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LL.B.

II TERM
Paper : LB - 201 - Law of Evidence
Prescribed Legislation :
The Indian Evidence Act, 1872

Prescribed Books:
1. Vepa P. Sarathi, Law of Evidence (6th ed., 2006)
2. M. Monir, Law of Evidence (14th ed., 2006)

I. GENERAL ISSUES RELATING TO LAW OF EVIDENCE (6 periods)


(a) (i) Re-enactment of past events for deducing blameworthiness or entitlements
of the parties is the core enquiry of Evidence Law. Similarities between the
historians, authors, media persons and lawyers in their re-enactment of
‘past event’ enterprise.
(ii) Why rules of evidence have different significance under the Adversarial
System and Inquisitorial System of Justice?
(b) History of statutory Evidence Law in India – Pre and post Indian Evidence Act,
1872 realities – Role of Judiciary, particularly the appellate judiciary in up-
dating the Evidence Law rules by judicial creativity.
(c) Understanding the concepts such as : ‘Facts’, ‘Facts in issue’, ‘Relevant Fact’,
‘Evidence-Oral and Documentary’, ‘Proved’, ‘Disproved’ and ‘Not Proved’.
(d) Relationship between law of Evidence and substantive laws (Criminal and
Civil laws) and procedural laws (Code of Criminal Procedure and Civil
Procedure Code).

II. RELEVANCY AND ADMISSIBILITY OF FACTS (14 periods)


(a) (i) Logically relevant facts – sections 5-9, 11
(ii) Special class of relevant facts relating to Conspiracy – section 10
(b) Stated relevant facts
(i) Admissions - sections 17-23
(ii) Confessions - sections 24-30
(iii) Dying Declarations - section 32(1)
(c) Opinion of Third Person when relevant - sections 45-51
ii

1. State of Maharashtra v. Prafulla B. Desai (Dr.) (2003) 4 SCC 601 1


2. R. M. Malkani v. State of Maharashtra, AIR 1973 SC 157 10
3. Mirza Akbar v. Emperor, AIR 1940 PC 176 17
4. Badri Rai v. State of Bihar, AIR 1958 SC 953 23
5. Mohd. Khalid v. State of W.B. (2002) 7 SCC 334 26
6. Jayantibhai Bhenkerbhai v. State of Gujarat (2002) 8 SCC 165 39
7. Bishwanath Prasad v. Dwarka Prasad, AIR 1974 SC 117 46
8. Central Bureau of Investigation v. V.C. Shukla, AIR 1998 SC 1406 49
9. Veera Ibrahim v. State of Maharashtra, AIR 1976 SC 1167 59
10. Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119 64
11. Pulukuri Kottaya v. Emperor, AIR 1947 PC 67 70
12 Bodhraj v. State of J. & K. (2002) 8 SCC 45 76
13. Khushal Rao v. State of Bombay, AIR 1958 SC 22 86
14. Sudhakar v. State of Maharashtra (2000) 6 SCC 671 95
15. Patel Hiralal Joitaram v. State of Gujrat (2002) 1 SCC 22 101
16. Laxman v. State of Maharashtra (2002) 6 SCC 710 108
17. Ram Narain v. State of U.P., AIR 1973 SC 2200 : (1973) 2 SCC 86 111

III. ON PROOF ( 7 periods)


(a) (i) Facts which need not be proved – sections 56-58
(ii) Facts which the parties are prohibited from proving – Doctrine of Estoppel
– sections 115-117
(iii) Privileged communications – sections 122-129
(b) (i) Oral and documentary evidence – sections 59-78
(ii) Exclusion of oral by documentary evidence – sections 91-92

18. R. S. Maddanappa v. Chandramma (1965) 3 SCR 283 114


19. Madhuri Patel v. Addl. Commissioner, Tribal Development,
AIR 1995 SC 94 120
20. Sanatan Gauda v. Berhampur University, AIR 1990 SC 1075 131
21. M.C. Vergheese v. T.J. Ponnan, AIR 1970 SC 1876 136
22. State of U.P. v. Raj Narain, AIR 1975 SC 865 140

IV. ACCOMPLICE EVIDENCE – section 133 read with section 114 (b) ( 2 periods)

23. Bhuboni Sahu v. The King, AIR 1949 PC 257 158


24. Haroon Haji Abdulla v. State of Maharastra, AIR 1975 SC 856 163
25. Ravinder Singh v. State of Haryana, AIR 1975 SC 856 169
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V. WITNESSES ; COMPETENCE AND EXAMINATIONS ( 3 periods)


(a) (i) Child Witness – section 118
(ii) Dumb Witness – section 119
(iii) Hostile Witness – section 154
(b) Examination, cross-examination and re-examination- sections 137-139, 155

26. State of Bihar v. Laloo Prasad (2002) 9 SCC 626 176

VI. PRESUMPTIONS (2 periods)


Sections 4, 41, 105, 111-A, 112, 113, 113-A, 113-B, 114 and 114-A

27. Goutam Kundu v. State of West Bengal, AIR 1993 SC 2295 178

IMPORTANT NOTE:

1. The topics and cases given above are not exhaustive. The teachers teaching the course
shall be at liberty to add new topics/cases.
2. The students are required to study the legislations as amended up-to-date and consult
the latest editions of books.
3. The Question Paper shall include one compulsory question consisting of five parts out
of which four parts will be required to be attempted. The question papers set for the
examinations held during 2007-08 and 2008-09 are printed below for guidance of the
students.
4. The periods indicated against each topic are the minimum teaching hours.
*****
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LL.B. II Term Examinations, April-May, 2008

Note: Answer any five questions including Question No. 1 which is compulsory.
All questions carry equal marks.
1. Attempt briefly any four of the following:
(a) Who is an ‘expert’? Is the opinion given by him relevant?
(b) Who is competent to testify? Is a dumb witness competent to testify?
(c) What is a “fact”. How is it different from “fact in issue”. Give at least two examples
of each.
(d) Law of Evidence is said to be “Lex-fori”. Explain.
(e) What is documentary Evidence? Is electronically recorded evidence oral,
documentary or real one. Point out the difference, if any, between Indian and English
law on the point.
2. State the provisions of law and give reasons as to the relevancy of the following facts:
(i) In a trial of conspiracy to wage war against Country X, evidence is given of facts
that funds were raised in State Y, arms and ammunition was purchased in State T and
training of arms was given in State X.
(ii) In a charge of murder by domestic help of an elderly couple, evidence is given by
prosecution that they received money sent by their son from U.S.A. on the same day.
(iii) In a trial of murder, post-mortem report reveals that the digested food indicated
that the murder must have taken placed three to four hours after lunch.
(iv) A is accused of kidnapping a child for ransom from Ghaziabad on 01.03.08. A
produces a certificate that he was admitted in P.G.I. Chandigarh from 25.02.08 to
05.03.08 for treatment of lung infection.
3. (a) “Statement of a co-conspirator is admissible against the conspirators.” Explain.
(b) A was a customs officer and B the agent working for importer X & Co. at the custom
House. B made some entries in his day book about the goods passing them without
paying full duty at the custom house. These entries and counterfoil of his cheque book
showing that money was paid to A are produced by prosecution in a trial of A and B for
the offence of conspiracy. Discuss relevancy of both these documents under section 10 of
Indian Evidence Act.
4. (a) Can the statement made by the one partner bind all partners in a dispute between
partnership firm and third party? Explain the relevant provisions of the Evidence Act and
give reasons.
(b) A, an alleged offender of rape, while in police remand felt pain in his chest. He was
admitted in a hospital, where a police constable was kept on the gate to keep a watch on
him. A confessed his guilt before another patient X who was also in the same room. This
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statement was over-heard by policeman also. Prosecution wants to make this statement of
A as “confession”. Can they do so? Discuss.
5. “There is no absolute Rule of Law or even a rule of Prudence that dying declaration unless
corroborated by other independent evidence is not fit to be acted upon and made the basis of
conviction.” Discuss above statement with the support of case law.
6. (a) A child was born within 280 days of husband’s death. Evidence was offered that about
the time while the child was conceived the husband was suffering from Carbuncle
(Swelling under the skin) and died of illness within 14 days. Can the plea of paternity be
negatived? Discuss.
(b) What is a privileged communication? What are its exceptions.
7. “The law is not that the evidence of an accomplice deserves outright rejection if there is no
corroboration. What is required is to adopt great circumspection and care when dealing with
the evidence of an accomplice. Though there is no legal necessity to seek corroboration of
accomplice’s evidence, it is desirable that the court seeks reassuring circumstances to satisfy
the judicial conscience that the evidence is true.” Elucidate the above statement.
8. (a) What is basis of the rule of estoppel. How is it different from promissory estoppel.
(b) X, a student got marks-sheet from CBSE, showing that he had passed in biology, physics
and chemistry with good marks. X, as a matter of fact had never opted or appeared for
biology. However, he remained silent and sought admission in 1st year of MBBS course at
Delhi Medical College. When he had to appear in his 1st professional course of MBBS,
CBSE realizing the error served a notice on him for wrong marks-sheet and subsequently
cancelled admission. X, consults you for using estoppel against CBSE. State your opinion
giving reasons.
*****

LL.B. II Term (Supplementary) Examinations, Aug.-Sept. 2008

Note: Answer any five questions including Question No. 1 which is compulsory.
All questions carry equal marks.
1. Attempt briefly any four of the following:
(a) What is the difference between relevancy and admissibility? Illustrate your answer by
giving at least one example.
(b) Explain the concept and significance of an expert evidence.
(c) Discuss oral and documentary evidence.
(d) When is a witness said to have turned hostile? Is the evidence given by such a
witness still relevant and admissible?
(e) Who is competent to testify? Is the evidence given by a child admissible?
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2. Discuss the provisions of law, under which the following are relevant:
(i) X is accused of receiving stolen property knowing it to be stolen. He offers to
prove that he refused to sell it below their value.
(ii) In a dispute between X and Y for inducing A to break his contract of service; X
produces the following statement of A as evidence:
“I am leaving you because Y has made me a better offer.”
(iii) A is being prosecuted for the murder of B. Prosecution produces poison procured
by A similar to that which has been administered to B.
(iv) X is prosecuted for rioting in Chandigarh on 20.03.2007. X produces a railway
ticket showing that on 20.03.2007 he was traveling from Mumbai to Dehradun.
3. (a) Conspiracy is based on the principle of “Agency”. Comment.
(b) X wrote a letter to B asking him to supply explosives for blowing up a Govt. building. B
took some time in sending it. In the meantime, X wrote another letter to B seeking
reasons about delay. However, before the second letter could reach B, X received the
explosives and used the same. In case of conspiracy, prosecution wants to produce both
these letters. Decide whether they are admissible or not?
4. (a) X and Y are the joint owners of a plot of land. A claims right of way over this plot. X
makes a statement agreeing with A, about his claim. Is this statement binding on Y? Give
reasons and relevant provisions of law.
(b) Prem was charged of committing murder of his brother Ramesh. Prosecution produces
two items against Prem:
(i) a statement made by Prem which led to the recovery of blood-stained axe, shirt and
trousers; and
(ii) a statement of Prem to the police that blood-stained clothes belonged to him and the
axe was used for the commission of murder.
Are these statements relevant as confessions or not? Give reasons.
5. (a) What is a dying declaration? Can it be accepted without corroboration?
(b) Y, a young married woman, had been speaking to her parents and other relatives and also
writing to them expressing danger to her life. She lost her life 3 months after. Are such
items dying declarations? Discuss.
6. “An accomplice is unworthy of credit, unless he is corroborated in material particulars.”
Critically examine the statement with the help of decided cases.
7. (a) ‘A’ got divorce from ‘B’ on 31.12.2007 and married ‘C’ on 1.3.2008. ‘A’ delivered child
‘X’ in the month of April (30.04.2008). ‘C’ disputes the paternity of the child on the basis
that ‘X’ was conceived during the subsistence of first marriage and therefore ‘B’ is the
father. Kindly advise ‘A’ about the existing law.
(b) A news in the newspaper stated that those industrialists who will open their units in
Assam will be exempted from corporate income tax for a period of 5 years. X, who
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wanted to set up a jute industry applied to the Director of Industries as well as to Chief
Secretary of the State and both confirmed the availability of exemption. X proceeded
with his plans. However, the State Govt. withdrew its policy of exemption. X seeks
estoppel against State’s withdrawal of its promise. Provide legal advice to X.
8. (a) S, a Govt. servant, commits misappropriation of funds for the purpose of marrying his
daughter. S, communicates this to his wife ‘W’. Five years later, S and W got divorced. A
year after his divorce, S is put on trial for the offence of criminal misappropriation W is
produced as a witness by prosecution against S. Can ‘W’s testimony be accepted by
Court? Discuss.
(b) Discuss the exceptions which are admitted against privileged communications.

*****

LL.B. II Term Examinations, April-May, 2009

Note: Attempt five questions including Question No. 1 which is compulsory.


All questions carry equal marks.
1. Attempt briefly any four of the following:
(a) What is a fact? How is it different from ‘fact in issue? Give two illustrations of each.
(b) Who is competent to testify? Is evidence given by a child admissible?
(c) Explain the relevancy of expert evidence.
(d) What is the different between ‘May presume’ and ‘shall presume’. Give examples
and relevant provisions.
(e) Discuss oral and documentary evidence.
2. State the provisions of law and give reasons as to relevancy of the following facts:
(a) In a case of homicide against X, prosecution produces a statement of Y.
“I heared the cries and saw the dead body”.
(b) In a case of an indecent assault upon a maid servant, “the complaint she made to her
mistress’ indicating the offender including his name”.
(c) In case of an identity of a skeleton recovered from a pond, ‘the production of super
imposed photograph of deceased over the skeleton’ by the prosecution.
3. (a) “Rule in selection 10 of Indian Evidence Act confines the principle of agency in criminal
matters to the acts of the co-conspirator.” Comment.
(b) In a case of kidnapping for ransom against A, B and C, the prosecution produces (i) a
letter written by A to B and C about the day, date, time and place where they should meet
to carry out the plan and (ii) the ransom money which was obtained and recovered by
police after the arrest of C (one of the accused) from his possession.
Decide the relevancy and admissibility of the above evidence.
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4. (a) A sues B for loan of Rs. 5,000 which B denies. However, B makes a statement before X
that he has taken loan from A, though X was not present when transaction took place
between A and B.
Is the statement of B to X relevant? State the relevant provision and rule of evidence.
(b) In a case involving robbery and murder, X ,one of the accused person, told: “I am
wearing the pant which I washed after the commission of crime” while other accused Y
said: “I can show you the place where the looted property has been kept.” The property
was recovered at his instance from the place of hiding. Can statements made by X and Y
be said to be confessions (within the rules of evidence)?
5. (a) There is no absolute rule of law that dying declaration can be the sole basis of conviction
unless corroborated. Comment.
(b) L, a lady shareholder in a property, was called by her relatives to joint property. On her
arrival, kerosene was poured on her and she was set ablaze. L died 5 days later. A
statement in the nature of complaint was recorded by police officer in the hospital where
she breathed last.
6. (a) The presumption of legitimacy under Indian Evidence Act can be displaced by a strong
preponderance of evidence and not by mere balance of probabilities”. Discuss in the light
of decided cases.
(b) Pending the results of his qualifying exam., X appeared for LL.B Entrance Test of Delhi
University and obtained 10th rank in the merit list. He was provisionally admitted to
graduate course in law. In the meantime, his result of qualifying exam. was declared and
he, as per the marks card issued, secured 60% marks. He appeared in 1st and 2nd Term of
law and was promoted to 3rd Term. The University issued a notice to Mr. X stating that it
was by error that he was shown getting 60% marks. In fact, he had obtained only 45%
marks, hence was not qualified to be a student of graduate course in law. University
proceeds to cancel his admission. Can the University do so? Give reasons.
7. “An accomplice is unworthy of credit unless he is corroborated in material particulars.”
Critically analyse the above statement.
8. (a) X communicated to his wife Y the whole episode as to how he misappropriated the
money from the office and obtained property. Five years later, X and Y separated through
a decree of divorce. Y married another person M. Two years later, in a case of possession
of assets disproportionate to the income, X was prosecuted. Can the divorced wife of X
(namely Y) be produced as witness against X.
(b) A communication between a lawyer and his client is privileged subject to certain
conditions. Explain.
*****
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LL.B. II Term (Supplementary) Examinations, July-August, 2009

Note: Attempt five questions including Question No. 1 which is compulsory.


All questions carry equal marks.
1. Attempt briefly any four of the following:
(a) Write precautions which must be taken for tape-recorded conversation before
admitting it in evidence.
(b) Distinguish between the terms “Proved”, “Disproved”, “Not Proved”.
(c) Reproduce the law relating to ‘hostile witness’.
(d) What is real or material evidence? Answer in the light of the provisions of the Indian
Evidence Act, 1872.
(e) Are ‘relevancy’ and ‘admissibility’ synonymous terms? Explain.
2. Under which provisions of the Indian Evidence Act, 1872, are the following relevant:
(a) The question is whether A murdered B. Marks on the ground, produced by a struggle
at or near the place where the murder was committed.
(b) The question is whether A was ravished. The facts that, shortly after the alleged rape,
she made a complaint relating to the crime, the circumstances under which and the terms
in which the complaint was made.
(c) A is tried for riot and is proved to have marched at the head of the mob, the cries of
the mob.
(d) The question is whether A committed a crime. The circumstances are such that the
crime must have been committed either by A, B, C or D, every fact which shows that the
crime could have been committed by no one else and that it was not committed by either
B, C or D.
3. X supplied to Y explosives sufficient to blow up a bridge. Y, together with Z, utilized the
explosive for the purpose of blowing up the bridge. But the attempt was unsuccessful. Next,
following day, Y sent a letter to X describing the unsuccessful attempt to blow up the bridge
and further asked him to supply another consignment of explosives. The said letter was
intercepted by the police, which consequently arrested all three of them. Later in the case of
conspiracy to blow up the said bridge, the prosecution wants to use the letter of Y as against
Z and X. Will it succeed? Under which change of circumstances would the letter become
admissible? Answer in the backdrop of relevant provisions of law and the decided case on the
issue.
4. (a) Mr. Justice Sir John Beaumont, while hearing an appeal in Privy Council way back in
1947, wrote, “Section 27 (of the Evidence Act) is not artistically worded; provides an
exception to the prohibitions imposed by preceding sections and enables certain
statements made by a person in police custody to be proved.” Discuss this proposition in
the context of the preceding provisions of the Evidence Act.
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(b) A Sub-Inspector of police of Bombay took an accused into custody on charges of theft.
Upon interrogation, the accused made the following statement, which was recorded by
the Sub-Inspector, “I will tell the place of deposit of the three chemical drums which I
stole from Haji Bunder on 1st Aug.” The accused then led the police-officer to a
Musafirkhana in Crawford market and pointed the three drums lying there. How much of
the statement of the accused can be used in evidence? What inferences the court would
draw from the statement and the consequent recovery?
5. (a) A seriously injured victim on reaching the hospital tells the doctor on duty that “X has
stabbed me because ………….” And before completing the sentence collapses and dies.
Discuss the relevancy and veracity of the above dying declaration in the trial of X for
murder.
(b) According to Supreme Court of India, dying declaration can be the sole basis of
conviction subject to certain precautions. What are these precautions?
6. How have the courts, through judicial pronouncements, reconciled the conflicting provisions
relating to ‘Accomplice testimony’. Discuss these decisions with special reference to
confession by a co-accused.
7. (a) A intentionally and falsely leads B to believe that certain lands belong to A, and thereby
induces B to buy and pay for it. The lands afterwards become the property of A and A
seeks to set aside the sale on the ground that, at the time of the sale, he had no title. Can
A succeed? Decide in the backdrop of relevant law.
(b) A, a client says to B an attorney: ”I wish to obtain possession of property by the use of a
forged deed on which I request you to sue.” Is this communication protected from
disclosure? Give reasons to your answer.
8. (a) Can the English law permitting blood test for determining paternity for legitimacy of
child be applied in India? Give a reasoned answer.
(b) In law relating to legitimacy of child, the Supreme Court has observed that: “ ‘access’
and ‘non-access’ mean the existence or non-existence of opportunities for sexual
intercourse; it does not mean actual co-habitation.” Explain the observation.

*****
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LL. B. II Term

Law of Evidence

Cases Selected and Edited by


S.C. Raina
Gunjan Gupta

FACULTY OF LAW
UNIVERSITY OF DELHI, DELHI-110007
January, 2010