B.A. LL.B. (Five Years) Sem 8 Law of Evidence 2022 Oct (100 marks) Question Paper with Solutions

For full marks, cover: three parts. (1) What evidence is: section 3 of the Indian Evidence Act, 1872 (oral and documentary, including electronic records); evidence, relevancy, admissibility and proof kept apart (Ram Bihari Yadav); what the definition leaves out (material objects, the court's own inspection, the accused's statement under section 313 of the Code of Criminal Procedure, 1973). (2) The kinds of evidence in detail, grouped by five questions: its form (oral, documentary and electronic, real); its link to the fact in issue (direct and circumstantial, Tomaso Bruno); its source (original and hearsay; primary and secondary, H. Siddiqui); its setting (judicial and extra-judicial, R. Kuppusamy); its use (substantive and corroborative, Gentela Vijayavardhan Rao), with expert opinion (Jai Lal); a table. (3) Facts that need not be proved: facts judicially noticed (sections 56 and 57, Onkar Nath); facts admitted (section 58, Nagindas Ramdas); facts presumed, with the conclusive presumptions (Kamti Devi); the law of India; sections 2, 51 to 53 of the Bharatiya Sakshya Adhiniyam, 2023 in a line; a conclusion.

Held. The Supreme Court explained that relevancy and admissibility are often used as if they meant the same thing, but they do not. A relevant fact may be inadmissible, and an admissible question, such as one testing a witness's credit, may not be relevant. Probative value is the weight the court gives to the evidence. The unproved declaration was rejected, and the conviction rested on the other.

What the definition leaves out. Some things the court acts on are not "evidence" in this strict sense:

1. material objects, such as a weapon or clothes, though the court may require their production (second proviso to section 60);
2. what the judge sees on a local inspection;
3. the statement of an accused examined under section 313 of the Code of Criminal Procedure, 1973, which is not on oath.

Part 2: the kinds of evidence

Writers classify evidence in many ways. The clearest method is to ask five questions about any piece of evidence.

Question 1: what form does it take?

Facts. In Tomaso Bruno v. State of U.P., (2015) 7 SCC 178, an Italian tourist died in a Varanasi hotel room shared with the two accused. They said they had gone out to watch the sunrise. The hotel's CCTV footage was never produced.

Held. The case rested on circumstances, and the footage was the best evidence of whether the accused were in the room. Its absence left the chain incomplete, and the accused were acquitted.

Question 3: where does it come from?

1. Original and hearsay. Original evidence is what the witness himself perceived. Hearsay is what he was told by someone else. Section 60 generally excludes hearsay. The exceptions include res gestae (section 6), admissions (sections 17 to 31) and dying declarations (section 32).
2. Primary and secondary (for documents). Primary evidence is the document itself (section 62). Secondary evidence is a substitute, such as a certified copy or photocopy (section 63), allowed only in the cases in section 65.

Held. An extra-judicial confession can found a conviction if it is voluntary and truthful. It depends on the circumstances, the person to whom it was made and the corroboration. Here it was made at once, to a witness with no enmity, and the medical evidence of drowning supported it. The conviction was upheld.

Question 5: what use is made of it?

1. Substantive evidence can by itself prove a fact, such as a witness's testimony in court.
2. Corroborative evidence only supports other evidence, such as a witness's earlier statement proved under section 157.

Facts. In Gentela Vijayavardhan Rao v. State of Andhra Pradesh, (1996) 6 SCC 241, robbers set fire to a bus in 1993. A Magistrate recorded statements from burnt passengers, two of whom survived and gave evidence.

Held. Their recorded statements were neither dying declarations nor res gestae. But they could be used under section 157 to corroborate the makers' evidence in court.

Part 3: when evidence need not be proved

The Act names several kinds of fact that a party need not prove.

1. Facts the court judicially notices (sections 56 and 57). Section 56 says no fact of which the court will take judicial notice "need be proved". Section 57 lists such facts: the laws in force in India, public Acts, the national calendar, the seals of courts, and others.

Facts. In Onkar Nath v. Delhi Administration, (1977) 2 SCC 611, railway union leaders were convicted for speeches made in May 1974 urging a strike. They argued that the courts could not assume, without proof, that a railway strike was imminent.

Held. The list in section 57 is not exhaustive. Notorious facts of history need no formal proof, and the strike was such a fact. But whether the strike was "in connection with an industrial dispute" needed evidence, and none was led. The leaders were acquitted.

2. Facts admitted (section 58). No fact need be proved which the parties admit at the hearing. The same applies to facts they agree to admit in writing before it, or are deemed to admit by their pleadings. The court may still require proof (the proviso).

Under the Bharatiya Sakshya Adhiniyam, 2023

Evidence is now defined in section 2(1)(e) of the Adhiniyam, and oral evidence includes "statements given electronically". Sections 56, 57 and 58 are sections 51, 52 and 53, and section 112 is section 116.

Conclusion. Evidence, under section 3 of the 1872 Act, is the oral statements of witnesses and the documents, including electronic records, produced for the court. It is distinct from relevancy, admissibility and proof (Ram Bihari Yadav). Its kinds are best understood through five questions. By form it is oral, documentary or real (Arjun Panditrao Khotkar). By link to the fact it is direct or circumstantial (Tomaso Bruno). By source it is original or hearsay, primary or secondary (H. Siddiqui). By setting it is judicial or extra-judicial (R. Kuppusamy). By use it is substantive or corroborative (Gentela Vijayavardhan Rao). Expert opinion stands beside these (Jai Lal). Evidence need not be given of facts judicially noticed (Onkar Nath), facts admitted (Nagindas Ramdas), facts conclusively presumed (Kamti Devi) or the law of India.