The Indian Evidence Act Questions 41 to 60 (3 Marks)

Q41. Explain the concept of primary documentary evidence.

According to Section 3 of the Indian Evidence Act, 1872 Documentary Evidence means, All Documents produced for the inspection of the Court; such documents are called documentary evidence. The expression “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Documentary Evidences are of two kinds – Primary Evidence and Secondary Evidence.

According to Section 62 of the Indian Evidence Act, “Primary evidence means the document itself produced for the inspection of the Court. Primary documentary evidence is also referred as direct evidence. Direct Evidence is acknowledged as the most important evidence required for deciding the matter in issue. It is original documentary evidence and is always considered as the best source of evidence and has the highest evidentiary value.

Giving Primary Evidence is general rule. The rule of the best evidence is a rule of law that only includes the primary evidence in itself. It states that if evidence such as a document or a recording is presented in the court then only the original ones will be admissible unless there is a reason for not using the original one in the court. No notice required before giving Primary Evidence.

Q42. When secondary evidence relating to documents may be given?

Section 65 of the Indian Evidence Act, 1872 gives the list of circumstances in which secondary evidence relating to documents may be given and their admissibility.

when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
when the original is of such a nature as not to be easily movable;
when the original is a public document within the meaning of section 74; 34
when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.

Q43. Explain relevancy of statements made by persons who cannot be called as witness.

Section 32(1) and the subsequent Section 33(2) of the Indian Evidence Act, 1872 deal with the relevancy of statements given by persons who cannot be called as witnesses.

Under Section 60 of the Indian Evidence Act, 1872 oral evidence must, in all cases, whatever, be direct. In other words, hearsay evidence is no evidence. But under Section 32, hearsay evidence is admissible so it can be said that it is an exception to Section 60.

The following cases where the statements made by list of people mentioned above is relevant:

When it relates to cause of death; Or
It is made in the course of business; Or
It is against the interest of the maker; Or
It gives an opinion as to the public right or custom, or matters of general interest; Or
It relates to the existence of a relationship; Or
It is made in will or deed relating to family affairs; Or
It is made in a document relating to transaction mentioned in section 13, Clause (a); Or
It is made by several persons and express feelings relevant to a matter in question

Q44. Which kind of questions are barred in cross examination?

According to Section 137, para 2 of the Indian Evidence Act, 1872, the examination of a witness by the adverse party is called his cross-examination. Cross-examination considered most powerful weapon. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing. Leading questions may be asked. According to Section 148 of the Act, the Court must decide whether a witness should be compelled to answer or not. According to Section 149, any questions referred to in Section 148 are to be asked only when there are reasonable grounds to ask such questions that might injure the witness’s character or expose him.

The questions that:

are indecent and scandalous (Section 151)
are insulting or annoying. (Section 152)

are barred in cross examination. Court can forbid them.

Section 152 further states that the Court might forbid a question even if it is proper, but the Court thinks that it is needlessly offensive in form.

Q45. Explain the concept-a map for a cause must be proved.

Section 83 has to be read with Section 36 which deals with statements in maps, charts and plans.

Section 83 of the Indian Evidence Act, 1872, says that the maps and plans made by Central Government or any State Government will be assumed accurate and will not require any evidence but any maps or plans made for any particular cause or by any private individual will need to be proved before the court. The maps and plans mentioned in the section 83 are described in Section 36 of Indian Evidence Act 1872

The Section 36 mentions two kinds of maps or charts. First includes the published maps or charts generally offered for public sale and the second are those maps or plans made under the authority of Government. Maps or charts of the first kind are relevant only on the ground that they are accessible to the public nevertheless their accuracy may be challenged.

The Supreme Court has held that such private maps offered for public sale though not irrelevant do not get the benefit of presumption of accuracy under section 83 of the Act. A map made by a Commissioner in a previous suit which was the basis of a decree is a map not within Section 83 of the Act. Maps or plans made for any cause must be proved to be accurate by the person who made them.

Q47. Distinguish between Private Document & Public Document.

Public Documents	Private Documents
The term “Public Document” is defined in Section 74 of the Indian Evidence Act, 1872.	The term “Private Document” is defined in Section 75 of the Indian Evidence Act, 1872.
Public Documents are those documents which are authenticated by a public officer or also contain statements made by the public officer in their official capacity.	Private documents are those documents which are prepared between persons for their usual business transactions and communications.
They are made available to the public at large for reference and use.	They are not made available to the public at large. These documents are kept in the custody of the private persons only.
They act as admissible evidence of the fact in civil matters.	Certified copies of the private documents are generally not considered as evidence unless there is proof of the original copy is provided.
They are proved by secondary evidence.	They are proved by primary evidence.
The court is bound to presume the genuineness of a public document from the duly certified secondary copy.	No presumption is made about the genuineness of the original document from secondary evidence of private document except in some exceptional circumstances.

Q49. Explain importance of fact showing existence of state of mind, body or bodily feeling.

Section 14 of the Indian Evidence Act, 1872, deals with fact showing existence of state of mind, or of body or bodily feeling. According to Section 14 of the Act, the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person; or the existence of any state of body or bodily feeling, are relevant, — when the existence of any such state of mind, or body, or bodily feeling, is in issue or is relevant.

First part talks about facts showing the existence of state of mind which includes intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards particular person are relevant. Focus is given on particular person, which means state of mind is not towards general person, but a particular person. Second part of Section 14 says, facts showing the existence of any state of body or bodily feeling are Relevant.

A is accused of delivering to other a counterfeit coin which, at the time of delivery, he knew it to be counterfeit. If he is found of other counterfeit coins in his possession then, this shows state of mind of A.

Q50. Explain exclusion of oral evidence by documentary evidence.

Chapter VI, Sections 91 to 100 of the Indian Evidence Act 1872 deals with the provisions of “exclusion of oral by documentary evidence”.\ Documents once reduced into writing are considered to be the best evidence. The very object for which writing is used is to perpetuate the memory of what is written down, and so to furnish permanent proof of it. In order to give effect to this, the document itself must be produced. Section 61 of Evidence Act provides that the contents of documents may be proved by primary evidence or its secondary evidence.

Section 91 and Section 92 define the cases in which documents are exclusive evidence of transactions which they embody and oral evidence cannot be used to supersede, control, contradict, vary add to subtract from the terms of the document.

Section 93 to 100 deal with the Interpretation of Documents by oral evidence.

When the term of contract or of a grant or any other disposition of property have been reduced to the form of a document, and when any matter is required by law to be reduced to the form of a document – no evidence can be given in proof of the terms of such contract, grant, etc., except

The document itself or
Secondary evidence of its contents, in cases in which secondary evidence is admissible.

Q51. Explain concepts of proved and disproved.

Section 3, Interpretation Clause of the Indian Evidence Act, 1872 defines these terms.

“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”. — 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.
“Not proved”. — A fact is said not to be proved when it is neither proved nor disproved.

Q52.What is fact in issue? How it is different from relevant fact?

Section 3, Interpretation Clause of the Indian Evidence Act, 1872 defines this term.

The expression “facts in issue” means and includes— 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 proceeding, necessarily follows.

‘Fact in issue’ are those facts, which are alleged by one party and denied by other parties in the pleading in a civil case or alleged by the prosecution and denied by the accused in a criminal case. A fact in issue is called the “principal fact” or factum probandum

Essentials or elements of “Fact in issue”?

It is the fact of dispute between the parties; and
It should touch the question of rights and liabilities of parties in the dispute.

Difference between Relevant facts and fact in issue

Facts in Issue	Relevant facts
‘Fact in issue’ are those facts, which are alleged by one party and denied by other parties in the pleading in a civil case or alleged by the prosecution and denied by the accused in a criminal case.	Relevant facts, are facts so connected with each other as to prove or disprove the facts in issue. Relevant facts are not themselves in issue, but are foundation of inferences regarding them.
They are also known as “principal facts” or “factum probandum”.	They are also known as “evidentiary fact” or “Factum probandi”.
A fact in issue is necessary ingredient of a right or liability.	A relevant fact on the other hand is not a necessary ingredient of a right or liability.
Facts at issue are significant in nature	Relevant facts are non-significant.

Q53. What is permissible hearsay evidence?

Hearsay evidence refers to a testimony that is provided by a witness and is not based on any personal communication. It is a very weak form of evidence since it is neither based on the experience of the witness nor their personal knowledge. So hearsay evidence are not evidence.

Section 32(1) and the subsequent Section 33(2) of the Indian Evidence Act, 1872 deal with the relevancy of statements given by persons who cannot be called as witnesses.

There is a particular class of people (consisting of persons who are dead, who cannot be found, who have become incapable of giving evidence, whose attendance cannot be procured without an amount of delay or expense), who cannot be called as witnesses under Section 32 and their statements are allowed to be proved in their absence. Under Section 60 of the Indian Evidence Act, 1872 oral evidence must, in all cases, whatever, be direct. In other words, hearsay evidence is no evidence. But under Section 32, hearsay evidence is admissible so it can be said that it is an exception to Section 60.

The following cases where the statements made by list of people (permissible hearsday evidence) mentioned above is relevant:

When it relates to cause of death; Or
It is made in the course of business; Or
It is against the interest of the maker; Or
It gives an opinion as to the public right or custom, or matters of general interest; Or
It relates to the existence of a relationship; Or
It is made in will or deed relating to family affairs; Or
It is made in a document relating to transaction mentioned in section 13, Clause (a); Or
It is made by several persons and express feelings relevant to a matter in question

Q54. Whether Circumstantial evidence needs corroboration?

Evidence can be broadly divided into two sub- categories, direct and indirect circumstantial evidence. In India, the term circumstantial evidence was first used by Sir James Stephen, stating circumstantial evidence to be facts that are relevant to the other fact, whose existence can prove by the existence of other fact. Circumstantial evidence is supported by a significant amount of corroboration. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

An example of circumstantial evidence would be, if police retrieve stolen goods from the house of a suspect, although it establishes that the suspect has stolen the good but does not necessarily establish guilt or the fact that he must have stolen the goods. Recovery of goods in the house of a suspect is a circumstantial evidence as the goods might be placed there by someone else, thus not establishing complete guilt but forming a chain of events. This would shift the burden of proof on the suspect to establish his innocence.

In Bhim Singh Vs. State of Uttarakhand, (2015) 4 SCC 281 (para 23) case, the Supreme Court has laid down principles on circumstantial evidence, which clearly shows that circumstantial evidence needs corroboration. The principles are

the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established,
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,
the circumstances should be of conclusive nature and tendency,
they should exclude every possible hypothesis except the one to be proved, and

Q55. What is an admission? Whether admission is direct evidence or indirect evidence?

Section 17 of the Indian Evidence Act, 1872 defines the term “Admission” as: “An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned in the Act. Admission in the Evidence Act is nothing but a piece of evidence. Admissions dealt with in the Indian Evidence Act in Section 17 to 23 and 31 or different from Judicial Admissions.

Sections 18 to 20 of the Act lays down the provisions relating to persons to make admissions. An admission is relevant. if it is made by

A party to the proceeding (Civil or Criminal);
An agent authorized by such party;
A Party suing or being sued in a representative character making admission while holding such character,
A person who has a proprietary interest in the subject matter of the suit during the continuance of such interest
A person from whom the parties to the suit have derived their interest in the subject-matter of the suit during the continuance of such interest,
A person whose position is it necessary to prove in a suit, if such statements would be relevant in a suit brought by or against himself,
A person to whom a party to the suit has expressly referred for information in reference to a matter in dispute.

In this case the person is giving evidence himself, it is direct evidence.

Q56. What is Estoppel? What is the evidentiary value of it?

Part III , Chapter VIII containing Section 115 to 117 of the Indian Evidence Act 1872 , lay down the provisions relating to the “doctrine of Estoppel” Section 115 embodies the principle of Estoppels. Estoppel is rule of evidence, by which a person is not allowed to plead the contrary of a fact or state of things, which he formally asserted as existing.

According to Section 115 of the Indian Evidence Act, 1872, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

‘A’ intentionally and falsely leads ‘B’ to believe that certain land belongs to ‘A’ and thereby induces ‘B’ to buy and pay for it. The land afterwards becomes the property of ’A’ and A seeks to set aside the sale on the ground that, at the time of the sale, He had no title. He must not be allowed to prove his want of title.

Q57.Explain the evidentiary value of CCTV footage?

Since the introduction of CCTV from the past few decades, it has played a huge role in helping investigating agencies in solving crimes. If the CCTV footage if proper and clear and the origin of the CCTV is proved beyond reasonable doubt, it will be enough to establish the actus – reus at the instance of the accused person. Where every electronic evidence is being used as proof, Section 65(b) of the IEA requires that the substance of the electronic record be proven..

According to Section 65b (1), if the requirements in Section 65b (2) are met, any information found in an electronic record, which is printed on paper, stored, registered, or copied in optical or magnetic media created by a machine, is considered to have been a piece of information (under the Evidence Act) despite anything in the Evidence Act. Whenever any electronic evidence is used as evidence, it is mandatory to prove the content of electronic record in accordance with Section 65b of the Indian Evidence Act, 1872. The primary purpose of Section 65b is to sanctify proof by secondary evidence.

If the requirements in Section 65b (2) are met, the material over which the information contained inside an electronic record is published, or the optical or magnetic media-generated either by software where such data is stored, recorded, or replicated, shall be admissible in any proceeding as proof of any nature of the initial or of any truth specified, despite evidence or production of the original.

When a claim in the proof is obtained under Section 65b, Section 65b (4) enables the creation of a certificate that, among other things, identifies the electronic copy containing the statement, explains how it was generated, and specifies the system used to make the electronic record to demonstrate that it was generated by a compliant system. Certificate required under section 65B(4) is a condition precedent to admissibility of evidence by way of electronic record

Q58.Distinguish between the presumption of law and presumption of facts?

Presumption of Law	Presumption of Fact
Presumption of law is based on provisions of law.	Presumption of fact is based on logic, human.
The position of Presumption of law is certain and uniform.	The position of Presumption of fact is uncertain.
The Presumption of law is conclusive unless rebutted as provided under rule giving ruse to presumption.	Presumption of fact is always rebuttable and goes away when explained or rebutted by establishment of positive proof.
The court cannot ignore presumption law.	The court can ignore presumption of fact however strong it is.
The presumptions of law are derived on established judicial norms and they have become part of legal rules.	The presumptions of fact are derived on basis of law of nature, prevalent customs and human experience.
Presumption of law is mandatory i.e. Court is bound to draw presumption of law	The Court can exercise its discretion while drawing presumptions of fact i.e. presumption of facts is discretionary presumption.

Q59.What is a judicial proceeding?

According to Section 2, Sub-clause (i), Criminal Procedure Code, 1973, a judicial proceeding includes any proceedings in the course of which evidence is or may be legally taken on oath. A judicial proceeding is any action brought before a court of law which is presided over by a judge. A judicial proceeding is initiated by a party’s request for remedial action to be taken by another. It includes all communications which take place in open court between the judge/magistrate and the lawyers or other parties to the proceeding, and the testimony of any witnesses. Judicial proceedings, include, but are not limited to courtroom hearings, chamber or hearing room hearings, pre-trial conferences, jury trials, non-jury trials, motion or docket hearings, plea hearings, status review hearings, arraignments, dispositions, sentencing hearings, injunction hearings, detention and shelter hearings, bond hearings, post-conviction relief proceedings, first appearance proceedings, sworn statements, and all other matters relating to the court’s business.

This term does not include any other matters that may have been monitored or recorded at the same time but which were not part of the court’s business and which would likely not have been reported by a trained circuit court reporter (such as, private conversations between a lawyer and client or between co-counsel).

Q60. What is Test identification parade?

Identification parade is a process that is mostly used in criminal cases to identify the accused before the court. Where the Court has to know the identity of anything or any person, any fact, which establishes such identity, is relevant. The identity of person can be established by the evidence of persons, who know him. Identification parades are held either in jail or at some other place for the purpose of identifying the persons concerned in an offense or the properties, which are subject matter of an offense.

Section 9 Provides for the Identification “parade of persons”. The purpose of Identification test is to test the memory and veracity of a witness, who claims to identify an accused person, who is said to have participated in a crime.

During the course of investigation test identification parades are arranged by the police Certain persons are brought to such a place and the accused person mixed with them. In case of Property, the property recovered is mixed with some other properties / articles of similar description. Then the Magistrate or the Panch witnesses will ask the witness to identify the property in question or the accused person. Under Section 9 the evidence given by such witness is relevant.

Indian Evidence Act Questions 1 to 20
Indian Evidence Act Questions 21 to 40
Indian Evidence Act Questions 41 to 60
Indian Evidence Act Questions 61 to 80
Indian Evidence Act Questions 81 to 100
Indian Evidence Act Questions 101 to 120
Indian Evidence Act Questions 121 to 133

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