Judicial Interview questions for Indian Evidence Act

Ans. The list of facts, which are relevant, is found in the provisions contained in Secs. 6 to 55. But the Act gives no general definition of the term ‘relevant fact’. Generally speaking, a fact is said to be relevant to another if by itself or in connection with other facts it renders the existence of a fact in issue, either probable or improbable. Relevancy implies relationship and such, a relationship with the facts in the issue as convinces or has a tendency to convince the judge as to the existence or otherwise of the facts in the issue. Fact in order to be relevant must be connected with the facts in the issue or with any other relevant fact in any of the ways referred to in Secs. 6 to 55. A fact not so connected is not a relevant fact. The scheme of the Act seems to make all relevant facts, admissible. However, there is a distinction be- tween the two which will be considered at a later stage.

For the Indian Evidence Act, relevancy and admissibility (logical and legal relevancy) are synonyms. All legally relevant facts are admissible but all logically relevant facts are not admissible. The general rule is that all facts are irrelevant unless they fall under one or more sections 6 to 55.

Q. What are the Facts in the Issue?

Ans. Those facts which are alleged by one party and denied by the other in the pleading in a civil suit or alleged by the prosecution and denied by the accused in a criminal case are said to be facts in issue.

Q. What is real evidence?

Ans. Real Evidence

Strictly speaking, it does not fall within the definition of evidence given in the Act but when oral evidence has to be given with respect to the existence or condition of any material thing other than documents, the material objects have to be produced before the court for inspection. So in many cases, stolen properties, weapons used in the commission of offence, and the various other articles associated with the crime are produced.

Q. What is the evidentiary value of circumstantial evidence?

Ans. It is that which relates to a series of facts other than the fact in issue. Circumstantial evidence assumes importance where direct evidence is lacking. The fact that transpires with the consent of the parties, for example, the settlement of a bargain, may perhaps be reduced to the form of a document that constitutes direct evidence of it. But facts that happen suddenly, such as road accidents or crimes, or torts, do not leave behind much direct evidence. Criminals lay their plot in secret. They execute it ruthlessly under the cover of darkness or secrecy. They silence their victims altogether and do not leave any trail of evidence behind. In such cases, the main event will have to be reconstructed before the Court with the help of surrounding circumstances such as the cause or the effects of the event. Circumstances sometimes speak as forcefully as does direct evidence. When footprints are found on sand; it is plausible to infer that someone must have gone that way and also from the shape of footprints it can be ascertained as to whether those are of man or of a bird or of an animal.

The most fundamental and basic decision on circumstantial evidence is Hanumant Govind Nargundkar vs. State of M.P. AIR 1952 SC 343. Mahajan, J. has laid down in the Hanumant case “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. ”A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established on the basis of circumstantial evidence.

Q. What is the evidentiary value of the evidence obtained by wrongful means?

Ans. The Supreme Court has made it clear in Pushpadevi M. Jatia vs. M.L. Wadhawan, AIR 1987 SC 1748 that where “evidence” offered comes within the meaning of its definition, the court can act on it and need not concern itself with the method by which the evidence in question was obtained. Similarly, in R. vs. Sang, (1979) 2 All ER 1222, the House of Lords observed that however much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence and is probative of the accused’s guilt, it is no part of the judicial function to exclude it by this reason. He has no discretion to refuse to admit relevant evidence on the ground that it was obtained by improper or unfair means. The House of Lords would sanction the exclusion of such evidence only where the accused had been lured into incriminating himself by deception after the Commission of an offence. The Supreme Court noted the only exception to the rule, which is that where after the alleged offence, improper methods have been used to obtain evidence for it and the judge is of the view that the prejudicial effect of such evidence would be out of proportion to its evidentiary value, the judge may exclude it.

Q. What do you mean by Irrebuttable and Rebuttable presumption of law?

Ans. Irrebuttable presumption of law-They is those legal rules, which are not overcome by any evidence that the fact is otherwise. A well-known instance of irrebuttable presumption of law can be found in Sec. 82 of IPC wherein it is laid down that “Nothing is an offence which is done by a child under seven years of age.” If in a criminal case, it is shown that the accused is below seven years of age, he shall be presumed innocent. No evidence will be allowed to be adduced that the accused was guilty. They are indicated in the Evidence Act by the expression” conclusive proof” (Secs. 41, 112 & 113)

Rebuttable Presumption of law-It arises when the presumption of law is certain legal rules, defining the amount of evidence requisite to support a particular allegation, which facts being proved, may either be explained, or rebutted by evidence to the contrary, but are conclusive in the absence of such evidence. e.g. A man is presumed innocent until proven guilty; a child born in a legal wedlock shall be presumed to be legitimate and one who questions his legitimacy must disprove it. They are indicated in the Act by the expression “shall presume” (Secs. 79 to 85, 89, and 105)

Q. What is a presumption of fact?

Ans. These are inferences that the mind naturally and logically draws from given facts without the help of legal directions. Such inferences are drawn not by virtue of any rule of law but by the spontaneous operations of the reasoning faculty. All that the law does for them is to recognise the propriety of their being so drawn if the Judge thinks fit. The court has the discretion to draw them. They are rebuttable as their evidentiary effect may be negated by contrary proof. They are indicated in the Act by the expression “may presume” and are mentioned in Secs. 86 to 88, 90 & 114.

Q. Why res-gestae is called an exception to hearsay evidence?

Ans. As a general rule, hearsay evidence is inadmissible but, if it forms part of the transaction, evidence of it can be given. In the case of R. vs. Foster, (1834) 6 C & S the witness had only seen a speeding vehicle but not the accident. The injured person explained to him the nature of the accident. He was allowed to give evidence of what the deceased said, although it was only derived knowledge, it being a part of res gestae. Thus, the doctrine of res gestae constitutes an exception to the principle of hearsay.

Q. What is the effect of delay in holding TIP?

Ans. Effect of delay on TIP-Delay in holding TIP must be satisfactorily explained. In the case of Rajesh Govind Jogesh vs. State of Maharashtra AIR 2000 SC 160, it was held that the explanation that no magistrate was available in Bombay for 5 weeks for supervising the parade was held to be not satisfactory.

Murari Lal Jivaram Sharma vs. State of Maharashtra, AIR 1997 SC 1593 Two Months delay was held to be sufficiently accounted for where the identification officer kept writing to the magistrate but the magistrate could not spare time due to pre-occupations. State of Goa vs. Sanjay Thakran, 2007 (3) SSC 755 Person identifying articles did not have sufficient opportunity to see the said article being used by the deceased for a long duration. Further, these articles are not carrying any distinctive mark on the basis of which this could be distinguished from similar articles which were easily available and accessible in the market. So, the court said identification of the said articles belonging to the deceased could not be believed.

Q. What is section 14 Indian Evidence Act?

Ans. It deals with facts showing the existence of the state of mind, or of body or bodily feeling. Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, will or good-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling, is in issue or relevant.

Q. When right or custom is in question? What facts are relevant?

Ans. Sec.13 lays down rules of evidence for the proof of customs and rights. The section ap- plies to all kinds of rights, like full ownership, or rights like a right of easement or a right of way. Similarly, it applies to all customs, ancient as well as to those of a comparatively recent origin. The latter are usually referred to as usages.

Q. Under what circumstances and what ex- tent is the motive, previous and subsequent conduct of a party to a suit or proceeding relevant?

Ans. It is relevant under section 8. The absence, or presence of a motive and evidence of preparation, previous attempt, or previous or subsequent conduct of the parties are relevant, as they help in proving or disproving a fact in controversy. It may sometimes be important to know, whether a man charged with an of- fence, has any interest, or motive to commit it. In determining the fact, whether a man charged with an offence, committed it or not, it is important to know whether previous to the act, he made certain preparations to do the act. Again the conduct -antecedent or sub- sequent – of a person committing an offence, or of a person against whom an offence has been committed, may be helpful in deciding whether the man has committed an offence.

Q.What kinds of facts are taken as relevant under Section 7 of the Indian Evidence Act?

Ans. Sec. 7 deals with a variety of facts such as those which constitute the occasion or cause of, or provide the opportunity for, the happening of the facts in issue or which show their effects.

The section thus provides for the relevancy of the following kinds of facts:

1. Facts constituting the “occasion”;

2. Facts that show the “cause”;

3. The “effects” of the principal facts;

4. Facts that provide the “opportunity” for the happening of the principal fact, and

5. Facts that constitute the “state of things” under which the principal facts happened.

Q. What is the relevancy of admission in civil cases?

Ans. Section 23 deals with it. It says that in civil cases no admission is relevant if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should both be given.

Explanation – Nothing in this section shall be taken to exempt any barrister, pleader attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under section 126.

Q.What is primary evidence?

Ans. Primary evidence means the original document itself produced for the inspection of the court.

According to section 62, the expression ‘primary evidence’ includes:

(i)The original document itself produced for the inspection of the court.

(ii)Where a document is executed in several parts (e.g., duplicate, triplicate-required when there are several partners), each part is primary evidence of the document. Where a document is executed in counterparts, each counterpart is primary evidence against the party signing it (Explanation 1).

(iii)Where a number of documents are all made by one uniform process, for example, by printing, lithography, or photography, each is primary evidence of the contents of the document. But, where they are all of copies of a common original, they are not primary evidence of the contents of the original (Explanation 2).

Q.What is secondary evidence?

Ans. Secondary evidence of a document is defined in Sec. 63. It includes the following:

(1)Certified copies of the original document.

(2)Copies, which are made from the original by mechanical processes, which in themselves assure the accuracy of the copy; and copies compared with such copies (e.g., photographs of the original or a carbon copy).

(3)Copies made from or compared with the original.

(4)Counterpart of a document is secondary evidence against the party who didn’t sign it. For example, a cheque is secondary evidence against the payee, as he only receives it, but has not signed it; but the counterfoil, which he signs, is primary evidence against him.

(5)Oral account of the contents of a document given by a person who has himself seen the document.

The most unique among the types of secondary evidence is the oral account of the contents of a document. But there are two conditions for the relevancy of such evidence. Firstly, the party offering oral evidence must be entitled to give secondary evidence of the document. The circumstances in which secondary evidence can be given are listed in Sec. 65. Thus, any one of the circumstances mentioned in Sec. 65 should exist so as to enable the party to give secondary evidence of the document in question, for example, that the original has been lost or destroyed. The second condition is that an oral account of the contents of a document must be that of a person who has seen it. Once these conditions are satisfied the party can give oral evidence of the contents of the document even if he has an attested copy in his possession.

Q. What is the value of electronic evidence?

Ans. Section 65A and 65B of deal with it. The section provides that the contents of electronic records may be proved in accordance with the provisions of section 65B.

Q. How electronic is being proven?

Ans. Section 67A deals with it. Except in the case of a secure electronic signature, if the electronic signature of any subscriber is alleged to have been affixed to an electronic record the fact that such electronic signature is the electronic signature of the subscriber must be proved.

Q.What are public documents?

Ans. As per this section, 74 following documents are public documents and are of two kinds: –

Documents forming the acts or records of the acts of the sovereign authority namely, the Parliament and the legislative Assemblies, or of the official bodies and tribunals, and of public officers, legislative, judicial, and executive, of any part of India or of the Commonwealth, or of a foreign country.

Private documents that are registered in public offices also become public documents. For example, the memorandum and articles of company. A public document is prepared by a public servant in the discharge of his public duties.

Q. Whether a registered sale deed is a public document or a private document?

Ans. In the case of Smt. Rekha and Ors. vs. Smt. Ratnashree Jain, AIR 2006 MP 107, the primary issue to be determined was whether a sale deed (duly registered) is a public document or a private document.In the determination of the above issue, the Court observed that a deed of sale is a conveyance and the deed of conveyance or any other document being executed by any person is not an act or record of any sovereign authority. Further, a sale deed (or any other deed of conveyance) when presented for registration under the Registration Act, is not retained by government authority but is returned to the person who presented such document for registration, on completion of the process of registration, and hence an original registered document is not a public record kept in a state of a private document.

In view of the same, a deed of Sale or other registered document will not fall under either of the two classes of documents described in section 74, as ‘public documents. It was further held that any document which is not a public document is a private document. The Court, Therefore, concluded that a registered sale deed (or any other registered document) is not a public document but a private document.

Q. What is a private document?

Ans. Section 75 deals with private documents.This section says that all other documents are private. ‘All other documents’ means documents other than those mentioned in Sec. 74.

Q. Under which circumstances oral evidence is excluded by documentary evidence?

Ans. Sec. 91 is concerned with the exclusion of oral evidence by documentary evidence in certain specified circumstances. Sec. 91 is based on the ‘best evidence rule’. Where the fact to be proved is embodied in a document, the document itself is the best evidence of the fact. Such a fact should, therefore be proved by the document itself.

This section lays down that when the terms of a contract, grant, and other dis- position of property (even though they are not required by law to be in writing) have been reduced to a form of a document, the document itself is to be produced to prove the terms of such contract, grant or other disposition of property or the matter so required by law to be in writing. Sec. 91 excludes oral evidence as to the content of a document except in cases where secondary evidence is allowedto be led under the relevant provisions of the Evidence Act. This section extends to both types of transactions, namely, which have been voluntarily made by writing and for which writing is compulsory. For example, the transfer of immovable property of the value of Rs.100 or upwards is required by law to be kept in writing.

Q.What is the difference between ‘Evidence’, ‘Proof’& ‘Testimony’?

Ans. According to Sec. 3 means and includes —

(1) All statements that the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) All documents, including electronic records, produced for the inspection of the Court; such documents are called documentary evidence.

The proof is the effect of evidence. Evidence is an instrument by means of which relevant facts are brought before the court.

Q. What is the evidentiary Value of Confession?

Ans. Confession made to a Magistrate provided it is consistent with the provisions of Sec. 164 Cr.P.C. is good evidence and the accused can be convicted on the basis of it. However, as far as extra-judicial confessions are concerned they are considered a weak piece of evidence. Extra-judicial confessions must be received with great care and caution. It can be relied on only when it is clear, consistent, and convincing. The Court has to decide whether the person before whom the admission is said to have been made is a trustworthy witness. Generally, convictions are not based solely on the basis of extra-judicial confessions. Extra-judicial confession, if voluntary can be relied upon by the Court along with other evidence for convicting the accused. Now the settled rule is that the law does not require that evidence of an extra-judicial confession must be corroborated in all cases. Where the extra-judicial confession is proved by an independent witness who has no ill will against the accused, it may form the basis of conviction without corroboration.

Q. What is the difference between judicial confession and extra-judicial confession?

Ans. The difference between judicial confession and extra-judicial confession lies in the proving of confession and not the evidentiary value of the confession. In the case of judicial confession, by virtue of Sec. 80 (IEA), there is a presumption of genuineness of record, and hence the burden of proof to prove genuineness does not lie on prosecution, whereas in extra-judicial confession, oral or written, the burden lies upon the prosecution and there is no such presumption here. However once either of these is proved, the evidentiary value will be the same except that in the case of judicial confession, the voluntary character of confession is more easily proved. However, neither of these can be the sole basis of conviction. (State of Madhya Pradesh vs. Paltan Mallah 2005 SC). In State of U.P. vs M. K. Anthony, AIR 1985 SC 48 the accused murdered his wife and two children. He made a confession to one Mr. Nair who was his friend, “My wife had a fatal disease. I was in trouble without money. Just now, I would have required Rs. 600/- for operation. I was already in debt. I have already borrowed Rs. 200/- from you and could not get any more help from others. Therefore, I murdered my wife and children”. It was held that the evidence of the witness read as a whole had a ring of truth in it. The witness being a friend and a well-wisher of the family of the accused, there could be no hesitation in accepting his testimony.

In R.Kuppusamy vs. State 2013 (3) SCC 322, the accused murdered his 10-month-old daughter by throwing her into the well and then went to the vice-president of the panchayat Board and told him that he has thrown his daughter into the well and killed her. The Court observed that the legal position is fairly well settled that an extra–judicial confession is capable of sustaining a conviction provided satisfied in a given case which will, however, depend upon the facts and circumstances of each case and it is eventually the satisfaction of the court as to the reliability of the confession. Keeping in view the circumstances in which the confession is made, the person to whom it is alleged to have been made, and the corroboration if any, available as to the truth of such a confession that will determine whether together the extra-judicial confession ought to be made a basis for holding the accused guilty or not.

Q. What is the Evidentiary Value of Investigation based on SniferDog?

Ans. Supreme Court in Abdul Razak Murtaza Dafadar Vs. The State of Maharashtra, AIR 1970 SC 283 held that “ the tracker dog’s evidence cannot be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli, because the behavior of chemicals, blood corpuscles, and bacilli contains no element of conscious volition or deliberate choice. Dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever there are thought processes there is always the risk of error, deception, and even self-deception. In the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight. In the case of Surinder Pal Jain v. Delhi Administration AIR 1993 SC 1723, the Apex Court held that picking up of the smell by the dogs of the police and pointing towards the accused could not be said to be circumstances that could exclude the possibility of guilt of any person other than that of the accused or be compatible only with the hypothesis of guilt of the accused. The pointing out by the dogs could as well lead to a misguided suspicion that the accused had committed the crime. The Supreme Court observed that the evidence based on sniffer dogs has inherent frailties. The possibility of error on the part of the dog or its master is the first among them. The possibility of misunderstanding between the dog and its master is close to its heels. The possibility of a misrepresentation or a wrong inference from the behavior of the dog could not be ruled out. Last, but not least, is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. Police dogs engaged in these actions by virtue of instincts and also by the training imparted to them. Criminal Courts need not bother much about the evidence based on sniffer dogs although we cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals. Thus, it is seen that the Apex Court has observed that sniffer dogs can be employed for investigation purposes.

Q. What is the difference between post-mortem& inquest?

Ans. Post-mortem is the Medical Examination of the body to determine the time, place, manner, and cause of death. Whereas an inquest is the ‘verbal investigation’ of the events that led to someone’s death, i.e. were they unlawfully killed or was it an accident?

Q. Evidence Act is Adjective Law or Substantive Law?

Ans. The Indian Evidence Act is the adjective law, steps in for the enforcement of the substantive law. The rules regarding evidence in the administration of justice are of high importance. No substantive law can be enforced without the help of the rules of law of evidence. The law of evidence can be stated to be the foundation on which the entire structure of the judiciary is based. If the foundation is weak the structure is bound to collapse. Similarly, if the rules of law of evidence are not sound the administration of justice is bound to go astray.

Q. What is the difference between accomplice and co-Accused?

Ans. An accomplice is someone together with whom a person carried out a criminal act. Normally, the co-accused will be an accomplice, but not necessarily (e.g. a bunch of strangers might be charged altogether with an offence of mobbing). An accomplice will be a co-accused if the two are tried together, but if the accomplice is tried separately, or not at all, then he won’t be a co-accused. This might happen if e.g. (a) he pleads guilty, meaning no need for a trial, (b) he is a prosecution witness,

(c) he can’t be identified with sufficient certainty, (d) he can’t be found, (e) the Crown decides not to prosecute, perhaps because they don’t feel they can rebut some defence such as automatism or coercion, or (f) he has diplomatic immunity.

Q. What is the relevancy of DNA report? Whether it is admissible or not?

Ans. The court has laid down certain guidelines regarding DNA tests and their admissibility to prove parentage.

(1) That courts in India cannot order blood tests as a matter of course;

(2) Wherever applications are made for such prayers in order to have a roving inquiry, the prayer for a blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5)No one can be compelled to give a sample of blood for analysis

Q. What is the evidentiary value of a confession made to the police officer?

Ans. Section 25 of the Evidence Act says that confession to a police officer is not relevant. All statements made to a police officer are not excluded. The statements that do not amount to confession are not excluded by Sec. 25 and can be brought on record and proved against any accused.

There was a fight between two parties in which death was caused. Several persons of one party drove several cattle belonging to the deceased to the cattle pound. Two of them made a statement to the police that the cattle of the deceased damaged their crops. While they were bringing cattle to the pound, the deceased interfered with the carrying of the cattle and so there was a fight. They were charged with murder. It was held that since the statement to the police did not amount to confession, in as much as it was only an exculpatory statement of the circumstances under which the cattle had been seized and was not an admission of guilt but rather in the nature of a complaint against the deceased and therefore not inadmissible.

Q. What do you mean by Police Custody?

Ans. Custody of Police is taken in a wide sense. It is a wider expression than police custody used in Sec. 167 Cr.P.C. A policeman may lay his hand on the person, handcuff him or tie his waist with a rope and take him. Again a police officer may not even touch a person but may keep such control over him that the person so controlled cannot go anyway as he likes. A police officer tells A to follow him, A is in the custody of the police officer. Again a police officer who has taken some persons may leave him away from him for a short time.

The Custody of Police in the real sense commences from the time when the movements of the accused are restricted or controlled and may be direct or indirect under police surveillance. The crucial test is whether, at the time when a person makes a confession, he is a free man or his movements are controlled by the police themselves or through some other agency employed by them. In one case, a woman was taken into custody by the police, and a friend of the woman also accompanied her. The policemen left the woman with her friend for some time. In the meantime, she confessed her guilt to her friend. The confession was held to be inadmissible because the woman was regarded to be in the custody of the police in spite of the fact that the policeman was absent for a short time.