Sasi
K.G.
01. INTRODUCTION
Indian Evidence Act, 1872 is the law
providing for how evidence is received in Courts of Law including both Civil
and Criminal Courts. Chapter V of the Indian Evidence Act, 1872 describes
various provisions of Documentary Evidence. Unlike Oral Evidence and Material
Objects, Documentary Evidence has to pass through a series of tests which are
the subject matter of this paper.
01. PROOF OF CONTENTS OF DOCUMENTS
Section 61 of the Indian Evidence Act, 1872 runs as follows,
“S. 61. The contents of documents may be
proved either by primary or by secondary evidence.”
Documentary evidence means all documents
produced for the inspection of the Court (s. 3). Documents are of two kinds:
public and private. Section 74 gives a list of documents which are regarded as
public documents. All other documents are private. The production of documents
in Courts is regulated by the Civil Procedure Code and the Criminal Procedure
Code.
As per Murarka Properties P. Ltd. v.
Beharilal Murarka, AIR 1978 SC 300: 1978(1) SCC 109 the contents of documents must be proved either
by the production of the document which is called primary evidence, or by
copies or oral accounts of the contents, which are called secondary evidence.
Where there is documentary evidence oral evidence is not entitled to any
weight. The section is based upon the principle that the "best evidence in
the possession of power of the party must be produced. What the best evidence
is, it must depend upon circumstances. As per Macdonnel v. Evans, (1852)
21 UCP 141: 18 LT 241 : 138 ER 742 generally speaking, the original
document is the best evidence. This is the general and ordinary rule; the
contents can only be proved by the writing itself."
As per Trial of Queen Carloline, (1820)
2 Bro & B 286: 129 ER 976 at p. 977 The contents of every written
paper are, according to the ordinary and well established rules of evidence, to
be proved by the paper itself, and by that alone, if the paper be in existence.
As per Ram Prasad v. Raghunandan
Prasad, (1885) 7 All 738, 743, the section lays down that the contents
of the document may be proved either by primary or secondary evidence and the
rule means that there is no other method allowed by law for proving the
contents of documents. As per Balwant v. Mainabai, AIR
1991 MP 11 The method of proof so generally authorised
by the section becomes available whenever special requirements like those of
proving attested documents cannot be satisfied.
As per
Purnabashi Mishra v. Raj Kumari Mishra; AIR 1995 Ori 284, where
a document was not required to be registered, it was admissible in evidence,
even though unregistered.
As per Kripa Shankarv. Gurudas, AIR
1995 SC 2152 an ex parte affidavit without affording an opportunity
to the other party to test the veracity of its contents by cross-examination,
cannot be a proof of its contents.
As per D.B. Thakur v. State of Gujarat,
1995 Cr LJ 3751 (Guj) where the executant of a document admitted its
execution, the same could be received in evidence. Where the execution of a
promissory note was denied, it was held that proof would be needed through the
scribe and also that of an expert as to the thumb impression. As per P.M.
Veeravu v. K. Moiudeen, 1996 AIHC 3847 (Kcr); Shail Kumar; v. Saruswati
Devi, AIR 2002 NOC 167 (Delhi), questions of and objections to
admissibility of documents or any other evidence should be decided before the
case is put up for final arguments. The order of the trial judge that the
matter of admissibility would be decided along with the final arguments was
held to be not proper. As per Mulji Mehta and Sons v. C. Mohan
Krishna, AIR 1997 AP 153, under stamp duty, admissibility of unstamped
assignment of promissory note.
Where the truth of the facts stated in a
document is in issue, the mere proof of the handwriting and execution of the
document would not furnish evidence of the truth of the facts stated in the
document or its contents. The truth or otherwise of the facts or contents so
stated would have to be proved by admissible evidence, i.e. by the
evidence of persons who can vouchsafe for the truth of the facts in issue. This
principle is laid down in Ramji Dayawala & Sons (P) Ltd. v.
Invest Import, AIR 1981 SC 2085: (1981) I SCR 899.
The assertion that the document in question
was recorded by the police and was signed by the inspector was held to be not a
proof of its contents. The officer who recorded the document must be called and
examined to prove the document. The mere fact that a document is produced from
police custody is not a proof of its being a public document. This principle is
laid down in Shravan Nathu Kanwar v. Anjunabai Shrawan Kanwar, 1997
Cri LJ 491 (Bom).
Primary evidence is evidence which the law
requires to be given first. Secondary evidence is evidence which may be given
in the absence of the better evidence which the law requires to be given first,
when a proper explanation is given of the absence of that better record.
Primary evidence is defined in s. 62 and secondary evidence in s. 63. Certified
copy of a written statement has been held to be admissible under s. 63( 1).
This principle is laid down in Raman Pillai v. Kumaran Parameswaran, AIR
2002 Ker 133. The court noted that this was a common practice in suits and
distinguished the case from the decision to Kannu Asan v. Trav Forward
Bank Ltd., 1956 Ker LT 203.
The ingredients of the Section are analyzed
as follows.
01. Admissibility of Document
01. Generalia specialibus non derogant
Where there is a specific provision covering
the admissibility of a document, it is not open to the court to call into aid
other general provisions in order to make a particular document admissible. If
a judgment is not admissible as not falling within the ambit of Ss. 40 to 42,
it must fulfil the conditions of s. 43 otherwise it cannot be relevant under s.
13 of the Evidence Act. The words "some other provision of this Act"
cannot cover s. 13 because this section does not deal with judgments at all.
Therefore, s. 13 cannot be used to aid the admissibility of a judgment as
coming under the provisions of s. 43. A judgment in rem, like judgments
passed in probate, insolvency, matrimonial or guardianship or other similar
proceedings, is admissible in all cases whether such judgments are inter
partes or not. But a judgment in personam which is not inter
partes is inadmissible in evidence except for the limited purpose of
proving as to who the parties were and what was the decree passed and the
properties which were the subject-matter of the suit.
Therefore, the recitals in a judgment, like
finding given in appreciation of evidence made or arguments or genealogies
referred to in the judgment, would be wholly inadmissible in a case where
neither the plaintiffs not the defendants were parties. In State of Bihar v. Radha Krishna Singh, AIR
1983 SC 684: (1983) 3 SCC 118; Pammi v. Govt. of M.P., 1998 Cri LJ 1617
: AIR 1998 SC 1185: (1998) 2 SCC 700, a copy of the deposition of a witness
in another case was relied upon to disbelieve the presence of an eye-witness at
the place of occurrence in the present case. The person whose deposition was
relied on was not examined. It was held that this was not proper for the
purpose of disbelieving an eye-witness in the present case.
02. PRIMARY EVIDENCE
Section 62 of the Act runs as follows,
“S. 62. Primary evidence means the document
itself produced for the inspection of the Court.
Explanation I.- Where a document is executed in several
parts1 each part is primary evidence of the document.
Where a document is executed in counterpart2,
each counterpart being executed by one or some of the parties only, each
counterpart is primary evidence as against the parties executing it.
Explanation 2.- Where a number of documents are all made by
one uniform process,3 as in the case of printing, lithography or
photography, each is primary evidence of the contents of the rest; but, where
they are all copies of a common original, they are not primary evidence of the
contents of the original.”
ILLUSTRATION
A person is shown to have been in possession
of a number of placards, all printed at one time from one original. Anyone of
the placards is primary evidence of the contents of any other, but no one of
them is primary evidence of the contents of the original.
This section defines the meaning of primary
evidence which means the document itself produced for the inspection of the
Court. Where a document is executed in several parts, each part is primary
evidence of the document. Where a document is executed in counterpart, each
counterpart is primary evidence, as against the party executing it. Where a
number of documents are made by printing, lithography, or photography, each is
primary evidence of the contents of the rest. Where they are copies of a common
original they are not primary evidence of the contents of the original. Two
wills in identical language were prepared by the process of typing in which the
second copy was obtained by carbon impression. Both were duly executed and
attested. Both were held to be original and not one a copy of the other. As per
Kamala Rajamanikham v. Sushila Thakur Das, AIR 1983 All 90 the
fact that the testator inserted a remark on one of them "true copy" would
not alter their character.
Primary evidence is the evidence which the
law requires to be given first.
The ingredients of the Section are analyzed
as given under.
01. 'Document is executed in several parts
Sometimes each party to a transaction wishes
for the sake of convenience to have a complete document in his own possession.
To effect this, the document is written out as many times over as there are
parties, and each document is executed, i.e., signed or sealed, as the
case may be, by all the parties. Anyone of them may be produced as primary
evidence of the contents of the document. As per State Bank of Travancore v.
Velayudhan Pillai Bhaskaran Nair, AlR 1996 Ker 32, the duplicates of
partition deed executed and registered along with it whereby properties are
created in favour of several persons are to be treated as original itself
having the same operation and effect as that of the other.
02. Document is executed in counterpart
A document is executed in counterpart when
there are two parties to the transaction. Thus, if the transaction is a
contract between A and B the document is copied out twice, and A alone signs
one document, whilst B alone signs the other. A then hands to B the document
signed by himself, and B hands to A the document signed by himself. Then, as
against A, the document signed by A is primary evidence, whilst, as against B,
the document signed by B is primary evidence. As per Philipson v. Chase,
(1809) 2 Camp 110, if there are two contemporary writings, the counterparts
of each other, one of which is delivered to the opposite party, and the other
preserved, as they may both be considered as originals, and they have equal
claims to authenticity, the one which is preserved may be received in evidence,
without notice to produce the one which was delivered.
Where a document is executed in counterpart,
each counterpart being executed by one or some of the parties only, each
counterpart is primary evidence as against the parties executing it, and
secondary evidence as against other parties (see s. 63, cl. 4).
03. One uniform process
As per Prithi Chand v. State of H.P., 1989
Cr LJ 841: AIR 1989 SC 702, where a carbon copy was made by one uniform
process of the certificate of a doctor (as to the condition of a rape victim)
given in the performance of professional duty, it was held to be a primary
evidence within the meaning of the Explanation 2.
As per Rajesh Rai v. State of Sikkim, 2002
Cri LJ 1385 (Sik) a police station diary contained duplicate pages. A
carbon copy was prepared by the same process by which the first copy was
prepared. Each was held to be the primary evidence of the contents of the rest.
04. Application for grant of probate
Section 276 of the Succession Act, 1925
requires that an application for probate or letters of administration should be
made with the "will" annexed. Since this does not necessarily mean
the "original will", a copy certified by the sub-registrar was
allowed to be annexed. This principle is upheld in Rajrani Sehgal v.
Parshottam Lal (Dr.), AIR 1992 Del 134.
05. Video evidence
It has been held that the permission of video
evidence is a discretionary matter and not confined to a limited set of
circumstances like pressing need, such as when a witness was too ill to attend.
The court said that full access to the court for justice in a civil matter
should not, other than in exceptional circumstances, be at the price of the
litigant losing his liberty and facing criminal proceedings. Thus, even a
fugitive plaintiff was allowed to give video evidence for enforcing his civil
right to a money claim. This principle is upheld in Rouland v. Bock, (2002)
EWHC 692: (2002) 4 All ER 370.
The prosecution refused to supply the accused
with copies of audio and video surveillance tapes. The prosecution instead
provided transcripts and offered inspection in controlled conditions. The
question was whether this decision of the prosecution was lawful. The court
held in R. v. X Justices, ex parte J, (2000) 1 All ER 183 (QBD DC) as
follows: Where there were considerations of fairness in the public interest as
well as that of the defence as to the manner in which material should be made
available, something short of outright provision of copies of audio and video
surveillance tapes exhibited to an undercover police officer's witness
statement might be justified, provided it did not prejudice the defendant's
right to a fair trial.[i]
The provision of copies, though the norm, is not an absolute entitlement of the
defence, and it is not appropriate to draw a line between entitlement to copies
as against facilities for and conditions of inspection. There is at most a
strong presumption in favour of provision to the defence in good time of copies
of all capable exhibits, which was for the prosecution to displace. That was
especially so where the exhibits were an important part of the prosecution case
and were likely to warrant close examination to enable the defence to prepare
properly for trial. Furthermore, although Art 6 of the convention referred only
to the defendant's and not the prosecutor's right to a fair hearing, the notion
demanded some consideration as to whether it could be achieved whilst nevertheless
paying proper regard to the public interest in prosecuting serious offenders to
conviction. It would be a matter for the trial judge, at an early stage after
committal, to determine whether in the particular circumstances of each case a
fair hearing could be achieved by the prosecution permitting the defence to
inspect originals or copies of capable exhibits rather than providing it with
copies. It could not be said, in the light of the present statutory and common
law regime governing the prosecution of criminal offences, that the CPS's
refusal to provide copies of the tapes and its offer to arrange inspection were
unlawful as a matter of principle. Protection of the safety and future
usefulness of undercover police officers was clearly a valid consideration in
the making of such a decision. There was an onus on the CPS to justify its
departure from the norm, but whether it could do so was a task for the trial
judge and not for the High Court on an application for judicial review. It
followed that the CPS's stance had not been irrational, unlawful or contrary to
art 6 and, accordingly, the application was dismissed.[ii]
06. Application for video evidence
An appeal was filed in a debt action, against
an order refusing leave to give evidence by way of a video link. The appellant
had previously been arrested and detained in the UK in connection with an
extradition request concerning insider dealing, was claiming the sum of
£250,000 from the defendant pursuant to a retainer agreement whereby he had
contracted to find investors for the defendant's business. The defendant had
terminated the retainer before investors had been found, claiming that the
latter had disclosed details of the agreement in breach of his fiduciary duty
to maintain confidentiality. At first instance, it was held that video evidence
could only be allowed in cases of pressing need, such as where a witness was
too ill to attend, and that it was questionable whether N should be permitted
to give evidence by video in order to further and continue his flight from
justice in the extradition proceedings.
Court Held, allowing the appeal and
giving judgment for the claimants, that there was no evidence that N had
breached confidentiality. B had not shown that R had had such detailed
knowledge of the retainer that he could only have obtained it from N, nor had
he shown that R had such knowledge prior to the date of termination of the
retainer. In relation to the video evidence, the Master's conclusion as to when
it was appropriate was too restrictive and conflicted with the objective of
enabling the court to do justice. The permission of video evidence was a
discretionary matter and not confined to a limited set of circumstances. The
Master had failed to pay sufficient regard to the need to ensure that the
parties were on an equal footing pursuant to the Human Rights Act, 1998 Sch. 1
Part I Art. 6. Moreover, full access to
the court for justice in a civil matter should not, other than in exceptional
circumstances, be at the price of the litigant losing his liberty and facing
criminal proceedings. This principle is dealt with in Rowland v. Bock,
(2002) EWHC 692: (2002) 4 All ER 370, NEWMAN, J., QBD.
03 .SECONDARY EVIDENCE
Section 93 defines secondary evidence.
S. 63. Secondary evidence means and includes-
(1) certified copies given under the
provisions herein-after contained;
(2) copies made from the original by
mechanical processes which in themselves ensure the accuracy of the copy, and
copies compared with such copies;
(3) copies made from or compared with the
original;
(4) counterparts of documents as against the
parties who did not execute them;
(5) oral accounts of the contents of a
document given by some person who has himself seen it.
ILLUSTRATIONS
(a) A photograph of an original is secondary
evidence of its contents, though the two have not been compared, if it is
proved that the thing photographed was the original.
(b) A copy, compared with a copy of a letter,
made by a copying machine is secondary evidence of the contents of the letter,
if it is shown that the copy made by the copying machine was made from the
original.
(c) A copy transcribed from a copy, but
afterwards compared with the original is secondary evidence; but the copy not
so compared is not secondary evidence of the original, although the copy from
which it was transcribed was compared with the original.
(d) Neither an oral account of a copy
compared with the original, nor an oral account of a photographer machine copy
of the original, is secondary evidence of the original.
This section describes what constitutes
'secondary evidence'. 'Secondary evidence' evidence which may be given under
certain circumstances in the absence of that better evidence which the law
requires to be given first.
Secondary evidence means and includes-
(1) certified copies;
(2) copies made from the original by
mechanical processes, and copies compared with such copies;
(3) copies made from or compared with the
original;
(4) counterparts of documents as against the
parties who did not execute them;
(5) oral accounts of the contents of a
document by a person who has seen it.
Clauses 1 to 3 deal with copies of documents.
Where a copy of a document is admitted in evidence in the trial Court without
objection, its admissibility cannot be challenged in the Appeal Court. Because
omission to object to its admission implies that it is a true copy and,
therefore, it is not open to the Appeal Court to say whether the copy was
properly compared with the original or not. This principle is upheld in Chimnaji
Govind Godbole v. Dinkar Dhondev Godbole, (1886) 11 Bom 320; Lakshman v.
Amrit,(1900) 24 Bom 591: 2 Bom LR 386; Kishori Lal Goswami v. Rakhal Das
Banerjee, (1903) 31 Cal 155; Ram Lochan Misra v. Pandit Harinath Misra, (1922)
I Pat 606
01. Certified copies- [Clause l]
Section 76 defines the expression
"certified copies". See also ss. 77, 78, 79 and 86.
The correctness of certified copies will be
presumed under S. 79; but that of other copies will have to be proved. This
proof may be afforded by calling a witness who can swear that he has compared
the copy tendered in evidence with the original or with what some other person
read as the contents of the original and that such is correct.[iii]
Certified copies of money lenders licences are admissible in evidence.[iv]
Certified copies of sale deeds were held to
be admissible as secondary evidence. The court in Kummari Veeraiah v. State
of A.P., (1995) 4 SCC 136, however, said that they could not be relied upon
unless the vendor or vendee were examined to prove the consideration for the
transaction and other circumstances, such as nearness to land.
02. Copies made by mechanical process-[Clause 2]
Reading cl. 2 and illustrations (b) and (c)
together it will appear that a copy of a copy, i.e. a copy, transcribed
from, and compared with, a copy, is inadmissible unless the copy with which it
was compared was a copy made by some mechanical process which is itself ensures
the accuracy of such copy. See illustration (b).
Copies of copies kept in a registration
office, when signed and sealed by the registering officer, are admissible for
the purpose of proving the contents of the originals (s. 57(5), Act XVI of
1908). Letter-process copies and photographs of writings are secondary evidence
(vide illustration (a)). It is held in Govt. of A.P. v. Karri Chinna
Yenkata Reddy, AIR 1994 SC 591 : 1995 Supp (I) SCC 462 that photostatic
copies of document should be accepted in evidence only after examining original
records. Photostatic copy of the power of attorney executed by
competent authority and authenticated by a notary public and proved from original
is admissible in evidence as found in Northland Traders v. Bank of Baroda,
AIR 1994 All 381. In absence of any evidence that the originals were
delivered to the addressee, the copy of the letters carry little evidentiary
value.[v]
A photostat copy of a rent note which was
proved to be the photostat of the originals though not compared with the
original, was held to be admissible in Ratan Sharma (Sml.) v. Ambesedar Dry
Cleaners. AIR 1997 Raj 75.
03. Copies made from original-[Clause 3]
Copies made from the original or copies
compared with the original are admissible as secondary evidence. A copy of a
copy, when compared with the original, would be receivable as secondary
evidence of the original (illustration (b)).
Illustration (c) lays down in express
language that "a copy transcribed from a copy, but afterwards compared
with the original, is secondary evidence; but a copy not so compared is not
secondary evidence of the original, although the copy from which it was
transcribed was compared with the original". An entry in a deed-writer's
register which contains all the essential particulars contained in the document
itself and is also signed or thumb-marked by the person executing the document
amounts to a copy and is admissible in evidence as declared in Sant Ram v.
Ghasita Ram. (1956) 9 Pun 193. A copy of a certified copy of a document,
which has not been compared with the original, cannot be admitted in evidence,
such a copy being neither primary nor secondary evidence of the contents of the
original as held in Ram Prasad v. Raghunandan Prasad, (1885) 7 All 738, 743;
Narasimham v. Babu Rao, (1939) Mad 333.
Documents which are merely copies of copies,
the originals not having been satisfactorily accounted for, are inadmissible in
evidence and must be rejected.[vi]
As per Muhammad Suleman v. Hari Ram,
(1936) 21 Lah 363 an abstract translation or a complete translation of a
document is not 'copy made from and compared with the original' within the
meaning of this clause.
As per Monoranjan Paul v. Narendra Kumar
Paul. AIR 1994 Gau 64, true copy of the document incorporating facts of
amicable partition, supplied from the office of Sub-Registrar bearing his seal
and signature can be relied upon for its contents. Newspaper reports,
advertisements or messages are not admissible in evidence unless the original
manuscripts are produced or they are proved by the person concerned as held in Quamarul
lslam v. S.K. Kania. AIR 1994 SC 1733: 1994 Supp (3) SCC 5.
As per Devi Chatld v. Har Kishan Dal
(1954) 2 All 531 a draft of a document cannot be treated as secondary
evidence; but the Kerala High Court has held in P. Kunhammud v. V.
Moosankutty, AIR 1972 Ker 76 that a draft can be accepted in evidence only
if there is proof that the original has been prepared without any corrections
and that it is exactly a true-copy of the draft. The Allahabad High Court has
similarly held that S. 63 is not exhaustive of all types of secondary evidence.
It, therefore, allowed the draft notice from which the final notice was
prepared to be produced as secondary evidence.[vii]
The statement as to the contents of a document by a witness, who has not
himself read the document, is not secondary evidence of the contents of the
document as held in Dalu v. Juhar Mal. (1951) I Raj 166.
A photograph is a copy prepared from the
negative, the original document. Hence where neither the original was produced
nor the photographer was examined, the eye-witnesses were not allowed to be
contradicted by photographs of the happening. This principle is held in Stale
of Gujarat v. Bharat, 1991 Cr LJ 978 (Guj).
04. Counterparts-[Clause 4]
When a document is executed in counterpart,
each party signing only the part by which he is bound, each counterpart is the
best evidence against the party signing it and his privies. As to the other
party it is only secondary evidence. A landlord's counterfoil was held to be
not relevant for the purpose of showing that the arrangement was a month to
month tenancy.[viii]
05. Oral statements-[Clause 5]
Secondary evidence includes, according to cl.
5, oral accounts of the contents of a document, given by some person who has
himself seen the original document as held in Ma Mi v. Kallander Ammal
(No.2), (1926) 54 IA 61: 29 Bom LR 800: 5 Ran 18. But a written statement
of the contents of a copy of a document, the original of which the person
making the statement has not seen, cannot be accepted as secondary evidence as
held in Kanayala v. Pyarabai, (1882) 7 Bom 139. This clause does not
necessarily mean that a witness who is called to give evidence as to a lost
document must have himself read the document. He would be a competent witness
if, having physically seen the document, the contents thereof had been read out
or explained to him. This principle is upheld in Mehi Lal v. Ramji Das,
(1924) 47 AU 13. Secondary evidence of a document which is lost or
difficult to trace can be adduced in two ways; (1) by oral evidence of persons
who were present when the document was executed; (2) by a certified copy of the
original document. This principle is upheld in Veerappa v. Md. Attavullah,
(1951) Hyd 74. As per Hutchegowda v. Chenningegowda; (1952) Mys 49, copies
of registered documents are admissible as secondary evidence where the person
in whose custody the original should be swears that they are not with him
though there is no evidence as to the loss or otherwise of the original. The
original dying declaration was lost. A head constable who maintained a copy
testified to its accuracy. This was allowed as corroborative evidence in Alter
Ram Goa v. Gujarat, 1979 CrLJ 1081. A taped conversation not
compared with the voice was not allowed to be used as evidence as held in Joginder
Kaur v. Surjit Singh. AIR 1985 P&H 128. The newspaper report of an
interview with the author of a book is not admissible to prove the nature and
contents of the book (on the basis of which Tamas serial was produced) but the
court agreed to look at it in view of the urgency of deciding the case on a
matter of public importance in Ramesn v. Union of India. AIR 1988 SC 912:
1988 CrLJ 936: (1988) 1 SCC 668 : 1988 SCC (Cri) 266. Letters written by a
police officer to his administrative superior were not allowed to be proved.
The writer of the letters should have appeared in person so as to enable the
opposite party to cross- examine him as to the contents of the letter as held
in Vinod Chaturvedi v. State of M.P. AIR 1984 SC 911 : 1984 Cr.LJ 814:
(1984) 2 SCC 350: 1984 SCC (Cri) 250.
As per Asa Ram v. M.C.D .. AIR 1995 Del
164 where the report of accidental electrocution was based on the
information given by another person who was not examined nor original report
was produced, no reliance could be placed on the version of that person and the
said report.
A witness can be shown xerox copy of a
document which is already on record. The statements of the witness as to the
document would not mean the admission of the document in evidence as held in Ahmedabad
New Textile Mills v. Rajubhai Dalechandbhai, AIR 1999Guj 148.
06. Repeat application for permitting secondary evidence
In Ram Pal Singh v. Syndicate Bank, AIR
2000 P&H 296 an application was made by the plaintiff bank for
permission for filing photocopy of the "acknowledgement of debt" as
the original happened to be misplaced. The application was dismissed without
hearing the plaintiffs contention. Neither party had argued the matter, nor it
was decided by the Court. It was held that the filing of another application
for producing secondary evidence was not barred by res judicata.
07. All categories equal ranking
LORD MINGER in Doerd Gilbert v. Ross.
(1840)19 LJ Ex 210 said: "The rule is, that if you cannot produce the
original, you may give parol evidence of its contents. If indeed the party
giving such parol evidence appears to have better secondary evidence in his
power, which he does not produce, that is a fact to go to the jury, from which
they might sometime presume that the evidence kept back would be adverse to the
party withholding it. But the law makes no distinction between one class of
secondary evidence and another."
In the same case the following words of
PARKE, B embody the same truth: "There can be no doubt that an attested
copy is more satisfactory, and, therefore, in that sense, better evidence than
mere parol testimony; but whether it excludes parol testimony is a very
different thing. The law does not permit a man to give evidence which from its
very nature shows that there is better evidence within his reach, which he does
not produce. And, therefore, parol evidence of the contents of a deed or other
written instrument, cannot be given, without producing or accounting for the
instrument itself. But so soon as you have accounted for the original document
you may then give secondary evidence of its contents. We know nothing but of
the deed which is accounted for, and, therefore, the parol evidence is in
itself unobjectionable. Does it then become inadmissible, if it be shown from
sources that a more satisfactory species of secondary evidence exists? I think
it does not, and I have always understood the rule to be, that when a party is
entitled to give secondary evidence at all he may give any species of secondary
evidence within his power."
08. List not exhaustive
The Allahabad High Court in Lachcho v.
Dwari Mal. AIR 1986All 303, 306 held that Sec. 63 is not exhaustive of all
the categories of secondary evidence. The court allowed evidence of draft notes
from which the final notice was prepared. The court said : ''The scope of Sec.
63 is not restricted to its five clauses but leaves enough scope for cases,
which do not strictly fall within any of those enumerated therein. The term
'includes' leaves some scope for a case like the present one. The court must,
however, be satisfied that the document sought to be introduced as secondary
evidence is a faithful and accurate reproduction or draft of the final document
whose copy it purports to be."
09. A document insufficiently stamped
As per Kundan Mal v. Nand Kishore, AIR
1994 Raj 1 a document insufficiently stamped can be admitted in evidence on
payment of penal stamp duty.
10. Secondary evidence of document insufficiently stamped, unregistered or unstamped
An application seeking permission for
producing secondary evidence was not allowed because the document was unstamped
and was also not registered and, therefore, the original itself would not have
been admissible. This approach was held to be not justified. It was premature
for the trial court to go into that question at the application stage.[ix]
11. Recorded tape
As per K.S. Mohan v. Sandhya Mohan. AIR
1993 Mad 59 where the cassette was carefully sealed and kept in judicial
custody, voice of the parties were clearly audible and possibility of tampering
was ruled out, the taped statements were admissible.
In has been said by DARLING. J. in R. v. Daye, (1908) K.B. 333 and
HUMPHREY J. Sin R. v. Hill (1945) K.B. 329 at p. 334 that there
is "no reason in principle why the recording in some permanent or
semi-permanent manner of human voice (or other sounds) which are relevant to
the issue to be determined, provided that it furnishes information, cannot be a
document.” In reference to the reception into evidence of models, maps,
diagrams and photos, it is observed in WIGMORE[x]
"that for evidentiary purposes they are nothing except so far as they have
a human being's credit to support them. Then they become media of communication
as a superior substitute for words." An Australian court observed:[xi]
If it should be established by oral evidence that there was a mechanical
electronic recorder in operation at a material time which was capable of and
did record accurately sounds as they occurred, and other oral evidence of
identification, and non-interference, it appears that the material containing
such recording is properly admissible in evidence. There is no distinction in
principle from the reception into evidence of a photograph of a street accident
taken at the time of its occurrence which is sworn to by an eyewitness as being
a true representation of the scene at the relevant time. In that case light
waves, and in the case of a recording, sound waves, have been captured and
preserved by scientific means.
These principles have been followed by the
Supreme Court of India. Tape recorded conversations came before the Supreme
Court mostly in cases of officials in receiving or attempting to receive
bribes. In R.M. Malkani v. State of Maharashtra AIR 1973SC 157; (1973) 1 SCC
471. The accused was the coroner of Bombay. A doctor
operated upon a patient who afterwards died. Being a post-operation death, it
became the subject of post-mortem and inquest. The coroner persuaded the doctor
to pay him a sum of money if he wanted the report to be favourable to him. The
payment was arranged to be made through another doctor and the date and timing
of the final meeting was to be settled by telephone call from the house of the
other doctor. The police commissioner was called with the tape-recording
mechanism. This was connected to the doctor's telephone and thus the most
incriminating conversation was recorded in the presence of the police officer.
The Bombay High Court held that the testimony of two doctors required
corroboration and that the tape amply corroborated it. This decision was upheld
by the Supreme Court. RAY, 1. (afterwards C.J.) looked into the previous
authorities.
"This Court in N. Sri Rama Reddy v.
V.V. Giri (1970) 2 SCC 340: (1971) 1 SCR 339, Yusufalli Esmail Nagree v.State
of Maharashtra (1967) 3 SCR 720: AIR 1968 SC 147: (1968) 1 SCJ 51, and
Pratap Singh v. State of Punjab AIR 1964 SC 72: (1964) 4 SCR 733, accepted
conversion of dialogue recorded on tape-recording machine as admissible
evidence. In Nagree's case AIR 1968 SC 147: (1967) 3 SCR 730: (1968) 1 SCJ
51, the conversation was between Nagree and Sheikh Nagree and Nagree was
accused of offering bribe to Sheikh.
In the Presidential Election case Pratap
Singh v. State of Punjab, AIR 1964 SC 72 questions were put to a witness
that he had tried to dissuade the petitioner from filing an election petition.
The petitioner had recorded on tape the conversation that took place between
the petitioner and the witness. The court admitted the recording to contradict
the witness. The tape itself becomes the primary and direct evidence of what
has been said and recorded. "Tape recorded conversation is admissible
provided, first, the conversation is relevant to the matters in issue;
secondly, there should be identification of the voice; and thirdly, the
accuracy of the tape-recorded conversation is proved by eliminating the
possibility of erasing the tape record. A contemporaneous tape record of a
relevant conversation is a relevant fact and is relevant under section 8 of the
Act. Court held in Pratap Singh v. State of Punjab, AIR 1964 SC 72 that it
is also res gestae (part of the same transaction) and therefore,
relevant under section 6. It is also comparable to a photograph of a relevant
incident and is, therefore, a relevant fact under section 7 of the Act.”
In another case before the Supreme Court, the
question was whether the tenant had granted a sub-tenancy. The finding of the
Rent Controller that there was sub-tenancy based upon a tape recorded
conversation between the tenant and the husband of the landlady. The court said
that the tape-recorded conversation could be used in corroborating the
deposition in the court by one of the parties. In the absence of any such
deposition, the tape was not allowed to be used as evidence in itself. This was
held in Mahabir Prasad v. Surinder Kaur, AIR 1982 SC 1043: (1982) 2 SCC 258.
To the same effect, State v. Ravi, 2000 Cri LJ 1125 (Del) also was
adjudged. The Supreme Court subsequently tightened the rule to this extent that
it must be shown that the tape was kept in proper custody. In that case the
Deputy Commissioner had left the tape with the stenographer. That was held to
be sufficient to destroy its authenticity in Ram Singh v. Col. Ram Singh
(1985) Supp SCC 611: AIR 1986 SC 3. How the cassette came into
existence has been held by the Supreme Court to be an important consideration.
The court in Quammaral Islam v. S.K. Kanta AIR 1994 SC 1733: 1994 Supp (3)
SCC 5 rejected the tape recorded evidence of an election speech because the
tape was prepared by a police officer who was not able to explain why he had
done so. The candidate had denied that the tape was in his voice.
The Court of Appeal (English) held in Venatouris
v. Mountain (No.2) India Express (1992) 3 All ER 414 CA, that
statements recorded without the speaker's knowledge would be only oral
statements and would require to be proved as oral evidence, statements recorded
with knowledge and consent would fall in the category of documentary as well as
oral evidence and can be proved by ether method.
12. Newspaper reports
In the words of the Supreme Court a newspaper
report is a hearsay-secondary evidence. It cannot be relied upon unless proved
by evidence aliunde. Even where nobody has opposed the report, the party
citing the report would not be absolved of his obligation to prove the truth of
its contents. The court said: "In the present case, no evidence has been
let in proof of the statement of facts contained in the newspaper report. The
absence of any denial by the maker of the statement, viz., the Minister,
will not absolve the applicant from discharging his obligation of proving the
statement of facts as appeared in the press report. The Minister in his
counter-affidavit had taken a stand that the statements attributed to him based
on the newspaper report are mere hearsay and cannot in law be relied upon for
the purpose of initiating such proceeding. Therefore, in the absence of
required legal proof, the Court will not be justified in issuing a suo motu notice
for contempt of court. Moreover, the news item does not spell out any reference
to the case of corruption or its proceeding pending before the Supreme Court.
In the alleged contemptuous statement only the view of the reporter was
mentioned as if the Minister had been provoked about the proceedings of the
case before the Supreme Court. There is no reason much less compelling reason
to issue suo moto notice to the Minister for contempt of court, the
Court held in S.A. Khan v. Ch. Bhajan Lal (1993) 3 SCC 151: 1993 Cri LJ
1042: AIR 1993 SC 1348: (1993) 1 SLR 392.
Where the death of a prisoner was alleged to
be due to the negligence of jail authorities and the information to that effect
was collected wholly from newspaper items, the court in Sudha Gupta v. State
of M.P. 1999 Cri LJ 1742 (M.P.) said that facts published by way of news
could not ex facie be taken to be of such authenticity which could
warrant initiation of proceedings under article 226.
04. PROOF OF DOCUMENTS BY PRIMARY EVIDENCE
Section 64 runs as follows,
S. 64. Documents must be proved by primary
evidence except in the cases hereinafter mentioned.
01. Principle
A written document can only be proved by the
instrument itself. It is a general rule that if a person wants to get at the
contents of a written document the proper way is to produce it if he can.
"Where the contents of any document are in question, either as a
fact directly in issue or a subalternate principal fact, the document is the
proper evidence of its own contents. But where a written instrument or
document of any description is not a fact in issue, and is merely used as
evidence to prove some fact, independent proof aliunde is receivable.
Thus although a receipt has been given for the payment of money, proof of the
fact of payment may be made, by any person who witnessed it.... So, although
where the contents of a marriage register are in issue, verbal or other
evidence of those contents is not receivable, the fact of the marriage
may be proved by the independent evidence of a person who was present at it.”[xii]
Once a document is properly admitted, the contents of that document are also
admitted in evidence, though those contents may not be conclusive evidence as
held in P.C. Purushothuma v. S. Perumal, AIR 1972 SC 608: 1972(1) SCC 9.
Where the report of the Central Forensic Science Laboratory expert was admitted
in evidence without objection regarding its mode of proof, the same could not
be objected to at any later stage of the case or in appeal. This principle is
upheld in Amarjit Singh v. State (Delhi Admn.), 1995 Cr LJ 1623 (Del), following
Phool Kumar v. Delhi Admn., AIR 1975 SC 905 : 1975 Cr LJ778 and overruling
Heera Lal v. State (Delhi), (1994) 2 Chand Cri C 300 (HC), Nizamuddin v. The
State, 1994 IV AD (Delhi) 50, Attar Singh v. State (DelhiAdmn.), 1994 III AD
(Del) 626 and Islam v. State (Delhi Admn.), 1994 III AD (Del) 1495. For proving the contents of a sale deed, the
executant was not examined, though proof of his signature was offered. The sale
deed was not allowed to be admitted in Prakash Cotton Mills v. M. Commr.,
AIR 1982 Bom 387. No materials, which are not spoken to by persons who are competent
to speak about them and are subjected to cross examination, can be relied upon.
The executant of a document must be produced or his affidavit filed. This was
held in Ram Jawai v. Shakuntala Devi, AIR 1993 Delhi 330.
Oral admissions as to the contents of a
document are not relevant, unless and until the party proposing to prove them
shows that he is entitled to give secondary evidence of the contents of such
document, or unless the genuineness of a document produced is in question.[xiii]
The tape-recorded conversation of wife was
lodged as a proof of her mental disorder. She was sitting in the Court as a
respondent. No effort was made to compare her voice with the tape. The tape was
not allowed to be used as evidence or for shaking her credit in cross-examination
in Joginder Kaur v. Surjit Sing, AIR 1985 P&H 128. A deed of
adoption was produced before the trial Court without any objection by the
opposite party as to its mode of proof. Objections cannot be raised in appeal,
the Court held in Amar Singh v. Tej Ram, AIR 1982 P&H 382.
A matter of title was settled by a settlement
which was entered into the revenue record. A copy of the settlement was
produced in evidence. The court rejected it. The settlement had to be proved
either by its primary evidence which was the original document containing the
settlement or by its secondary evidence wherever permissible. There was no
permission in this case for production of a copy in evidence.[xiv]
05. CASES IN WHICH SECONDARY EVIDENCE RELATING TO DOCUMENTS MAY BE GIVEN
Section 65 runs as follows,
S. 65. Secondary evidence may be given of the
existence, condition or contents of a document in the following cases:-
(a) when the original is shown or appears to
be in the possession or power of the person against whom the document is sought
to be proved, or of any person out of reach of, or not subject to, the process
of the Court, or of any person legally bound to produce it, and when, after the
notice mentioned in see ion 66, such person does not produce it;
(b) when the existence, condition or contents
of the original have been proved to be admitted in writing by the person
against whom it is proved or by his representative in interest;
(c) 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;
(d) when the original is of such a nature as
not to be easily moveable;
(e) when the original is a public document
within the meaning of section 74;
(f) when the original is a document of which
a certified copy is permitted by this Act, or by any other law in force in
India, to be given in evidence;
(g) when the originals consist of numerous
accounts or other documents which cannot conveniently be examined in Court and
the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary
evidence of the contents of the document is admissible.
In case (b), the written admission is
admissible.
In case (e) or (f), a certified copy of the
document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the
general result of the documents by any person who has examined them, and who is
skilled in the examination of such documents.
This section enumerates the seven exceptional
cases in which secondary evidence is admissible. Under it secondary evidence
may be given of the contents of a document in civil as well as in criminal
proceedings.
Secondary evidence of the contents of a
document cannot be admitted without the non-production of the original being
first accounted for in such manner as to bring it within one or other of the
cases provided for in the section as per Krishna Kishori Chowdhrani v.
Kishori Lal Roy, (1887) 14 Cal 486: 14 IA 71. It is incumbent on the person
who tenders secondary evidence to show that it is admissible; the question of
admissibility is ordinarily for the Court of first instance.[xv]
'Document' means a document admissible in
evidence. If a document is inadmissible in consequence of not being registered
or not being properly stamped, secondary evidence cannot be given of its
existence.[xvi] If the
original document is inadmissible in evidence owing to its being unstamped or
unregistered, secondary evidence is inadmissible. Secondary evidence cannot be
given to establish a fact, proof whereof by primary evidence is forbidden.
Under no circumstances can secondary evidence be admitted as a substitute for
inadmissible primary evidence.
Where permission was sought for producing
secondary evidence of certain receipts on ground that the original receipts
were lost. The court said that two things would have to be proved: there must
be evidence of the existence of original receipts and there must be evidence of
their loss. In this case, there was no evidence on record even of the existence
of the original receipts. The permission granted was held to be improper.[xvii]
Where a party comes into Court resting his
claim on a written title which the law requires to be registered, he cannot,
when he has failed to register, and is, in consequence unable to use his title
deed, turn round and say that he could prove his title by secondary evidence.
Therefore, the oral evidence of the terms of an unregistered deed of mortgage,
required by law to be registered, is inadmissible, as observed in Suwa v.
Kulal, (1951) I Raj 69; Champalal v. Pannalal, (1951) I Raj 190.
Secondary evidence was allowed where the defendant did not deny the
registered deed.[xviii]
Where the defendant-petitioner sought to produce secondary evidence in respect
of certain documents without showing his entitlement to produce it, the trial
court committed no irregularity in rejecting his application, court held in Dropadi
v. Mahugraha Bhagwat Singh, AIR 1995 Raj 138.
The section deals with the proof of the
contents of documents tendered in evidence.
01. Original in possession of opposite party [Clause (a)]
The document need not be in the actual
possession of the party; it is enough if it in his power. A tenant alleged that
the original rent note was in the landlord's possession. He applied for leave
for production of a copy of the note. It was held in Nawab Singn
v.Tnderju Kaur, AIR 1999 SC 1668: (1999)4 SCC413 that the rejection of
his application without giving him an opportunity to explain his Justification
for permission for production of secondary evidence was not proper.
This expression 'not subject to' seems
intended to include the case of a person not legally bound to produce the
document, who refuses to produce it.[xix]
02. Legally bound to produce it
The wording of this clause has given rise to
considerable doubt. Secondary evidence a document is admissible when the
original appears to be in the possession if any person legally bound to
produce it. This clearly covers a document which is unjustifiably withheld
by any person thus differing from the English law on the point. But if a person
summoned to produce a document objects to do so and his objection is upheld by
the Court, it seems equally clear that such a document does not fall within the
words of this section. It may be, however, that the Courts will admit secondary
evidence in such a case upon the general principles of the English law and the
decisions, of the English Courts upon the subject.[xx]
Under this clause secondary evidence in the form of an authenticated copy of a
document becomes admissible if a person cannot be legally compelled to produce
the original in his possession and refuses to produce it.[xxi]
Where the existence of the mortgage deed was
not specifically denied by the mortgagee and therefore, it was not necessary
for the plaintiff to call attesting witnesses and the defendant (mortgagee) was
refusing to file the original deed in the court, it was held in Ishwar Das
Jain v. Sohan Lal AIR 2000 SC 426 : (2000) 1 SCC 434 that the filing of a
certified copy of the deed by the plaintiff as secondary evidence was a
sufficient proof of the existence and execution of the deed.
03. When after the notice mentioned in s. 66 such person does not produce it
When any person in whose possession or power
the original may be, after receiving the notice (if any) required by s. 66,
does not produce such original.[xxii]
The sole object of a notice to produce is to enable the adversary to have the
document in Court to produce it if he likes, and, if he does not, to enable his
opponent to give secondary evidence thereof, so as to exclude the argument that
the latter has not taken all reasonable means to procure the original which he
must do before he can be permitted to make use of secondary evidence. This
principle was held in Dwyer v. Collins. (1852) 7 Ex 639, 647.
If a person who is legally bound to produce
the document refuses to produce it notwithstanding notice to do so, the
existence and contents of the original document can be proved under this clause
by proof of the authenticated copy as held in Muniammal v. Govindarajan,
(1958) Mad 415.
04. Documents admitted by opposite party- [Clause (b)]
This clause must be read with s. 22. Under it
the written admission may always be proved. The oral admission can only be
proved under the circumstances mentioned in clauses (a), (c) and (d). But
secondary evidence by means of a written admission under this clause cannot be
given of the contents of a document, which is inadmissible for want of
registration (Yarada v. Krisnasami, (1882) 6 Mad 117) or of stamps (Damodar
Jagannath v. Atmaram Babaji, (1888) 12 Bom 443). Admission of documents
amounts to admission of contents thereof but not its truth. Truth or
correctness is to be ascertained from evidence (Life Insurance Corporation
of India v. Narmada Agarwalla. AIR 1993 Ori 103). Where the defendant
himself admitted the payment under the cheque, absence of cheque as primary
evidence would not vitiate the suit (Sharda Talkies (Firm) v. Madhulata
Vyas. AIR 1996 MP 68).
05. Original lost or destroyed-[Clause (c)]
Secondary evidence is admissible when the
party offering evidence of the contents of a document cannot for any reason not
arising from his own default or neglect produce the original document in
reasonable time, the Court held in Surendra Krishna Roy v. Mirza Mahammad
Sved Ali Matwali, (1935) 63 IA 85. 38 Bom LR 330. Akshara Nand v. State of H.P.
1996 AIHC 1894(HP). Secondary evidence of the contents of a document cannot
be admitted without the non-production of the original being first accounted
for.[xxiii]
Where an original book of accounts is in a
very tottering condition and is also worm-eaten, secondary evidence of such
accounts cannot be given.[xxiv]
It is not permissible to go to other evidence for the purpose of
indicating what the contents of the document may prove to be if once it were
examined, the Court held in K.S. Bonnerji v. Sitanath, (1921) 24 Bom LR 565:
49 IA 46: 49 Cal 325. There must be evidence on the record to show that the
document has been lost, as decided in Mohammad Khan v. Sheo Bikh Singh,
(1929) 5 Luck 377.
To prove the loss of a document, evidence of
diligent search is necessary. See illustration (b) to s. 104. Copies are
inadmissible without proof of the search of the originals (Krishna Kishori
Chawdhrani v. Kishori Lal Roy, (1887) 14 Cal 486: 14 IA 71; Harripria Debi v.
Rukmini Debi. (1892) 19 Cal 438: 19 IA 79). It must, therefore, be
established that the party has exhausted all resources and means in search of
the document which were available to him, the Court held in Parekh Bros. v.
Kartick Chandra. AIR 1968 Cal 532. The loss of a document can
never be proved absolutely. Where a document has not been seen for many years,
the statement by a person who was alleged to have been in possession of it that
it was never with him nor was it with him then, is sufficient evidence of its
loss (Basant Singh v. Brijraj Saran Singh. (1935) 37 Bom LR 805: 62 IA 180:
57 All 494). Where a promissory note filed with a plaint disappeared from
the Court file, it was held that the plaintiff was entitled, without showing
how the disappearance or the loss arose or who abstracted it from the file, to
give secondary evidence of it (Tulsi Ram v. Ram Saran, (1924) 27 Bom LR 777
PC). If a registered sale-deed is lost a certified copy can be put in as
secondary evidence (Entisham Ali v. Jamna Prasad. (1921) 24 Bom LR 675: 48
lA 365), but the reception of other evidence must always be of a very weak
character in place of registered document evidencing the transaction (Nani
Bai v. Gita Bai. AIR 1958 SC 706: 1959 SCR 479). Where the loss of the
original award was proved by examining one of the Arbitrators, its photocopy
bearing not only that Arbitrator's signature but also of both the parties was
admissible in evidence (Om Prakash v. Dev Raj. AIR 1995 P&H 349).
Secondary evidence of a lost public document,
other than a certified copy, is admissible upon proof of loss or destruction of
the original, and further proof that no certified copy of the original is
available to the party seeking to prove the contents of the original. So long
as the original is in existence, no secondary evidence other than a certified
copy is admissible (Syad Pir Shan v. Gulab Shah. (1878) PR No. 63 of 1878
(Civil)). Where the record in a case has been destroyed and is not
available for the purpose of proving previous convictions, secondary evidence
under this clause is admissible (Pokar v. Crown. (1941) Kar 308).
Secondary evidence was allowed where the plaintiff stated on affidavit that the
original was lost, (Sanatan Mohunty v. Baidhar Rout. AIR 1986 Ori 66)
and also where the sale deed was handed over to a patwari and the same was not
returned by him (Krishna Devi v. Gain Kaur, AIR 1981 P&H 224). In an
election petition, the photo copy of the manuscript of a leaflet was not
allowed because it was not shown where the original was. There must be some
explanation as to the original (Ashok v. Madhav Lal. AIR 1975 SC 1748:
1975(4) SCC 664).
Secondary evidence of the contents of a
document cannot be given by a party who is in custody of the original document
(Hira Lal v. Ganesb Prasad. (1882) 4 All 406 PC).
In a case before the P&H High Court in
P.K. Gupta v. Varinder Sharma. AIR 2002 P&H 342, a suit was
filed for recovery of money on the basis of an agreement. The plaintiff
produced only the photostat copy of the agreement and not the original. The
defendant argued that the photocopy was produced deliberately to suppress the
fact that the agreement was fabricated. The plaintiff pleaded that the original
was in the custody of the defendant. He applied for permission to produce
secondary evidence. It was held that a summary dismissal of such application
was not proper. Opportunity should have been given to the plaintiff to make out
his case. The court then explained the basic principles as follows: "A
perusal of clause (c) of Section 65 of the Act would show that secondary
evidence of existence, condition or contents of a document can also be adduced
when the party offering evidence of its contents cannot produce the original in
reasonable time. But such a delay in production of the document should not have
arisen from the fault or neglect of the party who wish to adduce secondary
evidence of the document. To succeed in getting permission to adduce secondary
evidence it must be shown that the document was in existence which was capable
of being proved by secondary evidence and secondly proper foundation must be
laid to establish the right to adduce secondary evidence. This view has been
taken by a Constitution Bench of the Supreme Court in the case of Roman
Catholic Mission v. State of Madras AIR 1966 SC 1457. Another
well-known principle with regard to proof of facts is that best evidence must
come before the Court because the best evidence which is, of course, the
original document would furnish an opportunity to the Court to examine various
surrounding facts attached with the original alone like the veraciousness of
the signatures of the parties, the age of the document and other host of
factors depending on the facts of each case. It is in the absence of the best
evidence that the secondary evidence is allowed to be adduced because the
object of judicial investigation by Court is to fathom the truth. Therefore,
the law although insists upon production of the best evidence i.e. the original
document yet it permit with proper safeguards the production of the secondary
evidence of the original if certain conditions are satisfied, namely, the
existence of the document which might have been lost or destroyed or the party
in whose possession the original is shown or appears to be-have refused to
produce it before the Court despite notice or its existence, condition or
contents have been proved to be admitted in writing so on and so forth. The
rule regarding secondary evidence is not an open rule allowing any piece of
photostat copies or an oral account of the original and the likewise to be
tendered as secondary evidence.
06. Original not easily movable [Clause (d)]
This clause covers things not easily moved,
as in the case of things fixed in the ground or a building; for exam pie,
notices painted on walls, tablets in buildings, tombstones, monuments, or marks
on boundary stones or trees. Secondary evidence is admissible on account of the
great inconvenience and impracticability of producing the original.
Mertimer v. M. Challan. (1840) 4 Jur. 172:
151 ER 320 explained
the principle "It has been established by a series of decisions that the
books of the Bank of England being of great convenience to the whole of the
national creditors, the removal of them would be so inconvenient, that copies
of them might be received in evidence.
It was found upon the principle, that the
public inconvenience from the removal of documents of that sort, would justify
the introduction of a secondary evidence. That principle has been applied in a
variety of cases. There have been attempts to apply it to cases where it was
not applicable: the first was the case of Lord George Gordon (1781)
21 St. Tr 486 at 535 where copies of the journals of the House of
the Commons were offered to be given in evidence, but they were rejected on the
ground that no such inconvenience would attend the removal of journals of the
House of Commons, and anyone wishing to remove them could get the consent of
the Speaker to do so. The next case that arose was with respect to the book of
the Customs Excise. It was formerly the practice to produce them, but after
some consideration it was thought that the public inconvenience was so great,
that it has become every day's practice to allow copies of these books to be
received in evidence. That goes upon the general principle of not removing
books of general concern. If a writing were on a wall, it might not give you
evidence of the character of the handwriting, as probable of evidence who wrote
it without producing the wall in court? Suppose a man, instead of printing a
libel in the usual way were to write on the dead walls of the metropolis, is it
to be said that he cannot be punished, because you cannot produce the wall in
court?"
The principle of law is, that where you
cannot get the best possible evidence, you must take the next.
The rule is not confined to documents in the
ordinary sense. Its scope is not precisely defined. It matters not whether
written words are put forward as true or false, whether they define right or
create rights, whether they make statements, express emotions or constitute
insults--deeds, contracts, bills of exchange, libels, threatening letters and
love letters are all alike subject to the rule. But the rule does not apply to
writings or other markings that are not relied upon for their meaning but only
as a part of the appearances of a thing (Commissioner for Railway v. Young
(1962) 106 CLR 535 at 555 WINDEYER, J. who relied Boyle v. Wiseman.
(1855) II Ex. 360 at 367 and the American cases, Commonwealth v.
Morrell. (1868) 99 Mass 542; Benjamin v. The State. (1915) 67 So. 792).
The rule excluding secondary evidence did not
go beyond writing and include physical objects. "Where the question is as
to the effect of a written instrument, the instrument itself is primary
evidence of its contents, and until it is produced, or the non-production is
excused. No secondary evidence can be received. But there is no case whatever
deciding that when the issue is as to the State of chattel, c.g., soundness of
a horse, or the equality of the bulk of the goods to the sample, the production
of the chattel is the primary evidence and that no other evidence can be given
until the chattel is produced in the court (R.v. Francis. (1874) LR 2 CCR
128 at 133). This is true of a picture where the question is whether a
photograph is a copy (Lucas v. Williams & Sons. (1892) 2 QB 113). It
is true of an article of clothing where the question is as to its manufactured
condition (Hocking v. Ahlquist Bros. Ltd.. (1944) KB 120). It has been
held, too, that upon the trial of an indictment containing counts for an
unlawful assembly, seditious combinations and the like, production was
unnecessary of flags, banners and playcards bearing seditious inscriptions and
devices. "There is no authority to show that in a criminal case ensigns,
banners, or other things exhibited in public view, and of which effect depends
upon such public exhibition, must be produced or accounted for. If we were to
hold that words inscribed on a banner so exhibited could not be proved without
the production of the banner, upon what reason a witness should be allowed to
mention the colour of the banner (R. v. Hunt, (1820)3 b. Alld. 566 at 574:
106 ER 768 at 771).
Applying these principles to the present
facts the court concluded that the identity of the handwriting on the label
could be proved by oral evidence, but not what was actually written on the
label.
07. Rule Restricted to Written Documents
The courts have declined to extend the best
evidence rule to documents consisting of film, tape and the like. There is
little reason to burden these categories with a restrictive and formalistic
rule conceived in the days before technology had begun to spawn new forms of
storing information which give a new meaning to the term 'original'.
In Kajala v. Noble, (1982) 75 Cr.
App. R. 149 (CA), a prosecution witness, by viewing a BBC news film,
identified the accused as a member of a group of persons who had caused a
serious public disturbance. The original film was retained by the BBC, and at
trial the prosecution relied on a video-cassette, which the court was satisfied
was an authentic copy of the original film. On appeal against conviction, it
was argued for the accused that since the prosecution had relied upon the
contents of the film, and since the film should be regarded as a document,
primary evidence should have been required. The Court declined to extend the
rule beyond 'written documents in the strict sense of the term' and held that
it had no application to tapes or films.
Where a video-recording, which was said to
show the accused committing an offence of theft, was mistakenly erased before
trial, it was held to be proper for police officers who had viewed the
recording to give oral evidence of its contents. RALPH GIBSON LJ said in Taylor
v. Chief Constable of Cheshire [1986] 1 WLR 1479 at P 1486, "For my
part I can see no effective distinction so far as concerns admissibility
between a direct view of the action of an alleged shoplifter by a security
officer and a view of those activities by the officer on the video display unit
of a camera, or a view of those activities on a recording of what the camera
recorded. He who saw may describe what he saw because, as ACKNER LJ said in Kajala
v. Nable (1982) 75 Cr App. R. 149.... it is relevant evidence provided that
that which is seen on the camera or recording is connected by sufficient
evidence to the alleged actions of the accused at the time and place in
question."
08. Public document [Clause (e)]
This clause is intended to protect the
originals of public records from the danger to which they would be exposed by
constant production in evidence. Secondary evidence is admissible in the case
of public documents mentioned in s. 74. What s. 74 provides is that public
records kept in any state of private documents are public documents, but
private documents of which public records are kept are not in themselves public
documents. A registered document, therefore, does not fall under either clause
(e) or (f). The entry in the register book is a public document, but the original
is a private document. A certified copy of the original cannot be given in
evidence. The Gujarat High Court has held that a copy of a registered sale deed
certified by the registration officer is a public document within the meaning
of s. 74 and is, therefore, admissible for the purpose of proving the contents
of the original document.[xxv]
Public documents can only be proved by their
production or by secondary evidence of the nature described in this clause;
they cannot be proved by the oral evidence of a witness (Gunga Ram v. The
Emperor of India, (1902) PR No.5 of 1903(Cr)). The rule that a certified
copy is the only secondary evidence admissible when the original is a public
document, does not apply where the original has been lost or destroyed (Chandreshwar
Prasad Narain Singh v. Bisheshwar Pratap Narain Singh (1926) 5 Pat 777).
09. Certified copies permitted by law [Clause (f)]
Certified copies are admissible as secondary
evidence under this clause. Sections 76, 78 and 86 may be read along with it.
Where an original document cannot be given in evidence owing to a statutory
ban, its certified copy cannot be admitted in evidence, e.g. certified
copy of the income-tax return (Devidatt v. Shriram (1931) 34 Bom LR 236: 56
Bom 324).
The last but one paragraph of this section
provides "in case (e) or (f), a certified copy of the document, but no
other kind of secondary evidence, is admissible". This applies to the case
in which the public document is still in existence on the public records (Kalandan
v. Kunhunni, (1882) 6 Mad 80, 81). Where a case falls under clause (a) or
clause (c) and also under clause (f) any secondary evidence may be received.[xxvi]
Where both the original and the certified
copy of a public document were proved to have been lost, the court allowed
secondary evidence in the form of an ordinary copy (Marwari Kumhar v.
Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629: (2000) 7 SCC 333).
An application for production of a particular
document was filed after 8 years of institution of the suit. The document
sought to be produced was also a copy of the original document. The court said in
Arati Bhargawa v. Ravi Kumar Bhargava. AIR 1999 Delhi 280 that such a
document could not be accepted in evidence without showing any of the
exceptional situations.
10. Documents which cannot be conveniently examined [Clause (g)]
This provision is meant for saving public
time. Where the fact to be proved is the general result of the examination of
numerous documents and not the contents of each particular document and the
documents are such as cannot be conveniently examined in Court, evidence may be
given, under this section, as to the general result of the documents by a
person who has examined them and who is skilled in the examination of those
documents, although they may be public within the meaning of this section and
s. 74 (Sundar Kaur v. Chandreshwar Prasad Narain Singh, (1907) 34 Cal 293).
11. Objection to reception of secondary evidence in Appeal Court
If a copy of a document is admitted in
evidence in the first Court without any objection no objection can be allowed
to be taken in the Appeal Court as to its admissibility (Kishori Lal Goswami
v. Rakhal Das Banerjee, (1903) 31 Cal 155; Akbur Ali v. Bhyea Lal lira. (1880)
6 Cal 666; Bachuram Mundul v. Peary Mohun Banerjee, (1883) 9 Cal 813; Narendra
Narain Rai v. Bishun Chundra Das, (1885) 12 Cal 182; Chimnaji Govind Godbole v.
Dinkar Dhondev Godbole, (1886) II Bom320; Thet She v. Moung Ba, (1905)3 LBR49.
Amar Singh v. Tej Ram, AIR 1982P&H382).
Where no objection was raised when the
certified copy of the Will was admitted, non-production of the original Will
cannot subsequently be urged as a ground to invalidate the Wil1 (S.A. Quddus
v. S. Veerappa, AIR 1994 Kant 20). The question of proof of a document is a
question of procedure and can be waived. But a question of relevancy of
document is a question of law, and can be raised at the appellate stage as well
(Subbarao v. Venkata Rama Rao, AIR 1964 AP 53). The object of the rule
is obvious, for, if objection is taken in the first Court, the party producing
the copy can ask for an adjournment in order to get the original or else to
give evidence justifying the admission of secondary evidence.
06. SPECIAL PROVISIONS AS TO EVIDENCE TO ELECTRONIC RECORD
Section 65A and 65 B run as follows.
[xxvii][S. 65A. The contents of electronic
records may be relating proved in accordance with the provisions of section
65B.]
Admissibility of electronic records
[xxviii][S. 65B. (1) Notwithstanding anything
contained in this Act, any information contained in an electronic record which
is printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer (hereinafter referred to as the computer output) shall
be deemed to be also a document, if the conditions mentioned in this section
are satisfied in relation to the information and computer in question and shall
be admissible in any proceedings, without further proof or production of the
original, as evidence or any contents of the original or of any fact stated
therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section
(1) in respect of a computer output shall be the following, namely:-
(a) the computer output containing the
information was produced by the computer during the period over which the
computer was used regularly to store or process information for the purposes of
any activities regularly carried on over that period by the person having
lawful control over the use of the computer;
(b) during the said period, information of
the kind contained in the electronic record or of the kind from which the
information so contained is derived was regularly fed into the computer in the
ordinary course of the said activities;
(c) throughout the material part of the said
period, the computer was operating properly or, if not, then in respect of any
period in which it was not operating properly or was out of operation during
that part of the period, was not such as to affect the electronic record or the
accuracy of its contents; and (d) the information contained in the electronic
record reproduces or is derived from such information fed into the computer in
the ordinary course of the said activities.
(3) Where over any period, the function of
storing or processing information for the purposes of any activities regularly
carried on over that period as mentioned in clause (a) of sub-section (2) was
regularly performed by computers, whether-
(a) by a combination of computers operating
over that period; or
(b) by different computers operating in
succession over that period: or
(c) by different combinations of computers
operating in succession over-that period; or
(d) in any other manner involving the
successive operation over that period, in whatever order, of one or more
computers and one or more combinations of computers, all the computers used for
that purpose during that period shall be treated for the purposes of this section
as constituting a single computer; and references in this section to a computer
shall be construed accordingly.
(4) In any proceedings where it is desired to
give a statement in evidence by virtue of this section, a certificate doing any
of the following things, that is to say,-
(a) identifying the electronic record
containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device
involved in the production of that electronic record as may be appropriate for
the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which
the conditions mentioned in sub- section (2) relate, and purporting to be
signed by a person occupying a responsible official position in relation to the
operation of the relevant device or the management of the relevant activities
(whichever is appropriate) shall be evidence of any matter stated in the
certificate; and for the purposes of this sub-section it shall be sufficient
for a matter to be stated to the best of the knowledge and belief of the person
stating it.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied
to a computer if it is supplied thereto in any appropriate form and whether it
is so supplied directly or (with or without human intervention) by means of any
appropriate equipment;
(b) whether in the course of activities
carried on by any official information is supplied with a view to its being
stored or processed for the purposes of those activities by a computer operated
otherwise than in the course of those activities, that information, if duly
supplied to that computer, shall be taken to be supplied to it in the course of
those activities;
(c) a computer output shall be taken to have
been produced by a computer whether it was produced by it directly or (with or
without human intervention) by means of any appropriate equipment.
Explanation.-For the purposes of this section any reference to
information being derived from other, information shall be a reference to its
being derived therefrom by calculation, comparison or any other process.]
01. Information Technology Act, 2000 - Proof of contents of electronic records [Ss. 65A, 65B]
The new section, namely S. 65A, says that the
contents of electronic records may be proved in accordance with the provisions
of S. 65B. This section is also a new provision. It prescribes the mode for
proof of contents of electronic records. The primary purpose is to sanctify
proof by secondary evidence. This facility of proof by secondary evidence would
apply to any computer output, such output being deemed as a document. A
computer output is a deemed document for the purposes of proof. The section
says in sub-so (1) that any information contained in an electronic record which
is printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer and to be referred to as computer output, shall also be
deemed to be a document. The section lays down certain conditions which have to
be satisfied in relation to the information and the computer in question. Where
those conditions are satisfied, the electronic record shall become admissible
in any proceedings without further proof or production of the original as
evidence of any contents of the original or of any fact stated in it.
02. Conditions as to relevancy of computer output [S. 65B (2)]
The conditions which have to be satisfied so
as to make a computer output as evidence are stated in sub-Sn (2). They are as
follows:
(a) the computer output containing the
information was produced by the computer during the period over which the
computer was used regularly to store or process the information for the
purposes of any activities regularly carried on over that period by the person
having lawful control over the use of the computer;
(b) the information contained in the
electronic record is of the kind which was regularly fed into the computer in
the ordinary course of its activities;
(c) the computer should have been operating
properly during the period of the data feeding, or, if it was not operating
properly during that period or was out of operation, that gap was not such as
to affect the electronic record or the accuracy of its contents;
(d) the information contained in the
electronic record was derived or is reproduced from the information fed into
the computer in the ordinary course of its activities.
Where the information was processed or fed
into the computer on inter-linked computers or one computer after the other in
succession, all the computers so used shall be treated as .one single computer.
The references to a computer have to be construed accordingly [Sn 65B(3)]:
When a statement has to be produced in
evidence under this section, it should be accompanied by a certificate which
should identify the electronic record containing the statement and describe the
manner m which It was produced, give the particulars of the device involved in
the production of the electronic record showing that the same was produced by a
computer and showing compliance with the conditions of sub-so (2) of this
section. The statement should be signed by a person occupying a responsible
official position in relation to the operation or management of the relevant
activities. Such statement shall be evidence of the matter stated in the
certificate. It should be sufficient for this purpose that the statement is
made to the best of knowledge and belief of the person making it [Sn 65B(4)].
For the purposes of this section an
information shall be taken to be supplied to a computer, if it is done in any
appropriate form whether this is done directly with or without human
intervention by means of any appropriate equipment, or if the information is
supplied by any official in the course of his activities with a view to storing
or processing the information even if the computer is being operated outside
those activities.
An explanation to the section declares that
for the purposes of S. 65-B any reference to information being derived from
other information is to be taken to mean derived by calculation, comparison or
any other process [Sn.65-B (Explanation)].
07. RULES AS TO NOTICE TO PRODUCE
S. 66. Secondary evidence of the contents1
of the documents referred to in section 65, clause (a), shall not be given
unless the party2 proposing to give such secondary evidence has
previously given to the party in whose possession or power the document is, or
to his attorney or pleader, such notice to produce it as is prescribed by law;
and if no notice is prescribed by law, then such notice as the Court considers
reasonable under the circumstances of the case:
Provided that such notice shall not be
required in order to render secondary evidence admissible in any of the
following cases, or in any other case in which the Court thinks fit to dispense
with it:-
(1) when the document to be proved is itself
a notice;
(2) when, from the nature of the case, the
adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse
party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has
the original in Court;
(5) when the adverse party or his agent has
admitted the loss of the document;
(6) when the person in possession of the
document is out of reach of, or not subject to, the process of the Court.
This section lays down that a notice must be
given before secondary evidence can be received under S. 65(a). Notice to
produce a document must be in writing. Order XI, r. 15. of the Civil Procedure
Code, prescribes the kind of notice to produce a document.
Notice is required in order to give the
opposite party a sufficient opportunity to produce the document, and thereby to
secure the best evidence of its contents.[xxix]
Such notice may be dispensed with if it is not necessary on the pleadings,
(Dinanath Rai v. Rama Rai, (1926) 6 Pat 102) or the Court thinks fit to
dispense with it. (Surendra Krishan Roy v. Mirza Mahammad Syed Ali Matwali)
1. Secondary evidence of the contents
"Secondary evidence of the
contents" means apparently "not...of the existence or condition"
of the documents.[xxx]
2. Party
This word means not only adversary in the
cause, but also a stranger 'legally bound to produce' the document.[xxxi]
3. Cases in which notice not required-[Proviso]
The proviso enumerates six cases in which a
notice is not required to be given to the party in whose possession or power
the document is, in order to render secondary evidence admissible.
The procedure for the production of documents
in criminal cases is laid down in ss. 94-98 of the Criminal Procedure Code.
Section 175 of the Indian Penal Code punishes
the person who omits to produce a document required by a public servant.
08. PROOF OF SIGNATURE AND HANDWRITING OF PERSON ALLEGED TO HAVE SIGNED OR WRITTEN DOCUMENT PRODUCED
S. 67. If a document is alleged to be signed
or to have been written wholly or in part by any person, the signature or the
handwriting of so much of the document as is alleged to be in that person's
handwriting must be proved to be in his handwriting.
This section merely requires proof of
signature and handwriting of the person alleged to have signed or written the
document produced (Abdool Ali v. Abdoor Rushman, (1874) 21 WR 429; Madholal
Sindhu v. Asian. Assu. Co. Ltd., (1945) 56 Bom LR 147). Mere
admission of execution of a document is not sufficient. Proof that the
signature of the executant is in his handwriting is necessary.[xxxii]
Where merely the signature of a person to a
type-written document was identified by a witness, it was held that what was
formally proved was the signature and not the body of the document.[xxxiii]
The Evidence Act permits secondary evidence
to be given with regard to the attestation of an attesting witness who is
either dead or cannot be brought to Court. The signature of the attesting
witness when proved in evidence is proof of everything on the face of the
document and that he saw the executant make his mark (Ponnuswami Goundan v.
Kalyanasundara Ayyar, (1934) 57 Mad 662).
As to the method of proof, Ss. 47 and 73 are
relevant provisions.
Besides the question which arises as to the
contents of a document (see Ss. 61-66), there is always the question when the
document is used in evidence,- Is it what it purports to be? In other words, is
it genuine? The evidence upon this point is dealt with in ss. 67-73. The nature
of the evidence will depend to a large extent on the nature of the document. If
it is a mere memorandum, such as the entry in a diary mentioned in s. 32(b), it
must be proved that the diary was really that of the person whose statements it
is said to contain. If it is a letter it must be shown who wrote it, or at any
rate who signed it, for a signature to a document turns the whole document into
a statement by the person who signs it. If it is an agreement it must be shown
who executed it. In the case of a money
suit for goods sold on credit, the plaintiff examined his accountant who
prepared the documents such as ledgers, challans, and corresponding bills, but
who, in his cross-examination categorically stated that he did not know who
prepared the documents. It was held that the documents in question could not be
said to have been proved (Rukmanand Ajitsaria v. Usha Sales P. Ltd., AIR
1991 NOC 108 (Gau)). In the case of a document executed by the thumb
impression of an illiterate person, the party putting forth the document has to
prove that the document was read over and explained to the executant.[xxxiv]
01. Execution of document
Execution means signing, sealing and delivery
of a document. The term may be defined as a formal completion of a deed. It is
the last act or series of acts which completes it (Bhawanji Horbhum v. Devji
Punja, (1894) 19 Bom 635).
Mere registration of a document is not in
itself sufficient proof of its execution.[xxxv]
Where a mere photostatic copy of the registered sale deed was placed on
record, it was held that the mere proof of registration was not the proof of
due execution. Where there is a failure to produce the original sale deed or
its certified copy and non-examination of an attesting witness or scribe of the
document, it would have to be held that execution of the document was not
proved (Khushi Ram v. Findhi AIR 2003 HP 23).
The mere production of a registered deed is
not sufficient to prove it. The identity of the executant has to be established
by oral evidence before the deed can be taken to have been proved (Prem Raj
v. Mishrimal, (1959) 9 Raj 573). In the case of a will, the burden lies
upon its propounder to prove its genuineness, the deceased testator being no
longer available to speak to its genuineness. Accordingly where the evidence
produced by him was contradicting his claim and there was also inconsistency in
the opinion of the handwriting expert, the will was held to be not proved (A.
Chandrabati v. Laxmi Dei, AIR 1991 Ori 289).
A deed of conveyance was tendered in evidence
which purported to bear the mark of G, as vendor, and which was duly attested
by four witnesses. G, however, denied that she had ever executed the deed, and
said that the mark was not hers. All the attesting witnesses were dead. A
witness was called who knew the handwriting of one of the attesting witnesses,
and who swore that the signature of that witness to the attestation clause of
the deed was genuine. It was held that the deed was admissible in evidence, its
execution by G being sufficiently proved.[xxxvi]
09. PROOF AS TO DIGITAL SIGNATURE
[xxxvii][S.67A. Except in the case of a secure
digital signature, if the digital signature of any subscriber is alleged to
have been affixed to an electronic record the fact that such digital signature
is the digital signature of the subscriber must be proved.]
Proof of execution of document required by
law to be attested.
S. 68. If a document is required by law1
to be attested,2 it shall not be used as evidence3 until
one attesting witness at least has been called for the purpose of proving its
execution,4 if there be an attesting witness alive, and subject to
the process of the Court and capable of giving evidence:
Provided5 that it shall not be necessary to call an
attesting witness in proof of the execution6 of any document, not
being a will, which has been registered in accordance with the provisions of
the Indian Registration Act, 1908, unless its execution by the person by whom
it purports to have been executed is specifically denied.
This section applies to cases where an
instrument required by law to be attested bears the necessary attestation. What
the section prohibits is a proof of execution of a document otherwise than by
the evidence of an attesting witness if available (Yeerappa Kavundan v.
Ramasami Kavundan, (1907) 30 Mad 251; Ram Gopal Lal v. Aipna Kunwar (1922) 44
All 495: 49 IA 413).
This section applies only where the execution
of a document has to be proved or when the allegation is that the executant was
not in a fit state of mind to know the real nature of the document (Radhamohan
v. Haribandhu AIR 1991 NOC 109 (Ori)). Where, however, the execution is not
to be proved, it is not necessary to call any attesting witness, unless it is
expressly contended that the attesting witness has not witnessed the execution
of the document (Komalsing Kuwarsing v. Krishnabai, (1945) 48 Bom LR 83:
(1946) Bom 146).
The object of placing more attestations than
one upon a document whether at the party's voluntary instance or by requirement
of law, is ordinarily not to demand the combined testimony of all at the trial,
but merely to provide by way of caution a number of witnesses; so that the
contingencies of death, removal of residence, and the like, may be guarded
against, and one witness at least may be available. But the main object in
statutes requiring attestation as an element of validity is to surround the act
of execution with certain safeguards; the object of securing evidence for
litigation is a secondary one.[xxxviii]
A mere general denial of a mortgage or not
admitting it cannot be regarded as a specific denial of its execution within
the meaning of the proviso to this section.
When there is only a general denial of
execution and there is no cross examination regarding attestation of a witness
who comes forward to swear to execution then it can be presumed that there was
due attestation (Dashrathprasad v. Laloosingh, (19S 1) Nag 873).
01. Proof of Will
This section is not permissive or enabling.
It lays down the necessary requirements which the Court has to observe in order
that a document can be held to be proved. The principle underlying the section
is that execution of the will must be proved by at least one attesting witness,
that it is only an attesting witness who is entitled to prove the execution of
the will. It is a concession that the legislature has made. If that concession
does not result in complying with the mandatory requirements of this section
the only proper method is to call the other attesting witness, so that both the
attesting witnesses are before the Court, and the due execution of the will is
proved by the two attesting witnesses which are necessary before a will can
become a valid document.[xxxix]
To prove a will it is not necessary that the attesting witness should depose
that the other attesting witness had signed the will in the presence of the
testator and after seeing the testator signing the will as both the attesting
witnesses need not be present at the same time (KM. Varghese v. KM. Oommen,
AIR 1994 Ker 85, dissenting from Road Fromroze v. Kanta Yarjvandas, AIR
1946 Bom 12, Yishni Ram Krishna v. Nathu Yithal, AIR 1949 Bom 266, K. Nookaraju
v. P. Yenkaiarao, AIR 1974 AP 13 and Pattammal v. Kanniammal, AIR 1981 Mad 252).
“A plain perusal of s. 68 of the Evidence Act shows that the requirement of
examining at least one attesting witness is to be fulfilled 'if there be an
attesting witness alive'. Where the attesting witnesses are dead the will can
certainly be proved in the manner provided for proof of a document" (Balwant
v. Mainabai, AIR 1991 MP 11; A Chandrabati v. Laxmi Dei, AIR 1991 Ori 289).
Where the executant and attesting witnesses of a will were not alive,
identification of their signature by another witness, present at the time of
its execution was not necessary to prove the will (Haradhan Mahatha v. Dukhu
Mahatha, AIR 1993 Pat 129). The mode of proving a will does not ordinarily
differ from that of proving any other document except in the special
circumstances as incorporated in section 63 of the Act.[xl]
Merely from the vague evidence of the attesting witness and without taking all
circumstances into consideration, the court should not conclude that the will
was not duly executed.[xli]
The fact of the testator giving instruction
for the making of a will was proved. He himself presented the will for
registration and acknowledged its due execution. No vitiating circumstances
were made out to rebut the presumption arising out of registration or to create
any doubt about the presence of testators at the time of registration. The
finding of the court below that the will was regularly executed did not call
for any interference.[xlii]
1. Required by law
This means required by the law of the country
where the property is situate. The rule as to the law of domicile is not
extended to immovable property.
2. Attested
"Attested" means that a person has
signed the document by way of testimony to the fact that he saw it executed (Alagappa
Chettiyar v. Ko Kala Pai, (1940) Ran 199; Shamu Patter v. Abdul Kadir Ravuthan,
(1912) 35 Mad 607: 39 IA 218: 14 Bom LR 1034). An attesting witness is one
who signs the document in the presence of the executant after seeing the
execution of the document or after receiving a personal acknowledgment of the
execution of the document by the executant (Lachman Singh v. Surendra
Bahadur Singh, (1932) 54 All 1051 FB). A document cannot be attested by a
party to it. The object of attestation is that some person should verify that
the deed was signed voluntarily. Knowledge of the contents of a document ought
not to be inferred from the mere fact of attestation (Nainsukhdas
Sheonarayan Shop v. Goverdhandas, (1947) Nag 510).
‘Attested', in relation to an instrument,
means attested by two or more witnesses each of whom has seen the executant
sign or affix his mark to the instrument, or has seen some other person sign
the instrument in the presence and by the direction of the executant, or has
received from the executant a personal acknowledgment of his signature or mark
or of the signature of such other person, and each of whom has signed the
instrument in the presence of the executant; but it is not necessary that more
than one of such witnesses should be present at the same time, and no particular
form of attestation is necessary (see s. 3 of the Transfer of Property Act and
s. 63(c) of the Indian Succession Act).
Where a document is written, executed and
attested in one ink the presumption of due attestation is permissible under the
maxim "Omnia praesumuntur rite et solemniter esse acta donee probetur
in contrarium (Rail Bhimsing v. Fakirchand, (1947) Nag 649).
"Personal acknowledgment" is not
the equivalent of "express acknowledgment; by words and an acknowledgment
may be inferred from gestures or conduct (Amir Husain v. Abdul Samad, (1937)
All 723).
According to the Allahabad, the Patna and the
Bombay High Courts, the scribe of a mortgage deed cannot be counted as an
attesting witness merely because he has signed the deed, even though the deed
may in fact have been executed in his presence (Badri Prasad v. Abdul Karim,
(1913) 35 All 254; Ram Bahadur Singh v. Ajodhya Singh, (1916) 20 CWN 699
(Patna); Dalichand v. Latu, (1919) 22 Bom LR 136 : 44 Bom 405; Amardas
Mangaldas v. Haramanbhai Jethabhai, (1942) 44 Bom LR 643), but the Madras (Paramasiva
Udayan v. Krishna Padhyachi, (1917) 41 Mad 535) and Calcutta (Jagannath
Khan v. Bajrang Das Agarwala, (1920) 48 Cal 61; Abinash Chandra Bidyanidhi
Bhattacharya v. Dasarath Malo, (1928) 56 Cal 598), Orissa[xliii]
and Punjab and Haryana (Ujagar Singb v. Parmesh Knitting Works, AIR 1986
P&H 230) High Courts have held to the contrary. The Rangoon
High Court has held that the writer of a document may perform a dual role; he
may be an attesting witness as well as the writer. When a man places his
signature upon a document and at the same time describes himself as the writer
thereof, the inference is that he signs as the writer and nothing else, but, as
a matter of fact, it can be shown that he signed not only as the writer but
also as a witness of the fact that he saw the document executed or received a
personal acknowledgment from the executant that he had executed it (Alagappa
Cheuiyar v. Ko Kala Pai, (1940) Ran 199). The Bombay High Court has further
held that where the writer has signed not as a scribe but as an attesting
witness the attestation is good (Yacubkhan v. Guljarkhan, (1927) 52 Bom 219:
30 Bom LR 565). Where the only available attesting witness to a mortgage
deed denies his attestation, it is permissible to prove the deed by calling its
writer under s. 71 to depose to the execution of the deed by the mortgagor and
to its attestation by the two witnesses.[xliv]
The direct evidence of the attestor will be
"primary evidence". If there is no attesting witness alive, then the
document must be proved in the manner provided by ss. 47 and 73. Should there
be any doubt about the genuineness of the signature of an attesting witness,
the same can be resolved through the opinion of an expert under s. 45 (Sumangala
T. Pai v. Sundaresa Pai, AIR 1991 Ker 259).
When attestation is not specifically
challenged and when an attesting witness is not cross-examined regarding the
details of attestation his evidence that the deed was attested by the other
attesting witnesses and by him is sufficient proof of attestation under this
section. The law will then assume that when the witness swears that it was
attested the witness means that it was attested according to the forms required
by taw (Kuwarlal v. Rekhlal, (1950) Nag 321).
02. Documents requiring attestation
(1) A will (Ss. 57 and 63 of the Indian
Succession Act, 1925); (2) a mortgage, the principal money secured by which is
Rs. 100 or upwards (Transfer of Property Act, s. 59); (3) a gift of immovable
property (Transfer of Property Act, s. 132).
Where the document was that of recoveyance,
it did not require attestation (HS Rudrappa v. H.Y. Shivlingappa, AIR 2000
NOC 42: 1999 AI HC 4543). The proper mode of attesting is that the witness
should either sign or affix his thumb impression himself. The section does not
permit the delegation of that function, if he does so, he is not an attesting
witness.
03. It shall not be used as evidence
These words means that the document cannot be
used in a suit for enforcement of the document, leaving the ordinary provisions
of law in s. 67 to apply where the document is to be used for any other
purpose. Although a document cannot be used in evidence as a mortgage deed,
which requires attestation, yet this section does not prevent it from being used
in evidence for the purpose of proving it as an acknowledgment saving
limitation (Shyam Lal v.Lakshmi Narain, (1939) All 366).
04. Until one attesting witness at least has been called for the purpose of proving its execution
The word 'called' means tendered for the
purpose of giving evidence (Moti Chand v. Lalta Prasad, (1917) 40 All 256).
It is not used in the sense of summoned (Ruprao v. Ramrao, (1952) Nag 189).
It is not necessary for the attesting person, in order to prove execution, to
point to the signature or mark made by the executant. It does not therefore
follow that because a witness is unable to point to the signature on a document
of the person whose signature he purports to have attested, he has failed to
prove that signature (Raizulnisa Begam v.Lala Puran Chand, (1943) 19 Luck
443).
This section provides that a document cannot
be held to have been proved unless one of the attesting witnesses is called
where it is not established that all of them are dead or were incapable of
giving evidence (Ananta Raghuram v. Rajah Bommaderara, AIR 1958 Andhra 418).
The words "at least" presuppose that more evidence may be required
and it can only be by reference to the circumstances of each case that the
quantum of evidence necessary to discharge the onus of proof can be measured. A
will duly signed by the testator and attested by two witnesses, who attest not
in the presence of each other but at different times on the acknowledgment by
the testator of his own signature, cannot be admitted to proof on the evidence
of only one of the attesting witnesses (Roda Framroze v. Kanta Varjivandas,
(1945) 47 Bom LR 709 : (1946) Bom 295; Ruprao v. Ramrao, (1952) Nag 189).
There is no requirement that attesting witnesses should identify each
other (Krishna Kumar v. Kayastha Pathsala, AIR 1966 All 570). Where
the attesting witnesses proved the execution, it was immaterial that their
names were not mentioned in the will (Beni Chand v. Kamla Kunwar, AIR 1977
SC 63: 1977(4) SCC 554). Where the sole evidence of title was a "will"
and the attesting witness failed to prove it, it would not be said that the
will had been legally proved (Rameshwari Devi v. Shvam Lal, AIR 1980 All
292). It would not be necessary to call an attesting witness where
execution of a deed was not denied, only its validity was questioned on the
ground of undue influence (Engineers (Overseas) Cotpn. v. W.B. Fin. Corpn.,
AIR 1986 Ca1132).
05. Registered documents-[Proviso]
The proviso was added by Act XXXI of 1926. It
simplifies the difficulty of calling attesting witnesses where the document to
be proved is a registered one and is not a will and its execution is not
specifically denied by the person executing it.[xlv]
If the attestation is not specifically denied it is not necessary to call any
attesting witness (Yacubkhan v. Guljarkhan, (1927) 52 Bom 219. 30 Bom LR
565; Hari Nath Ghosh v. Nepal Chandra Ray Chaudhuri, (1937) I Cal 507, Shea
Ratan Singh v. Jagannath, (1936) 12 Luck 681; Bhagwandas Dhondidas v. Basawwa,
(1956) 58 Bom LR 809). What has to be specifically denied is the execution
of the document and a mere denial of the genuineness of the document is not
enough to indicate that the execution of the document was denied (K.
Narasimhappa v. Lokkanna; AIR 1959 Mys 148).
The words "specifically denied"
means specifically denied by the party against whom it is sought to be used and
not only by the executant. Where, therefore, a party against whom a document is
sought to be used denied its execution, even though the executant does not do
so, it is necessary to call an attesting witness to prove it (Chandra Kali
v. Bhabuti Prasad, (1943) 19 Luck 365). A third party who is a party to a
mortgage suit but not to the mortgage deed can deny execution and require proof
of attestation when the executant of the deed admits execution (Syed Zaharul
Hussain v. Mahadeo, (1948) Nag 621). Where the plaintiff alleged that the
executant of the gift deed was so old and infirm that he could not understand
the nature of the document, the Court said that it was not "a specific
denial" (Chuttan Lal v. Shanti Pd., AIR 1981 All 50). Where the
execution of a registered gift deed was not denied by the executant, proviso to
s. 68 was not attracted (Shyama Devi v. Premvati, AIR 1996 All 57). The
proviso to section 68 is not applicable to the sale deed of immovable property,
Even if the sale deed has been attested by witnesses, they need not be examined
(Hans Raji v. Yosodanand, AIR 1996 SC 761: 1996 (7) SCC 122).
A registered deed of gift of immovable
property was signed by the donor and attested by the witnesses. The donor also
admitted execution of the gift in favour of the appellant. It was held that the
deed was duly proved even if one of the attesting witnesses was not called upon
to testify to the execution (Surendra Kumar v. Nathulal, AIR 2001 SC 2040).
The Madras High Court has held that the
proviso has a retrospective effect as it relates to procedural law and not to
substantive law. If the execution of a deed required to be attested by law, is
not denied by the executant, it need not be proved by any attesting witness,
though it might have been executed before the enactment of the proviso (Thayammal
v. Mutukumaraswami Chettiar, (1929) 53 Mad 119).
06. Will
To prove the execution of a will, mere
examination of its writer or proof of his si.ffinature[xlvi]
or the fact that the will was registered one was held to be not sufficient.[xlvii]
Examination of at least one attesting witness
is mandatory. Where only one attesting was alive but he could not be produced
despite best efforts and an application for filing additional evidence was made
at the late stage of arguments, it was held that the application was to be
allowed since proof of registered will was not possible without examining at
least one attesting witness.[xlviii]
Where the will in question was a registered
document and was more than 50 years old, and all the attesting witnesses and
scribe were dead and, therefore, the question of their examination did not
arise, it was held that, in the absence of any suspicious circumstances, the presumption
of genuineness of the will prevailed (Kesarapu Manikyalu v. Venna
Pertimallaya, AIR 2000 NOC 20 (AP)).
The scribe of a will stated that the will was
scribed by him at the instance of the testator who was in a fit state of health
and mind and that the will was signed by him after it was read over to him.
This statement of the scribe, the court said, amounted to the statement of an
attesting witness. The marginal witness also corroborated the statement of the
scribe. It was immaterial that the attesting witness did not say that he signed
the will in the presence of the executant.[xlix]
07. Execution
'Execution' means not only signing by the
person executing the document but also the attestation of his signature by
witnesses where it requires such attestation (Hari Nath Ghosh v. Nepal
Chandra Ray Chaudhuri, (1937) I Cal 507).
10. PROOF WHERE NO ATTESTING WITNESS WAS FOUND
S. 69. If no such attesting witness can be
found, or if testing witness found, the document purports to have been executed
in the United Kingdom, it must be proved that the attestation of one attesting
witness at least is in his handwriting, and that the signature of the person
executing the document is in the handwriting of that person.
An attesting witness, if available, should be
called in evidence. If the attesting witness is dead, or is living out of the
jurisdiction of the Court or cannot be found after diligent search,[l]
or if the document purports to have been executed in the United Kingdom of
Great Britain and Ireland, two things must be proved:
(I) the signature of one attesting witness,
and
(2) the signature of the executant.
Where the executant of, and all the marginal
witnesses to, a mortgage deed were dead, it was held that the mortgage deed was
sufficiently proved by evidence that the signature of the mortgagor was in his
handwriting and that the signatures of two of the marginal witnesses were in
their handwriting (Uttam Singh v. Hukam Singh, (1916) 39 All 112).
11. ADMISSION OF EXECUTION BY PARTY TO ATTESTED DOCUMENT
S. 70. The admission1 of a party
to an attested document of its execution by himself shall be sufficient proof
of its execution as against him, though it be a document required by law to be
attested.
This section serves as a proviso to s. 68.
The effect of this section is to make the
admission of the executant a sufficient proof of the execution of a document as
against the executant himself, (Jagannath v. Ravji (1922) 24 Bom LR 1296 :
47 Bom 137; Bhagwandas' Dhondidas v. Basawwa (1956) 58 Bom LR 809) even though
it may be a document attestation of which is required by law.( Asharfi Lal
v. Musammat Nannhi (1921) 44 All 127; Raja Ram v. Thakur Rameshwar Bakhsh Singh
(1936) 12 Luck 109) The document is not for that reason binding on other
persons.( Arjun Sahu v. Kelai Rath, (J922) 2 Pat 317) An attested
document means a duly attested one, and the execution that is contemplated in
this section is a due execution or execution in accordance with what the law
requires for a particular document; so, if a question of attestation is put in
issue, it is incumbent on the plaintiff to prove that the document has been
duly attested before this section can be relied on (Davood Rowther v.
Ramanathan Chettiar, (1938) Mad 523).
Scope.- This section operates only where the person relying on a
document has not given any evidence at all of the due execution of the document
by the executant but relies on an admission of execution by the latter. So that
if a mortgagor admits execution of a document in the written statement, it is wholly
unnecessary for the mortgagee to adduce any evidence as to the execution of the
document. It is only in cases where it appears on the face of a document or it
is positively made out by the evidence on record that a document required by
law to be attested has not been attested in accordance with law that this
section cannot be made applicable in spite of the admission of a party to an
attested document of its execution by himself for the simple reason that a
Court cannot shut its eyes to obvious facts appearing on the face of a document
or on the record (Raja Ram v. Thakur Rameshwar Bakhsh Singh, (1936) 12 Luck
109).
01. Admission
The admission here spoken of relates only to
the execution. It must be distinguished from the admissions mentioned in ss. 22
and 65(b) which relate to the contents of a document.
The Calcutta and the Allahabad High Courts
have held that the word 'admission' relates only to the admission of a party in
the course of the trial of a suit, and not to the attestation of a document by the
admission of the party executing it. In other words, it has no relation to any
admission of execution made before an attesting witness without reference to
any suit or proceeding (Abdul Karim v. Salimun, (1899) 27 Cal 190; Raj
Mangal Misir v. Mathura Dubain, (1915) 38 All 1. See Asharfi Lal v. Musammat
Nannhi, (1921) 44 All 127). But the Patna and the Rangoon High Courts have
laid down that an admission under this section is admissible in evidence even
though it be an admission not made in the course of legal proceedings pending
before a Court of Justice, but is an admission made antecedent to the
institution of legal proceedings (Nageshwar Prasad v. Bachu Singh, (1919) 4
PLJ 511, doubted in Musammat Hira Bibi v. Ramdhan Lal, (1921) 6 PLJ 465; Aung
Rhi v. Ma Aung Krwa Pru, (1923) 1 Ran 557). The Madras High Court has
adopted the view of the Calcutta and the Allahabad High Courts and held that
the admission within the meaning of this section must be an admission made for
the purpose of or having reference to the cause either in the pleadings or
during the course of the trial.[li]
12. PROOF WHEN ATTESTING WITNESS DENIES THE EXECUTION
S. 71. If the attesting witness denies or
does not recollect the execution of the document, its execution may be proved
by other evidence.
01. Principle
Where an attesting witness has denied all
knowledge of the matter, the case stands as if there was no attesting witness,
and the execution of the document may be proved by other independent evidence.[lii]
This section only operates if the attesting witness denies or does not
recollect the execution of the document or has turned hostile.[liii]
Under it execution of a document includes attestation (Laksman Sahu v. Gokul
Maharana, (1921) 1 Pat 154. Ram Ratan v. Bittan Kaur, AIR 1980 All 395).
The attestation of a document does not amount
to an admission of its contents by the attesting person unless it can be proved
that the document was read over to him and that he made the attestation
conscious of the statement made in the document (Roop Lal v. Shanker. (1951)
1 Raj 597).
This section is a sort of a safeguard
introduced by the Legislature to the mandatory provisions of s. 68, where it is
not possible to prove the execution of the will by calling attesting witnesses,
though alive. This section can only be requisitioned when the attesting
witnesses who have been called fail to prove the execution of the will by
reason of either their denying their own signatures, or denying the signature
of the testator, or having no recollection as to the execution of the document.
The section has no application when one attesting witness has failed to prove
the execution of the will and other attesting witnesses are available who could
prove the execution if they were called (Vishu Ramkrishna v. Nathu vithal,
(1948) 51 Bom LR 245). Section 71 cannot be so used to as to allow a party
to give a go-buy to the mandate of s. 68 qua the requirement of calling
an attesting witness. Where one attesting witness could not recollect and the
other attesting witness, though available, was not called, it was held that the
will was not proved as the mandatory requirement of s. 68 was not satisfied.[liv]
13. PROOF OF DOCUMENT NOT REQUIRED BY LAW TO BE ATTESTED
S. 72. An attested document not required by
law to be attested may be proved as if it was unattested.
01. Principle
Where the law does not require attestation
for the validity of a document, it may be proved by admission or otherwise, as
though no attesting witnesses existed.
14. COMPARISON OF SIGNATURE WRITING OR SEAL WITH OTHERS ADMITTED OR PROVED
S. 73. In order to ascertain whether a
signature, writing or seal is that of the person by whom it purports to have
been written or made,1 any signature, writing or seal admitted or
proved to the satisfaction of the Court to have been written or made by that
person2 may be compared with the one which is to be proved, although
that signature, writing or seal has not been produced or proved for any other
purpose.
The Court may direct any person present in
Court to write any words or figures3 for the purpose of enabling the
Court to compare the words or figures so written with any words or figures
alleged to have been written by such person.
This section applies also, with any necessary
modifications, to finger impressions.
01. Principle
The provisions of this section will apply
only when a matter is pending before the Court and not otherwise (T. Subbiah
v. Ramaswamy. AIR 1970 Mad 85). The Court may compare the disputed
signature, writing, or seal or a person with signatures, writings or seals
which have been admitted or proved to the satisfaction of the Court to have
been made or written by that person. A Court may rely upon its own comparison
of the signature, writing, or seal, unaided by expert evidence.[lv]
The rule of prudence is that comparison of
signatures by Courts as a mode of ascertaining the truth should be used with
great care and caution (Nagappa Chendappa v. Nannibu, AIR 1960 Mys 220).
The dispute about the genuineness of handwriting or signature should not be
decided by the court merely on the basis of its personal comgarison.[lvi]
This section does not infringe Art. 20(3) of the Constitution of India (State
of Bombay v. Kathi Kalu, (1961) 64 Bom LR 240 (SC)). Thus it was pointed by
the Bombay High Court in a case before it that where the prosecution had failed
to prove that the handwriting and signature on a document were those of the
accused, the court itself comparing the signature on the vakalatnama with
the document would not constitute evidence of signature and much less of handwriting
(Vishwanath Mahadev Karkhania v. State of Maharashtra; 1991 Cr LJ 3146
(Bom)).
Though the court is competent to do so, it
would not normally compare signature of its own (D. Pandi v. Dhanalakshmi
Bank Ltd. AIR 2001 Mad 243).
Although S. 73 specifically empowers the
court to compare the disputed writings with the specimen or admitted writings
shown to be genuine, prudence demands that the court should be extremely slow
in venturing an opinion on the basis of mere comparison, particularly when the
quality of evidence in respect of specimen or admitted writings is not of high
standard or is not beyond doubt.[lvii]
Handwriting can be proved in the following
ways:-
(1) By proof of signature and handwriting of
the person alleged to have signed or written the document (s. 67).
(2) By the opinion of an expert who can
compare handwritings (s. 45).[lviii]
(3) By a witness who is acquainted with the
handwriting of a person by whom it is supposed to have been written and signed
(s. 47).
(4) By comparison of signature, writing or
seal with others admitted or proved (s. 73).
01. By whom it purports to have been written or made
According to the Bombay High Court this
expression means, by whom it is alleged to have been written or made.[lix]
The Calcutta High Court in Barindra Kumar Ghose v. Emperor, (1909) 37
Cal467, 502, 503. See Sarojini Dasi v. Hari Das Ghose, (1921) 49 Cal 235;
Khijiruddin Sonar v. Emperor, (1925) 53 Cal 372 has construed it to mean
that the writing which is in dispute must itself in terms express or indicate
that it was written by the person to whom the writing is attributed. It has
observed that the section "does not sanction the comparison of any two
documents, but requires that the writing with which the comparison is to be
made ...shall be admitted or proved to have been written by the person to whom
it is attributed, and next the writing to be compared with the standard ...must
purport to have been written by the same person, that is to say, the
writing itself must state or indicate that it was written by that person ...a
comparison of handwriting is at all times as a mode of proof hazardous and
inconclusive, and especially when it is made by one not conversant with the
subject and without such guidance as might be derived from the arguments of counsel
and the evidence of experts.”
According to the Bombay view when an
anonymous writing is produced and ascribed by the prosecution to a particular
person, the case for the prosecution must be taken to be that having regard to
the admitted documents, and the comparison between them and the disputed
writing, the prosecution alleges that the disputed document purports to have
been written or made by the accused.[lx]
02. Signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person
Where such signature, writing or seal on a
particular document is not proved or admitted to be genuine, it cannot be
legitimately used for comparing it with the signature, writing or seal or other
documents (Sri Prasad v. Special Manager, Court of Wards, Ba/rampur Estate,
(1936) 12 Luck 400).
Specimen signatures and writings made by an
accused person while he is in the custody of the police and while the police
are investigating into the offence are admissible in evidence at the trial of
the accused for the offence of forgery (Emperor v. Ramrao Mangesh, (1932) 56
Bom 304 : 34 Bom LR 598).
3. 'Court may direct any person present in
Court to write any words or figures'.- This section limits the power of the Court to direct a person present in
Court to write any words or figures only where the Court itself is of the view
that it is necessary for its own purposes to take such writing in order to
compare the words or figures so written with any words or figures alleged to
have been written by such person. The power does not extend to permitting one
or the other party before the Court to ask the Court to take such writing for
the purpose of its evidence or its own case (Punamchand v. State of M.P.,
(1957) 59 Bom LR 1165; R.B. Khajotia v. The State of Maharashtra, (1972) 75 Bom
LR 116). The Court also cannot send such a document to an expert who is a
prosecution witness, but it can call its own expert as a Court-witness (Hiralal
v. State, AIR 1958 Cal 123). The writing obtained by the Court
under this section does not come within the expression 'evidence' (Ram
Swarup v. The State of U.P. AIR 1958 All 119).
A direction to the accused to give a specimen
writing can only be issued by the court holding inquiry under the Criminal
Procedure Code, 1974 or the court conducting the trial of the accused person.
The person under investigation against whom no case is pending cannot be
compelled to provide any specimen. The exercise of this power by anyone else,
for example, as in this case, by the Tehsildar or the Executive Magistrate,
will not be valid even if the accused failed to raise any objection (Sukhvinder
Singh v. State of Punjab, (1994) 5 SCC 152: 1994 SCC (Cri) 1376).
The words "any person present in
Court" may not include an onlooker or a spectator who has come to Court
for purpose of sightseeing or witnessing the proceedings in Court. The words
refer to persons who are parties to a 'cause' pending before the Court and may
include the witnesses of the contesting parties in the cause.[lxi]
A Court can call upon the accused to give his
writing in Court and make it available for comparison by an expert (State of
Mysore v. Gapala Rao. (1953) Mys 697; State v. Parameswaran Pillai, (1952) TC
447). Though, S. 73 does not specifically say as to who could make such a
comparison but reading S. 73 as a whole, it is obvious that it is the Court
which has to make the comparison and it may form the opinion itself by
comparing the disputed and the admitted writings or seek the assistance of an
expert who will put before the Court all the material, together with reasons,
which induced the expert to come to a conclusion that the disputed and the
admitted writings are of one and the same author so that the court may form its
own opinion by its own assessment of the report of the expert based on the data
furnished by the expert. The function of a handwriting expert is to express his
opinion after a scientific comparison of the disputed writing with the admitted
writing with regard to the points of similarity and dissimilarity in the two
sets of writings (Sukhvinder Singh v. State of Punjab. (1994) 5 SCC 152.
162. 163: 1994 SCC (Cri) 1376). A Court has power to direct an accused
person, present in Court to make his finger impression for the purpose of
comparison with another impression supposed to have been made by him (King-Emperor
v. Tun Hlaing, (1923) 1 Ran 759 FB; Zahuri Sahu v. King-Emperor. (1927) 6 Pat
623). In addition s. 165 enables the Court to call any person if it is of
opinion that his evidence is necessary for proper decision (State (Delhi
Admn.) v. Pali Ram. 1979 CrLJ 17 : 1979 MU(Cr) 850).
Where a person denied that he was married to
the complainant and a letter supposed to have been written by him which had a
bearing on the fact of marriage was also denied by him, the direction by the
Court requiring him to give a specimen of his handwriting was held to be proper
(Kumaran Nair v. Bhargavi, 1988 CrLJ 1000 Ker). Where in a case for
enforcement of bank guarantee, the guarantor pleaded that his signature was
forged, his specimen signatures which were admitted by him, were there on
acknowledgement slip and summons, the court said that it was not necessary to
ask him to give his specimen signature in the open court New Bank of India
v. Sajitha Textiles. AIR 1997 Ker201.
A person required by the Court to give a
specimen may refuse to do so. There is no element of compulsion in it. The only
consequence of non- compliance is that the Court is free to draw an adverse
presumption under s. 144 (Sushi Bhusan v. S.B.I. AIR 1986 Ori 218).
Where the plaintiff refused to give his signature in court for comparison, the
court refused to accept the prayer that a presumption should be drawn against
him under S. 114. The court said a person could not be compelled to provide a
specimen of his handwriting or signature because that would tantamount to
asking him to become a witness against himself. It would be violative of
Article s. 20(3) of the Constitution.
The High Court did not accept this approach. It said that such approach
can be adopted only in reference to persons accused of a crime and would not
extend to parties and witnesses in a civil proceeding (Shyam Sundar
Chowkhani v. Kajal Kanti Biswas, AIR 1999 Gau 101).
The Court can direct even a stranger to the
suit to write something. The son of a party was so directed in this case (Dinanth
v. Sukhdeo, AIR 1980 Pat 253). The Court cannot take specimen handwriting
at the stage of investigation. There must be a case before it.[lxii]
Comparing of disputed signatures on the
counter foils by the High Court Judge without the aid of an expert or person
conversant with disputed signatures was held to be illegal (Bharathan v. K.
Sudhakaran, AIR 1996 SC 1140: 1996(2) SCC 704 relying on State (Delhi Admn.) v.
Pali Ram. AIR 1979 SC 14: 1979 Cr LJ 17). Where the trial court formed the
opinion that the signature on the document in question was that of the
plaintiff and, without considering any other evidence, based the decision on
its own comparison, it was held that this approach was not proper (Shyam
Sundar Chowkhani v. Kajal Kanti Biswas, AIR 1999 Gau 101). Expert opinion
should be obtained as a rule of prudence. The court should give cogent reasons
for its conclusions (Ashok Kumar Uttamchand Shah v. Patel Mohmad. AIR 1999
Guj 108).
In order to secure evidentiary value to
footmarks, it is not enough to show that the footmarks tally with the shoes of
the accused. The evidence must go further and show that the marks have some
peculiarity which is found in the shoes of the accused and will not be found in
most other shoes (Emperor v. Bhika Gober. (1943) 45 Bom LR 884: (1944) Bom
25). The Court cannot be told not to exercise the power under the section
only because it is hazardous to do so. The Court is not thereby assuming the
role of an expert.[lxiii]
CHINAPPAREDDY J said at P 537: The argument
that the court should not venture to compare writings itself, as it would
thereby assume to itself the role of an expert is entirely without force.
Section 73 expressly enables the court to compare disputed writings with
admitted or proved writings to ascertain whether a writing is that of the
person by whom it purports to have been written. If it is hazardous to do so,
we are afraid, it is one of the hazards to which judges and litigants must
expose themselves whenever it becomes necessary. There may be cases where both
sides call experts and the voices of science are heard. There are cases where
neither side calls an expert, being available to afford him. In all such cases
it becomes the plain duty of the court to compare the writings and come to its
own conclusion. The duty cannot be avoided by recourse to the statement that
the court is no expert. Where there are expert opinions, they will aid the
court. Where there is none, the court will have to seek guidance from some
authoritive text book and the court's own experience and knowledge. But it
must, discharge the plain duty, with or without expert. We may mention that Shashi
Kumar v. Subodh Kumar AIR 1964 SC 529 and Fakhruddin v. State of M.P.
AIR 1967 SC 1326: 1967 Cr LJ 1197, were cases where the court itself
compared the writings. Section 73 does not make any difference between civil
and criminal proceedings. In neither case does the section authorise the court
to ask the prisoner to provide a specimen of his handwriting at the stage of
investigation itself (State of U.P. v. Ram Babu Misra. AIR 1980 SC791:
(1980) 2 SCC 343).
Specimen handwriting of stranger.-The Patna High Court in Dinanath v. Sukhdeo,
AIR 1980 Pat 253 directed the defendant's son who was present in
the court to give a sample of his handwriting, though he was not a party to the
case. The court said: "The language (of the section) is wide in terms and
empowers the court to give necessary directions to any person present in the
court and there does not appear to be any reason to limit the expression
"any person" to parties to the litigation. If the authenticity of a
writing by a stranger is necessary to be decided in a case, such a person must
come within the sweep of the section. Even if the meaning of the provision be
assumed to be ambiguous, the court must construe it in a way which may advance
the object of the section and the interest of justice."
15. PROOF AS TO VERIFICATION OF DIGITAL SIGNATURE
[lxiv][S.73A. In order to ascertain whether a digital
signature is that of the person by whom it purports to have been affixed, the
Court may direct-
(a) that person or the Controller or the
Certifying Authority to produce the Digital Signature Certificate;
(b) any other person to apply the public key
listed in the Digital Signature Certificate and verify the digital signature
purported to have been affixed by that person.
Explanation.-For the purposes of this section,
"Controller" means the Controller appointed under sub-section (1) of
section 17 of the Information Technology Act, 2000]
01. Information Technology Act, 2000.-Proof of digital signature [Sn 73A]
For the purpose of ascertaining whether a
digital signature is that of the person by whom it purports to have been
affixed, the court may direct that person or the controller or the certifying
authority have to produce the digital signature certificate. The court may also
direct any other person to apply the public key listed in the digital signature
certificate and verify the digital signature purported to have been affixed by
that person. For this purpose the "controller" means the controller
appointed under s. 17( 1) of tile Information Technology Act, 2000.
16. PUBLIC DOCUMENTS
S. 74. The following documents are public
documents:-
(1) documents forming the acts or records of
the acts.1
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative,
judicial and executive, of any part of India or of the Commonwealth, or of a
foreign country;
(2) public records kept in any State of
private documents.2
Documents are divided into two categories:
public and private.
This section states what comes in the
category of public documents. Section 75 states that all other documents are
private.
Certain modes of proof are prescribed in
regard to public documents as distinguished from private documents.
Sections 74-78 deal with (a) the nature of
public documents, and (b) the proof which is to be given of them. Section 74
defines their nature; and ss. 76-78 deal with the exceptional mode of proof
applicable in their case. The proof of private documents is subject 10 the
general provisions of the Act relating to the proof of documentary evidence
contained in ss. 71-73.
"There are several exceptions to the
rule which requires primary evidence to be given ...The most important and
conspicuous exception, however, is with respect to the proof of records, and
other public documents of general concernment; the objection to producing which
rests on the ground of moral, not physical inconvenience. They are,
comparatively speaking, not liable to corruption, alteration, or
misrepresentation,-the whole community being interested in their preservation,
and, in most instances, entitled to inspect them; while private writings, on the
contrary, are the objects of interest but to few, whose property they are, and
the inspection of them can only be obtained, if at all, by application to a
Court of justice. The number of persons interested in public documents also
renders them much more frequently required for evidentiary purposes; and if the
production of the originals were insisted on, not only would great
inconvenience result from the same documents being wanted in different places
at the same time, but the continual change of place would expose them to be
lost, and the handling from frequent use would soon ensure their destruction.
For these and other reasons the law deems it better to allow their contents to
be proved by derivative evidence, and to run the chance, whatever that may be,
of errors arising from inaccurate transcription, either intentional or casual.
But, true to its great principle of exacting the best evidence that the nature
of the matter affords, the law requires this derivative evidence to be of a
very trustworthy kind, and has defined, with much precision, the forms of it
which may be resorted to in proof of the different sorts of public
writings."[lxv]
Public documents from an exception to the hearsay
rule and their admissibility rests on the ground that the facts contained
therein are of public interest and the statements are made by authorized and
competent agents of the public in the course of their official duty.
01. Documents forming the acts or records of the acts
“The word 'acts' in the phrase 'documents
forming the acts or records of the acts' is used in one and the same sense. The
act of which the record made is a public document must be similar in kind to
the act which takes shape and form in a public document. The kind of acts which
section 74 has in view is indicated by section 78. An electoral roll is public
document. It requires no formal proof. Certified copies are enough proof (Naladhar
Muhapaira v. Seva Dibya, AIR 1991 Ori 166). The acts there mentioned are
all final completed acts as distinguished from acts of a preparatory or
tentative character. The inquiries which a public officer may make, whether
under the Criminal Procedure Code or otherwise, mayor may not result in action.
There may be no publicity about them. There is a substantial distinction between
such measures and the specific act in which they may result. It is to the
latter only ...that section 74 was intended to refer (Queen·Empress v.
Arumugam, (1897) 20 Mad 189, 197 FB).
Statements recorded by police officers under
S. 161 Cr PC are required by s. 115 (5) and (7), read together, to be furnished
to the accused. Hence all the earlier case, before this provision was enacted
in the Cr PC, 1973, which regarded such statements as public documents entitled
to the privilege against disclosure under S. 123 of Evidence Act became out of
date since then (Ram Jethmalani v. Director CBI. 1987 Cr LJ 570 (Del)).
A document which is brought into existence as
a result of a survey, inquiry or inquisition carried out or held under lawful
authority is not admissible In evidence as a public document unless the inquiry
was a judicial or quasi-judicial inquiry and the document is not only available
for public inspection, but was brought into existence for that very purpose.
The statements in a document tendered in evidence as a public document should
be statements with regard to matters which it was the duty of the public
officer holding the inquiry to inquire into and report on.[lxvi]
Records maintained by revenue officers relating to land revenue, survey and
settlement, etc. are public documents. ‘Pahanies” and 'faisal patties'
are public documents (K. Pedda Jangaiah v. Mandai Revenue Officer, Moinabad,
1996 AIHC 1006 (AP)). The documents issued by the concerned Government
Department indicating salary and allowances of a deceased employee, does not
require corroboration or any evidence to prove them and can be received as
additional evidence by the appellate court (Subhandra Kumari v. Lallu Ram,
AIR 1996 Del 64).
A document which purports to be a letter or
report of an executive official is not a public document (Fail Ahmad v.
Crown, (1913) PR No. I of 1914 (Cr)).
02. Published Scheme under Statute
A scheme was published in the Official
Gazette under the Electricity Supply Act, 1948. The scheme envisaged
installation of overhead transmission lines. The scheme had thus become a
public document. The Notification had the effect of law under the provisions of
the constitution. No adverse presumption could be drawn against a party for his
failure to produce the document in the court (Vijay Kumar S. Rajput v. MC of
Greater Bombay, AIR 2000 Cal 197).
Orders of civil court, FIR.- Certified copies of the orders of the civil court orders and FIR
were allowed to be submitted because they are all public documents. They were
admissible in evidence under S. 77 (Md. Akbar v. State of A.P., 2002 Cri LJ
3167 (AP)).
03. Executive officer
A school master comes within the purview of
'executive officer' and a copy of a certificate given by him is admissible in
evidence if properly certified (Maharaj Bhanudas v. Krishnabai, (1926) 28
Bom LR 1225, 50 Bom 716). The check memo which is required to be maintained
by the officers in charge of the counting table is a document forming record of
the acts of public officers and, therefore, a certified copy given by the
collector in whose custody the document is kept can be admitted in evidence in
proof of the contents of the original document (Banamli Das v. Rajendra
Chandra, AIR 1975 SC 1863: 1976(1) SCC 54).
04. Marriage register
Hindu Marriage Register has been held to be a
public document. Its contents were, therefore, provable by producing certified
copies (Manjula v. Mani, 1998 Cri LJ 1476 (Mad)). Where the documentary
evidence based in the official registration of marriage was produced, it was
accepted as a proof of marriage for award of interim maintenance. The
contrary evidence produced by the husband in the shape of Ration Card and the
Voters List did not show any date of marriage of the accused with any other
person (Kashi Nath Naskar v. Aparupa Naskar, 2003 Cri LJ1201 (Cal)).
A death certificate was issued by a police
station. The death was not unnatural. A set of police officers, who prepared
the panchanama, it could not be said of them that they did so in discharge of
official duty enjoined upon them. No reasons were given for placing the matter
on record. The certificate could not also be described as a part of a public
record. Hence, the certificate was of weak evidentiary value. Its rejection
from evidence was not improper.[lxvii]
05. Public records kept in any state of private documents
This clause refers to public records or
original will and of registered documents. According to the Bombay High Court
an income-tax return is not a public document or a public record of a private
document (Devidatt v. Shriram; (1931) 34 Bom LR 236, 56 Bom 324. Same is the
view of the Rangoon High Court: Anwar Ali v. Tafozal Ahmed, (1924) 2 Ran 391).
Similarly, the Calcutta High Court has held that certified copies of assessment
or dues and order sheets are inadmissible in evidence (Pramatha Nath
Pramanik v. Nirode Chandra Ghosh, (1939) 2 Cal 394). The Madras
High Court has held that an income-tax return or a statement filed in support
of it is a public document and certified copies will be admissible under s. 65
(c) (Rama Rao v. Venkataramayya, (1940) Mad 969 FB). Memorandum of
Association of a company is a public document within the meaning of this
section (Binani Properties v. G.A. Hossein & Co., AIR 1967 Cal 390).
Electoral roll prepared under the Representation of the People Act is a public
document (Kirtan v. Thakur, AIR 1972 Ori 158). A plaint or a written
statement filed in a case is not a public document (Gulab Chand v. Shea
Karan Lall, AIR 1964 Pat 45. But for a contrary view see Jagdishchandra v.
State of Gujarat, 1989 Cr LJ 1724 (Guj)). An agreement between a Maharaja
and Government setting up a Gurudwara as a public trust and the Government
setting a scheme of constituting a Temples' Board of Management including the
Gurudwara, is a part of public records-s-a public document and, therefore,
needs no formal proof (Kabul Singh v. Ram Singh AIR 1986 All 75). So is
true of a wakf deed (Fazal Sheikh v. Abdur Rahman AIR 1991 Gau
17) and a sale deed (Jagdishchandra v. State of Gujarat, 1989 Cr LJ 1724
(Guj)) which are private documents but are recorded with the sub-registrar.
In a case of this kind, a Division Bench of
Gauhati High Court in Narauam Das v. Md. Masadharali, (1991) 1 Gau LR 197
(DB) explained the status of such documents in these words: 'Public records
are those records which a Government unit is required by law witch it is necessary
to keep in discharge of duties imposed by law. A public record is one required
by law to be kept, or necessary to be kept in the discharge of a duty imposed
by law, or directed by law to serve as a memorial and evidence of something
written, said or done. Therefore, a private document would be a 'public record'
within the meaning of S. 74 if the private document is filed and the public
official is required to keep it for a memorial or permanent evidence of
something written, said or done.
The Gauhati High Court has held that a
registered power of attorney is not a public document and, therefore, a
certified copy cannot be admitted as equivalent to primary evidence. It would
rank as a secondary evidence and would be admissible only when any of the
categories of admissibility under s. 65 is proved to be available (Bidhan
Paul v. Paresh Chandra Ghose, AIR 2002 Gau 46). Explaining the reason, the
court said in the above case that the Registration Act, 1908 provides for
registration of documents and the method of registration is that the contents
of documents are copies in a book maintained in the office of the sub-Registrar
which is commonly called the "Volume Book". Thus the book contains
only copies of documents and not original documents. Documents so registered do
not become public documents. Only those public records which keep private
documents and not copies of private documents are treated as public documents.[lxviii]
06. Medico-legal report
In a medico-legal case, the medical officer
prepares the (MLC) report as a public servant in discharge of his duties and
the (MLC) report is a public document, the contents of which are admissible in
eVldence (Dalip Kumar v. State, 1995 Cr LJ 1742 (Del)). Neither the
post-mortem report nor any certificate issued by the doctor regarding the date
of death, is a public document and they must be proved by the doctor concerned
(State v. Bhola Pal. 1995 Cr LJ 3717 (Cal)).
The document furnished to the Press Council
of India by organizations in order to substantiate their claims to be
recognized by the Press Council, are public documents and are open to
inspection (lndian Federation of S. & M. Newspapers v. Press Council of
India AIR 1996 Del 90).
07. School register
The age of the accused had to be determined for the purposes of the Juvenile
Justice Act, 1985. There was a concurrent finding of courts below that he was
of the age between 19-20 years and, therefore, not a juvenile. This finding was
based upon the report of the Medical Board. The doctor who examined the accused
was not produced as a witness. The school leaving certificate showed the age to
be 15 years. No evidence was produced to show that the certificate was wrong.
The school records could not be doubted for the fact that the admission
register was not signed by the father of the accused (Prem Chand Sao v.
State of Jharkhand 2003 Cri LJ NOC 66 (Jhar)).
08. Records of nationalized banks
Records of nationalized banks have been taken
to be in the category of public documents. They are, therefore, admissible
without further proof. The examination of the person who prepared the document
which is being offered in evidence is not necessary (Gorantla Yenkateshwarlu
v. B. Demudu, AIR 2003 AP 251).
17. PRIVATE DOCUMENTS
S.75 All other Documents are Private
Documents which are not public documents are
private documents eg. contracts, leases, mortgage deeds etc.
18. CERTIFIED COPIES OF PUBLIC DOCUMENTS
S. 76. Every public officer having the custody
of a public document, which any person has a right to inspect, shall give that
person on demand a copy of it on payment of the legal fees therefor, together
with a certificate written at the foot of such copy that it is a true copy of
such document or part thereof, as the case may be, and such certificate shall
be dated and subscribed by such officer with his name and his official title,
and shall be sealed, whenever such officer is authorized by law to make use of
a seal, and such copies so certified shall be called certified copies.
Explanation.-Any officer who, by the ordinary course of
official duty, is authorized to deliver such copies, shall be deemed to have
the custody of such documents within the meaning of this section.
This section provides the means of proof of
public documents which any person has a right to inspect. There is a common law
right of a person to take inspection of a document in which that person is
interested for the protection of such interest (Shamdasani v. Sir Hugh
Cocke. (1941) 43 Bom LR 961 : (1942) Bom 71). The person claiming interest
in the specified land can not be refused certified copies of 'pahanies' and
'faisal patties' on the ground that the land in question is classified in the
revenue records as Government land (K. Pedda Jangaian v. Mandal Revenue
Officer, Moinabad, 1996 AIHC 1006 (AP)).
The section requires that a copy of a public
document given by a public officer should bear a certificate written at the
foot of such copy that it is a true copy of such document. Where a copy bears
no certificate and it is not supported by the evidence of the person who
prepared it, it is not admissible in evidence (Khadim Ali v. Jagannath,
(1940) 16 Luck 230). But a carbon copy of the Court order issued in
official process but not marked as "true copy” was allowed in evidence.[lxix]
19. PROOF OF DOCUMENTS BY PRODUCTION OF CERTIFIED COPIES
S. 77. Such certified copies may be produced
in proof of the contents of the public documents or parts of the public
documents of which they purport to be copies.
In reference to a claim for compensation
before the Accident Claims Tribunal, the Rajasthan High Court held that the
Tribunal has to follow summary procedure without insisting upon strict
compliance of the provisions of the Evidence Act. The court said that certified
copies of the FIR, inspection map, site inspection memo, panchanama, injury
report or post mortem report and other relevant documents produced by police
officer or doctor while discharging official duties should have been admitted
in evidence without any formal proof (Rajasthan State Road Transport Corpn.
v. Nand Kishore, AIR 200 1 Raj 334).
In a compensation claim for land acquisition,
comparable sales method was adopted for working out the compensation amount. It
was held that certified copy of a registered agreement of sale was admissible
without examining the parties to the document (State of Haryana v. Ram
Singh, AIR 200 1 SC 2532).
20. PROOF OF OTHER OFFICIAL DOCUMENTS
S. 78 The following public documents may be
proved as follows:-
(1) Acts, orders or notifications of the
Central Government in any of its departments, or of the Crown Representative or
of any State Government or any department of any State Government,-
by the records of the departments, certified
by the heads of those departments respectively, or by any document purporting
to be printed by order of any such Government or, as the case may be, of the
Crown Representative;
(2) the proceedings of the Legislatures,-
by the journals of those bodies respectively,
or by published Acts or abstracts, or by copies purporting to be printed by
order of the Government concerned;
(3) proclamations, orders or regulations
issued by Her Majesty or by the Privy Council, or by any department of Her
Majesty's Government,-
by copies or extracts contained in the London
Gazette, or purporting to be printed by the Queen's Printer;
(4) the Acts of the Executive or the
proceedings of the Legislature of a foreign country,-
by journals published by their authority, or
commonly received in that country as such, or by a copy certified under the
seal of the country or sovereign, or by a recognition thereof in some Central
Act;
(5) the proceedings of a municipal body in a
State,-
by a copy of such proceedings, certified by
the legal keeper thereof, or by a printed book purporting to be published by
the authority of such body;
(6) public documents of any other class in a
foreign country,-
by the original, or by a copy certified by
the legal keeper thereof, with a certificate under the seal of a notary public,
or of an Indian Consul or diplomatic agent, that the copy is duly certified by
the officer having the legal custody of the original, and upon proof of the
character of the document according to the law of the foreign country.
78-A. Copies of public documents, to be as
good as original documents in certain cases.-
Notwithstanding anything contained in this
Act or any other law for the time being in force, where any public documents
concerning any areas within West Bengal have been kept in Pakistan, then copies
of such public documents shall, on being authenticated in such manner as may be
prescribed from time to time by the State Government by notification in the
Official Gazette, be deemed to have taken the place of, and to be, the original
documents from which such copies were made and all references to the original
documents shall be construed as including references to such copies."
This section specifies the various ways in
which the contents of a public document can be proved. The word 'may' is used
only as denoting a mode of proof other than the ordinary one, namely, the production
of the original. For, when the Original is a public document within the meaning
of S.74, a certified copy of the document, but no other kind of secondary
evidence, is admissible.[lxx]
21. PRESUMPTIONS AS TO DOCUMENTS
There are certain presumptions in respects of
documentary evidence which ar5e reproduced below.
01. Presumption that a certificate, certified copy or other document, to be genuine
S. 79. The Court shall presume to be genuine
every document purporting to be a certificate, certified copy or other
document, which is by law declared to be admissible as evidence of any
particular fact and which purports to be duly certified by any officer of the
Central Government or of a State Government, or by any officer in the State of
Jammu and Kashmir who is duly authorised thereto by the Central Government:
Provided that such document is substantially in the
form and purports to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer
by whom any such document purports to be signed or certified, held, when he
signed it, the official character which he claims in such paper.
Sections 79 to 90 deal with certain presumptions
as to documents. This section proceeds upon the maxim omnia proesumuntur
rite esse acta (all acts are presumed to be rightly done). In fact all the
following sections down to s. 90 inclusive, are illustrations of, and founded
upon, this principle. But though the Courts are directed to draw presumption in
favour of official certificates it is not a conclusive presumption.
02. Presumption as to Documents Produced as Record of Evidence
S. 80. Presumption as to documents produced as record of evidence
Whenever any document i.e. produced
before any Court, purporting to be a record or memorandum of the evidence, or
of any part of the evidence, given by a witness in a judicial proceeding or
before any officer authorized by law to take such evidence or to be a statement
or confession by any prisoner or accused person, taken in accordance with law,
and purporting to be signed by any Judge or Magistrate or by any such officer
as aforesaid, the Court shall presume –
that the document is genuine;
that any statement as to the circumstances under which it was taken, purporting
to be made by the person signing it, and that such evidence, statement or
confession was duly taken.
03. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents
S. 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents
The Court shall presume the
genuineness of every document purporting to be the London Gazette or [any
Official Gazette, or the Government Gazette ] of any colony, dependency or
possession of the British Crown, or to be a newspaper or journal, or to be a
copy of a private Act of Parliament [of the United Kingdom] printed by the
Queen’s Printer and of every document purporting to be a document directed by
any law to be kept by any person, if such document is kept substantially in the
form required by law and is produced from proper custody.
04. Presumption as to Gazettes in electronic forms
S. 81A. Presumption as to Gazettes in electronic forms
The Court shall presume the
genuineness of every electronic record purporting to be the Official Gazette,
or purporting to be electronic record directed by any law to be kept by any
person, if such electronic record is kept substantially in the form required by
law and is produced from proper custody.]
05. Presumption as to document admissible in England without proof of seal or signature
S. 82. Presumption as to document admissible in England without proof of seal or signature
When any document is produced before
any Court, purporting to be a document which, by the law in force for the time
being in England or Ireland, would be admissible in proof of any particular in
any Court of justice in England or Ireland, without proof of the seal or stamp
or signature authenticating it, or of the judicial or official character
claimed by the person by whom it purports to be signed, the Court shall presume
that such seal, stamp or signature is genuine, and that the person signing it
held, at the time when he signed it, the judicial or official character which
he claims, and the document shall be admissible for the same purpose for which
it would be admissible in England or Ireland.
06. Presumption as to maps or plans made by authority of Government
S. 83. Presumption as to maps or plans made by authority of Government
The Court shall presume that maps or
plans purporting to be made by the authority of [ the Central Government or any
State Government ] were so made, and are accurate; but maps or plans made for
the purposes of any cause must be proved to be accurate.
07. Presumption as to collections of laws and reports of decisions
S. 84. Presumption as to collections of laws and reports of decisions
The Court shall presume the
genuineness of every book purporting to be printed or published under the
authority of the Government of nay country, and to contain any of the laws of
that country and of every book purporting to contain reports of decisions of
the courts of such country.
08. Presumption as to powers-of-attorney
S. 85. Presumption as to powers-of-attorney
The Court shall presume that every
document purporting to be a power-of- attorney, and to have been executed
before, and authenticated by, a notary public, or any Court, Judge, Magistrate,
[Indian] Consul or Vice- Consul, or representative [***] of the [Central
Government], was so executed and authenticated.
09. Presumption as to electronic agreements
85A. Presumption as to electronic agreements.
The Court shall presume that every
electronic record purporting to be an agreement containing the digital
signature of the parties was so concluded by affixing the digital signature of
the parties.
10. Presumption as to electronic record and digital signatures
S. 85B. Presumption as to electronic record and digital signatures
(1) In any proceedings involving a
secure electronic record, the Court shall presume unless contrary is proved,
that the secure electronic record has not been altered since the point of time
to which the secure status relates.
(2) In any proceedings,
involving secure digital signature, the Court shall presume unless the contrary
is proved that-
(a) the secure digital signature
is affixed by subscriber with the intention of signing or approving the
electronic record;
(b) except in the case of a
secure electronic record or a secure digital signature, nothing in the section
shall create any presumption relating to authenticity and integrity of the
electronic record or any digital signature.
11. Presumption as to Digital Signature Certificates
S. 85C. Presumption as to Digital Signature Certificates
The Court shall presume, unless
contrary is proved, that the information listed in a Digital Signature
Certificate is correct, except for information specified as subscriber
information which has not been verified, if the certificate was accepted by the
subscriber.]
12. Presumption as to certified copies of foreign judicial records
S. 86. Presumption as to certified copies of foreign judicial records
The Courts may presume that any
document purporting to be a certified copy of any judicial record of [[***] any
country and not forming part of India or] of Her Majesty’s dominions is genuine
and accurate, if the document purports to be certified in any manner which is
certified by any representative of [***] the [Central Government ] [in or for]
[such country] to be the manner commonly in use in [that country] for the
certification of copies of judicial records.
[An Officer who, with respect to [***]
any territory or place not forming part of [India or Her Majesty’s dominions,
is a Political Agent therefor, as defined in section 3, [clause (43), of the
General Clause Act, 1897, shall, for the purposes of this section, be deemed to
be a representative of the [Central Government] [ in and for the country]
comprising that territory of place.
13. Presumption as to books, maps and charts
S. 87. Presumption as to books, maps and charts
The Courts may presume that any book
to which it may refer for information on matters of public or general interest,
and that any published map or chart, the statements of which are relevant facts
and which is produced for its inspection, was written and published by the
person and at the time and place, by whom or at which it purports to have been
written or published.
14. Presumption as to books, maps and charts
S. 88. Presumption as to books, maps and charts
The Court may presume that a message,
forwarded from a telegraph office to the person to whom such message purports
to be addressed, corresponds with a message delivered for transmission at the
office from which the message purports to be sent; but the Court shall not make
any presumption as to the person by whom such message was delivered for
transmission.
15. Presumption as to electronic messages
S. 88A. Presumption as to electronic messages
The Court may presume that an
electronic message forwarded by the originator through an electronic mail
server to the addressee to whom the message purports to be addressed
corresponds with the message as fed into his computer for transmission; but the
Court shall not make any presumption as to the person by whom such message was
sent.
Explanation.- For the purposes of this section, the
expressions "addressee" and "originator" shall have the
same meanings respectively assigned to them in clause (b) and (za) of
sub-section (1) of section 2 of the Information Technology Act, 2000.]
16. Presumption as to due execution, etc., of documents not produced
89. Presumption as to due execution, etc., of documents not produced
The Court shall presume that every
document, called for and not produced after notice to produce, was attested,
stamped and executed in the manner required by law.
17. Presumption as to documents thirty years old
90. Presumption as to documents thirty years old
Where any document, purporting or
proved to be thirty years old, is produced from any custody which the Court in
the particular case considers proper the Court may presume that the signature
and every other part of such document, which purports to be in the handwriting
of any particular person, is in that person’s handwriting, and, in the case of
document executed or attested, that it was duly executed and attested by the
persons by whom it purports to be executed and attested.
Explanation – Documents
are said to be in proper custody if they are in the place in which, and under
the care of the person with whom, they would naturally be; but no custody is
improper if it is proved to have had a legitimate origin, or the circumstances
of the particular case are such as to render such an origin, probable.
This explanation applies also to
section 81.
Illustrations
(a) A has been in possession of
landed property for a long time. He produces from his custody deeds relating to
the land showing his titles to it. The custody is proper.
(b) A produces deeds relating to
landed property of which he is the mortgagee. The mortgagor is in possession.
(c) A, a connection of B,
produces deeds relating to lands in B’s possession, which were deposited with
him by B for safe custody. The custody is proper.
18. Presumption as to electronic records five year old
S. 90A. Presumption as to electronic records five year old
Where any electronic record,
purporting or proved to be five years old, is produced from any custody which
the Court in the particular case considers proper, the Court may presume that
the digital signature which purports to be the digital signature of any
particular was so affixed by him or any person authorized by him in this
behalf.
Explanation.- Electronic
records are said to be in proper custody if they are in the place in which, and
under the care of the person with whom, they naturally be; but no custody is
improper if it is proved to have had a legitimate origin, or the circumstances
of the particular case are such as to render such an origin probable.
This Explanation applies also to
section 81A.]
09. CONCLUSION
The
law relating to documentary evidence is very complex in nature and it is
supplemented by numerous Supreme Court and high Court Judgments. Each type of
documentary evidence is recognized and their legal implications are dealt with in
the corpus of Evidence Act. A Study in this regard only suggests that the
conflicting or rather confusing versions of interpretations need by taken by
the Apex Court and adequate judicial law making should be made in this legal
branch of law of evidence, as far as documents are concerned.
BIBLIOGRAPHY
1. Justice Y V Chandrachud and V R Manohar, Ratanlal and
Dhirajlal’s The Law of Evidence (Act I of 1872), Wadhwa & Company, Nagpur,
21st Edition, Reprint 2008
5. https://en.wikipedia.org/wiki/Main_Page
NOTES
[i] Article 6 of the European
Convention for the prosecution of Human Rights and Fundamental Freedoms, 1950
so far as material, provides: '1. In the determination ... of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.
[ii] The court distinguished R. v.
Central Criminal Court, ex p Behbehani, (1994) Crim LR 352
[iii] A copy of Municipal record not
issued in accordance with the requirements of the Municipal Act is not
relevant. Ganesh Pd. v. Badri Pd., AIR 1980 Al1361. Certified copy of a
registered deed is provable, but not a copy which was prepared while the deed
was presented for registration. Kalyan Singh v. Chhoti, AIR 1990 SC 396;
1990 ALR 155: 1990(1) SCC 266; Land Acquisition Officer v. N. Yenkata Rao, AIR
1991 AP 31, copies issued by sub- registrar, secondary evidence.
[iv] K. Shivalingaian v. B. V.
Chandrashekara Gowda. AIR 1993 Kant 29; Bidhan Paul v. Paresh
Chandra Ghose, AIR 2002 Gau 46, a power of attorney registered with the
sub-Registrar has been held to be not a public document. A certified copy of
such record is a secondary evidence.
[v] J. Patel & Co. v.
National Federation of Industrial Co-op. Ltd., AIR 1996 Cui 253; Ramesh
Verma v, Sajesh Saxena, AIR 1998 MP 46, on admissibility of
photocopies. Rajasthan Golden Transport Co. v. Amritlal, AIR 1998 Raj
153, photocopy of an assessment order produced, neither any opportunity was
given to the witness to prove the original, nor there was anything to show that
the photocopy was made from the original, the order permitting photocopy to be
produced was held to be not proper.
[vi] Mahadeva Royal v. Yirabasava
Royal. (1948) 50 Bom LR 638 PC; Badrunnisa Begum v. Mohamoodu
Begum. AIR 2001 AP 394, a copy of a copy of a document not compared with
the original document was held to be not admissible in evidence. A decree based
on such a copy of a copy was held liable to bet aside.
[vii] Lachcho v. Dwari Mal. AIR 1986
All 303. See also Balbir Singh v. Stale of Haryana, AIR 1987 SC 1053: 1987 Cr
LJ 853 : (1987) I SCC 533 : 1987 SCC (Cri) 193, where a police report was
prepared on the basis of rough notes which were not produced, no importance
given to the report.
[viii] Idandas v. Ananl Ram Chandra,
AIR 1982 SC 127: 1982(1) SCC 27: (1982) I SCR 1197; Minati Sen v. Kalipada
Ganguly AIR 1997 Cal 386, counter-foil of a rent payment receipt did not show
any sub-tenancy, even otherwise there was no proof of sub-tenancy.
[ix] Swaran Singh v. Narinder Kaur,
AIR 2002 P&H 40. A similar approach was adopted in Bihari Lal v. Ram Piari,
(1999) 2 Punj LJ 213 and Sinnu v. Pali, (1992) 1 Punj LR 378; 1992 Punj LR 74;
MukhtiarSinghv. Baint Singh; (1991) 1 Punj LR 15; 1991 Punj LJ 143, a photo
copy of the original will permitted as secondary evidence. The same view was
taken in Raj Kumari v. Shri Lal Chand. (1994) 1 Punj LR 190. The decision in
Roman Catholic Mission v. State of Madras AIR 1966 SC 1457; (1966) 3 SCR 283
was held to be not applicable at this stage
[x] WIGMORE ON EVIDENCE, para790 (3rd
ed. 1940, Vol.3)
[xi]
HOLT Ch. of Q.S. in Travers. (1958) SR (NSW) 87 at p. 96; reported in
EDWARDS, CASES ON EVIDENCE IN AUSTRALIA. p 317 (1968). Also see Harry Parker
Ltd. v. Mason. (1940)5 KB 590; R. v. Mills and Rose. (1952) 1 WLR
1152; 42 Cr. App. R. 336 and R. v. Maqsood Ali; (1966) 1 QB 686, in both
these cases tape-recorded statements were received in evidence.
[xii] Best, 12th Edn, s. 223, p. 209;
Balbahadar Prasad v. The Maharajah of Betia, (1887) 9 All 351,356; K. Anjaneya
Setty v. K.H. Rangiah Setty, AIR 2002 Kant 387, where a document is not
admissible for one reason or another, the court can decide at the final hearing
as to whether it can be looked at for collateral purposes.
[xiii] Where there is documentary
evidence, oral evidence is not entitled to any weight, Murarka Properties P.
Ltd. v. Beharilal Murarka, AIR 1978 SC 300: 1978(1) SCC 109
[xiv] Butu Naik v. Saraswati Devi, AIR
1998 Ori 119. Sunil Kumar v. Anguri Choudhari, AIR 2003 NOC 105 (MP) : 2002
AIHC 3869, the document was neither photocopy, nor true copy of the original.
nor compared with the original, not a secondary evidence as defined in s. 63.
[xv] Abdul Rasack v. Ma U, (1898) 2
UBR (1897-1901) 382. Secondary evidence was not allowed where the primary was
on record. Kirpal Singh v. Kartaro, AIR 1980 Raj 213. Oriental Fire &
General Ins. Co. v. Chandrawali, AIR 1989 P&H 300. a copy of the original
policy produced without making out any exception, held liable to be rejected.
Hari Singh v. Shish Ram, AIR 2003 P&H 150, a photostatic copy of the
original deed of family settlement was filed. The court said that it was sine
qua non for party to show that the original was in existence and could not be
produced and that photo evidence was allowable under one or the other
exceptions.
[xvi] Stokes' Anglo-Indian Codes, Vol.
II, p. 892 f.n. 2.
[xvii] Gurdiai Kaur v. Registrar
Co-operative Societies, AIR 2000 P&H 82. The court relied upon Ved
Prakash v. Kartar Kaur, (1994) I QRR 361 wherein it was held that in order
to enable a party to produce secondary evidence it is necessary for the party
to prove the existence and execution of the original document; Krishna Kumar
v. Pal Singh, (1989) 95 Pun LR 55 , it was incumbent refer the respondent
to lead evidence to prove existence of the original civil; Gurditta v. Balkar
Singh. (1989) 95 Pun LR 418, where the agreement to sell was never pleaded
in the written statement, an application to lead secondary evidence by way of
photostat copy was filed after more than two years. there was no occasion for
the trial court to allow the defendant to lead secondary evidence particularly
when the existence of the original document was not proved. Sobha Rani v.
Ravi Kumar, AIR 1999 P&H 21, permission for secondary evidence was
sought on the ground of loss of the document, the existence of the original was
proved from the fact stated in the plaint and reply of the defendant. Order was
granted for filing secondary evidence.
[xviii] Ranjit Kumar v. Kamal Kumar, AIR
1982 Cal 493. See also Shiola Singh v. Shankar, AIR 1984 Bom 19, where execution
could not be proved.
[xix] Stokes' Anglo-Indian Codes, Vol,
II, p. 892 f.n. 30. L S. Sadapopan v. K.S. Sabarinathan, AIR 2002
Mad 278, in an agreement to sell immovable property, the original deed was with
the vendor whereas only a copy was given to the plaintiff vendee and that was
also lost. Only a photo-copy was produced in the suit for specific performance.
The court admitted it as secondary evidence. The court said that clauses (a)
and (c) of s. 65 are independent of clause (I) and even an ordinary copy, not
necessarily certified copy would be admissible. The court cited the following
cases as making del ailed interpretation of ss. 63 and 65 : Marwari Kumhar
v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629: (2000) 6 SCC 735; Ratan
Sharma v. Ambesedar Drycleaners, AIR 1997 Raj 75; Harijiwan Sahu v.
Jairam Sahu, AIR 1989 Pat 96; Sabarna Barik v. State, AIR 1970 Ori
236; Arunkumar v. Ramanlal, AIR 1975 Guj 73 and Santanan Mohanty v.
Baldhar Rout. AIR 1986 Ori 66; Gopal Krishna Jeevan Kumar v. Puran Singh.
AIR 1998 P&H 144, best evidence was in possession of the opposite party
who had not produced it, secondary evidence was allowed.
[xx] Field, 8th Edn., p. 436.
[xxi]
Muniammal v. Govindarajan (1958) Mad 415. Hindustan Engineering Co. v.
Bhagwanlal Agarwal, AIR 2003 Raj 198, a civil suit was filed by the Electricity
Board against its consumer. The latter sought permission to produce a
photostate copy of the application filed by him before the Electricity Board.
The Board denied the existence of any such application. It made no enquiry
before expressing its denial. This was held to be not proper.
[xxii] Stokes' Anglo-Indian Codes, Vol.
II, p. 892, f.n. 4
[xxiii] Muhammad Zafar v. Zahur Husain,
(1926) 49 All 78; Womesh Chunder Ghose v. Shama Sundari Bai, (1881) 7 Cal 98;
Mt. Hana v. Lokumal, (1943) Kar 420; Harshvardhan Singh v. Ranveer Singh. AIR
1997 Raj 211, an unstamped and unregistered document, containing family
settlement, created rights in immovable property, the original was not produced
before the court, nor its absence accounted for, order allowing a copy of the
settlement to be filed was held to be illegal.
[xxiv]
Amrita Devi v. Sripat Rai, AIR 1962 All 111; Chandan v. Longabai, AIR 1998 MP
1, the document containing a will was shown to be eaten by rats, secondary
evidence allowed.
[xxv] Jagdishchandra Chandulal Shah v.
State of Gujarat, 1989Cr LJ 1724 (Guj), a copy of the plaint certified by the
court where it is filed was also held to be a public document for purposes of
evidence. M Madasamy Thevar v. AM Arjuna Raja, AIR 2000Mad 465, certified
copies obtained from the office of the Registrar of Documents are secondary
evidence and admissible as such.
[xxvi] In the Matter of a Collision
between the "Ava" and the "Brenhilda", (1879) 5 Cal 568.
573, approved by the Supreme Court in Bibi Aisha v. Bihar S.S.M. Waqaf, AIR
1969SC253 : I969 (I) SCR417. A copy of the Municipal record not issued in
accordance with the requirements of the Municipal Act is not relevant. Ganesh
Pd. v. Badri Pd. AIR 1970 All 361.
[xxvii] Ins. by the Information
Technology Act (Act 21 of 2000). s. 92 and Second Sch. w.e.f. 17-10-2000
[xxviii] Ins. by the Information
Technology Act (Act 21 of 2000). s. 92 and Second Sch. w.e.f. 17-10-2000
[xxix]
Surendra Krishna Roy v. Mirza Mahammad Syed Ali Matwali, (1935) 63 IA 85
: 38 Bom LR 330. See also Oriental Fire & General Ins. Co. v.
Chandrawali, AIR 1989 P&H 100, the insurer saying that the original
policy was in possession of the other party but not requiring him to produce,
held disentitled from producing the secondary evidence.
[xxx] Stokes' Anglo-Indian Codes, Vol.
II, p. 893, f.n. 6
[xxxi] Stokes' Anglo-Indian Codes, Vol.
II, p. 893, f.n. 7
[xxxii] Bulakidas v. Shaikh Chhotu,
(1942) Nag 661; Bhanwaria v. Ramratan, (1953) 4 Raj 145; Ramkrishna
Girischandra Dode v. Anand Govind Kelkar, AIR 1999 Bom 89, executants of rent
receipt/receipts were not examined by the party about whom the court felt had launched
obstructionist proceedings. An opportunity of examining the signatory was given
to the party Refusal to admit the receipts in evidence was held to be proper.
[xxxiii] In the matter of Mr. D. &
Mr. S., (1961) 68 Bom LR 228; but see contra the view expressed by VIMADALAL
J., in Bhima Tima v. Pioneer Chemicals, (1967) 70 Bom LR 683. Madholal v. Asian
Assu. Co. Ltd., (1945) 56 Bom LR 147
[xxxiv] Ramjan Khan v. Baba Raghunath
Das, AIR 1992 MP 22; Ram Singh v. Col. Ram Singh, AIR 1986 SC 3, a document the
contents of which were not proved nor the maker of the document examined was
held to be irrelevant.
[xxxv] Salimatul-Fatima Alias Bibi
Hossaini v. Koylashpoti Narain Singh, (1890) 17 Ca1903; Bulakidas v. Shaikh
Chhotu, (1942) Nag 661. K.K. Thankaappan v. K.S. Jayan, AIR 2003 Ker 114, only
a certified copy of the registered document of dissolution of marriage was
available on record. There was no other evidence of due execution of the deed.
Signature and handwriting on the deed were not proved to be that of the husband
and wife. The court said that the fact of dissolution of marriage was not
proved.
[xxxvi] Abdulla Paru v. Gannibai, (1887)
II Bom 690; Babban v. Shiv Nath. AIR 1986 All 185, attesting witnesses duly
produced. Pankhothang Haokip v. Dozakhup Paite, AIR 2003 Gau 44, sale deed
execution by the seller proved by the buyer, the seller made no plea of
cancellation that of denial of his signature. He was bound by the document.
[xxxvii] Ins. by the Information
Technology Act (Act 21 of 2000) s. 92 and Second Sch. w.e.f. 17-10-2000
[xxxviii] Wigmore, s. 1304.
[xxxix]
Bishnu Ram Krishan v. Nathu Vithal, (1948) 51 Bom LR 245. Ram Rattan v. Bitton
Kaur, AIR 1980 All 395, where the attesting witness though alive was not
produced. State of Ha ryana v. Raj Kaur, AIR 200 I P&H 322, the original
will was not produced, only one attesting witness produced who stated that he
was not aware whether the testator had executed any will or he had thumb marked
any will. The testator had excluded his daughters from succession and preferred
his nephews. The propounder of will did not produce any evidence to show that
the testator was free from extraneous influence and used or was capable of
using his free mind. The sub-Registrar who registered the will was not
produced. The court said that the will was not proved to the satisfaction of
the court so as to exclude natural heirs. N. Kamalam v. Ayyaswamy, AIR 2001 SC
2802, signature of the subscriber cannot be equated with that of an attesting
witness. Attestation is a legal requirement.
[xl] Bhagya Wati Jain v. General
Public, AIR 1995 P&H 201, the court surveyed a large number of cases at
pages 204-209
[xli] K.M. Varghese v. K.M. Oommen,
AIR 1994 Ker 85; Madhukar D. Shende v. Tarabal Aka Shedage, AIR 2002 SC 637,
the validity of a will could not be questioned on the basis of suspicion and
conjectures with no foundation in evidence and having no relevance to the facts
of the case. There was no challenge by any relative of the testatrix. The court
set aside the finding.
[xlii] Baburajan v. Parukutty, AIR 1999
Ker 274, signature and attestation were put at the end of the document after
the schedule of property. The failure of the testator to sign one of the pages
was held as not making any difference. S. Kaliyammal v. K. Paliammal, AIR 1999
Mad 40, execution of the will was not denied, but the allegation was that the
execution was under fraud and under influence. No evidence was produced in
support of the allegation. The court said that an inference of the validity of
the will was warranted. Janardan Badrinarayan Patel v. Sheth Ambalal Himatlal,
AIR 1999 Guj 162, the propounders did not produce the draft of the will and
there was no evidence to show the happenings prior to the finalization of the
will.
[xliii] Dhruba Sahu v. Nalumoni Sahu,
AIR 1983 Ori 24, the Court adding that it is not necessary for the attesting
witness to add that he signed in the presence of the executant.
[xliv] Lakshman v. Krishnaji, (1927) 29
Bom LR 1425; Thakkar Vrajlal Bhimjee v. Thakkar Jamnadass Valjee, (1994) 4 SCC
723, no attesting witness to a mortgage deed was produced. Its execution was
not deemed to have been proved. The admission by the guarantor of his signature
upon the mortgage deed was not a substitute for proof by attesting witnesses.
The court followed Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR
1939 PC 117
[xlv] The following cases are affected
by this proviso; Veerappa Kavundan v. Ramasami Kavundan, (1907) 30 Mad 251; Sat
ish Chandra Mitra v. Iogendranath Mahalanabis, (1916) 44 Cal345; Rosammal
Issethenammal Fernandez v. Joosa Marlyan Fernandez, AIR 2000 SC 2857 : (2000) 7
SCC 189, denial must not be vague, pleadings of the parties must also be
considered while recording a finding as to denial.
[xlvi] Janki Narayan Bhoir v. Narayan
Namdeo Kadam, AIR 2003 SC 761. when one attesting witness is produced, the
examination of the other attesting witness can be dispensed with.
[xlvii] Asia Bi v. S.A. Abdul Gaffor,
1996 AIHC 1332 (Mad); Mohanlal Dungarmal Furmani v. Vishanji Dungarmal Furmani,
AIR 2001 Cal 122, construction of an unprobated will has to be according to the
agreement as it is and not by adding to or varying its terms.
[xlviii] Rajinder Singh v. Hari Singh,
AIR 2000 P&H 257. Mathew Jacob v. Salestine Jacob, AIR 1998 Delhi 320,
examination of only one witness is sufficient.
[xlix] Dhyam Chandv. Savitri Devi, AIR
1998 HP 37. Chandan Longa Bai, AIR 1998 MP I, attesting witness denied attestation
by him. Other evidence became permissible. The scribe testified to scribing the
will and attestation by two witnesses. The document was also registered. The
statement of scribe comes under s. 71. A subsequent will referred to the
earlier will. The execution of the will was taken to be proved. Madhab Bohoru
v. Braja Kishore Nanda, AIR 2003 Ori 107, at testing witnesses became hostile,
the scribe was also avoiding but he was arrested and produced, he admitted he
did the scribing service and attested the thumb impression of the executant.
Evidence accepted that the will was duly attested in accordance with the law.
One of the copies carried a certificate from the party's advocate which was not
there on the original. Since there was no legal requirement of such
endorsement, its absence on the original was immaterial. Pt. A.N. Misra v. Pt.
Ram Chandra Sharma, AlR 2003 All 96, of the two wills, the second was found to
be genuine and natural.
[l] Mussummat Shahzamdi Begum v. Sud
Muhammad Qasim (1928) 7 Pat 312. In this case the effect of the proviso to s.
68 was not brought to the notice of the Court.
[li] Davood Rowther v. Ramanathan
Chettiar, (1938) Mad 523, 532. Interpolation of words in a receipt for payment
of rent does not make it inadmissible. Kuri Lal Rungta v. Banarsi Devi, AIR
1986 All 94.
[lii] See Lakshman v. Krishnaji.
(1927) 29 Bom LR 1425. See also Brundaban Nayak v. Gobardhan Biswal, AIR 1990
Ori 232. where the attesting witness denied that he attested the gift deed and
other evidence was allowed
[liii] Chaitan Charan Parida v.
Maheshwar Parida, AIR 1991 Ori 125. Maria Sheilla v. T. Joseph Catherine. AIR
2003 Mad 270. the propounder was allowed to prove execution of the will where
either the attesting witness was not available or was unable to recollect facts.
The will was proved by showing that the testafrix had admitted her signature in
the presence of the witness who had deposed to that fact and also that she was
in sound disposing state of mind.
[liv] Janki Narayan Bhoire v. Narayan
Namdeo Kadam; AIR 2003 SC 761, evidence of other witnesses, for example, the
person (respondent) who claimed the suit property and that of the scribe could
have been considered if the requirement of s. 68 had been satisfied
[lv] Abdul Subhan Khan alias
Khalilur-Rahman v. Nusrat Ali Khan. (1936) 12 Luck 606; Pakala Narayana Swamy
v. King-Emperor. (1937) 17 Pat 15. See Tilakdhari v. Jagat Rai, AIR 1962 Pat
76; Mathew Jacob v. 'Salestine Jacob, AIR 1998 Delhi 390, the court is
empowered to draw the comparison with an admitted signature.
[lvi]
Laxmi Bai v. A. Chandravati, AIR 1995 Ori 131. Ajit Savant Majagavi v. State of
Kurnutaka, AIR 1997 SC 1255 : 1997 Cri LJ3964 (SC), on the permissibility of
this method of comparison. See generally, Mukhtiar Singh v. State. 1997 Cri
U4544 (P&H).
[lvii] State of Maharashtra v. Sukhdev
Singh, (1992) 3 SCC 700, 730: 1992 SCC (Cri) 705: AIR 1992 SC 2100. A
NeeIalohithadasan Nadar v. George Mascrene, (1994) Supp 2 SCC 619, the court
did the comparison itself in a case of double voting, the Supreme Court said
that it was necessary for the expeditious disposal of an election petition, but
issued the advice that the court should be slow in adopting this procedure,
Tarak Nath Sha v. Bhutoria Bros, AIR 1988 Cal 31, the court should be slow to
undertake the task of comparison itself. It should take the aid of an expert
Bouma Naicken v. Chinna Gounde, AIR 1998 Mad 375, thumb impression, the judge
himself compared the disputed impression with the admitted impression and gave
his finding. This was held to be not proper.
[lviii]
. K.S. Saryanaryana v. V.R. Narayana Rao, AIR 1999 SC 2544 : (1999) 6 SCC 104,
this was a suit for recovery of amount from two defendants paid earlier as a
sale consideration for property. The plaintiffs plea was that the defendant No.
1 authorized the defendant No.2 for the purpose. But the defendant No. 1 denied
his signature on any such paper as well as on vakalatnama and written
statement. Dismissal of the suit on this ground was held to be illegal.
Nallabothu Purnaiah v. Garre Malikarjuna Rao, AIR 2003 AP 201, the evidence of
the handwriting expert was rejected by the court by reason of the fact that
expert had no qualification, held, not proper because identification of
handwriting being not a developed science. There was no formal qualification to
be possessed. Direct and circumstantial evidence lent support to the expert
opinion. Rejection of his opinion by the court was held to be not proper.
[lix] Emperor v. Ganpat Balkrishna,
(1912) 14 Bom LR 310. See Mangubhai Mansukhram v. Pranjivan, AIR 1992 Guj 1, a
promissory note which was proved to be in the handwriting of the dependant made
him liable.
[lx] Emperor v. Ganpat Balkrishna,
(1912) 14 Bom LR 310; Bhagirati Sahu v. Akapati Bhaskar Patra; AIR 2001 Ori
185, a suit for specific performance was based on an agreement of sale of the
property in question, the defendant pleaded that the document was fabricated
and that his signature was forged and, therefore, he asked for examination by a
handwriting expert. The order rejecting the application was held liable to be set
aside.
[lxi]
T. Subbiah v. Ramaswamy, AIR 1970 Mad 85; Sanjay Goel v. State of V.P., 2002
Cri LJ625 (All), the court could compel the accused under s. 164, Cr PC to give
his specimen handwriting to the investigating officer to enable him to get it
compared with the note found at the scene of crime in which the accused
confessed to his crime. Another Allahabad decision. Guru Pal Singh v. State of
U.P. 2002 Cri LJ 1517 (All), is to the contrary effect. The court said that it
could not compel the accused to give his specimen writing to the police for
comparison with disputed writings when the case was at the stage of
investigation.
[lxii]
Slate of U.P. v. Ram Babu Misra. AIR 1980 SC 791: 1980(2) SCC 343. Followed in
Harekrishna Patnaik v. State of Orissa, 1991 Cr LJ 462 (Ori), the court adding
that if the specimen was taken by the investigating officer in the course of
investigation, even if with some irregularities, the same can still be used.
[lxiii] Murarilal v. State of M.P. AIR
1980 SC 531 at 537: 1980 Cr LJ 396 citing Shashi Kumar v. Subodh Kumar AIR 1964
SC 529 and Fakhruddin v. State of M.P. AIR 1967 SC 1326: 1967 Cr LJ 1197. Where
the Court itself had done the comparison
[lxiv] Inserted by the Information
Technology Act (Act 21 of 2000). S. 92 and Second Schedule w.e.f. 17-10-2000
[lxv] BEST. 12th Edn. 55. 484. 485.
pp. 407-409. Abanti Jena v. Priyabada Jena. AIR 2000 Ori 156,
whenever a document of this kind (electoral roll in this case) in produced, opportunity
should be given to the opposite party to lead rebuttal evidence.
[lxvi] Thrasyvoulos Ioannou v. Papa
Christoford L. Demetriou, (1952) AC 84. A spot inspection report by a Tahsildar
has been held to be not a public document. Radhey v. Board of Revenue, AIR 1990
All 175
[lxvii] Hardayal v. Aram Singh, AIR 2001
MP 203. New India Assurance Co. Ltd. v. Krishma Sharma AIR 1998 Delhi 386, an
insurance policy is not a public document.
[lxviii] The court referred to the
following authorities, Narattam Das v. Md Masadharali Haribhuiyan, (1991) I Gau
LR 197 (DB) overruling the decision in Md. Saimuddin Sheikh v. Abejuddin
Sheikh, AIR 1979 Gau 14; Manindra Kumar Dey v. Mahendra Sukla Baidya, (1999) 2
Gau LR 219: AIR 1999 HC 2147. State of Haryana v. Ram Singh. AIR 2001 SC 2532,
certified copy of a registered sale deed of immovable property admitted in
evidence for proving comparative land value without examining the parties to
the document.
[lxix] Thatha v. Peru. AIR 1986 Ker
196. Democratic Bar A.ssociation, Allahabad v. High Court. Allahabad AIR 2000
All 300, recommendation of screening committee, which was not a public document
[lxx] Jagdishchandra v. State of
Gujarat, 1989 Cr LJ 1724 Guj, proof of registered sale deed and plaint filed in
court by certified copies.
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