LL.B. II TERM Paper : LB - 201 - Law of of Evidence Prescribed Legislation : The Indian Evidence Act, 1872 Prescribed Books: 1. Vepa P. Sarathi, Law Sarathi, Law of Evidence (6th ed., 2006) 2. M. Monir, Law Monir, Law of Evidence (14th ed., 2006) I.
GENERAL ISSUES RELATING TO LAW OF EVIDENCE (6 periods) (a) (i) Re-enactment of past events for deducing deducing blameworthiness blameworthiness or entitlemen entitlements ts of the parties is the c ore enquiry of Evidence Law. Similarities between the historians, authors, media persons and lawyers in their re-enactment of ‘past event’ enterprise. (ii) Why rules of evidence have different significance under the Adversarial System and Inquisitorial System of Justice? (b) History of statutory Evidence Law in India – Pre and post Indian Evidence Act, 1872 realities – Role of Judiciary, particularly the appellate judiciary in updating the Evidence Law rules by judicial creativity. (c) Understanding the concepts such as : ‘Facts’, ‘Facts in issue’, issue’, ‘Relevant Fact’, ‘Evidence-Oral and Documentary’, ‘Proved’, ‘Disproved’ and ‘Not Proved’. (d) Relationship between law of Evidence and substantive laws (Criminal and Civil laws) and procedural laws (Code of Criminal Procedure and Civil Procedure Code).
II.
RELEVANCY AND ADMISSIBILITY OF FACTS (14 periods) (a) (i) Logically Logically relevant relevant facts – sections sections 5-9, 5-9, 11 (ii) Special class of relevant facts relating relating to Conspiracy – section section 10 (b) Stated relevant facts (i) Admissions - sections 17-23 (ii) Confessions Confess ions - sections 24-30 (iii) Dying Declarations - section 32(1) (c) Opinion of of Third Person when relevant releva nt - sections 45-51
ii 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12 13. 14. 15. 16. 17.
State of Maharashtra v. Prafulla B. Desai (Dr.) (2003) 4 SCC 601 R. M. Malkani v. State of Maharashtra, AIR 1973 SC 157 Mirza Akbar v. Emperor, AIR 1940 PC 176 Badri Rai v. State of Bihar, AIR 1958 SC 953 Mohd. Khalid v. State of W.B. (2002) 7 SCC 334 Jayantibhai Bhenkerbhai v. State of Gujarat (2002) 8 SCC 165 Bishwanath Prasad v. Dwarka Prasad, AIR 1974 SC 117 Central Bureau of Investigation v. V.C. Shukla, AIR 1998 SC 1406 Veera Ibrahim v. State of Maharashtra, AIR 1976 SC 1167 Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119 Pulukuri Kottaya v. Emperor, AIR 1947 PC 67 Bodhraj v. State of J. & K. (2002) 8 SCC 45 Khushal Rao v. State of Bombay, AIR 1958 SC 22 Sudhakar v. State of Maharashtra (2000) 6 SCC 671 Patel Hiralal Joitaram v. State of Gujrat (2002) 1 SCC 22 Laxman v. State of Maharashtra (2002) 6 SCC 710 Ram Narain v. State of U.P., AIR 1973 SC 2200 : (1973) 2 SCC 86
III.
1 10 17 23 26 39 46 49 59 64 70 76 86 95 101 108 111
ON PROOF ( 7 periods) (a) (i) Facts which need not be proved – sections 56-58 (ii) Facts which the parties are prohibited from proving – Doctrine of Estoppel – sections 115-117 (iii) Privileged communications – sections 122-129 (b) (i) Oral and documentary evidence – sections 59-78 (ii) Exclusion of oral by documentary evidence – sections 91-92
18. 19. 20. 21. 22.
R. S. Maddanappa v. Chandramma (1965) 3 SCR 283 Madhuri Patel v. Addl. Commissioner, Tribal Development , AIR 1995 SC 94 Sanatan Gauda v. Berhampur University, AIR 1990 SC 1075 M.C. Vergheese v. T.J. Ponnan, AIR 1970 SC 1876 State of U.P. v. Raj Narain, AIR 1975 SC 865
114 120 131 136 140
IV. ACCOMPLICE EVIDENCE – section 133 read with section 114 (b) ( 2 periods) 23. 24. 25.
Bhuboni Sahu v. The King, AIR 1949 PC 257 Haroon Haji Abdulla v. State of Maharastra, AIR 1975 SC 856 Ravinder Singh v. State of Haryana, AIR 1975 SC 856
158 163 169
iii V. WITNESSES ; COMPETENCE AND EXAMINATIONS ( 3 periods) (a) (i) Child Witness – section 118 (ii) Dumb Witness – section 119 (iii) Hostile Witness – section 154 (b) 26.
Examination, cross-examination and re-examination- sections 137-139, 155
State of Bihar v. Laloo Prasad (2002) 9 SCC 626
VI.
176
PRESUMPTIONS (2 periods) Sections 4, 41, 105, 111-A, 112, 113, 113-A, 113-B, 114 and 114-A
27.
Goutam Kundu v. State of West Bengal, AIR 1993 SC 2295
178
IMPORTANT NOTE: 1. The topics and cases given above are not exhaustive. The teachers teaching the course shall be at liberty to add new topics/cases. 2. The students are required to study the legislations as amended up-to-date and consult the latest editions of books. 3. The Question Paper shall include one compulsory question consisting of five parts out of which four parts will be required to be attempted. The question papers set for the examinations held during 2007-08 and 2008-09 are printed below for guidance of the students. 4. The periods indicated against each topic are the minimum teaching hours. *****
iv LL.B. II Term Examinations, April-May, 2008 Note:
Answer any five questions including Question No. 1 which is compulsory. All questions carry equal marks.
1. Attempt briefly any four of the following: (a) Who is an ‘expert’? Is the opinion given by him relevant? (b) Who is competent to testify? Is a dumb witness competent to testify? (c) What is a “fact”. How is it different from “fact in issue”. Give at least two examples of each. (d) Law of Evidence is said to be “ Lex-fori”. Explain. (e) What is documentary Evidence? Is electronically recorded evidence oral, documentary or real one. Point out the difference, if any, between Indian and English law on the point. 2. State the provisions of law and give reasons as to the relevancy of the following facts: (i) In a trial of conspiracy to wage war against Country X, evidence is given of facts that funds were raised in State Y, arms and ammunition was purchased in State T and training of arms was given in State X. (ii) In a charge of murder by domestic help of an elderly couple, evidenc e is given by prosecution that they received money sent by their son from U.S.A. on the same day. (iii) In a trial of murder, post-mortem report reveals that the digested food indicated that the murder must have taken placed three to four hours after lunch. (iv) A is accused of kidnapping a child for ransom from Ghaziabad on 01.03.08. A produces a certificate that he was admitted in P.G.I. Chandigarh from 25.02.08 to 05.03.08 for treatment of lung infection. 3. (a) “Statement of a co-conspirator is admissible against the conspirators.” Explain. (b) A was a customs officer and B the agent working for importer X & Co. at the custom House. B made some entries in his day book about the goods passing them without paying full duty at the custom house. These entries and counterfoil of his cheque book showing that money was paid to A are produced by prosecution in a trial of A and B for the offence of conspiracy. Discuss relevancy of b oth these documents under section 10 of Indian Evidence Act. 4. (a) Can the statement made by the one partner bind all partners in a dispute between partnership firm and third party? Explain the relevant provisions of the Evidence Act and give reasons. (b) A, an alleged offender of rape, while in police remand felt pain in his chest. He was admitted in a hospital, where a police constable was kept on the gate to keep a watch on him. A confessed his guilt before another patient X who was also in the same room. This
v statement was over-heard by policeman also. Prosecution wants to make this statement of A as “confession”. Can they do so? Discuss. 5. “There is no absolute Rule of Law or even a rule of Prudence that dying declaration unless corroborated by other independent evidence is not fit to be acted upon and made the basis of conviction.” Discuss above statement with the support of case law. 6. (a) A child was born within 280 days of husband’s death. Evidence was offered that about the time while the child was conceived the husband was suffering from Carbuncle (Swelling under the skin) and died of illness within 14 days. Can the plea of paternity be negatived? Discuss. (b) What is a privileged communication? What are its exceptions. 7. “The law is not that the evidence of an accomplice deserves outright rejection if there is no corroboration. What is required is to adopt great circumspection and care when dealing with the evidence of an accomplice. Though there is no legal necessity to seek corroboration of accomplice’s evidence, it is desirable that the court seeks reassuring circumstances to satisfy the judicial conscience that the evidence is true.” Elucidate the above statement. 8. (a) What is basis of the rule of estoppel. How is it different from promissory estoppel. (b) X, a student got marks-sheet from CBSE, showing that he had passed in biology, physics and chemistry with good marks. X, as a matter of fact had never opted or appeared for biology. However, he remained silent and sought admission in 1st year of MBBS course at Delhi Medical College. When he had to appear in his 1st professional course of MBBS, CBSE realizing the error served a notice on him for wrong marks-sheet and subsequently cancelled admission. X, consults you for using estoppel against CBSE. State your opinion giving reasons. ***** LL.B. II Term (Supplementary) Examinations, Aug.-Sept. 2008 Note:
Answer any five questions including Question No. 1 which is compulsory. All questions carry equal marks.
1. Attempt briefly any four of the following: (a) What is the difference between relevancy and admissibility? Illustrate your answer by giving at least one example. (b) Explain the concept and significance of an expert evidence. (c) Discuss oral and documentary evidence. (d) When is a witness said to have turned hostile? Is the evidence given by such a witness still relevant and admissible? (e) Who is competent to testify? Is the evidence given by a child admissible?
vi 2. Discuss the provisions of law, under which the following are relevant: (i) X is accused of receiving stolen property knowing it to be stolen. He offers to prove that he refused to sell it below their value. (ii) In a dispute between X and Y for inducing A to break his contract of service; X produces the following statement of A as evidence: “I am leaving you because Y has made me a better offer.” (iii) A is being prosecuted for the murder of B. Prosecution produces poison procured by A similar to that which has been administered to B. (iv) X is prosecuted for rioting in Chandigarh on 20.03.2007. X produces a railway ticket showing that on 20.03.2007 he was traveling from Mumbai to Dehradun. 3. (a) Conspiracy is based on the principle of “Agency”. Comment. (b) X wrote a letter to B asking him to supply explosives for blowing up a Govt. building. B took some time in sending it. In the meantime, X wrote another letter to B seeking reasons about delay. However, before the second letter could reach B, X received the explosives and used the same. In case of conspiracy, prosecution wants to produce both these letters. Decide whether they are admissible or not? 4. (a) X and Y are the joint owners of a plot of land. A claims right of way over this plot. X makes a statement agreeing with A, about his c laim. Is this statement binding on Y? Give reasons and relevant provisions of law. (b) Prem was charged of committing murder of his brother Ramesh. Prosecution produces two items against Prem: (i) a statement made by Prem which led to the recovery of blood-stained axe, shirt and trousers; and (ii) a statement of Prem to the police that blood-stained clothes belonged to him and the axe was used for the commission of murder. Are these statements relevant as confessions or not? Give reasons. 5. (a) What is a dying declaration? Can it be accepted without corroboration? (b) Y, a young married woman, had been speaking to her parents and other relatives and also writing to them expressing danger to her life. She lost her life 3 months after. Are such items dying declarations? Discuss. 6.
“An accomplice is unworthy of credit, unless he is corroborated in material particulars.” Critically examine the statement with the help of decided cases.
7. (a) ‘A’ got divorce from ‘B’ on 31.12.2007 and married ‘C’ on 1.3.2008. ‘A’ delivered child ‘X’ in the month of April (30.04.2008). ‘C’ disputes the paternity of the child on the basis that ‘X’ was conceived during the subsistence of first marriage and therefore ‘B’ is the father. Kindly advise ‘A’ about the existing law. (b) A news in the newspaper stated that those industrialists who will open their units in Assam will be exempted from corporate income tax for a period of 5 years. X, who
vii wanted to set up a jute industry applied to the Director of Industries as well as to Chief Secretary of the State and both confirmed the availability of exemption. X proceeded with his plans. However, the State Govt. withdrew its policy of exemption. X seeks estoppel against State’s withdrawal of its promise. Provide legal advice to X. 8. (a) S, a Govt. servant, commits misappropriation of funds for the purpose of marrying his daughter. S, communicates this to his wife ‘W’. Five years later, S and W got divorced. A year after his divorce, S is put on trial for the offence of criminal misappropriation W is produced as a witness by prosecution against S. Can ‘W’s testimony be accepted by Court? Discuss. (b) Discuss the exceptions which are admitted against privileged communications. ***** LL.B. II Term Examinations, April-May, 2009 Note:
Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.
1. Attempt briefly any four of the following: (a) (b) (c) (d)
What is a fact? How is it different from ‘fact in issue? Give two illustrations of each. Who is competent to testify? Is evidence given by a child admissible? Explain the relevancy of expert evidence. What is the different between ‘May presume’ and ‘shall presume’. Give examples and relevant provisions. (e) Discuss oral and documentary evidence. 2. State the provisions of law and give reasons as to relevancy of the following facts: (a) In a case of homicide against X, prosecution produces a statement of Y. “I heared the cries and saw the dead body”. (b) In a case of an indecent assault upon a maid servant, “the complaint she made to her mistress’ indicating the offender including his name”. (c) In case of an identity of a skeleton recovered from a pond, ‘the production of super imposed photograph of deceased over the skeleton’ by the prosecution. 3. (a) “Rule in selection 10 of Indian Evidence Act confines the principle of agency in criminal matters to the acts of the co-conspirator.” Comment. (b) In a case of kidnapping for ransom against A, B and C, the prosecution produces (i) a letter written by A to B and C about the day, date, time and place where they should meet to carry out the plan and (ii) the ransom money which was obtained and recovered by police after the arrest of C (one of the accused) from his possession. Decide the relevancy and admissibility of the above evidence.
viii 4. (a) A sues B for loan of Rs. 5,000 which B denies. However, B makes a statement before X that he has taken loan from A, though X was not present when transaction took place between A and B. Is the statement of B to X relevant? State the relevant provision and rule of evidence. (b) In a case involving robbery and murder, X ,one of the accused person, told: “I am wearing the pant which I washed after the commission of crime” while other accused Y said: “I can show you the place where the looted property has been kept.” The property was recovered at his instance from the place of hiding. Can statements made by X and Y be said to be confessions (within the rules of evidence)? 5. (a) There is no absolute rule of law that dying declaration can be the sole basis of conviction unless corroborated. Comment. (b) L, a lady shareholder in a property, was called by her relatives to joint property. On her arrival, kerosene was poured on her and she was set ablaze. L died 5 days later. A statement in the nature of complaint was recorded by police officer in the hospital where she breathed last. 6. (a) The presumption of legitimacy under Indian Evidence Act can be displaced by a strong preponderance of evidence and not by mere balance of probabilities”. Discuss in the light of decided cases. (b) Pending the results of his qualifying exam., X appeared for LL.B Entrance Test of Delhi University and obtained 10 th rank in the merit list. He was provisionally admitted to graduate course in law. In the meantime, his result of qualifying exam. was declared and he, as per the marks card issued, secured 60% marks. He appeared in 1st and 2nd Term of rd law and was promoted to 3 Term. The University issued a notice to Mr. X stating that it was by error that he was shown getting 60% marks. In fact, he had obtained only 45% marks, hence was not qualified to be a student of graduate course in law. University proceeds to cancel his admission. Can the University do so? Give reasons. 7. “An accomplice is unworthy of credit unless he is corroborated in material particulars.” Critically analyse the above statement. 8. (a) X communicated to his wife Y the whole episode as to how he misappropriated the money from the office and obtained property. Five years later, X and Y s eparated through a decree of divorce. Y married another person M. Two years later, in a case of possession of assets disproportionate to the income, X was prosecuted. Can the divorced wife of X (namely Y) be produced as witness against X. (b) A communication between a lawyer and his client is privileged subject to certain conditions. Explain. *****
ix LL.B. II Term (Supplementary) Examinations, July-August, 2009 Note:
Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.
1. Attempt briefly any four of the following: (a) Write precautions which must be taken for tape-recorded conversation before admitting it in evidence. (b) Distinguish between the terms “Proved”, “Disproved”, “Not Proved”. (c) Reproduce the law relating to ‘hostile witness’. (d) What is real or material evidence? Answer in the light of the provisions of the Indian Evidence Act, 1872. (e) Are ‘relevancy’ and ‘admissibility’ synonymous terms? Explain. 2. Under which provisions of the Indian Evidence Act, 1872, are the following relevant: (a) The question is whether A murdered B. Marks on the ground, produced by a struggle at or near the place where the murder was committed. (b) The question is whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which and the terms in which the complaint was made. (c) A is tried for riot and is proved to have marched at the head of the mob, the cries of the mob. (d) The question is whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D, every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D. 3. X supplied to Y explosives sufficient to blow up a bridge. Y, together with Z, utilized the explosive for the purpose of blowing up the bridge. But the attempt was unsuccessful. Next, following day, Y sent a letter to X describing the unsuccessful attempt to blow up the bridge and further asked him to supply another consignment of explosives. The said letter was intercepted by the police, which consequently arrested all three of them. Later in the case of conspiracy to blow up the said bridge, the prosecution wants to use the letter of Y as against Z and X. Will it succeed? Under which change of circumstances would the letter become admissible? Answer in the backdrop of r elevant provisions of law and the decided case on the issue. 4. (a) Mr. Justice Sir John Beaumont, while hearing an appeal in Privy Council way back in 1947, wrote, “Section 27 (of the Evidence Act) is not artistically worded; provides an exception to the prohibitions imposed by preceding sections and enables certain statements made by a person in police custody to be proved.” Discuss this proposition in the context of the preceding provisions of the Evidence Act.
x (b) A Sub-Inspector of police of Bombay took an accused into custody on charges of theft. Upon interrogation, the accused made the following statement, which was recorded by the Sub-Inspector, “I will tell the place of deposit of the three chemical drums which I stole from Haji Bunder on 1 st Aug.” The accused then led the police-officer to a Musafirkhana in Crawford market and pointed the three drums lying there. How much of the statement of the accused can be used in evidence? What inferences the court would draw from the statement and the consequent recovery? 5. (a) A seriously injured victim on reaching the hospital tells the doctor on duty that “X has stabbed me because ………….” And before completing the sentence collapses and dies. Discuss the relevancy and veracity of the above dying declaration in the trial of X for murder. (b) According to Supreme Court of India, dying declaration can be the sole basis of conviction subject to certain precautions. What are these precautions? 6. How have the courts, through judicial pronouncements, reconciled the conflicting provisions relating to ‘Accomplice testimony’. Discuss these decisions with special reference to confession by a co-accused. 7. (a) A intentionally and falsely leads B to believe that certain lands belong to A, and thereby induces B to buy and pay for it. The lands afterwards become 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. Can A succeed? Decide in the backdrop of relevant law. (b) A, a client says to B an attorney: ”I wish to obtain possession of property by the use of a forged deed on which I request you to sue.” Is this communication protected from disclosure? Give reasons to your answer. 8. (a) Can the English law permitting blood test for determining paternity for legitimacy of child be applied in India? Give a reasoned answer. (b) In law relating to legitimacy of child, the Supreme Court has observed that: “ ‘access’ and ‘non-access’ mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual co-habitation.” Explain the observation. *****
xi
LL. B. II Term
Law of Evidence
Cases Selected and Edited by S.C. Raina Gunjan Gupta
FACULTY OF LAW UNIVERSITY OF DELHI, DELHI-110007 January, 2010
