Witnesses

Who may testify

• Section 118 – All types of witnesses are allowed to
testify unless they are prevented due to tender age,
extreme old age, disease of mind or body or other
infirmity.
• Child witness.
• Bhagwan Singh v. State of MP. AIR 2003 SC 931.
• A child of 6 years in this case saw his mother being
assaulted and killed at midnight.
• He went back to sleep after witnessing the incident.
• This showed unnaturality of his conduct.
• The Supreme Court held that such testimony of the child
cannot be relied upon.
 Basic test of competence of
witness
• The basic test of competence of witness is
whether the witness is capable of understanding
the nature of an oath and giving rational
testimony.
• Sri Narayan Saha v. State of Tripura (2004) 7
SCC 775 – A victim of rape, the prosecutrix, is a
competent witness and her testimony is given
equal weightage as an injured complainant.
• Sudhakaran v. State, 1983 Ker. LT 5941 –
Unless the child understands the effect of oath,
it is not necessary to administer the oath.
 Omission to administer oath
• Rameshwar v. State, AIR 1952 SC 54 – An omission to administer
oath questions the credibility of the adult witness, not competency.
• U/s 315 (1) CrPC, 1973, accused may wish to examine himself as a
defence witness. He has to take an oath.
• Laxmipat Choraria v. State of MP, AIR 1968 SC 938 – Ethyl Wong
arrived in Bombay and two Custom Officers questioned her. She
admitted her involvement in a smuggling racket set up by another
man and gave a statement. The prosecution did not name her as
one of the accused in the case. The other accused in the Trial Court
raised a question that she should also be tried along with them. It
was held that her testimony should not be discarded even if she was
qualified as an accomplice.
Danger of accomplice evidence
• In Re B.K. Rajagopal, ILR (1944) Mad. 308 – The
danger of acting upon the accomplice evidence is not
merely that the accomplice is on his own admission a
man of bad character who took part in the offence and
afterwards to save himself betrayed his former
associates.
• The real danger is that he tells a story which in general
outline is true, and it is easy to work into the story matter
which is untrue.
• He may implicate ten people in an offence, and the story
may be true in all details as to eight of them, but untrue
as to the other two, whose names have been introduced
because they are enemies of the accomplice.
 Judicial Privilege
• Section 121 Ind. Evid. Act.
• A judge can be questioned even as to judicial
matters with the order of the court to which he is
subordinate.
• He can be questioned as to matters which
occurred in the presence while he was acting in
his judicial capacity.
• He can waive his privilege and voluntarily offer
to explain his conduct as such judge or
magistrate.
 Communications during marriage
• Communications during marriage are protected and
inadmissible in evidence unless there is consent from
either party.
• Ram Bharosey v. State of UP – The accused was on trial
for murdering his neighbour.
• His wife was summoned as a witness.
• She stated that her husband told her that he would give
her ornaments.
• She then asked him where he had gone so early in the
morning and he had replied that he had gone to the
house of deceased to get the ornaments.
• This conversation was held to be irrelevant u/s 122.
 Case Continued
• In the same case if the communication of the husband to
the wife was protected, it was held that she could testify
as to his conduct.
• The conduct of a spouse is not necessarily a marital
matter.
• Even non-marital communications in the form of letters
can be used to establish conduct.
• But the biggest exception is the prosecution of either of
the spouses for crimes committed against the other
spouse.
• Narendranath Mukherjee v. State, AIR 1951 Cal 140 –
The wife was entitled to disclose any communication
made to her by the husband and which was relevant to
the matter in question.
 Professional Communications
• They are protected under section 126, except
where such communication is made in
furtherance of any illegal purpose,
• Any fact observed by any barrister, pleader,
attorney or vakil, in the course of his
employment showing that any crime or fraud has
been committed since the commencement of his
employment are also not protected u/s 126.
• The word disclose shows that privileged
communication must be a confidential or private
nature.
 Disclosure
• P. Rajamma v. P. Chantiah (1972) 2 An WR 253.
• If the communication by the client to the advocate is put
in the form of notice and the notice is produced in a court
in a defamation case, there is already a disclosure.
• So when the advocate is called upon to prove that notice
he is not disclosing any fact for the first time, but is only
substantiating what is already disclosed.
• In re: An attorney, AIR 1925 Bom 1 (FB).
• A widow who wanted to adopt a son employed an
attorney for the purpose of drawing up an adoption deed.
 Case continued
• After the draft was drawn up, it was approved by another
independent firm of attorneys on behalf of the boy to be adopted.
• In a suit filed by a Bank for recovery of money alleging that the
adoption was invalid, the attorney produced some papers including
the draft adoption deed and also made some statements regarding
the instructions he had from the widow.
• It was held that if the attorney was acting for the widow alone, the
disclosures made by him were contrary to section 126; if it is taken
that the attorney was engaged by the widow and also the adopted
son.
• It would not be open to the attorney to disclose the facts relating to
the documents in the suit brought by the third party (bank) against
the widow’s husband and the adopted boy
 Section 128
• If any party to a suit gives evidence, he shall not be
deemed to have consented to any disclosure as
mentioned in section 126.
• Section 129 – No one shall be compelled to disclose to
the court any confidential communication which has
taken place between him and his legal professional
adviser.
• Union of India v. Om Prakash Gupta, ILR (1969) 2 Punj
473.
• If the client offers himself as a witness, then alone he
can be compelled to disclose the confidential
communication, if the court is satisfied such disclosure is
necessary in order to explain the evidence given by the
witness.
 Same solicitor being engaged by
both sides
• Konisberg, Re, (1989), 3 All E. R. 289
• Where a solicitor is employed by two clients in a conveyancing
transaction, the communications concerning the transaction
between either of them and the solicitor are disclosable in favour of
the other.
• Section 130 – Production of title deeds of witness, not a party.
• A witness who is not a party, cannot be compelled to produce
• (1) his title deeds to any property
• (2) any document by which he became the pledgee or mortgagee of
any property
• (3) any document which might tend to criminate him
• But he can be so compelled if he has agreed to produce any such
documents with the person seeking its production
 Section 132
• Witness not excused from answering on the
ground that the answer will criminate.
• 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 criminal proceeding, except a prosecution
for giving false evidence by such answer.
• R. Boyles, Queen’s Bench, (1961) 30 LJQB 301
• The object of the law is to afford to a party,
called upon to give evidence protection against
being brought by means of his own evidence
within the penalties of the law.
 Section 133 and 114 (illustration)
(b)
• Section 133 says 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.
• It is not contradictory provision to illustration (b) of
section 114, because in reference to the requirement of
corroboration, the word used is may and not must.
• RK Dalmia v. Delhi Administration, AIR 1962 SC 1821
• The charge was related to criminal misappropriation of
the funds of a company.
 Accomplice evidence
• The cheques by which the relevant amount was
withdrawn were signed in blank by an officer of the
company in Bombay and send to the accused in Delhi so
that he too may sign them and withdraw money.
• Since the scheme could not have been carried out
without the blank signatures, the officer so signing was
sought to be declared as an accomplice.
• But the court rejected the argument . It held that the
mere signing of blank cheques would not qualify the
officer as an accomplice as it had to be signed by the
other person too. The officer signed it to avoid delay in
payments with the expectation that it would be properly
used by the other person.
 Who is and who is not an
accomplice
• The following case references qualified the
following persons as accomplices
• State v. Ram Avtar, AIR 1955 All 138 – An ekka
driver who took passengers with criminal
intention and aided them to escape from the
place of offence.
• State v. Jethanand, (1968) 9 Guj LR 832 –
Police agents in gambling cases are
accomplices.
• Bhulu Mia v. State, AIR 1969 Cal 416 – Pimps
and prostitudes are accomplices.
 Who is not accomplice
• Rakesh Kumar Singh v. State of Assam, 2003 CrLJ 3206 – Where a
18 year old girl witnessed the murder of her sister at the hands of
her brother-in-law, the husband of the deceased and she was made
co-accused of the offence by the police and she was charge-
sheeted along with main accused, and her statement showed that
she nowhere stated about her direct or indirect involvement in the
crime and her entire statement was exculpatory and she did not
incriminate herself in any manner, she could not be held to be an
accomplice.
• Section 134 – No particular number of witnesses shall in any case
be required for the proof of any fact.
• Yashpal Sawhney v. Gandotra Traders AIR 1996 J & K 32 - In
determining the number of witnesses, a court should take into
account the following guidelines.
 Section 134
• (a) Nature of litigation.
• (b) Number of issues required to be
produced.
• (c ) Nature of the issues.
• (d) The fact as to on whom the onus has
been laid.
• (e) The specified purpose for which a
particular witness is required to be
produced.
 Public documents
• Section 74 – The following documents are public
documents,
• (1) documents forming the acts or records of the
acts of (i) the sovereign authority, (ii) official
bodies and tribunal, (iii) public officers,
legislative, judicial and executive,
• Public records kept in any State of private
documents.
• Ramu Rau v. Venkataramayya, AIR 1940 Mad.
969
 Section 76
• Any person has the right of inspecting public documents. Every
person has the right of inspecting a document in which that person
is interested for the protection of such interest.
• Some provisions which give right of inspection,
• Order XX, Rule 20, CPC, certified copies of judgement and decrees
shall be furnished on application, at the expense of the applicant,
• Order X!, Rule 15, CPC, every party to a suit shall be entitled to
inspect the documents and take copies,
• Parasuram v. Cockle, AIR 1942 Bom 26 – U/s 365 (3), CrPC, every
person affected by the judgement or order passed by a criminal
court has a right to ask the court to supply certified copies of the
record which would necessarily imply the right to inspect.
 Inspection relating to registration.
• Under the Indian Registration Act, the registrar’s office
has to maintain five different books. Books 1 and 2 are
open for inspection by any person, who can obtain
copies.
• In Book No. 1, all documents relating to immoveable
property which are registered will be entered.
• Book No. 2 contains reasons, if some documents were
refused to be registered,
• Book No. 3 is in respect of wills and authorities to adopt
and copies can be given only to the persons executing
the documents of that type or their agents, and after the
death of the executants, to any persons applying for
such copies.
 Inspection
• Book No. 4 consists of instruments other than the
documents relating to immovable property.
• Book No. 5 consists of documents relating to deposit of
wills in sealed covers. Copies can be given to the
testator, and after his death, to other persons who are
interested in the properties of the deceased.
• Section 77 – Such certified copies may be produced in
proof of the contents of the public documents of which
they purport to be copies.
• Venajhakshamma v. P. Gopala Krishna, AIR 1970, Mys.
304 – A register of Births and Deaths maintained by the
Municipal Authorities, is a public document and a
certified copy of the extract issued by such authority is
asmissible to prove its contents.
Proof of other official documents
• Section 78
• Acts, orders, notifications of Central Govt. – records of
the departments signed by the departmental heads,
• Proceedings of the Legislature – Journals of those
bodies or by published Acts or abstracts,
• Proceedings of municipal body in a State – copy of such
proceedings signed by legal keeper
• Public documents of any other class in a foreign country
– by the original or copy certified by the legal keeper.
• Meghna Singh v. Gurdial Singh, AIR 2004 P & H 93.
 Section 79
• The Court shall presume that every certified copy of a
document which is by law admissible as evidence of any
particular fact is genuine.
• Bhadar Munda v. Dhuchua Oraon, AIR 1970 Pat 209.
• The original sale deed was eaten away by white ants
and a certified copy was marked as exhibit and the other
side raised no objection.
• A witness deposed as to the fact of sale.
• It was held that its genuineness cannot be agitated in
appeal by raising objection as to the mode of proof.
 Section 80
• Court draws presumption of genuineness in
respect of judicial documents like deposition of
witnesses, the statements or confessions of
prisoners or accused persons.
• Nika Ram v. State of HP, AIR 1972 SC 2077 –
An accused after murdering his wife, went to the
house of a Tahsildar exercising 2nd class
Magesterial powers and confessed his guilt. The
Tahsildar sent for the police.
 Section 80- continued.
• After the arrival of the head constable, the
accused was arrested.
• Then the tahsildar after recording the
confession, handed him over to the head
constable.
• The Supreme Court after finding that the
Tahsildar exercising 2nd class Magesterial
powers was not specially empowered to record
any statement during investigation, held that no
presumption can be drawn under section 80, as
it cannot be said that the confession was
recorded in accordance with law.
 Section 81
• Though a gazette is not a conclusive evidence of the
facts contained therein, the Court may in conjunction
with other evidence and circumstances take it into
consideration in adjudging the dispute in question.
• Section 81 A – Electronic records purporting to be official
records are considered genuine.
• Section 83 – Maps and plans made by the authority of
the Central of State Government, shall be presumed to
have been made accurately.
• Kanto Prasad v. Jaggut, ILR 23 Cal 335 – A collector
ordered survey and drawing of a map of the disputed
area of a river bed, it was held that as the map was
prepared for a specific purpose, it would neither come
under section 36 nor under section 83.
 Section 85
• The Court shall presume that any power of attorney
authenticated by the notary public or representative of
the Central Government is genuine.
• Renuprova Paul v. Sanyasi Charan Ghosh, AIR 2005
Cal 118 – All the parties were residents of Calcutta and
power of attorney was executed at Bombay without
showing any reason. It was held that such a document
was not a valid piece of evidence under section 85 of the
Evidence Act.
• Punjab National Bank v. Khazan Singh, AIR 2004 P & H
282 – No particular form of authentication by a notary
public is given under section 85. The same has to be
gathered from the facts and circumstances of the power
of attorney and its authentication by the notary public.
 Section 87
• The Court may presume that the books
containing information on matters of public and
general interest are written by the authors
mentioned at the time or place mentioned.
• Brajraj Singh v. Yogendra Pal Singh, AIR 1952
MP 146 – The presumption is only in respect of
the authorship, time and place, but not with
regard to the accuracy of the facts contained in
such book, map or chart.
 Section 88
• Presumption as to Telegraphic messages – The Court
may presume that the message delivered to the
addressee corresponds with the message handed over
to the post office and that the message was meant for
the person whom it is purported to be delivered.
• Since telegraphic messages can be sent by
unauthorised persons, it is not possible to presume that
it was sent by the man whose name is shown as that of
the sender.
• Section 88A – The Court may presume that an electronic
message forwarded by the originator through an
electronic mail server to the addressee corresponds with
the message as fed into his computer for transmission.
 Section 89
• 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.
• Rajendra Jha v. TK Agarwal, ILR (1978) 57 Pat 426 – A thirty year
old registered gift deed was called for by issue of notice and was not
produced.
• It was held that secondary evidence of the original deed can be
given by production of a certified copy admissible u/s section 65A,
and a presumption can be drawn that it was duly executed, attested
and stamped u/s 89. In view of section 60 (2) of the Registration Act,
it can be held that the executant admitted the execution of the deed
before the Registrar.
• Section 90 – A document which is 30 years old may be presumed to
be genuine.
 Section 91
• When a transaction has been reduced to writing either
by agreement of the parties or by requirement of law, no
evidence should be given to prove the transaction.
• N Balaiya v. Sayanna Balaiah, AIR1951 Hyd 42 – A sale
of property of value less than Rs 100 was effected by
delivery of possession.
• There was also an unregistered document showing the
transaction. It was held that the sale is complete by
delivery of possession to the vendee and the
unregistered document can be looked into whether the
possession was given or whether the vendor was in
possession.
 Section 92
• When the terms of any document has been proved by the primary or
secondary evidence of the document, no evidence of any oral
agreement or statement shall be admitted.
• Section 93 – 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.
• Chunchun v. Ebadat Ali, AIR 1954 SC 345 – It was held that the
intention must be gathered from the document itself. If the words are
express and clear, effect must be given to them and any extraneous
enquiry into what was thought or intended is ruled out.
• Manindra v. Durga, 1917 PC 23 – In the construction of a deed, the
question is not what the parties have intended, as the intention of
the parties is not admissible, but the meaning of the words they
have used.
 Section 94
• 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.
• Maxim applied non accipi debent verba in
demonstrationem falsam quae competunt in limitationem
veram.
• Tata Iron & Steel Co. Ltd. v. State of Bihar, AIR 1996 Pat
37 – In a lease agreement payment of interest on arrears
of rent was stipulated but not its mode of payment. It
was held that the collector was not prevented by section
94 from deciding the mode and direct writ petition for the
purpose was not maintainable.
 Section 95
• 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.
• RSR Naidu v. K Naidu, AIR 1965 Ker 122 – Two
wills were executed on two dates, and the later
will raised ambiguity on the face of it as to
whether it was in substitution for or in addition to
the earlier one.
• It was held that extrinsic evidence can be
admitted to ascertain the testator’s intention.