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Published by Enhelion, 2020-01-15 02:16:23

Module 21

Module 21

MODULE 21:

INDIAN EVIDENCE ACT, 1872 [CHAPTER VIII TO XI]

CHAPTER VIII: ESTOPPEL (SECTION 115-117)

SECTION 115

When one person has, by his declaration, act or omission, intentionally caused or permitted
another person to believe a thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between himself and such person or
his representative to deny the truth of that thing.

illustration

A intentionally and falsely lead B to believe that certain land belongs to A, and thereby
induces B to buy and pay for it.

The land afterwards becomes the property of A and A seeks to set aside the sale on the
ground the at the time of sale, he had no title. He must not be allowed to prove his want of
title.

To invoke the doctrine of estoppel three conditions must be satisfied-

1) Represenation by a person to another,

2) The other shall have acted upon the said representation, and

3) Such action shall have been detrimental to the interests of the person to whom the
representation has been made.

All the above-mentioned conditions must be satisfied.

ESTOPPEL OF TENANT AND OF LICENSEE OF PERSON IN
POSSESSION: SECTION 116

A tenant of immovable property of person claiming through such tenant cannot during the
continuance of the tenancy deny that the landlord had, at the beginning of the tenancy a tie, to
such property.

A person, who came upon immovable property by the license of the person in possession
cannot deny that the person so in possession had a title at the time when such license was
given.

ESTOPPEL OF ACCEPTOR OF BILL OF EXCHANGE, BAILEE OR
LICENSEE: SECTION 117

An acceptor of a bill of exchange cannot deny that the drawer had authority to draw or
endorse.
But the acceptor of a bill of exchange may deny that the bill was really drawn by the person
by whom it purports to have been drawn.
A bailee or licensee cannot deny that his bailor or licensor had, when the baitment or license
commenced, authority to make such bailment or grant such license. But if a badee delivers
the goods bailed to a person other than the bailor, he may prove that such person had a right
to them as against the bailor if he is sued by the bailor.
This Section deals with further instances of estoppel by agreement.

CHAPTER IX: OF WITNESSES (SECTIONS 118-134)

WHO MAY TESTIFY: SECTION 118

Under Section 118, all persons are competent to testify unless they are, in the opinion of the
court (a) unable to understand the questions put to them or (b) to give rational answers to
those questions owing to:
a) Tender years
b) Extreme old age
c) Disease of mind or body
d) Any other such cause
Even a lunatic, if he is capable of understanding the questions put to him and giving rational
answers, is a competent witness.
This Section merely enumerates the English rule with regard to the competency of parties as
witnesses. It does not matter whether they are admissible or not.

The competency of witness: The competency of a witness to testify as a witness is a condition
precedent to the administration to him of an oath or affirmation, and is a question distinct
from that of his credibility when he has been Sworn or has been affirmed.

DUMB WITNESSES: SECTION 119

A witness who is unable to speak may give his evidence in any other manner in which he can
make it intelligible, as by writing or by signs; but such writing must be written and the signs
made in open court. Evidence so given shall be deemed to be oral evidence.
In respect of a deaf-mute witness, the court will ascertain before he is examined that he
possesses the requisite amount of intelligence, and that he understands the nature of an oath A
deaf-mute's evidence may be taken (a) by written questions to which he may reply in writing
or (b) by means of signs.

PARTIES TO CIVIL SUIT AND THEIR WIVES OR HUSBANDS;
HUSBAND OR WIFE OF PERSON UNDER CRIMINAL TRIAL:
SECTION 120

In all civil proceedings, the parties to the suit, and the husband or wife of any party to the suit,
shall be competent witnesses.
In criminal proceedings against any person, the husband or wife of such person respectively,
shall be a competent witness.
In a civil proceeding, parties to the suit are competent witnesses. Husbands and wives are
competent witnesses for or against each other in civil as well as criminal proceedings.

JUDGES AND MAGISTRATES: SECTION 121

No Judge or Magistrate shall, except upon the special order of some court to which he is
subordinate, be compelled to answer any questions as to his own conduct in court as such
Judge or Magistrate, or as to anything which came to his knowledge in court as such Judge or
Magistrate; but he may be examined as to other matters which occurred in his presence whilst
he was so acting.

COMMUNICATIONS DURING MARRIAGE: SECTION 122

No person who is or has been married shall be compelled to disclose any communication
made to him during marriage by any person to whom he is or has been married; nor shall he
be permitted to disclose any such communication, unless the person who made it, or his
representative in interest consents, except in suits between married persons, or proceedings in
which one married person is prosecuted for any crime committed against the other.

- The protection is not confined to cases where the communication sought to be given in
evidence is of a strictly confidential character, but the seal of the law is placed upon all
communications of whatever nature which pass between husband and wife.

- Under this Section, a married person shall not be

1) Compelled to disclose any communication made to him during marriage by any person to
whom he is married, and

ii) Permitted to disclose any such communication except

a) When the person who made it or his representative in interest consents, or

b) In suits between married persons, or

c) In proceedings in which one married person is prosecuted for any crime committed against
the other.

EVIDENCE AS TO AFFAIRS OF STATE: SECTION 123

This Section involves two things:

i) That the document is an unpublished official record relating to any affairs of State, and

That the officer at the head of the department concerned may give or withhold the permission
for giving the evidence derived therefrom on the ground of public policy. Evidence derived
from unpublished official records of State cannot be given, except with the permission of the
head department concerned. The court is bound to accept without question the decision of the
public officers.

OFFICIAL COMMUNICATIONS: SECTION 124

No public officer shall be compelled to disclose communications made to him in official
confidence, when he considers that the public interests would suffer by the disclosure

This Section is designed to prevent the knowledge of official papers that is to say papers in
official custody beyond the circle which would obtain knowledge of them in confidence
whether the confidence was express or implied. It would normally include all officers

including clerks of superior officers and might also apply to non-officials to whom such
papers were disclosed on the understanding, express or implied that the knowledge should go
no further.

INFORMATION AS TO COMMISSION OROFFENCES: SECTION 125

No Magistrate or police officer shall be compelled to say whence he got any information as to
the commission of any, offence and no Revenue Officer shall be compelled to say whence he
got any information as to the commission of any offence against the public revenue.
Explanation: "Revenue-Officer in this Section means any officer employed in or about the
business of any branch of the public revenue.

PROFESSIONAL COMMUNICATIONS: SECTION 126

No Barrister, attorney pleader or Vakil shall at any time be permitted to
i) Disclose (a) any communication made to him by or on behalf of his client or (b) any advice
given by him to his client, in the course and for the purpose of his employment;
ii) To state the contents or conditions of any document with which he has become acquainted
in the course and for the purpose of his employment.
The privilege also extends to documents prepared in connection with the client's claim for the
dominant purpose of preparing for litigation.
This Section does not protect from disclosure -
a) Any communication made in furtherance of any illegal purpose:
b) Any fact observed in the course of employment showing that any crime or fraud has been
committed since the commencement of the employment.

SECTION. 126 TO APPLY TO INTERPRETERS ETC.: SECTION 127

The provisions of Section 126 shall apply to interpreters and the clerks or servants of
barristers pleaders, attorneys and vakils.
This provision extends the privilege given by Section 126 to interpreters, clerks or servants of
lawyers.

PRIVILEGE NOT WAIVED BY VOLUNTEERING EVIDENCE:
SECTION 128

The privilege belongs to the client and therefore, he alone can waive it. The privilege is not
lost by calling the legal adviser as a witness, unless the party having the privilege questions
him relating to confidential matters.

CONFIDENTIAL COMMUNICATION WITH LEGAL ADVISORS:
SECTION 129

No one shall be compelled to disclose to the court any confidential communication which has
taken place between him and his legal professional advisor, unless he offers himself as a
witness, in which case he may be compelled to disclose any such communication as may
appear to the court necessary to be known in order to explain any evidence which he may
give, but no others.

Sections 126, 127 and 128 prevent a legal advisor or his clerk, Servant etc. from disclosing
professional communications. This Section applies where the client is interrogated, whether
he be a party to the suit or not. Documents prepared for litigation or for the purpose of legal
advice are privileged even if they are copies of documents which may not be privileged. In
the plaintiff's claim against the defendant in respect of an accident, his solicitors obtained
copies of hospital records concerned with the plaintiff's treatment. The Court of Appeal held
that these copies were privileged notwithstanding that the originals could be obtained by the
defendant from the hospital by means of a court order. This is a part of the privilege that the
advice given by a lawyer to his client is not disclosable the reason being that by revealing the
lawyer's copies, the lawyer's advice or strategy would emerge. Copies made by a lawyer are
the fruits of his experience; in so far as skill is involved il was part of his professional skill in
assisting his client to go to the hospital and get copies. [Watson vs. Cammell Laird & Co. Ltd.
(1959) 2 AN ER]

PRODUCTION OF TITLE-DEEDS OF WITNESS, NOT A PARTY:
SECTION 130

This Section protects a witness, who is not a party to the suit in which he is called from
producing --

a) Title deed to any property

b) Any document in virtue of which he holds any property as pledgee or mortgagee or

c) Any document the production o! which might tend to criminate him, unless he has agreed
in writing for production of such document,

It would be entirely optional for the witness to pre uce his title-deeds and to raise any
objection whatever.

PRODUCTION OF DOCUMENTS WHICH ANOTHER PERSON,
HAVING POSSESSION, COULD REFUSE TO PRODUCE: SECTION
131

Persons in possession of documents on behalf of others are generally agents, attorneys,
mortgagees, trustees etc. This Section extends to these persons the same protection which the
preceding Section provides for a witness who is not a party to a suit.

WITNESS NOT EXCUSED ANSWERING ON GROUND THAT
ANSWER WILL CRIMINATE: SECTION 132

A witness cannot be excused from answering any relevant question upon the ground that the
answer will tend

i) to criminate him, or

il) to expose him to a penalty or forfeiture. But such answer cannot

a) subject him to arrest or prosecution, or

b) be proved against him in any or criminal proceedings except in a prosecution for giving
false evidence.

ACCOMPLICE: SECTION 133.

The evidence of an accomplice, though it is uncorroborated, may from the basis for a
conviction.

This Section is the only absolute rule of law as regards the evidence of an accomplice. But
Illustration (b) to Section 114 is a rule of guidance to which also the court should have regard.
It is not a hard-fast presumption incapable of rebuttal, a presumption juris et de jure. The
combined effect of this Section and Section 114, illustration (D), is that though the conviction
of an accused on the basis of testimony of an accomplice cannot be said to be illegal, yet the
courts will as a matter of practice, not accept the evidence of such witness without

corroboration in material particulars R.K. Dalmia vs. Delhi Administration, AIR 1962 SC
1821)

NUMBER OF WITNESSES: SECTION 134

No particular number of witnesses shall in any case be required for the proof of any fact.
Yashpal Sawhney vs. Gandotra Traders, AIR 1995 J&K
The J & K High Court laid down the rule that the number of witnesses depends upon the
following points:
i) Nature of litigation;
ii) Number of issues required to be proved;
iii) Nature of issues;
iv) The fact as to on whom the onus has been laid;
v) The specific purpose for which a particular witness is required to be produced. The party
seeking to produce a witness is also required to specify the purpose for which the witness is
proposed to be produced.

CHAPTER X: OF THE EXAMINATION OF WITNESSES [SECTIONS
135-166]
ORDER OF PRODUCTION AND EXAMINATION OF WITNESS:
SECTION 135

The order of production and examination of witnesses is regulated by the civil and criminal
procedure codes or by the direction of the court in practice, it is loft largely to the option of
the party calling witnesses to examine them in any order he chooses

JUDGE TO DECIDE AS TO ADMISSIBILITY OF EVIDENCE:
SECTION 136

The Judge may ask how a particular fact is relevant and admit the evidence if he thinks the
fact would be relevant. If the relevancy of a fact depends on proof of some other fact, such
latter fact must be proved first unless the party undertakes to proverit subsequently and the
court is satisfied with such undertaking.

This Section embodies main cardinal rules as to admissibility of evidence,

Though proper time for objecting to the admissibility of a document is when it is tendered,
mere omission to do so object does not constitute an inadmissible documentary evidence.
Party seeking to put a documentin evidence, must show under which Section it is admissible,
Improper admission or reaction of evidence will not by itself form ground for a new trial or
reversal of a decision if in view of the other evidence in the case, the decision would be the
same even if there had been no such improper admission or rejection (Dwyesh Chandra Ray
Chaudhari v. Naresh Chandra Gupta 1946) 1 Calcutta]

EXAMINATION

1. Examination-in-Chief: Section 137

The examination of a witness by the party who calls him shail be called his Examination-in-
Chief.

2. Cross-Examination

The examination of a witness by the adverse party shall be called his cross-examination.

3. Re-Examination

The examination of a witness, subsequent to the cross-examination by the party who called
him, shall be called his re-examination.

ORDER OF EXAMINATION: SECTION 138

Witnesses are examined-in-chief, then cross-examined, and then re-examined. The
examination and cross-examination must relate to relevant facts, but the cross-examination
need not be confined to the facts to which the witness lestified on his examination-in-chief.

The re-examination must be directed to the explanation of matters referred to in cross-
examination.

If a new matter is introduced in re-examination, the adverse party may further cross-examine
upon that matter only:

CROSS-EXAMINATION OF PERSON CALLED TO PRODUCE A
DOCUMENT: SECTION 139

A person summoned to produce a document does not becomes witness and cannot be cross-
examined unless he is called as a witness

Parmeshwari Devi w. Slate, AIR 1977 SC
A witness summoned merely to produce a document does not became a witness for purposes
of Cross-examination me he may her attend the court personally or may depute any person to
produce the document in court (O XVI. R. 6CPO and Section of CCPC). If he intentionally
omits to produce the document, he commits the offence punishable under Section 175 of IPC
or Section 345 of the Criminal Procedure Code, 1973
In the above mentioned the wife of a partner was called upon to produce the deed of
dissolution of the film she was not permitted to be examined as a witness

WITNESSES TO CHARACTER: SECTION 140

Wines to character may be cross-examined and re-examined
The use of character evidence is to assist the court in estimating the value of the evidence
brought against the accused.

LEADING QUESTIONS: SECTION 141

Any question suggesting the answer which the person putting it wishes or expects to receives
called lending question
A leading question is one which suggests to the witness the answer which it is desired he
should give. A leading question cannot ordinarily be asked in examination in-chief and re-
examination.

WHEN THEY MUST NOT BE ASKED: SECTION 142

A leading question must not, if objected to by the adverse party, be asked in an examination-
in- Chef, or in a re-examination, except with the permission of the court.
The court shall permit leading question as to matters which are introductory or undisputed, or
which have, in its opinion, been already sufficiently proved.

WHEN THEY MAY BE ASKED: SECTION 143

Leading questions may be asked in cross-examination

EVIDENCE AS TO MATTERS IN WRITING: SECTION 144

Section 144 enables the parties to put in force the provisions of Sections 91 and 92. Any
Witness may be asked whether on to contact (b) grantor (o) other dispostion of property as to
which is giving Vince, was not in writing and he says that it was the diverse party may object
to such evince being given until the document is produced or facts proved for the admission
of secondary evidence
The same principle applies in a witness about to make any statement as to the contents of a
document, which in the opinion of the court ought to be produced.

CROSS-EXAMINATION AS TO PREVIOUS STATEMENTS IN
WRITING: SECTION 145

A witness may be cross examined as to previous statements made by him or reduced into
writing and relevant to the matter in Question without such writing being shown to him or
being proved, but it is intended to contradict him by the writing, his attention must before the
writing can be proved, be called to those parts of it which are to be used for the purpose of
contradicting.
This Section indicates one of the modes in which the credit of a witness may be impeached.

QUESTIONS LAWFUL IN CROSS-EXAMINATION: SECTION 146

When any witness is cross-examined, he may in addition to the question hereinafter referred
to, be asked any questions which tend-
i) To test his veracity
i) To discover who he is and what is his position in life, or
iii) To shake his credit by injuring his character, although the answer to such questions might
tend directly or indirectly to criminate his or might expose or tend directly or indirectly to
expose him to a penalty or forfeiture

Sections 146 to 152 deal with questions which can be asked to a witness with a view to shake
his credit by damaging his character. These sections along with Section 132 embrace the
entire range of questions which can possibly be put to a witness.

WHEN WITNESS TO BE COMPELLED TO ANSWER: SECTION 147

This section should be read with cause (3) of Section 146. It refers to matters relevant to the
suit or proceeding clause (3) of Section 145 states that a witness can be asked a question
which might tend directly or indirectly to criminate him. This Section provides power to the
Judge to compel the witness to answer the question notwithstanding the question will
incriminate him. The basic condition is that the question must be relevant

QUESTION NOT TO ASKED WITHOUT REASONABLE GROUNDS:
SECTION 149

No such question as is referred in Section 148 ought to be asked, unless the person asking it
has reasonable grounds for thinking that the imputation which it conveys in well-founded.
The cross-examiner must have reasonable grounds to believe that the imputation made
against the witness is well-founded

PROCEDURE OF COURT IN CASE OF QUESTIONS ARE BEING
ASKED WITHOUT REASONABLE GROUNDS: SECTION 150

If the court thinks that any question was asked without reasonable grounds, it may, if it was
asked by any barrister, attorney, pleader, or Vakil report his conduct to the High Court or
other authority to which he is subordinate.

INDECENT AND SCANDALOUS QUESTIONS: SECTION 151

The court may forbid any questions or inquiries which it regards as indecent or scandalous,
although such questions or inquires may have some bearing on the questions before the court
unless they relates to fact in issue, or to matter necessary to be known in order to determine
whether or not the fact in issue existed.
This section forbids the putting of any question which is indecent or scandalous, unless it
relates to facts is issue or in necessarily connected with them.

QUESTION INTENDED TO INSULT AND ANNOY: SECTION 152

The court shall forbid any question which appears to it to be intended to insult or annoy, or
which, though proper in itself, appears to the court needlessly offensive in form.
The court has to power to forbid any question which is intended to insult of annoy, or which
is couched in a needlessly offensive form.

EXCLUSION OF EVIDENCE TO CONTRADICT ANSWERS TO
QUESTIONS TESTING VERACITY: SECTION 153

When any witness answers any question which is relevant in so far as it shakes his credit, no
evidence can be given to contradict him but if he answers falsely he may be charged with
giving false evidence.

Exceptions Evidence may be given
1) a previous conviction, if the witness denies it, or

2) of facts tending to impeach his impartiality if he denies them.

QUESTIONS BY PARTY TO HIS OWN WITNESS: SECTION 154

The court may in its discretion, permit the persons who calls a witness to put any questions to
him which might be put in cross-examination by the adverse party.
Where a party calling a witness and examining him discovers that he is either hostile or
unwilling to answer questions put to him, he may obtain permission of the Court to put
questions to him which may be put lo him by way of cross-examination
A discretion is given to the Court to allow or not to allow a person to cross-examine his own
witness as hostile. The witness may be asked leading questions (Section 143), or questions as
to his previous statements in writing (Section 145); or any questions under Section 146, or his
credit may be impeached (Section 155).

QUESTION TENDING TO CORROBORATE EVIDENCE OF
RELEVANT FACT ADMISSIBLE: SECTION 156

When a witness whom it is intended to corroborate gives evidence of a relevant fact he may
be questioned as to the circumstances which he observed at or near the time or place at which
such relevant fact occurred.

The Legislature has indicated how and when a witness may be contradicted (Sections 145,
153 and 158). In the following circumstances a witness may be corroborated.

1. He may be asked question tending to corroborate evidence of a relevant fact (Section 156)

2. Former statements made by him may be proved to corroborate later testimony to the same
fact (Section 157)

3. When any statement relevant under Section 32 of Section 33 is proved, all matters may be
proved either to contradict or corroborated its Section 168]

FORMER STATEMENTS OF WITNESS MAY BE PROVED TO
CORROBORATE LATER TESTIMONY AS TO SAME FACT:
SECTION 157

Any former statement made by a witness relating to the same fact at or about the time when
the fact took place, or before any authority competent to investigate the fact, may be proved.

A witness's former statement relating to the same fact made at or about the time when the fact
took place may be proved in order to corroborate his present testimony.

Two essential conditions must be satisfied:

i) A witness should have given testimony with respect to some facts.

ii) He should have made a statement earlier with respect to the same fact at or about the time
when the fact took place or before any authority legally competent to investigate the fact.

WHAT MATTER MAY BE PROVED IN CONNECTION WITH
PROVED STATEMENT RELEVANT UNDER SECTION 32 OR 33:
SECTION 158

When a statement relevant under Section 32 or 33 is proved, evidence may be given

i) to contradict or corroborate it, or

ii) to impeach or to fit the credit of the person by whom it was made, as if he had been called
as a witness and had denied upon cross-examination the truth of the matter suggested

Section 32 and 33 of the act permit the putting in of statements, oral of written, or statements
made in a Judicial proceeding by a person who cannot be examined as a witness

NO Sanctity attaches to such statements simply because the person is dead or cannot be
examined as a witness, His credibility may be impeached or confirmed in the same manner as
in the case of loving witness

TESTIMONY TO FACTS STATED IN DOCUMENT MENTIONED IN
SECTION 159: SECTION 160

A witness may also testify to facts mentioned in any such document as is mentioned in
Section 159, although he had no specific recollection of the facts themselves, he is sure that
the facts were correctly recorded in the document.

State of A.P. v. Ganeshwara Rao, AIR 1963 SC
A witness testifying to large number of transactions contained in account books or in other
documents can be permitted to testify by referring to them,

RIGHT OF ADVERSE PARTY AS TO WRITING USED TO REFRESH
MEMORY: SECTION 161

Any document to refresh memory must be shown to the adverse party who may, if he pleases,
cross-examine the witness upon it.
This Section gives the opposite party a right of inspecting documents used in Court for the
purpose of refreshing the memory of a witness. He may look at the writing to see what kind
of writing it is, in order to check the use of improper documents.
Field J., has described three grounds upon which the opposite party is permitted to inspect a
writing used to refresh the memory
1) to secure the full benefit of the witness's is recollection as to the whole of the facts:
2) to check the use of improper documents:
3) to compare his oral testimony with his written statement

PRODUCTION OF DOCUMENTS: 162

A witness summoned to produce a document must, if it is in his possession, bring it to Court,
notwithstanding any objection which there may be lo its production and admissibility. The

validity of such objection will be decided by the Court. The Court may inspect the document
unless it refer to matters of state or take evidence to determine its admissibility.
This section refers to official as well as private documents

GIVING AS EVIDENCE, OF DOCUMENT CALLED FOR AND
PRODUCED ON NOTICE: SECTION 163

When a party gives notice to produce a document, and it is produced and inspected by the
party calling for its inspection, he is bound to give it as evidence if the party producing it
requires him to do so.

USING AS EVIDENCE OF DOCUMENT PRODUCTION OF WHICH
WAS REFUSED ON NOTICE SECTION 164

When a party refuses to produce a document which he had notice to produce, he cannot
afterwards use the document as evidence Without the consent of the other party or the order
of the Court.

JUDGES POWER TO PUT QUESTIONS OR ORDER PRODUCTION
SECTION 165

The Judge may, in order to ascertain relevant facts.
i) Ask any questions
a) at any time,
b) of any witness or parties,
c) about relevant or relevant facts-though the judgment must be based on relevant facts only.
ii) Order the production of any document or thing
The parties and object to this course, nor can they cross-examine a witness upon any answer
given in reply.

POWER OF JURY OR ASSESSORS TO PUT QUESTION: SECTION
166

A juror or assessor may put any question to a witness through or by leave of the Judge which
the Judge might put and which he considers proper

This Section has lost applicably since independence of our nation. After the independence in
1947, the

jury system has been removed from Sessions Courts, so this section has no applicability.


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