Monday, 9 April 2012

Law of Evidence - Overview

Evidence can be defined as any material which tends to persuade the court of the truth or probability of a fact asserted before it.

The moral certainty – the utmost result that can, in any case, be produced by judicial evidence, is a very high degree of probability. However the degree of probabilities attainable in judicial inquiries do not admit of exact measurement. The point worth noting is what is commonly called as moral certainty and this means simply such a degree of probability as a prudent man would act upon the circumstances.

The word evidence in its relation to law includes all the legal means exclusive of mere arguments which tend to prove or disprove any fact, the truth of which is submitted for judicial investigation.

The first great lesson learnt from the observation of the world in which we live, is that a fixed order prevails amongst the various facets of which this world is composed of.

Law is a social science and degree of proof varies depending upon peculiarities of each case. By and large, all trials are a replay of a event, that has taken place.

Evidence of fact should not be confused with the fact itself.

Law of evidence governs the means and the manner in which a party may substantiate his case or refute that of his opponent. The law of evidence determines how the parties are to convince the court, of the existence of the facts stated and alleged, which would establish the right claimed or the liability imposed upon.

The laws of evidence are applied by courts in the process of enquiry into the truth as to the disputed question of facts. Every judicial proceeding ascertains some right or liability of the parties before it. The law of evidence indicates what may properly be introduced by a party to prove his case. What is to be proved is – relevancy of fact and the proof of fact.

The laws of evidence are founded on practical experience of actual litigation, the constitution of the human nature, habits of the society in general. It is intimately connected with the whole theory of human knowledge and with logic as applied to human conduct. Law of Evidence is determining the fact is the initial important step in every judicial proceeding.

The definition of the word “Proved” has been drafted because of the knowledge on the part of jurists like Bentham and Macaulay, that in an imperfect world, perfect proof is impossible. Proof has to be measured and equated with prudence. But our courts sometimes, almost expect to produce receipts of bribes, to prove corruption. Question of proof in M S Narayana Menon versus State of kerala (2006) 6 SCC 39.

Who is a Prudent Man: A prudent man envisaged by the Indian Evidence Act is a wise man, may not be a genius. A prudent man is not in a hurry. He is not influence by his emotions and act after weighing the occasion. He deliberates. He pauses. He rethinks and willing to learn. He agonizes. He is willing to see the point of view, which was never in his mind. He may not be learned but has robust common sense and has basic instinct that move man and woman. The said definition of prudent man calls upon the judge to become realisatic and practical. A good understanding of definition of “proved” is likely to secure the ends of justice.
What is Evidence: The materials placed before a court based on which the court determines the existence or non existence of a fact in issue.

The judges need to be reminded, humbly, that they are dealing with human lives, and not merely web of statements of law.

It is commonly said in reference to judicial inquiries that in criminal case guilt ought to be proved beyond reasonable doubt and that in civil cases the decision ought to be in favour of a person which is more probably right.

The utmost result in any case that can be produced by judicial evidence is a very high degree of probability.

The scheme of the Indian Evidence Act needs to be understand very carefully. The Act is divided into three parts
  1. Relevant Facts – What are they – Sections 5 to 55
  2. Means to Prove Facts in issue  / Relevant facts - Sections 56 to 100
  3. The Manner in which the Evidences - Oral / Documentary, can be produced and effect thereof such production of Evidence - Sections 101 to 167

Relevant Facts – What are they – Section 6 to 54

Section 6 – facts so connected so as to form part of the same transaction – bundle of facts constituting the cause of action, are relevant facts.

Section 7 – facts which gives rise to “facts in issue” or facts which gives rise to relevant facts, are relevant facts.

Section 8 – Motice of the accused person / Complainant; facts showing preparation to the alleged illegal act / omission; the conduct of the parties – whether before or after the alleged illegal act / omission. Explanation – 2. general human conduct who is alleged to have committed a crime or incurred a civil liability – Section 114 would aid this section.

Section 9 – facts necessary to explain or introduce relevant facts are relevant; the logical inference may be supported or rebutted under this section; a fact which establish the identity of any person; a fact which establish the time and place of the “fact in issue” or of “relevant facts”; facts which shows the relation of parties.

Section 10 – things said or done by a conspirator in reference to common design – to commit any offence or actionable wrong – Section 34, 120B, 149 of IPC; Section 10 (ii).

Section 11 – facts which are inconsistent with the facts in issue or inconsistent with relevant facts, are relevant; facts which reinforces the existence / non existence of facts in issue / relevant facts; facts which demolish the existence / non existence of facts in issue / relevant facts, are relevant.

Section 12 – facts influencing the amount of damages are relevant.

Section 13 – when customary or equitable right is claimed –

Section 14 –

Section 15 – when the question before the court is whether the alleged act / omission is accidental / intentional –

Section 16 – all acts are presumed to have been done – existence of any course of business” –

Section 17 – admission defined – any statement – oral or written – having direct nexus with the facts in issue / relevant facts.

Section 18 – admission by party or by its auth agent.

Section 19 – statement made by person who is liable to alleged act / omission, is an admission against person who is responsible for taking action against the person who is making the statement. Illustration –

Section 20 – Admissions by persons who are expressly referred to rely upon. Illustration –

Section 21 – Admission can be proved against the person making such admission and not otherwise – except –
Where the person making the admission is dead;
Where the person making the admission explaining the existence of any state of mind or body;
Where the person making the admission is relevant otherwise than as an admission.

Section 22, 22A – oral admissions as to contents of documents are not relevant, unless – the party is entitled to give secondary evidence of the said document – or when the genuniness of the document is in question.

Section 23 – an admission is not relevant, if the admission is made upon the express condition that evidence of the said admission is not to be given; or where the court can safely infer that it was agreed between the parties that evidence of admission will not be given in the court of law; the principle of admission without prejudice.

Section 24 – confessions made before persons in authority – the confessions which are alleged to have been infected with inducement / threat  / promise – are irrelevant.

Section 25 – confessions to Police officers are not relevant nor admissible.

Section 26 – Confession by an accused person, in the custody of the Police, is not admissible, except made in the presence of a judicial magistrate.

Section 27 – Any fact discovered from the information received from an accused person, who is in the custody of a Police officer, may be admissible and proved.

Section 28 – Confession made in the absence of inducement, threat etc, is relevant.

Section 29 – Subject to provisions of Section 28, Confessions are relevant even when –
The Confession is obtained under the promise of secrecy;
The Confession is obtained by practising deception on the accused person to obtain such confession;
When the accused was drunk;
When the accused has answered incriminating questions;
When the accused is not warned that the accused is not bound to make confession; and the fact of his confession may be given in evidence against the said accused person.

Section 30 – Confession by a person is relevant when other persons are also charged with the same offence.

Sections 31 – Admissions are not conclusive proof of the matters admitted, but such admissions may operate as an estoppel against the said person who has so admitted certain matters.

Section 32 – recognizes a principle wherein a testimony of a person may be relied upon although the said person has not personally experience the substance of the said testimony.

(a) Dying declarations –

(b) So as to ascertain the date of happening of an event;

(c) Plea of alibi;

(e) Rent paid for certain land;

Section 33 – Relevancy of certain evidence given in previous judicial proceedings may be relevant in subsequent judicial proceedings – provided that –
(a)    the previous judicial proceedings was between the same parties as that of subsequent judicial proceedings;
(b)   that the party who had given evidence is subjected to cross examination;
(c)    that the “issue” in the judicial proceeding in which the evidence was given, was substantially the same in the subsequent judicial proceeding.

Section 34 – Entries in books of accounts, which are regularly kept in the course of business, are relevant, but such records of books of accounts must be supported by other evidences, so as to charge any person with liability.

Section 35 – Entries in any public record are relevant, when made by a Public servant, in the discharge of his official duty; or When Entries in any public record, made by any other person, in the performance of a duty especially enjoined by law of the country in which such Public Records are kept.

Section 36 – Statements made in charts, maps, plans which are generally offered for sale are relevant; or Statements in charts, maps, plans made under the authority of Central / State govts, are relevant;

Section 37 – Statements made in the recitals contained in any act of Parliament, any gazetted notification, are relevant.

Section 38 – Any statement of law contained in a book published under the authority of a govt of that country, is relevant.

Section 39 – When only part of a document is to be proved, then, evidence shall be given of so much and no more of the statement as the Court considers necessary in that particular case –
(a)    to the full understanding of the nature and effect of the statement;
(b)   and of the circumstances under which the statement is made.

Sections 40 to 44 – Previous Judgments when relevant –

Section 40 – When the question before the Court is whether the Court ought to take cognizance of any Suit before it or to hold trial of any Suit before it, the existence of any judgment, decree or order, which by law, prevents any court from taking cognizance of a Suit or holding a trial, is relevant. Principle of Res judicata.

Section 41 – When the existence of any legal character, or the title of any person to any thing is in question – any judgment, order or decree of a competent court
(a)    which confers or takes away any legal character to any person;
(b)   or which declares any person to be entitled to any specific thing, absolutely,

are relevant facts.

Such judgment, order or decree is conclusive proof –
(a)    that any legal character accrued at the time when such judgment, order or decree came into operation;
(b)   vnd
(c)    gfds
(d)   mh.

Section 42 – when the question before the Court relates to matter of public nature, than, judgments, order or decrees other than those stated in section 41, are relevant; however such judgments etc are not conclusive proof by itself to the enquiry at hand.

Section 43 – Judgment, order or decree are relevant, when the said Judgment, order or decree is a fact in issue or is a relevant fact, under some provisions of this Act.

Section 44 – Fraud or collusion in obtaining judgment or incompetency of the Court may be proved – any party to a Suit or other proceeding may show that any judgment, order or decree was delivered by a Court not competent to dliver it; or the said Judgment, order or decree was obtained by fraud or collusion.

Sections 45 to 51 – Opinion of third Persons – Evidence by experts –

Section 45 – When the Court has to form an opinion –
Upon a point of foreign law; or
Upon a point of Science; or
Upon a point of Art; or
Upon a point as to ascertain the identity of handwriting or finger impression –

Than – the opinion of person especially skilled in the respective branch, is a relevant fact.

Section 45A-

Section 46 – when the opinion of experts are relevant, than –
(a)    any fact which supports the opinion of expert, is a relevant fact;
(b)   any fact which is inconsistent with the opinion of the expert, is a relevant fact.

Section 47 –

Section 52 to 55 – relevancy of character of Persons –

PART II on Proof of Facts in issue or Proof of Relevant facts –

Sections 56 to 58 – Facts which may not be proved –

Section 56 – Judicially noticeable facts;

Section 57 – Facts of which the Court will take judicial notice;

Section 58 – Facts admitted;

Section 59 – All facts, except contents of documents, may be proved by oral evidence.

Section 60 – Oral evidence must be direct – i.e. to say –

Section 61 – the contents of a document may be proved, either by primary evidence or secondary evidence;

Section 62 – Primary evidence means the original document.

Section 63 – Secondary evidence – means and includes –
Certified copies;
Xerox copies;
Copies made from the original;

Section 64 – documents must be proved by primary evidence………

Section 74 – Public documents – what are they.

Section 75 – Private documents.

Section 76 – essential ingredients of a certified copy of a Public document;

Section 77 – “Such” certified copies may be given to prove the contents of Public documents.

Section 78 – Proof of other Public documents.

Section 79 to 90A – Presumptions as to documents –

Section 79 – the Court shall presume the genuiness of certified copies….

Section 80 – (a) any record or memorandum of evidence given by a witness in a judicial proceeding; or given before any officer authorized by law to take such evidence;
(b) or when any document to be a statement or confession by any prisoner or accused person taken in accordance with law…….

Section 91 to 100 – Exclusion of Oral evidence and insistence to lead documentary evidence –

Section 93 – Evidence cannot be led to explain patently ambiguous document;

Section 94 – When the language of the document is plain in itself, and when the meaning of the plain language is accurately applicable to existing facts, than evidence cannot be given to show otherwise than what is stated in the document.

Sections 101 to 114A – Burden of Proof –

Sections 115 to 117 – Estoppel

Sections 118 to 134 – Witnesses – Privilege communications

Sections 135 to 166 – Examination of Witnesses

Section 167 – Improper admissions – Improper rejection of evidences.

Section 52 to 55 and 115 to 117 – applies only to civil proceedings
Section 24 to 30 – applies only to criminal proceedings

Presumption of facts – Sections 79, 81, 83, 85, 89, 105

Presumption of fact – courts of justice do nothing more than apply a process of reasoning, which the mind of any intelligent would, under similar circumstances have applied for itself, and the force of which rests altogether on experience and observation of the course of nature, the constitution of the human mind, the springs of human action and the usage and habits of the Society.

Relevancy of facts –
Every act and omission is a fact;
Every state of things is a fact;

Section 5, 6 of Act is very important.

Res Gestae – section 6,7,8,9,14.

Section 3 – Evidence – means and includes – AIR 2011 (NOC) 160 (Bom) (FB) – Para 31.

Evidence – direct – indirect – substantial – meanings – AIR 2011 All 169 – Paras 33, 34, 35

Sections 3, 8, 27 – details of telephone calls – very important, relevant and admissible piece of evidence – Siddhartha Vashishta versus State (NCT of Delhi) – AIR 2010 SC 2352 – Para 96

Section 3 – Courts – judges, Magistrates and all persons, except Arbitrators who are legally authorized to take evidence.

Facts in issue – any fact, the existene of which is disputed by the parties in a proceeding before the Court of law.

Document – (means the contents of the document) on any substance and that substance is used for the purpose of recording that content.

Evidence – all statements which court permits or require (S.165) (oral evidences); and all documents (documentary evidence), for the inspection of the Court. ***********

Proved / disproved / Not proved – So probable existence / non existence – test of prudent man. **************

Section 5 – Evidence may be given of “Facts in issue” and of Relevant facts, and of no others. **************

Evidence should not be confused with proof. As soon as a document is produced for the inspection of the Court, it becomes evidence. It can be acted upon when it is proved and when it is found acceptable and than it is to be considered in conjunction with other items of evidence.

Illegally procured evidence – admissible – 
AIR 1971 SC 1295 (1303); 
AIR 1974 SC 348 (361);

Personal knowledge of a judge – no evidence – 
ILR 2 Cal 1; 
ILR 13 Mad 32

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