INDIAN EVIDENCE ACT
Q. (a) A filed a suit in the Court of Civil Judge, Amravati, alleging that she had purchased the house and made improvements in the house. Being in need of money she entered into an agreement with B for a loan of Rs. 20,000/-. It was decided that simultaneously she should execute nominal documents of sale and rend note. These documents, i.e. sale deed and rent note, were never intended to be acted upon and she had to pay interest of Rs. 18% per annum on the loan. It was stated that B was attempting to enforce the document as a sale deed. Declaration was prayed that she continued to be the owner of the house.
In the defence B maintained that the sale deed represented the true transaction and the ownership of the house has passed to him. During the trial A wanted to produce oral evidence that the sale deed was a sham document and never intended to be acted upon. Objection was raised by B that A cannot be permitted to produce oral evidence contrary to the contents of the sale deed. Decide the said objection. Give reasons.
(b) A filed a suit against B and C on the basis of a promissory note. B in his written statement admitted the claim of A. When A appeared as a witness, B wanted permission to cross-examine A. Decide and give reasons. (D.J.S. 1989)
Q. (a) When can a confession alleged to have been made by an accused, who is jointly tried with another accused, be taken into consideration by the Court as against the other accused? Explain the principle upon which the law is based.
(b) A and B master and servant, respectively, are being jointly tried for the murder of X and also thereafter for having made away with the dead body to hide the crime (sections 302 and 201 I.P.C.).
A confession is made by B, the servant to the effect that, without any previous knowledge of the crime, B was taken to the house of X by A and suddenly asked to throw light from a torch as a serpent had come out; at that time X came out of the house at the call of A, and A killed him without any complicity of B. The two together then disposed of the body. Is this confession relevant against A? Give reasons for or against. (D.J.S. 1989)
Q. (a) How are facts showing the existence of a state of mind relevant when the existence of such state of mind is in issue?
(b) A is accused of murdering a woman X. It is sought to be proved that two years ago he murdered his wife Y and so had the mens rea to murder X.
(c) A and B, his wife, are charged with the murder of a baby entrusted to them for nursing. The prosecution adduces evidence that several babies entrusted to the two accused were never heard of thereafter, and the dead bodies of several infants entrusted to them on payment of money for nursing were found near their residence buried in the yard of house occupied by them. In the evidence relevant and admissible in each case? (D.J.S. 1989)
Q. (a) A mortgaged her land to B. She died without leaving a heir and her property went to State by escheat. State through Collector allotted the land to C, who deposited the mortgage money in terms of allotment letter. Collector then issued letter of possession. B field an injuction suit and letter obtaining an ad interim injunction took possession of the land. C then filed suit for possession of the land. B questioned his title and pleaded that title conveyance deed in favour of C has not been registered. Decide the suit.
(b) Father allegedly executed Will one day before his death bequeathing all his properties to the sons of daughter A. Daughter B assailed its validity. Evidence showed that the testator was ill for sometime and lived with A six months prior to his death in August 1985; B was financially well settled and happily8 married; testator could sign; Will ad his thumb mark; attesting witness and scribe deposed about due execution of the Will; propounder fetched professional scribe to his house where Will was executed; scribe saw the testator covered with a quilt with whom he did not talk; the properties were mentioned in the Will generally and not specifically. Decide suit. (D.J.S. 1990)
Q. (i) Genuineness of a signature on a document was in dispute. Parties produced evidence on the point but did not examine hand writing expert. The trial judge himself compared the disputed signature with admitted signature of the alleged executant. He held that the disputed signature was forgery. In appeal this finding was assailed. Decide and give reasons.
(ii) In a criminal case a pair of shoes was recovered from the house of accused. The impression made thereby tallied with mould prepared from the footprints on the spot of crime. In the examination under section 313 Cr. P.C. the accused was asked and he agreed and the shoes being tried on his feet it appeared that they fitted his feet. Court took it into consideration while holding him guilty. In appeal it was assailed. Decide and give reasons. (D.J.S. 1990)
Q. (i) In what cases is it necessary to hold an identification parade. Discuss the precautions to be taken, the procedure to be adopted for holding it, and the value of test identification.
(ii) The maxim 'Falsus in UNO Falsus in omnibus' (false in one particular, false in all) is everywhere a somewhat dangerous maxim, but it is especially dangerous in India. Amplify this statement. What are general; principles to appreciate oral testimony of a witness in a criminal trial.
(iii) (i) Stock witness (ii) Decoy witness (iii) Issue estoppel (iv) Res gestae
(iv) "Presumptions may be looked on as the bats of the law, flitting in twilight but disappearing in the sunshine of actual facts". Explain while discuss in brief the different kinds of presumptions in recognized by the Indian Evidence Act. (D.J.S. 1990)
Q. (i) X purchased a house in Court auction. A was tenant in it from before and attorned the tenancy in favour of X and came to pay rent to X accordingly. X sold the house to Y. Both X and Y issued notice to A tenant to attorn the tenancy in favour of Y. But A declined to do so and assailed not only the derivative title of Y to the property but also the validity of sale in favour of X himself. A alleged that one of the Decree holder whose rights were purchased by X in Court auction was in a subsequent civil proceeding held to be not having full saleable right in the property. Question is whether A can deny the title of X and Y?
(ii) The plaintiff filed a suit for partition of a property basis his right under a registered Will and produced a certified copy of the Will (Ex. A/1) with the plaint. The defendant in the written statement pleaded that the said Will was revoked by the testator during his life time. During argument defendant contended that the Will is not properly proved and even if there is no dispute in the written statement about the validity and genuineness of the Will formal proof of the Will by examining one of the attestors is necessary before the Will is read in evidence, and one of the attestors is, admittedly, alive.
(Section 68 of the Indian Evidence Act provided that if a document is required to be attested, (like a Will), 'it shall not be used as evidence' until one of the attesting witness atleast has been called as a witness for proving its execution, if there be one attestor alive.) Dispose of argument of the defendant by an order. (D.J.S. 1991)
Q. (a) "Where a party fails to question his opponent's witness, the presumption is that his evidence is accepted". Elaborate this statement, and indicate the exception, if any.
(b) "Non-examination of the investigating officer at a criminal trial is a serious lapse on the part of the prosecution agency".
(c) Explain and illustrate the effect of non-examination by the prosecution of the injuries sustained by the accused at the time of occurrence.
(d) An accused, whilst in police custody, gives information to the investigating officer that he purchased the murder weapon from a particular dealer, and then takes the Investigating Officer and the Panches to the place of the dealer and points hi out. Whether the information given by the accused, and the evidence of the Investigating Officer and the Panches are admissible?
(e) In the presence of a, murder is committed by B. C immediately comes out of his shop near the place of occurrence, and A tells him that B had committed the murder. At the trial of B, A bears testimony to the occurrence, but he is not examined if he had told C that B had committed the murder. C is produced by the prosecution and he states that A told him about the murder. Is the statement of C admissible in evidence? (D.J.S. 1991)
Q. Rules of evidence are in general the same both in civil and criminal cases. Comment on the correctness of the above statement. (D.J.S. 1996)
(i) "Falsus in uno falsus in omnibus"
(ii) "Evidence has to be weighed and not counted.
(iii) "Rule of Res gestae".
(iv) "Doctrine of Bar of outrefois quit and outrefois convict".
(v) "Retracted confession". (D.J.S. 1996)
Q. A and B two brothers were attacked by the appellants, causing them serious injuries to which both the brothers succumbed. Soon after the incident, C, wife of B went to the spot. She found A lying unconscious but her husband though injured was conscious and told her that the appellants had attacked them with lathis and other weapons. D, father of A and B also rushed to the spot and B made a similar dying declaration before D. Trial Court convicted the appellants believing the statements of C & D. In appeal, it was contended on behalf of appellants that both C & D are close relations of the deceased B so the dying declaration made to them should not be made the basis of conviction, because there was no independent corroboration. How would you decide the appeal? (D.J.S. 1996)
Q. Six appellants were convicted under sections, 395, 396 read with section 397, I.P.C for having looted a passenger bus at about 11 p.m. on a moonlessnight and having caused death of one passenger. The sole basis for their conviction was their identification by different PWs in the identification parade conducted by the Executive Magistrate the evidence showed that after their arrest, the accused persons were kept in the police station for 2 days and that at the time of holding test identification parade, the accuwed persons were in fetters whereas the other undertrials, who were missed with the accused persons were not in fetters. The witnesses also deposed that the culprits had their faces muffled at the time of incident. It is argued on behalf of the appellants that in these circumstances it would not have been possible for the PWs. To identify the distinctive features of the culprits at the time of commission of offence so their subsequent identification in test becomes doubtful. It is also contended that during their detention at the police station for 2 days, they were shown to the PWs. What is evidentiary value of such a test identification? Would you uphold the conviction? (D.J.S. 1996)
Q. A filed a suit against her maternal uncle B seeking partition of her share in land measuring about 24 acres left behind by A's father. B resisted the suit on the ground that A's mother who was old, blind, tribal woman, and was living with B had executed a sale deed in favour of 'B'. A challenged the sale on the ground that it was obtained by exercising undue influence on her mother, who was blind, illiterate, tribal woman living at the mercy of B till her death. B led no evidence to show that any consideration had actually passed at the time of registration of sale deed. In these circumstances, whether 'A' can be said to have discharged the onus of proof that the sale transaction was vitiated because of undue influence? How would you decide the question of onus of proof in these circumstances? (D.J.S. 1996)
Q. A daughter-in-law of the accused, suffered 70% burns while working. She was taken to the hospital by her husband. At the time of admission, she told the doctor that her clothes caught fire while cooking on the stove. After something, she made statement to another doctor wherein she implicated only her mother-in-law as having sprinkled kerosene on her and having set her on fire. A third statement was made by her the same night before S.P. to the effect that she was set on fire from behind by somebody, may be her parents-in-law. In the fourth statement made before 3 doctors next day she implicated both her parents-in-law as having poured kerosene on her and having set her on fire. She died in the hospital next day. In all these dying declarations she had stated that she was rescued by her husband who brought her to the hospital. Her husband who was examined as a defence witness supported the defence version that his parents were away to the temple when the incident of burning took place.
What rule of precaution should be followed when there are more than one dying declarations? Decide the case preferably with reference to case law. (D.J.S. 1996)
Q.(a) A and his mother are being tried for murder of A's wife B. Facts are that A was married to B on 17.07.1975. There arose some dispute between their respective fathers regarding amount paid in marriage. On night intervening 11th & 12th September, 1976, she was sleeping with her mother-in-law on a separate cot when she was burnt by sprinkling kerosene oil on her chest. She was shifted to hospital at 2 a.m. where police recorded her statement at 4.30 a.m. (That statement was not brought on record). On 17.09.1976 she gave birth to a macerated male child. On 11.11.1976, her father filed complaint against A and his mother referring to her oral statement made before her parents and grandmother on 06.11.1976 to the effect that the accused persons had set her on fire. On that complaint, Magistrate recorded her statement on 11.11.1976, wherein she said that she felt falling of drops; she got up and started running and at that time she got fire; that she saw a man and a woman standing there but due to fire, darkness she became unconscious and could not recognize the persons standing there. When her statement was recorded, she was not under apprehension of death. However on 15.11.1976 all of a sudden her condition deteriorated and she died in the evening. Complainant is relying on her said statements as dyeing declaration. He is also relying on the accused and other asking for pardon before panchayat as extra-judicial confession. Discuss the evidentiary value of the above mentioned statements relied upon by the complainant and decide the case.
(b) A is accused of murdering his wife by smothering and poisoning. On the fateful night, the couple went to their bedroom and on the next morning, she was found dead. When A was interrogated after arrest, he told the investigating police officer thus:
"I have concealed the bottle containing poison under the bushes situated beyond gohar; I have concealed the towel and vest under the heap of rubbish and the steel Kauli in Lokola of cow-shed." This led to recovery of Ex. P5 bottle (green insecticide) from tobacco bushes, Ex. P6 towel and Ex. P7 vest from the heap of rubbish situated in compound of his residence and Ex. P8 steel Kauli from his cow-shed. Defence plea is that the recoveries cannot be used as evidence as confession was made to a police officer, places from where the recoveries were made were open and accessible to others and PW (Prosecution Witness) who was present when recovery was effected said that the accused had not made any disclosure statement in his presence. Discuss the evidentiary value of the statement and the said recoveries with reference to provision of the Indian Evidence Act and give your verdict. (D.J.S. 1999)
Q.(a) On 07.02.1983 at 8 p.m. deceased was going to his house on bicycle when he was assaulted by four persons, one of whom gave chhura blow in his abdomen and fled away. On hulla being raised some persons came there and one police Sub-Inspector who was on petrol duty also arrived. On being enquired, the victim narrated the incident and named the accused persons as assailants. The police Sub-Inspector recorded fardbeyan of the victim under section 307 I.P.C. and obtained his thumb impression thereon. The victim was shifted to hospital where he succumbed to injuries in night of 08.02.1983. Thereafter offence under section 302 I.P.C. was added. Prosecution relied on that fardbeyan as dying declaration. Defence plea is that it cannot be treated as dying declaration as Police Sub-Inspector was recording FIR at that time and as he has not bothered to get the dying declaration recorded by Magistrate, nor the dyeing declaration is recorded by doctor. Decide the admissibility of that fardbeyan.
(b) Trust made allotment of some plots in favour of the petitioners and accepted initial deposits towards consideration of the plots which was subsequently cancelled as Trust realized that allotment was based on wrong application of the reservation made for 'local displaced persons', as the Rules required certain qualifying standards to make a person eligible for benefit of preferential allotment reserved for a local displaced person, which were wanting in the petitioners. Cancellation is challenged on the principles of promissory estoppel on the ground that the Trust having once allotted the plots and having collected part of consideration could not have cancelled the allotment. Pass a reasoned order on this plea of estoppel. (D.J.S. 1999)
Q. Comment briefly on following :
(i) Falsus in unofalsus in omnibus.
(ii) Oral evidence in all cases whatever be directed.
(iii) If a statement is relevant an accurate tape record of it is also admissible.
(iv) It is not open to the prosecution in a criminal trial to cross-examine their own witness unless the Court declares him to be hostile witness.
(v) A previous conviction is relevant as evidence of bad character.
(vi) Handwriting of person can also be proved by a person who is qualified to express an opinion.
(vii) Expression "Relevancy" and "admissibility" are used as synonyms. (D.J.S. 1999)
Q. A sued B for redemption and possession of shop alleging that he mortgaged his shop vide registered mortgage deed dated 15.04.1969; that on 01.02.1981, he demanded production of the deed and possession on redemption, but B did not comply. B says that actually A had leased out shop on rent to him and the alleged mortgage was only a sham transaction to bye-pass Rent Act. The parties led evidence. A produced certified copy of the deed. B says that deed in question is not proved as per section 68 of the Evidence Act as none of its attesting witnesses have been examined. To prove payment of rent, B placed on record Ex. D2 to Ex.D5, handwritten extracts of his accounts books showing payment to A (though no receipt was issued or obtained). Original accounts books have not been produced. A is challenging late production and genuineness of Ex. D2 to D5 and is urging that these are not admissible under section 34 of the Evidence Act. He has further argued that oral evidence for proving a document to be sham document is inadmissible in view of section 92 of the Evidence Act. Evaluate these points raised by the parties and give your decision.
(b) In 1960, Marwati Community filed suit for possession of Temple and Dharmshala alleging that Respondent/Pujari had executed Nokarnama in 1948 after passing decree of declaration of their title in the earlier suit against him, but he has again started claiming ownership thereof, which plea was negatived in the earlier case. It is alleged that they have lost all papers and original was not available in Court record. In W.S., the respondent claimed title to the property and pleaded that suit is barred by Order 2, Rule 2 C.P.C., as in the earlier case, relief of possession should have been, but was not claimed and in any way earlier judgment was not binding. Plaintiff led oral evidence in support of its contentions of relied on an ordinary copy of judgment and certified copy of decree in the earlier suit. Objection of the respondent is that judgment is public document and could be proved only by a certified copy. Plaintiff says that section 54 of the Evidence Act permits secondary evidence in such a case also; that on principle of res judicata, the respondent was precluded from denying its title and suit was not barred. Decide the case, discussing the admissibility of evidence led on record. (D.J.S. 2000)
Q.(a) Super Express Bus was set on fire. 23 passengers were roasted to death while rest received burn injuries. A few could survive for some more days, but only to narrate their woeful tale to others. Some of them, who sustained less serious burns, figured as witnesses during trial. The Judicial Magistrate, who recorded dying declarations took down Ex. P71 and Ex. P75, the statements of Pw 5 also as dying declaration, thinking that they too might succumb to burns. They survived. What is the utility of their statements Ex. P71 and Ex. P75 during trial? Can their statements be used as evidence under section 32 of the Evidence Act? Is it permissible to use these as substantive evidence? Whether these statements can be relied upon the premise that it is relevant and admissible as res gestae under section 6 of the Act? Can these be used to corroborate their testimony in Court under section 157 of the Evidence Act?
(b) In 1967, suit for possession has been filed alleging that the plaintiff acquired suit site vide gift deed executed by X on 18.01.1961 and registered on 09.02.1961 through his attorney C. Suit is contested on the grounds that X had no right to make gift deed and gift deed, if any, must be a devise by the plaintiff to grab the defendant's property. During trial, the said gift deed was exhibited in testimony of Pw6, which reads as follows :
"I know X. I am employed with him for fifteen years. I had scribed Ex. PW6/1 correctly on instruction of X. I had read it over to him and after accepting the same as correct, he signed it in my presence. I have also signed as witness. I know C. He was manager and a general power of Attorney. I also identify his signatures.
"I cannot tell the date of deed of general power of attorney. It is incorrect that I was not present at the time of registration. My signatures are also there as a scribe. Gift deed was presented by C. There has been a partition between X and his son."
Perusal of Ex. PW 6/1 shows that it was executed by X and it bore signatures of two witness i.e. PW 6 B on its front page alongside signatures of X. Endorsement of Sub-Registrar shows that it was presented for registration by C as attorney of X, and C was identified by PW6.
Contentions of the defendant are that the gift-deed has not been proved as only one of the attesting witness was called and he merely deposed about its execution by X and attestation by himself (PW6) and was not asked about any other attestor having seen the execution; that an identifying witness cannot be treated as attesting witness; that X himself had not presented gift deed for registration and there was time gap between execution and presentation for registration; that mere making of Ex. does not amount to proof. The plaintiff has argued that execution of the gift deed has not been specifically assailed; and its execution and registration is duly proved.
Evaluate the respective contentions of the parties, referring to relevant provisions of law, and give your verdict whether the gift deed stands proved or not and whether it is duly registered or not? (D.J.S. 2000)
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