TRIAL – ISSUES, PERSPECTIVES AND TECHNIQUES:
The fundamental duty of a trial advocate is to adduce evidence or cross-examination. As such he shall have proper understanding of certain core concepts relating to law of Evidence. Before proceeding to know the various tools and techniques to conduct either Examination-in-chief or Cross examination, let us have a panoramic view of some important issues on law of evidence over following matters.
1) Relevancy 2) Admissibility 3) Competence 4) Burden of Proof 5) Mode of Recording evidence 6) Evidence -Kinds 7) Standard of Proof 8) Presumptions.
1) Relevancy: Facts that can be used to prove a case. The fact may be proved with the aid of evidence, admissions and judicial notices. The proof of facts before the court must be with the aid of facts listed under S.6 to 55 of Indian Evidence Act. It is also known as theory of Relevancy. No exceptions. The proof of facts before the court must be with the aid of facts listed under S.6 to 55 of Indian Evidence Act
2)Admissibility: Persons with whose aid relevant facts can be placed before court. The 2nd qualification is that witness must be through direct evidence. Direct evidence refers to facts perceived by one’s own sense. It means to act as witness before court one must directly perceive them with his any of the five senses. However the following are the exceptions to this broad general rule. They are based are certain public policy considerations. They are: Resgestae; Admissions and confessions; Statements U/S32 and 33; Statements in Public documents; Opinion of experts.
Direct evidence can be given either orally or in documentary form. However if the law requires transaction to be in writing or oral terms are reduced to writing, oral evidence is not permitted (s.91, 92). Even this documentary evidence that can be produced must be through original (Primary evidence) unless law permits secondary evidence. Primary evidence means original document itself. Another important rule connected to this point is that contents of documents must be proved with the aid the person who is author or executants or scribe or witness to the document or person acquainted with the facts of the document, Expert. In case of public document or document of thirty years old any person can produce and prove the facts contained in it.
3) Competence: Persons though admitted to speak facts they shall qualify test laid down under S.118 to S.132. The first and foremost qualification to be a witness is mental capability. In other words witness must be capable of understanding questions and give rational answers to those questions and not expressly prohibited by law not to give evidence. Mental capability and not prohibited by law are alone can be witness before court.
4) Burden of proof: The person whoever avers as to existence of any of his legal right or liability of another he must prove the same. If he fails to prove it he will fail. If any person wishes the court to believe any particular fact, burden to prove the same lies on him. If the proof of one fact depends on the proof of another, burden to prove the later lies on the person who wishes to the court to believe former i.e, on the same person. There are certain exceptions to this rule. They are: presumptions, estoppel, admissions, judicial notice, Facts admitted. They are exceptions as they relieve the party’s burden to prove certain facts subject to certain qualifications.
5) Mode of Recording Evidence: In criminal witness should depose facts by coming to court except u/s.138 NI Act by way of affidavit, however cross must be before the court. The whole trial should occur in the presence of accused except when it is dispensed by S.317Cr.P.C. According to O.18 R.4 in every case, the examination-in-chief of a witness shall be on affidavit. The cross-examination and reexamination shall be taken either by the court or by the commissioner appointed by the court. The names they are referred with PW1, PW2 etc for prosecution in criminal case and DW1, DW2 for defense in a criminal case and whereas in civil case plaintiff witness are called as PW’s and defendant witness as DW’s. Evidence of witness is called Deposition. In every deposition normally there are three parts. They are: Examination-in-chief, Cross-examination, Re-examination.
S.137 of IEA deals with examination of witnesses Chief-Examination: The questions put to and the evidence elicited by the person who calls the witness is examination-in-chief. Leading questions shall not be asked. Cross-Examination: The questions put by and evidence elicited by the adverse party from the witness is called cross-examination. Re-Examination: Subsequent to the cross examination any questions pout to and answers elicited by party who called the witness is known as re-examination. The order examination is follows: (a) Chief examination (b) Cross-examination (c) Re examination (S.138). As per section 139 of the IEA, a person summoned to produce a document doesn’t become a witness. He does not be cross-examined unless and until he is been called as witness. According to S.140 witness to character may be cross-examined and re-examined.
6) Evidence Kinds: Oral and documentary, Direct and circumstantial, hears say, Positive and negative; Substantive, corroborative, contradictory.
(a) Direct evidence: It is the testimony of witnesses as to any matter of fact which the witnesses have themselves perceived. Ex: A is accused of the murder of B by stabbing. C is eye witness to the transaction of stabbing. The testimony given by C is direct evidence.
(b) Hearsay evidence: It signifies the evidence heard and said; it is also sometimes called as a second hand or unoriginal evidence. Hearsay evidence is the evidence learnt by the witnesses not through the medium of their own senses but through the medium of third persons. S.60 prohibits Hearsay evidence subject to the exceptions provided in the Evidence Act. © Circumstantial evidence: It is the testimony by witnesses as to the circumstances from which an inference is to be drawn as to the fact in issue. In cases where direct evidence is not available then circumstantial evidence can be restored to.
Substantive Evidence: Oral testimonies before the court by a witness except dying declaration. Basing upon them a conviction or decree can be rendered provided such evidence is relevant and admissible. However, it is unsafe and improper to act upon uncorroborated evidence as it can’t said to be credible.
Corroborative evidence: Corroborate means speaking in support with earlier statement or recorded version or document by a witness before the court. Corroboration adds value to the evidence before the court as there is a consistency and such it deserves act upon it. Section.157 Evidence Act talks about corroboration.
Contradictory evidence: Contradictory means speaking contra to earlier recorded version or document by a witness before the court. Contradiction diminishes value to the evidence before the court as there is no consistency and such it not safe to act upon. A material omission amounts to contradiction. A witness before the court can be either corroborated or contradicted only with his earlier recorded version but not with some others. Section.145 Evidence Act talks about contradiction. A witness may be cross-examined as to his previous statements without showing him the writing. If the previous statements in writing of a witness is to be contradicted (can be used as evidence against him) it must shown to witness and he must be given an opportunity to explain the contradiction. If the witness admits it amounts to contradiction. However, if the witness dispute with earlier version it must be put to the person who recorded the statement i.e investigating officer. Normally and naturally the investigating officer deposes that testimony of witness before the court is untrue and then statement becomes contradiction.
Use of contradictions: If there are contradictions in the evidence and if by such contradictions the veracity of the evidence is affected, it can be ground for the court to reject the evidence of such witness. Vishnu Naryan Moger v. The Karnataka State,1996CrLJ1121(Kant).The contradictions are valuable material in favour of the accused for the purpose of challenging the reliability of the witness and impeaching his credit Baladin v. State of U.P., AIR1956SC181.
Omission: Non-mentioning of material fact either in F.I.R, 161, 164,etc., documents, but made before the court for first time in the witness box. An omission to state a fact or circumstance in the 161 statements may amount to contradiction if it appears significant and otherwise relevant. Whether an omission amounts to contradiction in a particular context is a question of fact. The Supreme Court reviewing the earlier case law made the following observations to consider what omission amount to contradiction: (a) Omissions, unless by necessary implication be deemed to part of the statement, cannot be used to contradict the statement made in the witness box; and (b) They must be in regard to important features of the incident in the statement made before the police. It is quite obvious from S.162 (1) that statements s not reduced to writing by the police officer cannot be use for contradiction. However, the Court has taken the position that though a particular statement is not expressly recorded, a statement that can be deemed to be a part of that expressly recorded can be used for contradiction, not because it is an omission strictly so called but because it is deemed to form part of the recorded statement.
EX: 1:Before police: A stabbed B at a particular point of time;
Before Court: A & C stabbed B at a particular point of time;
In the statement before the police the word only can be implied i.e. the witness saw only A stabbing B
EX: 2:Before police: A stabbed B & ran towards north side;
Before Court: A stabbed B & ran towards south side.
Since it is not possible to run towards south and north direction at same point of time, one of them must be necessarily false. In the statement before the police the word only can be implied i.e. the witness saw only A stabbing B