it affectedhis interests.
Sec. 100 (Saving of Provisions of Indian Succession Act relating to Wills)
“Nothing in this Chapter contained shall be taken to affect any of theprovisions of the Indian Succession Act (X of 1865) as to the constructionof wills.”
It may be noted that Indian Succession Act, 1865 has been replacedby the Act of 1925.
EVIDENCE
PRELIMINARY
(a) where the non-production of primary evidence has not been accounted for
(b)where the non-production of primary evidence has been accounted for
(c) irrespective of whether the non-production of primary evidence has been accounted for or not
(d) both (a) & (c) are correct
2.Oral account of the contents of a document is admissible
(a) when given by a person who has seen & read the document
(b) when given by a person who has seen but not read the document
(c) when given by a person to whom the document was read over
(d) when given by any of the above.
3.A document required by law to be attested can be proved under section 68 of Evidence Act only
(a) by calling both the attesting witnesses
(b)by calling at least one of the attesting witnesses
(c) by calling none of the attesting witnesses but by calling some other person who has the knowledge of the contents
(d) all of the above are correct.
4.The calling of at least one attesting witness to prove a document under section 68 is not necessary
(a) when the document other than a will is registered under the Indian Registration Act, 1908
(b) when the document including Will is registered under the Indian Registration Act, 1908
(c) when the document irrespective of whether it is a Will, is registered under the Indian Registration Act, 1908
(d) both (b) & (c) are correct.
5.A will is required to be proved by calling at least one attesting witness
(a) when it is registered
(b) when it is unregistered
(c) when it is admitted
(d) all of the above.
6.Public documents are mentioned in
(a) section 72 of Evidence Act
(b) section 73 of Evidence Act
(c) section 74 of Evidence Act
(d) section 75 of Evidence Act.
7.Documents which are not covered under section 74 of Evidence Act are called
(a) semi-public documents
(b) quasi-public documents
(c) private documents
(d) all the above.
8.Maxim ‘omnia proesumuntur rite esse acta’ means
(a) all acts are presumed to be rightly done
(b) all acts are presumed to be not rightly done
(c) all acts are presumed to be wrongly done
(d) all acts are presumed to be not wrongly done.
9.Admissibility of electronic record has been prescribed under
(a) section 65 of Evidence Act
(b) section 65A of Evidence Act
(c) section 65B of Evidence Act
(d) section 66 of Evidence Act.
10.Principle of ‘onmia proesumuntur rite esse acta’ is contained in
(a) section 78 of Evidence Act
(b) section 79 of Evidence Act
(c) section 80 of Evidence Act
(d) section 81 of Evidence Act.