Witnesses

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 • •

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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 • •

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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 •

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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 chargesheeted 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 • • •

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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 • • •

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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.