1. Write a note on fact and fact in issue?

Fact: S.3 says Fact means and includes:-

(1) Anything, state of things, or relation of things, capable of being perceived by senses. (2) Any mental condition of which any person is conscious.

Ex: (a) That there are certain objects arranged in a certain order in a certain place. 

(b) Any mental condition of which any person is conscious.

Fact in issue: S.3 of IEA defines fact in issue.

Fact in issue: Any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceedings, necessary follows. It means matter under controversy.

2.Write a note on Proved, disproved and not proved?

Proved: S.3 of IEA defines proved. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Disproved: Fact is said to be disproved when, after considering the matters before it, the Court either believes it doesn‘t exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it doesn‘t exist.

Not proved: A fact is said not to be proved when it is neither proved nor disproved.

3. Write a note about Presumption?

Ans Presumption is an inference drawn by the court based on certain proved facts. They are of three kinds: May presumptions are indicated in S.86 to 88, 90 & 114. Shall presumptions are indicated in S.79 to 85, 89 & 105. Conclusive proof is contained in S.41, 112 & 113.  It’s a short cut to Proof.

May presumption:  Whenever it is declared by the Act that the court may presume, the court upon proof of one fact may presume proof of another fact, it is called as may presumption. Thus court has a choice either to presume or not. Ex:  On record the following facts are proved: 1. Legal notice is received by defendant with respect to debt he owes to the. 2. Defendant didn’t reply. The court may presume that the defendant is silent because he has liability towards plaintiff or otherwise. If the court doesn’t presumes the fact burden lies on the plaintiff to prove it.

Shall presumption: Whenever it is declared by the Act that the court shall presume, the court upon proof of one fact, shall presume proof of another fact, it is called shall presumption. Thus court is under an obligation to presume a fact. Ex: As per S.113B If a married woman dies in an unnatural manner with bodily burns within seven years of her marriage and it is shown that she is subjected to dowry harassment, the court shall presume husband or his relative committed Dowry death. The court has no choice. This is called shall presumption.  If the accused failed to discharge his burden, he can be convicted for the commission of offence in view S.102 IEA.

Conclusive proof (S.4): If one fact is declared as Conclusive Proof of another, the Court shall not allow any evidence to be given to rebut it.  Under the Act there are only three conclusive proofs: S.41, S.113, 112. 280 days after dissolution of marriage or Marriage is in Subsistence + Sexual Intercourse (access) = Child Born. The Court shall conclusive believe that Child born is a legitimate and shall not allow any evidence to be given to rebut the same. 

4.Write note Resgestae?

Resgestae:  Facts even though they are not in issue but if they are so connected as to form part of the same transaction they are relevant whether they occur at the same time and place or at different times and places. Transaction means an unbroken event. Example:- A is accused of the murder of B by beating him whatever was said or done by A or B or the by standers at the beating, or so shortly before or after it as to form part of the same transaction is a relevant fact.

5. What is the use of facts like motive, occasion, cause, introductory or explanatory, inconsistent etc., as their proof does not determine fact in issue?

Ans: It is true to determine right or liability facts in issue shall be proved and proof of these facts doesn’t amount to proof of fact in issue. However, it shall be noted that every fact in issue has forward and backward linkages which help the court to arrive at conclusion with assertiveness. S. 6 to 11 IEA help parties to give forward and backward linkages for occurrence of fact in issue or any other relevant fact. a) If such fact form part of the same transaction(S.6) b) If it is the occasion, cause and effect of the fact in issue(S.7) c) Facts relating to motive, preparation and previous or subsequent conduct. However, conduct must be accompany and explain act(S.8) d) Facts necessary to explain or introduce relevant facts(S.9) e) If they are inconsistent with any fact in issue or relevant fact (S.11).

6. What is identification parade?

Ans: Identification Parade: Facts establishing the identity of person are relevant facts u/s 9 of IEA. When the accused person is arrested on the basis of physical features given by the eye witness, police arranges the test of identification parade The object of conducting Identification parade is to test the truthfulness of the witness and his capability to identify an unknown person whom the witness seen only once. The mode and manner of conducting test identification parade is spelled out under Rule.34 of A.P.Criminal rules of Practice.

1. Identification parade is conducted in the presence of judicial Magistrate and the police have to leave the scene to ensure the free and fair conducting of Identification Parade,
2. Suspected person will be placed among the other persons who have same physical characters of the accused as far as possible, 3.Then the Magistrate calls the witness to identify the accused person to whom he had seen while committing the offense, 4. If the eye witness identifies the accused and picks up the person to whom he had seen while committing the offense, the Magistrate records to that effect and he completes the proceedings. Later witness will be called by court at the time of trial to identify the accused person.

Evidentary value: It is not a substantive piece of evidence. It has only corroborative and contradictory value.

7. What is S.11 IEA? What is Alibi?

Ans: S.11 says facts not otherwise relevant become relevant 1) if they are inconsistent with any fact in issue or relevant fact. 2). If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Ex:Alibi: The plea of alibi postulates the physical impossibility of the presence of accused at scene of offence by reason of his presence at another place. Burden to prove alibi is on the accused. The credibility of alibi greatly strengthened if it be setup at the moment when the accusation is first made and be consistently maintained throughout the subsequent proceedings.

8.Write a note on admissions?

Ans:  It‘s an oral or documentary or electronic statement which suggests an inference as to any fact in issue or relevant fact. It must be a self harming statement except in cases mentioned u/s.21 IEA.  Admission of a fact relieves the burden to prove a fact.  Admission is a substantive piece of evidence. Admission must be always clear, and certain. It must be considered by the courts as a whole. S.31 says Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions of the Act. To treat any statement as admission it must be made by: a) Parties to the suit or their agents b) If they are third person they must have any proprietary or pecuniary interest in the subject matter of proceeding c) Persons from who parties to the suit or proceeding derived their interest in the subject matter of suit.

9.Write a note on and confessions:

A confession is an admission of guilt. Confession is dealt under Sections 24, 25, 26,27,28,29 and 30 of the Evidence Act. As per S.24 Confession is a relevant fact if it is made without there being any (i) inducement (ii) threat or (iii) promise.  It can be made before any person including Magistrate. However, confession made to police officer is irrelevant except in case of S.27. As per S.27 if a fact is discovered in consequence of information received from the accessed, so much of the information as it distinctly relates to discovery of fact is a relevant fact.

10. Write a short note on admissions and confessions?

11. What are essentials of Dying Declaration and mode of recording it?
12. Meaning of Dying Declaration: It is a relevant fact in view of S.32 (1) of the Evidence Act 1872. Dying Declaration is a statement made by a person at the time or before the time of his death as to cause of his death or circumstances relating to cause of his death. As the person who made such Dying declaration is no longer available, the person in whose presence such statement was made can testify the facts about the death of the deceased even though he didn’t perceive actual incident with his own senses.  Thus Dying Declaration is one of the exceptions to the Hearsay rule of evidence.

Evidentiary Value of D.D: It’s a substantive piece of evidence. Once the court is satisfied that the D.D was voluntary and not influenced by any extraneous consideration, and inspires confidence about it truthfulness court convict a person solely on its basis without any corroboration. If the person didn’t die and he is alive his statement can be used for contradiction U/S.145 or corroboration U/S 157 of the IEA.

Mode of recording: The mode of recording D.D is spelled out under R.33 of Criminal rules of practice.

1. D.D may be oral or written. It can be recorded by any person including a police officer depending upon the urgency. If time permits it is always desirable to get the services of the Magistrate to record D.D as it has its own value. If it is in the hospital the certificate of the medical officer about the mental condition is necessary.
2. D.D must be of a person who is competent to testify as a witness, if alive.
3. There is no particular method of recording a D.D. It is desirable to record it in a question and answer and the answers be written in the words of the person making the declaration. It must be complete.
4. The statement must be read over and the signature or thumb impression has to be obtained .The time of recording shall be noted.
5. The court is obliged to rule out the possibility of the statement being the result of tutoring, prompting or vindictive or a product of the imagination.

12. Write a note on Expert Opinion?

Ans: It is dealt under S.45 & 46.  A case can be proved with the aid of expert opinion as it is declared as relevant fact under S.45 of the Evidence Act.  The opinion of a person who is an expert in any of the following subjects is a relevant fact. The subjects are like this: Opinion as to: a) Foreign law b) Science c) Art d) Identity of handwriting or finger impression. Expert opinion shall be supported by reasons. Expert opinion doesn’t bind the court, thus it is not a conclusive in nature. It shall be received like any other evidence and it is only an advisory opinion. 

13.Write a note on Character evidence?

Ans:  The general rule is Character evidence is irrelevant either in civil or criminal cases except under certain situations. They are expressly dealt under S. 51 to 54.

Civil Cases : It is irrelevant except in two conditions. They are: a) Character itself is in issue, b) If it mitigates affects the amount of damages to be awarded.

Criminal Cases: Evidence of good character is relevant. Evidence of Bad character is not relevant except two conditions:

1. a) When it is itself a fact in issue b) To rebut the evidence of good character

14. Which facts need not be proved in the court?

The following facts are need not be proved :(a) facts which the court will take judicial notice (S.57) (b) facts admitted by parties (S.58) However the court may in its discretion require the facts admitted to be proved otherwise then by such admission.

15. Which facts court can take judicial notice?

Ans: S.57 lists 13 facts, which the court is bound to take judicial notice. They are:

1. All laws in force in the territory of India.
2. Articles of War for the Indian Army, navy or Air Force.

3.The course of proceedings of parliament of the U.K, of the constituent Assembly of India, of parliament and of the legislatures established under any laws for the time being in force in the state or in India.

4. The division of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the official Gazette.
5. The commencement continuance and termination of hostilities between the government of India and any other State or body of persons.
6. The names of the members and officers of the court and of their deputies and sub-ordinate officers and assistance, and also of all officers acting in execution of its process , and  all Advocates, pleaders and  other persons authorized by law to appear or act before it.  7. The rule of the road on land or at sea.

16. What is the meaning of Admissibility or Hearsay rule of evidence?

Admissibility (S.59 & 60): All relevant facts can be proved by way of oral evidence except the contents of documents and as such Oral evidence shall be direct. It means evidence shall be given by those persons who perceived with their own senses. Unless these people give evidence court is prohibited to treat the relevant facts testified them as evidence. This is called admissibility rule. However there are some exceptions to this rule.   Exceptions to hearsay rule of evidence: a) Resgestae(S.6) b) Admissions and confessions c) Statements U/s.32  d) Evidence given in judicial proceeding or before any person authorized to take evidence by law e) Statements in Public documents f) Opinion’s of experts.  The sections exempted from Hearsay rule are: S.21, 22, 27 to 30 b) S.32, 33, 34 to 38, 40 to 42, 45.c) S.51, 53 and 54.

17. What is the mode of Proving a document?

Mere filing of original document would not enable the court to read the contents there in the document unless any one of the following person as listed under S.67 come as witness. They are: 1) By calling a person who signed or wrote the document (2) By calling a person in whose presence the document was signed or written (3) By calling a handwriting expert (4) By calling a handwriting expert (5) By circumstantial evidence (6) By calling a person acquainted with the hand writing of the executant.  The above rule spelled out u/S.67 doesn‘t apply in case of public documents. The Public Documents are admitted in evidence as exception to the hearsay rule as the facts contained in them are made by the authorized or competent agents of state in discharge of their public duties.

18. What is the mode of proof of WILL?

A: Will is a compulsorily attestable document as per S.63 of the Indian Succession Act, 1925. Registration is optional. The law relating to proving the contents of the WILL is dealt under S.68 of Indian Evidence Act, 1872.  As per S.68 of Evidence Act, the court to read a WILL as part of evidence, one of the attesstor shall be examined as witness. However, if such attesting witness is dead or can’t be subject to the process of the court or not capable of giving evidence, WILL can be proved in any of the below mentioned ways: They are dealt under S.69 to 71. Thus the aid of S.69 to 71 can be taken only upon exhausting the rule laid down u/s.68.

S.69 says if the attesting witness is not available, the attestation of one attesting witness can be proved by other evidence in his hand writing.

S.71 says If the attesting witness denies or doesn’t recollect the execution of the document; its execution may be proved by other evidence.

S.70: If a party to an attested document admitted the execution of the document.

19. What is primary Evidence?

Primary evidence (S.62): Document itself is produced for the inspection of the court. It is the evidence which the law requires to be given first

IEA recognises any of the following four as Primary evidence:

1. The original document itself. Ex: A WILL
2. If a document is in several parts each part is original Ex: One Will but executed in three parts. Each part is original.
3. If a document is executed in counterpart each counterpart is original as against the party who execute them. Ex: Agreement of Sale signed by the vendor is given to vendee and viceversa. Since, it is in two copies, one is counterpart to another. If vendee files a case the copy signed by vendor is primary against the vendor.
4. If a document is created by uniform process like printing, photography or lithography all are original.

20. What is Secondary Evidence?

Secondary evidence (S.63): a) Certified copies. B) Copies made from the original by mechanical process and copies compared with such copies. c) Copies made from or compared with original. d) Counter parts of the documents as against the parties who did not execute them. e) Oral accounts of the contents of documents by a person who has seen it.

21.Whether secondary evidence can be produced in the absence of primary?

The law relating to this subject is dealt under S.64 to 65 of IEA. The general rule is that document must be proved by primary evidence only and if the case of the party falls in any of the given situation, secondary evidence can be given:

1. If a party wishes to produce secondary evidence, an attempt must be made to produce original by serving a notice on the person in whose possession the document is. If upon, such notice, if the party failed to produce the same, secondary evidence can be given.
2. If the existence of original have been is admitted in writing
3. If the original had been destroyed or loss or cannot be produced
4. If the original is not moveable, 5. If the original is a public document
5. If the original consists of numerous accounts.

22.What is a Public Document?

A: S.74 defines Public Document: 

1. Acts or records of sovereign authorities Ex: Proclamations, Ordinances.
2. Acts or records of acts of official bodies & tribunals.
3. Acts or records of public officers of India or of a foreign country.

The Public Documents are admitted in evidence as exception to the hearsay rule.

Private documents though made by private individuals but kept as record in public offices in order to facilitate public to have access to it are private documents only. Ex: Sale deed.

23. Write about: Ambiguous document, Latent & Patent Ambiguities?

The intention of the document should be clear and certain. However, if it conveys double, doubtful or unclear meaning, such document is called as Ambiguous document.  The ambiguities are classified in two kinds: – Patent and Latent.

Patent Ambiguity (S.93):  If the ambiguity appears on the face of the document itself and it can’t be rectified either with the aid of external or internal tools such ambiguity is called patent ambiguity.  It may be due to wrong description or due to incompleteness of document. No oral evidence can be allowed to remove patent ambiguity. Ex: Raju agrees to sell Shekar a horse for Rs1000/- or 2000/-. The agreement is not clear about the price and hence evidence cannot be given to supply the defect. Therefore Patent Ambiguity cannot be rectified.

Latent Ambiguity (S.95 to 97): The latent ambiguity is in hidden one but the external circumstances don‘t create any difficulty or doubt about its application to subject matter. The general rule is a latent ambiguity can be rectified with the aid of external or internal aid and as such evidence can be given as to those aids. 

24. What is an Ancient Document and ordinary document? Why such distinction is maintained under evidence act?

Ancient Document: A thirty years old document is known as ancient document or five years in case of electronic document. The thirty years period is counted from the date of tendering such document as evidence in the court of law. Any document which is less than thirty years old is known as ordinary document. The advantage of ancient document is that court may presume following facts:

(1) That the signature and every other part of such document were proper and signed or written by the person whose signature it bears. However, it doesn’t mean contents are proved, they shall be independently proved.  .

(2) That it was duly executed and attested by the person by whom it purports to be executed and attested.  To raise presumption u/s 90 document must be produced from the proper custody and in appearance free from suspicion.

Ex: Raju has been in possession of landed property for a long time. He produced from his custody deeds relating to the land showing his title to it.

24. Whether oral evidence is permitted if the transaction is in writing or law mandates to be in writing?

Ans: No, Section 91 says when the terms of contract reduced to the form of a document or in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given, except the document itself or by secondary evidence where it is allowed.

26. Whether evidence can be given varying the terms mentioned in the document?

Ans: No, The general rule is no oral evidence is permitted when transaction is reduced to writing. However under the following six exceptional situation oral evidence can be let in. They are: 

1. Any fact which invalidates a document can be proved those facts are like this fraud, intimidation, illegality, wanton or failure of consideration, want of capacity, want of due execution etc.,
2. If the document is silent and matter sought to be proved is not inconsistent with the facts contained in the document, oral evidence can be let in.
3. A contemporaneous agreement constituting a condition precedent to the attaching of any obligation under written agreement not to be enforced until the event of certain event.
4. The existence of any subsequent oral agreement to rescind or modify any contract, grant of disposition of property can be proved, or the parties are free to rescind or modify agreement, however this rule has no application if transaction is required to be in writing or registered.
5. If the contract is silent, oral evidence can be let in, so as to prove usage or custom usually annexed to such contracts.
6. Evidence can be let in as to any fact which would interpret the document.

26A. What are guidelines to Intrepret a document? Whether extrisic evidence can be taken to intrepret a document?

Section 93-98 of evidence Act lay down certain guidelines for interpreting a document. 

Ist Rule: If the document is clear and plain, no external aid is to be taken to interpret the document.  

II Rule:  If the document is defective or ambiguous, no external evidence can be given.

III Rule: If the language used in the document is plain but it is unmeaning in reference to existing facts, evidence can be used to show that it was used in a peculiar sense.

IV Rule: If the language of a document may apply to only one of many facts, evidence may be given to show that to which fact it applies.

V Rule: When the language applied partly to one existing facts or other existing facts but not to the entire document, evidence may be given as to which fact it applies.

VI Rule: If the document is containing illegible or intelligible character, foreign, obsolete, technical or local or provincial expressions evidence may be given to explain meaning of those terms.

VII Rule: If a person who is not a party to the document can lead evidence of any facts tending to show a contemporaneous agreement vary the terms of the document. 

27. Write note General rules of Burden of Proof?

Ans: The term burden of proof indicates obligation to prove a case. The first four basic rules relating burden of proof are hereunder:

28. Whether Court may presume facts without their being any proof?

Ans: Yes, as per s.114 of evidence Act, The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common 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—

1. 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; That an accomplice is unworthy of credit, unless he is corroborated in material particulars; That judicial and official acts have been regularly performed;
2. b) That the common course of business has been followed in particular cases;

c)That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

d)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;

f)That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

29. What are the qualification and disqualifications to be a witness?

Ans: a) Qualification to be a witness: Every person is a competent witness. The only test is that one must be capable of understanding questions put to him and give rational answers to those questions (S.118). To put straight even child, old age persons, sick person, insane persons, dumb persons are competent witness if they are capable of understanding questions put to him and give rational answers to those questions. Dumb witness can give evidence by way of gestures and signs (S.119). In fact, even the wife and husband are competent witness against or for the suit filed by either of the spouse, though, in the eye of religion wife and husband are said to be one and same(S.120). Thus under IEA, there is no discrimination to be a witness either on the base of sex, caste, age, relation between parties to the suit, physical or mental disability, creed, race, religion, position in life, character & conduct of the witness as long as the above test is passed.

1. b) Disqualification to be a witness: Despite fulfilment of test laid down under S.118 to 120, law disqualifies certain person to give evidence. The disqualification is based on certain solemn principles. They can be studied under following seven broad categories: a) Communication during marriage by either of the spouse, b) Evidence as to affairs of State by a person who is in possession of such information c) Confidential Official Communications by a person who is in possession of such information d) Information as to the Commission of offences by a person who is in possession of such information e) Professional communications by a professional (Ex: Lawyer) who is in possession of such information. f) Person who is in possession of documents belongs to others g) Production of documents or giving evidence would incriminate the witness.

30. Explain about Communication during marriage?

Ans:S.122 only prevents disclosure in giving evidence in court of the communication made by one spouse to the other. If the wife appears in the witness box to give evidence about the communication made to her by husband, prima-facie the communications may not be permitted to be deposed to or disclosed unless the husband consents. The protective provision u/s 122 is based on the wholesome principle of preserving domestic peace and conjugal confidence between the spouses during coverture.

Difference between S.122 and 120: According to S.120 the wife of an accused person is a competent witness. But while examining provisions of S.122 should be borne in mind and all direct questions as to the conversations that took place between her and her husband should be disallowed. She should be only asked to state what she did in consequence of what was told to her by her husband. She should not be permitted to state what exactly was told to her and that she did in consequence of that a particular thing or refrained from doing a particular thing.

31. Explain about Professional communications?

Ans: An advocate shall not permitted, except with his client‘s express consent to disclose any communication made to him in the course and for the purpose of his employment or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of the professional employment or To disclose any advice given by him to his client in the course and for the purpose of such employment (S.126).   The rule applies to interpreters and the clerks or servants of barristers, pleaders attorneys and vakils (S.127). The rule applies to confidential communication which has taken place with a professional legal adviser (S.129).

It must be noted that a party merely because gives evidence as to any of the affairs transpired between his counsel and himself doesn‘t mean party has consented his counsel to give evidence with respect to such matters. A party is said to have given consent only if the party call such advocate to depose such facts or gives express consent to give evidence. A failure on the part of the client to claim privilege cannot be stretched to the extent of amounting to express consent envisaged in the provision (S.128). If a person is in possession of documents belong to another such person shall not be compelled to produce such documents unless such another person consents for their production (S.131).

32. Discuss about Privilege of state as to production of records?

Ans: Person, who has derived any information from unpublished official records relating to any affairs of state, shall not give evidence of such mattes, except with the permission of the head of the department concerned. The head of the department has power either to give or withhold such permission as he thinks fit (S.123).

33. Whether a public officer can be compelled to give evidence about official confidential information?

Ans: No, as per S.124 IEA, Public officer who has received any official confidential information shall not disclose such matters, if he is of the opinion that disclosure would result harm to public interest.

34. Whether court can ask Magistrate or police officer how he got the information about commission of offence?

Ans: No, as per S.125 IEA, the Magistrate or police officer shall not be compelled to testify how they got any information as to the commission of any offence. Similarly, the Revenue officer shall not be compelled to how he got information as to the commission of offence against the public revenue.

35. Whether a witness can refuse to produce documents or give evidence on the ground that it would incriminate him?

Ans: NO, he shall speak out. As per S.132 a witness shall answer all questions put to him and can‘t take excuse from answering the question on the ground that answering the question would expose him to penalty or forfeiture of any kind. However, basing on this answers witness shall not be subjected to any prosecution except for perjury. Thus court can compel a witness to give evidence for any question even though answer, if given, would incriminate the witness or result forfeiture of property.

36. Whether a person can be a witness against himself?

No, because, one of the basic principles of human rights is that no man shall be a witness against himself, if the evidence given by him would subject to penalty or forfeiture of property. In fact this is also guaranteed under our constitution under A.20 and S.315 of Cr.P.C and 130 of the Evidence Act. The provisions are like this: A.20 of the constitution says no man shall be compelled to be a witness against himself. S.315 Cr.P.C says accused is not a competent prosecution witness but a competent defence witness. He can be called as a witness only upon his request in writing. Further, his failure to give evidence shall not be made subject of any comment by any of the parties the Court or give rise to any presumption against himself or any person charged together with that the same trial.

37. Probative value of the following witness:

Child, Accomplice, Dumb, Prosecutrix.

(a) Child Witness: IEA 1872 does not prescribe any particular age as determinative factor to treat a witness to be a competent one.  Child is a competent witness U/S 118, Competency of the child witness can be ascertained by putting a few questions to them in order to find out whether they are intelligent enough to understand what they had seen and afterwards inform the court. In the case of child witness the court should hold a preliminary examination and also maintain formal record in that behalf. Absence of such inquiry doesn’t make the evidence inadmissible. The evidence of child witness should be received with great care and circumspection. Child shall not be examined on oath. After close scrutiny of child witness, the court comes to the conclusion there is a truth of impress in it, there is no obstacle in the way of accepting the evidence of a child witness.

(b) Accomplice:- An accomplice is competent person to testify. S.114, illustration (b) of the IEA envisages the presumptive uncredit worthiness of an accomplice. But, then section 133 provides that conviction is not illegal merely because it rests upon an uncorroborated testimony of an accomplice. It is an established practice that it is unsafe to rest conviction on the evidence of a guilty partner in an offense without independent corroboration on the material particulars. Corroboration need not be direct, it is sufficient even though it is merely circumstantial of his connection with the offense.

1. c) Dumb Witness:- 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. Where it is stated by the judge that the deaf and dumb witness was unable to understand the questions put to him in chief or cross-examination, for the most part cannot make his meaning intelligible, his signs intended as answers cannot be accepted as evidence.

1. d) Prosecutrix Evidence: A prosecutrix is a victim. She is competent witness as per S.118 IEA. Her evidence must receive the same weight as it is attached to an injured in cases of physical violence. The court although can convict the accused without requiring corroboration but the judge should give some indication in his judgment that he had the rule of caution in mind and also give reason why corroboration is not necessary or give reason why he considered it to be safe to sustain the conviction without requiring corroboration.

38. Write briefly about various kinds of examinations.

Generally, the evidence of a witness consists of three phases. The first is Examination-in-Chief, the second is Cross-Examination and the last is Re-Examination and same is the order also (S.137).

Examination-in-Chief: The questions put to and the evidence elicited by the person who calls the witness is examination-in-chief.

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 put to and answers elicited by party who called the witness is known as re-examination.

The examination and cross-examination must relate to relevant facts, but the cross examination need not be confined to the fact to which the witness testified on his examination-in-chief.

39. Explain about leading questions?

Ans: According to S.141 a leading question is one which suggests the answer to the witness or which the person putting it wishes or expects to receive. A question itself contains answer. Ex:– Did you not see the accused running with a blood-stained knife from the scene of murder?. It is needless to say that both the chief or cross is carried with the aid of an advocate and chief is examination of witness by one‘s own counsel and cross is examination by opposite counsel. If in the examination-in-chief if witness is allowed to speak yes or no to the questions posed by his counsel, it is nothing but testimony of a counsel of the case. Therefore, law prohibits asking of leading questions in the examination-in-chief or re-examination except with the permission of the court (S.142). However, they can be asked in cross-examination (S.143).

40. What is meant substantive evidence?

The term substantive refers to real or important. Substantive evidence means real evidence. Judgment of a court must be based upon real evidence. Substantive Evidence is the evidence offered to support a fact in issue.  The depositions of witnesses before the court are substantive evidence. However there are two exceptions to this rule (a) Dying declaration (2) Confession.

41. What does the term mean corroborate?

The term corroborates evidence means Supplementary evidence provided to strengthen or confirm the substantive evidence. If a particular document has a value of corroboration or contradiction it has no value unless person who is party to such document comes before the court and give evidence as a witness. Those documents shouldn’t be looked as a part of evidence either for corroboration or contradiction at least one party to it has come and deposes before the court.

The statement which may be proved under the section in order to corroborate, may be verbal or in writing. The force of any corroboration by means of previous consistent statements must evidently depend upon the truth of the proposition that he who is consistent deserves to be believed. According to S.157 the testimony of witness is allowed to be corroborated with the help of any former statements made by him in respect of the fact in issue or relevant fact, statement made at or about the time when the fact in issue took place or made before any authority legally competent to investigate the facts. Section.157 I.E.A applies to a case where a witness is sought to be examined with reference to his earlier statement.

 Furthermore, as per S.156 when the evidence given by a witness is intended to be corroborated, questions can be asked as to any other surrounding circumstances or events which he observed at or near the place at which such relevant fact occurred. The rule contained in the S.157 applies to statements U/S 32 or 33 of the evidence Act also (S.158). In fact, statements U/S 32 or 33 can be used not only for the purpose of corroboration but also for contradiction.

Use of corroboration: If the evidence of witness is corroborating with his earlier version, it carries more value, as it is safe to act upon such evidence being consistent with earlier version and unshaken by cross-examination.

42. What is contradiction?

It means negate, denying by the same person with his earlier version. This is a general English dictionary meaning. But under law, it is different. It is defined under S.145 of the Act. A person is said to be contradicted with his previous statement only when a party makes a statement inconsistent with his previous statement is put to him and given an opportunity to explain the same. 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. However, there is no bar to cross-examine a witness to with respect to his previous statements without showing him the writing. Use of contradictions: The contradictions are valuable material and if they effect the root of the case, it is a ground to reject the evidence of such witness. Baladin v. State of U.P., AIR1956SC181.

43. What is omission? Whether omission amount to contradiction?

Ans: Mentioning a material fact first in the court without it being mentioned at a previous point of time despite opportunity to state the same is called as omission. Ex: Non-mentioning of certain facts either in F.I.R, 161, 164,etc., 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. See explanation to S.162 Cr.P.C.

EX: 1: Before police: A stabbed B over head.  

Before Court: A stabbed B over head and stomach. In the statement before the police the word only can be implied i.e. the witness saw only A stabbed B over head.

EX: 2: Before police: A stabbed B & ran towards north side;

Before Court: A stabbed B and 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

44. What are the values of statements or reports prepared by Police?

45. Whether a person summoned to produce a document becomes a witness?

Ans: No, as per section 139 of the IEA, a person summoned to produce a document doesn‘t becomes a witness. He does not be cross-examined unless and until he is been called as witness.

46. Whether a witness who is having valid objections to produce a document, when he is summoned to produce document is he be excused from withholding the document?

Ans: No, S.162 insists that a witness who has been summoned to produce a document shall bring such document to the court if it is in his possession or power. A witness who has been summoned is not excused from withholding the document although he may have valid objection for its production or admissibility. His first obligation would be to bring the document and raise any objection if he has any. The court, if it sees fit, may inspect the document and determines the admissibility of the document in evidence. The court may in this regard may take other evidence determine the admissibility of the document in evidence. This rule applies to S.123 of the Act.

47.When a party calls for the production of particular document by giving a notice to the adverse party and has inspected the document on its production, is he bound to make the document as a part of evidence?

 Ans: yes, he is bound to make it as part of evidence. According to S.163 When a party calls for the production of particular document by giving a notice to the adverse party and has inspected the document on its production, the adverse must make the document as a part of evidence.

48. Whether a party who is in possession of a document refuses to produce it when a notice is served on him for its production, can he subsequently make the document as part of evidence?

Ans: No, According to S.164: When a party who is in possession of a document refuses to produce it when a notice is served on him for its production, he cannot subsequently make the document as part of evidence unless the party asking for production consents or court gives permission.

49. Explain the power of a Judge to put questions to any witness or order production of any document with regard to the provisions of the IEA.

Ans: A court has unlimited power U/S 165 of IEA, to put any question to any witness or order him to produce any documents. This invariably should be done to do justice in the case, to ensure that no guilty go unpunished and no innocent person is convicted of an offence not committed by him. If the Magistrate finds that witnesses is not telling the truth he may put the question to make the matter clear. Under this section court may examine or recall or re-examine any witness in the interests of justice. Although the law allows the judge to put any question at any time, the time generally considered proper for an extended examination is when the lawyers for both parties have finished their questions or at least when the lawyer examining the witness at the time is passing on to a new subject. Where contingency arises on the part of the prosecutor due to omission of certain facts, the court may act u/s 165 and may question the witness to elicit the matter.

Restrictions on the power of the Judge:

1. The judge must cross-examine or order the production of a thing only to obtain proper proof of relevant facts.
2. Though irrelevant questions may be put by court, the judgement must be based upon the facts declared by this act to be relevant and duly proved.
3. The court shall not compel any witness to answer any question or to produce any document which are privileged u/s 121 to 131 both inclusive.
4. The judge shall not ask questions which are held to be improper u/s 148 and 149. A judge shall not dispense with primary evidence of documents for the purpose of proving the contents of a document unless justification is shown for the admissibility of secondary evidence u/s 65 of the Act

50. What are the various methods provided under IEA to test the credibility and reliability of the witness?

Ans: To act upon the evidence of the witness it must be credible. The credibility of the witness can be questioned in two ways. The one is posing questions to the witness himself and the other is by bringing independent evidence i.e., examining a witness.

Ist method: The credibility of the evidence varies from the person who deposed the fact i.e., his connection to the case and position he holds in the life or his character and conduct (S.146). In order to ascertain the same the witness can be questioned on the following issues. They are: a) Questions that test the veracity of a witness, b) Questions that establish the identity of the witness and position he holds in the life, c) Questions connected to the character of the witness.

IInd Method: S.155 enables the party to give independent evidence witness for the purpose of impeaching the credit of witness so as to convince the mind of the court that the evidence of the witness in question is not safe enough to be relied on.

1. By receiving evidence of persons who can testify that they, from their knowledge about the witness, believe him to be unworthy of credit.
2. Independent evidence can be adduced to impeach the credit of witness by showing that he is a professionally hired witness receiving a bribe or some other corrupt inducement.
3. By showing that the witness has made statements on previous occasion which are inconsistent with any party of his evidence, and which are liable to be contradicted.

Proof of such contradictory statements can be given to the extent which S.153 permits such contradiction. The previous contradictory statements made by a witness can be used for the purpose of discrediting his evidence but not other witnesses. The FIR which is recorded U/S 154 and 156 Cr.P.C can be offered as proof for the purpose of proving the inconsistency between FIR and the evidence given by witness.

51. Write a note on Hostile Witness?

Ans: Section 154: If a party calls a witness but such witness unexpectedly turn hostile towards the cause of the party or he may be unwilling to speak truth, such a witness is called as hostile witness. In such cases it is just reasonable that the party calling such witness must be given an opportunity to put questions that can be asked in the cross examination.  

Value of hostile witness evidence: Court can rely upon the evidence of hostile witness evidence to the extent it is supported by other evidence on record.

52. Write a note on Refreshing Memory?

Ans: Section 159 to 161: Section 159 permits a witness to refresh his memory by making reference to any writing made by him if court opines that same fresh in the memory of the witness at the time of transaction or so soon afterwards. Further, witness can also be permitted to refer any document written by any person provided if it is seen by him in above said time. An expert may refresh his memory by reference of professional treatises. Witness can refresh his memory with the aid of copy of the document also provided he gives proper explanation for the absence of original.

S.161 says the above said document through witness refreshed his memory must be shown to cross-examiner also, if he asks. If a witness who is having valid objections to produce a document, when he is summoned to produce document doesn’t produce it, subsequently he can’t be allowed to produce the same. 

53. What are the limitations on the counsel conducting cross-examination?

Ans: If the character of the witness is freely allowed to be attacked in the cross examination, it is natural that no self respecting witness would be inclined to appear in the court to depose evidence. It is therefore necessary to avoid unpleasant questions being put to the witness. Some protection must be assured to him. They are hereunder:

1. In the cross examination any question that imputes anything to the witness is permitted provided it would seriously affect the opinion of the

Court as to the credibility of the witness on the matter of which he testifies. However, if there is a great disproportion between the imputation made against the witness‘s character and the importance of his evidence, court shall not allow the counsel to ask such questions (S.148). It is one of the principles that the Court may, if it sees fit, draw, from the witness‘s refusal to answer, the inference that the answer if given would be unfavorable.

1. Court has power to direct the lawyer not to ask the question referred under S.148 if such imputation is not well founded or it has no reasonable grounds (S.149).
2. Section 153 says when the witness answers a question relating to the inquiry which is put to him to shake his credit by injuring his character no evidence shall be given to contradict the answer given by the witness. Whatever be the answer the witness gives, it must be received without any contradiction. However if he answers falsely he may afterwards charged for giving false evidence. To this above rule there are two exceptions: (a) previous conviction (b) impeaching his impartiality. In both two cases witness answers can be contradicted.

1. Similarly, S.151 authorizes the court to forbid indecent or scandalous questions being asked even though such questions or enquires may have some kind of bearing on the questions before the court.
2. e) Furthermore, S.152 authorises that court to 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.
3. f) If the advocate crosses the above limits and he is ruthless in questioning the witness and thereby injuring the character of witness and same is not based on reasonable grounds, the court can report the actions of such advocate to the appropriate authority i.e., Bar Council or High Court (S.150).

54. What is meant by Issue Estoppel? When does it apply in a criminal proceeding?

The rule of issue estoppel arises in criminal proceeding. In a criminal trial is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 300. This is was discussed by a Constitution Bench of the Supreme Court in Manipur Administration v. Thokchom Bira Singh.