Evidence Law; 173 Key Principles & Rules

Evidence Law; 173 Key  Principles & Rules

Basic Principles and Rules of Law of Evidence

SUMMARY OF LAW OF EVIDENCE

1. ”Fact” may be physical, psychological, positive and negative. Anything capable of being perceived by sense is fact. Section 3

2. Connection of events as cause and effect is relevancy.

3. A fact which has a certain degree of ”probative force” is known as ”Relevant fact”.

4. ”Falsus in uno falsus in omnibus” is no application in India.

5. Circumstantial evidence must be in conclusive in nature.

6. Three presumptions. first is rebuttable, second is irrebuttable, third is Mixed presumption. However, Indian evidence made presumption of fact and of law. Mixed presumption is confined to English law.

7. Evidence may be given of 1. facts in issue and 2. relevant facts. (Section 5 relevant facts)

8. In drawing up the evidence Act, the principle of exclusion has been followed.

9. The doctrine that all facts in issue are relevant to the issue, and no others may be proved, is the unexplained principle which forms the centre of and gives unity to all these express negative rules (Stephen Dig Introduction).

10. Law of evidence of negative rules declaring what is not evidence.

11. The particular ways of connection which the law regards as ”relevancy” have been describe in Sections 6 – 55 of the Indian Evidence Act.

12. Relevant facts forming part of the same transaction. (Section 6)

13. Section 7 makes connected relevant by embracing a large area of facts.

14. There is hardly any action without a motive. (Section 8)

15. Sections 7 and 8 are based upon the theory of causation as a test of relevancy.

13. All explanation or introductory facts are relevant. (Section 9)

14. The principle of admissibility is that the ”thing” done, written,or spoken was something done in carry out the common intention. (Section 10)

15. There should be ”reasonable grounds to believe” in criminal cases to made a person responsible for the acts.

16. The principles on which Section 10 is based is that of ‘agency’.

17. All the conspirators need not be convicted or acquitted.

18. All evidence must be logically relevant. (Section 11)

19. To claim Alibi his presence should be elsewhere.

20. Alibi should be established by cogent evidence.

21. Burden of proof of Alibi is on accused.

22. Any fact which enables the Court of law to determine amount of damage is relevant in civil case.(Section 12)

23. The facts that are relevant which any ”right or custom” is in question. (Section 13)

24. Relevancy of facts should the existence of a person’s state of mind, or of body or bodily feeling, facts it has been seen, are either physical or psychological. (Section 14)

25. A single similar act is admissible to prove knowledge or intent, or to rebut the suggestion of accident, but a single similar act is not necessarily admissible without further evidence. (Section 15)

26. To determine where there is sufficient and reasonable connection between the factum probans (fact to be proved) offered and the factum probondum (evidenciary fact) or whether they are too remote from each other for the factum probans to be received.

27. A general course of business or office,according to which it naturally would have been done, is a relevant fact and proof; or it is admissible. (Section 16)

28. Admissions are either formal or informal ”proof of admissions shifts the onus”. (Section 17)

29. Admission of several persons jointly interested. Where the reality of that interest is the point in controversy. (Section 18)

30. Generally statements by strangers are inadmissible. (Section 19)

31. Section 20 deals with another class of admission of persons other than the parties. [AIR 1985 SC 998 : AIR 1992 SC 1356]

32. Admissions not generally evidence for the maker. (Section 21)

33. Where there has been a document, nobody can be allowed to prove oral admission about the contents of such document. (Section 22)

34. Section 23 : Generally admissions made with conditions are inadmissible.

35. In civil cases if an admission of liability is made by a party upon an express condition that evidence of such admission should not be given. (Section 23)

36. Confession must be perfectly voluntary, in criminal cases. Prosecution to show voluntariness of confession. (Section 24) [AIR 1969 SC 422 : AIR 1991 SC 37 : AIR 1982 SC 1595 : AIR 1978 SC 1183 : AIR 1996 (4) SC 259 : AIR 1994 SC 214 : AIR 1985 SC 1678]

37. Admissions or statements not amounting to confession.

38. Confession of accused before police officer is inadmissible. (Section 25) [AIR 1994 SC 610 : (1996) 2 SCC 409]

39. All confessions are admissions but all admissions are not confessions.

40. Confession caused by threat, inducement, or promise is inadmissible. (Section 27)

41. Admissions may operate as estoppels.

42. Admission to be taken as whole. (Section 31)

43. If the word ” Shall” is used in a statute, prima facie, it is mandatory; If the word ”May” is used in a statute, ordinarily, it is used in a permissive sense. Yet, sometimes, ” May” is equivalent to the word ”Shall”. (However, the intention of Legislature is to be ascertained to understand meanings of ”May” and ”Shall”). [AIR 1961 SC 751 : AIR 1959 J&K 110]

44. Evidence an be given only of those facts which are declared relevant.

45. Evidence has to be produced to prove or disprove fact in issue or relevant fact.

46. Only best evidence is to be produced.

47. Sections 17 to 21 deal with ” admissions”. Admissions are applicable civil and criminal cases.

48. Hearsay evidence is no evidence (Section 60). Yet, there are some exceptions to this rule. For example Section 6.

49. In civil cases, a person can be compelled to be a witness. Yet, in criminal cases, accused can not be compelled to be a witness.

50. In civil cases, admissions alone relevant but not confessions. But, in criminal cases, admissions as well as confessions are relevant

51. Benefit of doubt is available to accused in criminal cases.

52. In criminal cases, accused is always presumed to be innocent.

53. Two kind of presumptions: one is rebuttable and another is irrebutable presumption. Rebuttable presumption can be overthrown by evidence to the contrary. But, irrebuttable presumption is conclusive presumption of law. (Sections 41, 112, 113 deal with conclusive presumption).

54. May presume: 1) Court has discretion to raise or not to raise presumption of fact. 2) court may call for proof of it.

55. Shall presume: 1) court has no discretion as to ”shall presume”. 2) court is bound to raise presumption, unless and until it is disproved.

56. Hearsay evidence is no evidence.

57. Res gestae is an exception to the rule of ” Hearsay evidence is no evidence”. Section 6

58. Generally, no person can be made liable for the acts of another. Yet persons who take part in ”conspiracy” are deemed to be conspirators. Section 10

59. In civil cases, party succeeds on his own strength.

60. Character of party, in civil cases, is irrelevant.

61. There should be clear proof corpus delict (commission of offence)

62. The prosecution must show the guilt of accused, in criminal cases, ”beyond all reasonable doubt”. But, only reasonable doubt goes to accused.

63. The prosecution cannot take advantage of the weakness of the defence.

64. The prosecution must stand on its own legs basing on the evidence that has been let in.

65. Burden of proving that any transaction has been effected by fraud, misrepresentation, intimidation, coercion or undue influence, etc, lies upon the person alleging that. [Narsingh Murthi’s case, AIR 1941 Madras 690]

66. In criminal cases suspicion however strong can never take the place of proof. [Sarwan Singh’s case, AIR 1957 SC 637]

67. The proof should be in the nature of ”preponderance of probabilities” in civil cases.

68. Proof should be placed by the party on whom the burden of proof rests, unless he is estopped.

69. If evidence is given by witness, he should testify, subject to rules relating to examination.

70. Admission must be certain, and clear.

71. Admission must be taken as a whole. Partial admission cannot be accepted.

72. Admission is substantive piece of evidence.

73. A statement of admission made by any partner should be binding against other partners in a partnership.

74. Admission may be either in oral form, or documentary form, or signs or gestures form, or informal.

75. Self harming statement in civil case can be called as ”admission”.

76. Self harming statement in criminal case can be called as ”confession”.

77. Admission is not conclusive proof yet it may operate as estoppel.

78. All Confessions are admissions.

79. All admissions are not confessions.

80. Admissions can be proved by hearsay evidence.

81. Confession must be clear, cogent, whole.

82. Involuntary confession is inadmissible in evidence.

83. Confessions is made in presence of Magistrate is admissible.

84. A person who is about to die would not lie.

85. Trust sits on the lips of a person who is about to die.

86. ”Leterm Mortem” means ”Words said before Death”.

87. Dying declaration should be complete in nature.

88. The person who is making dying declaration need not be under expectation of death.

89. There is no particular form for dying declaration.

90. Previous good character is relevant in criminal cases but evidence of bad character is irrelevant.

91. Character evidence is relevant in civil case if such evidence itself is fact in issue.

92. Fact admitted need not be proved.

93. Oral evidence must be direct.

94. Evidence which carries on its face no indication that the better remains behind, is primary.

95. In a case of malicious prosecution even though as generally understood absence of reasonable and probable cause is a negative assertion,still the burden of proving it lies on the plaintiff. [Vija Nath’s case, AIR 1971 ALL 109 : Buddu singh case, 1971 AWR 445]

96. The contents of a document may be proved either by primary or secondary evidence. Section 64

97. Document must be proved by primary evidence except in exceptional case provided for in that. Section 65

98. Mere filing of document is not enough to make the document a part of record.

99. The person who makes an allegation should prove it. Section 67

100. Execution consists in signing a document written out, read over and understood the contents of document. Section 68

101. If witness dies the provision of Section 69 comes into play.

102. Mere admission of signature or thumb impression on blank sheet of paper does not mean an admission of execution.

103. Handwriting and signature of a person can be proved by an expert. Section 45

104. Court may compare the disputed document. Section 73

105. A judgment,a decree or order, order sheet of Court are public documents. [AIR 1934 PC 157 : 1978 ALJ 1141 : AIR 1931 All 364]

106. When the contents of a public document are to be proved before Court, the original need not be produced. Section 77

107. All acts are presumed to be rightly done. (See maxim ” Omiria praesummuntur rite esse acta”). Section 79]

108. Presumption under Section 90 is rebuttable.

109. It is after the document has been produced to its terms under Section 91, that the provisions of Section 92 come into operation, for purpose of excluding evidence of any oral argument or statement, for the purpose of contradicting,varying,adding,subtracting from its terms.

110. When terms of a document have been proved by producing the document, oral agreement cannot be proved to contradict the same. (Section 92 and Section 100 as to know some exceptions to this rule)

111. Section 93 to 98 lay down rules regarding interpretation of documents with the aid of extrinsic evidence.

112. If a language of a document is plain, yet it turns out that there are more than one person or thing to which the description applies, oral evidence can be given to facts which show to which person or thing it is intended to apply. Section 96

113. Experts may be called to explain the meaning of terms of a document. Section 98

114. The person who is not a party to document can lead evidence of any facts tending to show contemporaneous agreement varying the terms of the document. Section 99

115. Documents unmeaning in reference to existing fact evidence may be given to explain it. Section 95

116. When the language of a document may apply to only one of many facts evidence may be given as to which it applies. Section 96

117. When the language applies partly to one existing fact and partly to another, evidence may be given as to which it applies. Section 97

118. Evidence may be given to show the meaning of illegible or not commonly intelligible character. Section 98

119. Evidence may not be given to remove the ambiguity of the language. Section 93

120. Generally, he who asserts or claims, he must prove it. Section 101

121. Burden of proof rests on the person who who substantially asserts the affirmative of the issue not upon the person who denies it. Section 104

122. The burden that arises from the pleadings depends upon the facts asserted or denied and is determined by the rules of substantive and statutory law or by presumption of law and fact.

123. Onus of proof in its primary means the duty of establishing a case. In its secondary sense the onus means no more than the duty of adducing evidence. [Ganga Din v. Bahoran lal, AIR 1937 Nag. 230]

124. It is the duty of accused to prove the plea of alibi. [Jagannath Giri v. State of Bihar, 1992 Cr.L J 648]

125. Accused is under no obligation to substantiate his defence version.

126. Generally, there is no presumption of advancement.

127. The burden of mala fides lies on the person who alleges it.

128. The burden of collusion lies on the person who alleges it.

129. In suit for specific performance of contract, burden lies on the defendant to prove that he is bona fide purchaser for value. [AIR 1963 SC 1150]

130. When the facts prima facie prove negligence, the burden lies on the defendant to prove that he was negligent. (Res ipsa loquitur) [G & N.I.T Co.’s case, AIR 1955 MB 214; Indian Airlines’s case, AIR 1965 Cal 252]

131. In suit for damages the burden lies on the plaintiff. [L.J. Leach & Co Ltd case, AIR 1957 SC 357]

132. When the defendant pleads that suit of plaintiff is time-barred, the burden lies on the plaintiff to prove the facts which would bring the suit within time. Bansori Lal’s case, AIR 1943 Cal. 131

133. He who claims any exceptions, he has to prove the same. Section 105

134. If it is proved that a person has not been heard of for 7 (seven) years or more by those who would naturally have heard of him if he had been alive, law presumes that he is dead. Section 108

135. Doctrine of ‘Estoppel’ applies only to Civil cases.

136. Rule of Estoppel does not apply to ” Minor”.

137. Rule of Estoppel is which stops a person from taking up different positions from what he stated earlier.

138. On issue of a fact or law which has been determined in previous proceedings cannot be raised in subsequent proceedings.

139. Every person is competent to give evidence unless the Court considers that he is unable to understand the question put to him and is unable to give rational answer. Section 118

140. Dumb witness may give evidence by writing, or by signs or by gestures. Section 119

141. Law protects all information between wife and husband and hence no person can compel them to reveal what the other spouse communicated. Section 122

142. Lawyers cannot be compelled to disclose the contents of any document with which they came to know in the course of their job.

143. Judge has no power to excuse a witness from answering if the question is relevant to the matter in issue. Section 132

144. Accomplice is competent witness against accused. Section 133

145. Evidence has to be weighed and not counted’. Section 134

146. The testimony of a single witness is sufficient, if it is reliable, to prove a fact. Section 134

147. Order in which are to be produced shall be regulated by law and practice for the time being relating to C.P.C and Cr. P.C. Section 135 [Order 18 of Code of Civil Procedure, 1908 and Chapters XVIII, XIX, XXI, XXIII, & XXIV of Code of Criminal Procedure, 1973]

148. Judge has to decide as to admissibility of evidence. Section 136

149. No leading questions can be asked in Examination-in-Chief. Section 137; However, with permission of court, leading question may be asked in examination-in-Chief. Section 142

150. Leading questions can be asked in cross-examination

151. The questions in cross-examination must be related to relevant facts and facts in issue.

152. Object of re-examination is to remove any doubt arose in cross examination and to enable the witness to clarify any contradiction.

153. New matter should not be introduced in re-cross examination.

154. In re examination the questions should be confined only to the matters arisen out of cross examination; leading questions cannot be asked in re-examination.

155. If any witness gives inconsistent or contradictory statement, he should not be declared as hostile.

156. No particular number of witnesses is needed to prove any fact. Section 134

157. Court empowers to compel a witness to answer to a relevant question. Section 147

158. Court to decided if the witness has to answer a question. Section 148

159. Question not to be asked in cross examination without reasonable grounds. Section 149

160. If Court opines that question is put by a counsel without reasonable ground, the court may make a report as to the matter to High Court. Section 150

161. Court shall forbid any question or inquiry which it regards as indecent or scandalous. Section 151

162. Court shall forbid any question which appears to be intended to insult or annoy a witness. Section 152

163. If a witness has answered at his credit, no evidence shall be given to contradict him. Yet if he answers falsely, he may afterwards be charged with giving false evidence. Section 153

164. Evidence of hostile witness cannot be rejected wholesale.

165. Credit of a witness may be impeached in any way as provided under Section 155.

166. Witnesses may refresh their memory, while examination. Section 159

167. When witness is summoned to produce any document, he shall produce the document before court; if any objection is raised as to its production, it should be decided by the court. Section 162

168. Section 163 of Act is applicable to criminal cases as well as civil cases. [Govt of Bengal v. Shanti Ram Mandal, AIR 1930 Cal 370]

169. The party calling for document is bound to give it as evidence, if required to do so. Section 163

170. Section 164 does not apply to criminal proceedings. [Shyam Das Kapoor’s case, AIR 1933 Cal 33]

171. Judge can ask any question he pleases to witness, at any time, whether it is relevant or irrelevant. [Section 165]

172. Though the section uses the word ”Judge” but it must be construed to include even a Magistrate or any court authorised to take evidence. Section 165 [Alana Umar’s case, AIR 1965 ALL 131]

173. Any question put by Judge must be so as not to frighten,coerce, confuse, intimidate the witness. Section 165 [Ramachandra’s case, AIR 1981 SC 1036]Evidence Law; 173 Key  Principles & Rules

Basic Principles and Rules of Law of Evidence

SUMMARY OF LAW OF EVIDENCE

1. ”Fact” may be physical, psychological, positive and negative. Anything capable of being perceived by sense is fact. Section 3

2. Connection of events as cause and effect is relevancy.

3. A fact which has a certain degree of ”probative force” is known as ”Relevant fact”.

4. ”Falsus in uno falsus in omnibus” is no application in India.

5. Circumstantial evidence must be in conclusive in nature.

6. Three presumptions. first is rebuttable, second is irrebuttable, third is Mixed presumption. However, Indian evidence made presumption of fact and of law. Mixed presumption is confined to English law.

7. Evidence may be given of 1. facts in issue and 2. relevant facts. (Section 5 relevant facts)

8. In drawing up the evidence Act, the principle of exclusion has been followed.

9. The doctrine that all facts in issue are relevant to the issue, and no others may be proved, is the unexplained principle which forms the centre of and gives unity to all these express negative rules (Stephen Dig Introduction).

10. Law of evidence of negative rules declaring what is not evidence.

11. The particular ways of connection which the law regards as ”relevancy” have been describe in Sections 6 – 55 of the Indian Evidence Act.

12. Relevant facts forming part of the same transaction. (Section 6)

13. Section 7 makes connected relevant by embracing a large area of facts.

14. There is hardly any action without a motive. (Section 8)

15. Sections 7 and 8 are based upon the theory of causation as a test of relevancy.

13. All explanation or introductory facts are relevant. (Section 9)

14. The principle of admissibility is that the ”thing” done, written,or spoken was something done in carry out the common intention. (Section 10)

15. There should be ”reasonable grounds to believe” in criminal cases to made a person responsible for the acts.

16. The principles on which Section 10 is based is that of ‘agency’.

17. All the conspirators need not be convicted or acquitted.

18. All evidence must be logically relevant. (Section 11)

19. To claim Alibi his presence should be elsewhere.

20. Alibi should be established by cogent evidence.

21. Burden of proof of Alibi is on accused.

22. Any fact which enables the Court of law to determine amount of damage is relevant in civil case.(Section 12)

23. The facts that are relevant which any ”right or custom” is in question. (Section 13)

24. Relevancy of facts should the existence of a person’s state of mind, or of body or bodily feeling, facts it has been seen, are either physical or psychological. (Section 14)

25. A single similar act is admissible to prove knowledge or intent, or to rebut the suggestion of accident, but a single similar act is not necessarily admissible without further evidence. (Section 15)

26. To determine where there is sufficient and reasonable connection between the factum probans (fact to be proved) offered and the factum probondum (evidenciary fact) or whether they are too remote from each other for the factum probans to be received.

27. A general course of business or office,according to which it naturally would have been done, is a relevant fact and proof; or it is admissible. (Section 16)

28. Admissions are either formal or informal ”proof of admissions shifts the onus”. (Section 17)

29. Admission of several persons jointly interested. Where the reality of that interest is the point in controversy. (Section 18)

30. Generally statements by strangers are inadmissible. (Section 19)

31. Section 20 deals with another class of admission of persons other than the parties. [AIR 1985 SC 998 : AIR 1992 SC 1356]

32. Admissions not generally evidence for the maker. (Section 21)

33. Where there has been a document, nobody can be allowed to prove oral admission about the contents of such document. (Section 22)

34. Section 23 : Generally admissions made with conditions are inadmissible.

35. In civil cases if an admission of liability is made by a party upon an express condition that evidence of such admission should not be given. (Section 23)

36. Confession must be perfectly voluntary, in criminal cases. Prosecution to show voluntariness of confession. (Section 24) [AIR 1969 SC 422 : AIR 1991 SC 37 : AIR 1982 SC 1595 : AIR 1978 SC 1183 : AIR 1996 (4) SC 259 : AIR 1994 SC 214 : AIR 1985 SC 1678]

37. Admissions or statements not amounting to confession.

38. Confession of accused before police officer is inadmissible. (Section 25) [AIR 1994 SC 610 : (1996) 2 SCC 409]

39. All confessions are admissions but all admissions are not confessions.

40. Confession caused by threat, inducement, or promise is inadmissible. (Section 27)

41. Admissions may operate as estoppels.

42. Admission to be taken as whole. (Section 31)

43. If the word ” Shall” is used in a statute, prima facie, it is mandatory; If the word ”May” is used in a statute, ordinarily, it is used in a permissive sense. Yet, sometimes, ” May” is equivalent to the word ”Shall”. (However, the intention of Legislature is to be ascertained to understand meanings of ”May” and ”Shall”). [AIR 1961 SC 751 : AIR 1959 J&K 110]

44. Evidence an be given only of those facts which are declared relevant.

45. Evidence has to be produced to prove or disprove fact in issue or relevant fact.

46. Only best evidence is to be produced.

47. Sections 17 to 21 deal with ” admissions”. Admissions are applicable civil and criminal cases.

48. Hearsay evidence is no evidence (Section 60). Yet, there are some exceptions to this rule. For example Section 6.

49. In civil cases, a person can be compelled to be a witness. Yet, in criminal cases, accused can not be compelled to be a witness.

50. In civil cases, admissions alone relevant but not confessions. But, in criminal cases, admissions as well as confessions are relevant

51. Benefit of doubt is available to accused in criminal cases.

52. In criminal cases, accused is always presumed to be innocent.

53. Two kind of presumptions: one is rebuttable and another is irrebutable presumption. Rebuttable presumption can be overthrown by evidence to the contrary. But, irrebuttable presumption is conclusive presumption of law. (Sections 41, 112, 113 deal with conclusive presumption).

54. May presume: 1) Court has discretion to raise or not to raise presumption of fact. 2) court may call for proof of it.

55. Shall presume: 1) court has no discretion as to ”shall presume”. 2) court is bound to raise presumption, unless and until it is disproved.

56. Hearsay evidence is no evidence.

57. Res gestae is an exception to the rule of ” Hearsay evidence is no evidence”. Section 6

58. Generally, no person can be made liable for the acts of another. Yet persons who take part in ”conspiracy” are deemed to be conspirators. Section 10

59. In civil cases, party succeeds on his own strength.

60. Character of party, in civil cases, is irrelevant.

61. There should be clear proof corpus delict (commission of offence)

62. The prosecution must show the guilt of accused, in criminal cases, ”beyond all reasonable doubt”. But, only reasonable doubt goes to accused.

63. The prosecution cannot take advantage of the weakness of the defence.

64. The prosecution must stand on its own legs basing on the evidence that has been let in.

65. Burden of proving that any transaction has been effected by fraud, misrepresentation, intimidation, coercion or undue influence, etc, lies upon the person alleging that. [Narsingh Murthi’s case, AIR 1941 Madras 690]

66. In criminal cases suspicion however strong can never take the place of proof. [Sarwan Singh’s case, AIR 1957 SC 637]

67. The proof should be in the nature of ”preponderance of probabilities” in civil cases.

68. Proof should be placed by the party on whom the burden of proof rests, unless he is estopped.

69. If evidence is given by witness, he should testify, subject to rules relating to examination.

70. Admission must be certain, and clear.

71. Admission must be taken as a whole. Partial admission cannot be accepted.

72. Admission is substantive piece of evidence.

73. A statement of admission made by any partner should be binding against other partners in a partnership.

74. Admission may be either in oral form, or documentary form, or signs or gestures form, or informal.

75. Self harming statement in civil case can be called as ”admission”.

76. Self harming statement in criminal case can be called as ”confession”.

77. Admission is not conclusive proof yet it may operate as estoppel.

78. All Confessions are admissions.

79. All admissions are not confessions.

80. Admissions can be proved by hearsay evidence.

81. Confession must be clear, cogent, whole.

82. Involuntary confession is inadmissible in evidence.

83. Confessions is made in presence of Magistrate is admissible.

84. A person who is about to die would not lie.

85. Trust sits on the lips of a person who is about to die.

86. ”Leterm Mortem” means ”Words said before Death”.

87. Dying declaration should be complete in nature.

88. The person who is making dying declaration need not be under expectation of death.

89. There is no particular form for dying declaration.

90. Previous good character is relevant in criminal cases but evidence of bad character is irrelevant.

91. Character evidence is relevant in civil case if such evidence itself is fact in issue.

92. Fact admitted need not be proved.

93. Oral evidence must be direct.

94. Evidence which carries on its face no indication that the better remains behind, is primary.

95. In a case of malicious prosecution even though as generally understood absence of reasonable and probable cause is a negative assertion,still the burden of proving it lies on the plaintiff. [Vija Nath’s case, AIR 1971 ALL 109 : Buddu singh case, 1971 AWR 445]

96. The contents of a document may be proved either by primary or secondary evidence. Section 64

97. Document must be proved by primary evidence except in exceptional case provided for in that. Section 65

98. Mere filing of document is not enough to make the document a part of record.

99. The person who makes an allegation should prove it. Section 67

100. Execution consists in signing a document written out, read over and understood the contents of document. Section 68

101. If witness dies the provision of Section 69 comes into play.

102. Mere admission of signature or thumb impression on blank sheet of paper does not mean an admission of execution.

103. Handwriting and signature of a person can be proved by an expert. Section 45

104. Court may compare the disputed document. Section 73

105. A judgment,a decree or order, order sheet of Court are public documents. [AIR 1934 PC 157 : 1978 ALJ 1141 : AIR 1931 All 364]

106. When the contents of a public document are to be proved before Court, the original need not be produced. Section 77

107. All acts are presumed to be rightly done. (See maxim ” Omiria praesummuntur rite esse acta”). Section 79]

108. Presumption under Section 90 is rebuttable.

109. It is after the document has been produced to its terms under Section 91, that the provisions of Section 92 come into operation, for purpose of excluding evidence of any oral argument or statement, for the purpose of contradicting,varying,adding,subtracting from its terms.

110. When terms of a document have been proved by producing the document, oral agreement cannot be proved to contradict the same. (Section 92 and Section 100 as to know some exceptions to this rule)

111. Section 93 to 98 lay down rules regarding interpretation of documents with the aid of extrinsic evidence.

112. If a language of a document is plain, yet it turns out that there are more than one person or thing to which the description applies, oral evidence can be given to facts which show to which person or thing it is intended to apply. Section 96

113. Experts may be called to explain the meaning of terms of a document. Section 98

114. The person who is not a party to document can lead evidence of any facts tending to show contemporaneous agreement varying the terms of the document. Section 99

115. Documents unmeaning in reference to existing fact evidence may be given to explain it. Section 95

116. When the language of a document may apply to only one of many facts evidence may be given as to which it applies. Section 96

117. When the language applies partly to one existing fact and partly to another, evidence may be given as to which it applies. Section 97

118. Evidence may be given to show the meaning of illegible or not commonly intelligible character. Section 98

119. Evidence may not be given to remove the ambiguity of the language. Section 93

120. Generally, he who asserts or claims, he must prove it. Section 101

121. Burden of proof rests on the person who who substantially asserts the affirmative of the issue not upon the person who denies it. Section 104

122. The burden that arises from the pleadings depends upon the facts asserted or denied and is determined by the rules of substantive and statutory law or by presumption of law and fact.

123. Onus of proof in its primary means the duty of establishing a case. In its secondary sense the onus means no more than the duty of adducing evidence. [Ganga Din v. Bahoran lal, AIR 1937 Nag. 230]

124. It is the duty of accused to prove the plea of alibi. [Jagannath Giri v. State of Bihar, 1992 Cr.L J 648]

125. Accused is under no obligation to substantiate his defence version.

126. Generally, there is no presumption of advancement.

127. The burden of mala fides lies on the person who alleges it.

128. The burden of collusion lies on the person who alleges it.

129. In suit for specific performance of contract, burden lies on the defendant to prove that he is bona fide purchaser for value. [AIR 1963 SC 1150]

130. When the facts prima facie prove negligence, the burden lies on the defendant to prove that he was negligent. (Res ipsa loquitur) [G & N.I.T Co.’s case, AIR 1955 MB 214; Indian Airlines’s case, AIR 1965 Cal 252]

131. In suit for damages the burden lies on the plaintiff. [L.J. Leach & Co Ltd case, AIR 1957 SC 357]

132. When the defendant pleads that suit of plaintiff is time-barred, the burden lies on the plaintiff to prove the facts which would bring the suit within time. Bansori Lal’s case, AIR 1943 Cal. 131

133. He who claims any exceptions, he has to prove the same. Section 105

134. If it is proved that a person has not been heard of for 7 (seven) years or more by those who would naturally have heard of him if he had been alive, law presumes that he is dead. Section 108

135. Doctrine of ‘Estoppel’ applies only to Civil cases.

136. Rule of Estoppel does not apply to ” Minor”.

137. Rule of Estoppel is which stops a person from taking up different positions from what he stated earlier.

138. On issue of a fact or law which has been determined in previous proceedings cannot be raised in subsequent proceedings.

139. Every person is competent to give evidence unless the Court considers that he is unable to understand the question put to him and is unable to give rational answer. Section 118

140. Dumb witness may give evidence by writing, or by signs or by gestures. Section 119

141. Law protects all information between wife and husband and hence no person can compel them to reveal what the other spouse communicated. Section 122

142. Lawyers cannot be compelled to disclose the contents of any document with which they came to know in the course of their job.

143. Judge has no power to excuse a witness from answering if the question is relevant to the matter in issue. Section 132

144. Accomplice is competent witness against accused. Section 133

145. Evidence has to be weighed and not counted’. Section 134

146. The testimony of a single witness is sufficient, if it is reliable, to prove a fact. Section 134

147. Order in which are to be produced shall be regulated by law and practice for the time being relating to C.P.C and Cr. P.C. Section 135 [Order 18 of Code of Civil Procedure, 1908 and Chapters XVIII, XIX, XXI, XXIII, & XXIV of Code of Criminal Procedure, 1973]

148. Judge has to decide as to admissibility of evidence. Section 136

149. No leading questions can be asked in Examination-in-Chief. Section 137; However, with permission of court, leading question may be asked in examination-in-Chief. Section 142

150. Leading questions can be asked in cross-examination

151. The questions in cross-examination must be related to relevant facts and facts in issue.

152. Object of re-examination is to remove any doubt arose in cross examination and to enable the witness to clarify any contradiction.

153. New matter should not be introduced in re-cross examination.

154. In re examination the questions should be confined only to the matters arisen out of cross examination; leading questions cannot be asked in re-examination.

155. If any witness gives inconsistent or contradictory statement, he should not be declared as hostile.

156. No particular number of witnesses is needed to prove any fact. Section 134

157. Court empowers to compel a witness to answer to a relevant question. Section 147

158. Court to decided if the witness has to answer a question. Section 148

159. Question not to be asked in cross examination without reasonable grounds. Section 149

160. If Court opines that question is put by a counsel without reasonable ground, the court may make a report as to the matter to High Court. Section 150

161. Court shall forbid any question or inquiry which it regards as indecent or scandalous. Section 151

162. Court shall forbid any question which appears to be intended to insult or annoy a witness. Section 152

163. If a witness has answered at his credit, no evidence shall be given to contradict him. Yet if he answers falsely, he may afterwards be charged with giving false evidence. Section 153

164. Evidence of hostile witness cannot be rejected wholesale.

165. Credit of a witness may be impeached in any way as provided under Section 155.

166. Witnesses may refresh their memory, while examination. Section 159

167. When witness is summoned to produce any document, he shall produce the document before court; if any objection is raised as to its production, it should be decided by the court. Section 162

168. Section 163 of Act is applicable to criminal cases as well as civil cases. [Govt of Bengal v. Shanti Ram Mandal, AIR 1930 Cal 370]

169. The party calling for document is bound to give it as evidence, if required to do so. Section 163

170. Section 164 does not apply to criminal proceedings. [Shyam Das Kapoor’s case, AIR 1933 Cal 33]

171. Judge can ask any question he pleases to witness, at any time, whether it is relevant or irrelevant. [Section 165]

172. Though the section uses the word ”Judge” but it must be construed to include even a Magistrate or any court authorised to take evidence. Section 165 [Alana Umar’s case, AIR 1965 ALL 131]

173. Any question put by Judge must be so as not to frighten,coerce, confuse, intimidate the witness. Section 165 [Ramachandra’s case, AIR 1981 SC 1036]

Admissibility of Xerox Documents* In this suit proceedings, Petitioner produced Xerox copy of affidavit stating it was by way of an agreement of sale executed by one Mr. X in favor of the Petitioner.

*Admissibility of Xerox Documents*
In this suit proceedings, Petitioner produced Xerox copy of affidavit stating it was by way of an agreement of sale executed by one Mr. X in favor of the Petitioner. The Trial Court refused permission to mark the said Xerox copy as an exhibit.  Section 65 of the Evidence Act deals merely with the foundation that has to be laid for reception of secondary evidence. One of the circumstances vender which Section 65 allows the secondary evidence to be given of the existence, condition or contents of a document is when the original has been destroyed or lost. But, to admit the secondary evidence, however, it is not sufficient to show merely that the original document is lost. The secondary evidence itself must be of the nature described in Section 63.

           IN THE HIGH COURT OF KARNATAKA AT BANGALORE

                                                                  Writ Petition No. 25912 of 2009

                                                                      Decided On: 28.06.2010

Appellants: B.N. Sampath Kumar S/o Y.E. Natarajan "Nataraja Cold Stores"

Vs.

Respondent: Rahimunissa Begum D/o Mohammed Jaffar Sab

Hon'ble Judges/Coram:

Ashok B. Hinchigeri, J.

Citation: 2010(4)KCCR2757

1. The petitioner has raised the challenge to the order, dated 6.7.2009 (Annexure-E) passed by the Court of the Civil Judge (Sr.Dn.) and Prl. J.M.F.C., K.G.F. in O.S. No. 191/2005.

2. The facte of the case in brief are that the petitioner filed the suit against the respondent seeking the relief of specific performance of the agreement, dated 19.6.1989. In the said suit proceedings, the petitioner produced the xerox copy of the affidavit stating that it is by way of an agreement of sale executed by one Abdul Kareem Sab in favour of the petitioner. On the Trial Court refusing the permission to the petitioner to mark the said xerox copy as an exhibit, this petition is filed.

3. Ms. Ujwala, the learned Counsel appearing for M/s. Kumar and Kumar for the petitioner submits that the original affidavit which itself is by way of sale agreement, was in the possession of the said Abdul Kareem Sab. The petitioner retained the xerox copy of the said affidavit. She submits that the Trial Court has fallen into an error by refusing to admit the document in evidence on the ground that its executant is not alive. She further submits that the petitioner has complied with the requirement of law by putting the respondent on notice in the form prescribed by Order 11 Rule 16 of C.P.C. Only on the failure of the respondent to produce the original affidavit, the petitioner requested the Trial Court to permit him to lead the secondary evidence. She submits that the secondary evidence can be marked subject to the objections of the opposite party. Therefore, she submits that there is no justification for turning down the petitioner's request doubting the genuineness of the xerox copy. In support of her submissions, she relies on this Court's decision in the case of Gafarsab @ Sati Gafar SAB v. Ameer Ahamed reported in MANU/KA/0530/2005 : ILR 2006 KAR 169. The relevant paragraphs of the said decision are extracted hereinbelow:

5. Chapter V of the Indian Evidence Act, 1872 (for short "the Act") deals with documentary evidence Section 61 of the Act deals with proof of contents of documents. The contents of documents may be proved either by primary or secondary evidence. Primary evidence means the document itself produced for inspection of the Court whereas the secondary evidence means and includes certified copies of public documents, copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies, copies made from or compared with the original; counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a documents given by some person who has himself seen it. It is clear as a rule documents must be proved by primary evidence. If the primary evidence is not available for the masons set out in Section 65 of the Act only then secondary evidence is admissible therefore, before secondary evidence is adduced, a proper foundation , is to be laid for not producing the primary evidence. Only after the nonproduction of the primary evidence is satisfactorily accounted for, the secondary evidence would be permitted to be adduced.

a) 6. A party to the proceedings is not expected to file any application requesting the court to permit him to lead the secondary evidence. All that is expected of him is to step into the witness box and lead evidence setting out the circumstances under which he is unable to produce the primary evidence. If the Court is satisfied from such evidence that a case is made out for production of secondary evidence, it can permit the party to adduce secondary evidence subject to Sections 63 and 65  of the Act. However, when such permission is granted to the party by the court to lead secondary evidence, it is open to the apposite party to object to the production of such secondary evidence, in which event the court has to mark the document subject to the objections and decide the objections at the time of final disposal of the suit on merits in the event the objection is upheld the said documents and the evidence adduced in respect of the said documents may be ignored while deciding the case on merits.

If the objection is over-ruled, the said documents and the evidence given in respect of the said documents can be taken into consideration while disposing of the case on merits. But, on the ground that the party who proposes to adduce secondary evidence has not disclosed from where, which authority he got the documents and whether the said documents are coming from a proper custody, the document cannot be received to be received in evidence. It is totally irrelevant consideration at the time of admitting the documents in evidence.

La that view of the matter, though the application filed by the defendant is totally misconceived, the masoning given by the learned trial Judge for not accepting the secondary evidence is also illegal. Hence, the aforesaid findings require to be quashed, reserving the liberty to the petitioner-defendant to lay a proper foundation by satisfactorily explaining the reasons for not producing the primary evidence and thereafter he is at liberty to produce the secondary evidence which the Court may receive subject to the objections of the opposite party and decide the admissibility of the documents at the time of final disposal of the suit on merits....

4. Nextly, the learned Counsel relies on the Apex Court's decision in the case of Nawab Singh v. Inderjit Kaur reported in MANU/SC/0329/1999 : AIR 1999 SC 1668. The relevant paragraph of the said decision is extracted hereinbelow:

3. Having heard the teamed counsel for the parties, we are of the opinion that the trial Court was not justified in rejecting the prayer seeking leave of the Court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial Court was not justified in firming that opinion without affording the appellant an opportunity of adducing secondary evidence. The appellant has alleged the original rent note to be in possession of the respondent. The case was covered by Clause (a) of Section 65 of the Indian Evidence Act, 1872.

5. Ms. Ujwala brings to my notice that in respect of issue No. 1, the burden is cast on the petitioner. Unless the petitioner is permitted to produce the secondary evidence in respect of the affidavit in question, the petitioner would not be able to establish his case for the relief of specific performance of the agreement.

6. Per contra, Sri Trimurthy, the learned Counsel appearing for Sri K.S. Desai for the respondent submits that no notice whatsoever is given to the legal representatives of Abdul Kareem Sab or to the respondent under Section 66 of the Indian Evidence Act, 1872. He contends that giving of secondary evidence is permissible only if the pre-condition of issuing the notice under Section 66 of the said Act is complied with. The learned Counsel contends that the issuance of notice as contemplated by Order 11 Rule 16 of C.P.C, does not amount to giving notice as required under Section 66 of the Indian Evidence Act He submits that the notice under the said provisions of C.P.C. is for the purpose of producing the original document which is in the custody of the opposite party. In the instant case, as the defendant has denied the very execution of the affidavit, the question of complying with the notice issued under Order 11 Rule 16 of C.P.C. would not arise at all. He further brings to my notice that nowhere in the plaint, the petitioner has stated that the original affidavit is in the possession of the defendant.

7. Sri Trimurthy has relied on the Hon'ble Supreme Court's decision in the case of Sital Das v. Sant Ram and Ors. reported in MANU/SC/0156/1954 : AIR 1954 SC 606, whereon it is held that the foundation must be first laid for the reception of the secondary evidence. On the same lines is the judgment of the Apex Court in the case of the Roman Catholic Mission v. the State of Madras and Anr. reported in MANU/SC/0253/1966 : AIR 1966 SC 1457, relied upon by the petitioner. It is held therein that the copies of the originals are not admissible in evidence, if no foundation is laid for the establishment of the right to give secondary evidence.

8. Nextly, Sri Trimurthy brings to my notice this Court's decision in the case of B. Balachandra Rai v. Indian Telephone Industries Limited, By Its Chairman and Managing Director and Anr. reported in MANU/KA/0290/2003 : ILR 2003 KAR 2911. In the sail case, this Court has taken the considered view that mere production of photocopies do not amount to proof of the same unless the copy given in evidence is shown either to have been made from original or to have been compared with the original.

9. Further, Sri Trimurthy seeks to draw support from the Division Bench judgment of this Court in the case of K.P. Krishnakumar v. Smt. Radhalakshmi AMMA reported in ILR 2004 KAR 4838. The Division Bench has held that there must be sufficient proof of search for the original to render the secondary evidence admissible; it must be established that the party has exhausted all resources and means in search of the document. He has also relied on the Hon'ble Supreme Court's decision in the case of Ram Suresh Singh v. Prabhat Singh Alias Chhotu Singh and Anr. reported in MANU/SC/0750/2009 : (2009) 6 SCC 681, to contend that the photocopy in the absence of the original is not admissible in evidence.

10. The question that falls for my consideration is whether the Trial Court has erred in rejecting the secondary evidence of such document as being inadmissible in evidence?

11. My perusal of the plaint discloses that there is no averment that the original affidavit is in the possession of the respondent. The last portion of paragraph S of the plaint reads as follows;

5. ...The xeroxed copy of the said document is produced herewith as the said Kareem Sab detained the original of it for the purpose of the family partition.

12. Further, nowhere it is stated that the xerox copy is taken from its original or that it is compared with the original after taking its xerox copy. The decision of the Rajasthan High Court in the case of Rajasthan Golden Transport Co. v. LRs. of Amrtt Lal reported in MANU/RH/0221/1998 : AIR 1998 Rajasthan 153, is of immense assistance. It has held that if no notice was given to the witness to produce the document in original and if there is no material to show that the photostat copy was made from its original, the order permitting the party to produce the said copy is not proper.

13. It is also noteworthy that Abdul Kareem Sab was alive for about 12 years after the stated execution of the affidavit. The suit is not filed when he was alive. There is no way the executant can be confronted with the xerox copy on its genuineness. It is also not in dispute that the petitioner has not issued any notice to the legal representatives of Abdul Kareem Sab to produce the original or to admit that the copy in question is the true copy of the original. In this regard, the Apex Court in the case of Smt. J. Yashoda v. Smt. K. Shobha Rani reported in MANU/SC/7314/2007 : AIR 2007 SC 1721, has taken the considered view that when there is no possibility of the document being compared with the original, the xerox copy cannot be accepted as secondary evidence.

14. As held by the Apex Court in the case of Bitot Das (supra), unless the foundation for producing the secondary evidence is laid, the xerox copy is not admissible in evidence. A plain reading of the plaint does not show that the petitioner has exhausted all the resources and means in search of the affidavit. This can be an additional justificatory reason for the Trial Court's refusal to take the secondary evidence. In this regard, it is useful to refer to the relevant paragraph of the Division Bench judgment in the case of K.P. Krishnakumar (supra), which is as follows:

16. Section 65 of the Evidence Act deals merely with the foundation that has to be laid for reception of secondary evidence. One of the circumstances vender which Section 65 allows the secondary evidence to be given of the existence, condition or contents of a document is when the original has been destroyed or lost. But, to admit the secondary evidence, however, it is not sufficient to show merely that the original document is lost. The secondary evidence itself must be of the nature described in Section 63. A true copy of a document will not be admissible under Section 63 unless it is shown that it has been made from or compared with the original.

Further, there must be a sufficient proof of the search pr the original to tender the secondary evidence admissible & must be established that the party has exhausted all resources and means in search of the document which was available to him. Since this aspect falls within the domain vested in the trial Court, an appellate Court would not ordinarily interfere with the exercise of such discretion. However, it would certainty interfere if it finds that the trial Court has accepted the loss of the document as a fact without taking into consideration the prerequisite conditions that are required by the Evidence Act. At this Juncture, it needs to be noticed and highlighted that it is not the case of the defendant that Ex. D4 is made out of the original and consequently Ex.D-4 is not admissible under Section 63 of the Evidence Act.

15. When the respondent has denied the very execution of the affidavit in question and the petitioner has not issued notice to the legal representatives of the deceased Abdul Kareem Sab or any other party in whose possession the original document, if any, may be lying, the petitioner can not be permitted to produce the xerox copy in question as the secondary evidence. The Bombay High Court has held in the case of Sau. Parvatabai B. Raimande (deceased by L.Rs.) and Ors. v. Smt. Anjanabai G. Hiware and Anr. reported in AIR 2009 Bom 1264, thus:

(A) Evidence Act(1 of 1872), Rs. 65, 66 - Secondary evidence - Production - Procedure - Notice to produce to party in whose possession original document is - Necessary.

16. It is also worthwhile to refer to the decision of the Orissa High Court in the case of Purna Chandra Patnaik v. Kalidas Sen and Ors. reported in MANU/OR/0025/1973 : AIR 1973 Orissa 65, wherein it is held that, if the original is not in possession of the plaintiff, no secondary evidence can be admitted unless notice under Section 66  to the person possessing it is issued; the issuance of the notice under Section 66 of the said Act is mandatory. Similarly, the Division Bench of Calcutta High Court in the case of Nityananda Roy v. Rashbehari Roy reported in MANU/WB/0167/1953 : AIR 1953 Calcutta 456, has this to say:

5. ...The procedure there prescribed is that the patty desiring to make use of secondary evidence must, in the first instance, serve a notice upon the party in whose possession the original may be, requiring him to produce the original and it is only when such notice is not complied with that the right to give secondary evidence arises There are certain exceptions to the rule laid down in Section 66, but it is perfectly clear that none of them applies to the present case. It is equally clear from the records that no notice of any kind was ever served on the petitioner. In those circumstances, it follows that the carbon copy of the signature, appearing on Ex. 1, never became admissible in law and in so far as the learned Magistrate's conclusion is based upon Ex. 1, it is plainly erroneous.

17. As no material particulars as to what endeavours are made toy the petitioner to search the original are furnished, as the petitioner has not said in whose possession the original affidavit is lying, as no notice under Section 66 of the Indian Evidence Act, 1872 is issued, as the legal representatives of the deceased Abdul Kareem Sab are also not put on notice, as there is no averment in the plaint that the xerox copy is taken from the original or is compared with the original and as there is no possibility of the xerox copy being compared with the original, the Trial Court's order dismissing the I.A. is absolutely upholdable and it is accordingly upheld. Considering the legal and factual matrix of this case, a xerox copy of the affidavit in question cannot be permitted to be marked in evidence at all. No foundation whatsoever is laid for the establishment of the right to give secondary evidence.

18. For all the aforesaid reasons, this petition is dismissed. No order as to costs.

Different Types of Possessions in Law

Different Types of Possessions in Law

In law, possession is considered as the control a person intentionally exercises towards a thing. In all cases, a person must have an intention to possess something. Just like ownership, the possession of things is commonly controlled by states under property law.

Possession is one of the key concepts in the property law. Possession, the right of possession and ownership are three related and overlapping terms. Possession needs both the control and intention.

Mediate possession :

Mediate Possession is possession through an intermediary, such as an agent. One person may possess a thing for & on account of someone else. In such case, the latter is in possession by the agency that holds the thing on behalf of him. The possession thus is done by one man through another termed mediate.

Immediate possession:

The legal right to move into a house or other any property immediately after buying it.  Immediate possession is the legal right to take control of a property as soon as an official arrangement is completed.  For example, if you purchase a book from the book shop for yourself and have it with you, it is immediate possession.

Adverse possession:

Adverse possession is principle under which a person in possession of the land possessed by someone else may acquire the valid title of it, so long as certain common law necessities are met, and the adverse possessor is in possession for such a sufficient period of time, as defined by the statute of limitations. Some of the important aspects and necessities for obtaining title over a property through adverse possession are Continuity in adverse possession, Hostile Possession, Actual Possession:, Exclusive Possession.

Constructive possession:

Constructive possession describes a situation where an individual has actual control over possessions or real property without truly having physical control over the same assets.  A person with constructive possession stands in the same legal position as with actual possession.

Corporeal possession :

Corporeal means having a body. Corporal possession is seen and tangible. It is possession of a material object. Examples are house, book, pen, car, cycle, computer, typewriter etc. Corporeal possession can be considered as the possession of a thing. That is the material object is seen.

Incorporeal possession

Incorporeal means having no body. Corporal possession is the possession of anything other than the material object. Examples are a trade mark, patent, copyright, etc. Incorporeal possession can be considered as the possession of a right. It cannot be seen.

Possession in law

This is related to law. Possession in law means that the possessions are recognized by law. For example, you purchased a car then you possessed it. Your possession of the scooter is recognized by the law. It can be considered as de jure recognition.

Possession in fact

Possession, in fact, is Actual and is related to fact.It need not be recognized by the law. For example, A stole your scooter. The scooter is in possession of A. it is a fact. The possession of A is a possession in fact though it is not recognized by law. Possession, in fact, is only de facto. It can be a representative possession, Concurrent possession, derivative possession etc.

കൊടുക്കാമോ അത്രയേ വേണ്ടൂ. ആധാരമെഴുത്ത് എന്നത് ഒരു ഫോം പൂരിപ്പിക്കലായി ലഘൂകരിക്കപ്പെട്ടിരിക്കുന്നു എന്ന വസ്തുത കേരള സമൂഹം ഇനിയു

പുരിപ്പിക്കാൻ അറിയില്ലെങ്കിൽ നാട്ടിൽ അറിയുന്ന ആരെക്കൊണ്ടെങ്കിലും പൂരിപ്പിച്ചാൽ മതി. ആധാരമെഴുത്തുകാർ തന്നെ വേണമെന്നില്ല. ആധാരമെഴുത്തുകാരെ കൊണ്ട് പൂരിപ്പിക്കുകയാണെങ്കിൽ തന്നെ പൂരിപ്പിക്കുന്നതിനുള്ള ഒരു ചെറിയ പ്രതിഫലം കൊടുത്താൽ മതി. പഴയത് പോലെ ആധാരത്തിൽ കാണിക്കുന്ന വിലയുടെ ശതമാനക്കണക്കിൽ പതിനായിരങ്ങൾ കൊടുക്കേണ്ടതില്ല. ഒരു ഫോം പൂരിപ്പിക്കാൻ എത്ര കൊടുക്കാമോ അത്രയേ വേണ്ടൂ. ആധാരമെഴുത്ത് എന്നത് ഒരു ഫോം പൂരിപ്പിക്കലായി ലഘൂകരിക്കപ്പെട്ടിരിക്കുന്നു എന്ന വസ്തുത കേരള സമൂഹം ഇനിയും മനസ്സിലാക്കിയിട്ടില്ല എന്നത് ലജ്ജാകരമാണ്. ആളുകൾ കാലത്തിനൊപ്പം അപ്‌ഡേറ്റ് ആകാത്തത് നിരാശാജനകമാണ്.

Section 65-B(1) of the Indian Evidence Act, 1872 defines Admissibility of electronic records

Section 65-B(1) of the Indian Evidence Act, 1872 defines Admissibility of electronic records

“65B. Admissibility of electronic records:

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

In the High Court of Bombay

(Before R.G. Ketkar, J.)

Nyati Builders Pvt. Ltd.

v.

Mr. Rajat Dinesh Chauhan and Ors

Writ Petition No. 7329 of 2015

Decided on December 18, 2015

R.G. Ketkar, J.:— Not on Board. At the request of Mr. Sawant, taken up for admission. Heard Mr. Rohan Sawant, learned counsel for the petitioners.

2. By this Petition under Article 227 of the Constitution of India, the petitioners, hereinafter referred to as ‘defendant no. 1’, have challenged the Judgment and order dated 15.9.2014 passed by the learned 3rd Jt. Civil Judge, Senior Division, Pune below Exhibits 96 and 99. By that order, the learned trial Judge permitted respondents no. 1 and 2, hereinafter referred to ‘plaintiffs', to furnish fresh certificate as contemplated under section 65B (2) and (4) of the Indian Evidence Act, 1872 (for short, ‘Act’). After submission of the said certificate, the e-mails will be treated as a primary document and will be admitted in evidence as a proved document.

3. Mr. Sawant strenuously contended that on 5.10.2011, the learned trial Judge passed order on application Exh.59. The application Exh.59 was filed by defendant no. 2 praying for “not exhibiting copies of computer output of email correspondence filed by the plaintiffs. On the same day, learned trial Judge passed following order.

“The document is exhibited subject to objection, its admissibility will be decided at the time of final argument”.

4. Mr. Sawant submitted that by that order, the learned trial Judge specifically kept objection as regards admissibility open to be decided at the time of final argument. In other words, objection as regards admissibility of document was to be decided while deciding the suit itself and not in earlier point of time. He submitted that the plaintiffs did not challenge the order dated 5.10.2011. It is, therefore, not open to the trial Court to decide the admissibility of the document in midway of the suit. The application Exh.96 filed by the plaintiffs was to permit them to lead secondary evidence in the form of printouts already produced and exhibited at Exhibits 63 to 79 as per section 65 of the Act. Application Exh.99 was filed by the plaintiffs for filing on record certificate in the form of an affidavit under section 65B(4) of the Act. However, by the impugned order, the learned trial Judge has treated e-mails as a primary document and admitted them in evidence as a proved document. He submitted that the learned trial Judge was not justified in admitting e-mails in the evidence, that too, as a primary document. He lastly submitted that at any rate the document so produced and admitted in evidence cannot be treated as a primary evidence. In support of this submission, he relied upon the decision ofAnvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 and in particular paragraph 22 thereof.

5. I have considered the submissions advanced by Mr. Sawant. I have also perused the material on record. Section 59 of the Act lays down that all facts, except the contents of document or electronic records, may be proved by oral evidence. Section 62 gives meaning of the expression ‘primary evidence’. Section 63 deals with secondary evidence. Section 65 provides cases in which secondary evidence relating to documents may be given. Section 65-A lays down special provisions as to evidence relating to electronic record and section 65-B deals with admissibility of electronic records. In the case of Anvar P.V. (supra), Apex Court has observed in paragraph 22 thus:

“22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court inState (NCT of Delhi) v. Navjot Sandhu case (2005) 11 SCC 600, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”

6. Perusal of the above extracted portion clearly shows that electronic record by way of secondary evidence shall not be admissible in evidence unless the requirements under section 65B are satisfied.

7. Mr. Sawant submitted that when the plaintiff filed electronic record, they did not file certificate in terms of section 65B and therefore the learned trial Judge was not justified in admitting electronic record in evidence.

8. Perusal of the impugned order shows that at the time of filing the electronic record the plaintiffs did not file certificate containing the details in terms of section 65B (4). The learned trial Judge, therefore, did not admit those documents on 5.10.2011 and kept the issue open. The plaintiffs, thereafter filed application Exh.99 seeking permission to produce the fresh certificate under section 65B (4) and the learned trial Judge permitted the plaintiffs to file fresh certificate in compliance of requirements of Section 65B (4).

9. Mr. Sawant submitted that the plaintiffs did not challenge the order dated 5.10.2011 and, therefore, it will operate as res judicata. This aspect was considered by the learned trial Judge in paragraph 16. The learned trial Judge observed that issue of admissibility of the e-mails was kept open at the stage of final hearing. In other words, e-mails were neither discarded nor admitted in evidence. In view thereof, the order passed on 5.10.2011 did not finally decide issue of admissibility of e-mails on record. Principle of res judicata will not be applicable as the learned trial Judge did not decide the said issue on merits and it was in fact kept open at the stage of final argument.

10. Mr. Sawant submitted that in any case the learned trial Judge was not justified in passing the impugned order and ought to have considered this aspect only at the time of final hearing of the suit. It is not possible to accept this submission as no provision was pointed out prohibiting the plaintiffs from applying for admitting the documents subject to compliance of requirements of section 65B(4).

11. Section 65-B(1) reads thus:

“65B. Admissibility of electronic records:

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

12. Perusal of the above provision shows that if the conditions mentioned in Section 65B are satisfied in relation to the information and computer in question, it shall be admissible in any proceedings without any further proof or production of the original as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

13. In view thereof, I do not find that the learned trial Judge has committed any error in admitting e-mails in evidence.

14. That leaves me to consider the contention advanced by Mr. Sawant that the learned trial Judge should not have treated as primary evidence. In view of paragraph 22 of the decision of Apex Court in Anvar P.V. Case (supra), the learned trial Judge should have treated these e-mails as secondary evidence. Subject to this modification, no case is made out for invocation of powers under Article 227 of the Constitution of India. Petition fails and the same is dismissed.

15. It is, however, expressly made clear that where a decree is appealed from by the petitioner, any error, defect or irregularity in the impugned order affecting the decision of the case, may be set forth as a ground of objection in Memorandum of Appeal as contemplated by Section 105(1) of C.P.C.

What are the stages of a crime? What is an attempt to commit an offence? Distinguish between Preparation and Attempt

Q. What are the stages of a crime? What is an attempt to commit an offence? Distinguish between Preparation and Attempt. What do you mean by attempt to commit murder? Whether without causing injury can a person be held guilty of attempt to commit murder? Do the elements of Sec 511 (attempt to commit an offence) apply to section 307, 308, & 309 (attempt to commit murder, culpable homicide, and Suicide)?

In general, an offence passes through the following stages -
Conceiving the idea of performing a legally defined harm - It is immaterial whether the person conceiving such an idea knows that it is illegal to perform it. At this stage, there is no action taken to harm anybody and it is not a crime to merely think of doing harmful activity because the person thinking it may not even want to actually do it. For example, merely thinking killing 1000s of people instantaneously, is not a crime.
Deliberation - At this stage, a person consolidates his devious ideas and identifys ways of doing it. Again, there is no action taken and there is no harm done to anybody nor is there any intention to cause injury to anybody. It is still in the thinking stage and is not a crime. For example, merely thinking about how to build a device that can kill 1000s of people instantaneously, is not a crime.

From a legal standpoint the above two stages are inconsequential because man being a thoughtful animal, he thinks about innumerable things without any material result.

Intention (Mens Rea) - This stage is a significant progress from mere deliberation towards actual commission of the crime. At this stage, the person has made up his mind to actually implement or execute his devious plans.  There is an intention to cause harm but he hasn't yet taken any action that manifests his intention. Further, there is no way to prove an intention because even devil can't read a human mind. Thus, this is not considered a crime. For example, intention to kill anyone is not a crime in itself. However, it is an essential ingredient of crime because without intention to cause harm, there can be no crime. On the other hand, even a thoughtless act, without any deliberation, can be a crime if there is an intention to cause harm.

Preparation - As this stage, the intention to cause harms starts manifesting itself in the form of physical actions. Preparation consists of arranging or building things that are needed to commit the crime. For example, purchasing poison. However, it is possible for the person to abandon his course of action at this stage without causing any harm to anyone. In general, preparation is not considered a crime because it cannot be proved beyond doubt the goal of the preparation. For example, purchasing knife with an intention to kill someone is not a crime because it cannot be determined whether the knife was bought to kill someone or to chop vegetables.

However, there are certain exceptions where even preparation for committing an offence is crime. These are -
    Sec 122 - Collecting arms with an intention of waging war against the Govt. of India.
    Sec 126 - Preparing to commit depredation on territories of any power in alliance or at peace with the Govt. of India.
    Sec 235 - Counterfeiting operations for currency.
    Sec 399 - Preparation to commit dacoity.

Attempt - This stage is attained by performing physical actions that, if left unstopped, cause or are bound to cause injury to someone. The actions clearly show that the person has absolutely no intention to abandon his plan and if the person is left unrestricted, he will complete the commission of the crime. Since the intention of the person can be determined without doubt from his actions, an attempt to commit a crime is considered a crime because if left unpunished, crime is bound to happen and prevention of crime is equally important for a healthy society.

Actual commission of the offence - This is the final stage where the crime is actually done.

Distinction between Preparation and Attempt

There is a very fine line between preparation and attempt. While, IPC does not define either of them, it is very important to distinguish between them because attempt is a crime but preparation is not. Both, Preparation and Attempt are physical manifestations of the criminal intention. But attempt goes a lot father than preparation towards the actual happening of crime. While in Preparation, there is a possibility that the person may abandon his plan, but attempt leaves no room for that. For example, keeping a pistol in pocket and looking for the enemy to kill is a preparation because one can abandon the plan anytime, but taking out the piston and pulling the trigger is attempt because it leaves no room for turning back.. Thus, in general, Preparation involves collecting material, resources, and planning for committing an act while attempt signifies a direct movement towards commission after the preparations are made.
Ordinarily, to constitute an attempt the following elements are needed -

    mens rea to commit the crime
    ant act which constitutes the actus reus of a criminal attempt
    failure in accomplishment

In the case of R vs Cheesman 1862, Lord Blackburn identified a key difference between the two.  He says that if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.

However, this is not the only criteria for determining an attempt.  The following are four tests that come in handy in distinguishing between the two -

    Last Step Test or Proximity Rule
    As per this test, anything short of last step is preparation and not attempt. This is because as long as there is a step remaining for completion of the crime, the person can abandon it. For example, A obtains poison to kill B and mixes it with food that B is supposed to eat. But he has not yet given the food to B. Thus, it is still preparation. As soon as he keeps the food on the table from where B eats everyday, the last step is done and it becomes an attempt.
    In the case of R vs Riyasat Ali 1881, the accused gave orders to print forms that looked like they were from Bengal Coal Company. He proofread the samples two times and gave orders for correction as well so that they would appear exactly as forms of the said company. At this time he was arrested for attempt to make false document under section 464. However, it was held that it was not an attempt because the name of the company and the seal were not put on the forms and until that was done, the forgery would not be complete.
    In the case of Abhayanand Mishra vs State of Bihar AIR 1961, A applied to the Patna University for MA exam and he supplied documents proving that he was a graduate and was working as a headmaster of a school. Later on it was found that the documents were fake. It was held that it was an attempt to cheat because he had done everything towards achieving his goal.
    Indispensable Element Test or Theory of Impossibility
    As per this test, all of indispensable elements must be present to equal attempt. For example, a person has the gun to kill but he forgot the bullets. In this case, it would not be an attempt.  Further, he goes to place where victim should be but is not then he is not guilty of attempt under this test.  In other words, if there is something a person needs to commit the crime but it is not present, then there is not an attempt.  This test has generated a lot of controversy ever since it was laid in the case of Queen vs Collins, where it was held that a pickpocket was not guilty of attempt even when he put his hand into the pocket of someone with an intention to steal but did not find anything. Similarly, in the case of R vs Mc Pherson 1857, the accused was held not guilty of attempting to break into a building and steal goods because the goods were not there.

    However, these cases were overruled in R vs King 1892, where the accused was convicted for attempting to steal from the hand bag of a woman although there was nothing in the bag. Illustration (b) of section 511 is based on this decision.
    But For Interruption Test
    If the action proves that the person would have gone through with the plan if not for the interruption such as  arrest, then it is an attempt. For example, a person points a gun at another and is about to pull the trigger. He is overpowered and was stopped from pulling the trigger. This shows that if he had not been interrupted, he would have committed the crime and he is thus guilty of attempt even though the last step of the crime has not be performed.
    Unequivocality Test or On the job Theory
    If a person does something that shows his commitment to follow through and commit the crime then it is an attempt. For example, in the case of State of Mah. vs Mohd. Yakub 1980, three persons were found with a truck loaded with silver near the sea dock. Further, the sound of engine of a mechanized boat was heard from a nearby creek. They were convicted of attempting to smuggle silver. J Sarkaria observed that what constitutes at attempt is a mixed question of law and the facts of a case. Attempt is done when the culprit takes deliberate and overt steps that show an unequivocal intention to commit the offence even if the step is not the penultimate one.

Attempt to commit murder

Section 307 of IPC states that whoever does any act with intention or knowledge, and under such circumstances, that, if by that act he caused death he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act the offender shall be either liable to imprisonment for life.

This means that if a person intentionally does something to kill another and if the other person is not killed, he would be liable for attempt to murder. However, his action must be capable of killing. For example, if a person picks up a pebble and throws it on someone saying, "I will kill you", it is not attempt to murder because it is not possible to kill someone with a pebble. But if someone swings a thick lathi and misses the head of another person, it is attempt to murder.

Illustrations -

    A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
    A, with the intention of causing the death of a child of tender years, exposes it is a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
    A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of ] this section.
    A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence defined in this section. A places the food on Z' s table or delivers it to Z's servant to place it on Z's table. A has committed the offence defined in this section.

Is Injury necessary
From the wordings of this section, it is clear that a person is liable under this section even if no injury is caused to anyone. However, if hurt is caused, the punishment is more severe. Further, as held in the case of State of Mah. vs Balram Bama Patil 1983, SC held that for conviction under sec 307, it is not necessary that a bodily injury capable of causing death must be inflicted but the nature of the injury can assist in determining the intention of the accused. Thus, this section makes a distinction between the act of the accused and its result.

Whether act committed must be capable of causing death
In Vasudev Gogte's Case 1932, the accused fired two shots at point blank range at the Governor of Bombay. However, it failed to produce any result because of defect in ammunition or intervention of leather wallet and currency. It was held that to support conviction under this section the accused must have done the act with intention or knowledge that but for any unforeseen intervention, it would cause death. Thus, he was held guilty.

Penultimate Act not necessary
In the case of Om Prakash vs State of Punjab, AIR 1961, SC held that a person can be held guilty under this section if his intention is to murder and in pursuance of his intention he does an act towards its commission, even if that act is not the penultimate act. As per J B K Sharma, the intention of the culprit is the key and it must be gathered from all the circumstances and not merely from the location, number, and type of injury.

Section 307, 308, 309 and Section 511

Attempts are dealt with in IPC in three ways -
1. Some sections such as 196 and 197, deal with the offence as well an attempt for that offence.
2. Some sections such as 307 and 308 deal exclusively with an attempt of an offence.
3. The attempts for offenses that are not dealt with in above two are covered by section 511.

Thus, a case of attempt to murder may fall under section 307 as well as section 511. There is a conflict of opinion among the high courts regarding this matter.  In the case of R vs Francis Cassidy 1867, Bombay HC held that section 511 is wide enough to cover all cases of attempt including attempt to murder. It further held that for application of section 307, the act might cause death if it took effect  and it must be capable of causing death in normal circumstances. Otherwise, it cannot lie under 307 even if it has been committed with intention to cause death and was likely, in the belief of the prisoner, to cause death. Such cases may fall under section 511. However, in the case of Queen vs Nidha 1891, Allahabad HC expressed a contrary view and held that sec 511 does not apply to attempt to murder. It also held that section 307 is exhaustive and not narrower than section 511.

In the case of  Konee 1867, it was held that for the application of section 307, the act must be capable of causing death and must also be the penultimate act in commission of the offence, but for section 511, the act may be any act in the series of act and not necessarily the penultimate act. However, this view has now been overruled by SC in the case of Om Prakash vs State of Punjab AIR 1967, where the husband tried to kill his wife by denying her food but the wife escaped. In this case, SC held that for section 307, it is not necessary that the act be the penultimate act and convicted the husband under this section.

A, the licensee of a petrol pump, and his 9 yr old brother are caught adulterating petrol in an underground storage. What offence is committed by A and his brother?

In this case, there are two people who are doing the act - one is an adult and one is a boy between the age of 7 and 12. Thus, as per section 83, first of all it will be determined if the boy had the maturity to understand what he was doing and what could be the consequences of his act. If upon analyzing the facts of the situation and cross examining the boy, it is determined that the boy was mature enough to understand the nature of his act, he will be treated as an adult.  In this case,  as per section 34 (Act done by several persons in furtherance of common intention) both will be charged with the same offence as if they had done it alone. Otherwise, the boy will be acquitted by giving the benefit of section 83 and only the man will be charged.

Regarding the charges -

    The man is a licensee of the petrol pump and is thus an agent of the petrol company. He is supposed to keep and sell petrol according to the terms of license. Since he was caught adulterating it, he has committed the offence of criminal breach of trust as per section 405. However, since he is an agent, this becomes a special case and he will be punished under  section 409, which is meant for public servant, banker, attorney, merchant or agent.
    The boy is not a licensee so he cannot be charged for this offence even if he did not get benefit of 83 as mentioned before.
    Their actions show that they had full intention to cheat public by selling adulterated petrol and if the police hadn't stopped them, they would have sold the adulterated petrol. Since the whole underground tank was being adulterated it can be safely assumed that they had left no option to change their intention. However, since the petrol was not sold yet, no body was cheated and thus, they will be charged under section 511 read with attempt to commit  the office of cheating, which is defined in section 415 and the punishment for which is given in Section 417.
    However, the boy is neither the licensee nor is the seller of petrol. It is not given that he was working as an employee of the licensee of the petrol pump. As such, he owes no fiduciary responsibility to either the licensee or to the customers. Thus, his involvement in adulterating petrol is not a crime against the customers, nor against the company. Further, his involvement in adulterating petrol is not a tortious act against the licensee either because he was doing it with the consent of the licensee. Thus, even if the boy does not get the benefit of section 83, he has not done any crime and should be acquitted.