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Published by Enhelion, 2020-07-05 02:15:42

MODULE 8

MODULE 8

MODULE 8: INDIAN EVIDENCE ACT, 1872 [SEC. 61-114]
Documentary Evidence [section 61-90]
Proof of contents of documents: Section 61
The contents of documents may be proved either by-
i) Primary evidence, or
ii) Secondary evidence
Section 3 gives the definition of documentary evidence - "Documentary
evidence means all documents produced for the inspection of the Court.
Documents are of two kinds-

(i) public (ii) Private.
Section 74 gives the list of public documents. All other documents are
regarded as private documents. The production of documents in Courts is
regulated by the Civil Procedure Code and the Code of Criminal Procedure.
Primary Evidence: Section 62
This Section defines the meaning of primary evidence which means, the
document itself is for the inspection by the Court. Where a document is
executed in several parts, each part is primary evidence of the document.
Where a document is executed in counter-part, each counterpart is primary
evidence, as against the party executing it. Where a number of documents are
made by printing, lithography, or photography, each is primary evidence of
the contents of the rest. Where they are copies of the common original, they
are not primary evidence of the contents of the original.
Kamala Rajamanikhan v. Sushila Thakur Das, AIR 1983 All.
Two wills in identical language were prepared by the process of typing, in
which the second copy was obtained by carbon impression. Both were duly
executed and attested. Both were held to be original and not one a copy of
the other. The fact that the testator inserted a remark on one of them "true
copy" would not alter their character.

Secondary Evidence: Section 63
Secondary evidence means and includes-
(1) Certified copies given under the provision as hereinafter contained,
(2) Copies made from the original by mechanical processes which in

themselves insure the accuracy of the copy, and copies compared with
such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute
them;
(5) Oral account of the contents of a document by some person who has
himself seen it. Illustration
1) A photograph of an original is secondary evidence of its contents, though
the two have not been compared, if it is proved that the thing photographed
was the original.
Proof of documents by primary evidence: Section 64
i) Documents must be proved by primary evidence
ii) Secondary evidence can be given under the circumstances described
under Section 65.
A written document can only be proved by the instrument itself where the
contents of any document are in question, either as a fact directly in issue or
a sub-alternate principal fact, the document is the proper evidence of its own
contents. But, where a written instrument or document of any description is
not a fact in issue, and is merely used as evidence to prove some fact,
independent proof is receivable, for example, where the contents of a
marriage register are in issue, verbal or other evidence of those contents is
not receivable, the fact of marriage may be proved by the independent
evidence of a person who was present at it.

Cases in which secondary evidence relating to documents may be given:
Section 65
This Section enumerates the seven exceptions in which secondary evidence
is admissible. It is applicable in civil as well as in Criminal cases. It is
incumbent on the person who tenders secondary evidence to show that it is
admissible. The question of admissibility is ordinarily for the Court of first
instance to decide.
Oriental Fire & General Ins. Co. v. Chandrawali, AIR 1989 P & H
Document means a document admissible in evidence. If a document is
inadmissible in consequence of not being registered or not being properly
stamped, secondary evidence cannot be given of its existence.
Dropadi v. Mahagraha Bhagwat Singh, AIR 1995 Raj.
The defendant-petitioner sought to produce secondary evidence in respect of
certain documents without showing his entitlement to produce it, the trial
Court committed no irregularity in rejecting his application.
Rules as to notice to produce: section 66
i) Secondary evidence of the contents of the documents referred to in Section
65, Clause (a) shall not be given;
ii)Unless the party has given notice to the opposite party to produce it as is
prescribed by law;
iii) But the notice is not necessary in the following cases:
a) When the document to be proved is itself a notice;
b) When, from the nature of the case, the adverse party must know that he

will be required to produce it;
c) When the adverse party has obtained possession of the original by fraud

or force;
d) When the adverse party, or his agent, has the original in Court;

e) When the adverse party, or his agent, has admitted the loss of the
document;

f) When the person in possession of the document is out of reach of, or not
subject to the process of the Court.

This Section lays down that a notice must be given before secondary
evidence can be received under section 65(a). Notice to produce a document
must be in writing according to Order XI Rule 15 of CPC, which prescribes
the kind of notice to produce a document. The procedure for the production
of documents in criminal cases is laid down in Sections 94-98 of the
Criminal Procedure Code. Section 175 of the Indian Penal Code punishes the
person who omits to produce a document required by a public servant.
PROOF OF SIGNATURE AND HANDWRITING OF PERSON
ALLEGED TO HAVE SIGNED OR WRITTEN DOCUMENT
PRODUCED: SECTION 67
This Section merely requires proof of signature and handwriting of the
person alleged to have signed or written the document produced. Mere
admission of execution of a document is not sufficient. Proof that the
signature of the executant is in his handwriting is necessary.
The Evidence act permits secondary evidence to be given with regard to the
attestation of an attesting witness who is either dead or cannot be brought to
Court. The signature of the attesting witness, when proved in evidence, is
proof of everything on the face of the document and that he saw the
executant make his mark.

PROOF OF EXECUTION OF DOCUMENT REQUIRED BY LAW TO
BE ATTESTED: SECTION 68
This Section applies to cases where an instrument required by law do be
attested bears the necessary attestation. What this Section prohibits, is a proof

of execution of a document otherwise than by the evidence of an attesting
witness, if available.
This Section applies only where the execution of a document has to be
proved or when the allegation is that the executant was not in a fit state of
mind to know the real nature of the document.
PROOF WHERE NO ATTESTING WITNESS FOUND: SECTION 69
An attesting witness, if available, should be called in evidence. If the
attesting witness is dead, or is living out of the jurisdiction of the Court or
cannot be found after diligent search, or if the document purports to have
been executed in the United Kingdom of Great Britain and Ireland, two
things must be proved:
i) the signature of one attesting witness, and
ii) the signature of the executant.
Uttam Singh v. Hukam Singh, (1961) All.
The executant of, and all the marginal witnesses to, a mortgage deed were
dead, it was held that the mortgage deed was sufficiently proved by evidence,
that the signature of the mortgagor was in his handwriting and that the
signatures of two of the marginal witnesses were in their handwriting.
ADMISSION OF EXECUTION BY PARTY TO ATTESTED
DOCUMENT: SECTION 70
The admission of a party to an attested document of its execution by himself
shall be sufficient proof of its execution as against him, though it be a
document required by law to be attested.
1) the admission of a party to an attested document
ii) that it was duly executed by himself
iii) it is a sufficient proof of its execution as against him.

PROOF WHEN ATTESTING WITNESS DENIES THE EXECUTION:
SECTION 71
i) If the attesting witness
a) denies or
b) does not recollect the execution of the document
ii) the execution may be proved by other evidence i.e., it may be proved

under Sections 69 and 70.
PUBLIC DOCUMENTS PUBLIC DOCUMENTS: SECTION 74
The public documents are -
i) documents forming the acts or records of the acts
a) of the sovereign authority,
b) of official bodies and tribunals, and
c) of public officers, legislative, judicial and executive of any part of India or

of the Commonwealth, or of a foreign country.
ii) Public records kept in any state of private documents.
Documents are divided into two categories-
i) Public and
ii) Private
This Section states what comes in the category of public documents. Section
75 states that all other documents are private documents.
PRIVATE DOCUMENT: SECTION 75
All other documents are private.
Documents which are not public documents are private documents, e.g.,
contracts, leases, mortgage deeds, etc.

CHAPTER - VII

OF THE BURDEN OF PROOF [SECTION 101-114]

BURDEN OF PROOF: SECTION 101

i) Whenever any person desires that the Court should give decision in his

favour

ii) He has to prove those facts on which his case depends

iii) Burden of proof lies on the person who has to prove the existence of

any fact.

The burden of proof lies on the party who substantially asserts the

affirmative of the issue and not upon the party who denies it. The rule of

convenience has been adopted in practice, not because it is impossible to

prove a negative, but because the negative does not admit of the direct and

simple proof of which the affirmative is capable.

In the application of this rule, regard must be had to the substance and effect

of the issue and not to its grammatical form, for in many cases the party, by

making a slight alteration in the drawing of his pleadings, may give the issue

a negative or affirmative form, at his pleasure.

ON WHOM BURDEN OF PROOF LIES: SECTION 102

i) In a (a) suit or (b) proceeding,

ii) burden of Proof lies on that party-

iii) who will lose

iv) if neither party produces any evidence.

This section lays down a test for ascertaining on which side the burden of

proof lies. The section makes it clear that the initial onus is on the plaintiff. If

he discharges that onus and makes out a case which entitles him to relief, the

onus shifts on to the defendant to prove those circumstances, if any which

would disentitle the essential distinction between burden of proof and onus of

proof. Burden of proof lies upon the person who has to prove a fact and it

never shifts, but the onus of proof shifts. Such a shifting onus is a continuous
process in the valuation of evidence.
BURDEN OF PROOF AS TO PARTICULAR FACT: SECTION 103
1) When it is not provided by law that the burden of proving a particular fact
shall lie on any particular person-
i) The burden of proof lies on that party
a) Who desires that the Court must believe in its existence
b) Who desires that the Court must decide the case in his favour
ii)Section 103 relates to onus of proof of proving only a particular fact.
This section amplifies the general rule laid down in Section 101. It differs
from Section 101.
By Section 101, the party has to prove the whole of the facts which he
alleges to entitle him to judgment when the burden of proof is on him. This
Section provides for the proof of one particular fact. The illustration
sufficiently points out the meaning. All the facts in a criminal case must be
proved by the prosecution. If the accused wishes to prove a particular fact,
his alibi for instance, he must prove it.
BURDEN OF PROVING FACT TO BE PROVED TO MAKE
EVIDENCE ADMISSIBLE: SECTION 104
i) Whenever it is necessary to prove any fact,
a) in order to render evidence of any other fact admissible
b) for instance, it is necessary to prove death, in order to make dying

declaration admissible.
ii) The burden of proving that fact (i.e. death etc.) is on the person who

want to give such evidence.
BURDEN OF PROVING THAT CASE OF ACCUSED COMES
WITHIN EXCEPTIONS: SECTION 105
i) Any person is accused of any offence.

ii) The burden of proof that he has committed alleged offence is on the
prosecution

iii) Unless and until the alleged offence is proved beyond reasonable
doubt, the accused will be presumed to be innocent.

iv) When the alleged offence is proved beyond reasonable doubt, the Court
shall presume that the accused is guilty of the alleged offence.

v)The burden of proving that the alleged act of accused comes into
exception is on the accused, i.e.:

a) The existence of circumstances bringing the case within any of the General
Exceptions the Indian Penal Code,

b) Proviso contained in any other part of the Indian Penal Code, or
c) Exceptions or proviso contained in any other law defining the offence.
In criminal cases, the burden of proof, using the phrase in its strictest sense,
is always upon the prosecution and never shifts, whatever the evidence may
be during the progress of the case. When sufficient proof of the commission
of a crime has been adduced and the accused has been connected therewith as
the guilty party, then the burden of proof, in another and quite different
sense, namely in the sense of introducing evidence in rebuttal of the case for
the prosecution is laid upon him. The onus of establishing an exception shifts
to the accused when he pleads on exception.
BURDEN OF PROVING FACT ESPECIALLY WITHIN
KNOWLEDGE: SECTION 106
1) When the knowledge of the subject matter of an allegation is peculiarly

within the province of one party to a suit.
2) The burden of proof lies on that party.

BURDEN OF PROVING DEATH OF PERSON KNOWN TO HAVE
BEEN ALIVE WITHIN THIRTY YEARS: SECTION 107
i) The law will presume that a person is alive when it is shown that he was
alive within thirty years.
ii)The burden of proving that he is dead is on the person who says that he is
not alive.
This section should be read with Section 108 of Indian Evidence Act, 1872.
This section provides that if it appears that a person, whose presence or
existence is in question, was alive within thirty years, and nothing whatever
appears to suggest the probability of his being dead, the Court is bound to
regard that fact of his still being alive as proved. But as soon as anything
appears which suggests the probability of his being dead, the presumption
disappear and the question has to be determined on the balance of proof.
BURDEN OF PROVING THAT A PERSON IS ALIVE WHO HAS
NOT BEEN HEARD OF FOR SEVEN YEARS: SECTION 108
Provided that when the question is whether a man is alive or dead, and it is
proved that he has not been heard of for seven years by those who would
naturally have heard of him if he had been alive, the burden of proving that
he is alive is shifted to the person who affirms it.
BURDEN OF PROOF AS TO RELATIONSHIP IN THE CASE OF
PARTNERS, LANDLORD AND TENANT, PRINCIPAL AND AGENT:
SECTION 109
When the existence of a personal relationship, or a state of things, is once
established by proof, the law presumes that the relationship, or a state of
things continues to exist as before, till the contrary is shown or till a different
presumption is raised, from the nature of the subject in question. A
partnership, tenancy, or agency, once shown to exist, is presumed to
continue, till it is proved to have been dissolved.

Section 45, Indian Partnership Act, 1932 states that after a firm is dissolved,
the partners continue to be liable to third parties for any act done which
would have been an act of the firm if done before the dissolution, until public
notice of dissolution is given.
PROOF OF GOOD FAITH IN TRANSACTION WHERE ONE PARTY
IS IN RELATION OF ACTIVE CONFIDENCE: SECTION 111
i) Where a fiduciary or quasi - fiduciary relationship exists
ii) One of whom stands to the other in a position of active confidence.
iii) The burden of proving good faith of the transaction is on the party who

is in a position of active confidence
The principle of the rule embodied in this section which was called, "the
great rule of the Court" is- he who bargains in a matter of advantage with a
person placing confidence in him, is bound to show that a reasonable use has
been made of that confidence, a rule applying to trustees attorneys, or anyone
else.
BIRTH DURING MARRIAGE CONCLUSIVE PROOF OF
LEGITIMACY: SECTION 112
Under this section the fact that any person was born
i) during the continuance of a valid marriage between
a) his mother and
b) any man, or
ii) a) within two hundred and eighty days after its dissolution and
b) the mother remained unmarried shall be conclusive proof that he is the
legitimate son of that man.
iii) This presumption can be rebutted by showing and proving that the

parties had no access to each other at any time when he could have been
begotten.

iv) Evidence that a child is born during wedlock is sufficient to establish
its legitimacy, and shifts the burden of proof to the party, seeking to
establish the contrary.

This Section is based on the principle that when a particular relationship,
such as marriage, is shown to exist, then its continuance must prima facie be
presumed.
PROOF OF CESSION OF TERRITORY: SECTION 113
This Section was enacted to exclude inquiry by Court of justice into the
validity of the acts of the Government so far as cession of territory to any
Indian State was concerned.
Damodhar Gordhan v. Deoram Kanji, 1876 IA
The Privy Council held that Section 113 of the Indian Evidence Act, 1872 is
a dead-letter and ultra vires.
Govindrao v. State of U.P., AIR 1982 SC
The Supreme Court held that this Section is obsolete.
COURT MAYPRESUME EXISTENCE OF CERTAIN
FACTS: SECTION 114
The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to the facts
of the particular case.
Illustrations
The Court may presume-
a) That a man who is in possession of stolen goods soon after the theft is either
the thief or has received the goods knowing them to be stolen, unless he can
account for his possession.
b) That an accomplice is unworthy of credit, unless he is corroborated in
material particulars:

c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for
good consideration.


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