Civil Judge interview questions for Indian Evidence Act Part-2

The exclusionary rule disallows evidence to be used if the evidence was collected improperly, seems to be a deterrent to police misconduct, it seems to be far too harsh and has the potential to be too large an impact on cases.

The idea is appropriate, but its implementation is poor-something that could be easily supported by the fact that the United States has the only legal system in any country that immediately throws out evidence in the event of police misconduct.

The exclusionary rule is important in that it provides protection from warrantless searches, but can also interfere with the justice system.

It is an imperfect solution to the problem of violations with search and seizure-it can shield those who are guilty, but it also has no benefit to those who are innocent and have done nothing wrong in the first place.

Q. Which provision of the Indian Evidence Act is based on the ‘Doctrine of Subsequent Confirmation’?

Ans. Sec. 27 is based on the “doctrine of confirmation by subsequent events”. This section seems to be based on the view that if a fact is actually discovered in consequence of information given by the accused some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence but the extent of information as is admissible depend on the exact nature of fact discovered to which such information is required to relate. It is a most essential condition of admissibility that under Sec. 27, the fact must be discovered in consequence of information supplied by the accused against whom the fact is tried to be proved. If the fact is known to another person also, i.e., to the investigation officer, it can’t be said that the fact was discovered in a consequence of information given by the accused.

Sec. 27 provides an exception to the prohibition imposed by Sec. 24, 25, and 26 and enables certain statements made by a person in police custody to be proved. The object of Sec. 27 is to provide for the admission of evidence which but for the existence of the Section could not be in consequence of the preceding section being admitted in evidence.

Q. What is the evidentiary value of Admission?

Ans. According to section 31, admissions are not conclusive proof of the matters admitted against any party. The implication is that if the party against whom the fact has been proved by his admission wants to give evidence to rebut that fact, he will be allowed to do so, despite earlier admission. If from the facts it could be shown that the admission was wrong, it would fail to have any effect.

It is only prima facie evidence against the party making the statement and shifts the burden of proof. An admission is not conclusive as to the matters stated therein. It is only a piece of evidence, the weight to be attached to it must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment in which case it might become conclusive by way of estoppel. Thus, if on the faith of admission, the opposite party has altered his position then as per the principle of estoppel, the party making admission cannot be allowed to turn back and give evidence to disprove the admission.

Q. If the person is able to survive after making a dying declaration, then what will be the value of such a declaration?

Ans. The person who made the declaration must be dead. If the person is able to survive after making a dying declaration, then such a declaration would not be admissible under Sec. 32(1) as a dying declaration, although it may be admissible under Sec.157 of the Evidence Act as corroborative evidence. So, the first condition is unless the declarant is dead, the declaration cannot be made admissible as a dying declaration.

Q. When does section 33 of the Indian Evidence Act apply?

Ans. This section applies to civil as well as criminal cases. This section will not apply where the witness is alive and available as a witness. It will apply only where a witness is not available and it so happens that he had previously given evidence in proceedings between the same parties involving the same issue(s) and the parties had the right and opportunity to cross-examine him. The principle for admissibility is that the previous deposition of such witness is to be given in evidence in subsequent proceedings between the same parties and on the same issue(s) then his previous deposition should be relied on.

Q. When entries in books of account are relevant?

Ans. This section 34 of the Indian Evidence Act provides that entries in books of account, including those maintained in an electronic form regularly kept in the course of business, whenever they refer to a matter into which the Court has to inquire, shall be relevant. Though such entries are relevant they alone shall not be sufficient to charge any person with liability. Where, for example, A sues B for Rs 1,000 and he shows entries in his account books to the effect that B is indebted to him. The entries are no doubt relevant but they will not be sufficient by themselves or without the support of the other evidence to prove the existence of the debt. This section is an exception to Sec. 21 which requires that a man cannot make evidence for himself.

Q. Whether statements as to any law contained in law books are relevant?

Ans. According to section 38 of the Evidence Act, the following facts are relevant:

(i) Any statement of substatements law contained in any book purporting to be printed or published under the authority of the Government of a particular country.

(ii) Any report of the ruling of the court of such country.

Though unauthorized translation of foreign law is not relevant. Statements in books of law and in law reports are admissible on grounds similar to those stated in sec 35, 36, and 37, foreign law can be received under section 45. State vs. Sardar Bahadur AIR 1969 Cal 451, It is said that the report of a case in a newspaper does not appear to be relevant. The court cannot take judicial notice of the laws of foreign courts as they must be proved by facts. When the court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the courts of such country contained in a book purporting to be a report of such rulings, is relevant.

Q. Under which provision of the Evidence Act evidence of res judicata is admissible?

Ans. A Judgment, which has the effect of res judicata is relevant in every case. The principle of res judicata is based upon public policy i.e. there should be an end to litigation. Sec. 11 of the C.P.C. embodies the principle of res judicata. This doctrine means that the final judgment of a competent Court of law may not be again disputed on the issue which has been settled between the parties or their successor in any subsequent legal proceeding. In other words, res judicata enacts the rule of conclusiveness of judgments as to the issues which have already been decided upon in every subsequent suit between the same parties. The doctrine of res judicata is contained in Sec. 11 of the C.P.C, while evidence of res judicata is admissible under Sec. 40 of the Evidence Act. The same principle will apply to criminal proceedings but, in a different name i.e. double jeopardy.

As per Sec. 300 Cr. P.C no person shall be liable to be tried again for the same offence. In this connection, Art. 20(2) of the Constitution is relevant, which states, “No person shall be prosecuted and punished for the same offence more than once.”

Q. Who is an expert?

Ans. Section 45 permits only the evidence of an expert to be cited in evidence. An expert is one who is especially skilled in the matter. But, the section does not refer to any particular attainment, standard of study, or experience, which would qualify a person to give evidence as an expert. The question of the competency of the witness as an expert is to be decided by the judge himself. The Mysore High Court in the case of Abdul Rahman vs. State of Mysore, 1972 Cr. L.J., in order to determine the purity of the gold in question referred the matter to a professional goldsmith even though he had no formal qualification; his only qualification being his skill. The subjects on which an expert is competent to testify are mentioned in the section itself and they are-Foreign law, Matters of science, Questions of art, Identity of handwriting, and of finger impressions.

Q. What is the evidentiary value of expert evidence?

Ans. The Act only provides about the relevancy of expert opinion but gives no guidance as to its value. The value of expert opinion has to be viewed in light of many adverse factors. Firstly, there is a danger of error or deliberate falsehood. Secondly, his evidence is after all an opinion and human judgments are fallible. Thirdly, it must be borne in mind that an expert witness, however impartial he may wish to be, is likely to be unconsciously prejudiced in favor of the side which calls him. These factors seriously reduce the probative value of expert evidence. The reliability of such evidence has, therefore, to be tested the same way in which any other piece of evidence is tested. The Court should, therefore, call upon the expert to explain the reasons for his opinion and then form its own opinion as to whether or not the expert opinion is satisfactory. The Court should not surrender its own opinion to that of the expert. Thus, medical evidence cannot be decisive in the matter. In case of any conflict between an eye-witness and the medical evidence, the Court will have to go by the evidence which inspires more confidence. Thus, where the eye-witness testified to one lathi blow upon the head of the deceased, but the medical evidence recorded four external injuries, the Court naturally held that the medical evidence was more trustworthy and it showed that the so-called eye-witness had not seen the incident. (G.A. Naik vs. State, AIR 1968 Goa 72).

Q. What is the evidentiary value of footprint?

Ans. In Mohd. Aman vs. the State of Rajasthan, AIR 1997 SC 2960, it was observed that it is unsafe to accept footprint evidence when the sample footprints were not taken before the magistrate. In Pritam Singh vs. State of Punjab, AIR 1956 SC, 415, it was observed that the science of identification of footprints being a rudimentary science cannot be relied upon. However, the track evidence can be relied upon as circumstances which along with other circumstances would point to the identity of the culprit though by itself it would not be enough to carry conviction in the minds of the court.

Q. When opinion as to handwriting is relevant?

Ans. Under section 4, in order to prove the handwriting, the court may call upon not only a handwriting expert but also someone who is well acquainted with that person’s handwriting to render his opinion. The section also explains who can be considered to be acquainted with another person’s handwriting. It includes a person –

(1) Who has seen that person write,

(2) Who has secured documents written by that person in answer to documents written by himself or under his authority and addressed to that person, or

(3) Who has in the ordinary course of business received documents written by that person or such documents are habitually received to him?

Q. What is character and when it is relevant?

Ans. Provision relating to relevancy of character is given in sections 52-55 of the Evidence Act. Character is a combination of qualities distinguishing a person, the individuality of which is the product of nature, habits, and environment. Character is an attribute of a person and it is an assemblage of all the virtues of the person, it can be good or bad virtues. Owing to his character a person may have a particular reputation in society.

Q. When secondary evidence may be given?

Ans. Such circumstances are listed in Sec. 65. The section provides that secondary evidence can be given in the following cases:-

(1) When the original is shown or appears to be in the possession or power- (a) of a person against whom the document is sought to be proved, or (b) of any person out of reach of, or not subject to, the process of the Court, or (c) any person legally bound to produce it, and although due notice has been given to him in accordance with the terms of Sec. 66, he does not produce it.

(2) When the existence, condition, or contents of the original have been proved to be admitted in writing by the party against whom the document is to be proved or by his representative-in-interest.

(3) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in a reasonable time.

(4) When the original is of such a nature as not to be easily movable. This would include cases of bulky documents.

(5) When the original is a public document within the meaning of Sec. 74.

(6) When the original is a document of which the Evidence Act or any other law of the country permits certified copies to be given in evidence.

(7) When the original consists of numerous accounts or other documents which cannot be conveniently examined in the Court and the fact to be proved is the general result of the whole collection.

Q. What is the effect of refusal to produce an original document after notice?

Ans. Section 66 of the Evidence Act deals with notice. Where the original is in the possession of the opposite party, a notice has to be given to him to produce the original and it is only upon his refusal to do so that secondary evidence can be given. But, there may arise a situation, where the opposite party fails to produce the original when demanded, but at a subsequent stage of the trial offers to produce the original one. He cannot be allowed to do so. This was the rule laid down in the case of Doed Thomson vs. Hodgson, (1860) 9 L.J. Q. B. 327. Therefore, if a person had an opportunity, and had declined to produce the writing he can’t afterward bring forward its content. Where the original rent note was alleged to be in the possession of the opposite party and he did not produce it despite several notices and adjournments, it was held that the plaintiff’s application for the production of secondary evidence should not have been rejected on the ground that the copy of the note was of doubtful veracity (Nawab Singh vs. Inderjit J. Kaur, AIR 1999 SC 1668).

Q. What is the method of proving the execution of documents required by law to be attested?

Ans. According to Sec. 68, whenever a document that requires compulsory attestation is produced before the Court as documentary evidence, then at least one attesting witness shall be called and examined to prove the execution of the document. The principle will apply only if at least one of the attesting witnesses is alive, capable of giving evidence, and subject to the process of the Court. The section further provides that no attesting witness need be called in the case of a document not being a will that has been registered according to provisions of the Indian Registration of 1908. But, if the party whose signature the documents purport to bear has specifically denied it then at least attesting witness shall have to be called.

Q. Which provision of the Evidence Act deals with the presumption of electronic agreement?

Ans. Section 85A deals with it. The Court shall presume that every electronic record purporting to be an agreement containing the electronic signatures of the parties was so concluded by affixing the electronic signature of the parties.

Q. What are the exceptions of section 91 of the Evidence Act?

Ans. The general rule is that when the contents of a writing are to be proved, the writing itself must be produced or when its absence is accounted for, secondary evidence may be given. But there is an exception to it which is specifically provided for in the section. It lays down that when a public officer has been appointed by writing, and when it is shown that any particular person has acted as such officer, the writing by which he has been appointed need not be proved. For e.g., when the question is whether A is a High Court Judge, the warrant of appointment need not be proved. The only fact that he is working as a High Court Judge will be proved.(Exception 1 of section 91).The second exception to the general rules provides that when a probate has been obtained on the basis of a will and afterwarda question arises about the existence of the will, the original will need not to be produced. “Probate” means the copy of a will certified under the seal of the Court of competent jurisdiction with a grant of administration to the estate of the testator. The probate copy of the will though, technically speaking is secondary evidence of the contents of the original, will rank as primary evidence.(Exception-2 of section 91)

Q. What do you mean by the word ‘access’ used in section 112?

Ans. The presumption of legitimacy largely depends upon the presumed fact that parties to a marriage have the necessary access to each other. That is why the presumption is allowed to be overthrown by proving that there was no access of the husband to his wife at about the time when the child could have been begotten. But, as the Supreme Court has pointed out in the ChilkuriVenkateshwaralu case that as the presumption of legitimacy is highly favored by law it is necessary that proof of non-access must be clear and satisfactory.

In Kamti Devi vs. Poshi Ram, AIR 2001 SC 2226, the Supreme Court considered the meaning of the word “access” and observed “Earlier there was a controversy as to what is the true import of the word “access”. Some High Courts held that access means actual sexual intercourse between the spouses. However, the controversy came to a rest when the Privy Council held in KarapayaServai Vs. Mayandi, AIR 1934 PC 49., that the word “access” connotes only existence of an opportunity for marital intercourse.

Q. Is there any difference between estoppel and presumption?

Ans. An estoppel is a personal disqualification imposed upon a person peculiarly circumstanced from proving particular facts, whereas a presumption is a rule that a particular inference is to be drawn from particular facts, whosoever proves them.

Q. What do you mean by the stock witness?

Ans. A Stock witness is a person who is at the back and calls of the police. He obliges the police with his tailored testimony. Such a witness is used by the police in raid cases. Such witnesses are highly disfavoured by the judges. Once it is proved that a certain witness examined by the prosecution is a stock witness of the police, the court would be justified in discarding his testimony. But that in itself is not enough to falsify the entire prosecution case. In such a case, it is the duty of the court to brush aside the testimony of the stock witness and to see if the remaining prosecution evidence is enough to sustain the conviction of the accused. [Hazara Singh vs. State of Punjab, (1971) 3 SCR 674]

Q. What do you mean by decoy witness?

Ans. A witness who is not a willing party to give of bribe to the accused but only actuated by the police with the motive of trapping the accused is a decoy or trap witness. His evidence cannot be treated as evidence of accomplices. Their evidence is the evidence of partisan witnesses who were out to entrap the accused. Their evidence cannot be relied upon without independent corroboration. In Shri Patrao Salokhe vs. State of Maharashtra, AIR 1990 SC 287, the court held that in case of a legitimate trap, the officers taking part in it and the witnesses to trap would in no sense be accomplices and their evidence will not require to be corroborated as a condition precedent for conviction. A court may convict on uncorroborated testimony of trap witnesses if the court is satisfied with their truthfulness.

Q. Explain the legislative policy behind Section 123 of the Evidence Act?

Ans. The principle behind Sec. 123 is the overriding and paramount character of public interest and injury to public interest is the sole foundation of this section. It is based on the maxim ‘salus populi est suprema lex’ i.e. regard for public welfare is the highest law.

Unpublished documents relating to affairs of the State are also given such privilege under Sec. 123 of the Evidence Act. According to Sec. 123, no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of the state unless the head of the department concerned permits.

Thus, the section deals with a prohibition and the prohibition extends to everyone, provided the evidence sought to be given relates to affairs of State derived from unpublished official records. Any matter related to the affairs of the State can be disclosed as evidence only with the permission of the head of the department and the officer has absolute discretion in either giving or withholding such permission.

Q.A client says to B, attorney – “I have committed forgery and I wish you to defend me”. Is this communication protected from disclosure?

Ans. As per section 126 of the Evidence Act, a man of legal profession barrister, attorney, pleader, or vakil is forbidden to disclose without his client’s consent. (1) Any communication made to him in the course of and for the purpose of his employment. (2) The contents or conditions of any document which came to his knowledge in the course of and for the purpose of his employment (3) Any advice by him to his client in the course of and for the purpose of such employment. The reason for this prohibition is to encourage litigants to communicate fully and frankly with their lawyers without any fear that the information given by them can be passed on to the opponent or to the court. In the absence of this prohibition, it would have been difficult for anybody to get the best professional advice. But the communication would not be privileged in the following cases:

When such communications are for an unlawful purpose having for their object the commission of a crime [Illustration (b)].
When after the employment the lawyer observes that some crime has been committed. [Illustration (c)].

It should be borne in mind that this privilege can be claimed by one only in his capacity as a barrister, pleader, attorney, or vakil. Therefore, no privilege attaches to communication to an attorney or pleader consulted as a friend and not as attorney or pleader.

Q. Who will decide the admissibility of evidence?

Ans. Section 136 deals with it. When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, at his discretion, either permit evidence of the first fact to be given before the second fact is proved or require evidence to be given of the second fact before evidence is given of the first fact.

Q. What is ‘Res-Gestae’?

Ans. The principle of Res-gestae has been given in under section 6 of the Indian Evidence Act. Latin phrases are things said or done in the course of a transaction. The transaction is a group of facts so connected together as referred to as a single name i.e. crime, contract, or wrong subject to inquiry which may be an issue it is an exception of hearsay evidence.

Q. Explain Relevancy & Admissibility?

Ans. Relevancy is based on logic and probability and the rules of relevancy is described from section 5 to 55 of the Indian Evidence Act. Admissibility is not based on logic but on strict rule of law. The rules of admissibility are described after section 56 onwards of the Indian Evidence Act.

The facts which are relevant and not necessarily admissible though the facts which are admissible are necessarily relevant.

Read more:- INDIAN EVIDENCE ACT