CHAPTER - 1

INTRODUCTION

1.1 Dying Declaration

Whenever any offence has been committed, there is always the two persons,

who voraciously knew what actually happened i.e. the Accused, who commit the offence

and the other one is Victim, with whom offence had been committed.

In order to prove their positions, and make one’s story to be true, they give

Statements to judge but their story one can not rely on the veracity of statements which they

made to support their stories, as it may be prejudiced or untrue so generally, the role of

Witness becomes crucial to determine the truth.

But there is a condition when the statement made by the person to be treated

as true evidence in spite of the fact that he made the statement in his own favour and hardly

any doubt behind the reason for that statement. That condition is Dying Declaration.

Dying Declaration is a statement made by the person while he was dying

and states the reason for his death. The statement given by the dying person can be circum-

stantial or tells the cause for his death. Hence, the only statement given just before the death

of a person is called Dying Declaration. The person who is conscious of Compos Men-

tis and knows that death is about to happen can make a declaration and state the cause of

his death and that statement will be Admissible and treated as Evidence in the Court. Dec-

laration made by the deceased person can be in oral, written and by conduct. The word

Dying Declaration explain the word itself.

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 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 re-

tain their full values. Most important point of consideration is that victim was in a fit con-

dition of mind to give the statement when recording was started and remained in fit condi-

tion 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

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from the doctor, dying declarations have retained their full sanctity if there are other wit-

nesses 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 eye-

witness stating that the deceased was in fit and conscious state to make the dying declara-

tion.

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 dec-

larations 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 dec-

laration 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 every thing 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.

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 Courts discourage the recording of dying declaration by the police officers

but if there is no body else to record it dying declarations written by the police officers are

also considered by the courts. If these are not recorded by the magistrate it is better that

signatures of the witnesses are taken who are present at the time of recording it. In burn

cases usually it is debated the person is not capable of making dying declaration due to the

effect of burns or due to the narcotic sedation given to treat burns. But Gupta and Jani have

opined that neither effect due to burns nor the drugs used to treat burns victims convention-

ally affects the higher functions. Therefore they safely concluded that compos mentis is not

affected either by burns or by its treatment.

If the person making it is imbecile or is of tender age and was incompetent

to testify due to this reason, that dying declaration would not be valid As a measure of

safety original dying declaration should be sent to the court like FIR and its Photostat

should be kept in the case file. It does not matter that the person has put a thumb impression

or signed it if this is duly witnessed. But in the court question does arise if a person who

can sign puts a thumb impression.

If a literate person putting the thumb impression is in such a condition that

he cannot sign e.g. he was lying in the bed and could not get up to sign it or it was incon-

venient for him to put thumb impression due to his condition (intravenous drip on the back

of hand) or injury e.g. injury on the right hand in a right handed person. In the absence of

such conditions if there is thumb impression and this is not witnessed by disinterested per-

sons a doubt may be created whether this was done after the person died to take revenge by

some interested person. There is usually no time limit that dying declaration becomes

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invalid if the person died after many months after making the declaration. Cases are on

record when it was considered valid after 4 months. Even the HISTORY given by the in-

jured recorded by the doctor in the case file has been considered as dying declaration by

the honorable Court if it is mentioned that the patient told in the history that incident oc-

curred in such and such manner which was responsible for the death of the victim.

Hence it is important that if such history is written as narrated by the victim

it should be recorded carefully, keeping in mind the mentioned finding of the court. First

information report got recorded by the police has been taken as dying declaration by the

honorable Supreme Court, when the person did not survive to get his dying declaration

recorded. But when patient remained admitted in hospital for sufficient days i.e. for 8 days

FIR cannot be treated as dying declaration.

A suicidal note written found in the clothes of the deceased it is in the nature

of dying declaration and is admissible in evidence under section 32 of Indian Evidence Act.

The purpose of this research is to identify the term ‘Leterm Mortem’. This

term has a legal significance meaning thereby words said before death. In common legal

terminology it is called dying declaration. In this entire project I'll be covering the signifi-

cance questions related to dying declaration. What dying declaration means is a statement

of a person who had died explain the circumstances of his death. In other words statement

made by person who is conscious who knows that his death is imminent and if he believes

something to be the cause office death can be introduced into evidence during the trial in

certain cases. A dying declaration is considered to be credible and trustworthy evidence

based on general belief that a person who is on his deathbed will never lie. It is based on

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the principle nemo mariturus presumuntur mentri meaning a man will not meet his maker

with a lie on his mouth. The Indian law recognises the fact that a dying man will seldom

lie or truth sits upon the lips of a dying man. As a result it is an exception to hearsay rule

which prohibits the use of a statement made by someone other than the person who repeats

it while test define during a trial because of its inherent untrustworthiness. A person who

makes a dying declaration must be competent at the time of making the statement otherwise

it is inadmissible. Moreover if a person has a slightest chance of recovery is dying decla-

ration will not be admissible into evidence.

1.2 Admissibility

The term “admissibility” means the state or quality of being admissible or

permissible. In the legal sense, the term “evidence” means anything admitted by a Court to

prove or disprove alleged matters of fact in a trial. Thus, the admissibility of evidence

means any document, testimony, or tangible evidence used in a Court of Law. All evidence

is not allowed in the Court, only those evidence which is reliable and relevant are admitted

in the Court of Law. Evidence is introduced to a judge or a jury to prove a point or an

important element in a case.

The term ‘admission’ is defined in Section 17 of the Indian Evidence Act,

1872. In general sense, the term admission means power or permission to enter, admittance,

entrance, access, the power to approach. In the legal sense, acquiescence or concurrence in

a statement made by another, and distinguishable from a confession in that an admission

presupposes prior inquiry by another, but a confession may be made without such inquiry.

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A fact, point, or statement admitted; as the admission made out of Court are received in

evidence.

The principles regarding admission are:

1. It states that there remains no difference between the admission of a party in plead-

ing and other admissions thereafter.

2. The admission made by a party in a plaint has to be duly signed and verified by that

party which could be used as evidence against that party in another suit, but the

same could not be termed as conclusive.

3. An admission cannot be divided into parts and can only be examined as a whole.

4. An admission can only be read in its entire form and no statements can be taken out

of the context to form an admission of a certain fact.

5. An admission binds the maker to the facts of the case.

6. An admissibility of a plea of guilt can be determined only if the plea is recorded in

the words used by the accused or the person charged with an offence.

7. For an admission to have a substantive evidence effect, it should be voluntary in

nature. Any admission which is made in ignorance of rights or under restraint in

which a person is influenced, whether by lawful or unlawful forceful compulsion

of their liberty by implementation of physical enforcement; legally for the incurring

of civil liability, of a citizen’s arrest, or of subrogation, or illegally for the commit-

ting of an offence, of forcing a contract, or of using threats cannot be considered an

admission.

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 8. Admissions are limited to being only prima facie proof (not needing further proof

unless contrary evidence is shown or produced in the Court of Law) and do not

carry a conclusive value.

9. Admissions which are clear, in the words of the accused or the person charged with

an offence are considered as the best proof of the facts submitted.

Summary – in the chapter – 1 we studied the basic introduction of admis-

sibility dying declaration.

In the next chapter – 2 we will study the analysis of the admissibility and

validity of dying declaration.

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 CHAPTER – 2

ANALYSIS OF ADMISSIBILITY AND DYING DECLARATION

2.1 Legal Anatomy of Dying Declaration, Its Admissibility and Validity

Leterm mortem or the dying declaration is the statement of a deceased per-

son which explains the circumstances of their death; in other words, if a person made any

statement before his last few breaths which establish the fact that he was aware of who and

what is causing his death, such statement is a dying declaration. The dying declaration is

believed to be reliable evidence based on the common belief that the person who is on his

death-bed will never lie. The principle of dying declaration is based on the maxim “nemo

moriturus presummit entire” which means ‘a man will not meet his maker with a lie in his

mouth’. The recording of dying declarations is a very important task and is done by the

competent Magistrate and sometimes by the police officers if the deceased was so precari-

ous that no other alternative was left, and extreme care is taken when a dying declaration

is recorded. If a person’s dying declaration is carefully recorded by the appropriate author-

ity, then such a declaration retains its full value and is taken into account as an essential

ingredient of a court trial, according to the Evidence Law.

Indian law recognizes the fact that the dying man rarely lies or the truth sits

on the lips of a dying man; the belief is that a person who is going to die exhausts all his

needs and desires, and his interest is more inclined towards his self-deeds, so he rarely lies.

The statement made by a person who is about to die, as to how he died and who is the

accused, is treated as evidence in Indian Courts. The dying declaration is mentioned un-

der Section 32 (1) of the Indian Evidence Act, 1872; the dying declaration is an exception

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to the hearsay rule that bans the use of a statement by anyone other than the person repeating

it whereas testing defines due to its inherent unreliability during a test. The Indian Evidence

Act, 1872 explains the admissibility of dying declaration; if we go through a close inspec-

tion of the Section, it is clear that a dying person’s statement in relation to the cause of his

death, or the circumstances that resulted in his death, is relevant and the sole basis of con-

viction in cases where the cause of that person’s death comes into question.

Indian Courts in its catena of judicial precedents have established the rele-

vance of the dying declaration and interpreted Section 32 (1) in different circum-

stances. In Khushal Rao v. State of Bombay, the Supreme Court laid down the principles

of admissibility of a dying declaration. The Hon’ble Court stated that it cannot be an abso-

lute rule of law that dying the declaration is the only ground of punishment until it is con-

firmed; also, the judges shall keep in mind the facts, circumstances, and surrounding con-

ditions in which the dying declaration was made while admitting dying declaration as a

piece of evidence.

Further, the court should always ensure that the dying declaration was made

before a competent Magistrate and is in the form of question and answer, and should be in

the format which is establishing declaration. Later, in the case of Munnu Raja and Ors. v.

State of M. P., the Supreme Court of India observed that a statement of an injured individ-

ual recorded as FIR can be understood as a dying declaration and is satisfactory under Sec-

tion 32 (1) of the Indian Evidence Act, 1872. It was likewise seen that the dying declaration

doesn’t show the whole occurrence or the historical backdrop of the case. In this circum-

stance, verification isn’t important; the dying declaration can be proclaimed as special

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evidence with the end goal of conviction. In the case of State v. Maregowda, the High Court

of Karnataka made a wide interpretation of the provision and held that a suicide note found

in the garments of the dead is considered as their dying declaration and it is admitted as

evidence under Section 32 (1) of the Act. Recently, in the case of State v. Arumugam Go-

vindaswamy and Ors., the Karnataka High Court stated that it is a settled law that the tes-

timony of the rape-victim does not need corroboration and that a conviction can be possible

solely on the basis of that. Moreover, the courts have previously convicted accused rapists

based on the dying declarations of rape victims. Recently, a dying declaration was made by

the victim of the Hathras Case; before, the Uttar Pradesh Police cremated her body without

the presence of her parents and family, and violated her right of an honourable farewell,

which was her fundamental right.

Now, the only thing we can ensure is that she gets a fair trial and her state-

ment is considered to be in line with the sanctity of our laws. If we failed, to provide justice

to the victim, the case will end up being just another statistic and then we will have our-

selves to blame. In a bold move, the Ministry of Home Affairs, after the horrific incident

happened in Hathras, directed all the States and UT to strictly enforce every law and guide-

line related to sexual assault on women and ensure the admission of the dying declaration

of sexual assault victims in courts.

The advisory also mentioned that the dying declaration of sexual assault

victims cannot be rejected on basis that she has not given her statements in front of Magis-

trate. The government must strongly enforce the policies against such barbaric crimes and

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should ensure that the States and UTs follow all guidelines and advisories issued by the

Hon’ble Supreme Court and the Centre.

2.2 Types of Dying Declaration

There is no particular form to be employed in making the Dying Declara-

tion. it can be Oral, Written, Gestures & Signs, Thumb impression, Incomplete and can also

be in the form of Question Answer. However, there must be a distinct and definite assertion

on the part of the person who produces the statement. Possibly the declaration should be in

written form in the exact words stated by the person who made the statement. When a

magistrate records the dying declaration, then it should be in Question-Answer form as the

magistrate will opt the maximum information rightly, as in some cases dying declaration

becomes the sole way to help in the conviction of the accused. Let us discuss some of the

types in the elaborative form:

Gestures and Signs

In the case of Queen-Empress v. Abdullah the appellant was charged with

the offence of murder before the court of session. That he had murdered one DULARI, a

prostitute by cutting her throat through RAZOR. It seems that one-morning dulari with her

throat cut was taken to the police station and from there to the dispensary. She was alive

till the morning. The post-mortem report shows that the windpipe and the anterior wall of

the gullet had been cut through. When Dulari was taken to the police station, she was ques-

tioned by her mother in the presence of a sub-inspector. She was again questioned by the

sub-inspector, deputy magistrate and subsequently by the assistant surgeon.

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 She was unable to speak but conscious and able to make gestures and signs.

Magistrate asked dulari, as who had wounded her, but due to the injured condition dulari

was unable to speak. After that, The magistrate mentioned several names one by one and

asked if they had wounded her. Dulari moves her hand forward and backwards and made

negative and affirmative signs. Subsequently, the magistrate asked whether Abdullah had

wounded her, for that dulari waved her hand made the sign in the affirmative, the magistrate

recorded the statement. After that question was put to her that if she been wounded with a

knife or sword. In this regard, dulari makes a negative sign, again magistrate asked her if

she had been wounded with the RAZOR. She in answer to this made an affirmative sign.

In this way, the magistrate records the dying declaration of Dulari and the

same was accepted as evidence to prosecute Abdullah.

Similarly, in the recent “Nirbhaya’s Rape Case,” Dying Declaration was

made by her in the form of sign and gesture. The dying declarations made by Nirbhaya

were recorded.

The first declaration was recorded by the doctor when she was admitted in

the hospital on the night of December 16, 2012 and the second on December 21 by the sub-

divisional magistrate during which she gave exact details of the mishappening.

The third declaration was recorded by the metropolitan magistrate on De-

cember 25 and was mostly by gestures. The bench said that as far as the third dying decla-

ration is concerned, this court has already held that the dying declaration made through

signs, gestures or by nods are admissible as evidence.

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Oral and Written

When the person gives the name of the murderer to a person present and

written by any of them then it is a relevant dying declaration. However, people may dispose

of the name of the mugger orally.

An oral dying declaration is admissible in evidence as an exception to the

general rule of evidence that hereby evidence is no evidence in the eyes of law. The oral

dying declaration made before his wife, father-in-law and other near relatives were made

in the conscious state.

In the case of Amar Singh v. State Of Rajasthan. The deceased’s mother and

brother gave the evidence, that the deceased made the statement month prior to the incident

of suicide by her that the appellant, her husband used to taunt the deceased saying that she

had come from a hunger house and the appellant himself go to the house of deceased and

asked for 10.000/-. It was held that the dying declaration and appellant were convicted

under section 304B and 498A of IPC. The Court referred to Pakala Narain Swamy v. Em-

peror. in which Lord Atkin: held that the circumstances of the transaction which resulted

in the death of the declarant will be admissible if such transaction has some proximate

effect.

Incomplete Dying Declaration

Dying declaration made by the person, which is found to be incomplete can

not be admissible as evidence. When the condition of the deceased is grave and at his own

request a statement made by him in the presence of the doctor was later taken by the police

but could not be completed as the deceased fell into a coma from which he could not

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recover. It was held that the dying declaration was not admissible in court as the declaration

appears to be incomplete on the face of it. But the statement, though it is incomplete in the

sense but conveys the declarant all necessary information or what he wanted to state, yet

stated as complete in respect of certain fact then the statement would not be excluded on

the ground of its being incomplete.

The deceased stated, “I was going home when I came near the house of Ab-

dul Majid, Sohail shot me from the bush. He ran away. I saw.” this was the dying declara-

tion made by the deceased and further was unable to answer the questions. It was held that

there is no question of incompleteness so far as the context of the case is concerned. In the

case of Muniappan v. State of Madras. The deceased made the dying declaration as follows:

“Sir,

This day 24th January 1960 in the afternoon at 12:30 Muniappan son kola

goundan of kamnav-kurechi stabbed me in my body with a knife.”

Soon the deceased died after the statement. His thumb impression was taken

after he was dead. This declaration against Muniappan was complete and admissible.

Question – Answer Form

Dying Declaration can be made in the form of Question-answer. the de-

ceased, in some of her statement, did not state the actual part played by the appellant. She

merely answered the questions put to her. The court held that when questions are put dif-

ferently then the answer will also appear to be different. At first glance, the detailed de-

scription of the offence may appear to be missing but the statement of the deceased con-

strued reasonably. However, when the magistrate records the dying declaration, it must be

15
preferred to be recorded in the form of a question-answer must be preferred. If there is

nothing to doubt that the person who records the statement made by the deceased exact

word to word, would not make any difference merely because the same was not recorded

in the form of question and answer.

2.3 Reason For Admitting Dying Declarations in Avidance

A dying declaration is admitted in evidence that is truly based on the prin-

ciple of “Nemo moriturns proesumitur mentiri (man will not meet his maker with a lie in

his mouth). Dying declaration does not require any corroboration as long as it creates con-

fidence in the mind of the Court and free from any form of tutoring. In case Uka Ram v.

State of Rajasthan[5]. Court held that dying declaration is admitted upon consideration is

made in extremity; when the maker of the statement is at his bed end, every hope of this

world is gone; and every motive of falsehood is silenced and mind induced to speak only

truth. Indian law recognizes this fact that “a dying man seldom lies”.

2.4 How A Dying Declaration Should Be?

There is no particular form of dying declaration. However, the best form of

dying declaration is in the form of questions and answers. However, whenever a dying

declaration 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. A dying declaration may be in the following forms:

1. Written form;

2. Verbal form;

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 3. Gestures and Signs form. In the case ''Queen vs. Abdulla10'', it was held that if the

injured person is unable to speak, he can make dying declaration by signs and ges-

tures in response to the question.

4. 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 dying declaration is valid.

5. It is preferred that it should be written in the vernacular which the patient under-

stands and speaks.

6. A dying declaration may be in the form of narrations. In case of a dying declaration

is recorded in the form of narrations, nothing is being prompted and everything is

coming as such from the mind of the person making it.

2.5 Who Should Record the Dying Declaration?

Any person can record the dying declaration made by the deceased, but the

person who is recording the dying declaration must have some nexus with the deceased

either circumstantially or by some fact. However, the doctor or police officer hold more

value as compared to the normal person. As far as the dying declaration is concerned the

magistrate entrusted to record the dying declaration, as the statement recorded by him is

considered more evidential rather than statement recorded by the doctor, police officer and

by the normal person.

The Supreme Court has found this to be true in law, at least in cases where

the person dies of burn injuries. Court hold the opinion that “The law on the issue can be

summarized to the effect that law does not give any direction that who can record a dying

declaration but just provided that magistrate is above all the person in subject for recording

17
the statement, nor is there any definite form, format or procedure for the same,” said a

bench of Justices B S Chauhan and Dipak Misra while quashing the high court order in the

case of dowry death acquittal case.

The person who records the dying declaration must be satisfied that the

maker is in a fit state of mind and conscious while making the statement.

Moreover, a dying declaration can be recorded by a person, or even by the

police officer, but if it is recorded by the judicial magistrate that it will have more credential

value and reliability.

Recorded by a Normal Person

A dying declaration can be recorded by a normal person. As in some cir-

cumstances where the judicial magistrate, police officer and doctor is not available, the

Court can not reject the dying solely statement made before the normal person. But the

person who records the statement must show that the deceased was in a fit state of mind

and conscious while making the statement no matter if the statement is not recorded by

Judicial Magistrate, doctor and police officer. The statement is admissible in a court of law.

Recorded by the Doctor or a Police Officer

If there is no time to call the magistrate keeping in the mind the deteriorated

condition of the declarant, the statement can be recorded by the doctor or by a police officer.

But one condition must be coupled with it that while recording the statement there shall

one or two-person present there as a witness otherwise the Court may find the statement to

be suspicious. Moreover, the statement record by the doctor, later endorses that the declar-

ant was not in a stable condition and his statement would not be considered as evidence,

18
rectify by the witness that the deceased was in a fit state of mind and conscious to make the

declaration. It was held in the case of N. Ram v. State that the medical opinion can not wipe

out the direct testimony of an eye witness which states that the deceased was in a fit mental

condition and able to make a dying declaration.

Recorded by the Magistrate

When the deceased statement recorded by the competent magistrate has

deemed to be considered as reliable and attracts the evidentiary value as he presumed to

know how the dying declaration should be recorded and he is a neutral person. Moreover,

the magistrate has empowered to record the dying declaration under 164 of Cr.P.C.

Section 164 Cr. P.C states that SubSection (1) gives power to the magistrate

to record the statement of the dying person, no matter whether he has jurisdiction over that

case or not, and in case where the statement recorded by the magistrate who has no juris-

diction in that case subsection (6) will apply. Here the word “statement” does not confine

to only the statement by the deceased and witness but also include a statement of the ac-

cused, in order to satisfy himself, but the accused statement will not amount to a confession.

Subsection (1) states that: any judicial magistrate and metropolitan magis-

trate shall have the power to record the dying statement made by the dying person, whether

the magistrate has jurisdiction in that particular case or not, he will be able to record the

state provided under this chapter or by any other law for the time being enforced, or at the

time before the commencement of trial and investigation.

Section 164 provides a warning. Under this provision the magistrate who

record the statement should tell the accused that he has to made only statement which shall

19
not be amount to confession, but if he did so, then the confession can be used against him

for the purpose of conviction. This is the sine qua non for recording confession. The other

important requirement is that the Magistrate must raise questions from the wrongdoer to

satisfy himself that the confession made by the accused was voluntary so as to enable him

to give the requisite certificate under subsection (4) of this chapter. The judicial magistrate

here tell the accused that he is not bound to make a confession, but he did not ask the

question from the accused in order to satisfy in question, whether the statement made by

the accused is voluntary or not.

In Mahabir Singh v. State of Haryana the Court held that, Where the Mag-

istrate did not clear the rule that the statement made by the accused should not be amount

to confession, if he does so then it will be used as evidence against him, cannot be consid-

ered. The Magistrate must satisfy himself that the statement made by the accused voluntary,

no pressure or force was used on the accused while making the confession. Any mark of

the person of the accused to vitiate the voluntary character of the confession. When was

held not only inadmissible under the section but it could not be used under the other provi-

sion of Indian Evidence Act such as sections 21 & 29?

Language of the Statement

As far as the language of the statement is concerned, it should be recorded

in the language of the deceased in which he is fluent or may possible than in Court language.

The court cannot reject the dying statement on the basis of the language in which it was

made. It can be recorded in any language. Even if the dying declaration is made by the

deceased in Urdu, Hindi, Punjabi languages, it was considered that statement could not be

20
denied on the ground of language in which it was made solely or on the ground that it was

recorded in Urdu. When the statement was given by the deceased in Urdu and the magis-

trate recorded it in English than in that case precaution should be taken while in explaining

every statement to the deceased by another person, it was declared that the statement was

the valid dying declaration.

Point to Remeber

1. Dying declaration made by the deceased can be recorded in any language.

2. If the statement was recorded in another language than the one which magistrate

recorded, then precautions should be taken to explain each and every aspect and

phrase.

3. The court cannot deny or discard the dying declaration only on the ground of

language.

In Biju Joseph v. State Of Kerala it was observed by the court that only

ground that the statement of the deceased made was in her own language cannot reduce it

value of the dying declaration. It was given by the High Court of Kerala:

“Presumed that the statement made by the deceased when he was dying rec-

orded in his language in which he has command or fluent, does not vitiate it value and court

can not denied or rejected on that basis. Judicial magistrate entrusted with the duty to con-

vert the statement in court language. And such translation process would not affect the

credibility that dying declaration”.

2.6 Multiple Dying Declaration

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 Supreme Court of India in concern to multiple dying declarations, it can be

considered upon without corroboration if there is no breakdown of fact in all the dying

declaration. If all the dying declarations are similar to each other and state correctly the

cause of death, and there is no contradiction between the statement it can be admissible But

if the dying declaration is different from each other and there is a contradiction between

them, then court will cross-examine the facts of the case or can examine the statements of

other witnesses to determine the truth and sanctity of statement regarding the case.

The statement of the deceased should match the facts and circumstances of

the case. It is very important to understand the character of multiple dying declarations.

Points to be considered in multiple dying declarations:

1. There should be regularity in all the dying declaration.

2. If all the dying declaration does not match or say overlap, then the court will

examine the facts of the case with the dying declaration Or examine the wit-

nesses.

Kushal Rao v state of Bombay that case Court set the importance rules for

dying declaration and what is the right process or manner to record it. In this case, if the

dying statement made by the deceased. That it should be recorded in the form of question

answer form, shall be endorsed/supported by the doctor that the deceased was in good men-

tal state, can be recorded by the person who is legally entitled to record, if there are multiple

dying declarations than it should be consistent, so that the court can rely on it.

The Supreme Court has held that multiple dying declarations can be reliable

when it made without corroboration if consistency is maintained throughout the statement.

22
Otherwise, the courts would have to cross-examine the statements of other witnesses to

determine the truth in a criminal trial.

2.7 F.I.R. as a Dying Declaration

In a situation where a person dies after, when a F.I.R was lodged and stating

that his life was in danger, it is relevant to be recorded as circumstantial dying declaration.

In the case of Munnu Raja and another v. State of M.P the Supreme Court

Of India observed that statement made by injured person recorded as FIR can be deemed

as dying declaration and such declaration is admissible under Section 32 of Indian Evidence

Act. It was also observed by the court that dying declaration must not shows the whole

incident or narrate the case history. Corroboration is not necessary in this situation, Dying

declaration can be declared as the exclusive evidence for the purpose of conviction.

2.8 Dying Declaration in India

Dying declarations are admissible as evidence in Indian courts if the dying

person is conscious of his or her danger, he or she has given up some hope of recovery, the

death of the dying person is the subject for the changing nature of the dying declaration,

and if the dying person was capable of to justify a sense of accountability to his or her

Maker.

2.9 Distinction Between Indian and English Law

The distinction between English law and Indian law on the subject of dying

declaration has been elaborately dealt in the case of Rajindra Kumara v. State Under Eng-

lish law, the essentials of a dying declaration are as follows:

23
 1. The declarant should have been in actual danger of death at the time when they

were made the dying declaration.

2. He should have had a full apprehension of his death is near.

3. Death should have ensued.

These conditions must be proved for the satisfaction of the judge before

considered it as a dying declaration than it can be received. Both in England and America,

dying declaration is not admissible as evidence whether any civil cases or in criminal cases;

it is not admissible upon charges other than homicide, or as to homicides other than that of

the declarant.

However, these conditions are not provided in Section-32 Of the Indian Ev-

idence Act. It is not required for a declarant to be in expectation of actual death while

making such a declaration nor is it restricted in the cases of homicide. Because of this

structure, it becomes increasingly necessary to know that the dying person speaks the truth

because if he does not die than still declaration can be used as evidence against the accused.

Moreover, dying declaration can be considered as relevant evidence in both criminal and

civil proceedings, whenever the cause of his or her death comes into question.

Requirements of Dying Declaration

According to section 32 clause (1) of Indian Evidence Act, the requirement

of dying declaration is as follows:

1. The statement made by the deceased may be oral or written. But in some

cases it can be made with sign and gesture depends on the condition of the

deceased

24
 2. The statement must be as:

3. Cause of death- when the statement is made by the person as to the cause of

his death or as to any of the circumstances of the transaction which was the

reason for his death not cover all the incident which are not relevant in order

to determine the cause

4. Circumstances of the transaction- the statement made by the deceased is

only related to the circumstances of the transaction will result in the death

of the deceased, remoteness or having no nexus which can not be connected

with the transaction have no value.

5. Resulted in the death- the deceased statement should have the cause and cir-

cumstances that will clearly reason for his death or ultimately result in his

death.

Exception of Dying Declaration

There are many circumstances in which the statement made by the dying

person is not admissible in a court of law. These conditions are as follows:

1. If there is no question for consideration about the cause of death of the de-

ceased. For example, if a person in his declaration state anything which is

not remote or having a connection with the cause of death than the statement

is not relevant and hence not be admissible.

2. The declarant must be competent to give a dying declaration, if the declara-

tion is made by the child then the statement will not be admissible in court

as it was observed in case of Amar Singh v. State of M.P[27] that without

25
 the proof of mental fitness and physical fitness the statement would not be

considered reliable.

3. The statement which is inconsistent has no value and can not be considered

as evidentiary in nature.

4. The statement made by the deceased should be free from any influential

pressure and should be made spontaneous.

5. It is perfectly allowed to the court if they reject any untrue statement which

contradicting in nature.

6. If the statement is incomplete in the sense which means it can not answer the

relevant questions which are necessary to found guilty, and on the counter-

part, statement deliver nothing so it will not be deemed to consider.

7. Doctor’s opinion and the medical certificate should with the statement and

support that the deceased is capable of understanding what statement he

makes.

8. If the statement is not according to the prosecution. In this regard, the fol-

lowing points should be taken into consideration by the apex court.

9. While making the statement deceased must be in fit mind of the state.

10. Should be recorded by the magistrate or by a police officer and person in a

case when deceased was so precarious

11. A dying declaration should be recorded in question-answer form and written

in words of the persons exactly who gives the statement.

2.10 Definition of Evidance

26
 The term evidence is defined in Section 3 of the Indian Evidence Act, 1872.

In the general sense, the term evidence means facts or observations presented in support of

an assertion. In the legal sense, the term evidence can be described as anything admitted by

a Court to prove or disprove alleged matters of fact in a trial.

The term “admissibility” means the state or quality of being admissible or

permissible. In the legal sense, the term “evidence” means anything admitted by a Court to

prove or disprove alleged matters of fact in a trial. Thus, the admissibility of evidence

means any document, testimony, or tangible evidence used in a Court of Law. All evidence

is not allowed in the Court, only those evidence which is reliable and relevant are admitted

in the Court of Law. Evidence is introduced to a judge or a jury to prove a point or an

important element in a case.

2.11 Relevance of Admission

The terms ‘Relevance’ and ‘Admissibility’ are often considered as syno-

nyms but the legal implication of both the words are very distinct. There’s a very prominent

phrase to throw light on the difference between the two words. All admissible evidence is

relevant but all relevant evidence is not admissible. The word relevance has a broader scope

as compared to the word admissibility. Relevance is the genus of which admissibility is the

species. These two words can be distinguished from one another in the following manner:

1. Relevancy is when the facts are so related as to render the existence or non-

existence of other facts probable according to a common course of events or

human conduct, they are called relevant. Whereas, admissibility is when facts

27
 have been declared to be legally relevant under the Indian Evidence Act, 1872

they become admissible.

2. Relevancy is founded on logic and human experience. Whereas, admissibility is

founded on Law, not on logic.

3. The question regarding relevancy has been enunciated in Section 5 to Section

55 of the Indian Evidence Act, 1872 Whereas, the question of admissibility is

provided in Section 56 of the Indian Evidence Act, 1872.

4. Relevancy signifies as to what facts are necessary to prove or disprove a fact in

issue. Whereas, admissibility is a decisive factor between relevance and proof.

5. Relevancy merely implies the relevant facts. Whereas, admissibility implies

what facts are admissible and what is not admissible.

6. Relevancy is the cause. Whereas, admissibility is the effect.

7. In relevancy, the Court may apply its discretion. Whereas, in admissibility, there

is no scope for the Court to apply discretion.

8. All admissible facts are relevant. But, all relevant facts are not admissible. Only

legally relevant facts are admissible.

2.12 Types of Evidence

Various kinds of evidences according to the Indian Evidence Act, 1872 are:

Oral Evidence

Oral evidence is described in Section 60 of the Indian Evidence Act, 1872.

These are the evidence which the person giving has himself seen or heard. It is positive in

28
nature and creates a great impact on the case and establishes facts of the particular case.

Such evidence is direct in its nature.

Documentary Evidence

Documentary evidence is described in Section 3 of the Indian Evidence Act,

1872. Such evidence is documentary evidence which is permitted by the Court of Law for

inspection. Thus, all the documents permitted by the Court for inspection can be termed as

documentary evidence.

Primary Evidence

Primary evidence is described in Section 62 of the Indian Evidence Act,

1872. Primary evidence is the most superior kind of evidence and is admissible and per-

missible in the very first place. This evidence plays a vital role in the case.

Secondary Evidence

Secondary evidence is described in Section 63 of the Indian Evidence Act,

1872. This evidence is admissible in Court in case the primary evidence is missing. It is

known as secondary evidence because it is inferior to the primary evidence and in case of

a conflict the primary evidence prevails.

Real Evidence

Real evidence is evidence which is obtained by inspection of a particular

physical object and not given by any witness in particular.

Hearsay Evidence

29
 Hearsay evidence is when a person has not particularly himself seen or heard

something in the happening of that event but got the knowledge of certain happening of an

event from someone else. This kind of evidence is the weakest kind of evidence and is

admissible only if it is backed up by another strong evidence and can be proved.

Judicial Evidence

Judicial evidence is evidence received by the Court in proof or disproof of

facts before it. The statements provided by the witnesses are also termed as judicial evi-

dence. This is the evidence produced directly in front of the magistrate.

Non-Judicial Evidence

Non-judicial evidence is the evidence which is confessed outside the Court

and not in front of the magistrate. This evidence is only admissible if it could be proved in

the Court later as judicial evidence.

Direct Evidence

Direct evidence is the kind of evidence which establishes a particular fact.

This evidence plays a vital role in deciding the matter in a particular issue. For example, a

testimony delivered by witnesses.

Indirect and circumstantial Evidence

This kind of evidence is not a definite proof but a general idea of what pos-

sibly could have happened in a given circumstance. This evidence attempts to prove the

facts contained in the issue by providing other facts and affords an instance as to its exist-

ence.

30
2.13 Conditions of Admissibility of Evidence in Court

Section 20 of the Indian Evidence Act, 1872 states about the admissions of

persons referred to or by a party to a particular suit. This section brings another exception

to the general principle of admissions made by strangers to the suit. Admissions made by a

third party are considered relevant and are admissible when a party refers another to him

for information in regard to uncertain or disrupted manner.

There are two basic factors that are considered when determining whether evidence is ad-

missible or not:

Relevant

The evidence must prove or disprove an important fact in the criminal case.

If the evidence doesn’t relate to a particular fact, it is considered “irrelevant” and is there-

fore inadmissible and is also not permissible in Court.

Reliable

Reliability refers to the credibility of a source that is being used as evidence.

This usually applies to witnesses’ testimonies.

K.M. Singh v. Secretary Indian University Association 199. In this case, it

was held that:

1. Section 20 is an exception to the general rule i.e., ‘admission by a party to the pro-

ceeding or his agent’ which is laid down in Section 18.

2. Section 20 deals with a class of vicarious admissions.

3. It states that a third person’s opinion is taken into consideration when the third per-

son is referred to by one party in the matter of dispute.

31
 4. The third person’s opinion is considered for the reason that one party in dispute

approves of the third party’s opinion while anticipating the other party to enquire.

2.14 What Constitute Admissible Evidence Under the Indian Evidence Act, 1872?

Evidence under the Indian Evidence Act, 1872 means and includes:

1. All the statements which are permissible and admissible by the Court made by

the witnesses before it or in front of the magistrate, regarding the matters of a

dispute under question.

2. All the documents produced for inspection as per the order of the Court includ-

ing the electronic records.

2.15 What Kind of Evidence are Inadmissible in Court?

What are the Factors that determine the inadmissibility of the evidence?

The factors determining the admissibility of the evidence in Court proceedings are:

Unfairly Prejudicial

The word prejudicial means tending to convince based on past history rather

than on evidence about the case in hand. The evidence which is unfairly harmful, detri-

mental, injurious, or biased towards the case without establishing any proper fact and out-

raging the jury or the judge without providing any material fact but conjecture is often

excluded from the Court proceedings. For example, a child’s photograph around the vic-

tim’s body.

Wastes Time

During trials, the advocates representing their clients often provide with ev-

idence or witness which can lead to the wasting of time of the Court. Such witnesses or

32
evidence are excluded from a Court proceeding. For example, it is a waste of time for the

Court if the advocate produces twenty separate people to prove that the accused is an honest

person.

Misleading

Evidence which could draw away the jury’s or the judge’s attention away

from the main issue or essence of the case such evidence is considered as misleading evi-

dence and excluded from the Court proceedings. For example, a minor’s gender in a case

of rape is irrelevant because the main fact to be established is whether rape was conducted

or not on the minor and it is not important to know whether the minor was of which gender.

Hearsay Evidence

Hearsay evidence is when a person has not particularly himself seen or heard

something in the happening of that event but got the knowledge of certain happening of an

event from someone else. Such evidence is inadmissible because any human can lie and

blame the other person for saving someone or to escape from punishment.

For example, if ‘A’ a witness claims that another witness ‘B’ said the de-

fendant hit the victim with a rod and the prosecutor wants to use the testimony to prove that

the defendant hit the victim, that testimony is considered hearsay.

Character

The evidence produced by the plaintiff party to prove the character of the

defendant has certain traits which are excluded from the Court proceedings unless the de-

fendant introduces the evidence of character first in the hearing.

33
Expert Testimony

Expert testimony is only admissible when originally given by an expert and

not by a layman. A layman cannot provide expert testimony, a layman’s testimony is not

admissible.

Privileges

The Court does not allow any kind of privilege information obtained by any

attorney-client privilege as well as any other self-incriminating information. Such infor-

mation is confidential and would perjure the attorney and is inadmissible in the Court of

law.

2.16 Illustration of Evidence which is considered inadmissible in court

‘A’ sold a car to ‘B’. ‘B’ asked ‘A’ whether the car sold by ‘A’ to ‘B’ func-

tions properly or not. ‘A’ replied to ‘B’ saying- “Go and ask ‘E’ as he knows all about it”.

Thus, a statement made by ‘E’ would be admissible in Court. But in case ‘B’ himself went

and asked ‘E’ whether the car is functional or not without ‘A’ telling him to do so. Then

the statement made by ‘E’ would be inadmissible in Court.

Section 136 of the Indian Evidence Act, 1872 states that:

Only the judge can decide whether evidence is admissible or relevant or

permissible in Court. The judge may ask an individual to explain in what way or manner

the individual person proposes to show proof or establish a fact. The judge would allow the

proof only if it is relevant enough to the matters in dispute and if the judge is satisfied with

the reaction of the particular individual. The aspect of relevance supersedes the aspect of

admissibility in the Court proceedings.

34
2.17 Admissibility of Evidence in Courts

1. In Civil proceedings- In Civil proceedings, an element of a case is weighed by the

standard or superiority or power of the evidence. However, the evidence produced

is generally government documents such as leases, sale deeds, rent agreements, gift

deeds, etc.

2. In Criminal proceedings- In Criminal proceedings, the evidence is used to prove

whether the defendant in a disputed matter is guilty or not beyond a reasonable

doubt. However, in criminal proceedings evidence can only be used when it is con-

sidered admissible and relevant to the facts or issues or matter or any other factor

of dispute. The decision of whether an evidence is admissible or not is on the

Court’s discretion.

2.18 Admissibility of Electronic Evidence Under Act

The Indian Evidence Act, 1872 was amended by manifestation of Section

92 of Information Technology Act, 2000 (Before the amendment). Section 3 of the Indian

Evidence Act, 1872 was also amended that previously it only included all the documents

which were produced for inspection in the Court as evidence but after the amendment the

Act said that it included all the documents including the electronic records which were

produced for inspection in the Court as evidence. And in regards to the documentary evi-

dence stated in Section 59 the words ‘Contents of documents’ and ‘Contents of documents

or electronic records’ were substituted by Section 65A and Section 65B to include the ad-

missibility of the electronic evidence and other electronic records. Thus, just like other

evidence, electronic evidence or digital evidence is also considered as evidence admissible

in Court if it is relevant and not against any factors of inspection of the Court.

35
2.19 What is an E-Evidence?

The term e-evidence can be expanded as electronic evidence. It is also said

to be digital evidence. In today’s world use of the internet, mobile phones, mobile applica-

tions, laptops, computers, tablets, ipads, etc. is very common. Almost every next person

creates a profile on Facebook, Snapchat, WhatsApp, Twitter, Instagram, etc. There is con-

tinuous monitoring of all the activities and events taking place in a particular area by the

guards and policemen via CCTV cameras and other devices. The footages or snaps or call

records obtained from sources that are authentic in nature and can be produced before the

Court to prove the defendant guilty and are relevant and admissible are termed as e-evi-

dence. Examples of electronic evidence are data stored in a computer system, information

transmitted electronically through any communication network, etc.

2.20 Sources of E-Evidence

Electronic devices are used on an everyday basis and are an integral part of

the daily life of an individual. Some of its sources are:

Digital/Video Camera

This source can provide pictures, videos and files stored locally or on the

media card of the camera.

Cell Phone

Such a source can provide with all the call logs, text messages, applications

used, social media accounts and everything from all other categories in that particular cell

phone about whom it belongs to.

Computer/Laptop

36
 Computers or laptops provide data like social media accounts, internet

search history, documents saved in, email accounts if any and all other information present

within the system.

Mobile Device

Such a source can provide with all the call logs, text messages, pictures,

videos, files stored, applications used, social media accounts and everything from all other

categories in that particular cell phone about whom it belongs to.

File Storage

These devices include hard drive, thumb drive, optical media, and Pendrive.

These devices contain plenty of information of all sorts and are highly useful.

Wearables

These are the devices such as fit bits and Mi watches etc. They inform about

an individual’s location. This is an essential source to track down people.

Automated Licence Plate Readers

They are termed as LPR. These show the pictures of the car, metadata and

geolocation.

In-Car Cameras

This kind of evidence provides videos of the events of the activities inside a

car or any other vehicle inside which it is placed.

Bord Worn Cameras

37
 This kind of evidence provides videos of the events of the activities wher-

ever the person wearing such a device travels.

Drones

This kind of evidence is also known as unmanned aerial systems. Such evi-

dence captures the videos of places it is flown towards.

CCTV

This evidence provides videos and places where it is placed. It captures all

the necessary and other relevant minute details and can be viewed later and can be used as

strong evidence.

Interview Recording Room System

Such a source of obtaining evidence helps to monitor the behaviour of peo-

ple present inside the room and take videos of activities and events of the area in which it

is placed.

2.21 Section 65A and Section 65B of the Indian Evidence Act

Section 65A and Section 65B were added by the Information Technology

Act, 2000 substituting Section 59 of the said Act. Section 65A is always read along with

Section 65B as Section 65A contains the contents of electronic records which have to be

proved by the provisions mentioned in Section 65B. Section 65B states the admissibility of

electronic records.

It states that any record which is contained in any electronic or digital rec-

ords which are printed on a sheet, copied from somewhere, stored in a particular place or

38
recorded in a device or copied in any visual media shall be termed as a document. And if

the terms specified are satisfied by such a document it shall be necessarily admissible in

Court proceedings without any proving of such document in the future.

Section 65A of the Indian Evidence Act is always read along with Section

65B of the Indian Evidence Act, 1872 as Section 65A of the Act contains the contents of

electronic records which have to be proved by the provisions which are mentioned in Sec-

tion 65B of the Act.

Section 65B of the Indian Evidence Act states the admissibility of electronic

records in Court proceedings. It states that any record which is contained in any electronic

or digital format shall be termed as a document. And if the terms specified in Section 65B

of the said Act are satisfied by such a document then it shall be necessarily admissible in

Court proceedings without any proving of such document in the future.

The conditions of Section 65B are:

1. The information shall be produced during the regular course of activities by the

person having lawful control over the use of the computer.

2. The information has been regularly fed into the computer in the ordinary course

of the said activities.

3. Throughout the material part of the said period, the computer was operating

properly or the improper operation was not of such nature to affect the electronic

or digital record or the accuracy of its contents produced.

39
 4. The information contained in the electronic or digital records is derived from

such information fed into the computer in the ordinary course of an individual’s

activities.

2.22 Admissibility of Interview as Evidence

The role of media in the Indian legal system has been growing in the recent

times. No doubts that the coming of the investigatory journalism has benefited the country

in ways more than one and it has been playing a crucial role of bringing up issues of public

concern and importance to the notice of the courts. Today the media is not only referring

the areas of concern rather collecting statistics, evidence and of course shaping the public

opinion to the extent that at times even the educated lawyers get carried away and act as

they did in the court premises in Noida recently in reference to the Nithari Case, such is the

power media already enjoys. Supreme Court has added a new, and significant, chapter to

the conservative criminal jurisprudence and given a role to the media in criminal trials by

ruling that interviews given by an accused to TV channels could be considered evidence by

courts, where by enhancing the power of the already powerful media. No doubt such a

decision is a fabulous step in the direction of curtailing the misuse of the freedom of speech,

which in the recent years has been used to mislead the investigation process. Still there are

serious issues that need to be deliberated as to how such a scenario will fit into the existing

evidence mechanism.

2.23 Mode of Treating and Recording Evidence

40
 Including recording of evidence through video conferencing: In a path

breaking development, the Supreme Court held that a trial judge could record evidence of

witnesses who is staying abroad through video conferencing.

Interpreting Section 273 of the Criminal Procedure Code in the light of tech-

nological advancements, a bench comprising Justice S N Variava and Justice B N Agrawal

said recording of evidence through video conferencing would be perfectly legal.

The judgment relates to a case in which a US-based doctor had opined

against operation of a cancer patient through video conferencing. Ignoring the advice, two

Indian doctors operated on the lady, who later passed away.

The patient's family went to court against the doctors. However, the US-

based doctor, Ernest Greenberg, refused to come to India, but expressed willingness to give

evidence through video conferencing.

But the Bombay high court did not allow the trial court to go ahead citing

Section 273, which lays down the procedure for recording evidence.

The husband of the deceased, P C Singhi and the Maharashtra government

had appealed against the high court order in the Supreme Court.

The prosecution has alleged that the two Indian doctors -- Praful B Desai

and A K Mukherjee -- did not take good care of the patient after the operation as a result of

which she suffered a lot before her death.

41
 Speaking for the bench, Justice Variava said, "In cases where the attendance

of a witness cannot be procured without an amount of delay, expense or inconvenience, the

court could consider issuing a commission to record evidence by way of video conferenc-

ing.

" "Normally a commission would involve recording of evidence at the place

where the witness is. However, advancement in science and technology has now made it

possible to record such evidence by way of video conferencing in the town/city where the

court is," he said.

Referring to the chances of witness abusing the trial judge during video con-

ferencing, the apex court said, "As a matter of prudence, evidence by video-conferencing

in open court should be accepted only if the witness is in a country which has an extradition

treaty and under whose laws contempt of court and perjury are punishable.

" The court then directed the Mumbai court to set up a commission and take

help of VSNL in recording Dr Greenberg's statement through video conferencing in the

presence of the two accused doctors. It also allowed the two accused to cross-examine the

US-based doctor.

The court directed the Maharashtra government to bear the cost of video

conferencing. Rejecting all arguments about inferior video quality, disruption of link and

other technical problems, the bench said by now science and technology has progressed

enough to not worry about video image/audio interruptions or disruptions.

42
 The counsel for the two doctors argued that the rights of the accused under

Article 21 could not be subjected to a procedure involving 'virtual reality'. Rejecting the

argument, the bench said video conferencing has nothing to do with virtual reality and gave

the example of the telecast of the cricket World Cup. It could not be said that those who

watched the World Cup on television were witnessing virtual reality as they were not in the

stadium where the match was taking place, the court pointed out.

"This is not virtual reality, it is actual reality. Video conferencing is an ad-

vancement of science and technology which permits one to see, hear and talk with someone

far away with the same facility as if he is present before you, that is, in your presence," the

apex court said. "Recording of evidence by video conferencing also satisfies the object of

providing, in Section 273, that evidence be recorded in the presence of the accused," it said.

The proliferation of computers and the influence of information technology on society as

whole, coupled with the ability to store and amass information in digital form have all

necessitated amendments in Indian law, to incorporate the provisions on the appreciation

of digital evidence. The Information Technology Act, 2000 and its amendment is based on

the United Nations Commission on International Trade Law (UNCITRAL) model Law on

Electronic Commerce.

The Information Technology (IT) Act, 2000, was amended to allow for the

admissibility of digital evidence. An amendment to the Indian Evidence Act 1872, the In-

dian Penal Code 1860 and the Banker's Book Evidence Act 1891 provides the legislative

framework for transactions in electronic world. Digital evidence or electronic evidence is

43
any probative information stored or transmitted in digital form that a party to a court case

may use at trial.

Before accepting digital evidence it is vital that the determination of its rel-

evance, veracity and authenticity be ascertained by the court and to establish if the fact is

hearsay or a copy is preferred to the original.

Digital Evidence is “information of probative value that is stored or trans-

mitted in binary form”. Evidence is not only limited to that found on computers but may

also extend to include evidence on digital devices such as telecommunication or electronic

multimedia devices. The e-EVIDENCE can be found in e-mails, digital photographs, ATM

transaction logs, word processing, documents, instant message histories, files saved from

accounting programs, spreadsheets, internet browser histories databases, Contents of com-

puter memory, Computer backups, Computer printouts, Global Positioning System tracks,

Logs from a hotel’s electronic door locks, Digital video or audio files.

Digital Evidence tends to be more voluminous, more difficult to destroy,

easily modified, easily duplicated, potentially more expressive and more readily available.

Computer forensics is a branch of forensic science pertaining to legal evidence found in

computers and digital storage mediums. Computer forensics is also known as digital foren-

sics. The goal of computer forensics is to explain the current state of a digital artifact. The

term digital artifact can include: A computer system storage medium (hard disk or CD-

ROM) an electronic document (e.g. an email message or JPEG image) or even a sequence

of packets moving over a computer network. The definition of 'evidence' has been amended

to include electronic records.

44
 The definition of 'documentary evidence' has been amended to include all

documents, including electronic records produced for inspection by the court. Section 3 of

the Evidence Act, 1872 defines evidence as under: "Evidence" - Evidence means and in-

cludes:- all statements which the court permits or requires to be made before it by witnesses,

in relation to matters of fact under inquiry; such statements are called oral evidence;

All documents including electronic records produced for the inspection of

the court. Such documents are called documentary evidence. The term 'electronic records'

has been given the same meaning as that assigned to it under the IT Act. IT Act provides

for "data, record or data generated, image or sound stored, received or sent in an electronic

form or microfilm or computer-generated microfiche". The definition of 'admission' (Sec-

tion 17 of the Evidence Act) has been changed to include a statement in oral, documentary

or electronic form which suggests an inference to any fact at issue or of relevance. New

Section 22-A has been inserted into Evidence Act, to provide for the relevancy of oral ev-

idence regarding the contents of electronic records. It provides that oral admissions regard-

ing the contents of electronic records are not relevant unless the genuineness of the elec-

tronic records produced is in question. The definition of 'evidence' has been amended to

include electronic records. The definition of 'documentary evidence' has been amended to

include all documents, including electronic records produced for inspection by the court.

New sections 65-A and 65-B are introduced to the Evidence Act, under the Second Sched-

ule to the IT Act. Section 65-A provides that the contents of electronic records may be

proved in accordance with the provisions of Section 65-B. Section 65-B provides that not-

withstanding anything contained in the Evidence Act, any information contained in an elec-

tronic, is deemed to be a document and is admissible in evidence without further proof of

45
the original's production, provided that the conditions set out in Section 65-B are satisfied.

The conditions specified in Section 65-B (2) are:

1. Firstly, the computer output containing the information should have been produced

by the computer during the period over which the computer was used regularly to

store or process information for the purpose of any activities regularly carried on

over that period by the person having lawful control over the use of the computer.

2. The second requirement is that it must be shown that during the said period the

information of the kind contained in electronic record or of the kind from which the

information contained is derived was 'regularly fed into the computer in the ordinary

course of the said activity'.

3. A third requirement is that during the material part of the said period, the computer

was operating properly and that even if it was not operating properly for some time

that break did not affect either the record or the accuracy of its contents.

4. The fourth requirement is that the information contained in the record should be a

reproduction or derived from the information fed into the computer in the ordinary

course of the said activity.

5. Under Section 65-B(4) the certificate which identifies the electronic record contain-

ing the statement and describes the manner in which it was produced giving the

particulars of the device involved in the production of that record and deals with the

conditions mentioned in Section 65-B(2) and is signed by a person occupying a

responsible official position in relation to the operation of the relevant device 'shall

be evidence of any matter stated in the certificate’.

46
 6. Section 65-B(1) states that if any information contained in an electronic record pro-

duced from a computer (known as computer output) has been copied on to a optical

or magnetic media, then such electronic record that has been copied 'shall be

deemed to be also a document' subject to conditions set out in Section 65-B(2) being

satisfied. Both in relation to the information as well as the computer in question

such document 'shall be admissible in any proceedings when further proof or pro-

duction of the original as evidence of any contents of the original or of any fact

stated therein of which direct evidence would be admissible.'

2.24 Recent Trends in Recording and Admissibility of Evidence

People have faith and confidence on Courts. They come to Court for justice.

For discovery of the truth, Courts require proper or relevant facts and record evidence in

clear and intelligible manner. When the language of a written instrument is perfectly plain,

no construction will be made to contradict the language. As such, a Presiding Judge or

Magistrate must cease to be a mere recording machine. He should take a participatory role

in the trial. Exercising his control over the proceedings effectively, he should interfere when

irrelevant fact is unnecessarily brought on record so that the ultimate objective i.e., the truth

is arrived at.

The evidence consists of three parts –

(i) Electronic record,

(ii) Documentary evidence other than electronic record, and

(iii) Oral evidence.

2.25 Law on Electronic Evidence

47
 The proliferation of computers, the social influence of information technol-

ogy and the ability to store information in digital form have all required Indian law to be

amended to include provisions on the appreciation of digital evidence. In 2000 Parliament

enacted the Information Technology (IT) Act 2000, which amended the existing Indian

statutes to allow for the admissibility of digital evidence. The IT Act is based on the United

Nations Commission on International Trade Law Model Law on Electronic Commerce and,

together with providing amendments to the Indian Evidence Act 1872, the Indian Penal

Code 1860 and the Banker's Book Evidence Act 1891, it recognizes transactions that are

carried out through electronic data interchange and other means of electronic communica-

tion.

2.26 Changes to Evidence Act

Although the Evidence Act has been in force for many years, it has often

been amended to acknowledge important developments. Amendments have been made to

the Evidence Act to introduce the admissibility of both electronic records and paper-based

documents. Evidence The definition of 'evidence' has been amended to include electronic

records (Section 3(a) of the Evidence Act). Evidence can be in oral or documentary form.

The definition of 'documentary evidence' has been amended to include all documents, in-

cluding electronic records produced for inspection by the court. The term 'electronic rec-

ords' has been given the same meaning as that assigned to it under the IT Act, which pro-

vides for "data, record or data generated, image or sound stored, received or sent in an

electronic form or microfilm or computer-generated microfiche".

48
 Electronic record is documentary evidence under section 3 of the Evidence

Act. Any information contained in an electronic record is deemed to be a document. An

electronic record may be like computer print out, Compact Disc (CD), Video Compact Disc

(VCD), Pen drive, Chip etc.,. In other words, it may be printed on a paper, stored, recorded

or copied in optical or magnetic media produced by a computer. The Evidence 2 Act does

not contemplate or permit the proof of an electronic record by oral evidence. If an electronic

record as such is used as primary evidence under section 62 of the Evidence Act, the same

is admissible in evidence. The general law on secondary evidence under section 63 read

with section 65 of the Evidence Act has no application in case of secondary evidence by

way of electronic record. The same is wholly governed by sections 65-A & 65 B.

2.27 Admissibility of Electronic Evidence

New Sections 65A and 65B are introduced to the Evidence Act under the

Second Schedule to the ITAct, 2000. Section 5 of the Evidence Act provides that evidence

can be given regarding only factsthat are at issue or of relevance. Section 136 empowers a

judge to decide on the admissibility of theevidence. New provision Section 65A provides

that the contents of electronic records may be proved in accordance with the provisions of

Section 65B. Section 65B provides that notwithstanding anything contained in the Evi-

dence Act, any information contained in an electronic record (ie, the contents of a document

or communication printed on paper that has been stored, recorded and copied in optical or

magnetic media produced by a computer ('computer output')), is deemed to be a document

and is admissible in evidence without further proof of the original's production, provided

that the conditions set out in Section 65B(2) to (5) are satisfied.

49
Conditions for the admissibility of electronic evidence

Before a computer output is admissible in evidence, the following condi-

tions as set out in Section 65(B)(2) must be fulfilled:

"(2) The conditions referred to in subsection (1) in respect of a computer output shall be

the following, namely:

1. The computer output containing the information was produced by the computer

during the period over which the computer was used regularly to store or process

information for the purposes of any activities regularly carried on over that period

by the person having lawful control over the use of the computer;

2. During the said period, information of the kind contained in the electronic record or

of the kind from which the information so contained is derived was regularly fed

into the computer in the ordinary course of the said activities;

3. Throughout the material part of the said period the computer was operating properly

or, if not, then in respect of any period in which it was not operating properly or

was out of operation during that part of the period, was not such as to affect the

electronic record or the accuracy of its contents; and (d) the information contained

in the electronic record reproduces or is derived from such information fed into the

computer in the ordinary course of the said activities.

Where over any period the function of storing or processing information for

the purposes of any activities regularly carried on over that period as mentioned in clause

(a) of subsection (2) was regularly performed by computers, whether:

1. by a combination of computers operating over that period;

2. by different computers operating In succession over that period;

50
 3. by different combinations of computers operating In succession over that period;

or

4. in any other manner involving the successive operation over that period, in what-

ever order, of one or more computers and one or more combinations of computers,

All the computers used for that purpose during that period shall be treated

for the purposes of this section as constituting a single computer and references in this

section to a computer shall be construed accordingly." Section 65B(4) provides that in order

to satisfy the conditions set out above, a certificate of authenticity signed by a person oc-

cupying a responsible official position is required. Such certificate will be evidence of any

matter stated in the certificate.

The certificate must:

1. Identify the electronic record containing the statement;

2. Describe the manner in which it was produced; and

3. Give such particulars of any device involved In the production of the electronic

record as may be appropriate for the purpose of showing that the electronic record

was produced by a computer. The certificate must also deal with any of the matters

to which the conditions for admissibility relate.

Electronic agreements

Section 84A of the Evidence Act provides for the presumption that a con-

tract has been concluded where the parties' digital signatures are affixed to an electronic

record that purports to be an agreement. Secure electronic records and digital signatures

Section 85B of the Evidence Act provides that where a security procedure has been applied

51
to an electronic record at a specific time, the record is deemed to be a secure electronic

record from such time until the time of verification. Unless the contrary is proved, the court

is to presume that a secure electronic record has not been altered since obtaining secure

status. The provisions relating to a secure digital signature are set out in Section 15 of the

IT Act. A secure digital signature is a digital signature which, by application of a security

procedure agreed by the parties at the time that it was affixed, is: unique to the subscriber

affixing it; capable of identifying such subscriber; and created by a means under the exclu-

sive control 4 of the subscriber and linked to the electronic record to which it relates in such

a manner that if the electronic record as altered, the digital signature would be invalidated.

It is presumed that by affixing a secure digital signature the subscriber intends to sign or

approve the electronic record. In respect of digital signature certificates (Section 8Se of the

Evidence Act), it is presumed that the information listed in the certificate is correct, with

the exception of information specified as subscriber information that was not verified when

the subscriber accepted the certificate.

2.28 Changes to Penal Code

A number of offences were introduced under the provisions of the First

Schedule of the IT Act, which amended the Penal Code with respect to offences for the

production of documents that have been amended to include electronic records. The range

of additional includes:

1. Absconding to avoid the production of a document or electronic record in, a court

(Section 172 of the Penal Code);

2. Intentionally preventing the service of summons, notice or proclamation to produce

a document or electronic record in a court (Section 173 of the Penal Code);

52
 3. Intentionally omitting to produce or deliver up the document or electronic record to

any public servant (Section 175 of the Penal Code);

4. Fabricating false evidence by making a false entry in an electronic record or making

any electronic record containing a false statement, and intending the false entry or

statement to appear in evidence in judicial proceedings (Sections 192 and 193 of

the Penal Code);

5. The destruction of an electronic record where a person hides or destroys an elec-

tronic record or obliterates or renders illegible the whole or part of an electronic

record with the intention of preventing the record from being produced or used as

evidence (Sec. 204 of the Penal Code); and making any false electronic record (Sec-

tions 463 and 465 of the Penal Code).

2.29 National Statistics (Video Conferencing as Judicial Tool)

According to the National Human Rights Commission (NHRC), as on June

30, 2004, 336,152 prisoners were crowded into jails across India. An overwhelming

239,146 of them accounting for over 70 percent occupy the shadowy world of the under

trial. Under trials find themselves between a rock and a hard place. Not yet sentenced, they

cannot start the process of getting out of jail and most are too poor to make bail. While only

about two percent of those processed through the criminal justice system are finally con-

victed, under trials face incarceration while they wait for a hearing. As a consequence,

India’s jails are now overcrowded to almost thrice their capacity, which means inmates in

some jails sleep in shifts.

53
 Many under trials continue to languish in jail only because the justice sys-

tem, burdened with logistical problems, is unable to give them a hearing. The only way out

was to radically change the way that undertrials got a hearing. Employing video conferenc-

ing to link prisons and courts was a brilliant idea. But the presumption of failure could have

been overwhelming since e-governance projects are associated with high costs. And unless

departmental buy-in is secured, a project is normally destined to be categorized, tagged,

bubble-wrapped and shelved to remain a file forever.

Video conferencing is a not-so-high-cost and relatively simple solution to

facilitating people’s appearance in court. Its first implementation, in Andhra Pradesh in

2000, cost a mere Rs 1.5 lakh. Karnataka soon followed suit. The road to video conferenc-

ing in courts was paved by the Supreme Court in 2001, when it authorized the technology’s

use. The judgment settled matters: Any resistance to buy-in from lower courts or prison

departments was quickly banished.

The step, which pleasantly surprised many given the normally conservative

approach of the law, wasn’t a sudden decision. The Supreme Court, the Department of

Information Technology (DIT) and the National Informatics Centre (NIC) had been work-

ing with the ministries of Home and Law since the early 1990s to create a video conferenc-

ing system. It was part of a larger movement driven by the NIC to computerize the Supreme

Court. They worked in collaboration with Singapore, which had utilized IT effectively in

the judicial process since 1996.

Changes in national government leadership, however, caused delays. The

NHRC stepped in and made a committed push to implement the technology. Once it got

54
the Supreme Court on its side, the project overcame inter-departmental conflicts. A project

as successful as video conferencing has differing versions of who pioneered it. According

to many accounts, Bihar was the first state in the country to adopt video conferencing in

courts. However, Andhra Pradesh may have been the first to lead the way. Way back in

December 2000, then State Governor C. Rangarajan amended the law to enable a defendant

to stand before a magistrate “either in person or through the medium of video linkage.”

Andhra Pradesh’s first video link was operated between the Chanchalguda central jail and

the Nampally City Criminal Courts. And, it cost a mere Rs 1.5 lakh to set up.

In early April 2003, the Supreme Court permitted trial judges to record evi-

dence from witnesses living abroad via video conferencing. Within a week, a court in My-

sore conducted India’s first long-distance case, involving a copyright violation against Los

Angeles-based 20th Century Fox.

Video conferencing is being greeted so enthusiastically by those connected

with the law that newer uses are being found continually. Tihar Jail now uses video con-

ferencing between inmates and visitors to curb the smuggling of money, narcotics, cell

phones and weapons. Another innovative usage of video conferencing was implemented

by the Court Dispute Resolution International (CDRI) in Singapore. CDRI is a settlement

program co-conducted by a Singapore judge with judges from Australia and Europe. A

similar system employed between the Portuguese and Indian courts during Abu Salem’s

deportation might have expedited his extradition.

2.30 International Scenario

55
 In the United States, videoconferencing has allowed testimony to be used

for an individual who is unable or prefers not to attend the physical legal settings, or would

be subjected to severe psychological stress in doing so, however there is a controversy on

the use of testimony by foreign or unavailable witnesses via video transmission, regarding

the violation of the Confrontation Clause of the Sixth Amendment of the U.S. Constitution.

In a military investigation in State of North Carolina, Afghan witnesses have

testified via video conferencing. In Hall County, Georgia, videoconferencing systems are

used for initial court appearances. The systems link jails with court rooms, reducing the

expenses and security risks of transporting prisoners to the courtroom. The realities of video

conferencing in arbitration are beginning to be known in Nigeria now. A decade ago, who

could imagine the advantages of having a GSM as widely used today. However, it will be

improper to state that video conferencing is entirely unknown in some other countries. So

a work of this nature, in this area, at this time could be described as writing in the jubilant

tone of a proud advocate of the system. This is because the concept of video conferencing

in arbitration is both a tool and a process and it is the point where law meets with technol-

ogy. What is really needed is a good investment environment and encouragement from the

government. With this, the necessary infrastructure will be put in place with constant or

regular power supply and institution or corporate bodies that will invest in that regard.

Due to enormous growth in e-governance throughout the Public & Private

Sector and e-commerce activities Electronic Evidence have involved into a fundamental

pillar of communication, processing and documentation. The government agencies are

opening up to introduce various governance policies electronically and periodical filings to

56
regulate and control the industries are done through electronic means. These various forms

of Electronic Evidence/ Digital Evidence are increasingly being used in the judicial pro-

ceedings. At the stage of trial, Judges are often asked to rule on the admissibility of elec-

tronic evidence and it substantially impacts the outcome of civil law suit or conviction/ac-

quittal of the accused. The Court continue to grapple with this new electronic frontier as

the unique nature of e-evidence, as well as the ease with which it can be 11 fabricated or

falsified, creates hurdle to admissibility not faced with the other evidences. The various

categories of electronic evidence such as CD, DVD, hard disk/ memory card data, website

data, social network communication, e-mail, instant chat messages, SMS/MMS and com-

puter generated documents poses unique problem and challenges for proper authentication

and subject to a different set of views.

Summary - Here in the chapter – 2 we have studied the a detailed analysis

of admissibility with various types of available evidences and the validity of dying decla-

ration in India.

In the next chapter – 3 we will study the Indian evidence act, 1872.

57
 CHAPTER - 3

INDIAN AVIDANCE ACT, 1872

3.1 Indian Evidence Act, 1872

‘Evidence’ means and includes the following:

1. All statements made before the Court by witnesses about matters of fact under in-

vestigation, which the Court permits or requires; such statements are referred to as

oral evidence;

2. All documents (including electronic records) presented for the inspection of the

Court; such materials are referred to as documentary evidence.

The Supreme Court made the following observations on evidence, the word ‘evidence’ has

been used in common parlance in three different senses: as

1. Equivalent to relevant,

2. As equivalent to proof, and

3. As equivalent to the material, based on which Courts conclude the existence or non-

existence of disputed facts.

Enactment of the Indian Evidence Act, 1870

The Governor-General established the first Act pertaining to rules of evi-

dence in 1835. 1835 and 1855, a series of Acts were passed to successfully incorporate the

reforms proposed by Jeremy Bentham.

Acts 10 of 1855, Act 8 of 1859, Act 25 of 1861, and Act 15 of 1869 were

also passed, however, the courts in India followed English law of evidence when delivering

judgment, though only a portion of English law was applicable in the Mofussil area and

58
Presidency Towns. As a result, the position was rather unsatisfactory, and the Judges made

comments about it in their judgments in the case of Gajju Lal v. Fattehlal, ILR 6 Cal 171

In the words of Richard Garth, C.J.” The law of evidence is not just a fun-

damental principle governing the process of proof rather it also has a multidimensional

purpose of governing the rules relating to the process of proof in court proceedings. So the

process of evidencing any facts or proof should be governed by a well-established law to

achieve speedy and fair justice…instead of binding the Courts of this country by the strict

rules of evidence, it would be more desirable and was in fact the intention of the Evidence

Act to render all decrees admissible in evidence “as facts” or “transactions,” leaving it to

the discretion of the Courts to attribute to each judgment its due weight. But to my thinking

this liberty of action would be extremely unsafe; and I certainly am not surprised to find

that the Legislature here was unwilling to leave to the subordinate Courts in this country a

discretion, which it has not been thought safe or right to entrust to English Judges”.

Maine Commission

The Law of Evidence was in desperate need of codification. In 1868, a com-

mission was formed to create the Law of Evidence under the chairmanship of Sir Henry

Maine, the then-Law Member. But Maine’s bill was rejected since it did not meet all of the

requirements at the time.

Stephen Commission

The Stephen Commission was established in 1871 to write the Law of Evi-

dence. On March 31, 1871, Stephen delivered the Council a draft of the Bill, which was

then forwarded to the local governments, High Courts, and Advocates for their review.

59
After receiving their feedback, the Bill was submitted to the Select Committee, which made

the required changes before presenting it to the Council, which enacted it as The Indian

Evidence Act, 1872. (Act No. 1 of 1872). The Act has been amended multiple times since

it was enacted.

The Indian Evidence Act of 1872 is based on English evidence law, but it

includes several provisions adapted to the Indian realities and needs. Even though flaws in

the Act have been pointed out from time to time, the Act’s drafting is an example of the

best draftsmanship skill. It is very important to note that the Law of Evidence, which was

enacted in 1872, continues to be applicable with the least amendments possible over more

than 140 years.

Scope of Indian evidence act, 1872

The Indian Evidence Act of 1872 consolidates, defines, and amends the law

of evidence in India. It extends to the whole of India. The Act applies to all judicial pro-

ceedings in or before any Court in India, including Courts-martial (except those convened

under the Army Act, the Naval Discipline Act, or the Indian Navy Discipline Act, 1934,

or the Air Force Act), but not to affidavits presented to any Court or officer, or proceedings

before an arbitrator.

Relevancy Of Facts In The Act

The second portion of the act is titled ‘the Relevancy of facts’. This section

contains 51 sections starting from Section 5 to Section 55.

1. The relevance of facts that are part of the same transaction (Section 6);

2. Facts that constitute the occasion, cause, or effect of the facts in issue (Section 7);

60
3. Facts showing motive, preparation, and conduct, previous and subsequent (Section

8);

4. Facts required establishing the facts in issue, etc. (Section 9);

5. Things that are said or done by conspirators in regard to a common design (Section

10);

6. Facts not otherwise relevant (Section 11);

7. Facts that allow the Court to determine damages (Section 12);

8. Facts that establish a right or custom (Section 13);

9. Facts showing the existence of the state of mind, or of the body or bodily feeling

(Section 14);

10. Facts bearing on the question of whether an act was accidental or intentional (Sec-

tion 15);

11. The facts illustrating the course of business (Section 16);

12. facts that amount to admission (Sections 17 to 23 and 31); Facts which are confes-

sions of the accused persons (Sections 24 to 30);

13. Facts made by people who cannot be called as witnesses in certain circum-

stances (Sections 32 and 33);

14. Facts are statements, under certain circumstances (Sections 34 to 38). When any

statement for which evidence is given is part of a longer statement, a conversation,

or a portion of an isolated document, or is contained in a document that is part of a

book, or is contained in part of an electronic record, or is contained in part of a

connected series of letters or papers, evidence shall be given of only that portion of

61
 the statement, conversation, document, electronic record, book, or series of letters

or papers that the Court considers necessary in that particular case. (Section 39);

15. Judgments of Courts (Sections 40 to 44); It is based on the following two Latin

maxims;

16. Establishes the relevance of third-party opinions, which is usually referred to

in day-to-day activity as an expert’s opinion (Sections 45 to 51);

17. Characteristics of the parties to a lawsuit (Sections 52 to 55).

Different Type of Evidence

1. Section 59 states that if evidence of any is to be given, it must be either oral or

documentary.

2. Section 60 requires direct oral evidence.

3. Section 61 specifies that the contents of a document may be proven using either

primary or secondary evidence.

4. Sections 62 to 66 deal with primary and secondary evidence and specify that pri-

mary evidence of documents must be provided before mentioning the cases in

which secondary evidence may be given.

5. Then there are provisions for submitting oral evidence to prove the authenticity of

a document (Sections 67, 67-A, 68, 69, 71, and 72).

6. Sections 73 and 73-A deal with determining the term of a deed. Section 100 forbids

the Chapter from being applied to the provisions of the Indian Succession Act deal-

ing with the drafting of wills.

62
Competency, Comparability, Examination and Cross-Examination of Witnesses And

Impeachment Of Witness Credibility

Chapters IX and X deal with competency, comparability, examination and

cross-examination of witnesses, impeachment of the credit of testimony of the witnesses,

and the use of previous writings of witnesses for refreshing their memory and also using

their previous statements for corroboration of their statement in Court.

A witness is considered competent when there is nothing in the law that

prevents him/her from appearing in Court and presenting evidence. The capacity of a wit-

ness to understand and respond rationally to the questions posed to him determines whether

or not he is competent.

The competency of those who can testify as witnesses are covered un-

der Sections 118, 119, 120, and 133. A witness may be competent but not compellable,

which means that the Court cannot compel him to testify. A court cannot compel foreign

ambassadors and sovereigns to appear before it to testify. A court cannot compel foreign

ambassadors or sovereigns to attend the court to testify. A witness may be competent and

compellable, but the law may not compel him to respond to specific questions. Restricted

comparability, often known as a privilege, is the term used to describe this situation. This

privilege is addressed in Sections 122–132. The quantum of evidence is covered in Section

134. The examination, cross-examination, and re-examination-in-chief of witnesses are

covered in Sections 135 to 139. Sections 140 to 153 cover the types of questions that can

and cannot be asked during cross-examination of witnesses.

63
 Evidence contradicting a witness’s cross-examination replies is not allowed

under Section 153. Under Section 154, the Court may, at its discretion, allow the person

who calls a witness to ask him any question that the other party might ask during cross-

examination. Section 155 talks about the impeachment of a witness. Section 158 of the Act

deals with giving evidence to contradict, impeach, or corroborate the credibility of someone

who gave evidence under Sections 32 and 33 of the Act. Sections 159 to 161 allow a wit-

ness to recall his memory by reviewing the previously produced record. Sections

165 and 166 define the scope of the Judges and jury’s rights to examine witnesses.

Admissibility Of Evidence

There is only one section in Chapter XI, Section 167, which states that there

will be no new trial for the improper admission or rejection of evidence.

The Act is dynamic and has evolved over the years. Three of the most recent

amendments to the statute were the Information Technology Act of 2000, the Criminal Law

(Amendment) Act of 2013, and the Criminal Law (Amendment) Act of 2018.

List of Amendments

1. The Indian Evidence (Amendment) Act, 1872 (18 of 1872)

2. The Indian Evidence Act, 1872 Amendment Act, 1887 (3 of 1887).

3. The Indian Evidence Act, 1872 Amendment Act, 1891 (3 of 1891)

4. The General Clauses Act, 1897 (10 of 1897).

5. The Indian Evidence Act, 1899 (5 of 1899).

6. The Repealing and Amending Act, 1914 (10 of 1914).

7. The Repealing and Amending Act, 1919 (18 of 1919).

64
8. The Indian Evidence (Amendment) Act, 1926 (31 of 1926).

9. The Repealing and Amending Act, 1927 (10 of 1927).

10. The Repealing Act, 1927 (12 of 1927).

11. The Amending Act, 1934 (35 of 1934).

12. The Government of India (Adaptation of Indian Laws) Order, 1937

13. The Repealing Act, 1938 (1 of 1938)

14. The Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948.

15. The Repealing and Amending Act, 1949 (40 of 1949).

16. The Adaptation of Laws Order, 1950.

17. The Part B States (Laws) Act, 1951 (3 of 1951) (w.e.f. 1-4-1951).

18. The Criminal Law (Amendment) Act, 1983 (43 of 1983) (w.e.f. 25-12-1983)

19. The Criminal Law (Second Amendment) Act, 1983 (46 of 1983) (w.e.f. 25-12-

1983).

20. The Terrorist Affected Areas (Special Courts) Act, 1984 (61 of 1984) (w.e.f. 14-7-

1984).

21. The Dowry Prohibition (Amendment) Act, 1986 (43 of 1986) (w.e.f. 19-11-1986)

22. The Information Technology Act, 2000 (21 of 2000) (w.e.f. 17-10-2000),

23. The Indian Evidence (Amendment) Act, 2002 (4 of 2003) (w.e.f. 31-12-2002). -

(This Act was repealed by the Repealing and Amending Act, 2015 (17 of 2015),

(w.e.f. 13-5-2015). The Repeal of this Act shall not affect the validity, invalidity,

effect, or consequences of anything already done or suffered, or any right, title, ob-

ligation, or liability already acquired, accrued or incurred, or any remedy or pro-

ceeding in respect thereof, or any release or discharge of or from any debt, penalty,

65
 obligation, liability, claim or demand or any indemnity already granted, or the proof

of any past act or thing.)

24. The Criminal Law (Amendment) Act, 2005 (2 of 2006) (w.e.f. 16-4-2006 & 5-7-

2006). - (This Act was repealed by the Repealing and Amending (Second) Act, 2015

(19 of 2015 (w.e.f. 14-5-2015). The Repeal of this Act shall not affect the validity,

invalidity, effect, or consequences of anything already done or suffered, or any

right, title. obligation or liability already acquired, accrued or incurred, or any rem-

edy or proceeding in respect thereof, or any release or discharge of or from any debt,

penalty, obligation, liability, claim or demand, or any indemnity already granted, or

the proof of any past act or thing)

25. The Information Technology (Amendment) Act, 2008 (10 of 2009) (w.ef 27-10-

2009).

26. The Criminal Law (Amendment) Act, 2013 (13 of 2013) (w.r.e.f. 3-2-2013).

27. The Criminal Law (Amendment) Act, 2018 (22 of 2018) (w.r.e.f. 21-4-2018).

28. The Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019) (w.e.f. 31-10-

2019).

Summary – Here in the Chapter – 3 we have studied out the Indian Evi-
dence Act, 1872 in detailed.

In the next chapter – 4 we will study the various opinions of the indiann
judiciary .

66
 CHAPTER - 4

OPINION OF JUDICIARY

4.1 Basant Singh vs Janki Singh and Ors: 1967 AIR 341, 1967 SCR (1) 1

The Judgment of the Court was delivered by Bachawat, J. One Ramyad

Singh was a member of a joint family and has eight annas interest in the joint family prop-

erties. He was a Hindu governed by the Mitakshara school of Hindu law. He died issueless,

leaving his widow, Mst. Bhagwano Kunwar. The date of his death is in dispute. After his

death, Bhagwano Kunwar filed the present suit for partition of the joint family properties

claiming eight annas share therein. She contended that Ramyad Singh died in 1939 after

the passing of the Hindu Women's Rights to Property Act, 1937, and she was entitled to

maintain the suit for partition. The defendants contended that Ramyad Singh died ill 1936

before the passing of the Act and she was entitled to maintenance only. The trial Court

accepted the plaintiff's contention aid decreed the suit. The defendants filed two separate

appeals to the High Court. On December 15, 1958, Bhagwano Kunwar died. The High

Court passed orders substituting one Ram Gulam Singh in her place. Later, the High Court

recalled these orders, as it was conceded that Ram Gulam Singh was not her legal repre-

sentative. By a deed dated March 14, 1958, Bhagwano Kunwar had sold lands measuring

1 bigha 5 kathas to the appellant. The High Court allowed the appellant's application for

substitution under 0.22 r. 10 of the Code of Civil Procedure and proceeded to hear the

appeals. The High Court accepted the defendants' contention, reversed the decree passed

by the Subordinate Judge, and dismissed the suit. The appellant has now filed these appeals

under certificates granted by the High Court.

67
 The main point in controversy is, did Ramyad Singh die in 1936 or did he

die in 1939? If he died in 1936, Bhagwano Kunwar was not entitled to maintain the suit for

partition and the suit was liable to be dismissed. But if he died in 1939, she was entitled to

eight annas share in the joint estate and was entitled to maintain the suit for partition under

the Hindu Women's Rights to Property Act, 1937 read with the Bihar Hindu Women's

Rights to Property ,(Extension to Agricultural Land) Act, 1942. Moreover, it is, conceded

by counsel for the respondents that in that event after 1956

She held her eight annas share in the joint estate as full owner by virtue of s.

14 of the Hindu Succession Act, 1956, and on the strength ,of the sale deed dated March

14, 1958 executed by Mst. Bhagwano Kunwar the appellant was entitled to continue the

suit for partition .after her death. There is conflicting oral evidence with regard to the date

of ,death of Ramyad Singh. The appellant relied strongly upon an admission made by the

main contesting defendants, Janki Singh and Kailashpati Singh, in a plaint signed and ver-

ified by them and filed in Title Suit No. 3 of 1948. In that plaint, Janki Singh and Kailash-

pati Singh claimed partition of the joint family properties, impleading Bhagwano Kunwar

as defendant No. 8 and other members of the joint family as defendants Nos. 1 to

In this plaint, Janki Singh and Kailashpati Singh stated: "That the properties

described in Schedule 1 to 2 in the plaint belong to the joint family. As the said Babu

Ramyad Singh died in 1939 the defendant No. 8 also became entitled to life interest in the

properties of the joint family. The defendant No. 8 surrendered her life estate to the plain-

tiffs and the defendants Nos. 1 to 7 and she gave up her possession of the joint family

68
properties. have been coming in joint possession of the properties under partition. That the

defendant No. 8 is also made a defendant in this suit as she is entitled to maintenance,"

The plaint contained a clear admission that Ramyad Singh died in 1939. The

High Court ruled that Bhagwano Kunwar could not rely on this admission. The High Court

said that she could not rely upon the statement that Ramyad Singh died in 1939, as she was

not prepared to admit the correctness of the statement that she had surrendered her estate

and was entitled to maintenance only. We are unable to accept this line of reasoning. It is

true that Bhagwano Kunwar relied only upon the statement that Ramyad Singh died in 1939

and was not prepared to accept the statement that she had surrendered her share to the other

members and was entitled to maintenance only. But she tendered the entire plaint, and she

did not object to the admissibility or proof of any of the statements made therein. All the

statements in the plaint are,. therefore, admissible as evidence. The Court is, however, not

bound to accept all the statements as correct. The Court may accept some of the statements

and reject the rest. In the presented suit, it is common case that Bhagwano Kunwar did not

surrender her share in the estate. We must, therefore, reject the statement with regard to the

alleged surrender and the consequential allegation that she was entitled to maintenance

only. The statement in the plaint as to the date of death of Ramyad Singh must be read as

an admission in favour of Bhagwano Kunwar.

The High Court also observed that an admission in a pleading can be used

only for the purpose of the suit in which the pleading was filed. The observations of Beau-

mont, C.J. in Ramabai Shriniwas v. Bombay Government lend some countenance to this

view. But those observations were commented upon and explained by the Bombay High

69
Court in D. S. Mohite v. S. I Mohite. An admission by a party in a plaint signed and verified

by him in a prior suit is an admission within the meaning of s. 17 of the Indian (1) A.I.R.

196O Bom. 153. Evidence Act, 1872, and may be proved against him in other litigations.

The High Court also relied on the English law of evidence. In Phipson on Evidence, 10th

Edn, Art. 741, the English law is thus summarised:

"Pleadings, although admissible in other actions, to show the institution of

the suit and the nature of the case put forward, are regarded merely as the suggestion of

counsel, and are not receivable against a party as admissions, unless sworn, signed, or oth-

erwise adopted by the party himself."

Thus, even under the English law, a statement in a pleading sworn, signed

or otherwise adopted by a party is admissible against him in other actions. In Marianski v.

Cairns(1), the House of Lords decided that an admission in a pleading signed by a party

was evidence against him in another suit not only with regard to a different subject-matter

but also against a different opponent. Moreover, we are not concerned with the technicali-

ties of the English law. Section 17 of the Indian Evidence Act, 1872 makes no dis- tinction

between an admission made by a party in a pleading and other admissions. Under the Indian

law, an admission made by a party in a plaint signed and verified by him may be used as

evidence against him in other suits. In other suits, this admission cannot be regarded as

conclusive, and it is open to the party to show that it is not true. The explanation of Janki

Singh and Kailashpati Singh that the plaint was drafted by their lawyer Ramanand Singh at

the instance of the panchas including- one Ramanand and they signed and verified the plaint

without understanding its contents cannot be accepted.

70
 There is positive evidence on the record that the plaint was drafted at the

instance of Janki Singh and was filed under his instructions. The plaint was signed not only

by Janki Singh and Kailashpati Singh but also by their lawyer, Ramanand Singh. Neither

Ramanand Singh nor the panch Ramanand was called as a witness. Even in this litigation,

Ramanand Singh was acting as a lawyer on behalf of some of the defendants. Kailashpati

Singh is a Homeopathic medical practitioner and knows English. The plaint was read over

to Janki Singh. Both Janki Singh and Kailashpati Singh signed the plaint after understand-

ing its contents and verified all the statements made in it as true to their knowledge. They

then well knew that Ramyad Singh had died in 1939 after the passing of the Hindu Women's

Rights to Property Act. It is not shown that the admission in the plaint as to the date of

death of Ramyad Singh is not true or that it was made under some error or misapprehension.

This admission must be regarded as a strong (1) 1 Macq. 212 (H.L.). piece of evidence in

this suit with regard to the date of death of Ramyad Singh.

Bhagwano Kunwar and her witnesses, Ram Gulam Singh, Ram Saroop

Singh and Sheo Saroop Singh gave evidence in Sep- tember, 1952. They all swore that

Ramyad Singh died 13 years ago. In agreement with the trial Judge, we accept their testi-

mony. Learned counsel commented on the testimony of Sheo Saroop Singh, who had said

that the last earthquake took place 15 to 16 years ago and Ramyad Singh died 2 years 8

months thereafter. The last earthquake took place on January 15, 1934, and counsel, there-

fore, argued that Ramyad Singh could not have died in 1939. Clearly, there is some confu-

sion in the evidence of Sheo Saroop Singh. He gave evidence in September, 1952, and his

statement that the earthquake took place 15 to 16 years ago could not be correct and his

further statement that Ramyad Singh died 2 years 8 months after the earthquake was not

71
accurate. He swore positively that Ramyad Singh died 13 years ago. Bhagwano Kunwar

said that there were receipts to show that Ramyad Singh died 13 years ago. On her behalf

rent receipts for 1339, 1341, 1342, 1343, 1345, 1348, 1356 and 1359 faslis were tendered.

The rent receipts are in respect of certain lands held by her as a tenant. The first four rent

receipts show that -Lip to 1343 fasli corresponding to 1936 the rent used to be paid by her

through Ramyad Singh. Payment of the rent for 1345 fasli was made in 1346 fasli corre-

sponding to 1939 through Janki. The rent for the subsequent years was paid through Janki

and other persons. The High Court thought that the rent receipts showed that Ramyad Singh

died in 1936 and because of his death, rent was subsequently paid through other persons.

But the rent receipt for 1344 fasli is not forthcoming, and it is not known who paid the rent

for 1344 fasli (1937).

Moreover, assuming that Ramyad Singh did not pay rent in 1937 and 1938,

it does not follow that he must have died in 1936. Kailashpati Singh, Janki Singh and other

witnesses called on behalf of the defendants said that Ramyad Singh had died 16 years ago.

In agreement with the trial Court, we do not accept their testimony. Janki Singh and

Kailashpati Singh gave false explanations with regard to the admission made by them in

the plaint in the previous suit. Moreover, for the purpose of defeating the title of Bhagwano

Kumar they set up a compromise decree passed in that suit. The trial Court found that the

compromise decree was obtained by them by practising fraud on Mst. Bhagwano Kunwar,

and this finding is no longer challenged.

72
 We, therefore, hold and find that Ramyad Singh died in 1939. It follows that

Bhagwano Kunwar was entitled to eight annas share in the joint family estate, and was

entitled to maintain the Suit. The trial Court, therefore, rightly decreed the suit.

But in view of the death of Bhagwano Kunwar during the pendency of the

appeal in the High Court, the decree passed by the trial Court must be modified. The ap-

pellant purchased from Bhagwano Kunwar 1 bigha 5 kathas of land under the deed dated

March 14, 1958, and he can claim only the rights of an alienee of a specific property from

a co- owner on a general partition of the undivided properties. All the parties appearing

before us conceded that on such a partition the appellant is entitled to allotment and separate

possession of the lands purchased by him under the deed dated March 14, 1958. The deed

is not printed in the Paper Book. It will be the duty of the trial Court now to ascertain full

particulars of the aforesaid lands. The appeals are allowed with costs in this Court and in

the High Court. The decree passed by the High Court is set aside. There will be a decree in

favour of the appellant allotting to him the lands purchased by him under the deed dated

March 14, 1958 and awarding to him separate possession thereof. The trial Court will draw

up a suitable decree after ascertaining the particulars of the aforesaid lands.

4.2 Ramabai Shriniwas Nadgir vs The Government of Bombay: (1941) 43 BOMLR

232

These are two cross appeals against an order made by the First Class Sub-

ordinate Judge of Dharwar. An order was made by the Privy Council in certain litigation

that costs should be paid by the defendants, who were the Secretary of State for India, and

defendants NOB. 1 to 3 in this suit, or their predecessors. The Secretary of State for India

73
ultimately paid those costs in full, and then he filed this suit to recover contribution from

his co-defendants, and a decree was passed on November 26, 1934, directing contribution.

In the case of defendant No. 3, it had been stated by an amendment of the plaint that the

original defendant had died, and his son defendant No. 3 was held to be liable to the extent

of the property he got inherited from his father. The Secretary of State for India then took

out the present darkhast in order to execute the decree against the three defendants. The

contention of all the defendants was that the lands sought to be attached were watan lands,

and that they could not be attached by virtue of the protection afforded under Section 13 of

the Watan Act.

As against defendant No. 1, the learned Judge held, in view of certain ad-

missions made by that defendant in the witness-box, that the lands which were sought to

be attached were not watan lands. In the case of the other two defendants, he held, basing

his decision on the Record of Rights, that the lands were nadgirki watan lands. I am not

quite sure whether he merely meant to hold that the lands of defendant No. 1 were not

shown on the Record of Rights as nadgirki watan lands, or whether he meant to hold that

the admission of defendant No. 1 would rebut the presumption arising from the entry in the

Record of Rights that they were nadgirki watan, lands. I am rather disposed to think that

there is no distinction between the lands held, by defendant No. 1 and the lands held by

defendants NOS 2 and 3. However, having held that the lands of defendants Nos. 2 and 3

were watan lands, it was then necessary to establish that they had been assigned as remu-

neration for services under Section 23 of the Watan Act, because, unless they had been so

assigned, the protection afforded by Section 13 does not arise.

74
 There is really no evidence on the record to show that any of these lands had

been assigned under Section 23 as reward for services] The learned Judge, in the case of

defendants Nos. 2 and 3, held that Government were bound by an admission; in their written

statement filed in the original suit of 1913 in which the costs were incurred, and that by that

admission Government had acknowledged that the lands had been assigned as reward for

services; but the learned Judge's view on that point is dearly wrong. A party is not bound

by an admission in his pleading except for the purposes of the suit in which the pleading is

delivered. It frequently happens that a party is prepared in a particular suit to deal with the

case on a particular ground and to make an admission, but that admission is not binding in

any other-suit, and certainly not for all time. Government may have known much less about

the position in 1913 than they know now. If they had pleaded erroneously in the suit of

1913 and had discovered the error in time, they could have amended the pleading, and it

would be a strange thing to hold that, after the suit had been disposed of, and the chance to

amend the pleading had gone, Government were bound for all time by their admission. In

my opinion there is no evidence on record that the lands of any of the defendants had been

assigned by the Collector under Section 23 of the Watan Act and that, therefore, the pro-

tection afforded by Section 13 came into operation.

But in the case of defendant No. 3, there is a separate defence. As I have

pointed out, the decree sought, to be executed provides that he is liable to the extent of the

property he got inherited from his father, and, of course, the executing Court is bound by

the decree. Therefore, if he inherited this watan property from his father, that property is

liable. But on the authority of the cases, to which the learned trial Judge referred:

[viz. Vithaldas v. Shrinivasrao (1933) 36 Bom. L.R. 169, Vishvanath v. Keshavbhat (1933)

75
36 Bom. L.R. 181. and Jagjivandas Javerdas v. Imdad Ali (1882) I.L.R. 6 Bom. 211.], it is,

I think, established that a son does not inherit watan property from, his father at any rate to

the extent of making that property liable for the father's debts. As was pointed out by this

Court in Vithaldas v. Shrinivasrao, to hold that watan property was liable for the father's

debts, like other property of a Hindu father, would really be to go behind the prohibition

contained in Section 5 of the Watan Act, which prevents a watandar from alienating or

mortgaging watan property beyond the term of his own life. The learned Government

Pleader seeks to distinguish the cases of Vithaldas v. Shrinivasrao and Vishvanath v.

Keshavbhat on the ground that the decrees in these cases were ordinary money decrees

against the father, whereas here there is an express provision that the decree may be exe-

cuted against the property of the father inherited by the son; but that does not really carry

the matter any further, because in my view the effect of the decisions of this Court is to

show that watan property is not to be regarded as property inherited by the son, so as to

expose it to liability to execution under Section 53 of the Civil Procedure Code. Whether it

can be regarded as inherited for other purposes, it is not necessary for us to consider. I think,

therefore, that the learned Judge's decision was right as to defendant No. 3.

In the case of defendant No. 1, I think that his decision was also right, alt-

hough I base my opinion on different grounds from those which appealed to the learned

Judge. We are told that defendant No. 1 has died since the date of the decree appealed from

and that his widow has been brought on record. Of course, a question may arise in execution

how far the property can be attached as against the widow of defendant No. 1, but we are

not concerned with that. The appeal of defendant No. 1 must be dismissed, because the

decree only dealt with his liability during his lifetime.

76
 The result will, therefore, be that the appeal of defendant No. 1 will be dis-

missed with costs, and the appeal of Government, First Appeal No. 275, will be allowed

with costs as against defendant No. 2 but, dismissed with costs as against defendant No. 3

in proportion to the claims of defendants Nos. 2 and 3.

4.3 Vithaldas Bhagvandas Durbar vs Shrinivasrao Nageshrao Nadgouda: (1934) 36

BOMLR 169

The facts of these appeals are simple, but they raise a point of law on which

there is some difference between the decisions of this Court. The question is whether a

money decree against a watandar can be executed against the watan property in the hands

of his sons. The learned Counsel for the appellants has referred to the set of decisions end-

ing with Narayan v. Ramrao (1901) 3 Bom. L.R. 482, in which it was held that watan prop-

erty after the death of the watandar was not assets of his estate, from which it would appear

that the heir does not succeed to the watan property through his predecessor.

The earlier decision of Hanmantrav Khanderav v. Bhavanrav Bajirav (1873)

10 B.H.C.R. 299 is prior to the introduction of the Watan Act and is based on Bombay

Regulation XVI of 1827. But Jagjivandas Javerdas v. Imdad Ali (1882) I.L.R. 6 Bom. 211,

which lays down that as the deceased mortgagor had only a life interest the watan came

into the hands of his son free of the mortgage, and Narayan v. Ramrao are distinct author-

ities for holding that the watan property in the hands of the sons is not liable as the assets

of the father. The lower appellate Court has relied on these two decisions.

There are, however, a number of later decisions of this Court, which, it is

contended, lead to an opposite conclusion. In Ganesh Ramchandra v. Lakshmibai (1921)

77
I.L.R. 46 Bom. 726 S.C. : 24 Bom. L.R. 249, it is argued, it was held that the heir claims

through the watandar, but that case was decided on special circumstances, the auction pur-

chaser there being a watandar of the same watan, and the sale being effected for legal ne-

cessity by the widow.

In Rama v. Shamrao (1904) 7 Bom. L.R. 135 it was held that adverse pos-

session commenced in the lifetime of one watandar avails as against the subsequent wa-

tandar, and will not be stopped by his minority at the death of such preceding watandar. It

is based on Radhabai and Ramchandra Konher v. Anantrav Bhagvant Deshpande (1885)

I.L.R. 9 Bom. 198 F.B., where it was held that the succeeding holder takes as the heir of

his predecessor. There are two recent cases on the point, Tuka v. Ganu (1930) 32 Bom.

L.R. 1398, in which it was held that the succeeding watandar derives his title as heir of the

preceding watandar, which is capable of being barred and extinguished by adverse posses-

sion, and that follows the Privy Council case, Padapa v. Swamirao (1900) I.L.R. 24 Bom.

556 S.C. : 2 Bom. L.R. 548 P.C..

This decision was followed in Swamirao v. Bhimabai , which is a case of

my own. It is contended that if a watandar claims through his predecessor, the watan prop-

erty in his hands will be liable for the debts of the preceding watandar under Section 53 of

the Code of Civil Procedure. The learned Counsel, however, has to admit that no case has

gone so far as to say that watan property in the hands of the successor of the watandar who

incumbered it is liable to attachment and sale contrary to the express statutory provision in

Section 5 of Bombay Act III of 1874, and he is obliged to argue that the property should be

put up to sale subject to the condition that it should be purchased only by a watandar of the

78
same watan. Now, although the succeeding watandar may claim through his predecessor,

and adverse possession against the predecessor may continue as against the successor, this

is not the same thing as holding that under Section 53, Civil Procedure Code, watan prop-

erty in the hands of the successor is liable to attachment and sale in execution of a decree

against the preceding watandar, which would be in effect to nullify the provisions of Sec-

tion 5 of the Bombay Hereditary Offices Act III of 1874, and the argument that the Collec-

tor can take steps under Section 9 to set aside the attachment and sale does not affect the

question. I am clearly of opinion that in view of the statutory prohibition in Section 5 of the

Watan Act, watan property owned by a watandar is not after his death liable for is debts in

the hands of his heirs under Section 53 of the Code of Civil Procedure.

Further, although an alienation to a watandar of the same watan is not for-

bidden by the statute, it would, I think, be futile to order the property to be sold subject to

the condition that the purchaser should be a watandar of the same watan. We do not know

in the present case whether there are any watandars of the same watan other than the de-

fendants, and if there were, it is not certain that they would purchase the property. In fact

ones ordinary experience of execution proceedings leads to the conclusion that they would

in all probability agree among themselves not to purchase, so that the sale would be in-

fructuous. There are already quite enough difficulties in the matter of bringing execution

proceedings to successful conclusion with importing a condition such as the learned Coun-

sel asks for into the proceedings, and as I think it would not be in the interests of justice

that a sale ordered by the Court should be barren of any results, I cannot accept any such

suggestion as that made by the learned Counsel. The result consequently is the appeal will

be dismissed with costs.

79
 This appeal raises an important point of law as to whether a money decree

obtained against a watandar during his lifetime can be executed against the watan property

in the hands of his son. The lower Court has held that it cannot be so executed and hence

this appeal.

The relevant provision of law on this point is contained in Section 5 of the

Bombay Hereditary Offices Act according to which it is not competent to a watandar, with-

out the sanction of the Government, to alienate, beyond the term of his natural life, any

watan or any interest therein for the benefit of a person who is not a watandar of the same

watan. Relying on this section and the decisions in Hanmantrav Khanderav v. Bhavanrav

Bajirav (1873) 10 B.H.C.R. 299, Jagjivandas Javerdas v. Imdad Ali (1882) I.L.R. 6 Bom.

211 and Narayan v. Ramrao (1901) 3 Bom. L.R. 482, the lower Court has held that watan

property is held on a special tenure the effect of which is that after the death of a watandar,

the watan property comes into the hands of his successor free from the alienation and the

interest which the latter takes in the watan is not an asset of his predecessor's estate.

The appellants, relying on Section 53 of the Civil Procedure Code, contend

that when the successor to the watan property is a son of the preceding holder, he is liable

to pay the debt of his deceased father under the Hindu Law, and that the watan property

should be deemed to be the property of the deceased which has come into the hands of his

successor as his legal representative. It is contended that the son is such a legal representa-

tive of the watandar and by way of analogy the learned Counsel for the appellants has relied

on several authorities of this Court to show that the succeeding watandar is a representative

of and claims through his predecessor as his heir so as to be barred by res judicata and

80
adverse possession as against his predecessor : Radhdbai and Ram Chandra Konher v. An-

antrav Bhagvant Deshpande (1885) I.L.R. 9 Bom. 198 F.B., Padapa v. Swamirao (1900)

I.L.R. 24 Bom. 506 S.C. : 2 Bom. L.R. 548 P.C., Rama v. Shamrao (1904) 7 Bom. L.R.

135, Tuka v. Ganu (1930) 32 Bom. L.R. 1398 and Swamirao v. Bhimdbai . It is true that

according to these authorities the watandar claims through his predecessor as his heir but

that does not mean that the alienation made by a watandar to an outsider is binding on his

successor as his heir after his death. There is no infringement of the provision of law as

embodied in Section 5 of the Bombay Hereditary Offices Act in these cases. It is one thing

to say that a watandar is to be deemed to be the successor and heir of his predecessor for

certain purposes and a different thing to say that as such heir he is bound by any alienation

to a stranger made by his predecessor. The latter is prohibited by law whereas the former

is not.

Here the appellants want to attach and sell the watan property in the hands

of the son for the debt of his father against whom alone they have obtained a decree, and it

is conceded on behalf of the appellants that this sale in execution would be void and illegal

if the auction-purchaser is an outsider, i.e., one who is not a watandar of the same watan.

This itself shows to a certain extent the weakness of their position.

"What is to be seen is not whether a watandar happens to be a purchaser of

the property, in which case the sale is valid, or whether the purchaser is an outsider, in

which case it is invalid, but whether a sale can take place at all in execution the effect of

which may be to pass the property outside the watan family without the son's volition. The

intention of the legislature seems to be that the watan property should come into the hands

81
of the successor free from any alienation and the authorities relied on by the lower Court,

which are more applicable to the facts of this case than those relied on by the appellants,

seem to be good law still. It is argued that the first set of authorities dealt with alienations

of the watan property which were governed not by Section 5 of the Bombay Hereditary

Offices Act but by Section 20 of Bombay Regulation XVI of 1827, but as stated in Jagjivan-

das Javerdas v. Imdad Ali by Kemball J. (p. 212):

That such estates were not, under Regulation XVI of 1827, liable for the

debts of the last holder, is too clear to admit of question; and, indeed, the Subordinate

Judge's order in directing the attachment to issue, proceeded on the ground that the Bombay

Act III of 1874 had effected a change in the character of such tenures. No provision, how-

ever, of the Act has been pointed out to us as supporting this proposition.

It may be of interest to note by the way that Kemball J., who decided this

case and held that the watan came into the hands of the son free of mortgage, was a party

to the full bench case of Radhabai and Ramchandra Konher v. Anantrao Bhagvant Desh-

pande, in which it is held that in the absence of fraud and collusion, judgment against one

holder of watan land is res judicata as regards a succeeding holder.

The principal authority on which reliance has been placed on behalf of the

appellants is Ganesh Ramchandra v. Lakshmibai (1921) I.L.R. 46 Bom. 726 S.C. : 24 Bom.

L.R. 249, in which it is held that the sale in execution of a money decree against a watandar

in which the property had been purchased by a watandar of the same family after he death

of the judgment-debtor was valid and binding on the reversioners after the death of his

widow as the sale was to a watandar of the same watan and was effected for a legal necessity

82
as the judgment-debtor's widow was bound to pay the decretal debt of her husband. Now

this case is distinguishable from the present case in important respects.

There the point which the Court had to consider was not whether the suc-

cessor to the watandar against whom the decree was obtained was entitled to raise any

objection to attachment and sale on the ground that the alienation could not be made so as

to bind him, but whether the sale having already taken place and the watan property having

been accidentally purchased by a watandar of the same watan and the sale being for legal

necessity, it would bind the reversioners.

No doubt there are expressions in this decision which might lend support to

the view which is urged by the appellants, but the point was not there argued in the form in

which it arises in this case, nor is any authority quoted one way or the other. The words in

Section 5 of the Bombay Hereditary Offices Act are that it is not competent to a watandar

to mortgage or alienate for a period beyond his natural life any interest in the watan to a

non-watandar and the intention of the legislature seems to be that the successor to the watan

is entitled to challenge a Court-sale of the watan property which is to take place after his

predecessor's death for a transaction which his predecessor and not he had entered into. It

is conceded that if at all the Court can sell this property in execution it would be subject to

a provision in the proclamation of sale that the sale would be valid only if the property is

purchased by a watandar of the same watan. I doubt very much whether the legislature had

the intention of validating such hypothetical sales in the case of watan property the effect

of which may be that either no such watandar may come forward to purchase the property,

83
in which case the sale would be infructuous, or that he may purchase it for a song, in which

case the sale may not serve the purpose of the judgment-creditor.

I might add that it has been held by this Court in Ganesh Eknath v. Bhau-

saheb Bhavanrao (1921) I.L.R. 46 Bom. 345 S.C. : 23 Bom. L.R. 1037, that a mortgage

decree on a mortgage made by a watandar on watan property is not binding on the heir.

I, therefore, agree that the decree of the lower Court is correct and that the

appeal be dismissed with costs.

4.4 Vishvanath Gangadhar Deshpande vs Keshavbhat Govindbhat Kamat: (1934) 36

BOMLR 181

The facts of this appeal are simple, but they involve a point of law which

does not seem to have been decided by this Court, though the question involved is one

which must arise not infrequently. The respondent obtained a money decree against one

Gangadhar and his three minor sons. Gangadhar died after the decree, and the decree-holder

attempted to execute it against the property of the family, which was watan. The minors,

who were represented by different guardians, put in an application objecting that the prop-

erty being watan could not be attached and sold. The first Court directed execution to pro-

ceed, holding that there had already been an order directing the defendant to produce a

certificate from the Collector under Section 10 of the Watan Act, and the certificate not

having been produced, execution had been ordered to proceed. So the application was re-

jected without going into the merits.

On appeal, the Extra Assistant Judge of Belgaum held that the property was

liable to attachment and sale, and the application was also barred by the order of March 12,

84
1930, the application being made on September 10, 1930. He, therefore, dismissed the ap-

peal. The minor judgment-debtors make this second appeal.

It is contended at the outset on behalf of the appellants that the decree itself

was bad, as there can be no personal decree against the minors. But this argument cannot

be accepted, as there was no appeal against the decree, and the Court cannot go behind it

in execution proceedings, and must execute the decree as it stands. Moreover, there is no

question of executing the decree against the minors personally; execution was sought

against the property.

The deceased father of the minor appellants passed a promissory note to the

plaintiff, and the decree is against the father and his minor sons, and is a simple money

decree, which is sought to be executed by the attachment and sale of the family property,

which is watan. The minors having been parties to the suit duly represented by a guardian,

the case is differentiated from that which we had to consider a few days ago, Vithaldas v.

Shrinivasrao (1933) 36 Bom. L.R. 169, where the decree was against the father alone, and

it was sought to execute it against the watan property in the hands of his sons, and it was

held that watan property in the hands of the sons was not an asset of the father within the

meaning of Section 53 of the Civil Procedure Code, so as to be liable for attachment and

sale for the debts of the father. No question of the son's obligation to pay the debts of the

father arises in the present case, because the sons are themselves parties to the suit, and the

decree is against them as well as against the father, the debt apparently being considered as

family debt for which all the defendants are liable.

85
 The judgment is very short, and no contention as to the liability of the minor

defendants appears to have been raised. Reference was made to Narayan v. Ramrao, (1901)

3 Bom. L.R. 482, but the facts of that case are not the same. That case inter alia lays down

that watan property in the hands of the son is not assets of the father. The learned advocates

on either side have not been able to point out any decision of this Court on the point directly

before us, nor have we been able to find any. It seems, however, that on general principles

the lower Court is right, subject to certain qualifications. The interest of a watandar in watan

property is a life-interest, and any alienation made by him is not valid after his death. Cer-

tain later decisions hold that the heir of a watandar succeeds through his predecessor, con-

trary to the view expressed in Narayan v. Ramrao, that the watan property in the hands of

the son is not assets of the father within the meaning of Section 53, Civil Procedure Code.

The life-interest of the watandar terminates at his death. During his lifetime his sons in the

case of a joint Hindu family acquire an interest in the watan property by birth.

At his death his interest ceases and vests in his sons, who become full own-

ers of the watan property, that is to say, they have a life-interest in it. When there is a decree

against them which is to be satisfied out of the family property, it seems to me that their

life-interest can be attached and sold, and that the attachment and sale will be good during

their lives, subject to any objection which might be raised by their heirs after their death

and subject to any action which the Collector might take under the Watan Act on their

representation. In the present case neither of these two factors is in operation, for the ap-

pellants, except appellant No. 1 who has recently attained majority, are minors, and no

question of their heirs arises at present. It also appears from the record, vide the order of

March 1930, that time was granted to enable one of the appellants to obtain a certificate

86
from the Collector under Section 10 of the Watan Act, and no certificate being obtained

within the time specified, execution was ordered to proceed.

So far, therefore, as matters stand at present, the appellants are the sole own-

ers of the watan property and the Collector has not taken any action, and I see no reason

why their interest in the watan property should not be attached and sold in execution of the

decree which has been obtained against them. What may happen after the deaths of any of

them or if the Collector takes action is another matter with which we are not at present

concerned, and the question can be decided when it arises. The view of the lower Court,

therefore, appears to be correct, and should be confirmed with the proviso above stated.

On this view the second point is of little importance, especially as it appears

that the appellants were represented by different guardians and that the minor appellants

Nos. 2 and 3 were not parties to the application for staying the proceedings to enable a

certificate to be procured from the Collector that the property was not liable to attachment

and sale. No doubt, on the rulings of the Privy Council, a judgment-debtor, on principles

analogous to those of res judicata, cannot be allowed to re-agitate the same question, and a

party who has been given an adjournment to enable him to move the Collector to grant a

certificate which under the law would bring the execution proceedings to a termination and

fails to produce the certificate cannot be allowed to raise the objection again. But that would

apply only to appellant No. 1, who does not represent his minor brothers, and therefore the

other appellants would not be barred from raising the same objection.

But in view of my finding on the first point the second point loses its im-

portance. We, therefore, confirm the order of the lower appellate Court, and dismiss the

87
appeal with costs, with the proviso that what is sold is the life-interest of the appellants in

the watan property. It is not necessary to consider what may happen after their deaths.

I concur. The decree under execution in this case is a money decree against

a joint Hindu family consisting of Gangadhar and his three sons who were all minors at that

date represented by a guardian appointed by the Court. After the decree Gangadhar died

and it was sought to be executed against the sons by attachment and sale of family property

which consisted of watan lands. The sons object to the sale on the ground that the watan

property in their hands cannot be sold in execution inasmuch as the life-interest of their

father in the property ceased on his death and they themselves could not be personally liable

as they were minors at that date and also because their interest in the watan property is not

derived from their father.

The decree is not a personal decree in the sense that it directed that the mi-

nors could be arrested in execution. Their interest in the family property would certainly be

liable, and the only question of importance is whether even after their father's death the

watan property in the hands of the sons would be liable to be sold in execution. It has been

recently decided by us that it is not so liable where the decree was obtained against the

father alone on the ground that it is not an asset in the hands of the sons under Section 53

of the Civil Procedure Code. But that decision would not apply here because the sons them-

selves being the judgment-debtors under the decree, their interest in the watan property

which they inherit by birth would be liable and the death of one of the judgment-debtors,

viz., the father, would not make any difference so long as the sons' liability dates from the

time when the decree itself was passed.

88
 It is true that an alienation made by a watandar is good during his own life-

time and not beyond that, but it does not cease to be good on the death of one of the several

watandars making it. The property would remain liable during the lifetime of the surviving

watandars, and the fact that after the death of these surviving watandars, the alienation

would be bad and the property would revert to the watan family, would not affect the pre-

sent liability of all those watandars who are parties to the decree. If any alienation made by

a watandar could not be touched during his lifetime, there is no reason why a joint alienation

made by a father and his sons should be touched during the lives of all the alienors as to

their interest in the property. The case of Narayan v. Ramrao (1901) 3 Bom. L.R. 482 can

be distinguished on this ground, and although there does not appear to be any decided au-

thority on this point, our decision follows from the wording of Section 5 of the Bombay

Hereditary Offices Act, and is in no way inconsistent with the principle embodied therein.

I, therefore, agree that the appeal be dismissed with the proviso that what

could be sold is only the life-interest of the appellants in the watan property.

4.5 Laxman Narayan Deshmukh and Ors. vs Ramrao S/O Shrawan Katwale: 1998

(2) MPLJ 273

The present second appeal arises out of a judgment and decree passed by the

District Judge, Chhindwara in Civil Appeal No. 15-A/87, setting aside the judgment and

decree passed by the Civil Judge, Class II, Saunsar in Civil Suit No. 11-A/82.

The circumstances leading the filing of the suit are as under : One Tukdyaji

had two sons, Narayan Rao and Girmaji. Tukdyaji died on 2-2-1960. Yeshibai, the wife of

Tukdyaji and the mother of two sons died on 11-10-1974. In a family arrangement the

89
holdings of 44.01 acres of land were divided between Narayan and Girmaji, out of which

23.10 acres of land fell to the share of Girmaji. Girmaji sold the said land in favour of

Ramrao, Nathu and Mahadeol, the defendants in the suit for a consideration of Rs. 15,000/-

. The sale deed was executed on 10-3-1965. Nathu and Mahadeol further alienated 11.55

acres of land to Smt. Rukhmanibai, Smt. Manabai, Sureshchandra and Gajanan, who were

defendant Nos. 2 to 5 in the suit.

Appellant/plaintiff Narayanrao challenged the said transfer Under Section

170 of the M. P. Land Revenue Code on 11-12-1961 and claimed possession of the holdings

sold by his brother Girmaji and mother Smt. Yeshibai, on the ground that the same were

hit by Section 165(4)(b) of the Code, i.e. due to the sale the holdings were reduced to less

than 10 acres of unirrigated land. The said application was dismissed as also all steps upto

Board of Revenue failed. The findings of the Board of Revenue were challenged in a writ

petition. The petition was dismissed on 8-3-1979. It was found that there was no fragmen-

tation attracting Section 165(4)(b) of the Code.

The petitioner filed a Special Leave Petition in the Supreme Court which

was dismissed upholding the view taken by the High Court.

If the appellant/petitioner felt that the transferees of the land/holding were

really the purchaser only of the undivided interest of transferors, the transferees being in

joint possession they could still file a suit for partition.

The present suit was filed on 13-2-1980. It was alleged in the suit that the

transferees are not entitled to possession in the joint family property unless there was a

partition. It was also contended that the transferees have wrongly been placed in possession

90
and the possession should be restored to the appellant/plaintiff. The suit was proceeded ex

parte against the defendants, returning a finding that 23.01 acres of land was undivided

property of the joint Hindu family. Secondly that the defendants have purchased the part of

the undivided share of Girmaji and Smt. Yeshibai. The plaintiff was entitled to possession

of whole property and thirdly he was also entitled for mesne profits. The suit was also held

to be within limitation.

Against the said finding, judgment and decree, an appeal was preferred be-

fore the District Judge. During the pendency of the appeal, Smt. Rukhmanibai (defend-

ant/appellant No. 2) died on 18-4-1983. An application was made that the suit abated as a

whole in absence of any substitution of legal representatives. However, the lower appellate

court held that the suit would abate only against the deceased Smt. Rukhmanibai and upheld

the rights of the appellant to continue the appeal. The appeal was allowed holding that the

suit was barred by limitation.

It was held that the proceedings initiated upto the Board of Revenue cannot

be said to be bona fide pursuing the remedy in any Court having jurisdiction for condoning

delay Under Section 14 of the Limitation Act. It was also held that since the suit was filed

beyond 12 years of the dispossession, the defendants had perfected their title. Against the

judgment and decree, this present second appeal is filed. It was admitted on the following

substantial question of law :

"Whether the defendants having purchased undivided share in the joint fam-

ily property, could be treated to be in exclusive possession of the property in their posses-

sion? If so, whether they could acquire title over the property by adverse possession?"

91
 The learned counsel for the appellant Smt. Manisha Gupta states that the

findings recorded by the lower Appellate Court holding the suit being barred by limitation

is based on misconception of the legal position regarding the nature of joint undivided

property.

Taking the ground of limitation first, there is no dispute that sale took place

on 29-3-1961 and the defendants entered into possession on the basis of the same. The sale

was made by Smt. Yeshibai and Girmaji in favour of Ramrao, Nathu and Mahadeo. No suit

was filed challenging the transfers made. The respondents/defendants continued in posses-

sion of the suit property and claimed that they were in possession of the same in their own

rights on the basis of sale made in their favour. The suit was filed on 13-2-1980.

Much of the arguments proceeded on the basis that the transferees continued

to be joint and therefore there could not be adverse possession claimed against the members

of joint family. Hindu Law by Mulla page 365 and Law of Limitation by Rustamji page

972 were relied for the proposition that the possession of co-sharers cannot be said to be

adverse as long as the property continues to be co-parcenery property and secondly there

being no partition the question of adverse possession does not arise. Reliance was placed

on P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314.

These questions are considered as below: The case of the respondents/de-

fendants as pleaded in the Courts below was that there was already a partition between the

defendant No. 6 and his father in the year 1960 and alternatively, he has perfected his title

by adverse possession.

92
 There is no dispute that the transfer was challenged between 1961 to 1979

before the Revenue authorities, whether such a challenge can be excluded for purposes of

computation of limitation Under Section 14 of the Limitation Act. Reliance was placed by

the learned counsel for the appellant on J.D. Mahadik v. Govind Rao, AIR 1974 SC 1877.

Section 14 of the Limitation Act contemplates an institution of the previous

suit and carrying on the proceedings in the wrong Court and the plaintiff had acted in good

faith. In the instant case the proceedings cannot be said to be instituted in good faith before

a proper Court and continued to persist in it, not only in Revenue Courts but also in writ

petition before the High Court and Special Leave petition before the Supreme Court. It

cannot be said that the time consumed is liable to be excluded Under Section 14 of the

Limitation Act. It cannot be said that the plaintiff could not with due care of attention dis-

cover the mistake committed in pursuing the matter in Revenue Court.

The burden of bringing his case within the section lies on the plaintiff. Can

it be said that plaintiff pursued the remedy before the Revenue Courts, High Court and the

Supreme Court bona fide in good faith? The reference may be made to Madhorao v. Ram

Krishna, AIR 1958 SC 767. It is held thus

"On the other hand the question was whether given due care and attention

the plaintiff could have discovered the omission without having to wait for about ten years

or more. In view of the fact that in both the suits the plaintiff himself drew up the plaint

presented them in Court and inasmuch as he had given the value of the property in the other

suit it was for him to adduce the reasons as to why he failed to give the value of the property

93
in the suit in question or waited such a long time. In the absence of such reasons it could

not be said that he had acted with care and caution.

The burden of bringing his case within the section lay on the plaintiff. When

he did not satisfy the initial burden which lay upon him the burden did not shift to the

defendant to show the contrary."

In Vijay Kumar Rampal v. Diwan Devi, AIR 1985 SC 1669, the principle

of law is same that the person must bona fide pursue the proceedings with due diligence in

good faith in Court which from a defect of jurisdiction is unable to entertain it.

The very fact that the Revenue Authorities could not have determined the

nature of controversy, as such, pursuing the same in the Revenue Court cannot be allowed

to exclude the period spent in computing the limitation. The decision of the Supreme Court

in Vijay Kumar Rampal v. Diwan Devi (supra) is of no assistance to the appellant. We may

incidentally also refer to Section 165(4)(b) of the M. P. Land Revenue Code, which reads

as under :

"165. Rights of Transfer. - (4) Notwithstanding anything contained in Sub-

section (1), no Bhumiswami shall have the right to transfer any land -

(b) If such transfer shall result in holding the area of which is below five

acres of irrigated or ten acres of unirrigated land."

A perusal of the above provision also makes it clear that the pursuit made

before the Revenue Court was totally misdirected and as such did not entitle the plaintiff

94
any exclusion of time for the same. The finding recorded by the trial Court that the suit was

barred by limitation cannot be said to be perverse or wrong.

The next submission made in regard to the continuation of the joint posses-

sion on the reasoning that the defendants had purchased only undivided share and as such

could be presumed to continue in possession as joint owners is also not tenable. In fact the

transfers were made to the plaintiff along with stranger to the joint family. The possession

of the defendants was adverse to the plaintiff. We may refer to P. Lakshmi Reddy v. L.

Lakshmi Reddy, AIR 1957 SC 314. It is held thus :

"The ordinary classical requirement of adverse possession is that it should

be nec vi, nec clam, nec precario."

We may also refer to Parsini v. Sukhi, (1993) 4 SCC 375. It is held thus:

"Possession is prima facie evidence of title. Burden of proof lies on the party claiming

adverse possession. He must plead and prove that his possession must be 'nec vi, nec clam,

nec precario' i.e. peaceful, open and continuous. The possession must be adequate, in con-

tinuity, in publicity and in extent to show that their possession is adverse to the true owner."

In the instant case, the possession is continuous open and with a positive

assertion of title which can nothing but be adverse. It is not a pot a possession of co-owner

or co-heir. It is true that the possession of one co-heir is considered in law in possession of

all the co-heirs but in the instant case this is a definite case and there is material on record

that the possession was claimed by other than co-heirs who had purchased the property and

were in exclusive possession of the same to the knowledge of the plaintiff which amounts

95
to ouster. In the instant case, the commencement of the adverse possession started notori-

ous, hostile and exclusive in the year 1961.

The learned counsel for the appellant heavily relied on the passages from

Rustomji on Limitation, page 972 but here the question is something different. It is stated

thus :" Co-sharers : Possession after partition is adverse. - When a partition has taken place,

the possession of the whole property by one co-sharer is prima facie adverse thereafter to

the others, and time runs forthwith against the latter. (Possession by a co-sharer) of the

property after partition is adverse to the plaintiff to whom the said property has been allotted

at partition. Whatever may have been the rights of parties to a partition proceedings before

the partition of land, the partition creates new rights. Therefore, for however long a period

a co-sharer may have been in possession of a piece of land, which on partition is allotted to

another co-sharer, his adverse possession begins only from the date of partition. But in case

of a joint family, possession by one member after separation in status is not per se hostile

to the others and does not by itself amount to ouster."

In the instant case as already held the possession as claimed was not a co-

sharer or co-heir.

The lower appellate Court did not commit any error in holding the suit as

barred by limitation. The appeal is accordingly dismissed and the judgment and decree

passed by the lower appellate Court is maintained.

4.6 P. Lakshmi Reddy vs L. Lakshmi Reddy: 1957 AIR 314, 1957 SCR 195

Appeal by special leave from the judgment and decree dated December 3,

1951, of the High Court of Judicature at Madras in Second Appeal No. 766 of 1947 against

96
the decree dated November 19, 1946, of the District Court of Anantapur in Appeal No. 130

of 1945 arising out of the decree dated January 31, 1945, of the Court of Subordinate Judge,

Anantapur, in Original Suit No. 10 of 1944. M. C. Setalvad, Attorney-General of India, P.

Ram Reddy, K. Sundararajan and M. S. K. Aiyangar, for the appellant. C. K. Daphtary,

Solicitor-General of India, and K. R. Chaudhury, for the respondent.

1956. December 5. The Judgment of the Court was delivered by JAGAN-

NADHADAS J.-The plaintiff in the action out of which this appeal arises brought a suit for

declaration of his title to a one-third share in the suit properties and for partition and recov-

ery of that share. The suit was dismissed as having been barred by limitation and adverse

possession. On appeal the District Judge reversed the decision and decreed the suit. The.

High Court maintained the decree of the District Judge on second appeal. Hence this appeal

before us on special leave by the first defendant in the action, who is the appellant before

us. The main question that arises in the appeal is whether the plaintiff has lost his right to a

one- third, share in the suit property by adverse possession.

The property in suit belonged to one Venkata Reddy. He died an infant on

Augutst 25, 1927. At that time, the properties were in the possession of the matemal uncles

of the father of the deceased Venkata Reddy. One Hanimi Reddy, an agnatic relation of

Venkata Reddy, filed a suit O.S. No. 26 of 1927 for recovery of the properties from 'the

said matemal uncles and obtained a decree therein on March 15, 1929. A Receiver was

appointed for the properties in February, 1928, during the pendency of the suit and presum-

ably the properties were in his possession. This appears from the decree which shows that

it directed the Receiver to deliver possession to the successful plaintiff in that suit' Hanimi

97
Reddy obtained actual possession of these properties on January 20, 1930, and continued

in possession till he died on August 16, 1936.

The first defendant in the present action who is the appellant before us is a

son of the brother of Hanimi Reddy and came into possession of all the properties as Hanimi

Reddy's heir. The respondent before us is the plaintiff. The present suit was brought on the

allegation that the plaintiff and the second defendant in the suit, his brother, were agnatic

relations of Venkata- Reddy, of the same degree as Hanimi Reddy and that all the three

were equal co-heirs of Venkata Reddy and succeeded to his properties, as such-on his death.

It was alleged that though Hanimi Reddy filed the prior suit and obtained possession of the

properties thereunder, he did so as one of the do-heirs, with the consent of the plaintiff and

the second defendant and that he was enjoying the properties jointly with the plaintiff and

his brother as tenants-in-common but that the first defendant, who came into possession on

the death of Hanimi Reddy denied the title of the plaintiff and his brother in or about the

year 1940. The plaint in the present action was filed originally in the District Munsif s Court

on October 23, 1941, and was ordered to be returned for presentation; to the District Judge's

Court on November 30, 1942. It was actually re-presented in that Court on December 2,

1942.

One of the questions raised in the suit was that the, suit was, barred by lim-

itation on the ground that it must be taken to have been ingtituted not on October(23, [1941],

but on December 2, 1942. This plea was upheld by the trial Court. On first -appeal-the

District Judge held that the plaintiff is entitled to the benefit of a. 14 of the Limitation

Act and that the suit must be taken as having- been instituted on October 23, 19419 and is;

98
therefore, in time. He accordingly decreed, the suit. In the -High Court the question as to

whether the plaintiff was entitled to the benefit of. 14 of the, Limitation Act, though raised,

was not finally decided. It was held that the possession of Hanimi Reddy was not adverse

to the plaintiff and that accordingly he was entitled to the decree as prayed for. The question

as to the non- availability of the benefit of s. 14 of the Limitation Act to the plaintiff in the

present suit has not been, urged before us and- the finding of the District Judge that the

plaint must be taken to have been validly presented on October 23, 1941, stands. That date

must, therefore, be taken to be the commencement of the action for the purposes of this

appeal. It will be noticed that this date is more than fourteen years from the date when the

succession opened to the properties of Venkata Reddy on August 25, 1927, but is less than

twelve years after Hanimi Reddy obtained actual possession in execution of his decree on

January 20, 1930.

The contention of the learned Attomey-General for the appellant first de-

fendant is that the possession of Hanimi Reddy was adverse, that the plaintiff as well as the

second defendant lost their right by the adverse possession of Hanimi Reddy and his suc-

cessor, the first defendant, and that for this purpose not only the period from January 20,

1930, up to October 23, 1941, is to be counted but also the prior period during the pendency

of Hanimi Reddy's suit when the Receiver was in possession of the suit properties. It is the.

validity of these two parts of the argument which has to be considered. It will be convenient

to consider in the first instance whether or not the possession of- Hanimi Reddy from Jan-

uary 20, 1930, up to the date of his death in 1936 was adverse to his co-heirs.

99
 The: facts relevant for this pur ,pose are the following. At the date when

Venkata Reddy died his properties were in the custody of the two maternal uncles of his

father. Hanimi Reddy filed his suit on the allegation, as already stated above, that he was

the nearest agnatic relation alive of the deceased minor Venkata Reddy and as his next

rightful heir to succeed to all the estate, movable and immovable, of the said minor, set

forth in the schedules thereto. He appended a genealogical tree to his plaint which showed

his relationship io Venkata Reddy through a common ancestor and showed only the two

lines of himself and Venkata Reddy. Plaintiff and the second defendant belong to another

line emanating from the same common ancestor but that line was not shown and the plain-

tiff and second defendant were ignored.

The first defendant in the present suit did not admit the relationship of plain-

tiff and second defendant in his written statement. He disputed that the father of the plaintiff

and second defendant was descended from the common ancestor either by birth or by adop-

tion, as shown in the genealogical table attached to the present plaint. It is possible that this

may have been the reason for Hanimi Reddy ignoring the plaintiff and the second defendant

in-his suit. However this may be, at the trial in this suit it was admitted that the plaintiff

and the second defendant are the agnatic relations of Venkata Reddy of the same degree as

Hanimi Reddy.

The defendants in the earlier suit who were in possession on that date

claimed to retain possession on behalf of an alleged illatom sonin-law (of Venkata Reddy's

father) a son of the second defendant therein. It may be mentioned that in that part of the

country (Andhra) an illatom son-in-law is a boy incorporated into the family with a view

100
to give a daughter in marriage and is customarily recognised as an heir in the absence of a

natural-born son, This claim appears to have been negatived and the suit was decreed. Dur-

ing the pendency of the suit a Receiver was appointed in February, 1928. He presumably

took possession though the date of his taking possession is not on the record. The decree in

that suit dated March 15, 1929, is as follows:

"This Court doth order and decree that plaintiff do recover possession of

immovable property and movables in the possession of the Receiver."

It is in the evidence of the first defendant himself as D.W. I that the proper-

ties, were taken possession of by Hanimi Reddy on January 20, 1930. The plaintiff exam-

ined himself as P.W. 1 to substantiate the case as set out in his plaint that he and the second

defendant and Hanimi Reddy were enjoying the properties jointly as tenants in common.

The relevant portion of his evidence is as follows: "Annu Reddy (Hanimi Reddy) uncle of

defendant " and myself filed 0. S. No. 26 of 1927, District Court, Anantapur-same as O.S.

No. 24 of 1928, Sub-Court, Anantapur-for the properties of the deceased Venkata Reddy.

As Hanimi Reddy was the eldest member, he was attending to the conduct of that suit. I

was also coming to Court along with him. The suit ended in our favour. Hanimi Reddy took

possession through Court after the decree in the year 1930. Since then both Hanimi Reddy

and myself have been in joint possession and enjoyment of the same."

4.7 N. Varada Pillai vs Jeevarathnammal: (1920) 22 BOMLR 444

This is an appeal by the plaintiffs from ,1 decree of the High Court of

Madras, dated the 19th November, 1915. reversing a decree of the District Court of

Chingleput dated the 11th August, 1913, and dismissing the suit.

101
 The suit was brought to establish the title of the plaintiffs to a moiety of a

mitta or estate situated about thirty miles from Madras and known as the mitta of Kariar-

nangalani. The mitta at one time belonged to Narayanasami Pillai, an ancestor of the parties,

and on his death it passed to his three sons as members of a joint family. In the year 1845

a partition took place, under the terms of which the eldest son relinquished all interest in

the mitta, which thereupon became vested in the two younger sons, Gopala Krishna Pillai

and Parthasarathi Pillai, in equal shares. No question arises as to the share of Gopal Krishna;

but it is material to state that, on his death in the year 1879 his share became vested in his

widow, Rajam-mal, and that he left issue one child only, a daughter named Duraisani.

Parthasarathi died in the year 1867, having made a will upon which a ques-

tion of construction arises. Clause 3 of the will was in the following terms:-

I have given my half share in Kariamangalani Mitta to my wife, Nayar

Alangarainmal, alias Thayarammal, on account of her maintenance and other absolute use.

She is at liberty to enjoy the same with powers of alienation by sale, etc.

By clause 4 of the will the testator gave his property (in general terms) to

the two infant sons of his eldest brother, who are now represented by their sons; the plain-

tiffs. The plaintiffs contend that the effect of the will was to vest the moiety in question in

the testator's wife, Alangarammal, for her life only, and that on her death (which occurred

in the year 1912) it passed under clause 4 to the plaintiffs; but it was held both in the District

Court and in the High Court that clause 8 gave an absolute interest in the moiety to the

testator's wife, and that the fourth clause operated upon the remaining property only. Their

Lordships agree with this construction of the will; and they accordingly hold that, on the

102
death of Parthasarathi, his moiety of the mitta vested in his widow, Alangarammal, abso-

lutely.

But the plaintiffs have an alternative claim. It appears that they were the

persons entitled to succeed on the death of Alangarammal to her property not disposed of

during her lifetime or by her will, and they contend that the moiety in question was in fact

undisposed of at the death of Alangarammal, and accordingly vested in them as her heirs.

The defendant on the other hand, contends that, in consequence of certain events which

happened during the lifetime of Alangarammal, the moiety in question passed to Duraisani,

and through her to her daughter the defendant, and accordingly that the plaintiffs have no

right thereto. These events must now be stated.

On the 10th October, 1895, Eajamuial and Alangarammal who were then

the registered owners of the two moieties of the 'initta, presented a petition to the Collector,

whereby, after reciting that they had, on the 8th October, 1895, given away the two villages

constituting the initta as xtridhanam, to Duraisani, alias Alamelu, they prayed that orders

might be passed for transferring the villages into her name. The petition concluded: "The

said Alarnelu Animal shall hold and enjoy them with power to alienate them by way of gift,

mortgage, sale, etc." Duraisani on the same date also presented a petition to the Collector

riciting the gift of the villages to her on the 8th October, 1895, arid requesting that they

should be transferred into her name. The Collector accordingly, on the 8th May, 1896, reg-

istered the mitta in the name of Duraisaui.

It was not contended before the Board that the above transactions effected a

valid gift of the property to Duraisani; for such a gift must, under Section 123 of the

103
Transfer of Property Act, be made by registered deed. Nor, having regard to Section 91 of

tho Indian Evidence Act, can the recitals in the petitions be used as evidence of a gift having

been made. But the defendant's case in that Duraisani, although she may have acquired no

legal e title under the transactions referred to, in fact took possession of the property when

it was transferred into her name and retained such possession until her death in December

1911, after which date it passed to the defendant as her successor, and accordingly that the

plaintiffs' claim is barred by upwards of twelve years' adverse possession. The High Court

upheld this contention and their Lordships, after considering the evidence, have arrived at

the same conclusion.

There was a considerable, body of evidence showing that Duraisani was in

possession or receipt of the rents and profits of the mitta during the period above referred

to. At or about the date of the attempted gift, Duraisani, who until then had lived with her

husband in Madras, came to live with her mother and her aunt, Alangarammal, in the neigh-

bourhood of the mitta, and thenceforward spent the greater part of tho year with them.

From the same date all pattas were granted and mucliilikais taken in the

name of Duraisani alone; and the property was managed by agents appointed by her, who

accounted to her for tho rents.

It was contended on behalf of the plaintiffs that, assuming Duraisani to have

been in actual possession of the laud, she held such possession, not in her own right, but as

trustee or manager only for her mother and aunt, and accordingly that her possession was

not such adverse possession as to give a title under the Limitation Act; and in support of

this contention the plaintiffs relied upon the evidence of a former manager of the estate,

104
who stated that during the life of Rajammal (who died in 1901) he "used to pay collections

to her." But the witness in question prefaced his evidence above referred to by the statement

that Duraisani "had confidence in Rajammal;" and he stated emphatically that Duraisani

was zamindarin from 1896.

Having regard to these statements and to the remainder of tho evidence in

the case, the proper inference appears to be that, if any rents were in fact paid to Eajammal

after 1896, they were so paid by the direction of her daughter Duraisani (who lived with

her) and in order that they might be applied to the joint household expenses.

The plaintiff also relied upon the will of Rajammal dated the 2nd April,

1901. By this will the testatrix referred expressly to the petition of the 10th October, 1895,

and the subsequent transfer of the two villages into the name of Duraisani, and added : "and

the above two villages are being enjoyed by the said Duraisani Ammal." The will then

proceed as follows :- My daughter, the said Alamelu Ammal, alias Duraisani Ammal, shall

take the above two villages and shall either amicably or through Court recover and take all

the following arrears, jewels, etc., due to me, viz., the Zamin sircar ' arrears due to me in

the said villages up to past Fasli 1305 upon account from the tenants of the said villages,

etc.

It was held by the District Judge, that these words amounted to a devise of

the two villages to Duraisani, and accordingly that they afforded evidence that in the view

of the testatrix no beneficial gift had been previously made to her, but the High Court held

that there was in fact no devise of the villages. In the absence of the original text of the will,

which was no doubt seen by the Judge in India, their Lordships are unable to say which

105
construction is correct. But even if the devise included the testatrix' interest in the two vil-

lages, it would appear to be reasonably clear that the gift was by way of confirmation only

and affords no evidence that Duraisani waa a trustee of the property. In any case the recitals

contained in the will are strong evidence of the possession of the property by Duraisani.

The plaintiffs also relied upon a draft will which was prepared for Alanga-

rammal just before her death in 1912, but which has been held by the Courts in India not to

have been adopted by her as her will. This draft will contained recitals similar to those

contained in the will of Rajammal, and these recitals were followed by a gift of the villages

to the defendant, who had then succeeded to the estate of Duraisani. It may be doubted

whether any valid argument can be founded upon a draft will not signed or adopted by the

person for whom it was prepared, but in any case the observations which have been made

concerning the will of Rajammal apply to this draft will also.

It should be added that, although the petitions of 1895 and! the change of

names made in the register in consequence of thosol petitions are not admissible to prove a

gift, they may neverth of less be referred to as explaining the nature and character of thtk

possession thenceforth held by Duraisani. In other words although the petitions and order

do not amount to a gift of the land, they lead to the inference that the subsequent receipt of

the rents by Duraisani was a receipt in the character of donee and owner of the land, and

therefore in her own right and not as trustee or manager for her mother and aunt.

Lastly the plaintiff's put forward the contention that on the death of Rajam-

mal in 1901 Duraisani became entitled either under her will or by succession to her moiety

of the mitta, and accordingly that as from that date possession of the villages must be

106
deemed to have been held by her as part owner and not adversely. This contention was

founded upon the English rule of law, which was abrogated by the statute 3 & 4 Will. IV,

c. 27, Section 12, that the possession of one of several co-parceners, joint tenants or tenants

in common, is the possession of the others so as to prevent the statutes of limitation from

affecting them. Whether this rule is applicable to sharers in an unpartitioncd agricultural

village in India not holding their shares as members of a joint family, it is unnecessary for

the purposes of the present case to decide; for upon the facts of the case the rule has no

application. The limits of the rule were defined in Culley v. Doe dem. Taylerson (1840) 11

Ad. & E. 1014 as follows:- Generally speaking, one tenant in common oannot maintain an

ejectment against another tenant in common, because the possession of one tenant in com-

mon is the possession of the other, and, to enable the party complaining to maintain an

ejectment, there must be an ouster of the party complaining. But, where the claimant tenant

in common, has not been in the participation of the rents and profits for a considerable

length of time, find other circumstances concur, the Judge will direct the jury to take into

consideration whether they will presume that there has been an ouster and, if the jury find

an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided

exactly in the same way as if he had brought his ejectment for an entirety.

In the present case, it is plain that during the life of Rajammal the possession

of Duraisani was adverse as against both co-owners; and this being so, there is no reason

for holding that when on the death of Rajamnuil she became legally entitled to a moiety of

the property, tho character of her possession of the other moiety as against Alangarammal

was .changed. There having been an ouster of Alangarammal before the death of Rajammal,

107
this ouster continued after her death, and tho possession of Duraisani was adverse to

Alangarammal throughout. This contention therefore also fails.

For the above reasons and upon a review of the whole of the evidence their

Lordships have arrived at the conclusion that the decision of the High Court is right, and

that this appeal should be dismissed with costs, and they will humbly advise His Majesty

accordingly.

4.8 Ganesh Eknath Kaulgi and Anr. vs Bhausaheb Bhavanrao Deshmukh: (1922) ILR

46 Bom 345

The Subordinate Judge has held that the application in effect asks him to

vary the prescribed mode of satisfaction under the decree on the aw and that as an executing

Court he cannot do so. It seems to me that he is justified in that view; for the award decree

clearly contemplates satisfaction by payment of an annual sum out of the profits of certain

mortgaged lands, whereas the Court is now asked to recover the full amount due by attach-

ment and sale of other property in the hands of the mortgagor or his legal representatives.

The appellant's pleader relies on the provision in the decree that, if the pay-

ment should fall short of Rs. 125 in any particular year, then the mortgagor should make

good the amount from his other private resources. It is open to question whether that par-

ticular provision is a valid one, in view of the decisions in Hargovandas v. Mohanbhai

(1900) 2 Bom. L.R. 225 and Damodar v. Vyanku (1906) 31 Bom. 244 to the effect that no

money decree against a mortgagor can come into existence until the stage provided for

by Section 90 of the Transfer of Property Act (now Order XXXIV, Rule 6, Civil Procedure

Code) has been reached. That stage has certainly not been reached in the present case. But

108
even assuming that this particular provision could be authority for the application now un-

der consideration, it seems to me that this will not avail the applicant.

The real objection to the Darkhast is the fact that under the ruling in Padapa

v. Dwamirao (1900) 24 Bom. 556 the mortgage was in its inception void against the heir

of the Vatandar. That being so, any arrangement, or even any decree, based on the mortga-

gee's rights under such mortgage must also be void against the heir of the Vatandar, Such

an arrangement or decree cannot be put on any higher footing than the transaction of mort-

gage on which it is based. No doubt it is possible that the applicant may have certain rights

to recover what the opponent's father has failed to pay under the decree, e.g., in conse-

quence of the liability of a Hindu son to pay the debts of his father. But that is an entirely

distinct cause of action, and the Subordinate Judge has rightly held that any such claim can

only be made in a properly framed suit.

It is obviously not a case that can be dealt with under Section 47, Civil Pro-

cedure Code, for the claim will not be one relating to the execution, discharge or satisfac-

tion, of the decree but will arise from a right different from applicant's rights under the

decree. The appeal is, therefore, summarily dismissed.

Summary – Here in the chapter – 4 we have studied the various opinions of

the Indian judiciary regarding the admissibility of evidence and the validity of the dying

declaration through the study of the various cases in the India.

In the next chapter – 5 we will conclude the conclusion and will discuss the

some suggestion for the topic of this dissertation.

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 CHAPTER - 5

CONCLUSION AND SUGGESTIONS

5.1 Conclusion

Keeping in view the above-mentioned opinions of various courts it is sug-

gested that whenever dying declaration is to be recorded it should be recorded very care-

fully keeping in mind the sanctity which the courts attach to this piece of evidence. It retains

its full value if it can justify that victim could identify the assailant, version narrated by

victim is intrinsically sound and accords with probabilities and any material evidence is not

proved wrong by any other reliable evidence. it is perfectly permissible to reject a part of

dying declaration if it is found to be untrue and if it can be separated. Conviction can be

based on it without corroboration if it is true and voluntary. Dying declaration becomes

unreliable if it is not as per prosecution version. This has been summed up the Supreme

Court:

1. It is for the court to see that dying declaration inspires full confidence as the

maker of the dying declaration is not available for cross examination

2. Court should satisfy that there was no possibility of tutoring or prompting.

3. Certificate of the doctor should mention that victim was in a fit state of mind.

Magistrate recording his own satisfaction about the fit 26 JIAFM, 2004;

26(1). ISSN 0971-0973 mental condition of the declarant was not acceptable

especially if the doctor was available.

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 4. Dying declaration should be recorded by the executive magistrate and police

officer to record the dying declaration only if condition of the deceased was

so precarious that no other alternative was left.

5. Dying declaration may be in the form of questions and answers and answers

being written in the words of the person making the declaration. But court

cannot be too technical.

Dying declaration is one of the most important evidence that is admissible

in court as dying declaration can be a sole purpose for conviction of accuse. Hence, it should

be recorded carefully with all the procedure that the court has mentioned. It should not be

tampered at all by anyone. If the dying declaration is incomplete, then it is very much to be

rejected by the court. It is on the court discretion to check if the dying declaration is rec-

orded carefully or not.

Hence, an evidence is admissible in Court proceedings only if it is relevant

to the facts or issues or matters in dispute. If evidence is admissible but irrelevant to the

case then it is only a waste of time for the Court. Thus, evidence shall be relevant and shall

also satisfy all the specified provisions of admissibility then only it can be admissible in

the Court of Law. As of the present situation, even the electronic or digital records are

admissible as evidence as they are reliable, relevant and obtained from an authentic source

of electronic communication.

Evidence is the most integral and indispensable element of any proceedings either criminal

or civil and shall be safeguarded from any kind of manhandling or else it might turn inad-

missible in the Court.

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 Now-a-days, we saw rapid strides in the field of information and technol-

ogy. The expanding horizon of science and technology threw new challenges for the ones

who had to deal with proof of facts in disputes where advanced techniques in technology

was used and brough in aid. Storage, processing and transmission of date on magnetic and

silicon medium became cost effective and easy to handle. Conventional means of records

and data processing became outdated. Law had to respond and gallop with the technical

advancement. He who sleeps when the sun rises, misses the beauty of the dawn. Law did

not sleep when the dawn of Information and Technology broke on the horizon. World over,

statutes were enacted. Rules relating to admissibility of electronic evidence and it's proof

were incorporated.

The appropriate amendments in Evidence Law, incorporated by our judici-

ary show proactivism. In my opinion the law enforcement agencies and investigating offic-

ers have to update themselves about the authentication process prescribed by the court re-

garding the admissibility of electronic/digital evidences so that impediments in trial proce-

dures can be successfully overcome.

Proper training of law enforcement agencies in handling cyber related evi-

dence and correct application of procedure and sections of Evidence Law while presenting

such evidence in court is the primary need of recent times. Common man in the role of a

complainant should be now aware that while submitting evidence to police or courts, he

should submit it with a certificate under section 65B(4) of The Indian Evidence Act so the

court takes cognizance and reads it as a primary evidence. Let me conclude this paper with

a suggestion that there must be a Digital Evidence Act for regulation on incident response.

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 The dying declaration is not specifically mentioned in our penal law under

Section 32(1) of IPC. it is the statement made by the person who is going to die, and that

statement will be considered as evidence in court, how his death caused and who is the

mugger. There are many conditions that relied upon the dying declaration that it should be

in an adequate manner as dying declaration is the weapon who convicted the accused and

stood as strong evidence.

The admissibility of dying declaration accepted in our Indian court because

the law presumes that in Leterm Mortem i.e in his last parting words the man will never lie

as anyone will meet his maker with a lie on his lips. This is because a man who is going to

die, end with all his needs and wants and his interest is no more passionate for self deeds

so he seldom lies.

However, the dying declaration is found to be maliciously made then the

court has the right to reject the statement. Or there are other situations and circumstances

which coupled with dying declaration for its admissibility which discussed above.

The ground for the admission of the dying declaration is death, and gener-

ally, the only eye witness is the victim of such crime, the exclusion of such piece of evi-

dence will defeat the ends of the justice. The sense of impending death creates a sanction

equal to the obligation of an oath. (Dashrath V. The State of M.P., (2007) 12 SCC 487).[19]

The general principle on which this species of evidence is admitted is that they are decla-

rations made in extremity when the party is at the point of death and every hope of the

world is gone. Any and every motive to falsehood is silenced and the mind is induced by

the most powerful consideration to speak the truth. It is a situation so solemn and so awful

113
that it is considered by the law as creating an obligation equal to the oath administered in a

court of justice.

The dying declaration is a statement verbal or written made by a person

relating to the cause of his or her death or any of the circumstances of the transaction re-

sulting in death. The declarant must be in a sound state of mind (Compos Mentis). The

medical practitioner is required to certify that his patient is in a sound state of mind to make

the statement before it is recorded. The endorsement of the doctor as regards the mental

status of the deceased is a rule of prudence and not the ultimate test as to whether or not

the same waw truthful or voluntary. (Modi jurisprudence) A dying declaration is admissible

in all criminal and civil cases, where the cause of death is under inquiry. Landmark judg-

ments

With the above mentioned cases and discussion it can be concluded that

dying declaration is of importance in the eyes of law and sometimes the sole evidence to

bring to aggrieved. It can be concluded that a statement made under dying declaration re-

quires precision and delicate care while noting down. A dying declaration is supposed to

be true and voluntary and when this part is fulfilled a dying declaration without corrobora-

tion can be admitted. LORD EYRE, C.B., also held that “The principle on which this spe-

cies of evidence is admitted is, that they are declarations made in extremity, when the party

is at the point of death, and when every hope of the world is gone, when every motive to

falsehood is silenced, and the mind is induced by the most powerful considerations to speak

the truth. A situation so solemn and awful is considered by the law as creating an obligation

114
equal to that which is imposed by the law as creating an obligation equal to that which is

imposed by a positive oath administered in the court of justice.

” It is well-settled a dying declaration can exclusively base a conviction pro-

vided it is voluntary and truthful. It is never been a rule of prudence much less a rule of law

that a dying declaration can’t be acted upon unless it is corroborated. The court took out

for corroboration only when it comes to conclusion that the dying declaration suffers from

any infirmity by reason of which it is necessary to look out for corroboration.

The veracity, reliability and truthfulness of the alleged dying declaration

would be tested only after the evidence is recorder in the court and if on proper evaluation

of such evidences, the court comes to the conclusion that dying declaration is truthful ver-

sion of the deceased relating to the circumstances of his death, then there is no question of

any further corroboration as the conviction can be founded only on such dying declaration.

But in case the court finds that the dying declaration suffers from any inherent infirmities

it is bound to be rejected.

Dying declaration is a very unique form of evidence under the Indian Evi-

dence Act. It is based on trust for a dead man’s word and even dispels basic rules of evi-

dence such as the exclusion of hearsay evidence. Hence, Indian judiciary has

through various judgements created a strong framework for the application of dying

declaration as a form of admissible evidence under the Indian Evidence Act.

Dying declaration no doubt is an important piece of evidence to guide the

courts in the onerous task of finding the truth. Though it suffers from a serious blemish still

carries much weight. It constitutes radical departure from the established principles of

115
evidence as the statement and its veracity cannot be cross examined and virtually admissi-

bility of hearsay evidence. Courts have never been allergic to allow conviction solely on

the basis of testimony of a witness who cannot be available before the court to testify the

substance of the statement which forms the basis of its judgment. Basic to the whole process

is the avowed sanctity of a man who utters last word before leaving the world and honestly

averring the involvement of a person who inflicted injuries on him leading his ultimate

death. Such a statement has got statutory permission but the courts have cautioned before

endorsing such permission.

Real danger which tempted courts to formulate rigid parameters of caution

is the misuse of such statements by either parties to the proceeding. Obviously prosecution

will try to find force in it enabling him to punish the offender and the defense in shattering

the prosecution story by weakening the force therein to establish doubts for getting exon-

erated from the criminal liability for which he is facing trial. Between these two extremes

much depends upon the adjudicating officer to give due and reasonable weight to such

evidence. In due course of time Indian courts have evolved the principle of caution and

what is marshaled is clarity rule.

If the statement is clear, unambiguous, pointed and match or support the

prosecution story beyond and unerringly courts will lean heavily in favour of using the

statement. Conclusion drawn on the basis of the statement of a dying man clearly indicating

an inference that no person other than the person named in the narration has committed the

offence deserves appreciation. Such an important piece of evidence must carry sufficient

preponderant weight as to the truthfulness of the contents therein. Thus, courts emphatically

116
suggested for due caution and if the statement stands to meet the parameters there is enough

scope to rely upon it.

Evidence of a fact is to be adduced and the balance of its admissibility has

to be accepted by the presiding adjudicator. Section 32(1) of the Act has been intelligently

designed in such a manner as to cover any eventuality in respect of a statement which hap-

pens the last words of a person who directly perceived the offender. It is wider than English

proposition and stands on a totally different plank. Indian courts have unhesitatingly ac-

cepted the veracity of such statement to prove the fact impugned in any case where the

death and involvement of the suspected offender is questioned.

5.2 Suggestions

The Law relating to evidence has evolved over the years as one of the most

important in deciding cases. The power vested on the presiding officer in deciding whether

an evidence is admissible or not is huge and must be restricted through guidelines. The law

relating to evidence is not suitable for the present age and it must be amended for the better

functioning of the legal system.

A clear line must be drawn between the power of the judge and the power

of the judge as such a huge power vested on a human being would only result in corruption

of power. The law is supreme and no man should be given the discretionary power to bend

it to his wish. Thus, a clear distinction must be drawn between the law and discretionary

power of the judge. Thus, the law is in dire need of an amendment.The Judges, like all other

Human beings are fallible and discretionary powers should not be given to them to decide

whether an evidence is admissible or not. Ted Bundy, one of the most notorious killers of

117
our time managed to do more crimes and evaded the eyes of law as he was let out on inad-

missible evidence.

The Law or the Judge, both should not be given the power to decide whether

an evidence is admissible or inadmissible. Every piece of Evidence which concerns the

case must be mad admissible whether it is found through illegal search or any other

means.There are many people among us who evade the eyes of Law forever because of

inadmissible evidences.Thus, a new mechanism must be developed to admit or not admit a

particular evidence.

The basis of the present position under Indian jurisprudence is a legalistic

one. Indian courts have continuously rejected arguments with respect to Article 21 of the

constitution that favour an exclusionary rule, based on the premise that the right to privacy

is not envisaged in our constitution and there is no analogous provision of the U.S. Fourth

Amendment in our constitution.

However, with the recent pronouncement on the right to privacy, this prem-

ise is questioned. The scope of the right to privacy being overarching would mean that the

‘Fruit of the Poisonous Tree’ doctrine will be applicable to India as it is in the United States.

At the same time, we also have to keep in mind the provision of restricting the right to

privacy under the concept of ‘procedure established by law’, however in the absence of any

established law, there would be a direct application of the doctrine.

With respect to the recommendation of the law commission in the form of

Section 166A,40 it is clear that there is a need for change in the position of Indian law on

this subject, and the recommendations of the commission are also well-founded. Section

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166A states that in order to determine the admissibility of evidence the court shall consider

all circumstances, including, the importance of the evidence, the extent to which human

dignity and values were violated in obtaining it and the question whether there were cir-

cumstances justifying the same action.

Such a recommendation strikes balance between the objective of evidence

and the current position of law along with the changes in the law of privacy. This would

also mean that judges would be the sole authority on the admissibility of evidence guided

by the section. Such an amendment in the law would have a tremendous impact not only

on the position of privacy law vis-à-vis the Constitution but also on the practical lives of

law enforcement.

This is because such a change in the law, which is inevitable, will open a

pandora’s box given the array of cyber-crime investigations taking place today. As of now,

for law enforcement, there is only one test of evidence, the test of relevancy. After the

declaration of the law of privacy, the “relevancy” of the evidence will have to weigh against

the violations of privacy needed to obtain it.

There is, therefore, a need to fill the gaping hole that is present today in the

law of evidence. This is also evident from the fact that the law commission itself envisaged

the problem at hand when the scope of Article 21 would expand to include privacy.41 The

legislature now must strike a balance between the fundamental right to privacy and the

conflicting principles of the admissibility of tainted evidence. The test of this, however,

will be on Article 21, as illegally obtained evidence would now be in direct conflict with

the fundamental right.

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 It is well understood that a dying declaration stands to be an exception to

the rule of the hearsay form of evidence in the courts. Although hearsay evidence is dis-

carded from the court due to its inconclusiveness and lack of accuracy the dying declaration

is admissible in the court without any rule as to the strict corroboration.

The basic premise for this exception and its admissibility is that a person

would not lie and enter the afterlife. Through understanding the concept and condition prec-

edents, facets pertaining to law on dying declaration in India list out specific events or facts

which are the reasons or circumstances of the death of the individual making such declara-

tion. The court through various judgments has taken into account various measures for

maintaining honesty and trustworthiness while recording dying declarations.

While analyzing the procedure for recording such a declaration it has to be

noted that the court has given a wider interpretation rather than the format prescribed (ques-

tion-answer), courts take into account the mental and physical competency of the declarant

as well. The most important aspect which has been reiterated in several judgments is that

the dying declaration should not be tutored or should have the motive of vengeance behind

it.

There are several tests including tests of reliability and credibility for en-

trusting the honesty of a dying declaration with the courts. However, there is a greater

probability that a declarant can falsely make such a declaration with the motive of revenge

or false information due to his/her misunderstanding of the chain of events. However, with

understanding the analysis and interpretation of section 32(1) of the Act, it is clear that

courts are becoming cautious to the trustworthiness of dying declarations due to their

120
chances of being tutored or false. The research has listed down a few recommendations as

follows:

1. The rule of corroboration is suggested to be complied with mandatorily in the

cases where the prosecution solely relies on the dying declaration for conviction

of the accused since such declaration is not cross-examined by the accused there

is a high probability of its falsity and dishonesty.

2. The lawmakers shall give out detailed guidelines forming rules and regulations

for a uniform procedure of dying declaration for less procedural discrepancies

and a simpler method for courts to examine the same.

3. The test of reliability and credibility is not a straight jacket normative for check-

ing the trustworthiness of a dying declaration. There is a need for stringent

measures which shall make sure that the accused is not maliciously framed by

the declarant due to his/her ill motives.

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 BIBLIOGRAPHY

Websites
1. www.indiankanoon.org website.
2. www.legalserviceindia.com/legal/article-8444-detailed-analysis-of-dying-declara-
tion-under-iea-1872.html
3. www.mlsu.ac.in/econtents/114_Dying-declaration.pdf
4. www.nickledanddimed.com/2020/12/19/legal-anatomy-of-dying-declaration-its-
admissibility-validity/
5. www.kjablr.kar.nic.in/sites/kjablr.kar.nic.in/files/11.%20Dying%20Declara-
tion%20-%20Its%20applicability%20in%20Criminal%20Cases.pdf
6. www.blog.ipleaders.in/admissibility-dying-declaration/
7. www.lawcommissionofindia.nic.in/51-100/Report94.pdf
8. www.acadpubl.eu/hub/2018-120-5/2/119.pdf

Books
1. Law Relating to Dying Declaration in India, by Dr. Vijay Pal Singh
2. Statements, Confessions and Dying Declarations, by K.M. Sharma and S.P. Mago
3. Dying Declaration, by Randy Singer
4. Indian Evidence Act, 1872 by C.K. Takwani

Journal
1. Hill, Gerald N.; Hill, Kathleen (2002). The people's law dictionary : taking the mys-
tery out of legal language. New York, NY: MJF Books. ISBN 9781567315530.
2. Ulfstein, Geir (24 January 2020). "Inter-State Applications under the European
Convention on Human Rights: Strengths and Challenges". EJIL: Talk!. Retrieved 7
January 2021.
3. "Dying Declaration - A Man Will Not Meet His Maker with a Lie in His Mouth",
Raghvendra Singh Raghuvanshi, SSRN, 25 February 2010. In turn, this paper's ref-
erence to the 1202 date cites "M.N. Howard, "Phipson on Evidence", 15th edn.,
Sweet & Maxwell, 2000 at Pg. 886." Note: A number of sentences in this SSRN

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 paper seem to be identical to the "Legal Affairs" article by Koerner, without citing
Koerner. I do not know how much this impugns this source.
4. Adrian Zuckerman; Paul Roberts (26 August 2010). Criminal Evidence. Oxford
University Press. p. 430. ISBN 9780199231645. Retrieved 12 June 2016.

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