Oldalképek
PDF
ePub

(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; (c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds (sec. 60). An exception to the rule about opinion, evidence is made in favour of experts, whose opinions are expressed in treatises commonly offered for sale, when such experts are dead or cannot be found, or have become incapable of giving evidence, or, if to call them as witnesses, it would involve unreasonable delay or expense, then such treatises may be produced as evidence of such opinions, and of the grounds on which they are based (sec. 60). Sec. 60 also provides that if oral evidence refers to the existence or condition of any material thing other than a document, the Court may require it to be produced for inspection.

The Code then, in Chapter V, deals with documentary evidence. The general rule is that documents may be proved either by primary or by secondary evidence. Primary evidence means the document itself (sec. 62), secondary evidence is of five different descriptions, viz., (a) certified copies, (b) copies made from the original by mechanical processes, and copies compared with such copies; (c) copies made from or compared with the original; (d) counter-parts of documents as against the parties who did not execute them; (e) oral accounts of the contents of a document given by some person who has himself seen it (sec. 63). Sec. 64 lays down the rule that documents must be proved by primary evidence except in the following cases: (a) when the original is in the power or possession of the opposite party, or of any person out of the reach of, or not liable to the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in sec. 66, such person does not produce it, in this case any secondary evidence of the contents is admissible; (b) when the existence or contents of the original are proved to have been admitted in writing by the person against whom it is to be proved or his representative in interest, in this

case the

C

written admission only is admissible; (c) when the original has been lost or destroyed or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time, in this case any secondary evidence is admissible; (d) when the original is of such a nature as not to be easily moveable, in this case also any secondary evidence is admissible; (e) when the original is a public document within the meaning of sec. 74, in this case only a certified copy of the document is admissible; (f) when the original is a document of which a certified copy is permitted to be given in evidence, in this case also only a certified copy of the documents is admissible; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection, here the result may be proved by any person skilled in the examination of such documents, who has examined them (sec. 65). The provisions as to the proof of handwriting and signatures, where a document is alleged to have been written or signed by a particular person, and as to proof of attestation when document is required by law to be attested, are contained in secs. 67-73. Sec. 74 enumerates public documents. Sec. 76 gives a definition of a certified copy. Secs. 77 and 78 say how public documents are to be proved, then follow the provisions regarding the presumptions as to genuineness of certified copies (sec. 79), of documents produced as record of evidence or statement or confession by any prisoner or accused person (sec. 80), of gazettes, newspapers, private Acts of Parliament, and other documents purporting to be documents directed by any law to be kept by any person (sec. 81), of documents admissible in England without proof of seal or signature (sec. 82), of maps or plans made by authority of Government (sec. 83), of collections of laws and reports of decisions (sec. 84), of powers-of-attorney (sec. 85), of certified copies of foreign judicial records (sec. 86), of any book to which the Court may refer on a matter of public or general interest, and any published chart or map produced for its inspection (sec. 87), of telegraphic messages (sec. 88), of documents called for and not produced after notice to produce (sec. 89), and of documents thirty years old, and produced

from proper custody (sec. 90). Secs. 79-85 and 89 provide for cases in which the Court shall presume certain things about the documents mentioned in them. Secs. 86, 87, 88 and 90 provide for cases in which the Court may presume certain things about them. Chapter VI lays down the rules regarding the exclusion of oral by documentary evidence. Sec. 91 broadly lays down that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no derivative and consequently no verbal or other parol evidence of their consents is receivable, until the absence of the original writing is accounted for. The writing itself is not only the best, but is the only admissible evidence of the matter which it contains. This rule is subject to two exceptions. Exception 1-When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2-Wills admitted to probate in British India may be proved by the probate. The second rule is that in any such case no evidence of any contemporaneous oral agreement or statement shall be admitted as between the parties to the document or their representatives, for the purpose of contradicting, varying, adding to, or subtracting from, its term. There are six important provisos to this rule, which modify it to a considerable extent. They are the following :-(1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; (2) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms may be proved; (3) The existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under the document may be proved; (4) A subsequent oral agreement to modify or reverse the original contract may be proved, except when it is obliged by law to be in writing, or has been duly registered; (5) Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved; (6) Any fact may be proved which

shows in what manner the language of a document is related to existing facts. The rules as to the admissibility of extraneous evidence for the purpose of interpreting documents are contained in secs. 93-100. They may be stated as follows: (1) When the language is on its face ambiguous or defective, no extraneous evidence is allowed to remedy the defects (sec. 93); (2) When language is plain in itself and applies accurately to existing facts, evidence cannot be given to show that it was intended to apply to other facts (sec. 94); (3) When language is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense (sec. 95); (4) When language would apply equally well to several persons or things, but could not have been intended to apply to more than one of them, evidence may be given to show, to which of those persons or things it was intended to apply (sec. 96); (5) When the language used applies partly to one set of existing facts and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply (sec. 97); (6) Evidence may be given to show the meaning of illegible or not commonly intelligible characters of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense. These rules of construction do not apply to documents which are governed by the Indian Succession Act (sec. 100).

The third part of the Evidence Act deals with the subject of production and effect of evidence, and is divided into five chapters. Chapter VII, which relates to the burden of proof, deals with the subject of presumptions. The general principles which regulate the burden of proof are laid down in secs. 101-106. Sec. 101 asserts that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The next section supplies a test for the purpose of ascertaining on whom the burden of proof lies. It says that the burden of proof lies on that person who would fail if no evidence at all were given on either side. Sec. 103 says that when a person wishes the Court to believe in the existence of any particular fact, he should prove it. Sec. 104 provides that the burden of

proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. Sec. 105 relieves the prosecution from the necessity of proving the absence of circumstances which might constitute a general or special exception under the Indian Penal Code or any other law defining an offence. It is incumbent on the accused to prove the existence of circumstances which would show that the exceptive clause takes his case out of the danger of the law. Sec. 106 says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

The Code next enumerates the cases in which the burden of proof is determined in particular cases, not by the relation of the parties to the cause, but by presumptions (secs. 107-111). If a man is shown to have been alive within thirty years, the burden of proving that he is dead lies on the person affirming it (sec. 107); if a person has not been heard of for seven years, the burden of proving that he is alive is on the person who affirms it (sec. 108); when people are shown to have stood in the relation of partners, landlord and tenant, principal and agent, the burden of proving that they do not stand or have ceased to stand to each other in those relationships respectively is on the person who affirms it (sec. 109); when a man is in possession of anything, the burden of proving him not to be the owner lies on the person asserting that he is not the owner (sec. 110); the burden of proving the good faith of transactions between parties, one of whom stands to the other in a position of active confidence, is on the party who is in a position of active confidence (sec. 111). The law then notices two cases of conclusive presumptions, the presumption of legitimacy from birth during marriage (sec. 112), and the presumption of a valid cession of territory from the publication of a notification to that effect in the Gazette of India (sec. 113). Finally, it declares, in sec. 114, that 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. A large number of presumptions, to which the English text-books give an artificial value, are treated as mere

« ElőzőTovább »