Model Q Ans For The Indian Evidence Act 1872

Model Q. & Ans. For Judicial Service Main Exam On The Indian Evidence Act, 1872 Q.
1 What is evidentiary value of extra -judicial confession, which is ultimately retracted. Ans Value of Extra-judicial Confession Extra-judicial confession is an admission, by a person accused of committing the crime, voluntarily and is not the result of inducement, threat or promise envisaged U/S -24 of I.E.A. or was brought about in suspicions circumstances to circumvent section 25 & 26. Confession being admission of guilt is important piece of evidence. But such a confession must fulfill all the conditions as laid down in section 24, 25 & 26 of I.E.A. Thus confession must have (i) Voluntarine ss (ii) Consistency and (iii) Truthfulness. When a person accused of crime retracts or goes back upon the confession made by him, that is case of retracted confession. As regards evidentiary value of retracted confession, it is well settled that simply because of retraction, such a confession cannot be said to be involuntary, but to base conviction on such confession corroboration is required. In Narayan Singh Vs State of M.P. 1985 SCC (Cri) 460 the Court cautioned that it is not open to the Court trying the criminal case to start with a presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra-judicial confession is a usual phenomenon in criminal cases would itself not weaken the case of the prosecution based upon such a confession.
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S.S. Law Academy, Civil & judicial, B-2, B-3-4, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09
In Kishore Chand Vs State of Himachal Pradesh, 1991 SCC (Cri) 172 , Apex Court held that an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and Suggession of any falsity. However before relying on the alleged confession, the Court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged U/S -24 of the I.E.A. or was brought about in suspicious circumstances to circumvent section 25 & 26. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. So, all relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized. Q. 2 Discuss the evidentiary value of Dying declaration. Ans Value of Dying Declaration A dying declaration is relevant U/S -32(1) of I.E.A. Such a statement is admissible in evidence on the principle of necessity, the victim being the only eye witness to the crime and the sense of impending death of the victim, which makes him to utter truth. It is well settled that a dying declaration is an independent piece of evidence neither extra strong nor weak and can be acted upon without corroboration, if it is found to be otherwise true and reliable. The Court is not to look for corroboration unless it suffers from infirmity. But evidentiary value of a dying declaration varies very much in accordance with the circumstances in which it was made. So for as admissibility of dying declaration made by signs is concerned, it is well-settled that any adequate method of communication will be sufficient. Even nod of head or a glance of eye or pointing out with a finger, conveying a clear meaning, make such like statements admissible in evidence. But it is necessary that while recording statement on the basis of signs, it should be correctly and completely recorded as to what question was put and what sign was made by the person in reply to question. So dying
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declaration made by signs is equally admissible under section 32(1) of Evidence Act. It is well settled that if it is found that maker of statement was in fit state of mind and voluntarily made statement on the basis of personal knowledge without being influenced by others and Court on strict scrutiny, finds it to be reliable, there is not rule of law or prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. So conviction can be maintained solely on the basis of a dying declaration, if it is found to be truthful and reliable. In Tarachand Damu Vs The State of Maharashtra AIR 1962 SC had categorically held that conviction based on dying declaration against the correctness of which no possible reason have been given is sustainable in law. In Mannu Raja Vs State of M.P. 1976 the S.C had held that the Court has to approach due care an caution while appreciating the evidence of a dying declaration this is for reason that maker of the statement was not subjected to cross-examination, but it was held that it is neither rule of law nor of prudence that dying declaration cannot be acted upon unless it is corroborated. Corroboration would only be asked unless it comes to the conclusion that dying declaration is suffering from any infirmity. Q. 3 What is law regarding burden of proof in respect of exercise of right of private defence? Ans U/S -105 of I.E.A. Burden of proof in respect of right of private defence is on the accused, who sets up the plea of self defence. Where plea of selfdefence is pleaded, defence evidence has to be reasonable and probable so as to satisfy the court that the harm caused by him was necessary either for warding off the attack or for forestalling further reasonable apprehension from the side of accused. Burden, of establishing the plea of self defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of the plea on the basis of material on record. It is for the accused to produce necessary material before the court, either by himself adducing positive evidence or by eliciting necessary facts from the witness examined by the prosecution. In other words, an accused taking such plea is
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however not necessarily required to call evidence and he can establish his plea by reference to the circumstances transpiring from the prosecution evidence itself. If circumstances reveal that right of private defence has been legitimately exercised, it is open to the Court to consider such a plea. In a given case, Court can consider this even if the accused has not taken this plea, if the same is available to be considered from the material on record. In this regard reference may be made to decision in (1) (2) (3) (4) Munshi Ram Vs Delhi Administration AIR 1986 State of Gujrat Vs Bai Fatima AIR 1975 State of U.P Vs Mohd. Musheer Khan AIR 1977 Mohinder Pal Jolly Vs State of Punjab AIR 1979
Q. 4 - Ram Prasad, goes to an Advocate and tells him I wish to obtain possession of property by use of forged deed on which. I request you to sue Is this communication of Ram Prasad with his Advocate protected under the Law of Evidence? Ans S -126 of the I.E.A pertains to professional communications. Professional communication are such communication which are made to an Advocate or legal Advisor by a client or on his behalf in the course of and for the purpose of his employment. These communication include information as to contents of document or condition of any document with which said Advocate or legal Advisor has become acquainted in the course of and for the purposes of his professional employment. None of such communication can be permitted to be disclosed by the barrister, attorney; pleader or vakil. The reason being that for want of such a priviledge non would be able to obtain proper legal aid in respect of concerned matter. S -126 of the I.E.A provides that no barrister, attorney, pleader or vakil shall at any time be permitted, unless with his clients express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client to state the contents or condition of any document with which he has become acquinted in the course and for the purpose of his
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professional, employment or to disclose any advice given by him to his client in the course and for the purpose of such employment. Provided that nothing in this section shall protect from disclosure (1) (2) any such communication made in furtherance of any illegal purpose; any fact observed by any barrister, pleader attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed, since the commencement of his employment. It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation: The obligation stated in this section continues after the employment has ceased. Provisions of S -126 prohibit a lawyer from disclosing such matters which come to his knowledge from his client for this professional purpose. Provisions of S -129 of I.E.A are also relevant. S -129 provides that When such a person, who has any confidential communication with his legal professional adviser offers himself as a witness, such person can be compelled to disclose any such communication as the court deems necessary to be known in order to explain any evidence which he has given, but not others. In this case in hand, the communication being made by Ram Prasad, the client to his Advocate B is made in furtherance of illegal purpose i.e. to indulge in crime, the same cannot be said to be protected from disclosure. Therefore, B the attorney of A is free to disclose the communication made to him by Ram Prasad.
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Q. 5 Conviction can be based solely on circumstantial evidence, but it should be tested by the touch stone of law relating to circumstantial evidence laid down by Apex court. Narrate the law laid down by Apex court in this regard. Ans. Circumstantial Evidence means Evidence which indirectly or on the basis of chain of circumstances lead to prove of a fact or facts.For example, evidence in respect of motive, conduct disclosure statement made by accused, recoveries of incriminating material etc in pursuance of disclosure statement is termed as circumstantial evidence. However circumstantial evidence has to be of conclusive nature and must unerringly point out guilt of the accused and none else. In Hanumant Govind Vs State of M.P. AIR 1952 the S.C has observed that in dealing with circumstantial evidence the rules specifically applicable to such evidence must borne in mind. In such cases it is always the danger that conjecture or suspicion may take place of legal proof. In cases where the evidence is of a criminal nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In Sharad Sarda Vs State of Maharashtra AIR 1984 it has been held that onus is on the prosecution to prove that chain is complete and the infirmity or lacuna in prosecution cannot be cured by false evidence or plea. Because conviction is based on circumstantial evidence following conditions must be fully established: (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established
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(ii) (iii) (iv) (v)
The facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency. They should exclude every possible hypothesis except the one to be proved and There must be chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In view of the well settled law, there is no doubt that conviction of an accused can be based solely on circumstantial evidence, but subject to the condition that circumstantial evidence must meet with all requirement as noticed above.
Q. 6 Explain as to how the credit of a witness be impeached by the adverse party? Ans S -155 of IEA provides that The credit of a witness may be impeached in the following ways by the adverse party or with the consent of the court, by the party who calls him (1) (2) (3) (4) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit. by proof that the witness has been bribed or has accepted the offer of a bribe or has received any other corrupt inducement to give his evidence; by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted; when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character. But this clause (4) has been omitted by Act No. 4 of 2003.
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Explanation A witness declaring another witness to be unworthy of credit may not, upon his examination in-chief, gives reasons for his belief, but he may be asked his reasons in cross examination and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence. Illustration (1) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B. Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B. The evidence is admissible. C says that B, when dying, declared that A had given B the wound of which he died. Evidence is offered to show that, on a previous occasion C said that the wound was not given by A or in his presence. The evidence is admissible.
(2)
Q. 7 Can a judge compel any witness to answer any question or produce any document or dispense with primary evidence of any document? Ans S -165 of IEA deals with Power of Judge to put questions or order production. It provides that the Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrevant and may order the production of any document or thing and neither the parties nor their agent shall be entitled to make any objection to any such question or order nor without the leave of the court, to cross examine any witness upon any answer given in reply to any such question: However it provides that this section shall not authorize any judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce U/Ss 121 to 131, if the questions were asked or the documents were called for by the adverse party. Section further provides that judge shall not ask any question which it would be improper for any other person to ask U/S 148 or 149.
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Under this provision of law, judge is not empowered to dispense with primary evidence of any document except in the cases excepted under the evidence Act. S -132 of evidence Act provides that a witness shall not be execused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate or may tend directly or indirectly to criminate, such witness or that it will expose or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind. Proviso to this section stipulates that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. Q. 8 What is the evidentiary value of testimony of an accomplice? Ans. Testimony of an Accomplice Ordinarily Accomplice means all persons who are concerned in commission of a crime of partners in commission of crime. For example, a person who offers bribe to a government officer or official is an accomplice in case of commission of such an offence of taking illegal gratification. S -118 of the IEA provides that all person shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. S -133 of IEA provides that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Evidence of an accomplice is admissible on the ground of necessity, the reason being that in a number of offences, it is not possible to get sufficient evidence about its commission. As noticed above, conviction does not become illegal because it is based on uncorroborated testimony of an
accomplice. The rule of practice is that it is prudent to look for corroboration of the evidence of an accomplice by other independent evidence. It is true that in illustration (b) appended to S -114 of IEA provides while drawing presumptions court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. In Sarwan Singh Vs State AIR 1957 the S.C held that evidence of approver has to satisfy a double test, firstly, his evidence must be reliable and secondly it must be sufficiently corroborated. Court should first evaluate the approvers evidence and if the same is uninspiring and unacceptable corroboration would be futile. Ultimately it can be said unmost caution is necessary in admitting or using the evidence of an approver. In Dagdu Vs State of Maharashtra 1977 SCC the C.J Chandrachud has held that there is no controversy between S -133 and illustration (b) of S 114, rather they are complementary to each other. The provision made under illustration (b) of S -114 is only rule of prudence. It has no overriding effect on the provision of S -133 evidence Act. Q. 9 Can improper admission or rejection of evidence be a basis for a new trial or reversal of any decision in any case? Ans S -167 of the IEA provides that the improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if rejected evidence had been received, it though not to have varied the decision. It means court may order for new trial or reversal of decision, if it appears to the court independently of the service objected to and admitted, there was no sufficient evidence to justify the decision. Similarly, in case the rejected evidence ought to have varied the decision, court may order for new trial or reversion of decision. In Chaturbhuj pandy Vs Collector, Raigarh, AIR 1969 , the SC observed that even if the evidence adduced by the appellants is rejected as has been done by the High Court, then the valuation made by the Special
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Land Acquisition Officer should have remained, but that valuation has been substantially enhanced by the High Court by relying on inadmissible evidence. The Government had not appealed against that decision. Therefore the decision of the High Court in that regard was upheld by the Apex Court. In Narain Vs State of Punjab AIR 1959 SC 484 the Apex Court observed that as regards the rejected evidence, the question U/S -167 is not so much whether the evidence rejected would not have been accepted against the other testimony on the record, but as to whether that evidence ought not to have varied the decision Q. 10- A institutes a suit for recovery of possession of the immovable property on the basis of sale deed executed and registered in his favour. Sale deed is not produced before the court would the court grant possession to A on the basis of evidence other than the sale deed? Ans Sale deed is a document of title. It contains recital as to delivery of possession of the property sold. It is not clear from the question, if it is a case of registered sale deed. Registered sale deed is a public document. S -77 of the IEA provides that such a document can be proved by production of its certified copy so as to prove the contents about possession. As regards a document required by law to be attested, S -68 of the evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to process of the court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution 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 specially denied. Sometimes, even in agreement to sell, it is specified, if the possession of the property has been delivered to the buyer. In case of immovable property, plaintiff may prove his possession over the property by producing
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on record certified copies of record of rights or copies of khasra gridwaris as well. Q. 11- Discuss the law regarding proof of execution of will, more particularly regarding requirement of examining at least one of the attesting witness to its execution. Ans. This question pertains to applicability of section 68 of evidence Act and S -63 of the Succession Act. As per provisions of S -63 of Succession Act, for due execution of will: (a) (b) (c) (d) the testator should sign or affix his mark to the will. the signature or mark of the testator should be placed that it should appear that it was intended thereby to give effect to the writing as a will; the will should be attested by two or more witnesses; and each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in presence of the testator. Attestation of will is not a formality. Attestation of will means signing such document for the purpose of testing of the signatures of the executants: attesting witness is required to put signature on the will animo attestand i No particular form of the attestation is necessary. It is also not necessary that more than one witness should be present at that time. A will is required by law to be attested and as such its execution has to be proved in the manner laid down in section 63 of Succession Act and section 68 of the evidence Act. At least one attesting witness has to be examined to prove execution of will. In view of these provisions, before a will is termed to be a valid will, it should be attested by two or more witnesses in the manner provided therein and to prove the same, the propounder thereof should examine at least one attesting witness.
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The attesting witness is to depose not only about signature or affixing of thumb impression of the testator on the will, but also that each of the witnesses had signed the will in presence of the testator. Q. 12- Whether an accused can be convicted on the basis of statement made by him in his examination U/S -313 Cr.P.C? Ans U/S -313 Cr.P.C After entire evidence is led by the prosecution or the complainant, all the incriminating circumstances appearing in evidence are to be put the accused. The object is to have explanation of the accused in respect of the incriminating material appearing in evidence led by the complainant or the prosecution. S -313 Cr.P.C provides that in every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court (a) (b) May at any stage, without previously warning the accused, put such questions to him as the court considers necessary; Shall, after the witnesses for the prosecution have been examined and before he is called on, for his defence, question him generally on the case: Sub-section (3) further provides that the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. As regards basing of conviction of accused on the answer given by him in reply to the incriminating material appearing in evidence against him and put to him for explanation, it may be mentioned here that the statement recorded U/S -313 Cr.P.C is not a substantive piece of evidence. Sub-section (4) provides that the answer given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence, which such answers may tend to show he has committed. Considering admissibility of statement made U/S -313 Cr.P.C in Mohan Singh Vs Prem Singh (2002) 10 SCC 236 Honble Apex Court held as under:
The statement made in defence by the accused U/S -313 Cr.P.C can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement U/S -313 of Cr.P.C cannot be made sole basis of his conviction. The law on the subject is almost settled that statement U/S -313 Cr.P.C of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement, if the exculpatory part is found to be false on the basis of evidence led by the prosecution. Reference may be made to the decision in Nishi Kant Jha Vs State of Bihar in this regard. Q. 13- What major amendments has been brought into the Indian Evidence Act 1872, through The Criminal Law (Amendment) Act, 2013. Ans The Criminal Law (Amendment) Act 2013 came into force on 3 rd February, 2013 and it brought major changes in evidence Act alongwith IPC and Cr.P.C. The amendment is focused on anti rape laws. So it brought changes mainly in those provisions, which are related to sexual offences. In Evidence Act it brought changes in section 53A, 114A, 119 and 146. Vide section 53A, now it says In a prosecution for an offence U/Ss -354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, or 376E of the IPC or for attempt to commit any such offence, where the question of consent is in issue, evidence of character of the victim or of such persons previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent. Now S -114A says: In a prosecution for rape under clause, (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), or (n) of sub-section (2) of section 376 of IPC, where sexual intercourse by the accused is proved and the question is whether, it was without the consent of the women alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent. Explanation: In this section, sexual intercourse shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the IPC.
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Substituted section 119 says: A witness who is unable to speak may give his evidence, in any other manner, in which he can make it intelligible, as by writing or by signs, but such writing must be written and the signs made in open court, evidence so given shall be deemed to be oral evidence. Provided that if the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or a special educator in recording the statement and such statement shall be videographed. Under section 146 proviso has been substituted as follows : Provided that in a prosecution for an offence U/Ss -376, 376A, 376B, 376C, 376D or 376E of the IPC or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to general immoral character or previous sexual experience, of such victim with any person for providing such consent or the quality of consent. Q. 14 A woman married a man in September 1903, the marriage was dissolved in May, 1904, she married another in June, 1904, a son was born to her in September, 1904 during the continuance of her marriage with her second husband. In a suit by the son to the property of 2 nd husband of his mother on his death, it was contended that the plaintiff was not the legitimate son of the second husband. What is legal presumption in this regard? Ans In the situation described in question, the legal presumption is in favour of legitimacy of child. S -112 of the IEA, 1872 says 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, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. In the question in hand, the son was born during the continuance of 2nd valid marriage of her mother. The question of non-access is not raised in aforesaid case. So in terms of S -112 the son in question is legitimate son of 2 nd husband of his mother. So he is entitled to his property as class-I hair. The
facts of aforesaid case is based on a famous case Palani Vs Sethu 1924 Madras. Q. 15- What is general presumption under IEA? Ans S -114 of the IEA, 1872 deals with the general presumption of existence of certain facts. It says The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations (a) That a man who is in possession of stolen goods, soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. That an accomplice is unworthy of credit, unless he is corroborated in material particulars. That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavorable to him;
(b) (c)
Q. 16- Discuss the estoppels under IEA 1872. Ans Section 115 of the IEA deals with-Estoppel. It says 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 such person or his representative to deny the truth of that thing. Illustration A intentionally and falsely leads B to believe that certain land belongs to A and thereby induces B to buy and pay for it.
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The land afterwards be becomes the property of A, and A seeks to set aside the sale, on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title. The doctrine of estoppel is based on following 3 maxims: (i) (ii) (iii) (i) (ii) (iii) (i) (ii) (iii) No one can take benefits of his own misdeeds. Cold and hot breathing cannot be taken simultaneously. One cannot accept or deny a thing at the same time. Exceptions to the doctrine of estoppel are When the truth is known to the either parties. On question of law. Against the law. There are three kinds of Estoppel Estoppel by record. Estoppel by deed and Estoppel by conduct. In Mohari Bibee Vs Dharmdas Ghose 1903 it was held that section 115 does not apply to a case where the statement relied upon is made to a person who knows the real facts and is not misled by the untrue statement. There can be no estoppel, where truth of matter is known to both parties. In Pickard Vs Sears 1837 it was held that Estoppel is based on the principle that it could be most inequitable and unjust that if one person, by a representation made, or by conduct amounting to a representation had induced another to act as he would not otherwise have done, the person who made the representation should not be allowed to deny or repudiate that effect of his former statement to the loss and injury of the person who acted on it. Q. 17- Once a tenant is always a tenant Explain this maxim. Ans The maxim Once a tenant is always a tenant is applica ble to section 116 of IEA, 1872. Section 116 is based on the princ iple of public policy. It says No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the
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landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property and no such person who came upon any immovable property by the license of the person, in possession thereof, shall be permitted to deny that such person had a title to such possession at the time, when such license was given. Thus section 116 deals with the estoppels between the followings: (i) (ii) The landlord and tenant. Licensee and Licensor. The theoretical basis of section 116 is that when both the parties have accepted that they should maintain relation of landlord and tenant and if the possession is delivered in accordance with that, he cannot say that landlord does not have title of the property. Q. 18- A is accused before court of session of having given false evidence before B, a magistrate. Whether B can be asked, that what A said before him. Ans. Vide S -121 of the IEA 1872 B cannot be asked what A said before him, except upon the special order of the superior court. S -121 says No Jude or Magistrate shall, except upon the special order of some court to which he is subordinate, be compelled to answer any question as to his conduct in court as such judge or magistrate or as to anything which came to his knowledge in court as such judge or magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting. Illustrations (a) A, on his trial before the court of session, says that a deposition was improperly taken by B, the magistrate. B cannot be compelled to answer question as to this, except upon the special order of a superior court. A is accused before the court of session of attempting to murder a police officer whilst on his trial before B, a session judge. B may be examined as to what occurred.
(c)
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Q. 19- A is facing trial of murder of B by intentionally shooting him dead. Is the fact that A on the other occasions shot at B relevant? Ans This fact is relevant U/S -14 of I.E.A 1872. It says Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill will or good will towards any particular person or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant. Explanation 1 A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question. In present case A shot at B on earlier occasion or not and A is tried for an offence with regard to the same person i.e. B and not generally. Hence it is relevant U/S -14 r/w Explanation1. Q. 20- A an accused after production of an axe from a place said that it was the weapon with which the deceased was killed. Is the aforesaid statement made by the accused to a police officer, while the accused in police custody, relevant U/S -27 of the IEA as discovery of a fact at the instance of the accused Ans No, such statement is not relevant U/S -27 of IEA. S -27 says When a fact is discovered at the instance of an accused, while he is in police custody, then that portion of statement which relates distinctly to the fact, discovered, is relevant. The facts of present problem are based on a leading case R Vs Christian AIR 1947 P-152 in which it was held that the statement of accused is inadmissible as statement being made after discovery of axe. Q. 21- A an accused was over heard by B, while A was muttering to himself a statement amounting to confession. Is the confession relevant? Ans Yes, the confession is relevant U/S -29 of IEA.
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S -29 says If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk or because it was made in answer to questions which he need not have answered whatever may have been the form of those questions or because he was not warned that he was not bound to make such confession and that evidence of it might be given against him. In this problem Confession was overheard by B while A was muttering to himself is relevant, as not provision of evidence act makes such type of confession irrelevant. Thus in view of the provision made in S -29, it is clear that confession overheard by B is relevant and admissible in evidence. Q. 22- A was beaten by B. A files a complaint petition before CJM. After filing of complaint petition he was going to hospital for treatment. While going to hospital for he met with an accident and died. Can the complaint petition be treated as dying declaration? Ans No, complaint petition cannot be treated as dying declaration, as the case is not covered by S -32 (1) of the IEA 1872. In Mannu Raja Vs State of M.P. AIR 1976 the S.C held that An F.I.R/Complaint petition becomes dying declaration and admissible U/S -32 (1), if it discloses the cause of death or any of the circumstances of the transaction which resulted into the death of complainant/informant. But in present case A did not die of beating. The cause of death is accident. Thus complaint filed by him is not dying declaration. Q. 23- Is a rustic person competent witness? Ans. Yes, as per S -118 of the IEA says Everyone is competent to testify who is in the opinion of court, capable of understanding the questions and of giving ration answer of the questions. Thus even a rustic person is a competent witness if he understands the questions put to him and gives rational answer of those questions.
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Q. 24 What is the object of main examination, cross examination and reexamination? Ans In words of an eminent author Sarkar The object of examination inchief is to get from the witness all material facts, within his knowledge relating to the partys case. In words of Phiphson: The main object of cross examination is to test the veracity of a witness. To weaken, qualify or destroy the case of the opponent are also objects of cross-examination. But Powell remarks that the object of cross -examination are toimpeach the accuracy, credibility and general value of the evidence given in chief examination to shift the facts already stated by the witness, to detect and expose discrepencies or to elicit suppressed facts, which will support the case of the cross examining party. In words of Sarkar The object of re-examination is to give an opportunity to re council the discrepancies, if any between the statements in examination-in-chief and cross examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicious cast on the evidence by cross examination. Q. 25- A makes a statement to her husband immediately after she was raped by B. Is this statement admissible as corroborative evidence? Ans Yes, this statement is admissible as corroborative evidence U/S -157. S -157 IEA lays down that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, may be proved. Thus in this problem, statement made by A to her husband being a former statement made by A to her husband being a former statement relating to same fact, immediately after rape took place is admissible as corroborative evidence U/S -157 of IEA.
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Model Q Ans For The Indian Evidence Act 1872

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Model Q. & Ans. For Judicial Service Main Exam On The Indian Evidence Act, 1872 Q.

(ii) (iii) (iv) (v)

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