MAHANT BHAGWAN BHAGAT VS G N BHAGAT

In the present case, the mutt was a Mouriasi mutt and the second respondent was its
mohunt. He nominated the first respondent as his successor by a deed. and by a second deed,
surrendered to him his right to, the office of mohunt
The appellant claimed the office as the senior disciple on the contention that the devolution to
the office was to the senior disciple according to the tenets and customs of the sect
which established the mutt. The trial court decreed the suit but the High Court seT aside the
decree Dismissing the appeal to this Court,

A fairly large number of witnesses stated that the qualifications for a persons nomination to the Mahantship did not
depend only on seniority but on ability to manage,celibacy, adherence to religious principles and a habit of
serving sadhus, fakirs and visitors besides a good moral character. Some even suggested that it was the ablest Chela
who was made the Mahant. Making due allowance for the witnesses who came to support the case of the party
examining them, the oral testimony unquestionably leads us to hold that in the matter of nomination of a successor to
the Mahantship seniority was not the decisive factor but that ability and efficiency in management coupled with a
good moral character and adherence to the religious rites practised at the mutt and a spirit of service to sadhus etc.
all entered into consideration in the selection of a successor by a Mahant. This conclusion is fortified by the
documents exhibited. A they do not support the plaintiffs version that invariably the senior Chela was
selected. In our view the document executed by Narsingh Bhagat in favour of Ganesh Bhagat sets out the custom as to
succession fairly accurately.

STATE OFRAJASTHAN VS BABU MEENA

Prosecution started on the basis of a first information report lodged by PW-4, Prem Singh, inter
alia alleging that on 20th of April, 2005 his daughter Kirti Chauhan, aged about 16 years left the
house and her whereabouts are not known. The informant suspected that his elder daughter
Jitendra had allured her. He further disclosed that Jitendra had solemnized inter-caste marriage
with Babu Meena, the accused herein and was staying in Udaipur, Rajasthan. Accordingly,
informant prayed that search be made to recover his daughter. Thus, the law that emerges on the
issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and
reliable, requires no corroboration. The court may convict the accused on the sole testimony of
the prosecutrix. We do not have the slightest hesitation in accepting the broad submission of Mr.
Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be
worthy of credence and reliable and for that no corroboration is required. It has often been said
that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly
unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable
testimony of a single witness, the conviction can be founded without corroboration. This
principle applies with greater vigour in case the nature of offence is such that it is committed in
seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the
court has no option than to acquit the accused.
DOCUMENTARY EVIDENCE
Yakoob ali vs state of tripura

Indian Penal Code, 1860. S. 302 Murder Appellant convicted u/s. 302 for killing his
wife and sentenced to undergo R.I for life Appellant after strangulating the deceased with a
ligature hanged her No eye witness Conviction of the appellant based on circumstantial
evidences Motive Question of motive relevant in a case based on circumstantial
evidence Deceased assaulted and tortured by the appellant because of the protests made
by her to the stealing habits of the appellant Appeal Conviction and sentence passed by
the trial Court affirmed

[Para 21]
Evidence Act, 1872, S. 62 Admissibility of carbon copy of a document Carbon copy
prepared under one uniform process whether admissible as primary evidence under S.
62 of the Act Held: yes

Thus, we find that the post mortem report is to be prepared in triplicate by pen carbon and in the
instant case also, the post mortem report was prepared by pen carbon in one uniform process and as
such, in view of the provision of Section 62 of the Evidence Act, such carbon copy is primary
evidence. Moreover, we find that in Ext. P-6, the signature of the doctor appears in original i.e
although the contents of the post mortem report was prepared in carbon copy, signatures were given
on each and every carbon copy.

Hindustan Construction Company Ltd. vs. Union of India (UOI). (12.10.1966 - SC) :
MANU/SC/0006/1966

This is an appeal by special leave against the judgment of the Punjab High Court and arises in
the following circumstances. The appellant entered into a contract with the Union of India, respondent
herein, for construction of certain highway bridges. In connection with the execution of the contract,
some disputes arose between the parties and were referred to the joint arbitration of Sri B.K Guha
and Sri N.P Gurjar. As there was difference of opinion between the two arbitrators, the matter was
referred to an umpire, namely, Sri Dildar Hussain, retired Chief Engineer, Hyderabad. The umpire
recorded evidence of the parties and gave his award on May 27, 1961.

The case debated on whether the copy of award duly certified to be true copy by the
umpire and then signing the award could be considered as a true copy as required under
Section 14(2) of the Indian Arbitration Act (10 of 1940) - It was held that the document was an
accurate and full reproduction of the original and was a copy of the same - Thus the document
was a copy of the original and was a signed copy, as it was bearing the signature of the
umpire.
 When a document is an accurate or true and full reproduction of the original it would be a copy. In
the present case it is not in dispute that what was produced by Sri Dildar Hussain was a true or
accurate and full reproduction of the original. It was therefore a copy of the original, and the only
question that remains is whether it was signed, for if it was signed, it would be a signed copy.

. We accept these observations and are of the opinion that so long as there is the signature of the
arbitrator or umpire on the copy of the award filed in court and it shows that the person signing
authenticated the accuracy or correctness of the copy of the document would be a signed copy of the
award. It would in such circumstances be immaterial whether the arbitrator or umpire put down the
words certified to be true copy before signing the copy of the award.

Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457, was

a case where certified copies of certain leases from the record of an old case of the
Court of the Subordinate Judge, Madhurai, were produced as Exs. B-4, 5, 6 and A-
68, 69 and 77, These documents are Exts. B-4, 5, 6 and A-68, 69 and 77. Ex. B-4 is
a Kararnama (agreement) executed for the fasli years 1348 and 1349 by which the
lessees undertook to hand over 1/3 share of the produce as melwaram and to retain
2/3 share as kudiwaram from the lands leased out of Keelapappapathu. Ex. B-5 is
another lease for cultivating the whole of Keelapappapathu nanja (wet) lands. Ex. B-
6 is a muchilika in respect of nanja lands in Keelapappapathu by which lessee
undertook to pay half produce as melwaram and to retain the other half as
kudiwaram. These documents undoubtedly would have thrown light upon the matter
but they were not admissible because they were only copies. The originals of these
documents were not produced before the trial Court at any time. In reaching the
conclusion in favour of the appellants the District Judge took into consideration these
exhibited certified copies of the documents. The High Court in appeal, however,
excluded the same from consideration. The Supreme Court observed, inter alia, as
under (at p. 1461 of AIR):-
'The originals were not produced at any stage nor was any foundation laid for the
establishment of the right to give secondary evidence. The High Court rejected them
and it was plainly right in so doing. It we leave these documents out of consideration,
the other document do not show that the inam comprised the Kudiwaram also. '

Biswajit Chakraborty vs. Mira-Sen Ray (10.05.2002 - CALHC) : MANU/WB/0680/2002

It is settled law that the carbon copies produced by type-writers may, for all practical purposes, be
regarded as equivalent, though the Impressions on the lower sheets are likely to be imperfect. They
are prepared by same stroke, which makes the surface impression. In the aforesaid background the
Supreme Court held that the carbon copy could be admitted as primary evidence. I am unable to
accept the contention of Shri Chatterjee that photocopy/xerox copy of a document can be admitted
in evidence as primary evidence and I hold that photocopy is not admissible as primary evidence
under any provision. In view of the clear language of sub-section (2) of Section 63 of the Indian
Evidence Act, 1872, photocopy/xerox copy is secondary evidence and can never be regarded as
primary evidence. I, therefore, hold that the learned trial Judge acted without jurisdiction in
directing the plaintiff to produce the original document for the purpose of impounding the same.
Mere production of the photocopy of the document along with the application for temporary
injunction or otherwise was not enough to attract the provisions of Section 33(1) of the said Act. In
this case the document has been illegally impounded and has been sent to the Collector and,
therefore, the Collector to whom the document has been sent cannot impound it of his own accord.

RAMDAS BHATU CHAUDHARY VS STATE OF MAHARASHTA

Evidence Act, Ss. 62, 63 and 65 Primary evidence and secondary evidence Leading
secondary evidence Permissibility When secondary evidence relating to the documents
may be given.

The parties on issue, have to produce primary evidence in the Court. The primary evidence means a
document itself and has to be produced in the Court for inspection of the Court. Leading secondary evidence is
made permissible under certain circumstances. The cases in which secondary evidence relating to the
documents may be given have been listed under section 65 of the Evidence Act. Such evidence can be tendered
of the existence, condition or contents of a document. If it is established by a party to the suit or proceeding that
when the original is shown or appears to be in possession or power of the person against whom the document is
sought to be proved or of any person out of reach or not subject to process of the Court or of any person legally
bound to produce it, and when after the notice as mentioned in section 66, such a person does not produce the
said document. Section 65(b), (c), (d), (e), (f) and (g) also details the contingencies, wherein secondary evidence
can be led. It is clear from the notice given by the defendants to the plaintiff that the plaintiff has denied
possession of the said document i.e agreement of sale dated 15-10-1984. The defendants have not led a
foundation in their pleadings i.e the written statement that the said agreement was executed by deceased in
favour of the plaintiff on 15-10-1984 and terms and conditions of such agreement agreed between the
defendants as well as the plaintiff were embodied in the Agreement and said Agreement is in possession or
power of the plaintiff. In this fact situation, it cannot be said that the said agreement of sale was in possession or
power of the plaintiff. In the present case, said document is set up against the plaintiff. The plaintiff is not
accepting existence of such an agreement of sale. Looking to entire scheme of sections 63 to 66 of the Evidence
Act, the document marked by Article D cannot be treated to be secondary evidence and justifiably has not been
accepted by the first Appellate Court. In the present case, there is no evidence on oath led on behalf of
the defendants regarding such destruction or loss of agreement of sale dated 15-10-1984 and
therefore, this photostat copy Article D cannot be read and/or is not admissible in evidence. Looking
to entire scheme of section 63 to 66 of the Evidence Act, I am of the opinion that the document
marked by Article D cannot be treated to be secondary evidence and justifiably has not been
accepted by the first Appellate Court.

P.ram srinivas rao vs dr. N. raghvan

photograph is made by mechanical process and, is primary and positive evidence and, is
admissible in law.

(Paras 9 & 10)

Practice and Procedure Marking of photographs When & how permissible It is not
proper to mark photograph/s in cross examination even though the witness admits it When
the witness had not taken photographs, it is to be marked only through the person who took
photograph or through person at whose instance it was taken.

Whether a photograph is a correct reproduction of the original, whether it correctly depicts the
picture of the location depends on many factors viz., correctness of lens, state of weather and time
taken, photographic skill adopted by the photographer, accuracy of the angle, availability of light and
such other factors. The proof of identity of the site, location, objects and persons in the photograph
photograph could be admitted in evidence only by examining the photographer. It is always desirable
to produce the photographs by examining the person who took the photographs or by the party who is
relying on the photographs or at whose instance the photographs were taken. It cannot be marked
during cross-examination of the opponent or his witnesses.

Sodhi Transport Company and Anr. vs. The State of U.P. (25.05.1982 - ALLHC)
: MANU/UP/0459/1982

In deciding the question as to whether a rule about irrebuttable presumption is a rule of evidence or
not, it seems to us that the proper approach to adopt would be to consider whether fact A from the
proof of which a presumption is required to be drawn about the existence of fact B, is inherently
relevant in the matter of proving fact B and has inherently any probative or persuasive value in that
behalf or not. If fact A is inherently relevant in proving the existence of fact B and to any rational
mind it would bear probative or persuasive value in the matter of proving the existence of fact B,
then a rule prescribing either a rebuttable presumption or an irrebuttable presumption in that
behalf would be a rule of evidence. On the other hand, if fact A is inherently not relevant in proving
the existence of fact B or has no probative value in that behalf and yet a rule is made prescribing for
a rebuttable or an irrebuttable presumption in that connection, that rule would be a rule of
substantive law and not a rule of evidence. Therefore, in dealing with the question as to whether the
given rule prescribing a conclusive presumption is a rule of evidence or not, we cannot adopt the
view that all rules prescribing irrebuttable presumptions are rules of substantive law.It cannot be
seriously contended that when goods have been brought in a vehicle into the State of Uttar Pradesh
under a transit pass but the goods are not accounted for when the vehicle carrying the goods passes
through the exit check post, this fact is inherently irrelevant in accepting that the goods have been
sold within the State of Uttar Pradesh. Such a presumption is a rule of evidence and not a rule of
substantive law. In fact that would be a natural and relevant inference to be drawn in those
circumstances.

S.A.KHAN VS CHAUDHARY BHAJAN LAL

We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary
evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence.
A newspaper is not one of the documents referred to in section 78(2) of the evidence act, 1872 by which
an allegation of fact can be proved. The presumption of genuineness attached under section 81 of the
evidence act to a newspaper report cannot be treated as proved of the facts reported therein.
It is now well settled that a statement of fact contained in a newspaper is merely hearsay and, therefore,
inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to
have perceived the fact reported. In the present case, no evidence has been let in proof of the
statement of facts contained in the newspaper report. The absence of any denial by Ch. Bhajan Lal
will not absolve the applicant from discharging his obligation of proving the statement of facts as
appeared in the Press report. In fact, Ch. Bhajan Lal in his counter-affidavit has taken a stand that the
statements attributed to him based on the newspaper report are mere hearsay and cannot in law be
relied upon for the purpose of initiating such proceedings. Therefore, in the absence of required legal
proof, the Court will not be justified in issuing a suo motu notice for contempt of court.

Smt. J. Yashoda vs. Smt. K. Shobha Rani (19.04.2007 - SC) :

MANU/SC/7314/2007

Ratio Decidendi:

"Secondary Evidence - Admissibility of Photocopies as evidence - Photocopies cannot be admitted as

evidence without non-production of the original "

Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the
original itself is found to be inadmissible through failure of the party, who files it to prove it to be
valid, the same party is not entitled to introduce secondary evidence of its contents. Essentially,
secondary evidence is an evidence which may be given in the absence of that better evidence which
law requires to be given first, when a proper explanation of its absence is given. The definition in
Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and
then follow the five kinds of secondary evidence.

Case Note:

(1)Evidence Act, 1872 - Sections 63 and 65 (a)--Secondary evidence--Photostat copies filed--Original

was with one P--Documents can be admitted as secondary evidence when conditions prescribed
under Section 65 (a) satisfied--In instant case Clause (a) of Section 65 not satisfied--High Court rightly
held that photocopies could not have been received as secondary evidence--Order of High Court
does not suffer from any infirmity to warrant interference.

(2)Evidence Act, 1872--Sections 63 and 65 (a)--Secondary evidence--Admissible only in absence of

primary evidence--If original itself found to be inadmissible through failure of party--Same party not
entitled to introduce secondary evidence of its contents--In order to enable party to produce
secondary evidence--It is necessary for party to prove existence and execution of original document-
-Conditions laid down in Section 65 must be fulfilled before secondary evidence can be admitted

The State of Madras vs. A. Vaidyanatha Iyer (26.09.1957 - SC) :

MANU/SC/0108/1957
Respondent, an Income-tax Officer, called an assessee to his
house and took a sum of Rs. 800 from him. Immediately
afterwards a search was made and the respondent, after some
evasion, produced the money. The respondent's defence was
that he had taken the money as a loan and not as illegal,
gratification. The Special judge who tried the respondent
found him guilty under s. 16i, Indian Penal Code, and sen-
tenced him to six months simple imprisonment. On appeal,
the High Court acquitted the respondent.

"Where in any trial of an offence punishable under s. 161.......it is proved that an accused person has
accepted.......any gratification (other than legal remuneration).........from any person, it shall be
presumed unless the contrary is proved that he accepted........that gratification.......as a motive or
reward such as is mentioned in the said section 161.........."

. Therefore where it is proved that a gratification has been accepted, then the presumption shall at
once arise under the section. It introduces an exception to the general rule as to the burden of
proof in criminal cases and shifts the onus on to the accused. It may here be mentioned that the
legislature has chosen to use the words 'shall presume' and not 'may presume', the former a
presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence
Act, no doubt for the purpose of that Act, but s. 4 of the Prevention of Corruption Act is in pari
materia with the Evidence Act because it deals with a branch of law of evidence, e.g., presumptions,
and therefore should have the same meaning. "Shall presume" has been defined in the Evidence Act
as follows :

"Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such a fact as
proved unless and until it is disproved."

22. It is a presumption of law and therefore it is obligatory on the court to raise this presumption in
every case brought under s. 4 of the Prevention of Corruption Act because unlike the case of
presumptions of fact, presumptions of law constitute a branch of jurisprudence. While giving the
finding quoted above the learned Judge seems to have disregarded the special rule of burden of
proof under s. 4 and therefore his approach in this case has been erroneous lines.

M/S Kumar Exports vs M/S Sharma Carpets

Section 4 of the Evidence Act inter-alia defines the words `may presume' and `shall presume as
follows: -

"(a) `may presume' - Whenever it is provided by this Act that the Court may presume a fact, it
may either regard such fact as proved, unless and until it is disproved or may call for proof of it.
(b) `shall presume' - Whenever it is directed by this Act that the Court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved."

In the former case the Court has an option to raise the presumption or not, but in
the latter case, the Court must necessarily raise the presumption. If in a case the
Court has an option to raise the presumption and raises the presumption, the
distinction between the two categories of presumptions ceases and the fact is
presumed, unless and until it is disproved.

10. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved,
that every negotiable instrument was made or drawn for consideration. Section 139 of the Act
stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque
received the cheque, for the discharge of, whole or part of any debt or liability. The presumptions
will live, exist and survive and shall end only when the contrary is proved by the accused, that is,
the cheque was not issued for consideration and in discharge of any debt or liability. A
presumption is not in itself evidence, but only makes a prima facie case for a party for whose
benefit it exists.

11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the
words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may
presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear
that presumptions to be raised under both the provisions are rebuttable. When a presumption is
rebuttable, it only points out that the party on whom lies the duty of going forward with evidence,
on the fact presumed and when that party has produced evidence fairly and reasonably tending to
show that the real fact is not as presumed, the purpose of the presumption is over.

IZHAR AHMAD KHAN IN PDF

OF THE EXCLUSION OF ORAL EVIDENCE BY DOCUMENTARY EVIDENCE

In Roop Kumar vs. Mohan Thedani the Court laid down the parameters of best evidence rule in
the following terms: Section 91 relates to evidence of terms of contract, grants and other disposition
of properties reduced to form of document. This section merely forbids proving the contents of a
writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable
not merely to solemn writings of the sort named but to others known sometimes as the best-
evidence rule. Even a third party who is seeking to prove a written contract can prove it only by
producing the writing.

In Tulsi vs. Chandrika Prasad[8], the SC held that Section 91 of the act mainly
forbids proving of the contents of a writing otherwise than by writing itself and merely lays down
the best evidence rule.
Bai Hira Devi v. Official Assignee [122]] AIR 1955 Bom. 122
where it was held that in the case of a conveyance, it would not be open to either of
the parties to the document to prove that, if the consideration was mentioned as rs.
10,000, in fact the consideration was less or more. it will not be competent for him to
prove a variation of the consideration recited in the document. Sections 91 and 92 are
supplementary to each other. According to Section 91 when the terms of a contract, grant or any
other disposition of property have been reduced to writing, the writing itself should be produced and
no other evidence will be admissible. Section 92, on the other hand, lays down that when the terms of
contract, grant or any other disposition of a property have been proved by the primary or secondary
evidence of the document as laid down in Section 91, the parties to the contract or their legal
representatives cannot be allowed to lead oral evidence for the purpose of contradicting, varying,
adding to or subtracting from the terms of the contract. In other words no oral evidence is admissible
in lieu of documentary evidence.