Section 60 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) mandates that oral evidence must be direct, i.e. to say – if it refers to a fact which could be seen, it must be in form of a statement of a witness, who says he saw the fact; if it refers to a fact which could be heard, it must be stated by the witness, who heard it. Similarly, if it refers to a fact which could be perceived by any other senses, it must be evidence of a witness who perceived it. In the case of opinion evidence or the grounds on which such opinion is based, it must be evidence of the person who holds that opinion on those grounds. As a general principle of evidence, hearsay, i.e. evidence of a witness who did not himself see, hear, perceive and form an opinion, is inadmissible in evidence. Certain exceptions have been carved out for making hearsay evidence relevant and also admissible in evidence. One such exception is contained in Section 32(1) of the Act. Section 32(1) of the Act is reproduced herein below:
“Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. -Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
1. When it relates to cause of death. -When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”
Illustration(a) appended to Section 32 illustrates a situation in which the provision contained in Section 32(1) of the Act may be resorted to.
The term `dying declaration’ has as such not been defined in the Act. The term is derived from Latin phrase `Laterm Mortem’. Principle underlying dying declaration is a Latin maxim-“Nemomorituruspraesumiturmentire” which means that no one would meet the Maker with a lie in his mouth. The reason for carving out this exception is based on Doctrine of Necessity. As in many cases, the victim is an only eye-witness to the crime and in such circumstances exclusion of dying declaration, would make it very difficult if not impossible, for the prosecution to prove its case. Dying declaration is also based on the implicit faith in the intrinsic truthfulness of human character, in the light of impending end of life. It has been so held by the Hon’ble Supreme Court of India in para 24 of its judgment titled as Jaishree Anant Khandekar v. State of Maharashtra reported as (2009) 11 SCC 647, which reads as follows:
“24. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one’s life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eyewitness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice.”
– As per Section 32(1) of the Act, a statement of a dead person is relevant, only when it is made by him/her as to the cause of his death or as to any of the circumstances of the transaction, which resulted in his/her death. The term `circumstances of the transaction’ were interpreted by the Hon’ble Privy Council in Pakala Narayana Swami v. The King-Emperor reported as AIR 1939 PC 47. It was held that the phrase `circumstances of the transaction’ in Section 32(1) of the Act is not as broad as circumstantial evidence which includes evidence of all relevant facts. It is narrower than `resgestae’. The circumstances must have some proximate relation to the actual occurrence and must be part of the transaction which resulted in the death of the declarant. This aspect of the judgment has been followed and relied upon by the Hon’ble Supreme Court of India in a long line of binding precedent and holds the ground till date.The judgment of the Hon’ble Privy Council was relied upon in the celebrated judgment of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. A four Judges Bench of the Hon’ble Supreme Court of India in case titled as Moti Singh v. State of U.P., reported as (1964) 1 SCR 688 held as follows:
“15. ……Clause (1) of Section 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident, his statement cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death……”
Thus, statement made by a person, who is dead, is relevant under section 32(1) of the Act, if it pertains to the cause of his death or any of the circumstances of the transaction which resulted in his death.
The basis of dying declaration is faith in the intrinsic truthfulness of human character at the dying moment of one’s life. However, it has been held by the Hon’ble Courts that expectation of death does not affect relevancy but only the weight that can be attached to a dying declaration. Immediate expectation of death is not a pre-condition for making the said statement relevant. Reliance in this regard may be made to the following judgments:
i) In case titled as Inayat Khan v. The Crown reported as AIR 1935 Lah 94, death of the person making dying declaration had taken place a month and a four days after the commission of the offence. The said circumstance was held to be immaterial and the statement made by the deceased immediately after the occurrence, was treated as dying declaration. While expounding the difference between the English Law and the Indian Evidence Act, 1872, it was held that the Indian Law makes a statement made by a person who is dead, as to the cause of death admissible in evidence, even though he may not be aware that he was dying when he made it.
ii) In case titled as Najjam Faraghi v. State of West Bengal reported as (1998) 2 SCC 45, the Hon’ble Supreme Court of India rejected the contention that the dying declarations made by appellant’s wife had no value as she died long after making the dying declarations. It was held that no doubt when a person is expecting his death to take place shortly, he would not indulge in falsehood, but that does not mean that such statement loses its value if the person lives for a longer time than expected.
iii) In the context of proximity of time, a Constitution Bench of Hon’ble Supreme Court of India in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, in paragraph 21 of the judgment held as under:
“21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:
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(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.
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(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.”
It thus, emerges that there cannot be a straight jacket formula as to the proximity between the time of making statement and death and merely because the person making the statement, died long after making a statement as to the cause of his death or the circumstances of the transaction which resulted in his death, would not make the statement inadmissible.
– The law does not prescribe any particular form of dying declaration. Even an oral dying declaration, is admissible in law. In a catena of cases dying declarations recorded by the police officers have been held to be admissible by the Hon’ble Courts. It is pertinent to state here that dying declarations recorded by doctors, police officials and even strangers have been held to be admissible by the Hon’ble Courts. It has been held that dying declaration need not necessarily be recorded in question-answer form. It may consist of only a few sentences recorded is in actual words uttered by the deceased. Punjab and Haryana High Court Rules and Orders provide for the manner in which the Judicial Magistrates should record dying declarations. The rules are contained in Volume-III, Chapter 13-A. Rule 4 provides that the statement, whether made on oath or otherwise, shall be taken down by the judicial magistrate in the form of simple narrative. The rule further states that the Judicial Magistrate may for clearing any ambiguity ask the declarant to disclose the cause of his apprehended death or circumstances of the transaction in which he sustained the injuries. The rule further states that if any occasion arises for putting questions to the dying man, the Judicial Magistrate should record the questions as also the answers, which he receives and emphasis has been laid upon recording the actual words of the declarant rather than taking down their substance.
It has however, been held by the Hon’ble Courts that statements recorded before Judicial Magistrates have a higher value.
– Rule 3 of Chapter 13-A of Volume-III of Punjab and Haryana High Court Rules and Orders states that before proceeding to record a dying declaration, the judicial magistrate should satisfy himself that the declarant is in a fit condition to make a statement and if a medical officer is present or his attendance can be secured without loss of time, his certificate as to the fitness of the declarant to make a statement should be obtained. The rule further states that if circumstances do not permit waiting for attendance of the medical officer, Judicial Magistrate may proceed to record the statement forthwith but he should note down the reasons, why he considered it impracticable or inadvisable to wait for doctor’s attendance. In Ramila Ben Hasmukhbhai Khristi v. State of Gujarat, (2002) 7 SCC 56, it was held by the Hon’ble Supreme Court of India that a doctor’s certificate about mental fitness of the declarant to make statement is necessary. This view was however, impliedly over-ruled by the Hon’ble Apex Court in judgment titled as Sohan Lal v. State of Punjab, (2003) 11 SCC 534 and Muthu Kutty and another v. State by Inspector of Police, T.N. (2005) 9 SCC 113. In Sohan Lal’s case dying declaration had been recorded by a Naib Tehsildar. However, there was no medical certification as to the fitness of state of mind of the declarant. On the basis of evidence on the record, the Hon’ble Court arrived at a conclusion that the deceased was in a fit mental condition while making the statement. The statement was considered as dying declaration, irrespective of the fact that there was no endorsement of doctor about fitness of the state of mind of the declarant.
– Dying declaration can be sole basis of conviction, if it inspires full confidence. If the Courts are satisfied that the deceased was in a fit state of mind at the time of making the statement and it was not a result of tutoring, prompting or product of imagination, conviction can be based on uncorroborated dying declaration. In Khushal Rao v. State of Bombay, AIR 1958 SC 22, the Hon’ble Supreme Court of India held as follows:
“17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.”
The Act does not make any distinction between homicide and suicide in respect of dying declarations. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Hon’ble Supreme Court of India took this view and held that Section 32 does not speak of homicide alone but it includes suicides also. Hence, all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
– The principles governing dying declaration, were enunciated by the Hon’ble Supreme Court of India Smt. Paniben v. State of Gujarat (1992) 2 SCC 474. The principles were reiterated in Shakuntla v. State of Haryana reported as (2007) 10 SCC 168. The said principles were stated to be of immense importance and cardinal in nature and were reiterated in case titled as Jaishree Anant Khandekar v. State of Maharashtra, (2009) 11 SCC 647. The principles are as under:
“(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376])
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 : 1985 SCC (Cri) 127] and Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169].)
(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473].)
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426])
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645])
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. [(1981) 2 SCC 654 : 1981 SCC (Cri) 581])
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364].)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769 : 1979 SCC (Cri) 519].)
(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342])
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989 SCC (Cri) 585].)
(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700 : 1982 SCC (Cri) 334].)”
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Criminal cases are decided mainly on the basis of oral testimony of the witnesses who have witnessed the occurrence. The documents in the criminal cases have a very little role to play except in the offences involving economic offences. Whereas in the civil case, the documents are the backbone of the case. Civil cases are decided on the basis of the documents by which the relevant facts are to be proved. A man can be convicted on the basis of the statement made orally by a witness whereas in a civil case hardly a decree can be passed on the basis of the oral statement of the witness. Most of the civil cases affecting the rights of the parties in valuable properties fail on account of lack of proof of documents. Mode of proof of documents is the complicated, cumbersome and intricate task bestowed upon the trial court advocate as well as the trial court judges. A large number of practising advocates fails to prove their case by not properly proving the documents resulting in irreparable loss to the party who is ignorant about the intricacies of law.
Mere exhibition of the document does not dispense with the proof of the document in a legally permissible manner.[2] The relevant law relating to proof of documents is contained in evidence act 1872. The procedure, method and way of mode of proof of documents is provided in section 64 to 73A of the said act.
By this article, I will deal exclusively with the proof of documents, its admissibility and its exhibition in a legal manner. For knowing the mode of proof of documents, one ought to understand the methodology and relevant legal provisions to prove the document besides one ought to know the meaning of the word document.
DEFINITION OF DOCUMENT:- Document has been defined in section 3 of the interpretation clause of evidence act as under:-
“document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter”
Word `negligence’ in legal parlance means failure to exercise care expected of a person of ordinary prudence towards another person to whom he owes the duty to be careful while doing certain act and such failure results in injury to that other person. In other words, for actionable negligence, three conditions are required to be fulfilled viz,-
(i) legal duty to take due care/caution on the part of a person towards another person;
(ii) failure to take expected care and caution; and
(iii) damage caused to the person to whom the duty is owed due to such failure.
Medical negligence, is no different from any other actionable negligence. The only difference is that the standard of care and caution expected of a medical professional should be that of a medical professional of ordinary skill and knowledge. Comparison is not to be done with a person having extra-ordinary skill in the profession. This is known as Bolam test because such a view was taken in the case of Bolam v. Friern Hospital Management Committee (1957) 2 All.E.R. 118 (QBD). The view has been followed all through and still holds the field.
According to Halsbury’s Laws of England, a professional must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care.
A person is not liable, in negligence because someone else possessing greater skill and knowledge would have prescribed different treatment or operated in a different way. Also he would not be guilty of negligence, if he has taken recourse to a method of treatment and diagnosis, which is considered to be appropriate one by a legitimate group or body of medical practitioners having sufficient knowledge and experience, in the relevant field, even though another body of practitioners may hold a different opinion. Halsbury’s Laws of England, further records that a mere deviation, from normal practice, is not necessarily a pointer to the negligence and that following three facts need to be proved, to hold a person guilty of medical negligence:
(a) there is a usual and normal medical practice for a particular type of ailment;
(b) the defendant has not adopted that practice; and
(c) the course adopted by the defendant is such that no professional of ordinary skill would have gone in for that had he been acting with ordinary care.
Simply for the reason that the course of treatment adopted does not work or the things go wrong, due to error of judgment in choosing a particular course of action in preference to another, the doctor cannot be held guilty of negligence.
The test for medical negligence laid down in Bolam’s case has been adopted by Indian Courts in various cases. In Jacob Mathew v. State of Punjab and another (2005) 6 SCC 1, it has been specifically held that the test holds good in its applicability to cases in India. In a recent case reported as Vinod Jain v. Santokba Durlabhji Memorial Hospital and another 2019 SCC ONLINE SC 263, applying the Bolam’s test, the Hon’ble Supreme Court dismissed the allegation of culpable negligence, against a doctor who on cannula having stopped working, instead of re-cannulating the patient, administered the anti-biotic orally, on noticing that the patient was normal, afebrile, well hydrated and displayed normal vitals.
As in the case of any other negligence, medical negligence can also be civil, for which the remedy is by way of damages or both civil and culpable. The difference between the two types of negligence is that while in the case of civil negligence, it is simple lack of care and caution, in the course of treatment and/or diagnosis, in the case of criminal or culpable negligence mens rea has also to be there. Mens rea in a case of criminal negligence does not mean the intention to cause harm. It means gross recklessness that is capable of causing serious harmful consequences, which are intended to be prevented by the relevant provision of penal law and which a professional of ordinary and average skill would have anticipated. The degree of recklessness should be so grave that the possible consequences were not even thought of before starting the questioned course of treatment/ diagnosis.
The Hon’ble Supreme Court in Syed Akbar v. State of Karnataka (1980) 1 SCC 30 held that negligence required to be proved in a criminal case must be gross and not based on just an error of judgment. It was also observed in this very case that there is a marked difference in the standard of proof in cases of civil negligence and those of criminal negligence. In a case of civil negligence, the allegation can be proved by the doctrine of preponderance of probability, but the charge of criminal negligence has to be proved beyond reasonable doubt.
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Some illustrations have been appended with this section to explain the phrase `document’.
The said definition has also been adopted in section 3(18) of the General Clauses act, 1897.
Both these acts had been brought on the statue book in the nineteenth century. After the passage of one and a half century, the definition of a document has not undergone any change or modification till date.
In simple layman language, a document can be described as which can be perceived by the eyes. This simple definition covers the entire gamut of the word document in its true sense. Anything which cannot be perceived by eyes can never be considered to be a document. Voice cannot be perceived by eyes and as such is not covered under the definition document. Similarly, anything which can be perceived by touch is not a document.
Different modes have been prescribed/demarcated under the evidence act 1872 about the proof of documents. The accepted mode of proof of documents can be summed as under:-
1. By admission of the person who wrote or signed the document
2. By calling a person in whose presence the document was signed or written(ocular evidence/attesting witness)
3. By calling a person who is acquainted with the writing of the person by whom the document is supposed to have been signed or written (Section 70)
4. By proof of an admission made by the person who is stated to have signed or written the document to that effect made in any other judicial proceedings.
5. By calling a handwriting expert who can compare in the Court the disputed signatures of writing with the admitted signatures or writing (opinion evidence/scientific evidence)
6. By calling a person who in routine has been receiving the document signed by the person in the course of his business or official duty though he may have never seen the author signing the document.
All these modes have been explained in the judgment of the Himachal Pradesh High Court.[3]
Under section 67 of the act provides proof of signatures and handwriting of the person who is stated to have signed or written document must be proved to have been in his handwriting. Under section 70 of the act which says that a admission of the party to a attested document of its execution by him shall be sufficient proof of his execution as against him though it may be a document required by law to be attested. Otherwise also, under section 18 of the act, admission is the best proof of the execution. Further under section 58 of the act, an admitted fact need not be proved.
As a sequel, the document can be said to be proved if it is admitted to be signed or written by him. No other proof in this regard is required.
The vital question which arises for consideration is what are the type of documents which are required by law to be attested and the documents which are not required by law to be attested.
Under Indian Legal jurisprudence there are four documents required by law to be compulsorily attested by two or more attesting witnesses. These are as under:-
1. A will is required to be attested by two or more witnesses under section 63 of the succession act.
2. A Mortgage deed is required to be attested by two or more witnesses under section 59 of the transfer of property act, 1882
3. A gift deed is required to be attested by two or more witnesses under section 123 of the transfer of property act, 1882
4. A bond required to be attested by one witness under section 2(5) of the Indian Stamp Act, 1899.
Except the aforesaid four documents, no other document is required by law to be compulsorily attested by any attesting witness. The minimum requirement of the first three set of documents is two but there is no bar on the document being attested by more than two witnesses. Only bond is required to be attested by one witness. If a document under the first three categories is attested by only one witness, it is legally inadmissible in evidence for not complying with the mandatory provisions of law. However, the judicial interpretations has taken its firm root when it has observed that only one witness is required to be examined to prove the execution of the document. There is no necessity of examining both the witnesses though the document is to be attested by two witnesses.
Section 68 of the act provides the mode of proof of execution of documents required by law to be attested. Such document shall not be used in evidence until one attesting evidence atleast has been called for the purpose of proving its execution if there be an attesting witness alive and subject the process of court and capable of giving evidence.
Three ingredients can be culled out for application of this section
1. An attesting witness has to be alive.
2. He is subject to the process of court
3. He is capable of giving evidence.
In case, any of the three ingredient is missing, the document cannot be said to be legally prove.
That the proviso lays down that it shall not be necessary to call an attesting witness in proof of the execution of any document not be a Will which is registered in accordance with the provisions of Indian registration act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied.
For the purpose of proving the Will, the examination of the attesting witness is sine qua none for its proof. The examination of the witness cannot be dispensed with under any of the circumstances.
For the remaining two documents i.e. mortgage and gift which are compulsorily registrable document there is no need to cal and examine the witness if its execution is not denied specifically by the executants. The author of such document has to be specifically and unequivocally deny the execution of the document so as to compel the other party to prove the document. The Will comes into operation after death of the executant so he cannot come from heavens to deny specifically the execution of the Will.
Section 69 of the Indian Evidence Act provides that if no such attesting witness can be found or if the document purports to have been executed in the united kingdom it must be proved that the attestation of one attesting witness atleast is in his handwriting and the signatures of the person executing the document is in the handwriting of that person.
This section deals with the contingency where both the attesting witnesses are dead, then, their signatures, thumbmark can be proved by calling any person who can prove the said signatures or handwriting. The second requirement of this section is that the signatures/thumb mark of the executants has to be prove to be that of the executant in a legally permissible manner.
Section 71 of the Indian Evidence act provides that of attesting witness denies or does not recollect the exhibition of the document, its execution may be proved by other evidence. The phrase `other evidence’ has to be interpreted in terms of section 69 of Indian Evidence Act, 1872.
Section 73 of the Indian Evidence act provides that when the executant denies his signatures, writing or the seal to have been written or made, then, the said disputed signatures, writing or seal may be compared with the one which is to be proved although that signatures, writing or seal has not been produced or proved for any other purpose. The court is competent to direct any person present in the court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by any such person. Though science of handwriting is not an exact science as compared to the science of thumb impression, yet if the report of the handwriting expert is logical, convincing and acceptable, the same can be admitted into evidence. However, the court should not embark upon itself the task of comparison of signatures or handwriting on itself.
Section 73A of the Indian Evidence Act provides for the mode of proof of digital signatures of the person by whom it purports to have been affixed by modes provided in this section.
Prior to the amendment of order 18 Rule 4 CPC, the examination in chief of a witness was recorded in open court in the presence of the adverse party who could raise the objection regarding the exhibition of the document and the court was to decide the said objection there and then. However, after the amendment of the Code of Civil Procedure in 2001, in Order 18 Rule 4 it has been provided that the examination in Chief of the witness has to be by way of affidavit which is written, signed and attested and the documents are exhibited outside the courts. Nothing happens in the presence of the adverse party.
To avoid the introduction of irrelevant documents or documents which are not legally proved, it has been provided in Proviso to Order 18 Rule 4(1) wherein it has been laid down that proof and admissibility of such document which are filed alongwith the affidavit shall be subject to the orders of the Court. In view of this proviso, there is no necessity of raising any objection regarding the admissibility and proof of documents. However, out of abundant caution, the adverse party ought to raise objection regarding the proof and admissibility of any such document.[4]
When the objection is taken regarding the mode of proof of the document, then, the party tendering the document ought to become vigilant and prove the document in accordance with the procedure detailed supra. Otherwise, the party tendering the document may carry a wrong impression stands proved and at the final hearing he may suffer an adverse order on account of non-proving the said document in accordance with law.[5]
There are three types of objections which can be taken against the exhibition of the document are enumerated as under:-
a. Mode of proof
b. Document having been scribed on a insufficient stamp paper
c. Non-registration of document
The first objection regarding mode of proof of a document can be waived or abundant by the adverse party by not raising the objection at the time of marking of the document as an exhibit. Such an objections relates to the realm of procedural law which can be waived. In case, any such objection is raised, the party marking the document as exhibit shall be duty bound to prove the document in its evidence in the manner detailed above(Supra) as the evidence of the said party is still continuing. It is fatal in case the party does not prove the document despite raising an objection to that effect.
The second objection regarding the document having been scribed on an insufficiently stamp paper cannot be allowed to be waived as it relates to the exchequer of the state. Moreover, it is a legal and substantive objection which can be taken at a later stage. No question of waiver applies in such cases. The insufficiently stamped document can be impounded under section 35 of the Indian Evidence act by paying the requisite value of the stamp duty with ten times penalty.
The third objection regarding the non-registration of the document can ever be waived by any party being legal objection and can be raised even when the proceedings are pending before the Hon’ble Supreme Court of India. A document which requires compulsory registration cannot be admitted in evidence except for limited collateral purposes under section 49 of the Indian Stamp Act. The main difficulty in deciding such an objection at the time when it is raised crops up only when the document is described by one party to be a memorandum while the adverse party alleges that it is a document on the basis of which rights are created between the parties.
The court should be prompt, quick and intelligent enough to decide the first two objections whenever they are raised while the decision on the third objection can be postponed to the stage of final arguments after both parties lead their respective evidence. Similarly, advocates ought to remain vigilant enough about the rights of their respective clients as its relates to the arena of administration of justice. Such a lapse on their part may result into irreparable loss to his party/client.
[1] The author passed degree in Master of Laws from the Panjab University Chandigarh in the year 1978. He has been practicing on civil side at Ludhiana. He has been a guest professor in Panjab University Regional Centre, Ludhiana. He had judged various moot competitions held in PURC, Ludhiana.
[2] LIC of India and another v. Rampal Singh bisen, 2010(2) RCR(C) 459.
[3] 1995(1) RRR 692(Para 7)
[4] Jasjit Singh and Another v. Prem Harjit Singh and other, 2013(1) RCR(C) 514.
[5] Rasik Lal Manikchand v. M/s MSS food products, 2012(2) RCR(C) 307(SC).
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Jurists have been debating for centuries whether death sentence should be retained or abolished as a penalty. Debaters on both the sides advance well-founded and highly convincing arguments and consequently lawmakers find it quite difficult whether to retain the capital punishment on the statute book or not. Some of the most advanced States, like the U.S. have abolished the death sentence, but killings with legal sanctions by such States continue, which fact suggests that even those States which have abolished death as penalty, at times feel convinced that killing of ultras is the only solution to put an end to the violence unleashed by them. Killing of Osama Bin Laden can be taken to be an example. On the other hand there are some States which believe that perpetrators of heinous crimes deserve only the death punishment so that law abiding citizens may lead peaceful and fearless life. Some Islamic States follow this line of thought. But even in such States the law provides for escaping the death penalty. For example a murderer can avoid the death sentence by paying blood money.
Killing of ultras by advanced States and escaping death sentence on payment of blood money in States where the law prescribes death as the only punishment for murder, demonstrates that an extreme view on the issue cannot be stuck to and at times recourse has to be taken to the punishment other than the codified one.
In our country prior to the enforcement of the Code of Criminal Procedure, 1973, courts had absolute discretion to award either the death penalty or life imprisonment in heinous crimes like murder, dacoity etc. Now section 354 (3) of the Code of Criminal Procedure, 1973 requires that special reasons should be recorded, by the court for imposing death penalty, where a person is convicted of an offence punishable with death or life imprisonment. Interpreting this provision a Constitution Bench of the Supreme Court of India in case titled as Bachan Singh v. State of Punjab held as long back as in the year 1980 that death sentence should be awarded only in the rarest of rare cases when alternative option is unquestionably foreclosed.
A landmark judgment of the Hon’ble Supreme Court of India, delivered on 5th March, 2019 by which on review of an earlier judgment dated 30th April, 2009 whereby an appeal by three of the six convicts, against their conviction and death penalty, along with the appeal by three other convicts in the same case had been dismissed, demonstrates that at times persons who deserve to be acquitted get not only convicted but also sentenced to death due to error of judgment. On review the Hon’ble Supreme Court has not only set aside the death sentence, but even acquitted all the appellants of all the offences, for which they were earlier held guilty by it. Judgment holds that evidence on record does not prove the charge. The judgment is definitely a shot in the arm of those who advocate abolition of death penalty.
Though awarding of death penalty in certain cases may be the only choice for doing justice say in cases like the recent Pulwama attack or attack on the Parliament or the cases in which female children are raped and then killed to destroy the evidence yet some fool proof methodology is required to be put in place, to ensure that the death penalty is awarded when the crime stands proved to the hilt and not just beyond reasonable doubt. For recording a conviction law requires that the case must be proved beyond reasonable doubt. This requirement may be alright upto the stage of recording the finding whether accused is guilty or not. This proposition is based on the wisdom of very illustrious judges and jurists. But when it comes to awarding the punishment the decision makers should be fully convinced, based on the evidence on record and no other consideration like morality or public perception etc. that the crime has definitely been committed by the convict. Even the slightest doubt lurking in the mind of the judges, about the culpability of the convict, should be a ground against the award of death penalty, because this penalty once executed cannot be undone, whereas other penalties can be, if at a later stage, it is found that the convict was innocent or that the circumstances under which he happened to commit the crime, did not justify death penalty.
Further a very important lesson, which the persons administering the criminal justice, need to learn from this case, is that every precaution should be taken to ensure that no innocent person is convicted. The media should also not create unwarranted hype about a particular case, howsoever heinous the crime may be, because judges also are human beings and at times they get swayed by the media reports. Judges’ job is very solemn and onerous. They can perform it much better if the media acts with a little restraint and does not suggest its own findings and conclusions.
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