PROJECT PROPOSAL

PROJECT REPORT

ON

“Law of Evidence”

SUBMITTED BY

Varun Chib

08LS176

Summer Internship Programme

Faculty of Law, ICFAI University

DEHRADUN
 Synopsis
When a dispute, whether relating to a civil or criminal matter, reaches the court
there will always be a number of issues which one party will have to prove in
order to persuade the court to find in his or her favor. The law must ensure
certain guidelines are set out in order to ensure that evidence presented to the
court can be regarded as trustworthy. The Law of Evidence governs the use of
testimony (e.g., oral or written statements, such as an affidavit) and exhibits
(e.g., physical objects) or other documentary material which is admissible (i.e.,
allowed to be considered by the Trier of fact, such as jury) in a judicial or
administrative proceeding (e.g., a court of law).

INTRODUCTION TO IEA

The Indian Evidence Act, 1872 is largely based on the English law of Evidence.
The Act does not claim to be exhaustive. Courts may look at the relevant English
Common Law for interpretation as long as it is not inconsistent with the Act.

The Act consolidates, defines and amends the laws of evidence. It is a special
law and hence, will not be affected by any other enactment containing provisions
on matter of evidence unless and until it is expressly stated in such enactment
or it has been repealed or annulled by another statute.

Parties cannot contract to exclude the provisions of the Act. Courts cannot
exclude relevant evidence made relevant under the Act. Similarly, evidence
excluded by the Act will be inadmissible even if essential to ascertain the truth.

THE LAW OF EVIDENCE IS THE LEX FORI

Law of evidence is part of the law of procedure. That why it is called the lex fori
or the law of the court or forum. It means that Indian courts know and apply
only the Indian law of evidence. Thus, the competency of a witness, whether a
fact is proved or not is determined by the law of the country where the question
arose, where the remedy is sought to be enforced and where the court sits to
enforce it. For example, if a legal proceeding is going on in Sri Lanka and
evidence is taken in India for the said proceeding whether by commission or by
assistance of courts in India, the law which will be applied during such recording
of evidence will Sri Lankan Law of Evidence.

THE LAW OF EVIDENCE IS THE SAME IN CIVIL AND CRIMINAL

PROCEEDINGS

A civil case of will and murder will have the same law of evidence. For example,
the date of death has to be clarified or confirmed for the will to come into
existence and a murder date has to be set for proceeding further with the
criminal investigations too. There are, however, certain sections that apply
exclusively to civil matters and others that apply exclusively to criminal cases. In
civil cases, mere preponderance of evidence may be enough but in criminal
cases the prosecution must prove its case beyond reasonable doubt and leave
the other alternatives presented very unlikely and highly suspect.
BASIC PRINCIPLES OF EVIDENCE

The Act deals with Relevancy of Facts, Mode of Proof and Production and Effect
of Evidence. The following principles are called the basic principles and the
exceptions to the above principles; the exact application has been set out very
clearly in the Act:

1. Evidence must be confined to the matters in issue.

2. Hearsay evidence may not be admitted.

3. The best evidence must be given in all cases.

4. All facts having rational probative value are admissible in evidence, unless
excluded by a positive rule of paramount importance.

DYING DECLARATION

Dying declaration is bases on the maxim “Nemo moriturus praesumitur

mentire” i.e. a man will not meet his maker with a lie in his mouth. Hearsay
evidences are not given any weightage in the courts because the person who is
giving this evidence is not telling his experiences but that of another person and
who cannot be cross examined to verify the facts. Dying declaration is an
exception to this rule because if this evidence is not considered very purpose of
the justice will be forfeited in certain situations when there may not be any other
witness to the crime except the person who has since died. Sometimes it the
best evidence in such situations. Its admissibility is explained in the section 32
(1) of Indian Evidence Act. According to this section when the statement is made
by a person as to the cause of his death, or any of the circumstances of the
transaction which resulted in his death, in cases in which the cause of that
person’s death comes into question. Such statements are relevant whether the
person who made this was expecting death or not In English law he must be
under expectation of death only then this declaration is valid. This declaration is
valid both in civil and criminal cases whenever the cause of death comes into
question. If we read the various judgments on the admissibility of dying
declaration at times various judges have taken diagonally opposite views and
different explanations have been offered though the motive in all have been to
provide justice to the people. Main thing is that if these declarations seem
trustworthy to courts these retain their full values. Most important point of
consideration is that victim was in a fit condition of mind to give the statement
when recording was started and remained in fit condition of mind till the
recording of the statement finished. Merely stating that patient was fit will not
serve the purpose. This can be best certified by the doctor who knows best
about the condition of the patient. But even in conditions where it was not
possible to take fitness from the doctor, dying declarations have retained their
full sanctity if there are other witnesses to testify that victim was in such a
condition of the mind which did not prevent him from making statement. Medical
opinion cannot wipe out the direct testimony of the eyewitness stating that the
deceased was in fit and conscious state to make the dying declaration. Second
most important point to be considered is that it should not be under the
influence of any body or prepared by prompting, tutoring or imagination. Even if
any one of these points is proved then dying declaration is not considered valid.
If it becomes suspicious then it will need corroboration. If a person has made
more than one dying declarations and if these are not at variance with each
other in essence they retain their full value. If these declarations are
contradictory than these lose value. Best form of dying declaration is in the form
of questions and answers. If it is in the form of narrations it is still good because
nothing is being prompted and everything is coming as such from the mind of
the person making it. If a person is not capable of speaking or writing he can
make a gesture in the form of yes or no by nodding and even such type of
declaration is valid. Whenever this is being recorded in the form of questions and
answers precaution should be taken that exactly what questions are asked and
what answers are given by the patient those should be written. It is preferred
that it should be written in the vernacular which the patient understands and
speaks. It is best that it is recorded by the magistrate but if there is no time to
call the magistrate due to the deteriorating condition of the victim it can be
recorded by anybody e.g. public servant like doctor or any other person

Meaning of Dying Declaration

In layman’s language, we can say that dying declaration is the statement made
by a person who is dying. But in legal sense it has got a different meaning. It is
not that all the statements made by a dying person can be termed as dying
declarations. It is only that statement of the deceased, which he made before his
death and which shows the cause of death or the circumstances leading to his
death can be termed as dying declaration, provided the death of that person
comes in question before a judicial authority.

Dictionary Meaning of Dying Declaration

None of the language dictionaries define the word ‘dying declaration’ jointly but
the words dying and declaration has been shown separately the literal meaning
of which a declaration or statement which is going to die. But if we go by these
meanings the whole meaning of dying declaration will loose its significance.
Therefore this meaning cannot be assigned to the term dying declaration.

DISTINCTION BETWEEN ENGLISH AND THE LAW IN INDIA

The first clause is widely different from the English law upon the subject of dying
declaration, according to which: (a) this description of evidence is not admissible
in any civil case; and (b) in criminal cases only in the single instance of
homicide, that is, murder or manslaughter, where the death of the deceased is
the subject of the charge and the circumstances of the death are the subject of
the dying declaration. Both in England and America, evidence of this description
(dying declarations), are not admissible in any civil case and in criminal cases it
is not admissible upon charges other than homicide; or as to homicides other
than that of the declarant. On the other hand, under the Indian Evidence Act the
statement is relevant whatever may be the nature of the proceeding, in which
the cause of the death of the person who made the statement comes into
question. Further, according to English law, certain conditions are required to
have existed at the time of declaration, namely, it is necessary that the
declarant should have been in actual danger of death; secondly, that they should
then have had a full apprehension of his danger and lastly, that death should
have ensued. The existence of the latter condition is of course as necessary
under that Act as under the English rule, inasmuch as the statement is
admissible only in cases in which the cause of the death of the person who made
it comes into question. But, under this Act, the statement is relevant whether
the person who made it was or was not at the time when it was made, under
expectation of death.

Under the Indian Law for a declaration to be relevant under s 32(1), it is not
necessary that the declaration should have been made when the person making
the same was in actual danger of death and had given up all hope of recovery at
the time when he made the declaration. Therefore, whether the declarant was or
was not in actual danger of death, and knew or did not know himself to be in
such danger, are considerations, which will not affect the admissibility of this
kind of evidence in India. But these considerations ought not to be laid aside in
estimating the weight to be allowed to the evidence in particular cases. Under
the Law which was in force prior to this Act (s 371, Act 25 of 1861) s 29, Act 2
of 1865, and which with one modification relating to the entertainment by the
deceased of hopes of recovery was similar in this respect to the English law, it
was held that before a dying declaration could be received in evidence, it must
be distinctly found that the declarant knew or believed at the time he made the
declaration, that he was dying or likely to die. Of course, before the statement
can be admitted under this section, the declarant must have died. Where a
person making a dying declaration chances to live, his statement cannot be
admitted in evidence as a dying declaration, though it may be relied on under s.
157 to corroborate the testimony of the complainant when examined in the case.
The statutory provision in s. 164 Criminal Procedure Code should be followed if
the statement in inculpatory and in the nature of a confession.
 Proposed Methodology

The methodology used in this project involves two concepts:

 Doctrinal method :

In this method collection of data has to be done through Primary a

source which involves self study through books, journals, manuals,
interacting discussions with project guide, different law websites.

 Analytical method:

The data collected must be analyzed through case laws, landmark

judgments and journals

Schedule
 The duration of the project is 8 weeks and I shall be utilizing the
duration of the internship in a planned manner. In order to
complete the project on time, I have divided the total project into
different phases.
 The first phase shall be for duration of 2 weeks. I this period, I will
utilize the time in getting acquainted with the general concepts of
Industrial and Labour Law.
 The second phase shall be for duration of 1 week. In this period, I
shall be finding out the data from various sources that I will have to
cover in the project. I will get accustomed with what I have to do
and proceed with the project work.
 The third phase shall be for duration of 2 weeks. In this period, I
will have a thorough study and analysis of the concept.
 The fourth phase shall be for duration of 1 week. In this period, I
will go through different provisions of these areas.
  The fifth phase shall be for duration of 1 week. In this period, I will
do the work of compilation. I will do the typing, editing and
assembling of the final project work. I will also prepare for the final
seminar.

References

 wikipidea.com
 findlaw.com
 www.ipfrontline.com
 legalpandit.com
 law4india .com
 manupatra.com