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Published by Enhelion, 2020-01-15 02:16:24

Module 20

Module 20

MODULE 20: 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 (Section 3). 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 Criminal Procedure Code.

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 diude 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.

Oriental Fire & General Ins. Co. v. Chandrawali, AIR 1989 P & H

Document means à 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 Order XI. r.
15 of CPC 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
me 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 ie, 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 2
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 that facts on which his case depends
ii) 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
ii) who will be the loser
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 plaintiff to the same. There is an

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 uosires that the Court must decide the case in his favour?
ii) Section 103 retes 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 some
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 MAY PRESUME 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 nalural 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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