Apex Law Journal
Apex Law Journal
An online law journal reporting latest and important judgments of Hon'ble Supreme Court of India.                                                                                                                         Click here to get free legal updates via email                                                                                                                          Click here to download forms (Address Form, List Of Documents and Memorandum Of Appearance)
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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Evidence Act, 1872

Tuesday, October 01, 2013
Evidence Act, 1872

Evidence Act, 1872 — Section 90 r/w 68 — Succession Act, 1925, Sections 63(c) — A presumption regarding documents 30 years old does not apply to a will — A will has to be proved in terms of Section 63 (c) of the Succession Act read with Section 68 of the Evidence Act.

 
Thursday, May 02, 2013
Evidence Act, 1872

Evidence Act, 1872 — Section 32(1) — In the absence of any corroboration and also not naming any of the accused persons in Ex.P14A, Ex. P14-A, Parcha Bayan, which was converted into dying declaration, held cannot relied even though the provision of Rule 6.22 of the Rajasthan Police Rules, 1965 has been complied with — Rajasthan Police Rules, 1965, Rule 6.22. 

 
Monday, January 21, 2013
Evidence Act, 1872

Evidence Act, 1872 — Section 101 — Burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it and the said principle may not be universal in its application and there may be an exception thereto — Anil Rishi v. Gurbaksh Singh(2006) 5 SCC 558 relied.

 
Evidence Act, 1872

Evidence Act, 1872 — Sections 101, 102 and 45 — Civil Procedure Code, 1908, Order 8, Rules 3, 4 and 5 — Suit for recovery — Burden of proof — Obligation on the part of the plaintiffs to examine the handwriting expert to prove the signatures — If the plaintiff asserts that the defendant had acknowledged the signature, it is obligatory on his part to substantiate the same — However, where the signatures are proven and there is an evasive reply in the written statement then if the plaintiffs have proven entries in the books of accounts and also proven the acknowledgements duly signed by the defendant, it is, held, not obligatory on the part of the plaintiff to examine the handwriting expert to prove the signatures — The High Court, in the present case, has fallen into error in holding that it was obligatory on the part of the plaintiffs to examine the handwriting expert to prove the signatures — Judgment of the High Court set aside — Appeal allowed.

 
Thursday, January 17, 2013
Evidence Act, 1872

Evidence Act, 1872 — Section 32(1) — Dying declaration — In the case of Pothakamuri Srinivasulu alias Mooga Subbaiah v. State of A.P. (2002) 6 SCC 399, the Court did not accept that the injured could not have been in a conscious state on the ground that no such suggestion had been made to any of the witnesses including the doctor who conducted the post mortem examination of the deceased. 

 
Evidence Act, 1872

Evidence Act, 1872 — Section 32(1) — Dying declaration — In the case of Prakash and another v. State of Madhya Pradesh (1992) 4 SCC 225 it has been held that when it is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration, there is no justification or warrant to discard the credibility of such a dying declaration.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 32(1) — Dying declaration — A dying declaration can be oral.

 
Tuesday, January 15, 2013
Evidence Act, 1872

Evidence Act, 1872 — Section 32(1) — Dying Declaration — There is no particular form or procedure prescribed for recording a dying declaration nor it is required to be recorded only by a Magistrate — As a general rule, it is advisable to get the evidence of the declarant certified from a doctor — In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 32(1) — Dying declaration — It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination — The law does not insist upon the corroboration of dying declaration before it can be accepted — The insistence of corroboration to a dying declaration is only a rule of prudence — When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 32(1) — Multiple dying declarations — When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other.

 
Monday, January 14, 2013
Evidence Act, 1872

Evidence Act, 1872 — Section 113A — Deceased (wife) committed suicide in the matrimonial home and her death took place within seven years of her marriage — Presumption under Section 113A of the Indian Evidence Act, 1872 springs into action — Indian Penal Code, 1860, Sections 306 and 498-A.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 3 — Evidence of interested witnesses — Held, it is true that chances of exaggeration by the interested witnesses cannot be ruled out — Witnesses are prone to exaggeration — But it is for the trained judicial mind to find out the truth — If the exaggeration is of such nature as to make the witness wholly unreliable, the court would obviously not rely on him — If attendant circumstances and evidence on record clearly support and corroborate the witness, then merely because he is interested witness he cannot be disbelieved because of some exaggeration, if his evidence is otherwise reliable.

 
Thursday, November 29, 2012
Evidence Act, 1872

Evidence Act, 1872 — Section 32 — Multiple variable dying declarations — The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence — Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 114 — Question of presumption in terms of Section 114 of the Evidence Act only arises when an evidence is withheld from the Court and is not produced by any of the parties to the lis.

 
Thursday, May 03, 2012
Evidence Act, 1872

Evidence Act, 1872 — Section 145 — Criminal Procedure Code, 1973, Section 311 — Application for summoning the prosecution witness for further cross-examination — Declined by the High Court on the ground that the application was filed after a lag of more than 20 years — Held, the delay in filing the application should not have been the sole ground for rejecting the application — The High Court does not say that the appellants were in anyway responsible for the inordinate delay in their appeals, that remains pending since 1976, being taken up for hearing — That being the position, as long as the appeals were pending, the High Court should have considered the appellants’ request for summoning PW.1 for further cross-examination on merits, and in light of the relevant legal provisions. 

 
Wednesday, May 02, 2012
Evidence Act, 1872

Evidence Act, 1872 — Section 3 — Evidence of closely related witnesses — Held, evidence of closely related witnesses is required to be carefully scrutinised and appreciated before resting of conclusion the convict/accused in a given case — In case, the evidence has a ring of truth, is cogent, credible and trustworthy it can be relied upon.

 
Thursday, December 08, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 78 — Civil Procedure Code, 1908 Order 23, Rule 3 — Presumption as to genuineness of certified copy of compromise produced before the court — Decree passed and drafted in the light of the compromise entered into between the parties, viz., the plaintiff and the defendants — Certified copy of such document produced before the Court — Held, there is presumption as to the genuineness of such certified copy under Section 78 of the Act.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 77 — A certified copy of a public document is admissible in evidence without being proved by calling witness.

 
Evidence Act, 1872

Evidence Act, 1872 — Sections 76 and 77 — Certified copy of the public document prepared under Section 76 of the Act is admissible in evidence under Section 77.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 74 — Civil Procedure Code, 1908 Order 23, Rule 3 — Judgment and decree passed on the basis of compromise — Such compromise becomes  part of the decree and is a public document in terms of Section 74 of the Evidence Act, 1872.

 
Tuesday, December 06, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 74(2) — Companies Act, 1956, Sections 159, 163 and 610(3) — Certified copy of annual return of the company filed with the Registrar of Companies, held, is a public document. 

 
Monday, December 05, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 11 r/w Section 8 — Plea of alibi — All the accused, in the present case, had taken the plea of alibi to show that none of them was present at the place of occurrence on the relevant date — However, none of them could successfully prove the same and the plea of alibi taken by them was found to be false — This points towards their guilt.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 106 — Scope of — Held, section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt — But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference — Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 134 — Evidence of the sole eye-witness — Held, there is no legal impediment in convicting a person on the sole testimony of a single witness — It is not the number or the quantity, but the quality that is material.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 133 r/w Ilustration (b) to Section 114 — Deposition of an accomplice in a crime who has not been made an accused/put to trial — Whether can be relied? — Held,  the deposition of an accomplice in a crime who has not been made an accused/put to trial, can be relied upon, however, the evidence is required to be considered with care and caution — An accomplice who has not been put on trial is a competent witness as he deposes in the court after taking oath and there is no prohibition in any law not to act upon his deposition without corroboration.

 
Monday, October 31, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 133 r/w Illustration (b) to Section 144 — Evidentiary value of “approver” and its acceptability with or without corroboration — Held, though a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an approver, yet the universal practice is not to convict upon the testimony of an accomplice unless it is corroborated in material particulars — The evidence of an approver does not differ from the evidence of any other witness save in one particular aspect, namely, that the evidence of an accomplice is regarded ab initio as open to grave suspicion — If the suspicion which attaches to the evidence of an accomplice be not removed, that evidence should not be acted upon unless corroborated in some material particulars; but if the suspicion attaching to the accomplice’s evidence be removed, then that evidence may be acted upon even though uncorroborated, and the guilt of the accused may be established upon the evidence alone.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 133 r/w Illustration (b) to Section 144 — Once the evidence of the approver is held to be trustworthy, it must be shown that the story given by him so far as an accused is concerned, must implicate him in such manner as to give rise to a conclusion of guilt beyond reasonable doubt — Insistence upon corroboration is based on the rule of caution and is not merely a rule of law — Corroboration need not be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence.

 
Tuesday, September 20, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 115 — Transfer of Property Act, 1882, Section 6 — Mulla’s “Principles of Mahomedan Law”, Paragraph 54 — When an expectant heir willfully does something which has the effect of attracting the provisions of Section 115 of the Evidence Act, is he estopped from claiming the benefit of the doctrine of spes successionis, as provided for under Section 6(a) of the Transfer of Property Act, 1882, and also under the Mohammedan Law as embodied in paragraph 54 of Mulla’s “Principles of Mahomedan Law”? — Held, yes. 

 
Saturday, September 17, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 9 — Voice Identification — Held, identification by voice has to be considered by the Court carefully.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 10 — Applicability of — Held, in the case of Saju v. State of Kerala reported in (2001) 1 SCC 378, this Court explained the principles of Section 10 of the Evidence Act, as follows:-

 

 “Evidene Act, 1872 – Sec.10 – Condition for applicability of

 

 Act or action of one of the accused cannot be used as evidence against the other. However, an exception has been carved out under Section 10 of the Evidence Act in the case of conspiracy. To attract the applicability of Section 10 of the Evidence Act, the court must have reasonable ground to believe that two or more persons had conspired together for committing an offence. It is only then that the evidence of action or statement made by one of the accused could be used as evidence against the other.”

 
Thursday, August 25, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 27 read with Section 114 — Recovery on the disclosure statements of either of the respondents/accused persons was not in close proximity of time from the date of incident — More so, recovery is either of cash, small things or vehicles which can be passed from one person to another without any difficulty — In such a fact situation, no presumption, held,  can be drawn against the said two respondents/accused under Section 114 Illustration (a) of the Evidence Act — No adverse inference can be drawn on the basis of recoveries made on their disclosure statements to connect them with the commission of the crime.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 114 — Where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder — It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand — Suspicion should not take the place of proof.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 27 — Recovery from one of the accused, held, cannot be dis-believed merely because the panch witnesses turned hostile.

 
Tuesday, July 19, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 105 — Burden of proving that case of accused comes within exceptions — Standard of proof — Held, standard of proof which the accused has to satisfy for the discharge of the burden cast upon him under Section 105 is not the same as is expected of the prosecution — It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in his favour.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 105 — Indian Penal Code, 1860, Section 84 — The appellant has led no evidence in defence to support the plea of legal insanity — That may be a significant aspect but by no means conclusive, for it is open to an accused to rely upon the material brought on record by the prosecution to claim the benefit of the exception — Evidence in defence may be a surplusage in cases where the defence can make out a case for the acquittal of the accused based on the evidence adduced by the prosecution.

 
Sunday, June 26, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 3 — Criminal Procedure Code, 1973, Section 174 — Evidence of eyewitnesses can not be discarded if their names do not figure in the inquest report prepared at the earliest point of time.

 
Monday, May 23, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 8 — Motive — In cases of circumstantial evidence motive is very important, unlike cases of direct evidence where it is not so important — Wakkar and Anr. vs. State of Uttar Pradesh (2011) 3 SCC 306 (para 14) relied.  

 
Evidence Act, 1872

Evidence Act, 1872 — Section 8 — Conduct — Appellant, in whose house deceased was staying, did not inform the police or anybody else for a long time about the death of the deceased — It was only some unknown person who telephonically informed the police that the appellant had murdered his own daughter — This omission by the appellant in not informing the police about the death of his daughter for about 10 hours was a totally unnatural conduct on his part.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 27 — The accused, in the present case, had given a statement (Ex. PW7/A) to the SDM in the presence of PW11 Inspector Nand Kumar which led to discovery of the electric wire by which the crime was committed — This disclosure was admissible as evidence under Section 27 of the Evidence Act.

 
Friday, May 06, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 32(1) — Dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary, and truthful and further that the maker thereof must be in a fit medical condition to make it.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 32(1) — Oral dying declaration — Held, the oral dying declaration is a weak kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses who are said to have heard it.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 32(1) — Criminal Procedure Code, 1973, Section 154 — Dying declaration — Reliability of — Case of the prosecution that witnesses who heard the dying declaration reported such dying declaration and the name of the assailant to PW-14 who made the FIR — PW-14, however, failed to mention the name of the assailant in the FIR — In the FIR it was some unknown person who had beaten up the deceased — FIR was lodged by PW-14 almost immediately after he came to know about the death of the deceased who was his cousin in relation — Whether such dying declaration can be relied on? — Held, had the witnesses heard the dying declaration and reported the matter to PW-14 who made the FIR, he would never have failed to mention the name — Under such circumstances it is unsafe to rely on the so called dying declaration.

 
Wednesday, April 20, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 9 — Identification — It is true that there is no inflexible rule that an identification made for the first time in Court has to be always ruled out of consideration but the broad principle is that where there is no other evidence with regard to the identification of the accused, identification in Court made long after the event is clearly not acceptable — Malkhansingh & Ors. vs. State of M.P. 2003(5) SCC 746 distinguished.

 
Saturday, April 09, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 3 — Information Technology Act, 2000, Section 2(t) — Whether definition of “evidence” in section 3 of the Evidence Act, 1872 read with the definition of “electronic record” in section 2(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation? — Held, yes.

 
Thursday, March 31, 2011
Evidence Act, 1872

Evidence Act, 1872 — Sections 60, 64 and 91 — It is not the quantity but the quality of the evidence which matters.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 106 — Indian Penal Code, 1860, Sections 376 and 302 — Appellant-accused claiming that he had received injury in an accident and not during the course of rape and murder — Held, the onus to prove his defence and the circumstances relating to his injury and treatment were within the special knowledge of the appellant-accused — He could, therefore, not keep silent and say that the obligation rested on the prosecution to prove its case.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 45 — Opinion of expert — DNA profiling — The Court cannot substitute its own opinion for that of an expert, more particularly in a science such as DNA profiling which is a recent development.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 45 — It would be a dangerous doctrine to lay down that the report of an expert witness could be brushed aside by making reference to some text on that subject without such text being put to the expert — Bhagwan Das & Anr. vs. State of Rajasthan AIR 1957 SC 589 relied.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 8 — Motive — Held, motive alone cannot form the basis of conviction but in the light of the other circumstances, the motive goes a very long way in forging the links in the chain.

 
Tuesday, February 22, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 105 — Indian Penal Code, 1860, Section 84 — Unsoundness of mind — Burden of proof — The burden of proof in the face of Section 105 of the Evidence Act is on the accused — Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities — The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. 

 
Thursday, February 03, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 3 — Evidence — All the eye-witnesses including the injured witnesses are closely related to the deceased — In such a fact situation, the law requires the court to examine their evidence with care and caution — Such close relatives and injured witnesses would definitely not shield the real culprits of the crime, and name somebody else because of enmity.

 
Evidence Act, 1872

Evidence Act, 1872 — Sections 32 and 157 — Statement under Section 32 recorded-Injured witness survives — In such an eventuality the statement so recorded has to be treated as of a superior quality/high degree than that of a statement recorded under Section 161 Cr.P.C. and can be used as provided under Section 157 of the Act 1872 — Criminal Procedure Code, 1973, Section 161.

 
Evidence Act, 1872

Evidence Act, 1872 — Sections 134 and 3 — Indian Penal Code, 1860, Sections 149, 146 — Number of witnesses required to prove the offence by members of a large unlawful assembly — Held, the rule of requirement of more than one witness applies only in a case where a witness deposes in a general and vague manner, or in the case of a riot — In a fit case the court may believe a reliable sole eye-witness if in his testimony he makes specific reference to the identity of the individual and his specific overt acts in the incident.

 
Tuesday, January 25, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 35 — Even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 35 — Date of birth mentioned in the transfer certificate issued by a Government School and duly signed by the Headmaster, held, would be admissible in evidence — However, the admissibility of such a document would be of not much evidentiary value to prove the age of the person in the absence of the material on the basis of which the age was recorded — The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

 
Tuesday, January 04, 2011
Evidence Act, 1872

Evidence Act, 1872 — Section 113-A — Indian Penal Code, 1860, Sections 107, 306 and 498-A — Held, Section 113-A of the Evidence Act establishes a link between an offence under Section 498-A IPC, 107 IPC and 306 IPC, thereby permitting the Court to presume the commission of an offence under section 107 IPC on the basis of evidence adduced to prove an offence under Section 498-A IPC.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 113-A — Indian Penal Code, 1860, Sections 306, 498-A and 107 — The provisions of Section 113-A of the Indian Evidence Act or its impact on an offence under Section 498-A IPC or Section 306 IPC vis-à-vis Section 107 IPC was not considered in any these decisions —

 

1. Rakesh Kumar Vs. State of Chhattisgarh [(2001) 9 SCC 618]

 

2. Amalendu Pal vs. State of West Bengal [(2010) 1 SCC 707]

 

3. Sushil Kumar Sharma Vs. Union of India & Ors. [(2005) 6 SCC 281]

 

4. Gangula Mohan Reddy Vs. State of Andhra Pradesh [(2010) 1 SCC 750]

 

5. Randhir Singh & Anr. Vs. State of Punjab [(2004) 13 SCC 129] 

 
Evidence Act, 1872

Evidence Act, 1872 — Section 113-A — Indian Penal Code, 1860, Sections 107, 306 and 498-A — If the degree of cruelty is such as to warrant a conviction under Section 498-A IPC, the same may be sufficient for a presumption to be drawn under Section 113-A of the Evidence Act in harmony with the provisions of Section 107 IPC.

 
Thursday, December 09, 2010
Evidence Act, 1872

Evidence Act, 1872 — Section 32 — Dying declaration — Whether can be rejected solely for the reason that there was no endorsement of the doctor on the dying declaration regarding the fit condition of the injured to make the statement? — Held, no — The Magistrate (PW-9) had specifically asserted that he had got himself satisfied by asking the doctor that the injured witness was in a fit mental and physical condition to make a statement.

 
Sunday, November 21, 2010
Evidence Act, 1872

Evidence Act, 1872 — Section 32 — Dying Declaration — Merely because, the dying declaration is not in question and answer form would not render it unreliable.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 32 — Dying Declaration — In the present case, dying declaration has been recorded without obtaining any certificate from a doctor that the deceased was in a fit state to make a statement — The statement has been recorded only because the pharmacist posted at the hospital at the relevant time had stated that the injured was in a fit state to give a statement — Held, dying declaration cannot be said to be unreliable.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 32 — Dying Declaration — Recorded without obtaining any certificate from a doctor that the deceased was in a fit state to make a statement — Held, the absence of a certificate of fitness by the Doctor would not be sufficient to discard the dying declaration — The certification by the doctor is a rule of caution.

 
Sunday, October 31, 2010
Evidence Act, 1872

Evidence Act, 1872 — Section 134 — Held, Section 134 of the Indian Evidence Act specifically provides that no particular number of witnesses shall, in any case, be required for the proof of any fact — It is well known principal of law that reliance can be placed on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution — The courts are concerned with the merit and the statement of a particular witness and not at all concerned with the number of witnesses examined by the prosecution.

 
Sunday, July 18, 2010
Evidence Act, 1872

Evidence Act, 1872 — Sections 74 and 76 — Public document — Certified copy of a document issued by the Election Commission would be a public document.

 
Evidence Act, 1872

Evidence Act, 1872 — Admissibility of the tape-records of speeches in evidence — In Ziyauddin Burhanuddin Bukhari [(1976) 2 SCC 17)], relying on R. Vs. Maqsud Ali [(1965) 2 ALL E.R. 464], a Bench of three judges of this Court held that the tape-records of speeches were admissible in evidence on satisfying the following conditions: 

“(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.”  

 

 
Evidence Act, 1872

Evidence Act, 1872 — Section 3 — Evidence in the form of tapes/cassettes — Held, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution — Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 3 — Documents — Tape-records of speeches are “documents” as defined in Section 3 of the Evidence Act and stand on no different footing than photographs.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 74 — Public Document — VHS Cassette containing communal speeches — Appellant alleged that the respondent made communal speeches during his election campaign and only produced copy of the VHS Cassette of the same on record — Whether the copy of the VHS Cassette stands duly proved in terms of section 74? — Held, in the absence of any cogent evidence regarding the source and the manner of its acquisition, the authenticity of the cassette was not proved and it could not be read in evidence despite the fact that the cassette is a public document — Plea of the apellant that besides being a public document, the contents of VHS Cassette were not specifically denied by the respondent and, therefore, no further evidence was required to be produced to prove the authenticity of the cassette, cannot be accepted.

 
Friday, July 16, 2010
Evidence Act, 1872

Evidence Act, 1872 — Section 106 — Principle of res ipsa loquitur — In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself — In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.

 
Thursday, June 03, 2010
Evidence Act, 1872

Evidence Act, 1872 — Section 112 — Presumption of a child being legitimate — Held, section 112 of the Evidence Act provides for a presumption of a child being legitimate and such a presumption can only be displaced by a strong preponderance of evidence and not merely by a balance of probabilities as the law has to live in favour of innocent child from being bastardised.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 112 — Presumption of a child being legitimate — Held, proof of non-access between the parties to marriage during the relevant period is the only way to rebut that presumption.

 
Wednesday, February 17, 2010
Evidence Act, 1872

Evidence Act, 1872 — Word ‘admissibility’ — Held, the word ‘admissibility’ has very rarely been used under the Indian Evidence Act — The emphasis is on relevant facts — In a way relevancy and admissibility have been virtually equated under the Indian Evidence Act.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 45 — Evidence of finger print expert — Held, evidence of finger print expert is not substantive evidence — Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 106 — Whatever force a presumption arising under Section 106 of the Indian Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.

 
Evidence Act, 1872

 Evidence Act, 1872 — Section 27 — Criminal Procedure Code, 1973, Section 100(4) and Section 100(5) — Reliability of the materials discovered pursuant to the factsdeposed by the accused in police custody depends on the facts of each case — If the discovery is otherwise reliable, its evidentiary value is not diluted just by reason of non-compliance with the provision of Section 100(4) or Section 100(5) of the Code. 

 
Evidence Act, 1872

Evidence Act, 1872 — Section 27 — Constitution of India, 1950, Article 20(3) — Held, Section 27 starts with the word ‘provided’ — Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. 

 
Evidence Act, 1872

Evidence Act, 1872 — Section 27 — The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example: Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused.

 
Thursday, February 04, 2010
Evidence Act, 1872

Evidence Act, 1872 — Section 27 — Disclosure Statement — Admissibility of — Part of the disclosure statement, namely, that he (accused) was ready to show the place where he had concealed the clothes of the deceased is clearly admissible under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place.

 
Monday, January 25, 2010
Evidence Act, 1872

Evidence Act, 1872 — Section 137 — Held, section 137 of the Evidence Act does not define “examine” to mean and include the three kinds of examination of a witness; it simply defines “examination-in-chief”, “cross-examination” and “re-examination”.

 
Monday, January 11, 2010
Evidence Act, 1872

Evidence Act, 1872 — Section 32 — Dying declaration — The principle on which dying declarations are admitted in evidence is indicated in legal maxim:

“Nemo moriturus proesumitur mentiri – a man will not meet his Maker with a lie in his mouth.” 

 It is indicative of the fact that a man who is on a death bed would not tell a lie to falsely implicate an innocent person — This is the reason in law to accept the veracity of her statement — It is for this reason, the requirements of oath and cross-examination are dispensed with — Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eye-witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 32 — Dying declaration — Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross-examination — Such a right of crossexamination is essential for eliciting the truth as an obligation of oath — This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness — The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination — The court must be further satisfied that deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants — Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration — It is not an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated — The rule requiring corroboration is merely a rule of prudence.

 
Monday, December 14, 2009
Evidence Act, 1872

Evidence Act, 1872 — Section 32 — Dying declaration — Certification by the doctor — Held, there is no requirement of law that the dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind especially when the dying declaration was recorded by a Magistrate — Doctor’s certification and endorsement as to mental fitness of the deceased, is a rule of prudence and not the ultimate test as to whether or not the said dying declaration was truthful or voluntary.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 32 — Dying declaration — The doctor who recorded the dying declaration, in the present case, was examined as a witness and he had in his deposition categorically stated that the deceased while making the aforesaid statement was conscious and in a fit mental condition to make such a statement — Held, the aforesaid position makes it therefore clear that the aforesaid dying declaration could be relied upon as the same was truthfully recorded and the said statement gave a vivid account of the manner in which the incident had taken place. 

 
Evidence Act, 1872

Evidence Act, 1872 — Section 32 — Dying declaration — Whether Dying declaration could be rejected where the person who recorded the dying declaration did not or could not take the signature or the Left Thumb Impression of the deceased on the dying declaration? — Held, there is no reason why a dying declaration which is otherwise found to be true, voluntary and correct should be rejected only because the person who recorded the dying declaration did not or could not take the signature or the Left Thumb Impression of the deceased on the dying declaration — Once it is found that the dying declaration is true and made voluntarily and as also trustworthy, there is no reason why the same should not be believed and relied upon. 

 
Evidence Act, 1872

Evidence Act, 1872 — Sections 32 and 60 — Dying declaration — The aforesaid Section 32 was enacted as an exception to the general rule as reflected in Section 60 of the said Act which mandates that oral evidence in all cases must be direct i.e. if it refers to a fact which could be seen, it should be the evidence of a witness who says he saw it, whereas if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it or if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner.

 
Friday, August 14, 2009
Evidence Act, 1872

Evidence Act, 1872 — Section 105 — Criminal Procedure Code, 1973, Section 313 — Indian Penal Code, 1860, Section 300, Exception 1 — In the present case, when the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, he did not mention existence of circumstances bringing his case within ‘Exception 1’ to Section 300 IPC — Held, the court would be justified in presuming absence of such circumstances.    

 

 
Evidence Act, 1872

Evidence Act, 1872 — Section 105 — Indian Penal Code, 1860, ‘Exception 1’ to Section 300 — Though the appellant, in the present case,  failed to prove the existence of circumstances bringing his case within ‘Exception 1’ to Section 300, the court, held, may look to the evidence of prosecution to find out whether the burden cast by Section 105 of the Indian Evidence Act stands discharged by the appellant by preponderance of probabilities.

 
Saturday, June 13, 2009
Evidence Act, 1872

Evidence Act, 1872 — Section 43 — Judgment of a criminal court, whether admissible in a civil suit? — Held, no — It is now almost well-settled that, save and except for Section 43 of the Indian Evidence Act which refers to Sections 40, 41, and 42 thereof, a judgment of a criminal court shall not be admissible in a civil suit — What, however, would be admissible is the admission made by a party in a previous proceeding — The admission of the appellant was recorded in writing — While he was deposing in the suit, he was confronted with the question as to whether he had admitted his guilt and pleaded guilty of the charges framed — He did so — Having, thus, accepted that he had made an admission in the criminal case, the same was admissible in evidence — He could have resiled therefrom or explained away his admission — He offered an explanation that he was wrongly advised by the counsel to do so — The said explanation was not accepted by the trial court — It was considered to be an afterthought — His admission in the civil proceeding was admissible in evidence.  

 
Friday, June 12, 2009
Evidence Act, 1872

Evidence Act, 1872 — Section 112 — The presumption of legitimacy arises from birth in wedlock and not from conception.


 
Evidence Act, 1872

Evidence Act, 1872 — Section 112 — According to the legislative intention and spirit behind Section 112 of Evidence Act it is abundantly clear that once the validity of marriage is proved then there is strong presumption about the legitimacy of children born out of that wedlock — The presumption can only be rebutted by a strong, clear satisfying and conclusive evidence — The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. 

 
Evidence Act, 1872

Evidence Act, 1872 — Section 112 — It is undesirable to enquire into paternity of a child whose parents “have access” to each other — Section 112 of the Evidence Act is based on presumption of public morality and public policy. 

 
Saturday, April 11, 2009
Evidence Act, 1872

Evidence Act, 1872 — Sections 113-A and 113-B — Undoubtedly, the provisions of Section 113-A and Section 113B do raise a presumption but the facts of the case cannot be ignored.

 
Evidence Act, 1872

Evidence Act, 1872 — Sections 113-A and 113-B — Distinction between — Whereas Section 113-B places a heavier onus on an accused, the onus placed under Section 113-A, held, is far lighter.

 
Friday, November 14, 2008
Evidence Act, 1872

Evidence Act, 1872 — Section 24 — Every inducement, threat or promise does not vitiate a confession — Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession — On the aforesaid analysis the court is to determine the absence or presence of an inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused — If the inducement, promise or threat is sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession — The words "appear to him" in the last part of the section refer to the mentality of the accused.     

 
Wednesday, November 12, 2008
Evidence Act, 1872

Evidence Act, 1872 — Section 9 — Test identification parade — Identification of the appellant for the first time in court was really of no consequence.  

 
Wednesday, August 13, 2008
Evidence Act, 1872

Evidence Act, 1872 — Section 69 — Statement made by the learned counsel for the plaintiff, in the present case, that one of the attesting witness had died and the other attesting witness had gone out of the country, held, cannot be taken into consideration for the purpose of invoking S.69 of the Evidence Act — A purported statement, not as a witness but through the counsel, cannot be said to be an evidence — What was imperative was a statement on oath made by the plaintiff — A deposition of the plaintiff is a witness before the Court and not the statement through a counsel across the Bar — Such a statement across the Bar cannot be a substitute for evidence warranting invocation of Section 69 of the Evidence Act — Further held, even taking the course of Order XVI of the Code of Civil Procedure might not be necessary — Civil Procedure Code, 1908, Order XVI.   

 
Evidence Act, 1872

Evidence Act, 1872 — Section 69 — It is the duty of the plaintiff to exhaust all the processes of the Court in order to compel the attendance of any one of the attesting witnesses and when the production of such witnesses is not possible either legally or physically, the plaintiff can avail himself of the provisions of S.69, Evidence Act — Hare Krishna Panigrahi vs. Jogneswar Panda and Others [AIR 1939 Cal. 688] relied.  

 
Evidence Act, 1872

Evidence Act, 1872 — Section 69 — Mere taking out of the summons or the service of summons upon an attesting witness or the mere taking out of warrant against him is not sufficient — It is only when the witness does not appear even after all the process under Order 16 Rule 10 CPC, which the Court considered to be fit and proper had been exhausted that the foundation will be laid for the application of Section 69, Evidence Act — Amal Sankar Sen & Ors. vs. The DaccaCo-operative Housing Society Ltd. (in liquidation) by Inspector Liquidator, Co-operative Society, Dacca [(A.I.R (32) 1945 Calcutta 350] relied.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 68 — Section 68 of the Act mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses — That is to say, not only the execution of Will must be proved but actually execution must be attested by at least two witnesses — Attestation of execution of Will  must  be in conformity with the provisions of Section 3 of the Transfer of Property Act — Transfer of Property Act, Section 3.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 68 — In terms of Section 68 of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all.   

 

 
Thursday, June 12, 2008
Evidence Act, 1872

Evidence Act, 1872 — Section 115 — Civil Procedure Code, 1908, Section 11 — Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice — (1999) 5 SCC 590 relied.

 
Saturday, February 02, 2008
Evidence Act, 1872

Evidence Act, 1872 — Sections 114 and 50 — Held, act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.     

 
Evidence Act, 1872

Evidence Act, 1872 — Section 114 — Presumption in favour of wedlock — Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock — The presumption is rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place — Law leans in favour of legitimacy and frowns upon bastardy.

 
Thursday, December 13, 2007
Evidence Act, 1872

Evidence Act, 1872 — Section 30 — Expression 'the court may take into consideration such confession' — The expression 'the court may take into consideration such confession', held, is significant — It signifies that such confession by the maker as against the co-accused himself should be treated as a piece of corroborative evidence — In absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extra judicial confession or a judicial confession and least of all on the basis of retracted confession.

 
Saturday, June 16, 2007
Evidence Act, 1872

Evidence Act, 1872 — Section 133 read with Section 114(b) — Evidence of an accomplice — The rule of prudence, held, requires that the evidence of an accomplice should ordinarily be corroborated by some other evidence.

 
Evidence Act, 1872

Evidence Act, 1872 — Section 25 — While it is true that a confession made before an Officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under Act.

 
Wednesday, June 13, 2007
Evidence Act, 1872

Evidence Act, 1872 — Section 58 — A fact admitted in terms of S.58 of the Evidence Act, 1872, held, need not be proved.

 
Monday, September 11, 2006
Evidence Act, 1872

Evidence Act, 1872 — Sections 3 and 4 — Whenever it is directed that the Court shall presume a fact it shall regard such fact as proved unless disproved — Expression “shall presume” cannot be held to be synonymous with “conclusive proof”. 

 
Thursday, September 07, 2006
Evidence Act, 1872

Evidcence Act, 1872 — Section 35 — Determination of age — Until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted — Different standards having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case. 

 
Evidence Act, 1872

Evidence Act, 1872 — Section 35 — Section 35 requires the following conditions to be fulfilled before a document is held to be admissible thereunder : 

(i) it should be in the nature of the entry in any public or officiaL register; 

(ii) it must state a fact in issue or relevant fact; 

(iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and 

(iv) all persons concerned indisputably must have an access thereto.

 
Evidence Act, 1872

Evidence Act, 1872 — The Evidence Act, held, does not make any distinction between a civil proceeding and a criminal proceeding.

 
Wednesday, May 10, 2006
Evidence Act, 1872

Evidence Act, 1872 — Section 116 — Exception to the rule of estoppel embodied in S. 116 of the Evidence Act arises if it is shown that since the date of the tenancy the title of the landlord came to an end, or that he was evicted by a paramount title holder, or that even though there was no actual eviction or dispossession from the property under a threat of eviction, the tenant had attorned to the paramount title holder and a new jural relationship of landlord and tenanat had come into existence between them. 

 
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