LAW OFFICE ONLINE

Evidence Act, 1872; S. 74 – Admissibility of certified copy of public document in evidence -- Certified copy of the public document prepared under Section 76 of the Act is admissible in evidence under Section 77 of the said Act -- Certified copy of a public document is admissible in evidence without being proved by calling witness.

Evidence Act, 1872; S. 78 – Presumption to the genuineness of certified copy of decree -- The decree was passed and drafted in the light of the compromise entered into between the parties, viz., the plaintiff and the defendants, the certified copy of such document which was produced before the Court, there is presumption as to the genuineness of such certified copy under Section 78 of the Act.

Evidence Act, 1872; S. 65 (C) and (f) – Admissibility of public document – Secondary evidence of content of document when the original public document is lost or destroyed – Held: Under S. 65 clauses (a) and (c) secondary evidence was admissible -- It is held that a case may fall both under clauses (a) or (c) and (f) in which case secondary evidence would be admis-sible. It was held that clauses (a) and (c) were independent of clause (f) and even an ordinary copy would, therefore, be admissible -- As stated above the case that the original was no longer available in Court records and the certified copy was lost has not been disbelieved -- Thus the ordinary copy of the earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial court.

Revenue Record – Whether Revenue Record establish title – Held: revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act.

Possession follows title -- Held: Possession follows title is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of waste lands, or where nothing is known about possession one-way or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party.

Estoppel -- Estoppel in Criminal Proceedings -- The rule regarding issue estoppel relates to admissibility of evidence in subsequent proceedings which is designed to up-set a finding of fact recorded on the previous occasion and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings -- It makes it impermissible to lead any such evidence at a subsequent stage or occasion -- Where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence -- This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial.

Evidence Act, 1872; S. 65B (2) – Electronic record -- Specified conditions --
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to
store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and (iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.;

Evidence Act, 1872; S. 65B (4) – Electronic record -- Conditions to be fulfilled --
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

Evidence Act, 1872; S. 65B (4) – Electronic record – Certificate -- The person issuing certificate needed only to state in the certificate that the same is to the best of his knowledge and belief -- Such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence.

Evidence Act, 1872; S. 65B (4) – Electronic record -- If an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act.

Evidence Act, 1872; S. 27 – Confessional statement -- Applicable only if the confessional statement leads to the discovery of some new fact – The material objects which the police is claimed to have recovered from the accused may well have been planted by the police, the bench said -- the settled legal proposition that Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact while setting aside the conviction in a murder case

Evidence Act, 1972 – Appreciation of Evidence – Behaviour of witnesses – Held: the reactions of these witnesses in running away from the site of occurrence appears to be a natural human reaction under the facts and circumstances of the case. Behaviour of the witnesses or their reactions would differ from situation to situation and individual to individual. Expecting uniformity in their reactions would be unrealistic, and no hard and fast rule can be laid down as to the uniformity of the human reaction. The evidence of the three eyewitnesses cannot be faulted merely because they ran away;

Maxim -- Falsus In Uno, Falsus In Omnibus -- (false in one thing, false in everything) is not being used in India. Virtually, it is not applicable to the Indian scenario. Hence, the said maxim is treated as neither a sound rule of law nor a rule of practice in India. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is the duty of the Court to scrutinise the evidence carefully and, in terms of felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. Efforts should be made to find the truth. This is the very object for which Courts are created. To search it out, the Court has to disperse the suspicious cloud and dust out the smear of dust, as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So, it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court, within permissible limits to find out the truth. It means, on one hand that no innocent man should be punished, but on the other hand to see no person committing an offence should go scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the evidence.

Code of Criminal Procedure, 1973; S. 340 ----- What are necessary conditions for initiation of proceeding under section 340 Cr.P.C. ----- Held: The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Indian Penal Code (45 of 1860) (hereinafter referred to as “the IPC”); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) of the CrPC, having regard to the overall factual matrix as well as the probable consequences of such a 6 Page 7 prosecution.

Evidence Act, 1872; ----- Whether Whatsapp forward can be treated as document as per Evidence Act ----- Held: Annexure - A does not even qualify as a document in terms of the Evidence Act, 1872, in as much as, neither the original nor the copy of the original has been produced. It is an admitted position that the petitioners have not seen original and have had no occasion to even compare Annexure - A with the original.