JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT
40.
Previous judgments relevant to bar a second suit or trial.
40. Previous judgments relevant to bar a second suit or trial.- The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.
41.
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Relevancy of certain judgments in probate, etc., jurisdiction.
41. Relevancy of certain judgments in probate, etc., jurisdiction.-A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction,
1. The original words were "Act of the Governor General of India in Council or of the Governors in Council of Madras or Bombay, or of the Lieutenant-Governor in Council of Bengal, or in a notification of the Govt. appearing in the Gazette of India, or in the Gazette of any L. G., or in any printed paper purporting to be the London Gazette or the Govt. Gazette of any colony or possession of the Queen, is a relevant fact". This was amended first by the Repealing and Amending Act, 1914 (10 of 1914), and then by the
A.O.
1937, the A. O. 1948 and the A. O. 1950 to read as above.
2. Subs. by Act 3 of 1951, s. 3 and Sch., for "an Act of the Legislature of a Part A State or a Part C State".
3. The last paragraph omitted by Act 10 of 1914. which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof- that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment 1*[order or decree] declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, 1*[order or decree] declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, 1*[order or decree] declares that it had been or should be his property.
42.
Relevancy and effect of judgments, orders or decrees, other than those
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mentioned in section 41.
42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41.-Judgments, orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.
Illustration
A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies. The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.
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Judgments, etc., other than those mentioned in sections 40 to 42, when relevant.
43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant.-Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such
1 Ins. by Act 18 of 1872, s. 3.
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judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act.
Illustrations
(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither.
A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.
(b) A prosecutes B for adultery with C, A's wife. B denies that C is A's wife, but the Court convicts B of adultery.
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Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. C says that she never was A's wife. The judgment against B is irrelevant as against C.
(c) A prosecutes B for stealing a cow from him. B is convicted. A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.
(d) A has obtained a decree for the possession of land against B. C, B's son, murders A in consequence.
The existence of the judgment is relevant, as showing motive for a crime.
1*[(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.
(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue.]
44.
Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.
44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.-Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40,41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
OPINIONS OF THIRD PERSONS WHEN RELEVANT
45.
Opinions of experts.
45. Opinions of experts.-When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting 2*[or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 3*[or in questions as to identity of handwriting] 2*[or finger impressions] are relevant facts.
Such persons are called experts.
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24
1. Ins. by Act 3 of 1891, s. 5.
2. Ins. by Act 5 of 1899, s. 3. For discussion in Council as to whether " finger impressions" include "thumb impressions," see Gazette of India, 1898, Pt. VI, p. 24.
3. Ins. by Act 18 of 1872, s. 4. Illustrations
(a) The questions is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.
46.
Facts bearing upon opinions of experts.
46. Facts bearing upon opinions of experts.-Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. Illustrations
(a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.
(b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall.
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25
The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time, is relevant.
47.
Opinion as to handwriting, when relevant.
47. Opinion as to hand-writing, when relevant.-When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation.--A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
Illustration
The question is, whether a given letter is in the handwriting of A, a merchant in London.
B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C, is B's clerk, whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising with him thereon. The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write.
48.
Opinion as to existence of right or custom, when relevant.
48. Opinion as to existence of right or custom, when relevant.- When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant.
Explanation.--The expression "general custom or right" includes customs or rights common to any considerable class of persons.
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Illustration The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.
49.
Opinion as to usages, tenets, etc., when relevant.
49. Opinion as to usages, tenets, etc., when relevant.-When the Court has to form an opinion as to--
the usages and tenets of any body of men or family, the constitution and government of any religious or charitable foundation, or
the meaning of words or terms used in particular districts or by particular classes of people,
the opinions of persons having special means of knowledge thereon, are relevant facts.
50.
Opinion on relationship, when relevant.
50. Opinion on relationship, when relevant.-When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (4 of 1869), or in prosecutions under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
Illustrations
(a) The question is, whether A and B, were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The
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fact that A was always treated as such by members of the family, is relevant.
51.
Grounds of opinion, when relevant.
51. Grounds of opinion, when relevant.-Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.
Illustration
An expert may give an account of experiments performed by him for the purpose of forming his opinion.
CHARACTER WHEN RELEVANT
52.
In civil cases character to prove conduct imputed, irrelevant.
52. In civil cases character to prove conduct imputed, irrelevant.-In civil cases the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is irrelevant, except in so far as such character appears from facts otherwise relevant.
53.
In criminal cases previous good character relevant.
53. In criminal cases previous good character relevant.-In criminal proceedings the fact that the person accused is of a good character is relevant.
54.
Previous bad character not relevant, except in reply. 1*[54. Previous bad character not relevant, except in reply.-In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.
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Explanation 1.--This section does not apply to cases in which the bad character of any person is itself a fact in issue. Explanation 2.--A previous conviction is relevant as evidence of bad character.]
55.
Character as affecting damages.
55. Character as affecting damages.-In civil cases the fact that the character of any person is such as to affect the amount of damages which he ought to receive, is relevant.
Explanation.--In sections 52, 53, 54 and 55, the word "character"
includes both reputation and disposition; but, 2*[except as provided in section 54], evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown.
1. Subs. by Act 3 of 1891, s. 6, for the original section.
2. Ins. by s. 7, ibid.
PART II
ON PROOF
PART II
ON PROOF
CHAPTER III
FACTS WHICH NEED NOT BE PROVED
CHAPTER III.
FACTS WHICH NEED NOT BE PROVED
56.
Fact judicially noticeable need not be proved.
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56. Fact judicially noticeable need not be proved. No fact of which the Court will take judicial notice need be proved.
57.
Facts of which Court must take judicial notice.
57. Facts of which Court must take judicial notice. The Court shall take judicial notice of the following facts:-- 1*[(1) All laws in force in the territory of India;]
(2) All public Acts passed or hereafter to be passed by Parliament 2*[of the United Kingdom], and all local and personal Acts directed by Parliament 2*[of the United Kingdom] to be judicially noticed;
(3) Articles of War for 3*[the Indian] Army 4*[Navy or Air Force];
5*[(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States;]
(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland:
(6) All seals of which English Courts take judicial notice; the seals of all the 6*[Courts in 7*[India]] and of all Courts out of 7*[India] established by the authority of 8*[the Central Government or the Crown Representative]:
the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person
1. Subs. by the A. O. 1950 for the former para.
2. Ins. ibid.
3. Subs., ibid., for "Her Majesty's".
4. Subs. by Act 10 of 1927, s. 2 and Sch. I, for "or Navy".
5. Subs. by the A. O. 1950 for the former para. (4).
6. Subs. by the A. O. 1948 for "Courts of British India".
7. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States".
8. Subs. by the A. O. 1937 for "the G. G. or any L. G. in Council".
is authorized to use by 1*[the Constitution or an Act of Parliament of the United Kingdom or an] Act or Regulation having the force of law in 2*[India];
(7) The accession to office, names, titles, functions and
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signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in 3*[any Official Gazette];
(8) The existence, title and national flag of every State or Sovereign recognized by 4*[the Government of India];
(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette;
(10) The territories under the dominion of 4*[the Government of India];
(11) The commencement, continuance and termination of hostilities between 4*[the Government of India] and any other State or body of persons;
(12) The names of the members and officers of the Court and of their deputies and subordinate offices and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;
(13) The rule of the road 5*[on land or at sea]. In all these cases and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.
58.
Facts admitted need not be proved.
58. Facts admitted need not be proved. No fact need be proved in any proceeding which the parties thereto their agents agree to admit at the hearing, or which, before
1. Subs. by the A. O. 1950 for "any Act of Parliament or other".
2. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States".
3. Subs. by the A. O. 1937 for "the Gazette of India or in the Official Gazette of any L. G."
4. Subs. by the A. O. 1950 for "the British Crown".
5. Ins. by Act 18 of 1872, s. 5.
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the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
CHAPTER IV
OF ORAL EVIDENCE
CHAPTER IV.
OF ORAL EVIDENCE
59.
Proof of facts by oral evidence.
59. Proof of facts by oral evidence. All facts, except the contents of documents, may be proved by oral evidence.
60.
Oral evidence must be direct.
60. Oral evidence must be direct. Oral evidence must, in all cases whatever, be direct; that is to say-- if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving
41
30
evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
CHAPTER V
OF DOCUMENTARY EVIDENCE
CHAPTER V.
OF DOCUMENTARY EVIDENCE
61.
Proof of contents of documents.
61. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.
62.
Primary evidence.
62. Primary evidence. Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1.--Where a document is executed in several parts, each part is primary evidence of the document:
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2.--Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration
A person is shown to have been in possession of a number of
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placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
63.
Secondary evidence.
63. Secondary evidence. Secondary evidence means and includes--
(1) certified copies given under the provisions hereinafter contained; 1*
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
1. See s. 76, infra.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.
64.
Proof of documents by primary evidence.
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64. Proof of documents by primary evidence. Documents must be proved by primary evidence except in the cases hereinafter mentioned.
65.
Cases in which secondary evidence relating to documents may be given.
65. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:--
(a) when the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of the Court, or
of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) 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 reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1*[India] to be given in evidence; 2*
1. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States".
2. Cf. the Bankers' Books Evidence Act, 1891 (18 of 1891), s. 4.
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in
32
Court and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
66.
Rules as to notice to produce.
66. Rules as to notice to produce. Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, 1*[or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:--
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
67.
Proof of signature and handwriting of person alleged to have signed or
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written document produced.
67. Proof of signature and handwriting of person alleged to have signed or written document produced. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting
1. Ins. by Act 18 of 1872, s. 6. of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
68.
Proof of execution of document required by law to be attested.
68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
1*[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]
69.
Proof where no attesting witness found.
69. Proof where no attesting witness found. If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
70.
Admission of execution by party to attested document.
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70. Admission of execution by party to attested document. The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.
71.
Proof when attesting witness denies the execution.
71. Proof when attesting witness denies the execution. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
72.
Proof of document not required by law to be attested.
72. Proof of document not required by law to be attested. An attested document not required by law to be attested may be proved as if it was unattested.
73.
Comparison of signature, writing or seal with others admitted or proved.
73. Comparison of signature, writing or seal with others admitted or proved. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare
1. Ins. by Act 31 of 1926, s. 2. the words or figures so written with any words or figures alleged to have been written by such person.
1*[This section applies also, with any necessary modifications, to finger-impressions.]
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PUBLIC DOCUMENTS
74.
Public documents.
74. Public documents. The following documents are public documents:--
(1) documents forming the acts or records of the acts--
(i) of the sovereign authority.
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, 2*[of any part of India or of the Common-wealth], or of a foreign country;
(2) public records kept 3*[in any State] of private documents.
75.
Private documents.
75. Private documents. All other documents are private.
76.
Certified copies of public documents.
76. Certified copies of public documents. Every 4* public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation.--Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
77.
Proof of documents by production of certified copies.
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35
77. Proof of documents by production of certified copies. Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
1. Ins. by Act 5 of 1899, s. 3.
2. The original words "whether of British India, or of any other part of Her Majesty's Dominions" have successively been amended by the A. O. 1948 and the A. O. 1950 to read as above.
3. Subs. by the A. O. 1950 for "in any Province".
4. A village-officer in the Punjab has been declared for the purposes of this Act to be a public officer having the custody of a public document--see the Punjab Land-revenue Act, 1887 (17 of 1887), s. 151 (2).
78.
Proof of other official documents.
78. Proof of other official documents. The following public documents may be proved as follows:--
(1) Acts, orders or notifications of 1*[the Central Government] in any of its departments, 2*[or of the Crown Representative] or of any State Government or any department of any State Government,--
by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government 2*[or, as the case may be, of the Crown Representative];
(2) the proceedings of the Legislatures,-- by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed 3*[by order of the Government concerned];
(3) proclamations, orders or regulations issued by 4*Her Majesty or by the Privy Council, or by any department of 4*Her Majesty's Government,--
by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer;
(4) the Acts of the Executive or the proceedings of the Legislature of a foreign country,--
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36
by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some 5*[Central Act]:
(5) the proceedings of a municipal body in 6*[a State],-- by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;
1. Subs. by the A. O. 1937 for "the Executive Govt, of British India".
2. Ins. ibid.
3. Subs., ibid., for "by order of Govt."
4. The words "Her Majesty" shall stand unmodified, vide the A. O.
1950.
5. Subs. by the A. O. 1937 for "public Act of the Governor General of India in Council".
6. Subs. by the A. O. 1950. for "a Province".
(6) public documents of any other class in a foreign country,--
by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of 1*[an Indian Consul] or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.
PRESUMPTIONS AS TO DOCUMENTS
79.
Presumption as to genuineness of certified copies.
79. Presumption as to genuineness of certified copies. The Court shall presume 2*[to be genuine] every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer 3*[of the Central Government or of a State Government, or by any officer 4*[in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government]:
Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such
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document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.
80.
Presumption as to documents produced as record of evidence.
80. Presumption as to documents produced as record of evidence.- Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume-- that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.
1. Subs. by the A. O. 1950 for "a British Consul".
2. Ins. by the A. O. 1948.
3. The original words beginning from "in British India" and ending with the words "to be genuine" have been successively amended by the A. O. 1937, A. O. 1948 and A. O. 1950 to read as above.
4. Subs. by Act 3 of 1951, s. 3 and Sch., for "in a Part B State".
81.
Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents.
81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents.-The Court shall presume the genuineness of every document purporting to be the London Gazette or 1*[any Official Gazette, or the Government Gazette] of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament 2*[of the United Kingdom] printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.
82.
Presumption as to document admissible in England without proof of seal
51
or signature.
82. Presumption as to document admissible in England without proof of seal or signature.-When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims,
and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.
83.
Presumption as to maps or plans made by authority of Government.
83. Presumption as to maps or plans made by authority of Government.-The Court shall presume that maps or plans purporting to be made by the authority of 3*[the Central Government or any State Government] were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.
84.
Presumption as to collections of laws and reports of decisions.
84. Presumption as to collections of laws and reports of decisions.-The Court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country,
and of every book purporting to contain reports of decisions of the Courts of such country.
85.
Presumption as to powers-of-attorney.
85. Presumption as to powers-of-attorney.-The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and
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38
1. Subs. by the A. O. 1937 for "the Gazette of India. or the Govt. Gazette of any L. G., or".
2. Ins. by the A. O. 1950.
3. The original word "Government" has successively been amended by the A. O. 1937, A. O. 1948, Act 40 of 1949 and the A. O. 1950 to read as above.
authenticated by, a Notary Public, or any Court, Judge, Magistrate, 1*[Indian] Consul or Vice-Consul, or representative 2*** of the 3*[Central Government], was so executed and authenticated.
86.
Presumption as to certified copies of foreign judicial records.
86. Presumption as to certified copies of foreign judicial records.-The Court may presume that any document purporting to be a certified copy of any judicial record of 4*[5*** any country not forming part of India or] of Her Majesty's Dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of 6*** the 3*[Central Government] 7*[in or for] 8*[such country] to be the manner commonly in use in 9*[that country] for the certification of copies of judicial records.
10*[An officer who, with respect to 11*** any territory or place not forming part of 12*[India or] Her Majesty's Dominions, is a Political Agent therefor, as defined in section 3, 13*[clause (43)], of the General Clauses Act, 1897 (10 of 1897), shall, for the purposes of this section, be deemed to be a representative of the 3*[Central Government] 14*[in and for the country] comprising that territory or place].
87.
Presumption as to books, maps and charts.
87. Presumption as to books, maps and charts.-The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place, by whom or at which it purports to have been written or published.
1. Subs. by the A. O. 1950 for "British".
2. The words "of Her Majesty, or" rep., ibid.
3. Subs. by the A. O. 1937 for "G. of I.".
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4. Subs. by the A. O. 1950 for "any country not forming part".
5. The words "a Part B State or of" omitted by Act 3 of 1951, s. 3 and Sch.
6. The Words "Her Majesty or of" rep. by the A. O. 1950.
7. Subs. by Act 3 of 1891, s. 8 for "resident in".
8. Subs. by Act 3 of 1951, s. 3 and Sch., for "such Part B State or country".
9. Subs. by s. 3 and Sch., ibid., for "that State or country".
10. Subs, by Act 5 of 1899, s.4, for the para, added by Act 3 of 1891, s. 3.
11. The words "a Part B State or "ins. by the A. O.. 1950 omitted by Act 3 of 1951, s. 3 and Sch.
12. Ins. by the A. O. 1950.
13. Subs., ibid., for "clause (40)".
14. Subs. by Act 3 of 1951, s. 3, Sch., for "in and for that Part B State or country".
88.
Presumption as to telegraphic messages.
88. Presumption as to telegraphic messages.-The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.
89.
Presumption as to due execution, etc., of documents not produced.
89. Presumption as to due execution, etc., of documents not produced.-The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.
90.
Presumption as to documents thirty years old.
90. Presumption as to documents thirty years old.-Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any
54
particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation.--Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81.
Illustrations.
(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.
(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.
(c) A, a connection of B, produces deeds relating to lands in B's possession which were deposited with him by B for safe custody. The custody is proper.
CHAPTER VI
OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
CHAPTER VI
OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
91.
Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.-When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be
reduced to the form of a document, no evidence 1* shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is
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admissible under the provisions hereinbefore contained. Exception 1.--When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2.--Wills 2*[admitted to probate in 3*[India]] may be proved by the probate.
Explanation 1.--This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.
Explanation 2.--Where there are more originals than one, one original only need be proved.
Explanation 3.--The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact. Illustrations
(a) If a contract be contained in several letters, all the letters in which it is contained must be proved.
(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
(d) A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion. Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.
(e) A gives B a receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible.
1. Where, however, a Criminal Court finds that a confession or other statement an accused person has not been recorded in the manner prescribed, evidence may be taken that the recorded statement was duly made-see the Code of Criminal Procedure, 1898 (Act 5 of 1898), s. 533.
2. Subs. by Act 18 of 1872, s. 7, for "under the Indian Succession Act".
3. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States".
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92.
Exclusion of evidence of oral agreement.
92. Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1).--Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 1*[want or failure] of consideration, or mistake in fact or law. Proviso (2).--The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3).--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5).--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts. Illustrations
(a) A policy of insurance is effected on goods "in ships from Calcutta to London". The goods are shipped in a particular ship which is lost. The fact that particular ship was orally excepted from the policy cannot be proved.
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1. Subs. by Act 18 of 1872, s. 8, for "want of failure".
(b) A agrees absolutely in writing to pay B Rs. 1,000 on the first March 1873. The fact that, at the same time an oral agreement was made that the money should not be paid till the thirty-first March cannot be proved.
(c) An estate called "the Rampore tea estate" is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed cannot be proved.
(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B's as to their value. This fact may be proved.
(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.
(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.
(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words: "Bought of A a horse of Rs. 500". B may prove the verbal warranty.
(h) A hires lodgings of B, and gives B a card on which is written--"Rooms, Rs. 200 a month." A may prove a verbal agreement that these terms were to include partial board.
A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally.
(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this.
(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered.
93.
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Exclusion of evidence to explain or amend ambiguous document.
93. Exclusion of evidence to explain or amend ambiguous document.- When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.
Illustrations
(a) A agrees, in writing, to sell a horse to B for "Rs. 1,000 or Rs. 1,500".
Evidence cannot be given to show which price was to be given.
(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled.
94.
Exclusion of evidence against application of document to existing facts.
94. Exclusion of evidence against application of document to existing facts.-When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.
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Illustration A sells to B, by deed, "my estate at Rampur containing 100 bighas". A has an estate at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size.
95.
Evidence as to document unmeaning in reference to existing facts.
95. Evidence as to document unmeaning in reference to existing facts.-When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.
Illustration
A sells to B, by deed, "my house in Calcutta".
A had no house in Calcutta, but it appears that he had a house at
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Howrah, of which B had been in possession since the execution of the deed.
These facts may be proved to show that the deed related to the house at Howrah.
96.
Evidence as to application of language which can apply to one only of several persons.
96. Evidence as to application of language which can apply to one only of several persons.-When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to.
Illustrations
(a) A agrees to sell to B, for Rs. 1,000, "my white horse". A has two white horses. Evidence may be give of facts which show which of them was meant.
(b) A agrees to accompany B to Haidarabad. Evidence may be given of facts showing whether Haidarabad in the Dekkhan or Haiderabad in Sind was meant.
97.
Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies.
97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies.-When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.
Illustration
A agrees to sell to B "my land at X in the occupation of Y". A has land at X, but not in the occupation of Y, and he has land in the occupation of Y but it is not at X. Evidence may be given of facts showing which he meant to sell.
98.
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Evidence as to meaning of illegible characters, etc.
98. Evidence as to meaning of illegible characters, etc.-Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense.
Illustration
A, sculptor, agrees to sell to B, "all my mods". A has both models and modelling tools. Evidence may be given to show which he meant to sell.
99.
Who may give evidence of agreement varying terms of document.
99. Who may give evidence of agreement varying terms of document.- Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document. Illustration
A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery. At the same time they make an oral agreement that three months credit shall be given to A. This could not be shown as between A and B, but it might be shown by C, if it affected his interests.
100.
Saving of provisions of Indian Succession Act relating to wills.
100. Saving of provisions of Indian Succession Act relating to wills.-Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865)1* as to the construction of wills.
PART III
PRODUCTION AND EFFECT OF EVIDENCE
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PART III
PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER VII
OF THE BURDEN OF PROOF
CHAPTER VII
OF THE BURDEN OF PROOF
101.
Burden of proof.
101. Burden of proof.-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime.
1. See now the Indian Succession Act, 1925 (39 of 1925), Pt. VI, Ch.
VI.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true.
A must prove the existence of those facts.
102.
On whom burden of proof lies.
102. On whom burden of proof lies.-The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
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Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession.
Therefore the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.
103.
Burden of proof as to particular fact.
103. Burden of proof as to particular fact.-The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustration
1*[(a)] A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
104.
Burden of proving fact to be proved to make evidence admissible.
104. Burden of proving fact to be proved to make evidence admissible.-The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Illustrations
(a) A wishes to prove a dying declaration by B. A must prove B's death.
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(b) A wishes to prove, by secondary evidence, the contents of a lost document.
A must prove that the document has been lost.
1. Sic. In the Act as published in Gazette of India, 1872, pt. IV, p. 1, there is no illustration (b).
105.
Burden of proving that case of accused comes within exceptions.
105. Burden of proving that case of accused comes within exceptions.-When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.
(c) Section 325 of the Indian Penal Code (45 of 1860) provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section
325.
The burden of proving the circumstances bringing the case under section 335 lies on A.
106.
Burden of proving fact especially within knowledge.
106. Burden of proving fact especially within knowledge.-When any
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fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
107.
Burden of proving death of person known to have been alive within thirty years.
107. Burden of proving death of person known to have been alive within thirty years.-When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
108.
Burden of proving that person is alive who has not been heard of for seven years.
108. Burden of proving that person is alive who has not been heard of for seven years.-1*[Provided that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is 2*[shifted to] the person who affirms it.
1. Subs. by Act 18 of 1872, s. 9, for "When".
2. Subs. by s. 9, ibid., for "on".
109.
Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.
109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.-When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of
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proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it.
110.
Burden of proof as to ownership.
110. Burden of proof as to ownership.-When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
111.
Proof of good faith in transactions where one party is in relation of active confidence.
111. Proof of good faith in transactions where one party is in relation of active confidence.-Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
Illustrations
(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.
111A.
Presumption as to certain offences. 1*[111A. Presumption as to certain offences.-(1) Where a person is accused of having committed any offence specified in sub-section (2), in--
(a) any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or
(b) any area in which there has been, over a period of more
66
than one month, extensive disturbance of the public peace, and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary is shown, that such person had committed such offence.
(2) The offences referred to in sub-section (1) are the following, namely:--
(a) an offence under section 121, section 121A, section 122 or section 123 of the Indian Penal Code (45 of 1860);
(b) criminal conspiracy or attempt to commit, or abetment of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860).
112.
Birth during marriage, conclusive proof of legitimacy.
112. Birth during marriage, conclusive proof of legitimacy.-The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
113.
Proof of cession of territory.
113. Proof of cession of territory.-A notification in the Official Gazette that any portion of British territory has 2*[before the commencement of Part III of the Government of India Act, 1935 (26 Geo. 5, e. 2)] been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.
113A.
Presumption as to abetment of suicide by a married woman. 3*[113A. Presumption as to abetment of suicide by a married
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woman.-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.--For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).]
113B.
Presumption as to dowry death. 4*[113B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation.--For the purposes of this section, "dowry death"
shall have the same meaning as in section 304B of the Indian Penal Code.]
114.
Court may presume existence of certain facts.
114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common
1. Ins. by Act 61 of 1984, s. 20 (w.e.f. 14.7.1984).
2. Ins. by the A. O. 1937, Part III of the Govt. of India Act, 1935, came into force on the 1st April, 1937.
3. Ins. by Act 46 of 1983, s. 7
4. Ins. by Act 43 of 1986, s. 12 (w.e.f. 19.11.1986). course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations
The Court may presume--
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(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence;
(e) that judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particular cases;
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
(i) that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:--
as to illustration (a)--a shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business:
as to illustration (b)--A, a person of the highest character is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself:
as to illustration (b)--a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable:
as to illustration (c)--A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person,
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completely under A's influence:
as to illustration (d)--it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course:
as to illustration (e)--a judicial act, the regularity of which is in question, was performed under exceptional circumstances:
as to illustration (f)--the question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances:
as to illustration (g)--a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family:
as to illustration (h)--a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked:
as to illustration (i)--a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.
114A.
Presumption as to absence of consent in certain prosecutions for rape. 1*[114A. Presumption as to absence of consent in certain prosecutions for rape.-In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.]
CHAPTER VIII
ESTOPPEL
CHAPTER VIII.
ESTOPPEL
115.
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Estoppel.
115. Estoppel.-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 leads 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 the sale, he had no title. He must not be allowed to prove his want of title.
116.
Estoppel of tenant; and of licensee of person in possession.
116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
117.
Estoppel of acceptor of bill of exchange, bailee or licensee.
117. Estoppel of acceptor of bill of exchange, bailee or licensee.-No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence.
1. Ins. by Act 43 of 1983, s. 6. Explanation (1).--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.
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Explanation (2).--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.
CHAPTER IX
OF WITNESSES
CHAPTER IX
OF WITNESSES
118.
Who may testify.
118. Who may testify.-All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation.--A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
119.
Dumb witnesses.
119. Dumb witnesses.-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.
120.
Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial.
120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial.-In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit,
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shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.
121.
Judges and Magistrates.
121. Judges and Magistrates.-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.
Illustrations
(a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.
(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court.
(c) A is accused before the Court of Session of attempting to murder a police-officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred.
122.
Communications during marriage.
122. Communications during marriage.-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.
123.
Evidence as to affairs of State.
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123. Evidence as to affairs of State.-No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
124.
Official communications.
124. Official communications.-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.
125.
Information as to commission of offences. 1*[125. Information as to commission of offences.-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.]
126.
Professional communications.
126. Professional communications.-No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice
1. Subs. by Act 3 of 1887, s. 1, for the original s. 125.
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given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure--
(1) any such communication made in furtherance of any 1*[illegal] purpose:
(2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, 2*[pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation.--The obligation stated in this section continues after the employment has ceased.
Illustrations
(a) A, a client, says to B, an attorney--"I have committed forgery and I wish you to defend me."
As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
(b) A, a client, says to B, an attorney--"I wish to obtain possession of property by the use of a forged deed on which I request you to sue."
This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A's account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.
127.
Section 126 to apply to interpreters, etc.
127. Section 126 to apply to interpreters, etc.-The provisions of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.
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128.
Privilege not waived by volunteering evidence.
128. Privilege not waived by volunteering evidence.-If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and if any
1. Subs. by Act 18 of 1872, s. 10, for "criminal".
2. Ins. by s. 10, ibid. party to a suit or proceeding calls any such barrister, 1*[pleader], attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.
129.
Confidential communications with legal advisers.
129. Confidential communications with legal advisers.-No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.
130.
Production of title-deeds of witness not a party.
130. Production of title-deeds of witness not a party.-No witness who is not a party to a suit shall be compelled to produce his title- deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.
131.
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Production of documents which another person, having possession, could refuse to produce.
131. Production of documents which another person, having possession, could refuse to produce.-No one shall be compelled to produce documents in his possession, which any other person would be entitled to refuse to produce if they were in his possession, unless such last-mentioned person consents to their production.
132.
Witness not excused from answering on ground that answer will criminate.
132. Witness not excused from answering on ground that answer will criminate.-A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:
Proviso.
Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
1. Ins. by Act 18 of 1872, s. 10.
133.
Accomplice.
133. Accomplice.-An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
134.
Number of witnesses.
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134. Number of witnesses.-No particular number of witnesses shall in any case be required for the proof of any fact.
CHAPTER X
OF THE EXAMINATION OF WITNESSES
CHAPTER X
OF THE EXAMINATION OF WITNESSES
135.
Order of production and examination of witnesses.
135. Order of production and examination of witnesses.-The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.
136.
Judge to decide as to admissibility of evidence.
136. Judge to decide as to admissibility of evidence.-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, in 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.
Illustrations
(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section
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32.
The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.
(b) It is proposed to prove, by a copy, the contents of a document said to be lost.
The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been stolen.
It is proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.
(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (a) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.
137.
Examination-in-chief. Cross-examination. Re-examination.
137. Examination-in-chief.-The examination of witness by the party who calls him shall be called his examination-in-chief. Cross-examination.-The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination.-The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
138.
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Order of examinations.
138. Order of examinations.-Witnesses shall be first examined-in- chief, then (if the adverse party so desires) cross-examined, then ( if the party calling him so desires) 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. Direction of re-examination.
The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
139.
Cross-examination of person called to produce a document.
139. Cross-examination of person called to produce a document.-A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.
140.
Witnesses to character.
140. Witnesses to character.-Witnesses to character may be cross- examined and re-examined.
141.
Leading questions.
141. Leading questions.-Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.
142.
When they must not be asked.
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142. When they must not be asked.-Leading questions must not, if objected to by the adverse party be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.
143.
When they may be asked.
143. When they may be asked.-Leading questions may be asked in cross-examination.
144.
Evidence as to matters in writing.
144. Evidence as to matters in writing.-Any witness may be asked, whilst under examination whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.--A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration
The question is, whether A assaulted B.
C deposes that he heard A say to D--"B wrote a letter accusing me of theft, and I will be revenged on him." This statement is relevant, as showing A's motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.
145.
Cross-examination as to previous statements in writing.
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1*145. Cross-examination as to previous statements in writing.-A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
146.
Questions lawful in cross-examination.
146. Questions lawful in cross-examination.-When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend-
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or
1. As to the application of s. 145 to police-diaries, see the Code of Criminal Procedure, 1898 (Act 5 of 1998), s. 172.
(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
147.
When witness to be compelled to answer.
147. When witness to be compelled to answer.-If any such question relates to a matter relevant to the suit or proceeding, the provisions of section 132 shall apply thereto.
148.
Court to decide when question shall be asked and when witness compelled to answer.
148. Court to decide when question shall be asked and when
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witness compelled to answer.-If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations:--
(1) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies:
(2) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies:
(3) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence:
(4) the Court may, if it sees fit, draw, from the witness's refusal to answer, the inference that the answer if given would be unfavourable.
149.
Question not to be asked without reasonable grounds.
149. Question not to be asked without reasonable grounds.-No such question as is referred to in section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.
Illustrations
(a) A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.
(b) A pleader is informed by a person in Court that an important witness is a dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dakait.
(c) A witness, of whom nothing whatever is known is asked at random whether he is a dakait. There are here no reasonable ground for
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the question.
(d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dakait.
150.
Procedure of Court in case of question being asked without reasonable grounds.
150. Procedure of Court in case of question being asked without reasonable grounds.-If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such barrister, pleader, vakil or attorney is subject in the exercise of his profession.
151.
Indecent and scandalous questions.
151. Indecent and scandalous questions.-The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.
152.
Questions intended to insult or annoy.
152. Questions intended to insult or annoy.-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.
153.
Exclusion of evidence to contradict answers to questions testing veracity.
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153. Exclusion of evidence to contradict answers to questions testing veracity.-When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence.
Exception 1.--If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.
Exception 2.--If a witness is asked any question tending to impeach his impartiality- and answers it by denying the facts suggested, he may be contradicted.
Illustrations
(a) A claim against an underwriter is resisted on the ground of fraud.
The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim. The evidence is inadmissible
(b) A witness is asked whether he was not dismissed from a situation for dishonesty.
He denies it.
Evidence is offered to show that he was dismissed for dishonesty. The evidence is not admissible.
(c) A affirms that on a certain day he saw B at Lahore. A is asked whether he himself was not on that day at Calcutta. He denies it.
Evidence is offered to show that A was on that day at Calcutta. The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore.
In each of these cases the witness might, if his denial was false, be charged with giving false evidence.
(d) A is asked whether his family has not had a bloodfeud with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.
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154.
Question by party to his own witness.
154. Question by party to his own witness.-The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.
155.
Impeaching credit of witness.
155. Impeaching credit of witness.-The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:-
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(2) by proof that the witness has been bribed, or has 1*[accepted] the offer of bride, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.
Explanation.--A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.
1. Subs. by Act 18 of 1872, s. 11, for "had".
Illustrations
(a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B. Evidence is offered to show that, on a previous occasion, he said that he had not delivered goods to B.
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The evidence is admissible.
(b) A is indicted for the murder of B. C says that B, when dying, declared that A had given B the wound of which he died.
Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence. The evidence is admissible.
156.
Questions tending to corroborate evidence of relevant fact, admissible.
156. Questions tending to corroborate evidence of relevant fact, admissible.-When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies. Illustration
A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.
157.
Former statements of witness may be proved to corroborate later testimony as to same fact.
157. Former statements of witness may be proved to corroborate later testimony as to same fact.-In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
158.
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What matters may be proved in connection with proved statement relevant under section 32 or 33.
158. What matters may be proved in connection with proved statement relevant under section 32 or 33.-Whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.
159.
Refreshing memory. When witness may use copy of document to refresh memory.
159. Refreshing memory. A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that
the Court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. When witness may use copy of document to refresh memory. Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
Provided the Court be satisfied that there is sufficient reason for the non-production of the original.
An expert may refresh his memory by reference to professional treatises.
160.
Testimony to facts stated in document mentioned in section 159.
160. Testimony to facts stated in document mentioned in section 159.-A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
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Illustration
A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.
161.
Right of adverse party as to writing used to refresh memory. 1*161. Right of adverse party as to writing used to refresh memory.-Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.
162.
Production of documents. Translation of documents.
162. Production of documents.-A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.
The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.
Translation of documents.-If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in
1. As to the application of s. 161 to police-diaries, see the Code of Criminal Procedure, 1898 (Act 5 of 1898), s. 172. evidence: and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).
163.
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Giving, as evidence, of document called for and produced on notice.
163. Giving, as evidence, of document called for and produced on notice.-When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
164.
Using, as evidence, of document production of which was refused on notice.
164. Using, as evidence, of document production of which was refused on notice.-When a party refuses to produce a document which he has 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.
Illustration
A sues B on an agreement and gives B notice to produce it. At the trial A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.
165.
Judge's power to put questions or order production.
165. Judge's power to put questions or order production.-The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing: and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked
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or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.
166.
Power of jury or assessors to put questions.
166. Power of jury or assessors to put questions.-In cases tried by jury or with assessors, the jury or assessors may put any questions to the witnesses, through or leave of the
Judge, which the Judge himself might put and which he considers proper.
CHAPTER XI
OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE
CHAPTER XI
OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE
167.
No new trial for improper admission or rejection of evidence.
167. No new trial for improper admission or rejection of evidence.-The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.
SCHEDULE I
Enactments repealed. THE SCHEDULE.--[Enactments repealed.] Rep. by the Repealing Act, 1938 (1 of 1938), s. 2 and Sch.
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