Textbook on The Law of Evidence

606 Pages·824.62 MB·English

by  Chief Justice M Monir

Textbook on
The
Law of Evidence
Tenth Edition
Chief Justice
M Monir
Universal
Law Publishing
animprintof(LexisNexis
CONTENTS
Preface to the Tenth Edition
V
Preface to the Eighth Edition
Table of Cases xli
Charts at A Glance xix
INTRODUCTION TO LAW OF EVIDENCE
Preamble
1. History of the Law of Evidence 5
2. Lex Fori or Rule of the Place of Trial
PART I
RELEVANCY OF FACIS
ChapterI
PRELIMINARY
1. Short title, extent and commencement
1. Extent and Scope
2. Judicial Proceedings
3. Courts
4. Affidavits
5. Arbitrators
2. Repealofenactments.-[Repealed]htgleathe1 Sur
3. Interpretation clause
"Court"
"Fact"
Meaning of fact
11
"Relevant"
"Facts in issue"
1. Facts in Issue
2. Facts in Issue and Issues of Fact Z
"Document"
12
3. Lawful Agreement of Compromise in Writing 2
"Evidence" 2
1. Meaning of Evidence 3
2. English Law
3. Indian Law 13
4. Evidence of Examination-in-Chief, Cross-examination and Re-examination
14
5. Types of Evidence 14
6. Proof of Circumstantial Evidence
15
7. Admissibility of Evidence 7
8. Panchsheel' in Respect of a Case based on Circumstantial Evidence
9. Value of Circumstantial Evidence 9
10. Affidavit 19
11. Witnesses may Lie but Circumstances cannot [9
12. Evidence of Prosecutrix
13. Evidence of Eye-witness 20
14. Injured Eye-witness
20
15. Statement under Section 313 20
vii
viii Textbook on The Law of Evidence
16. Statement of Truthful Witness
21
16.1 Distinction between Inculpatory and Exculpatory Evidence
21
17. Statement under section 313 Cr.P.C. 1
18. Evidence of Interested Witness
21
19. Court to Reappraise the Evidence
23
20. Admissibility of Tape-recorded Evidence
23
21. Testimony of a Child (11 Years old)
23
22. Judicial Scrutiny of Depositions of Witnesses
24
23. Post event Conduct of a Witness
24
24. Trustworthiness of a Witness
24
25. Applicability "Falsus in Uno Falsus in Omnibus"
25
26. Eye-witness' Reaction on Seeing a Murder
25
27. Conduct of Eye-witness
25
28. Testimony of a Witness 26
29. Confession of a Co-accused is not Evidence under Section 3:
Haricharan Kurmi v. State of Bihar 26
30. Discrepancies in Evidence
31. Credibility of an Eye-witness
27
32. Chance Witness
28
33. Natural Witness
28
34. Panch Witness
35. Stock Witness
29
36. Police Witness
29
37. Sterling Witness
30
38. Quality of Evidence in Criminal Trials
30
39. Proof of Unlawful Possession 30
40. Corroborative Evidence
30
41. Evidence of a Tracker 31
42. Evidence of Police Officer 1
43. Electoral Roll
31
44. Witness to be Reliable
45. Appreciation of Evidence 31
46. Conviction of an Innocent Person 2
47. Promissory Estoppel 32
48. Statement of a Hostile Witness 2
49. Requirement of Proof of Evidence and Extradition Act, 1962 33
50. Document Illegally Procured 33
"Proved"
"Disproved" 33
d1
"Notproved brs 0ihnit- iutntt 33
3
1. Proof
2. What is Proof? 53
3. Standard of Proof 34
4. Not Proved
5. "Evidence and Proof" 34
6. "Matters before it" 34
7. Proof in Civil and Criminal casesiasir21i 34
a
5
8. Benefit of Doubt
6
9. Reasonable Doubt
10. Suspicion is not Legal Evidence
7
11. Circumstantial Evidence in Criminal Cases
12. Evidentiary Value of Last Seen together Evidence 39
13. Legal Proof and Moral Conviction
Contents
14. Prima Facie Evidence
41
15. Fact 'not Proved - 'Disapproved' 41
"India"
41
4. "May presume" 41
"Shall presume" 42
"Conclusive proof" 42
1. Principle 42
2. What is a Presumption? 42
3. Presumptions of Fact or Natural Presumptions 43
4. May Presume 43
5. Presumption under Nature 43
6. Shall Presume
7. Distinction between the "may Presume" and "shall Presume" 43
8. Conclusive Proof 44
9. Conclusive Proof - Fraud or Collusion 44
Chapter II
OF THE RELEVANCY OF FACTS 45
5. Evidence may be given of facts in issue and relevant facts 45
1. Facts in Issue and Relevant Facts
5
2. Logical Relevancy and Legal Relevancy
3. Legal Relevancy and Admissibility
4. Admissibility and Evidentiary Value
6
5. And of no others
6. Relevancy of Evidence under an Illegal Search or Seizure 46
7. Objection to Evidence 47
8. Criminal Cases 47
9. Swift Progress of Trial Proceedings 48
6. Relevancy of facts forming part of same transaction 48
1. Principle of Res Gestae 48
2. Scope and Ambit of Section 6 49
3. Parts of the same Transaction 49
4. Statements Admissible as Part of the Transaction 50
5. Statements under Section 6 are Admitted as Original Evidence 50
6. Relevancy of Facts 50
7. Victirh's Identification Admissible
8. Inference of Guilt of Accused 51
9. PIL-Can be Entertained on the Basis of Newspaper Information 51
7. Facts which are the occasion, cause or effect of facts in issue
1. Principle 51
2. Opportunity for their Occurrence 52
3. Foot-prints 52
4. Tape Recorded Statement 52
5. Circumstantial Evidence of Bloodstains 52
8. Motive, preparation and previous or subsequent conduct 52
1. Principle 54
2. Motive 54
3. Circumstantial Evidence and Motive 55
4. Motive in Criminal Trials 55
5. Motive based on Direct Evidence 56
6. Preparation 57
7. Conduct 57
8. Conduct of any Party 58
Textbook on The Law of Evidence
9. Murder Case Appreciation of Evidence 58
10. Tape-recording 58
11. Relevancy of Complaint-Distinction between a Complaint and a Statement 59
12. English Law
59
13. Relevancy of Statements under any Section of the Act 59
14. Silence Amounting to Conduct 60
15. Concatenation of Full Chain 60
9. Facts necessary to explain or introduce relevant facts 60
1. Principle 61
2. Introductory or Explanatory Facts 61
3. English Law 62
4. Facts which S rt or Rebut an Inference Suggested by a Fact in
Issue or Relevant Fact 62
5. Facts in Criminal Trial 62
6. Facts Establishing Identity of thing or Person 62
7. Identity of a Person as the Doer of a Particular Act 63
8. Identity of Person to Establish Parentage 63
9. Identification by Photograph 63
10. Test Identification Parades of Suspects 63
11. Delay in Holding the Identification Parades 64
12. Failure to hold Test Identification Parade 65
13. Identification only in the Court 65
14. Identification of Idol 66
15. Evidence of Identification Parade and Section 162, Cr. P.C. 66
16. Facts Fixing Time and Place 67
17. Facts Showing Relation 67
18. Modes of Identification 67
19. Purpose of Test Identification Parade 68
10. Things said or done by conspirator in reference to common design 68
1. Principle 69
2. Scope 69
3. Meaning of Conspiracy 70
4. Conspirators 71
5. Conspirators as Agents 71
6. Proof of Conspiracy 71
7. Test of Admissibility 72
8. Reasonable Ground to Believe
9. Common Intention
10. Admissibility and Period of Conspiracy
11. English Law and Indian Law-Difference
12.AcquittalofsomeoftheConspirators9ti, ) e
13. Essentials of Section 10 74
14. Criminal Conspiracy 74
11. When facts not otherwise relevant become relevant 74
1. Principle 75
2. Scope 75
3. Plea of Alibi 75
4. Is Section 11 Controlled by more Specific Provisions of the Act?
5. Section 11 and Section 32
6. Sections 11 and 54 78
7. Section 11 and Sections 45 to 55 78
8. Exceptions 78
9. Test of Admissibility under Section 11 t6 78
Contents
10. Circumstantial Evidence Death of a Married Woman
78
11. Facts Inconsistent with fact in Issue or Relevant Fact 78
12. Highly Probable or Improbable
13. Instances of Improbability 79
12. In suits for damages, facts tending to enable Court to determine
amount are relevant 79
1. Principle 79
2. Scope 79
3. Damages 30
4. Suits in which Damages are Claimed B0
13. Facts relevant when right or custom is in question 30
1. Principle
2. Scope 81
3. Section Applies to All Kinds of Rights and Customs 81
4. Customs and Usage 5i
9
5. Essentials of Valid Custom 82
6. Proof of Custom 82
teieod
7. Modes of Proving Customyh ait ve snioosmmqot hsq 2
8. Transaction 83
9. Particular Instance 83
10. "Transaction by which and Instances in which" 83
11. Claimed 33
12. Section 18 of the Land Acquisition Act unini n 6 83
13. Recognised 83
14. Assertion 83
15. Relevancy of Judgments not Inter-partes 84
16. Cases 85
14. Facts showing existence of state of mind, or of body or bodily feeling
55
i1.Principle
S7
2. Scope B8
3. Law as to Relevancy of Similar Facts may be Summed up as Follows
B8
4. Intention
39
5. Knowledge 89
6. Notice 89
7. Conscious Possession 90
8. Does Registration Amount to Notice? 90
9. Negligence and Rashness 0
0
10. Matrimonial Proceedings
11. Ill-will or Good-will 0
15. Facts bearing on question whether act was accidental or intentional 1
1. Principle
2. Scope 92
3. Difference between Sections 14 and 15oq les1ege enoisrinabe to-01 92
4. Accidental or Intentional 2
5. Series of Similar Occurrences 92
16. Existence of course of business when relevant 3
3
1. Principle
2. Scope: Difference between Section 16 and Illustration () to Section 114 3
3. Course of Business 93
4. Posting, Post Mark and Postal Delivery 4
5. Postal Delivery 94
6. Notice Sent by Registered Post: Endorsement Refused 94
7. Certificate of Posting 94
xii Textbook on The Law of Evidence
Admissions
17. Admission defined 4
1. What is an Admission? 5
2. Requisites of an Admission 95
3. Admission when Evidence
Distinction between Admissions and Confessions 6
5. Importance of the Distinction 6
6. Form of Admissions 96
7. Different kinds of Admissions 7
8. Admission by Conduct 97
7
9. Admission on Pure Matter of Law
10. Admission as to Factum of Partition 97
11. Proof of Admission 8
12. Mode of Proof of Admissions 8
13. Admissions must be Taken as a whole 8
14. Should an Admission be put to the Maker?
15. Effect of Admissions 99
18. Admission by party to proceeding or his agent 100
1. Principle 100
2. Kinds of Admissions 100
3. Scope 100
(1) Admission by parties to the proceeding 101
Parties in criminal cases 101
In civil suits 101
(2) Admissions by agents 101
Admissions by pleader, counsel or solicitor 101
3) Parties suing or sued in a representative character 101
(4) Admissions by persons who have any proprietary or
pecuniary interest 101
(5) Admissions by persons from whom the parties to the suit have
derived their interest 102
4. Privies 102
5. Statement of Admission in Judgment 102
6. Admission made on Behalf of the State 103
19. Admissions by persons whose position must be proved as against
party to suit 103
1. Principle 103
2. Scope 103
20. Admissions by persons expressly referred to by party to suit 103
1. Principle 104
2. Scope 104
3. Admissions by Referee in Criminal Cases 104
21. Proof of admissions against persons making them, and by or on
their behalf 104
1. Principle 105
2. Scope 106
3. Analysis of the Section 106
4. As against the Person who makes them 106
5. His Representative in Interest 107
6. Exceptions 107
(a) Clause (1): Statements relev under section 107
6) Clause (2): Statement as to existence of state of mind or body 107
() Clause (3; Statements relevant otherwise than as admissions 107
Contents xiii
7. Effect of Admissions 108
22. When oral admissions as to contents of documents are relevant 108
22A. When oral admissions as to contents of electronic records are relevant 108
1. Principle 108
2. Scope 109
23. Admissions in civil cases, when relevant 109
1. Principle 109
2. Scope 109
3. Without Prejudice 109
24. Confession caused by inducement, threat or promise, when irrelevant
in criminal proceeding 110
1. Principle 111
2. Scope 111
3. Conditions for Relevancy of a Confession 111
4. Confession Y /3}12o} 112
5. Judicial Confession 113
6. Mere Conduct is not a Confession 114
7. Exculpatory Statements are not Confessions 114
8. Statement Partly Inculpatory and Partly Exculpatory 115
9. Acknowledgment of Subordinate Facts 115
10. Classes of Confession 116
11. Confession not made to Police Officer 116
12. Confession and Admission 116
13. Admissibility of Confession 116
14. Omission to Obtain the Signature of the Maker 117
15. Confession Recovery of Articles 117
16. Test of Admissibility of Confession 117
17. Test of Exclusion of Confession 117
18. Confession and Article 20(3) of the Constitution 117
19. Burden of Proof 118
20. Effect of Section 80 118
21. Retracted Confession T18
22. The Rule of Prudence in the Cases of Retracted Confession 119
23. Extra-judicial Confession 120
24. Evidentiary Value of Extra-judicial Confession 122
25. Extra-judicial Confession - Delay in Recording 123
26. Recording of Confession by Magistrate in his Private Capacity 124
27. Uncorroborated Extra-judicial Confession 124
28. Extra-judicial Confession to Establish Guilt 124
29. Discrediting Testimony of Witness 124
30. Confessional Statement 125
31. Confessional Statement under Threat and Pressure 125
32. Judicial or Extra-judicial Confession 125
33. Proof of Judicial Confession 125
34. Credibility-When Magistrate Used the Expression "Evidence"
Instead of "Confession" 126
35. Evidentiary Value of Confession 126
36. Confession and Indian Constitution 126
37. Word 'Appears 127
38. Caused by any Inducement, Threat or Promise 127
39. Having Reference to the Charge 127
40. The Accused Person 127
41. Person in Authority e 127
xiv Textbook on The Law of Evidence
42. Temporal Nature 128
43. Confession under TADA 128
25. Confession to police officer not to be proved 128
1. Principle 128
2. Scope 128
3. Section 25 and Section 26 129
4. Confession 130
5. Police Officer 130
6. Confession made before Officer under N.D.P.S. Act 131
7. Admissibility 131
8. Confession and F.IR. 131
9. Confession Recorded under TADA Act, 1987, Section 15 is
Substantive Evidence 132
10. Confession under TADA Act and Retraction at Later Stage 133
26. Confession by accused while in custody of police not to be proved
against him 133
1. Principle 134
Scope 134
Confession 134
4. Custody 134
5. Police Officer 135
6. Statements not Amounting to Confession are Admissible 135
Immediate Presence of a Magistrate 135
Doctrine of "Excluding the Fruit of a Poisonous Tree" 135
9. Section 8 135
27. How much of information received from accused may be proved 135
1. Principle 136
2. Scope 137
3. Word Distinctly'
138
4. Section 27 Qualifies Sections 24, 25 and 26 138
5. Applicability of Section 27
138
6. Section27 does not Offend the Constitution Section 27 and Article 14
(Equal Protection of the Laws) 141
7. Section 27 and Article 20 (3) (Self-incrimination) 141
8. Section 27 Unaffected by Sections 161, 162, Cr. P.C. 141
9. Section 27 and Section 26
142
10. Section 27 and Narco Analysis, Polygraph and BEAP Tests 142
11. Essentials of Section 27
143
12. Provided that
143
13. Any Fact 143
14. "Discovery of Fact" does not Comprehend a Pure and Simple Mental Fact 144
15. Discovery of Fact 144
16. Discovery Concealment of Weapon 145
17. Discovery of Electric Wire 146
18. Evidence Regarding Recovery 146
19. Deposed to 146
20. Fact Discovered in Consequence of Information 147
21. Statement of the Accused Inadmissible 147
22. Evidence of the Investigating Oficer 148
23. Disclosure Statements 148
24. Received from a Person Accused of any Offence in the Custody of a
Police Officer
149
25. Not Necessary to take the Informant Accused to the Spot 150
Contents
XV
26. So much of such Information as Related Distinctly to the Fact
thereby Discovered 150
27. Whether it Amounts to Confession or not 152
28. Joint Statements 152
29. Statement Admissible under Section 27 cannot be Proved against others 152
30. Information must Precede Discovery 152
31. Evidentiary Value of the Discovery and the Accompanying Statements 152
32. Pointing out Places 153
33. Evidence of Recovery 154
28. Confession made after removal of impression caused by inducement,
threat or promise relevant 154
1. Principle 154
2. Scope 154
29. Confession otherwise relevant not to become irrelevant because of
promise of secrecy, etc. 155
1. Principle 155
2. Scope 155
Confession Otherwise Relevant 155
4. Deception 155
5. Confession in Answer to Question 156
6. Want of Warning 156
30. Consideration of proved confession affecting person making it and
others jointly under trial for same offence 156
A2
1. Principle 157
2. Scope 157
3. Essentials of Section 30 157
4. Are being Tried Jointly 157
5. Admissibility of Confession of a Co-accused who Pleads Guilty 158
(1) Joint trial-Warrant Cases 158
(2) Joint Trial-Session Cases, Plea of Guilty Accepted, No Joint Trial-
Inadmissibility of the Confession of the Accused Pleading Guilty 158
(3) Joint trial-Summons Cases-Plea of Guilty 158
6. For the same Offence 159
7. Confession Affecting himself and some other of such Persons:
Test of Admissibility 159
8. Applicability of the Section to Confessions made at the Trial as well as
to those made before the Trial 159
9. Eviderntial Value of the Confession of a Co-accused, Conviction on
such Confession, whether Legal 160
10 Confession of a Co-accused is not Evidence within the Meaning of
Section 3 of the Evidence Act
161
11. Expression "the Court may take into Consideration such Confession" 161
12. Corroboration of the Confession of a Co-accused Necessary 162
13. Reasons for Requiring Corroboration 162
14. Nature and Extent of Corroboration 162
15. Retracted Confession 162
16. Evidentiary Value of Retracted Confession 163
17. Section 27 and Section 30
163
18. Confession Recorded by a Judicial Magistrate 163
19. Confession made to an Authorised Officer 164
31. Admissions not conclusive proof, but may estop
164
3eAJD 164
2 Scopee22uTYI terhabt ciiF? A
165