Tag Archives: Indian Evidence Act

Secondary Evidence – No Requirement of Application

There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed. Dhanpat v. Sheo Ram, (2020) 16 SCC 209.

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Case Not Specifically Pleaded – Non-Consideration of

In Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103 it was held as under:

        “It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in the case of Bhagwati Prasad, AIR 1966 SC 735 and Ram Sarup Gupta, (1987) 2 SCC 555  and several other decisions of this Court following the same cannot be construed as diluting the well-settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu. Nathu Ram v. Thakur Ramjanki Virajman Mandir, 2018 (127) ALR 495.

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Result of – DNA Test

It is clear that once the order for DNA Test has been passed and DNA Test has been conducted, the result of DNA Test cannot be brushed aside. The same will have to be given effect to, even if the circumstances justifying attraction of presumption as contemplated under Section 112 of Indian Evidence Act exists. Rajesh Kumar Chaudhary v. Smt. Sarita, 2020 (1) AWC 531.

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Evidence of Eyewitness

While appreciating the evidence of a witness, the approach must be to assess whether the evidence of a witness read as a whole appears to be truthful. Once the impression is formed, it is necessary for the court to evaluate the evidence and the alleged discrepancies and then, to find out whether it is against the general tenor of the prosecution case. If the evidence of eyewitness is found to be credible and trustworthy, minor discrepancies which do not affect the core of the prosecution case, cannot be made a ground to doubt the trustworthiness of the witness. Mallikarjun v. State of Karnataka, (2019) 8 SCC 359.

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Objections Relating to Admissibility or Relevance of Facts and Objections As to the Mode or Method of Proof of Facts – Distinction Between

In Sonu v. State of Haryana, (2017) 8 SCC 570, drawing a distinction between objections relating to admissibility or relevance of facts and objections as to the mode or method of proof of facts, it was held as under:         “It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65-B(4) of the Evidence Act. It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 CrPC, 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.” Sharda Jain v. State, (2019) 10 SCC 623.

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Evidence – Of Injured Witness

It is undisputed that the evidence of an injured witness stands on a higher level but at the same time, it is equally true that receiving the injuries in an incident is a fact which merely proves the presence of the injured witness at the place of incident but the same is no guarantee of the fact that whatever the injured witness deposes is gospel truth. Shyam Singh v. State of U.P., 2020 (110) ACC 498.

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Related Witness and Interested Witness

In Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549 it was held as under:

        “Related is not equivalent to interested. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”.

        In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labeling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made in Dalip Singh v. State of Punjab, AIR 1953 SC 364:

        “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person.”

In the case of a related witness, the Court may not treat his or her testimony as inherently tainted and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. In Jayabalan v. State (U.T. of Pondicherry), (2010) 1 SCC 199, it was held as under:         “In cases where the Court is called upon to deal with the evidence of the interested witneses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavor of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.” Laltu Ghosh v. State of W.B., (2019) 15 SCC 344.

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