Relevancy, Proof & Evaluation

31
May

PCS (J) Notes: Kinds of Presumptions

  1. Presumption of Law (Rebuttable and Irrebutable)

Irrebuttable presumption of law are those legal rules, which are not overcome by any evidence that the fact is otherwise. A well-known instance of an irrebuttable presumption of law can be found in section 82 of IPC wherein it is laid down that “Nothing is an offence which is done by a child under seven years of age”. If in a criminal case, it is shown that the accused is below seven years of age, he shall be presumed innocent. No evidence will be allowed to be adduced that the accused was guilty. They are indicated in the Indian Evidence Act by the expression “Conclusive Proof” 9Section 41, 112 & 113)

Rebuttable Presumption of Law

Rebuttable presumption of law arises when presumption of law are certain legal rules, defining the amount of evidence requisite to support a particular allegation, which facts being proved, may either be explained, or rebutted by evidence to the contrary, but are conclusive in absence of such evidence. Eg. A man is presumed innocent until proved guilty; a child born in a legal wedlock shall be presumed to be legitimate and one who questions his legitimacy must disprove it. They are indicated in the act by the expression “shall presume” (Section 70 to 85, 89 and 105)

  1. Presumption of Fact

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

  1. Mixed Presumption

Mixed presumption of law and fact are chiefly confined to the English law of real property.

Presumption of fact Presumption of Law
Based on logic, law of nature and human experience Based on provisions of law.
Always rebuttable and goes away when rebutted by establishment of positive proof. Conclusive, unless rebutted as provided under rules giving rise to presumption.
Position of presumption of fact is uncertain and transitory. Certain and uniform.
Court can ignore presumption of fact howsoever strong it is. Court can’t ignore presumption of law.
Derived from law of nature, prevalent customs and human experience. Derived on established judicial norms and they have become part of legal rules.
Court can exercise its discretion while drawing presumption of fact. Presumption of law is mandatory, i.e, Court is bound to draw presumption of law.
31
May

PCS (J) Notes: “May Presume”, “Shall Presume”, and “Conclusive Proof”

Every fact, on the basis of which a party to a proceeding wants to take judgment, must be proved. No Court can, while deciding a case, place reliance on a fact unless and until it has been proved according to the rules laid down in the Evidence Act. But, the law of evidence has provided that Court can take into consideration certain facts even without calling for proof of them, i.e, the Court may presume certain things.

In the law of evidence, the word ‘presumption’ is used to designate an inference affirmative or negative of the existence of some fact, drawn by court by a process of probable reasoning from some matter of fact either judicially noticed or admitted or established by legal evidence to the satisfaction of the Court.

May Presume: Whenever it is provided that the Court may presume a fact, the court may take notice of the fact without calling for its proof or may call upon a party to prove that fact. Here the court has discretion to presume a fact or not to presume it. Section 90 of the Evidence Act provides that when a document purporting to be thirty years old is produced from a proper custody, the court may presume that the document was signed and written by the person by whom it purported and is said to have been written and signed. Generally, when a document is filed in a case it is to be proved by adducing evidence as to who wrote the deed and who signed it. Unless and until it id done, the document cannot be read in evidence. If a document produced before the court is thirty years old, the court may dispense with the proof of it and read the document in evidence without calling for the proof of it. The court may also call for the proof of it and may order that the document will not be read in evidence without being proved. Section 88 of the Evidence Act lays down that when a telegram has been received the court may presume that the message forwarded from Telegraph Office to a person is the same which was delivered for transmission at the office from which the message was sent.

Shall Presume: Whenever there is a provision to the effect “that the court shall presume a fact” the court cannot exercise its discretion. It is compelled to take the fact as proved, i.e, it shall have to presume that fact. But in this case the court will be at liberty to allow the opposite party to adduce evidence to disprove the fact so presumed and if the opposite party is successful in disproving it, the court shall not presume the fact. In the Indian Evidence Act, the word “shall presume” indicate that presumption therein is unrebuttable. Section 89 of the Indian Evidence Act “provides after notice to produce, attested, stamped and executed in the manner required by law”.

Conclusive Proof: Whenever it is mentioned that a fact is a “conclusive proof” of another fact, the court has no discretion at all. It cannot call upon a party to prove that fact nor can it allow the opposite party to adduce evidence to disprove the fact. Section 41 of the Indian Evidence Act provides inter alia that a final judgment, order or decree of a competent court in exercise of matrimonial jurisdiction is a conclusive proof of that legal character.

30
May

FALUS IN UNO FALUS IN OMNIBUS

This maxim means that if a thing is false in respect of one, it must be taken to be false in respect of all. It is sometimes argued that if a part of the evidence given by  a witness has been disbelieved, the whole of it should be disbelieved as a rule of law. This maxim does not occupy the status of law in India. It is merely a rule of caution. All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded. In Harishchandra v. State of Delhi, AIR 1996 SC 777, the Supreme Court held “while appreciating the evidence of witness in a criminal trial, especially in case of eye witness, the maxim ‘false in uno falsus in omnibus’ cannot apply and the court has to make effort to shift grain from the chaff. It is of course true, that when a witness is said to have exaggerated at the trial stage and has tried to involve many more accused and if that part of evidence is found acceptable remaining part of evidence has to be scrutinized with the care and the court must try to see whether the acceptable part of evidence gets corroborated from other evidence on record so that the acceptable part can be relied on. In N. Jayaraman v. State of Tamil Nadu, AIR 1993 SC 777, due to mutual enmity the deceased was injured and finally succumbed to these injuries. The prosecution case was that every accused caused the injury. But, four accused were released and two were convicted. It was held by SC that only because the testimony of some the witness were not sufficient for conviction, the testimony of all witness should be rejected, this is not correct and the maxim ‘falsus in uno falsus in omnibus’ does not apply in toto.

30
May

PCS (J) Notes: “Proved”, “Disproved”, “Not Proved”

Proved

A fact 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.

The section says that 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.

Proof does not mean proof of rigid mathematical demonstration, because that is impossible. It means such a evidence as would induce a reasonable man to come to a conclusion. All that can be done it to adduce such evidence as that the mind of the judge is satisfied that the fact is so. In the ordinary affairs of life, courts do not require demonstrative evidence. The true question in trials of facts is not whether it is possible that the testimony may be false but, whether there is sufficient probability of its truth.

The extent to which particular evidence aids in proving the fact in controversy is called as probative force. This probative force must be sufficient to induce the Court either (a) to believe in the existence of the fact sought to be proved, or (b) to consider its existence so probable that a prudent man ought to act upon the supposition that it exists. The test is of probability upon which a prudent man may base his opinions. In other words, it is the estimate, which a prudent man makes of the probabilities having regards to what must be his duty as result of his estimate. It must be borne in mind that suspicion and conjecture cannot take the place of legal proof.

Disproved

A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not 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 does not exist.

According to the section, a fact is said to be disproved when, after considering the matters before it, the court either believes that it does not 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 does not exist. It is quite important to note that the definition of word disproved is converse of the definition of the word proved. The word ‘disproved’ is akin to the word ‘false’. What is disproved is normally taken to be false thing.

Not Proved

The section merely says that fact is said not to be proved, when it is neither proved not disproved. The expression “not proved” indicates a state of mind in-between ‘proved’ and ‘disproved’, that is, when one cannot say whether a fact is ‘proved’ or ‘disproved’. It negatives both proof and disproof. In Nawal Kishore Somani v. Poonam Somani AIR 1999 AP 1, the Andhra Pradesh High Court said that a fact, which is ‘not proved’, does not necessarily mean that it is a false one. The is said to be not proved when it is neither proved nor disproved. On the other hand, the fact is said to be disproved when after considering its non-existence, so probable that a prudent man ought, under circumstances of this case, to act upon the supposition that it does not exist.

A fact, which ‘not proved’, may either be true or false. A doubt lingers about its truth. Merely because it is ‘not proved’ one should not jump to the conclusion that it is ‘disproved’. The phrase not proved is the result of careful scrutiny of the person of ordinary prudence that the fact neither exists, nor its non-existence is proved with certainty.

29
May

PCS (J) Notes: What are the conditions precedents for conviction on circumstantial evidence?

Circumstantial Evidence is that which relates to a series of facts other than the fact is issue. Circumstantial evidence assumes importance where direct evidence is lacking. Fact which transpires with the consent of the parties, for example, settlement of a bargain, may perhaps be reduced to the form of a document which constitutes the direct evidence of it.

The condition precedent for conviction on circumstantial evidence, as enumerated in Kusum and Ankama rao v. State of A.P. are as follows:

  1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concurred ‘must’ or ‘should’ and not ‘may be’ established;
  2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
  3. The circumstances should be of a conclusive nature and tendency;
  4. They should exclude every possible hypothesis except the one to be proved; and
  5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.

 

29
May

PCS (J) Notes: Classification of Evidence

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Evidence may be classified as (1) Direct and (2) Circumstantial Evidence.

Direct Evidence means any fact which without the intervention of any other fact proves the existence of a fact in issue e.g, A is tried for causing grievous hurt to B with a club. C disposes to the effect that he saw the accused, inflicting the blow, which caused the grievous hurt. The evidence being adduced by C is direct evidence. Another example, A files suit against B on the basis of an agreement. C deposes that h was present when the agreement was entered into and he witnessed it. Deposition of C as to the precise point inn question is an illustration of direct evidence.

Circumstantial Evidence is that which relates to a series of facts other than the fact is issue. Circumstantial evidence assumes importance where direct evidence is lacking. Fact which transpires with the consent of the parties, for example, settlement of a bargain, may perhaps be reduced to the form of a document which constitutes the direct evidence of it. But facts that happen suddenly, such as road accidents or crimes or torts, do not leave behind much direct evidence. Criminal lay their plot in secret. They execute it ruthlessly under the cover of darkness or secrecy. They silence their victims altogether and do not leave any trail of evidence behind. In such cases, the main event will have to be reconstructed before the court with the help of surrounding circumstances such as cause or the effects of the event. Circumstances sometimes speak as forcefully as does the direct evidence. When footprints are found on sand; it is plausible to infer that someone must have gone that way and also from the shape of footprints it can be ascertained as to whether those are of man or of a bird or of an animal. In case of State of U.P. v. Ravindra Prakash Mittal, AIR 1992 SC 2045 the Supreme Court made certain observations vis-à-vis circumstantial evidence.

They are as follows:

  1. The circumstances from which the conclusion is drawn should be fully established.
  2. The circumstances should be conclusive in nature.
  3. All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence.

In Krishna Ghosh v. State of West Bengal, the accused persons were convicted for offences punishable under section 498-A, 302 read with section 34 IPC. The High Court dismissed the appeal. The appeal was made to the Supreme Court on the ground that the case rested on the circumstantial evidence and circumstances did not establish the guilt. The facts were that deceases women had died of injuries caused by the physical assault on her whose dead body was found in her matrimonial home. The death took place within one year and four months of her marriage. The accused persons were absconding after the incident which was of considerable importance. The injuries noticed by the witness were fit with the evidence of autopsy surgeon. The plea of alibi set by the appellant could not be established. The report of the doctor was that the death was due to asphyxia resulting from throttling which was ante mortem and homicidal in nature.

 

11
Aug

*Some most important judgments related to 125 CrPC, 1973

1. 125 CrPC cannot be filed twice, only 127 CrPC is allowed. (High Court Gujrat), Bench Hbl J. M. R. Shah, Order on 30-08-2011, Cr RA/69/2011 8/8, Revision Appeal No. 69 of 2011, Chauhan Anjanaben Jayantibhai Vs Chauhan Kanaiyalal Mohanlal.( Chauhan vs Chauhan)

2. No Multiple maintenances are allowed. (High Court Gujrat), Bench Hbl J. Akhil Kureshi, order on 21-10-2010, Special Appeal No. 2080 of 2010, SCR. A/2080/2010, 2/2, Hemlataben Maheshbhai Chauhan Vs State of Gujarat.

3. Multiple petitions of maintenance are not allowed. (High Court Delhi), Hbl J. Shiv Narayan Dhingra, order on 30-08-10, Crl. M. C. No. 130/2010 and Crl. M. A. No. 504/2010, Rachna Kathuria vs Ramesh Kathuria. Citation No. 173 (2010) DLT 289.

4. Double Jeopardy. Same relief of maintenance cannot be asked twice in two different courts. Litigant cannot ride two horses. (High Court Mumbai), Bench Hbl B. Wahane, J. Order on 17-07-1991. Ravindra Haribhau Karmarkar Vs Mrs. Shaila R. Karmarkar. Citation No. 1992 Cri LJ 1845.

5. Separate income of wife can be taken in to account in determining the amount of maintenance payable to her. (Supreme Court), Bench Hbl JJ. Sarkaria R. Singh, Chandrachud Y.V., Gupta A.C., Order on 17-10-1974, Bhagwan Dutt Vs Kamla Devi and Ors. Citation Nos. 1975 AIR 83; 1975 SCR (2) 483; 1975 SCC (2) 386; Citator R 1986 SC 984 (5), R 1987 SC 1100 (5).

6. No parallel 125CrPC and DVA for maintenance. (High Court Delhi), Bench Hbl J. Shiv Narayan Dhingra, order on 22-09-2010, Crl. R. P. No. 633 of 2010, Crl M. A. No. 15451/ 2010, Renu Mittal Vs Anil Mittal & Ors. Citation No. 173 (2010) DLT 269.

7. Interim maintenance increase illegal. (Supreme Court), Bench Hbl JJ. B.N. Agarwal and G. S. Singhvi, Order on 23-02-2009, Civil Appeal No. 1163/2009, SLP (C) No. 16742 of 2006, Sanjeev Gupta Vs Salini Gupta. Citation No. 2009 INSC 390 (23 February 2009); II (2012 DMC 705.
8. Claim of high status of husband is not sufficient for interim maintenance. (High Court Delhi), Bench Hbl J. Shiv Narayan Dhigra, order on 01-09-2010, Crl M. C. No. 4066 of 2009 and Crl. M. A. No. 13807 of 2009, Amit Khanna Vs Priyanka Khanna.

9. Interim Maintenance cannot be increased based on husband salary hike. (High Court Mumbai), Bench Hbl R. S. Dalvi, J. order 26-02-2010, W. P. No. 6686 of 2009, Ritula Singh Vs Lt. Col. Rajeswar Singh.

10. Children can claim maintenance from mother. Punishment awarded U/s 193 IPC to wife for providing false evidence to the court. (High Court Delhi), Hbl J. Dr.S. Murlidharan, order on 23-03-2009, Crl. M. C. 1130/2008 & Crl. M. A. 4231/ 2008,   Jagdish Prasad Vs State of NCT Delhi & Ors.

11. Maintenance arrears of one year only from the date of filing the petition. (High Court AP), Hbl D.J. Raju, J., order on 31 March 1984, Jangam Srinivasa Rao Vs Jangam Rajeswari & ors. Citation No. 1990 Cri LJ 2506.

12. Take EMI into consideration in maintenance and reduced maintenance. (Supreme Court), Hbl A. Kabir and C. Joseph, JJ., order on 28-08-2009, Crl Appeal No. 879 of 2009, Arising on SLP ( Crl.) No. 7503 of 2008, SLP (Crl.) No. 7924 of 2008, Bhushan Kumar Meen Vs Mansi Meen @ Harpreet Kaur. Citation Nos. (2010) 15 SCC 372 A; (2010) 15 SCC 372 B.

13. Wife cannot take advantage of two orders of maintenance passed by civil as well as criminal court. (HC Maharastra), Bench Hbl R. Lodha J., order on 13-09-1995, Gomaji Vs Smt. Yasoda & Ors. Citation No. 1(1996) DMC 487; II (1996) DMC 469.

14. Working wife no maintenance in HMA 24, 125 CrPC only for child. (Supreme Court), Bench Hbl JJ. T. Chatterjee and H. Dattu, order  on 23 March 2009, Civil Appeal Nos. 1789-1790 of 2009, SLP (C) Nos. 24589-24590 of 2007, Anu Kaul Vs Rajeev Kaul. Citation Nos. (2009) INSC 582 (23 March 2009); (2009) 13 SCC 209.

15. Meaning of unable to maintain in 125 CrPC and grounds for maintenance. (Supreme Court), Bench Hbl J. Dr. Arijit Pasayat, order on 27-11-2007, Appeal Cr. 1627 of 2007 arising on SLP No. (Crl.)  4379 of 2006, Chaturbhuj Vs Sita bai. Citation Nos. (2008) 2 SCC 316;

Adv Jagan Nath Bhandari,  PHHC, Chandigarh

11
Aug

Landmark Judgments under Evidence Act, 1872

Procedure to be followed to contradict a witness u/s 145-
Bhagwan Singh v. The State of Punjab
The Court held that in order to take resort to Section 145 regarding contracting a witness, it is important to prove that the witness had denied what the statement earlier made. The denial has to be proved. If the witness admits the former statement, then no such resort can be taken.

Purpose of Sec 162
Emperor v. Aftab Mohd. Khan
The learned court explained the purpose of Section 162 of Indian Evidence Act. The aim of the provision and its proviso is to safeguard the accused against the wrongful statements made by the witnesses at the time of investigation. The Court felt that the statements made by witnesses might be under the pressure of the police officers investigating the case so it will be prejudicial for the alleged to have such statements admitted as evidence.

Power of Magistrateu/s 73-
Gulzar Khan v. State
It was held that the scope of Section 73 extends to the Court of Magistrate as well. Even before the cognizance begins, the Magistrate may ask the accused for his handwriting specimen, signatures, finger-prints, foot-prints which might be needed by the police in the course of investigation.

Admission of Secondary Evidence u/s 65-
In Ashok Dulichand v. Madahavlal Dube and another [1975(4) SCC 664]
The learned court held that secondary evidence is admissible in case when it is to show the existence, conditions and contents of a document when it appears that the original document is in the custody of the person against whom the document is sought, or is out of reach, or is not legally bound to produce such document.

Validity of Section 113-B-
Mafatlal Industries Ltd. and Ors. v. Union of India and Ors.
It was held that a mere possibility of abuse of a constitutionally valid provision by the people who are responsible for administering it, does not give a ground for holding such provision procedurally or substantively unreasonable.

Admissibility of information (Section 27)-
Kottaya v. Emperor
The court was of the opinion that the extent to which information is admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The section 27 seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was       true and accordingly can be safely allowed to be given in evidence.

Admissibility under s. 32(5)
Subbiah Mudaliar v. Gopala Mudaliar, It was held that for a statement in a former         suit to be admissible under s. 32(5) the fact that the person who made the statement had special means of knowledge must be shown by some independent evidence, otherwise it would be arguing in a circle to hold that the document itself proves the relation and therefore shows special means of knowledge.

Admission under Section 7-
State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600]
It was held that though every confession is an admission, but every admission need not be a confession. An admission made before the police cannot be proved against the accused and cannot be considered as a confession.