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Evidence Law Unit-4 .
Evidence Law Unit-4 .
Evidence Law Unit-4 .
Illustrations:
(a) The question is, whether A was murdered by B; or
A die of injuries received in a transaction in the course of which she was ravished. The question is,
whether she was ravished by В; or
The question is, whether A was killed by В under such circumstances that a suit would lie against В
by A’s widow.
Statements made by A as to the cause of his or her death, referring respectively to the murder, the
rape, and the actionable wrong under consideration, are relevant facts.
(6) The question is as to the date of A’s birth,
An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on
a given day he attended A’s mother and delivered her of a son, is a relevant fact.
(c) The question is, whether A was in Calcutta on a given day.
A statement in the diary of a deceased solicitor, regularly kept in the course of business, that, on a
given day, the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring
with him upon specified business, is a relevant fact.
(d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a
deceased member of a merchant’s firm, by which she was chartered, to their correspondents in
London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay
harbour, is a relevant fact.
(e) The question is, whether rent was paid to A for certain land.
A letter from A’s deceased agent to A, saying that he had received the rent on A’s account andheld it
at A’s orders, is a relevant fact.
(f) The question is, whether A and В were legally married.
The statement of a deceased clergyman that he married them under such circumstances that the
celebration would be a crime is relevant.
(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The
fact that a letter written by him is dated on that day, is relevant.
(h) The question is, what was the cause of the wreck of a ship.
A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.
(i) The question is, whether a given road is a public way.
A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.
(j) The question is, what was the price of grain on a certain day in a particular market. A statement
of the price, made by a deceased banуа in the ordinary course of his business is a relevant fact.
(k) The question is, whether A, who is dead, was the father of S. A statement by A that В was his
son, is a relevant fact.
(I) The question is, what was the date of the birth of A.
A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a
relevant fact.
(m) The question is, whether, and when, A and В were married.
An entry in a memorandum-book by C, the deceased father of. B, of his daughter’s marriage with
A on a given date, is a relevant fact.
(n) A sues В for a libel expressed in a painted caricature exposed in a shop window. The question
is as to the similarity of the caricature and its libellous character. The remarks of a crowd of
spectators on these points may be proved.
Comments:
Statement and object:
Sections 32 and 33 of the Evidence Act are exceptions to the general rule that hearsay evidence is not
admissible. Hearsay evidence is not entertained by the courts on the ground that the evidence given
by a person who does not have first-hand knowledge about the facts of the case. Because, according to
Section 60 of this Act oral evidence must always be direct, that is, the person who has got first-hand
knowledge about the facts of the case being entitled only to prove the facts.
For ends of justice the law always demands best evidence to be produced before the court of justice.
The best evidence means evidence of the person who has made a statement or has written a
document by himself. This is a best evidence of the person who has got first-hand knowledge about
facts or original documents. When a witness appears before the court, he is required to take oath
and is subjected to cross-examination by the opposite party.
A second hand or hearsay evidence means derivative evidence. Hearsay evidence, according to
Taylor, “all the evidence which does not derive its value solely from the credit given to the witness
himself, but which rests also in part on the veracity and competence to some other person.” When
the person or document (best evidence) cannot be available in the court, then the “other person”
may be allowed by the court, who is not required to take oath or is put to cross-examination, to
testify the contents of the documents prepared by the person who is not available for reasoned
mentioned in Section 32. Thus, the hearsay evidence, is relevant when:
(i) there is necessity and (ii) the special circumstances guaranteeing genuineness and
trustworthiness. Section 32 is an exception to the hearsay rule. Unlike English law the Indian law
does not make it wholly inadmissible.
Principle:
Under section 32 evidence given by a person in a judicial proceeding or before a person authorized
by law to take evidence is relevant for the purpose of proving in a subsequent judicial proceeding
the truth of the facts stated therein. It imposes restrictions upon the admissibility of statements
made by persons who cannot be brought before the court to give evidence. As there is no better
evidence available the statements made under this section are admitted as principle of necessity.” In
other words, written or verbal statements of relevant facts made by a person: —
(i) Who is dead;
(iv) Whose attendance cannot be procured without unreasonable delay or expense, are relevant under
the following circumstances of the case:
1. When it relates to the cause of his death, or
5. eral interest, or
8. When it is made in document relating to transaction mentioned in Section 13, Clause (1), or
9. When it is made by several persons, and expresses feelings to the matter in question.
Necessity of Section 32:
This section comes into operation when any statement of a person who is either dead or cannot be
found, or incapable to give evidence, or whose attendance is not possible without delay or expenses.
Before any previous statement of any one of such persons can be admitted under section 32, at least
one condition mentioned in clauses 1 to 8 must be fulfilled. In such circumstances the court may
admit the statement of other persons “who are in the court to testify the previous statements of one
of those above-mentioned persons.
When a previous evidence given by a witness is intended to be proved, the facts must be proved strictly.
In civil case the party can waive the proof, but in criminal cases strict proof must be given that the
witness is incapable of giving evidence. In the present days the dying declaration has assumed much
importance. But, the question as to how much weight can be attached to a dying declaration is a
question of fact.
Before admitting evidence under section 32 the court must be satisfied the reasons mentioned in
clauses (i) to (iv). If the person is dead, then the death must be proved. If the person making a
statement survives, then the statement cannot be used as a dying declaration. If a person is not
found after making certain statement, the court must be satisfied that all efforts of searching were made
and exhausted. Similarly, a witness after making statements became physically unfit and totally invalid
to depose before the court.
If that happens the court has to be satisfied by producing true evidence as to his permanent
incapacity. Sometimes it may happen that the witness is living in a foreign country and his
appearance before the court cannot be possible without unreasonable delay or expense. In these
circumstances relevant documents must be produced to satisfy the court that his abode in foreign
country is permanent. It may also happen that certain original document is in possessionof a person who
is in abroad, the production of such document cannot be possible without delay or expenses. In such
situations Section 32 is also applicable.
The general principle on which dying declarations are admitted is that they are declarations made in
extreme conditions, when the party is at the point of death, and when every hope of this world is
gone, when every motive to speak falsehood is silenced, and the mind is induced by the most
powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the
law as creating an obligation equal to that which is imposed by a positive oath administered in a
Court of justice.
Section 40 to Section 44 of the Indian Evidence Act, 1872 lay down the provisions relating to
judgements of Court of Justice, when relevant. Section 40 deals with the previous judgements to bar a
suit or trial. Section 41 deals with the relevancy of certain judgements in probate etc. jurisdiction.
Section 42 deals with relevancy and effect of judgements orders or decrees other than those
mentioned in Section 41. Section 43 relates to judgements etc. Other than those. Mentioned in
Sections 40 to 42, when relevant. Section 44 speaks about fraud or collusion in obtaining judgement
or incompetence of Court, may be proved.
The object of the provision of this chapter is to avoid multiplicity of the suit and to save precious
time of the Court. There should be end of litigation in the interest of justice S.11 of
C.P.C deals with Doctrine of res Judicata which signifies that when a matter of fact has been finally
and conclusively resolved by a competent court. the same matter cannot be re-litigatedonce again.
Kinds of Judgements
Judgements are classified into two types –
i) Judgement in Rem; and
i) Judgement in Rem:
Judgements affecting the legal status of some subject matters, persons or things are called
'Judgments in rem’. e.g. Divorce Court Judgement, grant of probate or administration etc. Such
judgements are conclusive evidence against all the persons whether parties to it or not.
ii) Judgement in Personam:
Judgements in personam are all the ordinary judgements not affecting the status of any subject matter,
any person or anything. In such judgements, the rights of the parties to the suit or proceedings are
determined.
Under section 40 to 44, a Judgement is not relevant to prove that the plaintiff has filed a false case.
(hassan Abdullah vs. State of Gujarat, AIR 1962 Guj214: 1962(2) Cr.LJ 55)
Distinction Between Judgement in Rem and Judgement in Personam
Illustrations:
A sues B for trespass on his land, B alleges the existence of a public right of way over the
land, which A denies.
The existence of a decree in favour of the defendant, in a suit by A against C or a
trespass on the same land, in which C alleged the existence of the same right of way, is
relevant, but it isnot conclusive proof that the right of ways exists.
D) Judgements etc other than those mentioned in Sections 40 to 42, when relevant
(Section 43)
Section 43 Provides, that Judgments, orders or decrees other than those mentioned in
Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or
decree is a fact inissue, or is relevant, under some other provision of this Act.
Illustrations:
a) A and B separately sue C for a libel which reflects upon each of them C in each case
says that the matter alleged to libellous is true and the circumstances are such that it is
probable true in each case, or in neither.
A obtains a decree against C for damages on the ground that C filed The Orient Tavern
makeout his justification. The fact is irrelevant as between B and C.
b) A prosecutes B for adultery with C, A’s wife.
A, afterwards, sues C for cow, Which B had sold to him before his conviction. As
between A and C, the judgment against B is irrelevant.
d) A has obtained a decree for the possession of land against A, C, B’s son murders A in
consequence.
The existence of the judgment is relevant, as showing motive for a crime.
e) A is charged with theft and with having been previously convicted of theft. The
previous conviction is relevant as a fact in issue.
f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was
convicted and sentenced is relevant under Section 8 as showing the motive for the fact in
issue.
The purpose of this Section is to prohibit the judgements from being given in evidence
which are neither enter parts nor a judgement in rem nor a judgement relating to matters
of public nature. Section 43 provides that judgement, orders or decrees other than those
mentioned in Section 40, 41 and 42 are irrelevant and cannot be proved unless the
existence of Such judgement, order or decree is a fact in issue is relevant under some
other provision of the act.