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Published by Enhelion, 2020-07-05 02:15:38

MODULE 9

MODULE 9

MODULE 9
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 that 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 estoppels, three conditions must be satisfied-
1) Representation 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 bailee 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 OF OFFENCES: 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, it 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 of 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 produce his title-deeds and to
raise any objection whatsoever.
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 form 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 and 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. This was held in
the case of 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 left 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 prove it 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 inadmissible
documentary evidence. Party seeking to put a document in evidence, must
show under which Section it is admissible. Improper admission 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 shall 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 testified 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. He may her attend the court

personally or may depute any person to produce the document in court (O

XVI. R. 6 CPC). 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
Witness 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 is called leading 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- Cheif, 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
disposition of property, was not in writing and he says that it was the adverse

party may object to such evidence being given until the document is
produced or facts proved for the admission of secondary evidence.
The same principle applies to 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 be brought 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 the 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 to 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 same 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 living 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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