INDIAN EVIDENCE ACT Flashcards

Question

sec 15

Answer 1

**Facts Bearing on Question whether Act was Accidental/ Intentional** (Sec. 15) "When there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant A is accused of burning down his house in order to obtain money for which it is insured. The fact that A lived in several houses successively, in each of which a fire occurred and A received payment from a different insurer, are relevant, as tending to show that the fires were not accidental.

Answer 2

section 17 - An admission is a confession or voluntary acknowledgment about the existence of certain facts. An 'admission' is a statement of fact which. waives or dispenses with the production of evidence by conceding that the fact asserted by the opponent is true.

Answer 3

singapore case regarding res gestae A sees B beating the shit out of another guy C in factory. A says dont beat C he is weak and i will report to the union. in return B threatens A and says dont interjecgt i will beat you too. leter that evening outside the factory A is found dead beaten to death, res gestae applies as it is a very relevant fact | section 6 res gestae - also singapore case

Answer 4

Test of applicability- checks proximity of time and place, and continuity of action, purpose test of admission- was it spontaneuous? was there room for error? relevant identification? was there opportunity to concoct? 3 test of rs gestae- cause and effect test, time and place test, conintuity of action an dpurpose test | s6 res gestae ## Footnote tests of viscocity

Answer 5

A man was prosecuted for the murder of his wife. His defence was that the shot went off accidentally. There was evidence to the effect that the deceased telephoned to say: "Get me the police please". Before the operator could connect the police, the caller, who spoke in distress, gave her address and the call suddenly ended. Thereafter the police came to the house and found the body of a dead woman. Her call and the words she spoke were held to be relevant as a part of the transaction which brought about her death

Answer 6

homegirl got her throat slit and apparently said "aunt look at what beddingfield did to me" but held not addmissable because her throat is slit so how did she talk | res gestae sec6

Answer 7

bro went to a girls house when she was alone, murdered her, and left running occasion- girl lone at cottage cause- he impregnated her and was worried abt his reputation effect- footprint found at the crimescene same exact and also eye witness clearly describing him state of things- she was preggo opportunity- accused took leave from work for about an hour around the same time he was seen by eyewitness running away from house

Answer 8

dude slit fathers throat, in shock the child screamed out the accused ka name and the neighbours heard it. res gestae sec 6

Answer 9

if motive is proved then the case of prosecution becomes easier to connect accused to the alleged incident - section 8 motive

Answer 10

dude tried to claim plea of insanity after killing his wife but neigbhours who witnessed the man before and after stated that he was perfectly sane before and after the murder of the wife | section 8 previous and subsequent conduct relevant

Answer 11

Yunis Alias kariya vs madhya pradesh - whee ocular evidence is very clear and convincing and role of accuesed in the crime is well established - moticve is not an indespensible condition for proving the prosecutions case

Answer 12

recorded phone call evidence of man settling bribe money was considered as evidence of conduct

Answer 13

father tried to have sex w daughter. mom did not trust father with daughters chastity- father frustated and killed daughter. neighbours heard the cries and convo. he was convicrted - sec 9 facts necessary to prove or introduce relevant facts

Answer 14

if involved in a conspirancy against state any action taken by one of the co conspirators in furtherance of the common intention will be a relevant fact against all of them - section 10

Answer 15

husband goes to get life insurance against wifes life and to the insurance company she says she feels perfectly fine- later she dies. and it is turning out that before life insurance interview she told someone 3rd party she was not feeling well- section14 facts showing bodily feeling

Answer 16

admission of facts of a an issue by oral documentary or electronic evidence **Basant singh v Janki singh** admission has to be examined as a whole you cannot pick specific parts of a statement and only admit them

Answer 17

woman registered birth of child and did not enter any details regarding the father- court held that either she did not know hwo the father of the child was or it is an illegitimate child so by conduct it is an admission of adultry

Answer 18

Deceased was shot dead by the accused (brother of the girl he was in love with). ► There was a school near Hathipark. Accused hit one man at this place. Another man (servant) was standing near gate of Hathipark who saw the incident happening. ► One eyewitness came running and informed the sister of the accused about the death of the deceased. Girl rushed to the spot and went to police station. This statement of her then converted to an FIR. Therefore FIR becomes part of same transaction. ► Accused denied all the allegations and has taken the plea of Alibi. Showing punch in history of work place. Though he was found loitering around the pan shop near the factory. ► Accused was given life imprisonment u/s 302 IPC.

Answer 19

kapoor used to call the lady he was infatuated with many times a day at her house then one day when she was alone he came and threw acid on her and her mother came home soon after, the poor girl was screaming in pain and she said "kappor singh rana threw acid on me" later she died in the hospital for other reasons. it was said that since the timing of her statement was right after she was attacked itwas the same transaction and further it was corroborated by phone records and the fact that kapoor signed into the security boo when entering her apartment complex. thus the motive is proven the chain of circumstantial evidence proven and accused was held guilty

Answer 20

Rumping v DPP ‘Communication through privilege’. It can be proved by a 3rd party. A ship mate was charged with the murder of a women. He wrote a letter to his wife confessing some crime and gave it to the postman. But postman gave it to captain. Captain gave it to police. This letter was considered as admission by the shipmate.

Answer 21

Moviarity v London Latham & Dover ry. Plaintiff sued railways for some injury. Evidences were admitted that he had been persuading certain persons to appear for him when they were not present at the accident. Court said species of evidence is receivable as an admission by the party that case is fake.

Answer 22

Palvinder Kaur was on a trial for murder of her husband along with another who was always absconding. Husband’s body was recovered from a well after it had already suffered about two months of decomposition. The post mortem could not even reveal whether death was due to poison or what. In her statement to the court the accused said that her husband , a hobbyiest photographer used to keep handy photos developing material which is quick poison that on the occasion he was ill and she brought him some medicines that the phial of medicine happened to be kept nearby the liquid developer and the husband while going for the medicine by mistake swallowed the developer and died, that she got afraid and with the help of the absconding accused packed the body in the trunk and disposed it off into the well. The statement thus consisted of partly guilty and partly innocent remarks. It was partly inculpatory in the sense that it confessed to something wrong and partly exculpatory in the sense that if accepted it would totally absolve her of any guilt. The supreme court approved privy councils decision upon two points. 1. Firstly, the definition of confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence. 2. Secondly, that a mixed up statement which even though contains some confessional statement, will still lead to acquittal is no confession.

Answer 23

Sahoo v. Sate of UP (1996) Accused who was charged with murder of his daughter in law with whom he was always quarrelling was seen on the day of the murder going out of the home, saying words to the effect: ‘I have finished her and with her the daily quarrels’. The statement was held to be confession relevant in evidence, for it is necessary for the relevancy of a confession that it should be communicated to some other person.

Answer 24

The issue arose on the evidentiary value of confession against the co-accused under S. 30 of the IEA, 1872. Bench came to the conclusion that the other independent evidence did not possess a conclusive nature to bestow any conviction upon the appellants so subject of considering confession against co-accused cannot be brought to question. Henceforth, both the appellants were acquitted, setting aside the conviction and sentence and the appeal was permitted

Answer 25

Baldev Raj v. State of Haryana (1991) ► The appellant was convicted under s. 302 IPC for murdering his wife. The prosecution case was that on the fateful day the deceased had taken meals to the appellant while he was working in the field near his tubewell. Her dead-body was recovered two days later in a nearby drain. He made an extra-judicial confession the same day at the panchayat in the presence of PWs 3, 4 and 5 to the effect that he had killed his wife in the wheat field and threw the dead-body in the drain at night after removing her ornaments. ► The FIR was lodged thereafter in the presence of the appellant and the fact of his statement was recorded therein. The weapon of offence, the kassi, and the ornaments were recovered from the hut near the tube well at his instance. PW 3 narrated the events that preceded the occurrence. PWs 4 and 5 fully corroborated the evidence of PW 3 in that the appellant had confessed his guilt in their presence. The evidence was accepted by the trial court. ► The High Court sustained the conviction on the view that various circumstances conclusively proved the guilt of the appellant beyond reasonable doubt.

Answer 26

sec 25 confessions made to PO not relevant - even if your confession is before you become accused it is still not relevant

Answer 27

s.26- any confession made by any person in csutory to anyone not relevant - bro was tryna confess to felow prisoner and it was held not relevant

Answer 28

dying declaration s32 ‘It is unsafe to record the conviction on the basis of dying declaration alone in the cases where suspicion, like the case on hands is raised as regards to the correctness of the dying declaration. In such cases the court mat have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion

Answer 29

The question was whether the accused could be convicted only on the basis of this declaration, or the declaration needed corroboration There are divergent views of different High Courts in this regard. According to Bombay High Court, dying declaration is a weaker type of evidence and requires corroboration. According to Calcutta High Court, it is not permissible to accept a declaration in one part and reject the other part. According to Madras High Court, a declaration can be relied without corroboration, if the court is convinced of its truth, i.e., there is no suspicion of its credibility. SC determined that: A dying declaration is not a weaker kind of evidence than any other piece of evidence. It stands on the same footing as any other piece of evidence. A dying declaration recorded by a competent Magistrate in a proper manner in the form of questions and answers, and in the words of the maker as far as practicable stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and character. Thus, a true and voluntary declaration needs no corroboration.9. The statement of the deceased in this case satisfied all these, conditions (the declaration was true in all respects e.g. consistent in so far as naming of the two accused) and therefore the appellants should be convicted.10

Answer 30

he deceased made a dying declaration before a doctor. It was clear in all respects. However,, the appellants challenged it on the following grounds: (1) It did not contain all those names which were included in F.I.R. (2) The account of eye-witnesses is also different (3) The deceased was in a state of shock, thus his statement could not be relied (4) The declaration was incomplete as the deceased did not answered the last question put to him (To wind up the statement the doctor asked the injured if he had anything else to say, he lapsed into unconsciousness without answering this question). The court observed that only because certain names were included in F.I.R. but were not mentioned in dying declaration does not detract from the value of dying declaration and would not by itself prove the falsity of the declaration. The statement of doctor was that deceased became semi-conscious when last question was put to him. Logically it means that prior to that he was fully conscious. The last question was in the nature of a mere formality "What more you want to say", and all the necessary questions were asked before that formal question. The statement was thus not incomplet

Answer 31

1st- Kushal Rao v State In Lallubhai v State of Gujarat (AIR 1972 SC 1776)

Answer 32

Laxman v State of Maharashtra

Answer 33

s40- Previous Judgment Relevant to Bar a Second Suit or Trial same as res judicata s41- Sec. 41 deals with judgments in rem i.e. a kind of declaration about the status of a person (e.g. that he is an insolvent or married or not), and is effective against every body whether he was a party to the proceeding or not. A judgment in personam, on the other hand, means a judgment between the parties (e.g. in a tort or contract action), which binds only the parties and is not relevant in any subsequent case or proceeding. sec42- "Judgments, orders or decrees other than those mentioned in Sec. 41 are relevant if they relate to matters of a public nature relevant to the inquiry but such judgments, etc. are not conclusive proof of that which the state." Judgments on such matters are relevant to every case or proceeding in which the matter is again in question, but shall not be conclusive c the matter. Sec43- "Judgments, orders or decrees, other than those mentioned in Sees. 40, 41 and 42, are irrelevant, unless the existence of such judgment, etc., a fact in issue, or is relevant under some other provision of this Act sec44- Fraud or Collusion in Obtaining Judgment/ Incompetency of Court (Sec. 44) "Any party to a suit or other proceeding may show that any judgment, order or decree, relevant under Sees. 40-42 and which has been proved by the adverse party, was delivered by a court not competent to deliver it, or was obtained by fraud or collusion." The existence of a judgment over a matter which is again in question is a satisfactory piece of evidence, Such a judgment does not have the effect of res judicata.

Answer 34

only opnions of experts are to be cited as relevant - expert must be someone who has devoted s=time to study the field State of HP v Jai Lai - officer of horticulture department of government will nto be consdered as n expert for relevant evidence because while he might have some acquired experience, it is not enogh to be qualfied as expert proof of age in Amita v Atal Bihari - a radiologists opinion on age will not be preffered if documentary evidence such as school certificates exist to prove the same

Answer 35

sec 45- expert opinion kidnapping case wherein medical evidence proved she was 17-18 but doc evdence prved she was 18 above. documentary evidence preferred

Answer 36

An ordinary witness must depose to what actually took place. An expert's evidence is not confined to what actually took place, but covers his opinions on facts (e.g. a medical man may give his opinion as to the cause of a person's death). An expert can refer to and rely upon experiments conducted by him in the absence of the other party. Thus, on a charge of arson, evidence of an experiment conducted by an expert subsequent to the fire is admissible to show how the fire may have originated. An expert may quote passages from well-known text books on the subject and may refer to them to refresh his memory. An expert may state facts relating to other cases in pari materia similar to the case under investigation.

Answer 37

he Supreme Court has laid down following principles in this regard (Murari Lai v State ofM.P) here is no rule of law,that the opinion evidence of an expert must never be acted upon, unless substantially corroborated. (ii) But, having due regard to the various adverse factors operating in case of expert opinion, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. (iii) In appropriate cases, corroboration must be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an expert may be accepted. (iv) The hazard in accepting the expert opinion, is not because experts, in general, are unreliable witnesses - the equality of credibility is the same as all human judgement is fallible The more developed and more perfect a science, less is the chance of an incorrect opinion. The science of identification of fingerprints has attained near perfection and the risk of incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not so perfect and the risk is, therefore, higher. The opinion of expert is not decisive or conclusive of the matter. The court should not surrender its opinion to that of the expert. An expert deposes and not decides.

Answer 38

(Facts bearing upon opinion of experts) "Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant".

Answer 39

It includes a person - who has seen that person write, or (ii) who has received documents written by that person in answer to documents written by himself or under his authority and addressed to that person, or (iii) who has in the ordinary course of business, received documents written by that person or such documents are habitually submitted to him. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence.

Answer 40

that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. SECTION 47

Answer 41

while dealing with the evidence of a handwriting expert, this Court opined: “… We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. SECTION 47

Answer 42

, AIR 1975 SC 1727, this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution’s case and unless reasonably explained it is sufficient to discredit the entire case.

Answer 43

the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses’ account which had to be tested independently and not treated as the “variable” keeping the medical evidence as the “constant”. Where the eyewitnesses’ account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The eyewitnesses’ account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

Answer 44

In State of UP v. Krishna Gopal, the High Court found that there was no variance between the medical evidence and the ocular evidence. and stated that it is only if the medial evidence proves to be totally inconsistetn with the ocular evidence- then the ocular evidence may be discarded

Answer 45

sec 59-60 . Proof of facts by oral evidence - All facts except the contents of documents, may be proved by oral evidence. Oral evidence, if worthy of credit, is sufficient without documentary evidence to prove a fact or title. However, as per Sec. 60, where written documents exist, they shall be produced as being the best evidence of their own content and no oral evidence can be produced to prove as to what is wrong in the document. A and B enter into a written contract that 5 shall be supplying 20 mounds of wool to A every month. If controversy irises between the parties about the terms of the contract it can be proved only by the document. Oral evidence will not be allowed. Oral evidence must be direct - Oral evidence must, in all cases, whatever, be direct,-i.e. "If it refers to a fact which could be seen (or heard or perceived by any other senses), it must be the evidence of a witness who says he saw (or heard or perceived it by that sense) it;

Answer 46

sec 61 - 78 sec 62- expression 'primary evidence' includes:- i) The original document itself produced for the inspection of the court. (ii) Where a document is executed in several parts (e.g. duplicate, triplicate- required when there are several partners), each part is primary evidence of the document. Where a document is executed in counterparts, each counterpart is primary evidence against the party signing it {Explanation 1). For example, in the case of a cheque, the main cheque is signed by the drawer so that it is a primary evidence against him, and the counterfoil ay be signed by the payee of the cheque so that it will be a primary evidence against the payee.

Answer 47

sec 63- (i) Certified copies of the original document (i.e. public documents certified by a public officer). ii Copies which are made from the original by mechanical processes (e.g. printing, lithography, photography), which in themselves assure the accuracy of the copy; and copies compared with such copies (e.g. a photograph of an original, a carbon copy).

Answer 48

sec65 1. When the original is shown or appears to be in the possession or power of a person against whom the document is sought to be proved (adversary party), , and although due notice has been given to him in accordance with the terms of Sec. 66, he does not produce it. 2. When the existence, condition or contents have been proved to be admitted in writing by the party against whom the document is to be proved. 3. 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. 4. When the original is of such a nature as not to be easily movable (e.g. bulky documents). 5. When the original is a public document within the meaning of Sec. 74. 6. When the original is a document of which the Evidence Act or any other law of the country permits certified copies to be given in evidence. 7. When the original consists of numerous accounts or other documents which cannot be conveniently examined in the court and the fact to be provided is the 'general result' of the whole collection.

Answer 49

65A and 65B have been added by the Information Technology Act, 2000. Sec. 65A lays down that the contents of electronic records may be proved in accordance with the provisions of Sec. 65B. "notwithstanding anything contained in this Act, information in an electronic record which is printed on a paper, stored, recorded or copied in a computer shall be deemed to be a document and shall be admissible in any proceedings (without further proof or production of the original) as evidence of the contents of the original or of any fact stated therein of which direct evidence would be admissible.

Answer 50

whoever desires a court to give judgement or legAL right/liability based on certain facts must then prove the existence of those facts and BOP lies on them A desires a court to give judgment that B shall be punished :or a crime which A says B has committed. A must "prove that B has :ommitted the crime.

Answer 51

Burden of Proving Fact to be Proved to Make Evidence Admissible ( "The burden of proving any fact necessaiy to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence." Illustrations: (a) A wishes to prove a dying declaration by B. A must prove B's death.

Answer 52

Burden of Proving Exception in Criminal Cases According to Sec. 105, 'the burden of proof is upon the accused of showing existence, if any, of circumstances which bring the offence charged within any of the special as well as any of the general exceptions or proviso contained in I.P.C. or any law defining the offence. Further, the court shall presume the absence of such circumstances'. Illustrations (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. The fundamental principle of criminal jurisprudence is that an accused is presumed to be innocent, and the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. This general burden never shifts, and it always rests on the prosecution. Sec. 105 is an important qualification of this general rule. This section is an application, perhaps an extension of the principle laid down in Sec. 103.

Answer 53

I (AIR 1964 SC 1563), the Court observed that there is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused under Sec. 105.

Answer 54

Surden of Proving Fact Especially within Knowledge (Sec. 106) When any fact is specially within the knowledge of any person, the mrden of proving that fact is upon him." llustrations: (b) A is charged with travelling on a railway without a ticket. The Durden of proving that he had a ticket is on him. Sec. 106 applies only to the parties to a suit or proceeding. Sec. 106 s an exception to Sec. 101. It is designed to meet certain exceptional cases in which it would be impossible or very difficult for the prosecution to establish facts which are especially in the knowledge of the accused.

Answer 55

Burden of Proving Death (Sec. 107) Burden of Proving that Person is Alive who is Unheard of for 7 Years (Sec. 108)- Sec. 108, on the other hand, provides that when it is proved that a person has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is living is shifted to the person who affirms it. There is a general presumption of continuity of things. Sec. 107 provides that when a person is shown to have existed within the last 30 years, the presumption is that he is still alive and if anybody alleges that he is dead, he must prove that fact. This presumption is, however, not a very strong one. According to Sec. 108, if a person is not heard of for 7 years, the presumption is that he has died, and, if anybody alleges that he is still alive, he must prove that fact. Thus, seven years' absence creates rebuttable presumption of death. The presumption raised under Sec. 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. Further, the presumption would arise only on lapse of seven years and would not apply on expiry of six years arid 364 days or any time short of seven years.

Answer 56

Burden of Proof as to Relationship of Certain Kind (Sec. 109) According to Sec. 109, where certain persons are shown to have acted as partners, or as landlord and tenant, or as principal and agent, the law presumes them to be so related and the burden of proving that they were never so related or have ceased to be so shall lie upon the party who says so Burden of Proof as to Ownership (Sec. 110) When a person is in possession of any thing as owner, the burden of proving that he is not owner is on the person who affirms that he is not the owner. Proof of Good Faith (Sec. Ill) When a person stands towards another in a position of active confidence, the burden of proving the good faith of any transaction between them lies on the person in active confidence. Illustrations: (a) The good faith of a sale by a client to attorney is in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.

Answer 57

three kinds: (a) Presumption of fact (rebuttable) (b) Presumption of law (rebuttable and irrebuttable), and (c) Mixed presumptions or presumption of law and fact. Mixed presumptions are chiefly confined to the English law. While the 'presumption of fact' is discretionary, the 'presumption of law' is legal or compulsory presumption.

Answer 58

'May Presume') Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it (Sec. 4) presumption of this type is a descretion of court and it id rebuttable

Answer 59

'Shall Presume' Wherever it is laid down that "the court shall presume a fact", it means hat the court must regard such fact as proved, unless and until it is disporved

Answer 60

Presumption as to Abetment of Suicide by a Married Woman (Sec. 113-A) Sec. 113-A deals with the question of abetment of woman's suicide by her husband or any of his relatives. In such cases, a presumption arises (the court may presume if 2 conditions : 1. suicide within 7 yrs of marriage 2. husb or his relatives subjected her to 498A cruelty Presumption as to Dowry Death (Sec. 113-B) Under Sec. 113-B, 'when the question is whether a person has committed the 'dowry death' (as the term is defined in Sec. 304-B, IPC. the court shall presurne-that such a person had caused the dowry death. The burden is on the accused to rebut this presumption'. Presumption as to dowry death begins to operate if prosecution is able to establish circumstances set out in Sec. 304-B, IPC

Answer 61

Presumption of Existence of Certain Facts7 (Sec. 114) "The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of (a) natural events, (b) human conduct, and (c) public and private business, in their relation to the facts of the particular case". illustration- That, if a man refuses to answer a question which he is no compelled to answer by law, the answer, if given, would b unfavourable to him (if the answer might cause loss to him i matters unconnected with the matter in relation to which it j asked, the court shall have regard to such fact). presumption in RAPE CASES - th ecourt shall presume there was no consent and the BOP to prove consent is shifted to the accused The presumption under Sec. 114-A arises when the accused who commits rape is a police officer, a public servant, an officer of jail, Hospital, or he commits rape on a woman knowing that she is pregnant or when rape is a gang rape. This section has been added for drawing a *conclusive presumption as to the absence of consent in certain prosecutions for rape.*

Answer 62

Birth during Marriage Conclusive Proof of Legitimacy (Sec. 112) According to Sec. 112, the fact that any person was born: during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution (the mother remaining unmarried), is conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been concieved 3 points to remember regarding s112 - time of BIRTH is the deciding factor not time of conception - if child bor during marriage= husband IS the father - presumption applies equal force even if child is born within few days or even hours after the marriage Under Sec. 112, the only way to rebut the presumption is the proof of "non-access" between the parties to marriage8 r (Kanti Devi v Posbi Ram

Answer 63

- A Hindu woman was married to S in Oct. 1903. She was divorced by him in June 1904. She married another man, T, in July 1904 and gave birth to a son in Sept., the same year. Thus, the conception was formed when she was the wife of one and birth took place when she was the wife of another man. The child was held to be the legitimate child of second husband, the court relying upon the fact that no proof was available of the fact that T could not have had access to her even when she was the wife of S. The marriage of the mother to one person is not considered to be a proof of the lack of access to any other person.

Answer 64

where an accused is alleged to have made an extra judicial confession to his wife about his raping and killing of her sister, the evidence of his wife was held to be inadmissible. A wife was not allowed to tell what her husband told her about a murder with which he was charged. sec 122

Answer 65

basically it is not relevant whether or not sposal relations are subsisting at the time of giving the evidence/testimony rather when the communication was made. so when this divorced woman was offered as witness against her former husband she could only divuldge communication AFTER the divorce an NO communication that occured DURING the marriage - t has been further held that the word 'communication' does not extend to correspondence, which passed between them, because when a letter is produced in court and its contents proved, it is the letter that is disclosed and not a spouse.

Answer 66

Rumping Director of Public Prosecution Case the accused of a murder, wrote a letter to his wife after killing a person, confessing that he murdered his colleague under certain circumstances. He gave that letter to his friend, and requested him to hand over the letter to his wife. The friend gave that letter to the police; the trial court admitted that letter. The Privy Council upheld the decision of the trial court and also held that the letter written by the accused addressing to his wife would not be protected under the 'privileged communications' during the marriage. SIMILARLY- SAHOO v STATE

Answer 67

it was held that the marriage cannot be treated as subsisting after the divorce decree and hence the communication was not made during marriage so as to come within the protection under Section 122. A communication made to a woman before marriage would not bé protected. But when a communication is made by one of the spouses to the other during the communication of marriage, the privilege continues even after the marriage has been dissolved by death or divorce.

Answer 68

basically during priviliged communication the spouse may testify against the other IF the other spouse consents to it. Here, after the husband died there was no "representative interest" and the widow of a deceased husband cannot act as the representative and give consent to herself to disclose communication from during their marriage. doesnt matter if shes willing or wtv

Answer 69

[1950 15 Cr. LJ. 613], it has been held that an offence against a son is not an offence against the husband and a confession by a woman to her husband that she murdered the son is not admissible. so even though she was abusing THEIR child he could not testify against her as it does not come under the exception of s122

Answer 70

United States v. Acker [52 F.3d 509, 514] that marital privilege only applies to people who are legally married and not to people who are cohabiting without a legal marriage. They also now consider the child born out of a live in relationship as a legitimate child[ Tulsa V. Durghatiya [(2008) 4 Scc 520]

Answer 71

only that part of a confessional statement would be taken into account, which may lead to discovery of fact, and that discovery should be a physical object and not only a mental fact.

Answer 72

basically checks the clash between section 112 which says ki any person bord during a valid marriage or within 280 days after the dissolution of the marriage and mother has remained unmarried- it SHALL be CONCLUSIVE proof that it is legitimate child unless non access to woman can be proven by the man and this is a very strong presumption. and then section 114- court MAY PRESUME existence of certain facts and the illustration (h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, court may presume if given, would be unfavourable to him; so here- the wife does not want the child to have dna test and the argument by father is that he wants to establish the adultery of the mother and so if she does not agree to it then court cannot simply assume an adverse inference against her specially since the husband has not filed saying that he had no acces or who he beleives the child could be of. court held that it is an insufficient cause for DNA test and not enough for the MAY presume of section 114 to override the CONCLUSIVE PROOF of section 112. while court obviously has power to assign dna tests it shoudl do so sparingly and only when it is necessary for justice. it cannot be prescribed mechanically to do DNA test in each and every case. wherever the Act uses the expression “conclusive proof”, the Court cannot even allow evidence to be given for the purpose of disproving it. according to s4

Answer 73

1. right of person who is accused of an offense 2. protection against compulsion to be witness against urself 3. protection against compulsion to give evidence against oneself

Answer 74

the court emphasizes that the "last seen" doctrine has limited application, and an accused should not be convicted solely on the basis of this doctrine. In the present case, the court has taken into consideration all the evidence put forth by the prosecution and the defense and has analyzed the discrepancies in the testimonies of the witnesses. The court ultimately concluded that the prosecution had failed to establish the guilt of the accused beyond a reasonable doubt

Answer 75

Section 115 of the Indian Evidence Act of 1872 defines estoppel as when someone causes another person to believe something is true and act upon it. The person who caused the belief cannot later deny the truth of the thing. Doctrine of estoppel is founded on the famous English case *Pickard v Sears* stating the principle that it is inequitable and unjust to allow a person to deny the truth of a statement which he has made to another and the other person has acted on it believing it to be true. The object is to prevent fraud and secure justice

Answer 76

114. (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; (h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it: –– o illustration (g) –– a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family; as to illustration (h) –– a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;

Answer 77

govt acquired land from respondent and then later realised that land already belonged to them so asked respondent for compensation- court said there was an estoppel operating against govt - a person who previously alleged contrary acts will not be heard

Answer 78

Res judicata is the final decision made by the court. It prevents the parties from relitigation the issues that were or could have been raised in the specific case. Whereas, the issue estoppel is a legal principle which says that even if the court has made a decision the relitigation of that issue would be prohibited on a different course of action involving either of the parties from the first case. estoppel prohibits a person from contradicting what was earlier said by him in a court of law. estoppel rises from the words/actions of the parties , res judicata rises from decision taken by court

Answer 79

(i) a representation is made by a person to another, (ii) other person believes it and acts upon such belief thereby altering his position, (iii) then in a suit, between the parties, the person who represented shall not be allowed to deny the truth of his representation, i

Answer 80

No estoppel against a minor -Where a minor represents fraudulently or otherwise that he is of age and thereby induces another to enter into a contract with him,- he can still claim he is minor * when true facts are known to both parties *fraud or negligence of other parties *When both the parties plead estoppel - If both the parties establish a case for application of estoppel, then it is as if the two estoppels cancel out and the court will have to proceed as if there is no plea of estoppel on either side. *No estoppel on a point of law - Estoppel refers only to a belief in a. fact.

Answer 81

Sec. 116 provides that a person who comes into an immovable property . taking possession from a person who he accepts as the landlord, is not permitted during the continuance of tenancy to say as against his landlord that he had no title to the property

Answer 82

Sec. 117 provides that no acceptor of a bill of exchange can deny that "the drawer had authority to draw such bill or to endorse it; but he may deny that the bill was really drawn by the person by whom it purports to have been drawn (it can always be shown that the drawer's signature was forged).

Answer 83

First, the party that called the witness examines him, this process is called examination-in-chief as mentioned under S 137 After the completion of the examination-in-chief, if the opposite party wants to, they can take over the witness and cross-question him about his previous answers. The opposite party may ask him any question regarding all the relevant facts and not merely the facts discussed during the examination-in-chief. This process has been described in S137 of the act as cross-examination. If the party that called the witness sees the need to examine the witness again after cross-examination, they may examine the witness one more time. This has been laid down as re-examination in S137

Answer 84

, it was held by the High Court of Jammu and Kashmir that- cross-examination might not be necessary if the witness testimony is prima facie unacceptable.

Answer 85

s141- what is a leading question- it is typically not permissable to ask and feede the witness an answer "he was wearing a black robe right?" in 142 it is said that that leading questions can be asked in an examination-in-chief, or in a re-examination if the Court permits. and also when the introductory facts are covered and undisputed and according to court- suffieciently proved. But, Section 143 states that leading questions can be asked even in cross-examination. but if the other party raises objections then they cant ask. if the other council does not say objection then it will be used

Answer 86

person who must prove a document in support - Section 144 states that any witness may be asked questions regarding the contents of a document or contract that is not present in the document. If the witness gives statements regarding such documents, it must be produced before the Court. The opposite party can object to such evidence until it has been produced in the Court.

Answer 87

Every statement given by a witness must be reduced to writing. He can on a later stage of cross-examination be contradicted on his prior made statements. Section 145 of the act states that such contradictions can be made in relevant questions without showing the writings to the witness before they are proved. Once the statements have been proved to be true, there is no use of contradicting the witness then.

Answer 88

he witness’s statements will be taken as evidence by the Court, but it must be proved that the witness is actually telling the truth. Section 146 states that during cross-examination of a witness, he may be in addition to the aforementioned questions also be asked questions that try to: Test his accuracy or truthfulness. Understand more about the witness and his position in life. To shake his credit by questioning his character.

Answer 89

Section 147 of the Act states that if any question related to a relevant issue of the case, then Section 132 shall be applicable. Section 132 says that the witness will not be excused from answering any question on the grounds that the answer might criminalize him or lead to a penalty or forfeiture on any question regarding a relevant issue in the case. Section 148 of the Act, that the Court must decide whether a witness should be compelled to answer or not. This statute provides the witness with protection from aggressive cross-examination. He is not obligated to answer questions that: Injures his character, or Doubts his credibility.

Answer 90

Section 151 to forbid such questions that are indecent or scandalous. The Court can also forbid questions that are intended to insult or annoy as stated in Section 152 of the act. The section 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.

Answer 91

n the case of, it was held that these questions may only be allowed if they are related to the matter and are regarding a relevant fact in issue, or essential for finding out whether some fact in issue exists.

Answer 92

A question asked during an examination of a witness must establish a fact in the case, it should not be asked merely to shake his credit or injure his character. It is stated in Section 153 of the Act UNLESS: If a witness has been asked whether or not he was previously convicted. On denial of the witness, the evidence regarding the proof of his previous conviction can be given. If a witness has been asked a question that impeaches is impartiality, on denial of witness, he may be contradicted. It means that if a party has sufficient grounds to believe that the witness is not impartial, they may contradict him and try to furnish proof.

Answer 93

If the witness has turned hostile, his credit can be impeached by the opposite party, or by the party that calls him (subject to permission from the Court). Section 155 *By calling such a person who can from their personal experience and knowledge testify against the witness and establish that the witness in question is unworthy of credit. *By furnishing proof that the witness has taken a bribe, *By showing inconsistency in his former statements and contradicting him to the extent permitted by Section 153 as held in Zahira Habibullah Sheikh v. Sate of Gujarat.

Answer 94

not a substansive peice of evidence- rather done by prosecution to check if they are moving in right direction. used when witness has seen the accused but he is not personally known to the witness so it is done to identify the accused at earliest opportunity to prevent the memory fading away Ayyub v state- failure to hold TIP after demand of accused is not fatal specially in cases where the accused is known to the witness