CHAPTER 1-DEFINITIONS

CHAPTER 1

DEFINITIONS

Ch.1.1. Evidence:

Evidence means and includes:

i) All statements which the court permits or requires to be made before it by witness in relation to a Matter of fact under inquiry such statements are called oral evidence.

ii) All documents produced for the inspection of the court Evidence may be oral or documentary. Evidence is defined as any matter of fact the effect or Tendency of which is to produce in the mind a persuasion of the existence (or otherwise) of some other Matter or fact, The textual definition refers only to oral and documentary evidence and hence incomplete. The Judge may rest his judgment on various other media of proof as well. Inspection report, facts which the Court may take judicial notice etc. are not covered by the definition.An affidavit is not ‘evidence’ under this section. Similarly confessions of Co-accused, Mahajar Report, finding of the tracker dogs or tape recordings etc.; are not evidence. These are to be proved andThen the court may decide their admissibility and evidentiary value.Three major principles of evidence are i) it must be confined to facts in issue and relevant facts ii)Hearsay evidence is not admissible iii) Best evidence must be produced before the court.


Ch.1.2 Fact and Fact in Issue;

'Fact' means anything or state of thing which is capable of being perceived by the senses. It also Includes any mental condition of which a person is conscious.

Eg. i) if a man hears something then that he heard something is a fact.

ii) That a person has said certain words is a fact.  Facts are of two kinds:

·Physical

·Psychological (item which exists in mind)

Facts in issue means any fact from which either by itself or in connection with other facts there Necessarily follows the nature of the right asserted or denied in any civil or criminal proceedings.

'A' is accused of murder. The following are the facts in issue: 1) A caused B's death ii) A intended to Cause the death of B iii) A had received a grave and sudden provocation from B. Matters which are in Dispute or which form the subject of investigation are to be determined by the court. When the Court

Investigates the facts there may be allegation and denials by the parties to the dispute. From these the court settles the facts in issue. These are called issues under Civil Procedure Code. Ch.l.3.Relevant Facts: Facts mean: Anything capable of being perceived by the senses and any mental condition of which any person is conscious. Facts in issue are matters which are in dispute or subjects for determinate relevant facts are defined in Sns. 3 & 5. Evidence may be given of i) facts in issue and ii) of such other facts declared to be relevant by the  Evidence Act, and of no others.-Generally speaking, evidence should to be confined to the facts in issue. But there are collateral facts which are intermixed with the facts in issue and according to the Evidence Act these are relevant and admissible.  Relevancy is the test of admissibility. i) A fact not relevant may become relevant because of a presumption. ii)  The terms of a contact may be relevant but no oral evidence is allowed except the document itself. iii) In examination in chief though there may be facts leading questions concerning them are not Admissible. But in cross examination leading question may be freely asked. The objective of the evidence Act to save public time and to prevent fanciful inferences which may prejudice and mislead the court. Hence only collateral facts which are relevant according to the Evidence Act are admissible. All others are inadmissible. The discretion of the court is guided by the provisions of ‘the Act. Ch.1.4 Res Gestae (Sn.6): These are facts surrounding or accompanying a transaction. This has a reference to the circumstances Which are the automatic and the unsigned incidents. The incidents may consist of the sayings and doings Of persons. Res Gestae according to Cross's Law of Evidence, is a blanket phrase covering, a variety of items of evidence for variety of purposes.   Eg.  A sues  B for  a  libel.  The libel was in a letter.  The correspondence between the parties relating to the subject of libel are relevant facts. A is accused of the murder of B by beating. All things said or done by A & B, or by the bystanders, at the Time of beatings or just before it are relevant facts (Res Gestae).  Of course, Hearsay evidence is not Admissible. Hence. Res Gestae refers to statements relating to and contemporaneous with a relevant fact. The Essence of it is that there must be continuity of action and purpose. (i) R.V. Thompson (committing abortion of a woman), all acts done and statements made before or After abortion were allowed as Res gestae. (ii)  In R.V.  Lillyman, the accused had ravished a woman W.  The particulars given by her in her complaint,  were allowed as they were  consistent  with her  conduct  and for  not  giving her  consent  for Ravishment. Ch.1.5. 30 Years Old Document (Ancient Document) (Sn. 90): There is a presumption in respect of a document which is 30 years old that the signature and other  Parts of the document which purport to be in the handwriting of a particular person, is in that persons Handwriting. In respect of its execution or attestation, the court may presume that it has been duly done.Such a document must be in the proper custody of a person, who would naturally be in possession Of it. The legitimate origin can be proved. Eg. A produces title deeds relating to his land. The custody is proper. This rule is based on necessity and convenience. Further, after the lapse of such a longtime, i.e., 30 years or more it may be difficult formally to prove the handwriting, attestation, etc. These documents are also called ancient documents. 30 years is calculated of an ancient document. It does not apply to other aspects. In Chiranjilal vs. Kallo the court held that when a 30 years old document was produced there was no presumption as to its genuineness.

Ch.1.6. Judgment in Rem (Sn.41): (i) A judgment in rem, is conclusive not only against the parties, but also against all the world (Norton).  The judgment must been given upon the status of some particular subject matter and it must be by a Competent court. Any person who is affected by the decision may appear and assert his own rights by Becoming an actual party to the proceedings. The leading case in Kanhya vs. Radha, where Peacock J. laid down this rule. A judgment in rem of a Competent Court which is exercising its jurisdiction in probate, Matrimonial,  Admiralty or Insolvency is binding on all persons, whether parties or privies or strangers. It is a conclusive proof of the legal character. (ii) The legal character is the one that the judgment in rem confers, takes away or declares, in it's Judgment. It may declare the property rights of any person. It is conclusive in regard to the martial status Of parties, insolvency, probate and admiralty.  Eg.  Decree of divorce, of granting probate of status in Insolvency etc. Testator T dies leaving a will, with E as his executor. A, B, C & D dispute the will. The probate court Decides that the will is genuine, it grants probate to E. This is binding on A, B, C, & D, and, also on all Persons in the world. It is conclusive. (iii) It may be impeached by proving: ·That the court, had no jurisdiction. ·That the judgment was obtained by fraud. ·That it was not given on merits. ·That it was not final, iv) Judgment in Personam: This is the judgment of the court binding on the parties to the case only or their legal representatives, On the matters decided by the court. Judgments in Contracts, Torts, etc., fall to this category. Such judgments are not a bar between strangers or between a party to the judgment and a stranger. There is one exception. When the judgment relates to a matter of Public nature, it may be relevant. A sues B for trespass on his land. B alleges that there was a public right of way. A denies. In a Previous suit between A and C there was a decree in favor of C for public right of way on the same land. Such a decree, is relevant but not conclusive. Ch.1.7. Alibi Evidence (Sn. ll): Alibi means elsewhere. It is a complete Defence in Criminal Cases. (i) The Charge is that A has committed theft at Bombay on 25-12-92. The fact that on that day A  Was in Calcutta is a relevant fact. The fact that A was far away from the place of crime makes it highly Improbable (though not impossible) that A has committed theft. (ii) The charge is that A has committed an offence. The circumstances are such that A, B, C, or D must Have committed the offence. The fact that it was not committed by B, C, or D is relevant. The leading case in R.V.Richardson. In this R committed murder of a peasant girl in a cottage but Claimed alibi. The circumstances showed that the plea was bad. He was found guilty. The principle of alibi is: Facts (not otherwise relevant) are relevant (i) If they are inconsistent with any fact in issue or relevant fact. (ii) If the facts in connection with other facts make the existence of the fact in issue or relevant Fact, impossible. Thus, in the illustration, if A is elsewhere at the time of the crime, it   is inconsistent with the fact in issue. This also makes it improbable that A who is at Calcutta could commit theft, at that time at Bombay. Ch.1.8. Child Witness: A child of tender age is competent to be a witness before a court but it must have intellectually and Sufficiently developed to understand what it has seen and also to tell the court about the same. Whether a Child is sufficiently developed or not may be tested in examination-in-chief. The child must be capable of Giving rational answers.lt is left to the discretion of the court to decide the competency of the child. In criminal cases, it has been held, that, the conviction of the accused cannot be based solely on the solitary evidence of a child, because children are the most untrusty-worthy class of witnesses. They may Mistake dreams for realities and are greatly influenced by fear of punishment, by hope of reward and by a Desire of notoriety. In Abbas Ali Shah vs. Emperor, the Privy Council said that it is not sound rule to act on the uncorroborated evidence of a child. This is only a rule of prudence and not law. Ch.1.9. Proved, disproved and not proved: Proved: A fact is said to be proved when the court after considering the matters before it, believes Its existence or believes it to be so probable that a prudent man would conclude it to exist under the Circumstances of the case. This definition indicates, the degree of certainty which must be reached. Proof means anything which helps to convince the mind, of the truth or falsehood of a fact. Absolute Certainty may not be had in the affairs of life.  Practical good sense and prudence consist in judging Matters with a degree of probability or certainty. Suspicion will not give probative force to testimony and An accused cannot be convicted on grounds of suspicion. Disproved: A fact is said to be disproved when the court after considering the matters before it, Believes that it does not exist or considers its non-existence so probable that a prudent man would Conclude it, not to exist under the circumstances of the case. Not proved: A fact is said to be not proved when it is neither proved nor disproved. (i) A is tried for murder of B. On the basis of evidence the court is satisfied that A has murdered. Here, the charge is proved. (ii) A is tried for theft. The prosecution could not convince the court with evidence available. The  Accused, showed evidence that he has not committed theft. The judge is convinced. The charge Is disproved. (iii) A is charged with receiving of stolen property. The evidence could not establish beyond Doubt that A is guilty. The court may declare the charge as not proved. Proof may be direct or circumstantial. The court decides whether a fact is proved or disproved. A fact is proved when the court believes it to be certain and most probable. It is disproved whenIt is uncertain or improbable or not possible. A stage between these two is 'not proved. That is, the court will not be able to say precisely, how the matter stands. Ii) Opinions as to customs, rights, etc. When the court is to form an opinion as to the existence of a general custom or right the opinions of Persons who are likely to have knowledge of it, are relevant.Eg. Customary right of way, necessary easements, etc. iii) Opinions as to usages, tenets: Opinions of persons having special knowledge. Of words or terms used in charitable or Religious Institutions, or Government or family or classes of persons, are relevant. This helps the court to form its Own opinions, about the usage.Eg. Rate of interest on loans; agricultural year, IV) Opinions on relationships . When the court is to form its opinion, in respect of relationship between one person and another, the Opinion of a member of a family who has special knowledge on the subject, is relevant. Exceptions: Such an opinion is not admissible to prove a marriage; or to prosecute for Bigamy under I.P.C. "

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