Module 19

MODULE 19: INDIAN EVIDENCE AC, 1872 [SEC. 32-60]

STATEMENT BY A PERSONS WHO CANNOT BE CALLED AS WITNESSES

Section 32-33

Cases In which Statement of Relevant Fact by person who is dead or cannot be found is relevant:
Section 32

A statement of relevant facts made by a person

a) who is dead;

b) who cannot be found;

c) who has become incapable of giving evidence;

d) whose attendance cannot be procured without unreasonable delay or expense, is relevant
under the following circumstances:

i) When it relates to the cause of his death.

ii) When it is made in the course of business, such as an entry in books, or acknowledgment of
the receipt of any property, or date of a document.

iii) When it is against the pecuniary or proprietary interest of the person making it or when it
would have exposed him to a criminal prosecution.

iv) When it gives opinion as to a public right or custom or matters of general interest and it was
made before any controversy as to such right or custom had arisen.

v) When it relates to the existence of any relationship between persons as to whose relationship
the maker had special means of knowledge and was made before the question in dispute arose.

vi) When it relates to the existence of any relationship between persons deceased and is made in
any will or deed or family pedigree, or upon any tombstone or family-portrait, and was made
before the question in dispute arose.

vii) When it is contained in any deed, will or other document. This clause, however, does not
allow introduction of parole evidence.

vii) When it is made by a number of persons and expresses feelings relevant to the matter in
question.

Section 60 of the Indian Evidence Act, 1872 says that oral evidence must be direct. But Section
32 and 33 are exceptions to the general rule as laid down in section 60. Hearsay evidence is

excluded on the ground that it is always desirable in the interest to get the person, whose
statement is relied upon into court for his examination in the regular way i.e. Cross-examination
and re-examination.

The exceptions to the hearsay evidence have been directed due to necessity. This rule excluding
the hearsay evidence is relaxed so far as the statements contained in Sections 32 and 33 are
concerned because a dead person cannot come into the court to give his testimony.

Dying-Declaration

Words "dying declaration" mean a statement written or verbal of relevant facts made by a person
who is dead. It is dealt under clause (1) of Section 32 of the Indian Evidence ACT, 1872.
Generally, it relates to the cause of death of the declarant. "Dying declaration" can be proved by
the person who records it. A dying declaration is not complete unless full names and addresses of
the persons involved are given in it.

Admissibility of dying declaration

The Supreme Court has laid down in several judgments the principles governing dying
declaration, which can be summed up as under:

i) There is neither rule of law nor of prudence that the dying declaration cannot be acted upon
without corroboration.

ii) the court is satisfied that the dying declaration is true and voluntary, the conviction can base
on it, without corroboration

ii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration
is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe
and identify the assailants and was in a fit state to make the declaration

iv) Where dying declaration is suspicious it should not be acted upon without corroborative
evidence.

v) Where the deceased was unconscious and could never make any dying declaration the
evidence with regard to it is to be rejected.

vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not
to be rejected.

viii) Equally, merely because it is a brief statement it is not to be discarded, on the contrary, the
shortness of the statement itself guarantees truth.

ix) Normally, the court in order to satisfy whether deceased was in a fit mental condition to make
the dying declaration look up to medical opinion. But where the eyewitness has said that the
deceased was in a fit and conscious state to make the dying declaration, the medical opinion
cannot prevail.

x) Where the prosecution version differs from the version as given in the dying declaration, the
said declaration cannot be acted upon.

Kamla vs. State of Punjab, AIR 1993, SC

A dying declaration stated two stab injuries, medical report showed only one injury.

Inconsistency destroyed the value of the dying declaration.

RELEVANCY OE CERTAIN EVIDENCE FOR PROVING IN
SUBSEQUENT PROCEEDING, THE TRUTH OF FACTS THEREIN
STAPED: SECTION 33

Evidence given by a witness (i) in a judicial proceeding, or (ii) before any person authorized by
law to take it, is relevant in a subsequent judicial proceeding or a later stage of the same
proceeding-

a) When the witness is dead,

b) When he cannot be found,

c) When he is incapable of giving evidence,

d) When he is kept out of the way by the adverse party, or

e) When his presence cannot be obtained without an amount of delay or expense which the court
considers unreasonable.

But such evidence will be admissible only-

a) If the proceeding was between the same parties, or their representatives in interest:

b) If the adverse party in the first proceeding had the right and opportunity to cross-examine; and

c) If the question in issue were substantially the same in the first as in the second proceeding.

Evidence of depositions in former trials is admissible as it forms an exception to the hearsay rule
Depositions are in general admissible only after proof that the persons who made them cannot be
produced before the court to give evidence.

Ghulam Haidar vs. The Crown (1929) Lah

It is only in cases where the production of primary evidence is beyond the party's power that
Secondary evidence of oral testimony is admissible. Non-compliance with the provision of this
section is not cured by the fact that counsel for the accused gives his consent.

JUDGMENT OF COURTS OF JUSTICE, WHEN RELEVANT

[SECTION 40-44]

PREVIOUS JUDGMENTS RELEVANT TO BAR A SECOND SUIT OR
TRIAL: SECTION 40)

i) the existence of any (a) judgment, (b) order or (c) decree

ii) which by law prevents any Court from (a) taking cognizance of a suit or (b) holding a trial

iii) is a relevant fact

iv) when the question is (a) whether such court ought to take cognizance of such suit or (b) to
hold such trial.

The existence of a judgment, decree or order is a relevant fact if by law it has the effect of
preventing any Court from taking cognizance of a suit, or holding a trial (the doctrine of res-
judicata).

> Sections 40 to 43 deal with the subject of relevancy of judgments. Judgments quo judgments or
adjudications are admissible or res judicata under this Section and as relating to matters of public
nature under Section 42. Judgment other than those mentioned in section 40, 41 and 42 may be
relevant under Section 43, if their existence is a fact in issue or is relevant under some other
provision.

Res-Judicata

The doctrine of res-judicata in its wider sense, which includes a bar on the subsequently
litigation not only of all issues resolved in the earlier proceedings but also of every point which
properly belongs to the subject - matter of the litigations, applies only when the course of action

or issue is or remains between the same parties or their predecessors in title and does not extend
to those not themselves party to the earlier proceedings (Vide-Section 11 Civil Procedure 1908].)

RELEVANCY OF CERTAIN JUDGMENTS IN PROBATE, ETC.
JURISDICTION: SECTIOON 41

A final judgment of a court exercising (1) probate, (2) matrimonial, (3) admiralty (4) insolvency
jurisdiction which - i) confers upon or takes away from any person any legal character, or (ii)
declares any person to be entitled to (a) any such character, or (b) any specific thing absolutely,
is relevant when (a) the existence of any such legal character, or (b) the title of any such person
to any thing is relevant.

Such judgments are known as judgments in rem

Such judgment is conclusive proof:

i) That any legal character, which it confers, accrued at the time when such judgment came into
operation.

ii) That any legal character to which it declares any person to be entitled accrued at the time
mentioned in the judgment.

iii) That any legal character which it takes away from any person ceased at the time mentioned in
the judgment.

iv) That any thing to which it declares a person to be entitled was the person's property at the
time at which the judgment declares it is to be his.

This Section consists of two parts. The first part makes the final judgment, order or decree of a
competent Court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction
relevant; the second part makes the judgment conclusive proof in certain matters.

The Section deals with what are usually called judgment in rem, i.e. judgments which are
conclusive not only against the parties to them but also against the whole world. "A judgment in
rem has been defined to be an adjudication pronounced, as its name indeed denotes, upon the
status of some particular subject matter, by a tribunal having competent authority for that
purpose."

RELEVANCY AND EFFECT OF JUDGMENTS, ORDERS OR DECREES,
OTHER THAN THOSE "MENTIONED IN SECTION 41: SECTION 42

This section declares judgments relating to matters of a public nature relevant, whether between
the same parties are not. It also forms an exception to the general rule that no one shall be
affected or prejudiced by judgments to which he is not a party or privy. The exception just stated
is allowed in favor of verdicts, judgments, and other adjudications upon subjects of a public
nature, such as customs, prescriptions, tolls, boundaries between parishes, countries or manors,
right of ferry liabilities to repair roads, or seawalls and like.

The effect of the adjudication, when admitted, will so far vary that, if the parties be the same in
both suits, they will be bound by the previous judgment but, if the litigants in the second suit be
Strangers to the parties in the first, the judgment though admissible, will not be conclusive.

EN RELEJUDGMENTS, ETC., OTHER THAN THOSE MENTIONED IN
SECTIONS. 40 TO 42, WHVANT SECTION 43

Judgments, the existence of which is a fact in issue or is relevant under some other provision of
the Evidence Act, are relevant under Section 43. A judgment is generally speaking admissible to
show its date and its legal consequences. So far as regards the truth of the matter decided, a
judgment is not admissible evidence against one who is a stranger to the suit.

Lakshman v. Amrit, (1900) Bom LR

To have the effect of res-judicata, a judgment inter partes alone can be admitted in evidence, but
for other purposes where judgments are sought to be used to show the conduct of the parties, or
show particular instances of the exercise of a right or admissions made by ancestors, or how the
property was dealt with previously, they may be used under Section 11 and 13 as exceptions
recognised under this section, as relevant evidence.

Anil Behari v. Latika Bala Dasi, AIR 1955 SC

A judgment in a criminal case cannot be received in a civil action to establish the truth of facts
upon which it is rendered.

Emperor v. Nazir Ahmad, AIR 1945 PC

The Privy Council has held that the findings in a civil proceeding are not binding in a subsequent
prosecution founded upon the same or similar allegations.

S.P. E. Madras v. K. V. Sundravelu, AIR 1978 SC
It was held by the Supreme Court that a previous acquittal can be cited in a fresh prosecution
over the same matter, but it cannot be used to prevent a new trial.

OPINION OF THIRD PERSONS WHEN RELEVANT
[SECTION 45-51]

OPINION OF EXPERT: SECTION 45

This section is an exception to the rule as regards the exclusion of opinion evidence opinions of
experts are relevant upon a paint of (a) foreign law, (b) science, (c) art, (d) identity of hand
writing (e) finger impressions.

Forest Range Officer v. P. Mohammed Ali, AIR 1994 SC
The Supreme Court held that expert opinion is only opinion evidence and is not helpful to the
Court in interpretation of law.
It is a general rule that the opinion of witness possess in peculiar skill is admissible, whenever
the subject-matter of enquiry is such that inexperienced person are unlikely to prove capable of
forming a correct judgment upon it without the assistance of an expert.

FACTS BEARING UPON OPINION OF EXPERTS: SECTION 46

The opinion of an expert is open to the corroboration or rebuttal. All the evidence which supports
or rebuts the opinion of expert are admissible and relevant.

Ram Karan Mal v. State, 1990 CrLJ
Where the ocular evidence was that a number of assailants surrounded the person and
continuously subjected him to injuries and the medical report should show knife injuries, it was
held that the eye-witness account stood nullified.

OPINION AS TO HANDWRITING WHEN RELEVANT: SECTION 47

i) The Court has to form an opinion as to the person by whom
any document was written, or signed

ii) the opinion of the person acquainted with the handwriting of the person by whom a document
is written or singed is relevant.

A person is said to be acquainted with the handwriting of another person when -

a) he has to seen that person write

b) he has received documents purporting to be written by that person in answer to documents
written by himself or under his authority and addressed to that person, or
c) in the ordinary course of business documents purporting to be written by that person have
been habitually submitted to him.
When the Court has to form an opinion as to the handwriting of any person, the opinion of a
person acquainted with the handwriting of such person is admissible in evidence

OPINION AS TO EXISTENCE OF RIGHT OR CUSTOM, WHEN
RELEVANT SECTION 48

1) when the Court has to forin an opinion as to existence of

a) any general custom or

b) night
2) the opinion, as to the existence of such custom or right, of persons who would be likely to
know of its existence if it existed
3) are relevant

4) the explanation makes it clear that the expression "general custom or right includes customs or
rights common to any considerable class of persons
Opinions of persons who are in a position to know of the existence of a custom or usage in their
locality are admissible

HOPINION AS TO USAGES, TENETS, ETC. WEN RELEVANT:

SECTION 49

Opinion of persons having special means of knowledge regarding

i) usages and tenets of a body of men or family,

ii) the constitution and government of any religious or charitable foundation;

iii) the meaning of words or terms used in particular districts or by particular classes of people
are relevant under Section 49.

This section should be read with Section 51. Section 51 says that whenever the opinion of the
living person is relevant, the grounds on which such opinion is based are also relevant.

OPINION OF RELATIONSHIP, WHEN RELEVANT: SECTION 50

When the Court has to ascertain the relationship of one person to another, the opinion of any
person having special means of knowledge, as expressed by conduct, is admissible in evidence.
The opinion may be of a member of the Tamily or an outsider, but he must have special means of
Knowledge. Evidence of general reputation, which is a cumulation of perception testimonies,
heard and gathered and reduced to an assertion to Court, it not admissible.

GROUND OF OPINION, WHEN RELEVANT: SECTION 51

Where the opinion of an expert is receivable, the ground or reasoning upon which such opinion
is based may also be inquired into opinion is no evidence, without assigning the reason for such
opinion The correctness of the opinion can better be estimated in many instance. When the
reasons upon which it is based are know. If the reasons are frivolous or inconclusive the opinion
is worth nothing.

CHARACTER WHEN RELEVANT
[SECTION 52-55]

IN CIVIL CASES CHARACTER TO PROVE CONDUCT IMPUTED,
IRRELEVANT: SECTION 52

1) In civil cases, no party can prove
a) that the character of the person concerned is such as to render any conduct probable
b) that the character of the person concerned is such as to render any conduct improbable
2) Exception: It is relevant when character is fact in issue itself.
In civil cases evidence of the character of any party to the suit to prove the probability or
improbability of any conduct imputed to him is irrelevant. The general exclusion of character
evidence is based on grounds of public polity and fairness of justice.

SECTION IN CRIMINAL CASES PREVIOUS GOOD CHARACTER
RELEVANT:SECTION 53

i) an accused is being tried for an offence crime
ii) the fact that he is a person of good character
iii) is relevant

Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC
it was held by the Supreme Court that character evidence is very weak evidence, it cannot
outweigh positive evidence in regard to the guilt of a person

PREVIOUS BAD CHARACTER IS NOT RELEVANT. EXCEPT IN
REPLY: SECTION 54

Evidence of bad character of an accused person (of whose good character evidence has not been
given) is not relevant under this section for the purpose of raising a general inference that the
accused is likely to have committed the offence charged. Such evidence is irrelevant and cannot
be legally admitted in evidence elicited by the prosecution or by the defence

Ram Lakhan v. U.P., AIR 1977 5C

The description of the accused as a lawbreaker announced to evidence of character, the Supreme
Court excluded it.

Saroh Kumar Chakrabarti v. Emperor, (1932) Cal.

If the evidence is otherwise relevant, it is not rendered inadmissible under this section, merely
because it shows bad character or the commission of offences other than the offence with which
the accused is charged.

CHARACTER AS AFFECTING DAMAGES: SECTION 55

It is in the civil cases, where the question of amount of damages to be awarded to the plaintiff is
concement that the character of the plaintiff becomes relevant (Vide: D. Shastri v. K.B. Saltex
1983 Pat.

In civil cases good character, being presumed, may not be proved in aggravation of damages, but
bad character is admissible in mitigation of damages, for example:

i) In cases of defamation the bad reputation of the plaintiff may be proved. The argument in
favour of considering reputation is that the person shown not be paid for the loss of the which he
never had.

ii) In cases, of breach of promise of marriage, the plaintiff's general character for immorality is
relevant.

iii) In cases of seduction evidence of the general character for immorality on the part of the
person seduced is relevant.

CHAPTER III

FACTS WHICH NEED NOT BE PROVED

[SECTION 56-58]

FACT JUDICIALLY NOTICEABLE NEED NOT BE PROVED: SECTION
56

All facts in issue and relevant facts must be proved by evidence, either oral or documentary. To
this rule there are two exceptions:

a) facts judicially noticeable, and

b) facts admitted

"Take judicial notice" means recognition without proof of something as existing or as being true,
for example, the Court taking judicial notice that the law and order situation has deteriorated
over the years and continues to be worsening fast and, therefore, it is an important time to think
of reconsidering death penalty (Shashi Nayar v. Union of India, AIR 1992 SC). Judicial Notice is
based upon very obvious reasons of convenience and expediency. The Supreme Court has held
that Court can take judicial notice of alternative sources (Assistant Collector of Central Excise V.
Dunlon Indian Ltd., AIR 1985 DC).

FACTS OF WHICH COURT MUST TAKE JUDICIAL NOTICE: SECTION
57

Section 57 enumerates thirteen facts of which the Court is bound to take judicial notice. These
facts are not exhaustive. It is for the sake of convenience that the Courts are allowed to take
judicial notice of certain facts which are so clearly established that the evidence of their
existence is unnecessary.

FACTS ADMITTED NEED NOT BE PROVED: SECTION 58

Admissions by the parties before suit are dealt in Section 17. This section deals with admissions
at or before the hearing. No proof need be given of facts which the parties or their agents agree to
admit at the hearing, or which, before the hearing, they agree to admit by writing under their
hands, or which, by any rule of pleading in force at the time, they are deemed to have admitted
by their pleadings.

Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or
state to be admitted in the pleading of the defendant, shall be taken to be admitted.

CHAPTER IV

OF ORAL EVIDENCE

[SECTION 59-60)

PROOF OF FACTS BY ORAL EVIDENCE: SECTION 59

i) All facts may be proved by oral evidence

ii) Exception: The contents of the document cannot be proved by oral evidence.

Oral evidence has been defined by the act to be all statements which the Court permits or
requires to be made before it by witnesses in relation to matters of fact under inquiry (Section 3).
All facts except the contents of documents may be proved by oral evidence.

ORAL EVIDENCE MUST BE DIRECT: SECTION 60

This section, subject to the proviso excludes opinions given at second-hand. The use of word
"must" in the first clause of the Section imposes a duty on the Court to exclude all oral evidence
that is not "direct", whether the party against whom it is tendered objects or not. The word
"direct is opposed to mediate or derivative or "hearsay".

Meaning of Hearsay Evidence

The word "hearsay" is used in various senses. Sometimes it means whatever a person is heard to
say, sometimes it means whoever a person declares on information given by some one else,
sometime it is treated as nearly synonymous with "irrelevant".