UP PCS-J Law of Evidence Syllabus

When is the opinion of an expert relevant under Section 45 IEA (Sec 39 BSA)?

When the court has to form an opinion upon a point of foreign law, science, art, or as to identity of handwriting or finger impressions, the opinions of persons specially skilled in such matters (experts) are relevant facts. Expert opinion is advisory and not binding on the court.

Is the opinion of an ordinary (non-expert) witness ever relevant? Give examples.

Yes. Opinion of a non-expert is relevant on handwriting of a person known to the witness (Sec 47), on existence of a general custom/right (Sec 48), on usages/tenets/relationships (Sec 49), and on relationship by conduct (Sec 50). Such opinions of persons acquainted with the matter are relevant facts.

When is the character of a party relevant in CIVIL cases under the Evidence Act?

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 is relevant where it affects the amount of damages (Sections 52 & 55 IEA / Secs 46 & 49 BSA).

When is the character of the accused relevant in CRIMINAL cases?

In criminal cases, the fact that the accused is of GOOD character is relevant (Section 53 IEA / Sec 47 BSA). The fact that the accused has BAD character is irrelevant, unless evidence of good character has been given, or the bad character itself is a fact in issue, or it bears on a previous conviction relevant under another provision (Section 54 IEA / Sec 48 BSA).

What are the three categories of 'facts which need not be proved' under the Evidence Act?

(1) Facts of which the court must take judicial notice (Section 57 IEA / Sec 52 BSA); (2) Facts judicially noticeable need not be proved; and (3) Facts admitted by the parties in writing, by their pleadings, or which they agree to admit at the hearing (Section 58 IEA / Sec 53 BSA). Judicially admitted facts need not be proved unless the court requires proof otherwise.

Give examples of facts of which the court must take judicial notice (Section 57 IEA / Sec 52 BSA).

Examples include all laws in force in India, the course of proceedings of Parliament and State Legislatures, articles of war, the seals of courts and notaries, the accession and sign-manual of public officials, existence of states/governments recognised by India, divisions of time, geographical divisions, and the public festivals/fasts and holidays notified in the Official Gazette.

How must 'oral evidence' be given under the Evidence Act?

Oral evidence must in all cases be DIRECT (Section 60 IEA / Sec 55 BSA): a fact seen must be proved by a witness who saw it, a fact heard by one who heard it, a fact perceived by another sense by one who perceived it by that sense, and an opinion by the person who holds that opinion. This excludes hearsay.

How may the contents of documents be proved under the Evidence Act?

The contents of documents may be proved either by primary evidence or by secondary evidence (Section 61 IEA / Sec 56 BSA). Primary evidence is the document itself produced for inspection; secondary evidence is permitted only in the cases specified by the Act.

Distinguish 'primary evidence' from 'secondary evidence' of documents.

Primary evidence means the document itself produced for the inspection of the court, including each part of a document executed in several parts and each counterpart. Secondary evidence includes certified copies, copies made from the original by mechanical processes, copies compared with the original, counterparts against non-executing parties, and oral accounts of contents by someone who has seen the document (Secs 62-63 IEA / Secs 57-58 BSA).

In what cases may secondary evidence of the contents of a document be given (Section 65 IEA / Sec 60 BSA)?

Secondary evidence is admissible when: the original is in possession of the opponent/a person out of reach/legally bound to produce it and is not produced after notice; its existence/contents are admitted in writing by the adverse party; the original is lost or destroyed; it cannot be easily moved; it is a public document; a certified copy is permitted; or the originals consist of numerous documents which cannot conveniently be examined.

What is the rule for proving the contents of electronic records under the Evidence Act?

The contents of electronic records may be proved in accordance with the provisions of Section 65B IEA (Sec 63 BSA). Any information contained in an electronic record printed/copied/stored on optical or magnetic media produced by a computer is deemed a document and admissible without further proof of the original, subject to the conditions and certificate requirement being satisfied.

What are the conditions under Section 65B IEA (Sec 63 BSA) for admissibility of electronic records?

The computer output must have been produced by a computer used regularly to store/process information during a period of regular activity by a person having lawful control; information of the kind contained was regularly fed in; the computer was operating properly (or any malfunction did not affect accuracy); and the information reproduces or is derived from information fed in. A certificate identifying the record and describing the manner of production, signed by a responsible person, must accompany it.

What did the Supreme Court hold in Anvar P.V. v. P.K. Basheer regarding electronic evidence?

The Supreme Court (2014) held that a Section 65B certificate is MANDATORY for the admissibility of secondary electronic evidence; such evidence is inadmissible without the certificate. It overruled the earlier view in State (NCT of Delhi) v. Navjot Sandhu (Afzal Guru) that electronic records could be proved under Sections 63/65 without the certificate.

What did Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal settle about the Section 65B certificate?

The Supreme Court (2020) reaffirmed that the Section 65B(4) certificate is a mandatory pre-condition for admissibility of electronic records adduced as secondary evidence, clarified that no certificate is needed when the original device itself is produced, and held that the requisite certificate can be applied for and produced even at a later stage subject to court's discretion.

State the rule excluding oral evidence by documentary evidence (Section 91 IEA / Sec 94 BSA).

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

What does Section 92 IEA (Sec 95 BSA) provide about excluding oral evidence of terms of a written contract?

When the terms of any such written contract/grant/disposition have been proved under Section 91, no evidence of any oral agreement or statement shall be admitted between the parties for the purpose of contradicting, varying, adding to, or subtracting from its terms. This bars parol evidence to alter a written instrument.

State two important provisos/exceptions to Section 92 IEA (Sec 95 BSA) allowing oral evidence.

Oral evidence is allowed to prove: (1) any fact invalidating the document, such as fraud, intimidation, illegality, want of due execution, want of capacity, mistake, or failure of consideration; and (2) the existence of a separate oral agreement on a matter on which the document is silent and which is not inconsistent with its terms (and other provisos such as conditions precedent, and to show how language relates to existing facts).

Distinguish between 'patent ambiguity' and 'latent ambiguity' in documents.

A patent ambiguity is one apparent on the face of the document (the language itself is uncertain/defective); evidence cannot be given to remove it and the document fails (Sec 93 IEA / Sec 96 BSA). A latent ambiguity arises when plain language applies imperfectly to existing facts; evidence may be given to show its meaning or application to the facts (Secs 95-97 IEA / Secs 98-100 BSA).

What is the general rule regarding 'burden of proof' under Section 101 IEA (Sec 104 BSA)?

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. When a person is bound to prove the existence of any fact, the burden of proof lies on that person. The burden lies on the party who would fail if no evidence at all were given on either side.

Distinguish 'burden of proof' from 'onus of proof'.

Burden of proof (legal burden / Sec 101) lies on the party who asserts the affirmative of the issue and never shifts throughout the case. Onus of proof (evidential burden / Sec 102) shifts from party to party as evidence is led, depending on which side would lose if no further evidence were given at that stage. Burden is fixed by pleadings; onus is determined by the state of evidence.

On whom does the burden of proving a fact especially within one's knowledge lie (Section 106 IEA / Sec 109 BSA)?

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. For example, where a person is found with a recently stolen article or where the accused alone knows how a death occurred in his exclusive custody, the burden of explanation lies on him.

What presumptions arise under Sections 107 and 108 IEA (Secs 110-111 BSA) regarding life and death of a person?

When the question is whether a man is alive or dead, and he was alive within 30 years, the burden of proving he is dead is on the person who affirms it (presumption of continuance of life). But when it is proved that he has not been heard of for 7 years by those who would naturally have heard of him, the burden of proving he is alive shifts to the person who affirms it (presumption of death).

What is the presumption regarding legitimacy of a child under Section 112 IEA (Sec 116 BSA)?

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 (mother remaining unmarried), is CONCLUSIVE PROOF that he is the legitimate child of that man, unless it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

What is 'estoppel' under Section 115 IEA (Sec 121 BSA)?

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, to deny the truth of that thing. It is a rule of evidence preventing a person from going back on his representation.

What are the essential conditions for estoppel to apply?

(1) A representation by one party (by declaration, act or omission) of an existing fact; (2) made to another party with the intention that it be acted upon; (3) the other party in fact believed and acted upon it; and (4) the other party altered his position to his detriment as a result. Estoppel is a shield, not a sword, and there is no estoppel against a statute or on a question of law.

What is estoppel of a tenant and of a licensee of person in possession (Section 116 IEA / Sec 122 BSA)?

No tenant of immovable property, during the continuance of the tenancy, shall be permitted to deny that the landlord had, at the beginning of the tenancy, a title to such property; and no licensee of a person in possession shall be permitted to deny that such person had a title to such possession at the time the licence was given.

What privileged communications are protected between spouses under the Evidence Act?

A married person shall not be compelled to disclose any communication made to him/her during marriage by the person to whom he/she is married; nor shall he/she be permitted to disclose it without the consent of the person who made it (or his representative-in-interest), except in suits between married persons or proceedings where one is prosecuted for a crime against the other (Section 122 IEA / Sec 128 BSA).

What is the rule on professional (lawyer-client) privileged communications under Section 126 IEA (Sec 132 BSA)?

No barrister, attorney, pleader or vakil shall, without the client's express consent, disclose any communication made to him in the course and for the purpose of his employment, the contents/condition of any document he became acquainted with in that course, or any advice given to the client. The privilege does not extend to communications made in furtherance of any illegal purpose or to facts showing a crime/fraud committed since the engagement.

What privileges attach to affairs of State and official communications (Sections 123 & 124 IEA / Secs 129-130 BSA)?

No one shall be permitted to give evidence derived from unpublished official records relating to affairs of State except with the permission of the officer at the head of the department concerned (Sec 123); and no public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure (Sec 124).

What are the three main stages of examination of a witness and their order (Section 138 IEA / Sec 142 BSA)?

(1) Examination-in-chief – examination of a witness by the party who calls him; (2) Cross-examination – examination by the adverse party; and (3) Re-examination – examination by the party who called him, subsequent to cross-examination. The examination must be in that order; cross-examination need not be confined to facts in the examination-in-chief, but re-examination is directed to explanation of matters in cross-examination.

What are 'leading questions' and when may they be asked (Sections 141-143 IEA / Secs 146-148 BSA)?

A leading question is one suggesting the answer which the person putting it wishes or expects to receive. Leading questions must NOT be asked in examination-in-chief or re-examination if objected to (except on introductory/undisputed matters or matters already sufficiently proved, with the court's permission), but they MAY be asked in cross-examination.

When may a party cross-examine and impeach the credit of its own witness — i.e. declare a witness 'hostile' (Section 154 IEA / Sec 157 BSA)?

The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party (i.e. treat the witness as hostile). The evidence of a hostile witness is not wholly effaced; the court may rely on such part of it as is found to be reliable and corroborated.