Lawyersera: Indian Evidence Act 1872
Showing posts with label Indian Evidence Act 1872. Show all posts
Showing posts with label Indian Evidence Act 1872. Show all posts

Friday, November 6, 2020

Section 8 of Indian Evidence Act 1872

Motive, Preparation and Previous or Subsequent conduct.

Section 8 of Indian Evidence Act 1872, deals regarding  motive, preparation, and conduct, before interpretation of this section, we would like to explain why the language of the bare act is difficult to understand, because you do not pay attention on objective and purpose of act and section and that difficulties were also with me when I was in college. More students directly jump to the judgment having read the section.

Section 5 to 16 of Indian Evidence Act introduces only relevancy of fact and such relevant fact would be admitted in court. So the meaning of motive, preparation, and conduct must be aware to understand section 8 of the Indian Evidence Act 1872.


Let's explain each one


A Motive is that which moves a man to do a particular act, it lies in the mind of a man and it leads him to act. An action of man can be seen by eyes but his motive cannot be seen. A motive is something which prompts a person to do a certain illegal act or a legal act but with illegal means with a view to achieving that intention   


For example 

The common Inducement to acts is the desires of revenging some real or fancied wrong of getting rid of a rival, or an obnoxious connection or of escaping from the pressure of pecuniary or other obligation or burden, obtaining plunder or other coveted objects, of preserving reputation or of gratifying some other selfish or malignant passion.


Or we simplify more, Murder for revenge, Murder to disclose particular thing, like these are example motive, Previous threats, previous altercations, or previous litigations between parties are admitted to show motive


In any criminal proceeding, if the motive of the crime is known, but the question is that how motive is known so the answer is from the statement, or through any evidence, such statement and evidence shall be admitted in court.


The motive for commission of an offence is of particular importance only in cases of purely circumstantial evidence for, in such cases, motive itself would be a circumstance which the court would have to consider


The second part is Preparation, it means getting or making ready to something to achive aimed result, preparation signifies arranging or devising the means and measures necessary for the commission of offence, every offence consists of four stages 

  1. Intention and Motive

  2. Preparation

  3. Attempt 

  4. Actual Commission or Computed      


For Example,

Arranging or Buying poison for giving, Arranging or Buying Kirson oil for burning, arranging or buying the knife  to commit offence like those are example of preparation under section 8 of Indian Evidence Act

In any criminal proceeding, if the preparation is detected such preparation is a relevant fact and admissible in court.

Now the third and important part is Conduct, it is very technical to understand because it has not been defined in Evidence Act. The meaning of Conduct is the expression in outward behavior of a person of the quality, or condition operating to produce those effects.

For Example, 

The wife of a  person has suicided in the house and he is eating, it is the conduct of a person.

A person runs away after hearing the police vehicle, it is the conduct of a person.

So conduct is basically the external behavior of the person which is what is thought of a person by others.  

If the person behavior has changed from normal situation, and indicating his behaviour with fact in issue, it is conduct and admissible in court under section 8 of EA.


Interpretation of Section 8 of Indian Evidence Act 1872

Section 8 is in two parts 

  1. A fact which constitute “Motive” or “Preparation” and such fact inference to fact in issue, such facts are relevant, and admissible in court 

  2. Second Part is previous or subsequent conduct  of party or agent of party  is relevant, and admissible in court

The evidence of conduct of such parties are allowed if two conditions are fulfilled

  1. The conduct must be in reference to the fact in issue or relevant fact

  2. The conduct is such as influences or is influenced by the fact in issue or relevant fact


    The conduct of any party or his agent in reference to a suit or proceeding will be scanned under this section. A fact can be proved by conduct of a party and by surrounding circumstances.


For Example, The production of articles by an accused person is relevant as evidence of conduct


The word "party" includes the plaintiff and defendant in a civil suit as well as the accused in a criminal prosecution

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Case Law               



State of M.P vs Dhirendra Kumar 1997 SSC 318 

In this case, Munnibai was killed by respondent Dhirendra Kumar, he had an evil eye on her responded was tenant in the house of father in law of deceased Munnibai. Munnibai reported the matter to her mother-in-law who in turn told to her husband who asked the respondent to vacate the house this may be taken as a motive of nurder


Natha Singh vs Emperor, AIR 1946, PC 187 

In this case the privy Council pointed out that fact showing motive should be admitted even if it involves evidence of other crimes committed by the accused, which is ordinarily not allowed. The Lordship further pointed out, proof of motive or inducement for the commission of the offence is not necessary when there is clear evidence that a person has committed an offence. When evidence connecting the accused with the commission of the crime is weak, motive can hardly make up for the weakness of the prosecution case.  If a prosecution case is convincing beyond reasonable doubt, it is not necessary for the prosecution to prove motive or that motive was adequate.


A.N Venkatesh vs State of Karnataka 2005 AIR SCW 3914 

In this case  the dead body of the kidnapped boy was alleged to have been recovered on pointing out of the particulate spot by the accused person. The presence of the accused person at a place where the ransom demand was to be fulfilled and their action of fleeing on  Spotting police party and also their disclosure statement was held to be admissible under Section 8 but not under section 27 of the Indian Evidence Act.


Dr. AC Lagu vs State of Bombay, 1960 SCJ 779 


In this case the Bombay High Court held that,  Where the proof of the charge of murder by poisoning related principally on circumstantial evidence, the majority of Supreme Court Judges held that the evidence as to the conduct of the accused in a respect of property of the deceased before and after date was material link in the chain of evidence which the court could consider along with the other evidence in dittermining whether murder had in the fact been committed and committed by the accused.


RE Murgan AIR 1958 Mad 43

In this case, where the accused took the police to a spot and pointed out a place from where incriminating articles were recovered, the conduct of the accused in taking the police and showing the spot is admissible.


State of Madras vs Vaidyanath Iyyer (AIR 1958 SC 61)

 In this case,the accused was charged with the offence of bribery. Evidence to the effect that at the of raid by the police officer and trap witnesses, on the question “whether you have accepted bribe” the fact that accused was stunned and did not reply, he was confused and began to apologize, or that he  began to tremble 



Kuldeep Singh vs State of Punjab 1980 CLJ 71

In this case,  he was accused of murdering his wife. Burnt dead body of the wife of the accused was found in a closet. There was no direct evidence, the case depends on circumstantial evidence and accused stated that he had gone for a morning walk with Dharambir Mahajan and it was in his absence within short span of half an hour that his wife committed suicide. The facts that he had gone for a walk and that his wife committed suicide were found to be false. The statement of accused was held relevant  


     


Saturday, October 17, 2020

Question Hub asked by user week 42

Showing judgments where confession recorded by forest officials hit by Section 25 of the Indian Evidence Act ?

First of all you have good interpretation of Confession and police officer, The expression confession has not been defined in the Indian Evidence Act but Stephen in his book “Digest of the law of Evidence defines as A confession is an admission made at any time a person charged with crime, stating or suggesting the interference that he committed to crime

Under Section 25 of Indian Evidence Act, “No confession made to police officer shall be proved as against a person accused of any offence.

The objective of this section is to prevent the practice of torture by police officer for the purpose of extracting confession from accused person, under this section no confession made to police officer is admissible against the accused

But the question is Who is police officer , the term police officer used in section 25 of Indian Evidence Act should be ready as strict technical sense but according to its more comprehensive and poplar meaning. It applies to every police officer and is not restricted to officers in a regular police force.

Who are considered as police officers?
  1. Exercise Officer (Emperor vs Nanoo 1926 28 Bom LR 1196
  2. A special officer of the Commercial Tax Department 
  3. An officer appointed under Bombay Sales Tax Act 
  4. Security officer of HEC 
  5. Officer under Orissa Home Guard Act 1961 (State of Orissa vs Dubuga Tubud 1989) 
  6. Police officer Guarding Treasury 
  7. Police patel (Empress vs Rama Birapa 1878 3 Bombay 12 
  8. Village Administrative officer(Lu Bein vs Queen Impress 1889 26 CAL 569
  9. Officer of J.K Rifles 

Who are not considered as police officers?
  1. IPS Officer working on an administrative post and not authorized or empowered to conduct investigation
  2. Officer of railway Protection Force or under the Railway Property (Unlawful Possession) Act 1966 
  3. Member of the defence party under Assam Village defence Organization Act, 1966 
  4. Central Reserve Officer or Central Reserve Police force 
  5. Constable of Rajasthan Armed Constabulary 
  6. Sub-Divisional Officer 
  7. Officer of the security Force 
  8. Officers of Custom 
  9. Inspector of Mines 
  10. Prohibition officer 
  11. A jailor
  12. Forest officer 
  13. Officer under Narcotic Drugs Act 
  14. Enforcement officer investigating the officer under section 5(1)(aa) of the foreign Exchange Regulation Act 
  15. Village of Kotwal, Village Chowkidar, Gram Rakshi 
Matia Patel v State of Orissa, 2001 Cr LJ 1897 (Ori).
A forest officer under an Orissa legislation has been held to be not a police officer though certain powers of police officers have been conferred on him. A confession made to such an officer was held to be admissible in evidence

What are the question to the IO regarding section 380 and 457 and leading to discovery under Sec 27 of Evidence Act?

See section 27 of Indian Evidence Act 1872 deals with How much of information received from accused may be proved , for this there some provision given in section 27 of Indian Evidence Act. when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police-officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

The fact said to have been discovered in consequence of information received from a person accused of an offence must be of a kind which such information really helps to bring to light and which it would be difficult to find out otherwise before it can be treated as of any substantial probative value.

The fact must be the consequence, and the information the cause of its discovery. The information and the fact should be connected with each other as cause and effect. The fact discovered must be in consequence of the information received from the accused, and the fact should not have been already within the prior knowledge of the police. The information should be free from any element of compulsion. If any portion of the information does not satisfy this test, it should be excluded.

Only those statements of the accused are admissible, which cannot be traced easily or cannot be recovered easily without statement of accused.

Suppose he has hidden stolen articles in a mud, or having dug under the ground, such type statement given to police will be admissible

Your questions were related to 380 of IPC which is related to theft. Theft in a building ten or vessel etc which is used as a human dwelling or a place for stocking things, is considered an aggravated form of theft because it involves trespass, further if it is dwelling place, it intimidates and causes fear to people living in the house. If it is used for the custody of property even then it is considered an aggravated form and a higher punishment is prescribed because it is intended as to give greater security

A person who assault in attempting wrong confinement will be punished under section Section 357 of Indian panel Code,

Means, A person who attacks or use criminal force to attempt wrongful confinements such person shall be punished under section 357 of Indian Panel Code whose punishment is imprisonment upto 1 Year or fine or both . Fine will not be greater 1000 Rs

There is no any provision given in Indian law, what type of question an IO can ask, Investigating Officer ask any question related to offence in any way, no court has power to intervene in his investigation

Whether section 90 Indian Evidence Act was declared unconstitutional by any courts in India ?

Not yet, It is constitutional, Section 90 of Indian Evidence Act 1872 deals with Presumption in respect of 30 years' old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. That the contents of the document are true or it had been acted upon, have to be proved like any other fact

When a document is or purports to be more than 30 years old, if it be produced from what the court considers to be proper custody, it may be presumed (a) that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and (b) that it was duly executed and attested by the person by whom it purports to be executed and attested

Thirty-year-old document, produced from proper custody, not looking ex facie suspicious, presumption could be drawn in favour of the document. Where the document relied on was not more than 30 years old, finding of the court based on no evidence could be interfered with.

It is not necessary that the signatures of the attesting witnesses or of the scribe be proved, for if everything was proved there would be no need to presume anything.

There can, however, be no presumption as to who the person who executed the document was and what authority he had to execute the document and whether he had the requisite authority,521 or whether the contents of the document are true or that the document has the legal effect that it purports to have.

Saturday, October 3, 2020

Privilege Communication(Section 121 to 132 of Indian Evidence Act)

What is privileged communication? 

Section 121 to 132 of Indian Evidence Act deals with Privilege Communication

Privilege means a right, advantage or immunity belonging to a person, class or office. The privilege of witness means the right of witness to withhold evidence to disclose certain matters. The communication that are not be compelled to be disclosed are called “Privilege Communication”

Privilege is a legal freedom on the part of one person as against another to do a given act or a legal freedom not to do certain act. Privilege is an exemption from some duty, burden or attendance to which certain person is entitled

Interpretation of “commutation” is imparting or exchanging of information, sharing of knowledge by one with another, thing communicated, It means to impart, confer or transmit information.

The general rule is that a witness is bound to tell the whole truth and produce any documents in his possession or power to relevant to the matter in issue, but in privilege communication, cannot be compelled to testify

The Indian Evidence Act 1872 has provided certain privileges to certain class of witness.
  1. Privilege given to judges and Magistrate under Section 121
  2. Privilege given to Husband and Wife during marriage under section 122 
  3. State privilege or Privilege State Documents under section 123 
  4. Official Communication under section 124 
  5. Privilege to Magistrate, or Police Officer or Revenue Officer regarding information to communication of offence under section 125 
  6. Professional Communication under section 126 
  7. Interpreters under section 127 
  8. Privilege not waived by volunteering evidence under section 128 
  9. Confidential Communication with legal advice under section 129 
  10. Production of title Deeds of witness not a party under section 130 
  11. Production of documents or electronic records which another person, having possession, could refuse to produce under section 131 
  12. Privilege from incriminating question under section 132 

Privilege given to judges and Magistrate under Section 121

Section 121 of Indian Evidence Act states “No Judge or Magistrate shall, except upon the special order of some court to which he is subordinate, be compel to answer any question as to his own conduct in court as such judge or magistrate or as to anything which he came to knowledge in court as such judge or magistrate, but he may be examined as to other matter which occurred in his presence which he was acting

If we simplify more this section, Section 121 of Indian Evidence Act 1872 gives privilege to Judge or Magistrate that they cannot be compelled to answer any question related to 
  1. which was conducted in his court or
  2. any other matter came to his knowledge 

For Example “A” on his trial before the Court of Session says that a deposition taken by a magistrate “B” was improper, No court can compel to answer the question of A, except upon the special order of a Superior court. Sometimes judges or magistrate can speak strictly so that witnesses can speak the truth,

So section 121 is aimed to give privilege to trail court whether he is a judge or magistrate. This section is intended to safeguard the dignity and integrity of the judiciary. Whatever tings comes to knowledge of Such judges or Magistrate, and during the period of trial his conduct are not liable to be questioned by the individuals. If such protection is not given then a large number of cases would be filed against the trial judges or magistrate which leads to the hindrance and destruction of integrity of the judicial proceeding.

However this protection is not extended to an importer judicial action, which may be raised before superior court and on a special order of such a superior court, such judge or magistrate may be questioned for the improper judicial Action

Privilege given to Husband and Wife during marriage under section 122

Section 122 of Indian Evidence Act states that “No person who is or has been married shall be compelled to disclose any communication made him during marriage by any person to whom he is or has been married, nor shall be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consent, except in suit between married person, or proceedings in which one married person is prosecuted for any crime committed against the other”

If we more simplify, Husband or wife cannot be compelled to disclose any such communication in any suit or proceeding against other. Neither wife can compel nor Husband to give statement against each other, not only compel, shall not be permitted also.

One more things in this section to be interpreted, “During marriage“meaning of this word is as continuance of the marriage. Any communication made either prior to marriage or after the termination of marriage is not protected under section 122 of Indian Evidence Act 1872

Under Section 122 of Indian Evidence Act 1872, a married person shall not be
  1.  Compelled to disclose any communication made to him during marriage by any person to whom he is married
  2. Permitted to disclose any such communication, except 
    • When the person who made it or his representative in interest consent
Meaning of this part is that Even if one of the spouses is willing to disclose a communication, he or she will not be allowed to disclose it unless the person who made it or his representative in interest consents, except in suits or prosecutions between married persons. The consent cannot be implied. It is incumbent upon the court to ask the party against whom the evidence is to be given.
    • In suit between husband and wife
    • In criminal proceeding in which either husband or wife is prosecuted for any crime committed to other. 

There is distinct between section 120 and section 122, The object and purpose of section 120 and section 122 are quite different. Section 120 enables husband and wife can be a competent witness against each other. It has also laid down that in criminal case, The wife (if the accused is husband) or the husband (if accused is wife) shall be competent witness. Thus according to section 120 the wife or husband of a party to a proceeding is a competent witness and capable to testify. Whereas Section 122 gives protection to the communication during marriage on account of public policy and provides domestic peace and conjugal confidence between the spouses. Section 122 is privilege section given to the spouse and it extends to the interest of a third person whereas section 120 is confined to the interest of spouse only.

For an example, If “Husband” is prosecuted in a case murder, it cannot to be compel to his wife to disclose anything knows her.

But it is important that in Section 120 of Indian Evidence Act 1872 says that husband and wife is competent to witness against each other but section 122 privilege that they cannot be compelled to disclose any communication.

There is some judgment in regards to that

Ram Bharosey vs State of UP AIR 1954 SC 704

In this case, the Supreme Court held that the Statement of the accused to his is inadmissible under Section 122 but where there is required, the statement can be taken in due of proper judgment.

Where the circumstances is such as, statement of spouse is required to deliver proper judgment in this situation statement can be taken also.

Nagaraj vs State of Karnataka 1996 2901

In this case, it was held that where an accused is alleged to have made an extra judicial confession to his wife about raping and killing her sister, the evidence of wife was held to be inadmissible. A wife was not allowed to tell what her husband told her about a murder with which he was charged.

M.C verghese vs T.J Pannam, AIR 1970 SC 1876

In this case, it was held that in interpreting the rule in section 122, it is not material that the relation of husband and wife should be subsisting at the time when the evidence is required to be given so where a woman has been divorced and had married another husband was offered as a witness against her former husband to prove a communication during the covertures, it was held that in competent to do so

It has been further held that only communication is protected from disclosure but not the acts or conduct. The ban of section 122 is confined to communications only.

A wife can testify to the deeds of her husband of which she was eyewitness. The conduct of spouse is not protected and not privileged by section 122.

For example, The husband came home and hide knife in a box. The wife can depose the same fact before court, taking and entering into house and hiding knife comes under conduct but if husband says to his wife, “I will shoot a gun to my opponent”, the wife cannot depose these words before court.

State privilege or Privilege State Documents under section 123

Section 123 of Indian Evidence Act states that “No one shall be permitted to give any evidence derived from unpublished official records related to any affairs of state, except the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

Section 123 states that in order to claim privilege there must be certain pre requisite condition namely
  1. The document must be unpublished official record
  2. It should related to the affairs of state 
  3. It can be admitted in evidence with the permission of the head of department concerned, who shall give or withhold such a permission 
Section 123 applies to unpublished official records only. The word published in section 123 does mean only those documents or which are printed for general publication. Even if a secret documents or a part of it is revealed, the document will loose the sanctity as unpublished records because there cannot be any guarantee as to whom and it what contingency the other parts may also be known.

For an example, untill the governor signs a G.O entire correspondence and documents related to the G.O are unpublished records.

Case Law

State of U.P vs Raj Narain AIR 1975 SC 865

It has been held that blue-book which was marked as secret document and parts of which had already been disclosed in the Lok Sabha, debates and in writ proceeding before the high court could not be held to be unpublished record within the meaning of section 123.

Monday, September 28, 2020

Section 7 of Indian Evidence Act 1872

Section 7 of Indian Evidence Act 1872 
Facts which are the occasion, cause or effect of Fact-in-Issue

Facts, which are the occasion, cause or effect , immediate or otherwise , of relevant facts, or fact in issue or which constitute the state of things under which they happened or which afford an opportunity for their occurrence or transaction are relevant

Section 7 leaves the transaction itself, and provides for the admission of several classes of facts under the umbrella of the same transaction which though not possible forming part of transaction, are yet connected with it proper modes, and so are relevant when the transaction itself is under inquiry.

This section based on induction. The relevancy of facts is required to be determined by human experience. What has been the constant cause of a particular effect in the past will be the same in future .

For example, If a living being is cut into pieces on the ground there shall be bleeding and blood will be found on the place of occurrence, by his induction whenever a man finds human blood in great quantity on a particular place, he may be reasonably infer that some living being was cut into pieces or at least severely injured there.

Let’s take another example

“A” was tried for the murder of “B”, The dead body of “B” was found near a bridge in gunny bag . At the trial these fact were proved
  1. The wife of “B” deposited all her ornaments with “A”
  2. “A” took all the money that “B” had for purchasing a truck 
  3. “B” demanded money from “A” on a particular date and time and asked “B” to come and take your money 
  4. “B” came there and stayed and slept with “A” on that night. 
Of these facts , the fact of “A” being indebted to “B” and B’s demand for money are relevant as the cause of murder, and the fact that “B” went there and stayed and slept are relevant as the occasion of murder and opportunity for it.

In cases of murders, marks produced near or at the place of the scene of crime by the accused and the deceased on account of the struggle ensuing between them, prior to murder, and also the finger prints and foot prints found at the scene of crime all are relevant under section 7 as effect of a fact-in-issue

Section 7 of Indian Evidence Act 1872 provides for the admission of several classes of facts which are completed with the transaction under inquiry in particular mode
  • As being the occasion or cause of facts
  • As bing its effect 
  • As giving opportunity for its occurrence 
  • As constituting the state of things under which happened 
Section 7 lays down that the facts which are cause of effects of the fact in issue or relevant facts are relevant. It also lays down that the facts which are occasion or which afford an opportunity for the occurrence of the facts in issue or of relevant facts, are relevant. Such relation makes it possible when the existence of the fact in the claim of causation is asserted to test the truth of the

Interpretation of this section is that
  • Occasion of Fact-in-issue or relevant fact
  • Cause of Fact-in-issue or relevant fact 
  • Effect of Fact-issue or relevant fact
  • State of things 
These are all are relevant and admissible

There is nothing technical in this section, only we have to understand, Relevant and Fact in issue. Earlier we have already said that Fact –in-Issue is very technical, it troubles to understand Indian Evidence Act.

Let us simplify

Fact-in-issue means “Matter of issue” मुद्दे की बात या झगडे की जड़
Suppose A prosecutes B for stealing his Mobile phone.

A said B came yesterday at my house when I was not available and he has stolen my phone But said No I did not go his yesterday and went to Gurgaon yesterday, so Now B refuses and It became fact in issue.

“A” said I have evidence, whatever “A” bring in evidence it is relevant fact and whatever B will bring evidence in his defense that will “existence of Fact in Issue “

Don’t Jump to conclusion or judgment, this section clears only relevancy and admissibility

Occasion: - Evidence can always be given of the set of circumstances that constituted the occasion for the happening of the principal Fact.

Example

If you say to friend that tomorrow I will go and withdraw money from bank , the next day you withdraw your money while returning extortion caused you.

Your statement “You said to your friend to that you will go and withdraw money from bank “ will be relevant under Occasion. You have given occasion to extort.

Cause: - Cause often explains why a particular act was done. It helps the court to connect a person with the act. The act in question must have been done by the person who had the cause for it. The Word “Cause” border than the “Motive”

For an example Accused was in love with deceased’s wife

Effects: - Every act leaves behind certain effects which not only record the happening of the act but also throw light upon the nature of act.

For an example

A murdered B , marks on the ground, produced by a struggle at or near the place where murder was committed are all relevant facts

Interpretation of The state of things under which they happened

The facts, which constitute the background in which the principle facts happened, are relevant and can be proved under section 7 of Indian Evidence Act , Thus the state of relation between parties or the state of the health of deceased etc. constitute background in which the incident happened .

For Example

In a murder trial evidence was led to the effect that when it became cloudy and stormy, when the electricity failed and when it became very dark the murder was committed. Here the fact of murder is principle fact and other facts show the state of thing under which the principle fact happened.

Case Law

Ratten vs Geginam 1971 AII E.R 801

In this case , the accused was prosecuted for shooting down his wife and he took the defence of accident, the fact that the accused was unhappy with his wife and was carrying an affair with another woman was held to be relevant, as it constituted the state of things between parties.

Spenser Cooper’s Case

In this case, the body of deceased was found in a river and the stomach of the deceased contained no water. The Prosecutor presents the evidence that a person who dies in water, water must have gone in stomach.

The defence tried to produce evidence that a person dying in water does not necessarily take water inside his belly . These facts which being the general consequences of drowning are relevant under section 7 of the Evidence Act 1872.

Levis vs Jones ITLR 152

In this case , some footprints were found near the scene of occurrence. The prosecution led the evidence of a tracker to prove those footprints were that of accused. The evidence are held admissible.

Kasam vs Firm of Haji Jamal 76 IC 327

In this case, plaintiff claimed certain sum of money from defendant. Of that sum certain items were not recorded in the regular kept account book of the defendant. It was held that the absence of entry is admissible to prove want of payment under section 7 of the Indian Evidence Act 1872.

Taantje’s Case

In this case , A young girl was a female servant of a rich man, who was acquainted with every secret of the family. On one Sunday , some precious jewellery was missing. When whole family went to church. The Maid Servant was prosecuted for theft and convicted on the ground that she alone had exclusive opportunity.

After serving the sentence the maid servant was released. On one day she went to market. There a butcher, seeing her started singing, “ What a beautiful body mine”. She knew that butcher was regular supplier of mutton to that rich family and the day of theft also he delivered mutton. The maid servant used to sing that song “ What a beautiful body mine” at the time of her bath and while changing the clothes.

He had stolen jewellery hinting while she had her bath and listened that song. The maid servant went to police and gave report against butcher. Police inquired again and found that real thief was butcher.

Humming the song with words “What a beautiful body mine” by maid servant on the date of incident, and the repetition of the same by the butcher in market would come within purview of the Section 7 of Indian Evidence Act 1872.

Friday, September 25, 2020

Principle of Res Gastae (Section 6 of Indian Evidence Act)

Principle of Res Gastae (Section 6 of Indian Evidence Act)

Relevancy of facts, forming the same part of the transaction, it is also called the principle of Res Gastae

Before we start the interpretation, first we must know what the same part of the transaction is?

Statements of bystanders witnessing a transaction are relevant if they are made while the transaction is in progress or so shortly before or after it as to form part of the same transaction

So here will explain with an example

“A” along with one more chasing to B and at an isolated place, they shot dead to B and ran away. But when they were chasing some people saw, and when they were running away some people also saw but none saw shooting so whatever people saw is the same part of the transaction of shot dead of B.

Take another Example

“A” Begins assaulting “B” , “C” and “D” begin shouting that “A” is assaulting “B”. The Fact that “C” and “D” shouted about the assault when the transaction was on, is relevant

And if we simplify more, Lets take an latest example

In case of Shushant Sing Rajpur Suicide case, whatever fact has collected which tends to abetment of suicide is same part of transaction.

Fighting of Rea Chakraborthy, leaving house, or any more which connects to abetment all are same part of transaction.

In hindi we say “ Kadi se Kadi Judna” so all these “Kadi” is same part of the transaction

Section 6 of Indian Evidence Act 1872

As per section 6 of Indian Evidence Act 1872, Facts which are relevant whether they occurred same part of transaction at same time and place or at different time or place and such fact is not in issue are connected with fact in issue or forming same part of transaction.

It is not necessary that fact is of at time of occurrence of incident, it may be before incident or it may be after the incident, it is also not necessary that such facts must relate to place of occurrences of incident.

So Principle of Res Gastae is challenged by defence that such fact is not relevant but the principle Res Gestae clears that any facts which are connected with fact in issue or forming same part of transaction are all those relevant.

For an example

A is sitting in Delhi and made a Plan of Dacoity in Mumbai, he executed as per plan in next month. So all these forming same part of transaction in different place and time

Doctrine of Res Gestae

The doctrine of Res Gestae is criticized as it includes within the ambit, hearsay evidence as well , which is not considered to be a good piece of evidence . In RV Foster 1834, the witness had seen only a speeding vehicle but not the accident itself. The person injured explained to him the nature of the accident. The witness was allowed to give an account of what the deceased said , although it was only a derived knowledge , yet part of Res Gestae

The rule of Res Gestae is a confusing one, every part of rule is covered under some other section of the Act . Moreover, Since there are no limits to the doctrine(any fact could be included as Res Gestae) it also causes confusion regarding the limitation of other section. Thereby, because of its confusing nature, the doctrine has not been included in the Indian Evidence Act

Statement as Res gestae

Statement is also included as a part of same transaction. These conditions must be satisfied for the statement to be treated as part of same transaction.

  1. Statement must be made during transaction
  2. Statement must be spontaneous as to exclude any possibility of them being fabricated. 
  3. They must relate to and explain the act they accompany, and not independent facts prior or subsequent thereto 
  4. The statement must be a statement of facts and not an opinion 
  5. Hearsay evidence though admissible to explain, are not always taken as proof of the truth. 
  6. Statement made in the course of the investigation of a crime is not relevant. 

Case Law

R.M Malkani vs State of Maharashtra 1973 SCC 471

In this case , Hon’ble court held that a contemporaneous tape-record of a relevant conversation is a relevant fact. It is Res Gestae.

Basanti vs State of H.P 1987 SCC 227,

In this Supreme Court held that where shortly after a murder, the person suspected of the murder describe the absence of the deceased by saying that he had left the village, the court held that statement as part of the same transaction and thus relevant

Bishna vs State of W.B AIR 2006 SC 302

In this Supreme Court held that in a case of murder, witnesses came to the place of occurrence immediately and found dead body of the deceased and other injured victims. The mother of the deceased was weeping as also injured witness present there. They heard about the entire incident from injured witness including the role played by each of the accused and others. Hence the evidence of said witness would be admissible under Section 6 of Indian Evidence Act 1872.

Hadu v State, (1950) Cut 509.

In this Hon’ble court clears that What is admissible under this section is a fact which is connected with the fact in issue as "part of the same transaction". A transaction may consist of a single incident occupying a few minutes or it may be spread over a variety of facts, etc., occupying a much longer time and occurring on different occasions or at different places. Where the transaction consists of different acts, in order that the chain of such acts may constitute the same transaction, they must be connected together by proximity of time, proximity or unity of place, continuity of action and community of purpose or design

Mohd. Islam v State of UP, 1993 Cr LJ 1736

In this case it was said that Where the witness deposed that immediately after the occurrence, his niece told him that his wife was shot by the accused, it was held that his statement was admissible under section 6

Stephen's Digest of Evidence, Article 3.

If facts form part of the transaction which is the subject of enquiry, manifestly evidence of them ought not to be excluded. The question is whether they do form part or are too remote to be considered really part of the transaction before the court. A transaction is a group of facts so connected together as to be referred to by a single legal name, as a crime, a contract, a wrong or any other subject of inquiry which may be in issue

Rattan vs Queen Reginam

In this case a man was prosecuted for the murder of his wife. His defence was that the shot went off accidentally. There was evidence to the effect that the deceased telephoned to say: "Get me the police please". Before the operator could connect the police, the caller, who spoke in distress, gave her address and the call suddenly ended. Thereafter the police came to the house and found the body of a dead woman. Her call and the words she spoke were held to be relevant as a part of the transaction which brought about her death. Her call in distress showed that the shooting in question was intentional and not accidental for no victim of an accident could have thought of getting the police before the happening.

Om Singh v State, 1997 Cr LJ 2419 (Raj).

The accused intruded into the courtyard of the victim's house at night and inflicted gun-shot injury on her. She was able to identify him. She stated before her death that the accused was standing with a gun before her. She explained the time and space proximity between her and the assailant. The statement was held to be a part of the transaction and relevant as such under section 6. The eye-witness spontaneously told the persons reaching the place immediately after the occurrence that the accused killed the deceased. Such persons derived knowledge about the incident spontaneously with the happening from the eye-witness. Their evidence was held to be relevant under section 6 as forming part of the same transaction



Wednesday, September 23, 2020

Section 5 of Indian Evidence Act 1872

Section 5 of Indian Evidence Act read as Evidence may be given of facts in issue and relevant facts.

We have already discussed previously, Fact-in-issue is very technical if will not pay attention, honestly it disturb you to understand the entire Evidence Act.

Explanation of Fact-in-Issue

Fact-in-Issue means matter in dispute, for example, Suppose “X” lodged a complaint against “Y” for theft of his Mobile, if “Y” accepts then there is no issue but If “Y” refuses then it becomes a matter in dispute or fact-in-issue.

Here you have understood “Fact-in-issue”, Now what is the existence of Fact-in-issue, so in the above illustration “X” and “Y” are two parties, X’s allegation is Y has stolen his mobile, and he has to give the evidence against “Y” so whatever “X” will give evidence that would be “Non-existence of fact-in-issue” , When “Y” will give evidence in his defence that would be “Existence of Fact-in-issue”.

So the interpretation of section 5 of the Indian Evidence Act, any fact which inference either existence of fact-in-issue or non-existence of fact in issue are relevant.

Relevant and Admissibility

Relevant means that which is logical probative. Admissibility is not based on logic but on law and strict rule. The term relevancy and admissibility are not co-extensive or interchangeable terms. All admissible evidence is usually relevant but all relevant is not admissible. So only relevant facts are admissible in the court,

According to Section 5 of Indian Evidence Act, Evidence May be given of the existence or non-existence of every fact in issue and of relevant facts and of no others. This section shall not enable any person to provide evidence of the fact that he is disentitled to prove any provision of law for time being in force relating to civil procedure.

Evidence can be given without any fact unless it is either a fact in issue or one is declared relevant under the following sections. Thus, evidence of all collateral facts, which does not inference with the matter in dispute, is excluded to save the public time.

Meaning of this, If any evidence which does not inference or which does not connect directly or indirectly with the matter in dispute, such evidence is baseless and it should be excluded to save courts time, and the reason is that such evidence tends to consume time, to deviate the mind of juros from the points in issue, and to excite prejudice and mislead moreover the adverse parties, having had no notice of such evidence is not prepared to rebut it.

So Section 5 of Indian Evidence Act deals with a relevant fact, according to this section, Evidence may be given of facts which in connection with other facts, make the existence of a relevant fact

Case Law

Balaji Gunthu Dhule v State of Maharashtra, (2012) 11 SCC 685.

While the entire evidence of eyewitnesses was not accepted by the High Court, it was held by the Supreme Court that the accused cannot be convicted for the offense under Section 302 IPC on the basis of post mortem report only. Post mortem reports must be filed with the evidence of eye witnesses and there may not be enough evidence to reach the conclusion to convict the accused.

Stokes' Anglo Indian Codes, Vol II, p 854, fn 1.

In this The words "and of no others" has been cleared, Impliedly impose a duty on the court to exclude evidence of irrelevant facts, Irrespective of objections by the parties. In criminal proceedings this duty is expressly imposed by the Code of Criminal Procedure, section 298 (omitted by the Code of 1973). In civil proceedings, see the Code of Civil Procedure, 1908, O XIII, rule 3.6

Dinesh Borthakur v State of Assam, (2008) 5 SCC 697 .

While the services of a sniffer dog may be taken for the purpose of an investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused

Ram Bihari Yadav vs State of Bihar AIR 1998 SC 1850,

Hon’ble Supreme Court speaking through Mohd. Quadari J and Said that more than often the expression relevancy and admissibility are used as a synonym but their legal implication is different because more often than not facts which are relevant not be admissible.

For example the communication made by a spouse during the marriage, the communication between an advocate and his client though relevant but is not admissible.

so also the facts which are admissible may not be relevant. For example, Question permitted to be cross-examined to test the veracity or to impeach credit of witness though not relevant are admissible

Monday, September 21, 2020

Section 4 of Indian Evidence Act 1872: May Presume, Shall Presume, and Conclusive Proof.

PART I RELEVANCY OF FACTS

CHAPTER I PRELIMINARY

Section 4 of Indian Evidence Act 1872: May Presume, Shall Presume, and Conclusive Proof.

May Presume: The meaning of presumption is a rule that Hon’ble courts and Judges shall draw inference from the existence of a certain fact or may also say presumption is a legal or factual assumption from the existence of a fact which is presumed as proved.

The meaning of “may presume” is that Hon’ble court has discretionary power to use his mind to presume as proved. It is upon the court that he will presume as proved any fact. When the court has presumed any fact in favour of any party such party will not be bounded to prove but against whom it has been presumed as proved, he will have full right to rebut.

Shall Presume: In the section where the word “Shall presume” has been used, the court has to be presumed as proved, and the court has not any discretionary power in such sections but against whom it has been presumed, has full right to rebut such presumption whether it is in “ May presume or Shall Presume”

Note: Presumption wherever is always rebuttable

In case Babukhan v State of Rajasthan, AIR 1997 SC 2960: 1997 Cr LJ 3567; Mayank Rajput v State, 1998 Cr LJ 2797 (All). In this case, Supreme Courts clarified, The term "presumption", in its largest and most comprehensive signification, may be defined to be an inference, affirmative or disaffirmation of the truth or falsehood of a doubtful fact or proposition, drawn by a process of probable reasoning from something proved or taken for granted.

Conclusive Proof: A fact will be called as conclusive of the other fact If one fact is proved then the other will also be considered as proven. No need to prove or disprove the second fact.

For example A marriage certificate is conclusive proof of marriage

Case Law

Minoti Anand v Subhash Anand, AIR 2011 Bom 61 : 2011 (2) Mah LJ 812 : 2011 (5) Bom CR 624

In a matrimonial dispute, the marriage was said to have been performed according to Hindu customs. Thereafter they married as per Japanese Custom and the registration certificate showing their marriage under section 17 of the Foreign Marriage Act, 1969 was issued. It was held by Bombay High Court that upon the factum of registration of marriage, the solemnisation of the marriage becomes a conclusive fact under section 14(2) of the Foreign Marriage Act, 1969. Thus, under section 4 of the Evidence Act, no evidence with regard to the fact that marriage was also solemnised under the Hindu Marriage Act, 1955 can be allowed

Nirmal Das Bose v Mamta Gulati, AIR 1997 All 401 .

A marriage certificate issued under the Special Marriage Act, 1954 is a conclusive evidence of the solemnisation of marriage under the Act and also of compliance of formalities and signatures of parties and witnesses. The genuineness of the compliance procedure is a different question. It remains questionable

Emperor v Shrinivas, (1905) 7 Bom LR 969 . For the clarification of expressions "may presume" and "shall presume" see Haradhan Mahatha v Dukhu Mahatha, AIR 1993 Pat 129 .

A court, where it "may presume" a fact, has the discretion to presume it as proved or to call for confirmatory evidence of it, as the circumstances require. In such a case the presumption is not a hard and fast presumption, incapable of rebuttal, a presumptio juris et de jure

Gitika Bagechi v Subhabrota Bagechi, AIR 1966 Cal 246 .

See the decision of the Supreme Court in Sodhi Transport Co v State of UP, AIR 1986 SC 1099 : (1986) 2 SCC 486 : 1986 Tax LR 2347 , where the effect on the burden of proof of all the kinds of presumption has been explained. The court further said that these presumptions are not peculiar to the Evidence Act. They are generally used wherever facts are to be ascertained by a judicial process

Where husband and wife were in love and led an amorous life for about eight years before their marriage, both were sound in health and mind and after marriage lived together in a room for months together and had privacy, the presumption was conclusive that consummation of the marriage was an accomplished fact.




Thursday, September 17, 2020

The Indian Evidence Act 1872 Chapter 1( Section 1 to 3)

Chapter-1: Preliminary (Sections 1-3)

Section 1 – Title, Extent and Commencement:

The Indian Evidence Act, 1872 was passed by Legislative Council on 15th March, 1872 and came into force on 1st September, 1872. It extends to the whole of India and applies to all judicial proceedings in or before any court of law.

Court Martial – This Act applies to native Court Martial which were in the existence during British Rule and also applies to the proceedings before Indian Marine Act. According to Section 1 of Act, it will not apply to any Court Martial which has been established under any of the following Act:
  • The Army Act;
  • The Naval Discipline Act;
  • The Indian Navy (Discipline) Act, 1934
  • The Air Force Act.
Interpretation Clause

Affidavits: Section 1 expressly excluded all the affidavits from the scope of the Act. The reason is that affidavits are confined to such facts as the deponent is able of his own knowledge and belief to prove. Of course, the court may order any fact to be proved by an affidavit. Proving a fact by an affidavit cannot be given in accordance of the Evidence Act. In Civil proceedings, it is given as per Order 19, Rule 1-3; CPC and in criminal proceedings, Sections 295 to 297 deal with it.

Arbitrator: According to Section 1, this Act does not apply to proceedings before an Arbitrator. But Arbitrators are bound to follow the rules of natural justice. The reason is that the object of submission to an Arbitrator is to avoid the complicated procedure of a regular trial. Thus, the Arbitrators have no power to administrator on oath and need not examine witness. They can obtain information in any way as they think fit but, must always give a fair opportunity to all parties.

Section 2 has been repealed by the Repealing Act, 1938.

Interpretation clause (Section 3)

This section contains definitions of certain important terms. The very first term that has been defined is “court”. It is defined as except Arbitrtator, “including all Judges and Magistrates, and all persons, legally authorized to take evidence”. This definition of the word “court” is not exhaustive but, is meant for the purposes of Evidence Act alone. As per the definition, arbitrators, even though they may have the legal authority to take evidence, have been expressly excluded from the scope of the Evidence Act.

Fact: 
According to a layman, the term ‘fact’ means an existing thing. It does not refer to a mental condition of which a person is conscious. However, according to the definition contained in the section and the illustrations appended to it; statements, feelings, opinions and state of mind are as much fact as any other fact which is tangible and visible or any other circumstance of which, through the medium of senses we become aware. The illustrations appended to the section amply exemplifies the position that state of mind, opinions, statements, etc. are as much a “fact” as any other visible or tangible thing. 

According to a common man, the word 'fact' means existing thing. It does not refer to the mental state for which a person is conscious. However, according to the definition contained in the section fact means anything which can be known through our senses that is fact.

It is more simplify that Anything which can be perceived by our ear, smell, eyes, or by touching a fact, apart from these relation of things and state of things are also a fact.

Interpretation of relation of things means, there must be some relation between parties, Suppose A and B are accused of murder of C, if there is any enemy with C that a fact and it comes under relation of things.

Any state of things means, whatever the situation, whatever the condition, whatever the stage of things which can be perceived by our sense is a fact

For an example “I smelt urine” that statement is fact”

“I saw ghost yesterday night” this statement is not a fact it cannot be perceived through our sense.

“Any mental condition of which any person is conscious” meaning of this sentence is if anyone knows that “what is going in others mind” is a also fact.

State of mind, A person who knows something about the mind other person is a fact.

For an example A and B are friend , A knows that B is aggressive so might have done this offense this statement is also a “Fact”

Illustrations
  • I saw that Mohan jumped from wall
  • Sohan heard something.
  • He said certain words is a fact
  • He has certain opinion, has a certain intention is a Fact,
  • He acts in good faith or fraudulently is also a Fact,
  • He uses a particular word in a particular sense is a Fact,
  • He was there at a specified time.
  • The consciousness of a particular feeling is a fact.
  • Sachin has certain reputation is a fact.
Relevant Fact

The list of facts, which are relevant, is to found in the provisions contained in Section 6 to 55. But the Act gives no general definition of the term ‘relevant fact’. Generally speaking, a fact is said to be relevant to another if by itself or in connection with other facts it renders the existence of a fact in issue, either probable or improbable. Relevancy implies relationship and such, relationship with the facts in issue as convinces or has a tendency to convince the judge as to the existence or otherwise of the facts in issue. 

A fact in order to be relevant must be connected with the facts in issue or with any other relevant fact in any of the ways referred to in Section 5 to 55. A fact that is not connected is not a relevant fact. The scheme of the Act makes all relevant facts admissible. However, there is a difference between the two which will be considered at a later stage.

Relevant facts are those fact which directly and indirectly connected with other facts in common course of event, which proves or renders probable the past, present or future existence or non existence of other.

Facts in Issue

Fact is issue is very technical, it makes difficult to understand Evidence Act if do not pay attention,

Facts that are alleged by one party and denied by the other in any suit or proceeding are said to be facts in issue.

As per the bare act it is clear that which is claimed in a suit or proceeding by one party and denies by another parties

It means, Suppose A and B are party in a suit or proceeding, if A says that this is my ancestral property and B denies the right of A, the moment he denies it become “Fact-in-Issue”

Example 1 – A dies intestate. One D enters into possession of his property. S files a suit for possession against D alleging that she is a sister of A, that she

Alone is the heir of A. D files a written statement contending that she is the daughter and the only heir of A and that S is not a sister of A. In this case, the Court in order to give a decision has to decide –

A dies intestate, D is in possession of his property. S filed a suit for possession against D, alleging that she is A's sister, that she

A. alone D. Heir's filing a written statement that she is A's daughter and sole heir and not S's sister. In this case, the court has to decide for awarding -
  • whether S is a sister of A;
  • whether D is a daughter of A;
  • whether S is the only heir of A.

From the facts (1) whether S is a sister of A (2) whether D is a daughter, (3) whether S is the only heir of A, the existence or non-existence of right of S to the property of A necessarily follows. Therefore, they are facts in issue.

Document: 

Document means any substance expressed or described by means of letters, fingers, or marks on any substance, or for more than one of the means intended or intended to be used for the purpose of recording that case.

The word document properly encompasses all the physical substances on which men's ideas are represented by any other type of writing or any other species of traditional mark or symbol. Thus the wood marking on which bakers, milkmen, etc. indicate, the number of loaves or the loaves of milk given to their customer is documented as the most elaborate deeds.

For an example Photograph, writing notes, words printed, map, lithographed, any plan in written form, inscription on a metal plate or on stone or caricatures are all documentary evidence.

Evidentiary value of Photograph

In the case of L Choraria vs State of Maharashtra AIR 1968 SC 938, Hon’ble court said that if the court is satisfied that there was no trick photography and the photography is above suspicion, the photograph can be received in evidence . But the evidence of photograph to prove writing or handwriting can only be received if the original cannot be obtained and the photographic reproduction is faithful and not fake or false.

Evidence

Meaning of evidence is the truthiness of any statement, things or matter or its in original sense the state of being Plain, apparent or notorious. Under the act no clear definition of the term evidence has been provided.

This section merely states that what evidence include. In its real sense evidence means anything which establishes the principle of fact or the issue in question before court

The definition in this act included two types of evidence
  1. Statement of witness( oral form of evidence)
  2. Documents

Types of Evidence

Direct Evidence – It is the evidence of what the witness has personally seen or gathered from his senses it is also include production of an original document. Direct here is as opposed to to hearsay and circumstantial evidence. It means any fact which without the intervention of any other fact could prove the fact in issue. Statement of eye witness is direct evidence

For an example

Whatever a person saw the commission of the act which constitutes the alleged crime.

Wedding card is a direct evidence of Marriage,

Indirect Evidence - The hearsay evidence is indirect evidence, any evidence which collaborated with evidence is indirect evidence.

Example

The witness here presents what was told him by a third party.

Suppose Mr “X “ is working in a pvt firm and his friend said to him that he has seen a man was stealing mobile from pocket of other while traveling in Metro.

Statement of Mr. “X” is hearsay or indirect evidence.

Circumstantial Evidence-  It is testimony of witness to other relevant from which the fact in issue may be inferred. In case based on circumstantial evidence, such evidence should be so strong as to point unmistakably to the guilt of the accused.

Circumstantial evidence includes all the relevant facts. It is not secondary evidence, it is merely direct evidence applied indirectly.

But facts that happened sudden, such as road accidents or crimes or tricks, do not leave much direct evidence behind. They execute it ruthlessly under the cover of darkness or secrecy. They silence their victim’s altogether and do not leave any trail of evidence behind.

In such cases, the main event will have to be reconstructed before the Court with the help of surrounding circumstances such as the cause or the effects of the event.

Circumstances sometimes speak as forcefully as does the direct evidence. When footprints are found on sand; it is plausible to infer that someone must have gone that way and also from the shape of footprints it can be ascertained as to whether those are of man or of a bird or of an animal.

In the case of State of UP Vs. Ravindra Prakash Mittal, AIR 1992 SC 2045 the Supreme Court made certain observations vis-à-vis circumstantial evidence.

They are as follows:-
  1. The circumstances from which the conclusion is reached must be fully established.
  2. The circumstances should be conclusive in nature. 
  3. All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence. 
  4. The circumstances should, to a moral certainty exclude possibility of guilt of any person other than the accused. 
The importance which circumstantial evidence assumes in certain cases can be gauged from the fact that in the case of Har Dayal Vs. State of UP, AIR 1976 SC 2055; the Supreme Court sustained the conviction and death sentence of the accused for the murder of a child on the basis of circumstantial evidence alone. 

There were no eye witnesses to the fact of the murder, but, the circumstances had made the chain so complete that there was no escape from the conclusion that within all human probability the child was kidnapped murdered and thrown into the well by none other but the accused. He used to beat his wife and therefore, she had gone back to her parents. He tried his best and even played false tricks with his father-in-law and brother-in-law, but his wife refused to join him. He went back uttering a threat that he would teach them a lesson. Later, he was seen taking away the ten year old child of his wife’s brother while the child was alone at home

The child remained missing and when the accused was traced in his village and surrounded by the fact of the missing child; he confessed to have taken away the child and promised to return him, but instead managed to escape. On report of a villager, the body of the child was recovered from a well and duly identified. The Supreme Court sustained conviction, which was based solely on the basis of circumstantial evidence

Primary Evidence: - It means original evidence which is given in first instance. Section 62 of the acts deals with it

Secondary Evidence: It is an indirect evidence which can be given in the absence of the primary evidence . Section 63 of this Act deals with it.

For an example Photograph of Qutub Minar is secondary evidence because it cannot present as originally

Oral Evidence: - It is something which the witness has seen or heard personally

Documentary Evidence: It is an evidence of original documents such as evidence of Education is Mark sheet , Date of birth certificate, any evidence which can be produced in the form of documents





Thursday, July 23, 2020

Estoppel , Section 115 of Indian Evidence Act

Explain the doctrine of Estoppel? What are the kinds of Estoppel?

Estoppel is a rule by which a party to litigation is stopped from asserting and denying a fact. It means estoppel is a principle of law by which a person is held bound by the representation made by him or arising out of his conduct

An estoppel maybe said to arise when a person executes some deed, or is concerned in or does some act, either of record or in pais, which will preclude him from averring anything to contrary.

So in simple words, a person shall not be allowed to say one thing at one time and the opposite of it another time. The estoppel extends not only to a man's own declaration and acts but also those of all persons through whom he claims. Thus estoppel binds both parties and privies. Estoppel deals with the question of fact, not of rights. Estoppel is a rule of exclusion, making evidence in proof or disproof of a relevant fact inadmissible

For example, Rahul offers Suresh to buy his property,  Suresh believes upon Rahul makes all documents to purchase, "Now Rahul turns down to sell his property, here estoppel will apply upon Rahul. this is the principle of estoppel, you cannot deny from your own word. 

The word Estoppel is derived from a French word which means to stop. Estoppel is only a rule of evidence and cannot found an action upon estoppel. An estoppel can never be a cause of action. But Supreme Court in B.L. Shreedhar VS Muinreddy, AIR 2003 SC 57 observed that estoppel through a branch of the law of evidence is also capable of being viewed a substantive rule of law in so far as it helps to make or defeat rights, which might not exist or be removed except for that doctrine.

As per Indian Evidence Act section 115 when a person, by his declaration, act or omission, knowingly permits another person to believe upon something or making him to believe a thing to be true, upon such or truth if he acts something, Now neither he nor his representative shall be allowed to deny from the statement in any suit or proceeding

Illustration

A person who sends his goods through transport by declaring his cargo value of RS 1000, during transit an accident occurred, now claims from insurance company damages of RS 2,00,000 he said in his statement that the original value of the cargo was 2,00,000. The insurance company will apply estoppel upon him that you cannot turn down from his own word, you have submitted a paper stating RS 1000 cargo value so our liability to pay 1000 only.

Essential Element of Estoppel

  1. Representation is made by a person to another 
  2. Other person believes it and acts upon such believe thereby altering his position
  3. Then in a suit between the parties, the person who represented shall not to be allowed to deny the truth of his representation  

Types of Estoppel

Estoppel by record- This is also called estoppel by judgment. Estoppel by record is nothing but a principle of resjudicata, which is a matter adjudicated by a competent court cannot be reopened by the same parties or their representative in interest.

Example   If  The hon'ble court has given judgment already then no party can urge to reopen in the same matter and party, Parties have already given their statement and the court has decided matters, no party can seek to reopen the decided matter. Parties have the right to review and appeal in superior court.

Estoppel by deed- Estoppel by deed is that a party who executes a deed is estopped in a court of law from saying that the facts stated In the deed are not truly stated. Where there is a statement of fact in a deed made between the parties and the same is accepted by them, an estoppel result and it is called estoppel by deed". It is supported the principle that when an individual has entered into a solemn agreement by deed on certain facts, he won't be permitted to deny any matter which he has so asserted. it's a rule of evidence consistent with which certain evidence is to be taken high and conclusive in nature so on admit no contrary proof

For example an individual who knows the reality of the circumstances under which a document has been executed, cannot later came upon estoppel in his favour.

 

Estoppel by conduct- This is often called estoppel in pias, which suggests within the country or before the general public, the complete expression is "estoppel pais dehors the instruments" that's estoppel with reference to matters which they're outside a record or deed. This arises from the act or conduct of the party.

For example A, intentionally and falsely results in B to believe that certain land belongs to A, and thereby induces B to shop for and buy it. The land afterward becomes the property of A, and A seeks to line aside from the sale on the bottom that, at the time of sale, he had no title, he must to not be allowed to prove his want of title.

 

Case Law

Sarad Chander Dev Vs Gopal Chander (1891-92) I.A 203.

A person died leaving behind some property. He had a wife, son, and daughter. The Wife had possession of that property and also the agency of her son. She sold it to Sharad Chander. Subsequently, the wife’s claim over the property was discovered to be enormous; her children subsequently sold the property to Gopal Chander for possession of the property. Sharad Chander claimed estoppel against the son and Gopal Chander has he has acted on Son’s representation which would also bound Gopal Chander

Held that the son was estopped so was the plaintiff to the extent of their shares. No estoppels against the daughter as her representation was not clear, but the son has represented the mother in the whole transaction even as a mukhtar on her behalf

Estoppel will arise when the failure to perform one’s duty has misled another and also the duty should be a sort of legal obligation   

Mercantile Bank of India ltd vs Central Bank of India 1937 65 I.A 75 A

A firm of merchants has railway receipt of goods booked which they pledged to get loans from two banks. The question arose between the two banks as to who had a prior claim on goods. The second bank contented that by returning the receipt to the merchants without impressing upon the stamp of the pledge the bank had made a representation by omission and that the receipts were free from all claims and that the second bank was misled by the act of the first bank

Observed that there was not a legal duty on the part of the bank to deface the receipt with their receipts with their stamp. It was only a prudent commercial practice and not a legal obligation the existence of the duty is essential particularly when there is an omission. Representation should be a fact not of law or opinion

It can also arise from waver

It cannot arise expression of opinion

It cannot arise from the invitation of tenders

TATA Iron and Steel Co Ltd vs Union of India AIR 2000 SC 3706

The Hon’ble Court succinctly laid down that the essential principle constituting an estoppel

  1. To bring the case within the scope of the concept of estopped" as defined in section 115 of Indian Evidence Act.
  2. There must be a representation by a person or his authorized agent to another in any form a declaration, act, or omission.
  3. The representation must have meant to be relied upon, ie, have been made under circumstances which amounted to an intentioned causing or permitting belief in another. The proof of the intent may be direct or circumstantial, or by conduct. It is not necessary that there should be a design to mislead or any fraudulent intention of that the representative should be false to the knowledge of the maker. Representation, even when made any innocently or mistakenly, may operate as an estoppel.
  4. There must be a belief on the part of the opposite party in its truth There must be action on a belief of that declaration act or omission, i.e., the declaration, act or omission must have actually caused another to act on a belief of it, and to change his former position to his prejudice or detriment.
  5. The misrepresentation or conduct or negligence must be the proximate reason behind leading to the opposite party to act to his prejudice.
  6. The person claiming the advantage of estoppel must show that. He wasn't conscious of the true state of things. If he was attentive to the important state of affairs or had means of information, there will be no estoppel.


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