Delhi Judicial Services Exam Law of Evidence Syllabus

When is the opinion of an expert relevant under the law of evidence?

When the court has to form an opinion on a point of foreign law, science, art, or as to identity of handwriting, finger impressions, or electronic evidence, the opinions of persons specially skilled in such matters (experts) are relevant facts.

What is the evidentiary value of expert opinion?

Expert opinion is only advisory/corroborative, not conclusive or binding; it must be supported by reasons and data. The court is not bound by it and must independently evaluate it. Generally it requires corroboration, and the expert ordinarily should be examined to allow cross-examination.

State the rule on relevancy of facts bearing upon expert opinion and on grounds of opinion.

Facts not otherwise relevant become relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant. Whenever the opinion of any living person is relevant, the grounds on which his opinion is based are also relevant.

How does the law treat the relevancy of previous judgments generally?

The existence of a judgment, order, or decree which by law prevents any court from taking cognizance of a suit or holding a trial is a relevant fact to bar the second suit/trial (res judicata/double jeopardy). Final judgments in probate, matrimonial, admiralty, and insolvency jurisdiction are relevant and conclusive (judgments in rem) against the world.

When are judgments other than those in rem relevant, and can they be impeached?

Judgments, orders, or decrees other than in rem are irrelevant unless the existence of the judgment is itself a fact in issue or relevant under some other provision. A party may show that a relevant judgment was delivered by an incompetent court or was obtained by fraud or collusion.

State the rule on character evidence in civil cases.

In civil cases, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is irrelevant, EXCEPT in so far as such character appears from facts otherwise relevant. However, character affecting the amount of damages a party ought to receive is relevant.

State the rule on character evidence in criminal cases.

In criminal proceedings the fact that the accused is of good character is relevant (the accused may lead it). The fact that the accused has a bad character is irrelevant, UNLESS evidence of good character has been given (then bad character may rebut it) or the bad character is itself a fact in issue. A previous conviction is relevant as evidence of bad character.

What is the meaning of 'character' for the purposes of character evidence?

The word 'character' includes both reputation (what is generally said of a person) and disposition (the inherent qualities of a person). But, except where reputation/disposition is itself in issue, evidence may be given only of general reputation and general disposition, not of particular acts by which they were shown.

What does the rule on oral evidence require ('best evidence' rule for oral testimony)?

All facts, except the contents of documents or electronic records, may be proved by oral evidence. Oral evidence must in all cases be direct: the witness must speak of what he himself saw, heard, perceived, or, in the case of opinion, the person holding the opinion must testify. Hearsay (second-hand) evidence is generally excluded.

What are the recognised exceptions to the rule that oral evidence must be direct (hearsay exceptions)?

Major exceptions include: admissions and confessions; res gestae; dying declarations and statements of persons who cannot be called; statements in public documents/registers; expert opinions in treatises; and entries in books of account. In these the original perceiver need not always testify.

Define 'document' and 'evidence' as used in the law of evidence.

A 'document' means any matter expressed or described upon any substance by means of letters, figures, or marks (or more than one), intended to be used for recording that matter (e.g., writing, map, inscription, caricature). 'Evidence' means oral evidence (statements of witnesses) and documentary evidence (documents, including electronic records, produced for inspection).

Distinguish between primary evidence and secondary evidence.

Primary evidence means the document itself produced for the inspection of the court (including each part of a document made in counterparts, and each of several documents made by one uniform process). Secondary evidence means inferior or substitutionary evidence, such as certified copies, copies made from the original, counterparts against non-executing parties, and oral accounts of the contents of a document by a person who has seen it.

State the general rule for proof of documents and its exception.

General rule: documents must be proved by primary evidence (the original). Secondary evidence may be given of the existence, condition, or contents of a document only in the cases specifically allowed by law (e.g., original is in possession of the opponent/a stranger who refuses to produce, original is lost or destroyed, original is a public document, or the original is not easily movable).

How is a public document proved, and what is its proof method?

Public documents (records of official acts, public records of private documents) may be proved by certified copies. A certified copy is secondary evidence which the law specially permits and which is admissible without proof of the original. The official having custody must give a certified copy on payment of legal fees.

How are electronic records proved, and what certificate is required?

The contents of an electronic record may be proved by producing the original or, where it is admitted as evidence, by an output (computer printout/copy) treated as a document on satisfying statutory conditions: lawful control of the computer, regular use, proper functioning, and accurate reproduction. Such secondary electronic evidence must be accompanied by a certificate identifying the record and the device and signed by a person in a responsible official position, making it admissible without further proof of the original.

State the rule excluding oral evidence by documentary evidence regarding terms of a contract, grant, or disposition (the Section 91 principle).

When the terms of a contract, grant, or other disposition of property have been reduced to the form of a document, or where any matter is required by law to be in documentary form, no evidence may be given in proof of those terms except the document itself (or secondary evidence of its contents where admissible). Oral evidence of the terms is excluded.

State the rule barring oral evidence to contradict, vary, add to, or subtract from the terms of a written instrument (the Section 92 principle).

When the terms of such a document have been proved under the documentary-evidence rule, no oral agreement or statement may be admitted, as between the parties or their representatives in interest, to contradict, vary, add to, or subtract from its terms. This protects the integrity of written instruments.

List the principal provisos/exceptions allowing oral evidence alongside a written instrument (Section 92 provisos).

Oral evidence is allowed to prove: (1) facts invalidating the document (fraud, intimidation, illegality, want of execution/capacity, mistake, want of consideration); (2) a separate oral agreement on a matter on which the document is silent (if consistent); (3) a separate oral agreement constituting a condition precedent to the obligation; (4) a distinct subsequent oral agreement to rescind or modify (unless writing/registration is required); (5) any usage or custom annexing incidents to such contracts; and (6) facts showing how the language relates to existing facts.

How does the law treat patent and latent ambiguity in documents (Sections 93 to 98 principle)?

Patent ambiguity (defect/uncertainty apparent on the face of the document): evidence to explain or amend it is NOT admissible. Latent ambiguity (document is plain on its face but its application to facts is uncertain): evidence may be given to show its meaning or application — e.g., to show to which of two persons/things the document applies, or to explain illegible/technical/unmeaning language and local/peculiar usage.

Define 'burden of proof' and state the general rule on who bears it.

Burden of proof is the obligation to prove a fact. The general rule is that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist; the burden lies on that person. Whoever wishes the court to believe in the existence of a fact must prove it.

Distinguish 'burden of proof' (legal burden) from 'onus of proof'.

The legal burden of proof (burden on the pleadings) is fixed by law/pleadings and never shifts; it rests on the party who would fail if no evidence were given on either side. The onus of proof (evidential burden) shifts from party to party as evidence is led during the trial, depending on the weight of evidence at any given stage.

On whom does the burden lie to prove facts especially within a person's knowledge?

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. (E.g., a passenger travelling without a ticket must prove he had one; an accused pleading an alibi or exception must establish it.)

What is the burden of proof regarding the defence of general exceptions in criminal cases?

When a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any general exception (e.g., private defence, insanity, accident) or within any proviso/special exception lies upon the accused, and the court presumes the absence of such circumstances. (The standard for the accused is preponderance of probability, not beyond reasonable doubt.)

State the presumption regarding legitimacy of a child born during marriage.

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution (the mother remaining unmarried), is conclusive proof that he is the legitimate child of that man, UNLESS it is shown that the parties had no access to each other at any time when he could have been begotten.

State the presumption as to abetment of suicide and dowry death, and as to dowry death generally.

Where a woman commits suicide within seven years of marriage and is shown to have been subjected to cruelty by her husband/relatives, the court may presume abetment of suicide. Where a woman dies of unnatural causes within seven years of marriage and is shown to have been subjected to cruelty/harassment for dowry soon before death, the court shall presume that the accused caused the dowry death.

What presumptions arise about a missing person under Sections 107 and 108 (continuance/death of life)?

A person shown to have been alive within thirty years is presumed alive (burden of proving death is on the asserter). But where it is proved that a person has not been heard of for seven years by those who would naturally have heard of him if alive, the burden of proving that he is alive shifts to the person who affirms it (presumption of death). The exact time of death is not presumed and must be proved.

Define the doctrine of estoppel.

When one person has, by his declaration, act, or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and that person/his representative, to deny the truth of that thing. Estoppel is a rule of evidence that prevents a person from denying what he earlier represented.

Name the special kinds of estoppel relating to tenants, licensees, acceptors of bills, and bailees.

Estoppel of tenant/licensee: a tenant of immovable property (or person claiming through him) is not permitted, during the continuance of the tenancy, to deny that the landlord had title at the beginning of the tenancy; similarly a licensee cannot deny the licensor's possession. Estoppel of acceptor of a bill of exchange, bailee, or licensee: they are precluded from denying that the drawer/bailor/licensor had authority to draw or make the bailment/grant the licence.

What is the general rule on competency of witnesses, and who is rendered incompetent?

All persons are competent to testify unless the court considers that, by reason of tender age, extreme old age, disease (of body or mind), or any like cause, they are prevented from understanding the questions put to them or from giving rational answers. A person of unsound mind is competent if he can understand and answer rationally during the lucid interval.

Distinguish competency from compellability of a witness, and state the position of an accused as a witness.

Competency is the legal eligibility to testify; compellability is whether a competent witness can be forced to answer/testify. A witness may be competent but not compellable (e.g., on privileged matters). An accused may be a competent witness for the defence on his own request in writing, but cannot be compelled to be a witness against himself (protection against self-incrimination).

State the privilege relating to communications during marriage.

No person who is or has been married shall be compelled to disclose any communication made to him/her during marriage by the spouse; nor shall he/she be permitted to disclose it without the consent of the spouse (or the spouse's representative), except in suits between the married persons or proceedings where one is prosecuted for a crime against the other. The privilege protects marital confidences and survives the marriage.

State the privilege attaching to professional communications between a legal adviser and client.

A barrister, attorney, pleader, or vakil is barred from disclosing, without the client's express consent, any communication made to him in the course and for the purpose of his professional employment, the contents/condition of documents he came to know in that capacity, or advice given to the client. Exceptions: communications made in furtherance of an illegal purpose, and facts showing a crime/fraud committed since the employment began. The privilege belongs to the client and continues after the employment ends.

What privilege protects affairs of State, official communications, and the identity of informants?

No one may give evidence derived from unpublished official records relating to affairs of State except with the permission of the head of the department concerned. No public officer may be compelled to disclose communications made to him in official confidence when public interests would suffer. In criminal cases, a Magistrate/police officer and revenue officer cannot be compelled to reveal whence they got information about the commission of an offence.

State the order and purpose of examination-in-chief, cross-examination, and re-examination.

A witness is first examined-in-chief (by the party calling him) to elicit facts supporting that party; then cross-examined (by the adverse party) to test truth, shake credit, or elicit favourable facts; then re-examined (by the party calling him) to explain matters arising in cross-examination. The court's permission is needed in re-examination to introduce a new matter, and the adverse party may then further cross-examine on it.

Define a 'leading question' and state when it is permitted or prohibited.

A leading question is one suggesting the answer the questioner wishes or expects. Leading questions must NOT be asked in examination-in-chief or re-examination if objected to (allowed only on introductory, undisputed, or already-proved matters, or with court's permission). Leading questions MAY be asked in cross-examination.

What is a hostile witness, and how may the party calling him deal with such a witness?

A hostile witness is one who, from his demeanour or answers, appears not to be desirous of telling the truth or turns against the party who called him. With the court's permission, the party calling a witness may put questions to him which might be put in cross-examination by the adverse party (i.e., may cross-examine and impeach his own witness). The evidence of a hostile witness is not wholly effaced; the credible part may be relied upon.

State the methods by which the credit of a witness may be impeached.

The credit of a witness may be impeached, by the adverse party or (with court's consent) by the party calling him, by: (1) evidence of persons who testify that from their knowledge he is unworthy of credit; (2) proof that the witness has been bribed, has accepted an offer of a bribe, or has received other corrupt inducement to give evidence; and (3) proof of former statements inconsistent with any part of his present evidence which is liable to be contradicted.

How may a witness be cross-examined as to previous statements in writing, and on character?

A witness may be cross-examined as to previous statements made by him in writing or reduced to writing relevant to matters in question, without the writing being shown to him; but if it is intended to contradict him by the writing, his attention must be called to those parts before the writing can be proved. He may also be asked questions to test his veracity, discover his identity/position, or shake his credit by injuring his character, even though the answer might criminate or expose him to penalty.

State the rule permitting a witness to refresh his memory.

A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction (or so soon afterwards that the matter was fresh in memory), or made by any other person and read by him within such time while the facts were fresh and he knew it to be correct. An expert may refresh his memory by reference to professional treatises.

What is the legal requirement of corroboration for an accomplice, and what does this combine with the presumption rule?

An accomplice is a competent witness against an accused, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, the court may presume that an accomplice is unworthy of credit unless corroborated in material particulars; thus, as a rule of prudence, the courts insist on independent corroboration connecting the accused with the crime before acting on accomplice testimony.

How many witnesses are required to prove a fact, and what is the rule on number of witnesses?

No particular number of witnesses is required in any case to prove any fact; evidence is weighed, not counted. The court may act on the testimony of a single reliable witness. (Quality, not quantity, of evidence governs proof — the maxim is testes ponderantur, non numerantur.)