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Evidence Act, 1872 (1 of  1872) S. 65-B(4) – C.D. –  Secondary evidence.

Requires production of certificate by the person, who has received such audio version as in the present case - The electronic record cannot be led by way of secondary evidence, unless and until requirement of Section 65-B of the Act are satisfied - CD has to be accompanied by a certificate in terms of Section 65-B of the Act obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record is inadmissible.

(2018-4)  *PUNJAB LAW REPORTER*  25

Evidence Act, 1872 (1 of 1872), Section 65B(4) - Legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced -  Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act - The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies - The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party -  In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded - In such case, procedure under the said Sections can certainly be invoked -  If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure - Thus, requirement of certificate under Section 65B(4) is not always mandatory - Evidence Act, 1872 (1 of 1872), Sections 63 and 65.(2018)2 SCeJ 1457 

SUPREME COURT OF INDIA

1. Evidence Act, 1872 (1 of 1872) S.   3 - Merely because evidence is led by a party in a case, it is not necessary that Courts have to necessarily believe the evidence - There is a difference between evidence which is led and the weight which has to be attached to the evidence by the court - As per the definition of expression `proved' found in Section 3 of the Evidence Act, 1872 a fact is proved only when the Court after considering the matters before it believes the fact to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists. (175) PLR (Del.)
2. Evidence Act, 1872 (1 of 1872) S.  11 - Alibi -  The word alibi means "elsewhere" - Plea of alibi is not one of the General Exceptions contained in Chapter IV of IPC -  It is a rule of evidence recognized under Section 11 of the Evidence Act -  However, plea of alibi taken by the defence is required to be proved only after prosecution has proved its case against the accused  Indian Penal Code, Chapter IV.  (2016)3 PLRSC 967
3. Evidence Act, 1872 (1 of 1872) S.  21 - There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement - In the former case, an admission by a party is substantive evidence if it fulfills the requirements of Section 21 of the Evidence Act. (182) PLR
4. Evidence Act, 1872 (1 of 1872) S.  23 - Admission - In Order that it operates as an estoppel or binding declaration must be to the person who claimed the benefit of such admission or must be a person through whom the plaintiff's claim - Admission must be construed as a whole and ought not to be truncated. (182) PLR
5. Evidence Act, 1872 (1 of 1872) S.  25, 26, 27  - Section 27 is in the form of proviso to Sections 25 and 26 of the Evidence Act  - It makes it clear that so much of such information which is received from a person accused of any offence, in the custody of a police officer, which has led to discovery of any fact, may be used against the accused - Such information as given must relate distinctly to the fact discovered - In the present case, the information provided by all the accused/ appellants in the form of confessional statements, has not led to any discovery - More starkly put, the recovery of scooter is not related to the confessional statements allegedly made by the appellants - This recovery was pursuant to the statement made by H - It was not on the basis of any disclosure statements made by these appellants -  Confessional statement allegedly given by Appellant is again in another FIR - Therefore, the situation contemplated under Section 27 of the Evidence Act also does not get attracted -  Even if the scooter was recovered pursuant to the disclosure statement, it would have made the fact of recovery of scooter only, as admissible under Section 27 of the Evidence Act, and it would not make the so-called confessional statements of the appellants admissible which cannot be held as proved against them. (2016)3 PLRSC 670
6. Evidence Act, 1872 (1 of 1872) S.  25 - Confession  When a person is in police custody, the confession made by him even to a third person, that is other than a police officer, shall also become inadmissible - This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such - If he is a police officer and  confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence .    Held, The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practicing oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and  confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. (2016)3 PLRSC 670
7. Evidence Act, 1872 (1 of 1872) S.  33 - Statement recorded in another suit - If statement of a witness is recorded in the presence of parties in another proceeding, the same can be read in evidence if the witness is dead or cannot be found - Admittedly, the statements of witnesses were recorded in the judicial proceedings and the same can be proved in subsequent judicial proceedings - So far as the contention of the respondent that his right of cross examination will be lost is concerned, no prejudice will be caused to the respondent, as an opportunity to cross-examine those very witnesses was availed in the earlier proceedings and those statements are being proved in subsequent judicial proceedings. (174) PLR
8. Evidence Act, 1872 (1 of 1872) S.  34 - Bahi entry - So far as the question of stamping is concerned when an entry is merely a balance of accounts and signatures are appended only to accept the correctness of the balance then no stamp duty is required to be affixed and the entry would be admissible as per Section 34 of the Act - On the other hand if the entry is executed in the nature of bond or promissory note then it has to be stamped as per the Stamp Act, 1899. (178) PLR
9. Evidence Act, 1872 (1 of 1872) S.  45, 73 - Court can always call upon a party to give his specimen handwriting and signatures for the purpose of comparison with the disputed signatures and handwriting so as to reach to a conclusion for adjudication of the matter in controversy. (178) PLR
10. Evidence Act, 1872 (1 of 1872) S.  50 - Factum of the plaintiffs, being proprietors specifically denied in the written statement - It was incumbent upon the plaintiffs to lead direct and cogent evidence as per Section 50 of the Indian Evidence Act.  (182) PLR
11. Evidence Act, 1872 (1 of 1872) S.  50 - For the purpose of proving relationship, essential requirement of law is that a person has to assert a particular relationship.  (182) PLR
12. Evidence Act, 1872 (1 of 1872) S.  59, 60(b) - Provides that if a licensee acting upon the license has executed work of a permanent character and incurred expenses in the execution, the license may not be revoked - Section 61 of the 1882 Act provides that revocation can be express or implied - Title of the property is transferred in favour of the persons other than the grantor, who was no more - In terms of Section 59 of the Act, the transferee of such property is not bound by the license and the same stands revoked - The case is not where the grantor revoked it, rather, it is revocation after the death of the grantor.      (180) PLR
13. Evidence Act, 1872 (1 of 1872) S.  62 - Primary evidence - Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it - If a family arrangement is prepared and copies are made of the same, with all parties signing in the copies, each one must be taken as counterpart of the remaining - If all the parties have signed in each one of the counterparts, it will be taken as primary evidence against all the parties who have signed in each counterpart. (183) PLR
14. Evidence Act, 1872 (1 of 1872) S.  63, 65 - Photostat copy - Secondary evidence - Before admitting as secondary evidence being copies prepared by mechanical process, the authenticity of the Photostat document has to be established where photostat copy of a document is produced and there is no proof of its accuracy or of its having been compared with or its being true reproduction of the original, it cannot be considered as secondary evidence - Principles culled out. (174) PLR
15. Evidence Act, 1872 (1 of 1872) S.  65 - Application to prove on record alleged agreement to sell - Trial Court while taking into consideration the facts and circumstances of the case, allowed the application for secondary evidence in a blanket manner instead of giving opportunity to the respondent-plaintiff to prove the existence and loss of the documents particularly the document being a photocopy and not the second copy - Respondent-plaintiff is given chance to prove the existence and loss and thereafter petitioner-defendant would be at liberty to take all possible pleas vis-a-vis<D> the admissibility of the photocopy of the documents - Secondary evidence would be subject to the existence and loss of the documents. (183) PLR
16. Evidence Act, 1872 (1 of 1872) S.  65 - Relevance, admissibility and probative value of evidence all are different from each other and require separate and distinct handling - Leading of evidence cannot be shunned merely because its probative value would not be of high order. (176) PLR
17. Evidence Act, 1872 (1 of 1872) S.  65 - Secondary evidence - Case of the petitioner that after the agreement of compromise was entered into between the parties, original was kept in the safe custody of their brother-in-law and photo copy was retained by the petitioner - This fact is also denied by the respondents in their reply - If notice is issued under Section 66 of the Act, he had to react and if he would not produce the document accordingly, the Court would decide in accordance with law - When the Court would decide the existence and allow the party to lead evidence in the Court for its existence, the Court may allow the party to lead secondary evidence by producing the photocopy if the original is not produced by the person alleged to be in possession thereof. (177) PLR
18. Evidence Act, 1872 (1 of 1872) S.  65 - Secondary evidence - Deed Writer's register entry cannot be held as a rent note - It is only corroborative piece of evidence to prove the execution of the rent note - The photo copy of the rent note can be proved by way of leading secondary evidence - If secondary evidence is not allowed, then the applicant-respondents will suffer loss - It is no where argued that the loss of this document has not been proved nor there is any argument that this document does not exist .  (178) PLR
19. Evidence Act, 1872 (1 of 1872) S.  65 - Secondary Evidence - Defendant has not disclosed or averred a word that there was a receipt executed by the plaintiff at the time when the payment of the amount was made - It is well settled that evidence beyond pleadings cannot be considered and it also cannot be believed that if the defendant had made the payment to the plaintiff against a receipt, he would not have mentioned this fact in the written statement - Application dismissed - Order upheld. (176) PLR
20. Evidence Act, 1872 (1 of 1872) S.  65 - Secondary evidence - If a document is brought on an assertion that the original is missing, the court is bound to receive it and allow the assertion to be put to test only in the cross-examination - Mere exhibition of a document does not dispense with proof to either establish that the document filed in court was secondary evidence of exact re-production of the original in the manner contemplated under Section 63 of the Evidence Act or the requirement of proof that any of the circumstances existed - Civil Procedure Code, 1908 (V of 1908) Order 6, Rule 2. (182) PLR
21. Evidence Act, 1872 (1 of 1872) S.  65 - Secondary evidence - If a person states that document is missing or lost or in the custody of the adversary or any other ground mentioned in the said Section, it must be taken that ground is made for reception of secondary evidence - Certainly, the other party is well within its rights to conduct cross-examination in effective manner so as to establish that no such circumstance so exist for production of secondary evidence or the document produced does not satisfy the definition of secondary evidence.  (183) PLR
22. Evidence Act, 1872 (1 of 1872) S.  65 - Secondary evidence - If any issue requires a detailed consideration on matters of evidence or whether a document is to be admitted or not, it shall receive it subject to objection and take up adjudication along with all other issues - In a case where a Will is brought by the plaintiff on the basis of which a suit is laid, the trial will obtain no meaning if even the secondary evidence is not allowed when the plaintiff declares that the original is missing - It will be a complete denial of justice for a court to prejudge that the plaintiff cannot produce even the secondary evidence which is another way of saying that the court will not take up the decision on merits and summarily reject the plaint.  (182) PLR
23. Evidence Act, 1872 (1 of 1872) S.  65 - Secondary evidence - Receipt of secondary evidence does not dispense with requirement of proof in the manner required by law - Plaintiff cannot in any way be prejudiced by the reception of secondary evidence for mere exhibition of document in evidence cannot amount to proof of the same. (175) PLR
24. Evidence Act, 1872 (1 of 1872) S.  65 - Secondary evidence - Secondary evidence can be given and is receivable by the courts in specified circumstances - It is further clear that there is no express provision in the Act for making an application for leading secondary evidence - During the process of leading of evidence by a party, if it makes out a case for leading secondary evidence in terms of Sections 63 and 65 of the Act, it may do so and no formal permission from the court in this behalf for leading secondary evidence is required. (176) PLR
25. Evidence Act, 1872 (1 of 1872) S.  65 - Secondary evidence - That mandatory notice calling upon the tenant to produce the document had not been given and thus, permission to lead secondary evidence could not have been granted to him - A notice in terms of Section 66 of the Evidence Act seeking production of the original was given vide application -  This foundation has sufficiently been laid by disclosing the circumstances in which the possession of the original was with the tenant and how the same was conceded to be produced by him - Conditions provided for allowing of secondary evidence have been duly complied with by the landlady and secondary evidence in terms of Section 65 is permissible not only about `condition' or `contents' of a document but also about its `existence' and `execution' thereof. (176) PLR
26. Evidence Act, 1872 (1 of 1872) S.  65 - Secondary evidence - When loss of documents was not an issue till that time the application filed before the first appellate court for leading additional evidence in respect of the sale deeds, could not have been an application for additional evidence for tendering of documents by way of secondary evidence - Documents have already been produced in their own evidence by the plaintiffs - Certified copies of these documents have already been produced in their own evidence by the plaintiffs - Loss of documents has prominently been pleaded by the petitioner-defendants in their application. (176) PLR
27. Evidence Act, 1872 (1 of 1872) S.  65(c) - Indeed the practice of filing applications to tender to secondary evidence is archaic and sooner this practice is dropped, better it will be for expeditious disposal of trial - If a document is lost and the person says that the document was lost and it is not available despite his search, if there is a plea already in the plaint, no further assertion is necessary - If such an aspect of the loss of original is not in the pleadings, I will not take that to be a serious lapse, for, the Civil Procedure Code under Order 6 Rule 2 specifies what is required to be pleaded and excepts clearly that matters of evidence need not be pleaded - Civil Procedure Code, 1908 (V of 1908) Order 6 Rule 2. (182) PLR
28. Evidence Act, 1872 (1 of 1872) S.  65(c) - Secondary evidence - If the defendant's version were to be therefore that the copy produced before the court was not shown to be the true copy from the original through a process which can guarantee correctness of reproduction from the original or that the fact of loss of the original was itself not established and the examination had exposed the falsity of the plaintiff, the court would still be not justified in rejecting the document - It will be not necessary for the trial court to carry parallel proceedings on the admissibility of the document by an elaborate interim order. (182) PLR
29. Evidence Act, 1872 (1 of 1872) S.  66, 65 Proviso Clause (a) - Concededly service of notice upon the party in possession or power of the document has not been dispensed with by the trial Court - As the petitioner has not complied with the provisions of Section 66 of the Act to prove the sale deeds by way of secondary evidence, application filed for adducing secondary evidence to prove the sale deeds except the one in favour of S.K. is not tenable. (183) PLR
30. Evidence Act, 1872 (1 of 1872) S.  68, 69 - Additional Evidence - There is no doubt about the fact that the petitioners were required to adduce the evidence at the stage of leading their evidence in affirmative but failure of the petitioners to lead that evidence cannot be allowed to enure to benefit of the respondent as technicalities or procedural delay cannot be allowed to stand in the way of substantial justice - Petitioner have set-up the registered Will from the very inception of the litigation, the petitioners cannot be denied of their right to prove the Will in accordance with law. (182) PLR
31. Evidence Act, 1872 (1 of 1872) S.  68 - Pronote - As per provisions of Section 68 of the Evidence Act the execution of the document can be proved by examination of one witness - It is not essential that both the witnesses should be examined.  (178) PLR
32. Evidence Act, 1872 (1 of 1872) S.  69 - Will - Naib Tehsildar was not a witness to affixing of signatures by the testator or the attesting witness on the date the Will is purported to have been executed by the deceased - Has stated that when the Will was presented for registration and registered, signatures of deceased were obtained but during his cross examination, he has admitted that he does not know the attesting witnesses of the Will - Not sufficient to prove the Will in dispute in accordance with the provisions of Sections 69 of the Act.   (177) PLR
33. Evidence Act, 1872 (1 of 1872) S.  73 - Court can direct any person present in Court to write any word or figure for the purpose of enabling the court to compare the words and figures so written, when writing allegedly written by such person is a matter in  issue - Specific stand that whatever amount was taken and given was used to be written in bahi (account book) either by the petitioner or  his son - Identical entries were used to be made in the diary of the  defendant was summoned as witness - Court - Otherwise also, this was necessary in the interest of justice. (174) PLR
34. Evidence Act, 1872 (1 of 1872) S.  74 - Certified copy of statement recorded in judicial proceedings is admissible in evidence. (182) PLR
35. Evidence Act, 1872 (1 of 1872) S.  74 - Hindu Minority and Guardianship Act, 1956 (32 of 1956) - Unable to accept that the statement of one of the defendants in the suit and vendor of the sale deed in question recorded in the earlier proceedings is not admissible in evidence or could not be taken into consideration without examining an official of the Court alongwith record of the case. (182) PLR
36. Evidence Act, 1872 (1 of 1872) S.  90 - Birth and death register has been produced from proper custody of the competent authority i.e. Civil Surgeon/Registrar, Births and Deaths, Hoshiarpur and that too by multipurpose Health Worker also depicts the same - It is apparent that the document is more than 30 years old and, therefore, the presumption with regard to truth thereof has rightly been attached with it in the light of Section 90 of the Evidence Act - That register has been rebound and there is no certificate of any officer to that effect nor has it been page marked - The mere lacuna with regard to it being not certified by any officer would be of no value keeping in view the admitted fact that the entries made have been found to be in seriatim.   (182) PLR
37. Evidence Act, 1872 (1 of 1872) S.  90 - Since the Gift Deed in question was tendered in evidence five months prior to having become thirty years old - Appellant did not even attempt to prove the Gift Deed in any manner known in law - Gift deed - Not proved. (S.C.)(179) PLR
38. Evidence Act, 1872 (1 of 1872) S.  92 - Agreement to sell property - Appellant pleaded that as per the agreement between the parties, sale price was agreed to be Rs.3 lakhs and only to reduce registration charges and stamp duty, in the agreement sale price was written as Rs.45,000/- - When the terms of any such contract have been reduced to the form of a document , no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument for the purpose of contradicting, varying, adding to or subtracting from terms. (S.C.)(179) PLR
39. Evidence Act, 1872 (1 of 1872) S. 108 - Disappearance - Civil Court had issued a declaration that the husband of the petitioner had died, her claim could not have been rejected on the ground that she had not lodged an FIR for his disappearance because after the decision of the Civil Court it is not open to any person or authority to dispute the factum of death of the husband of the petitioner - The date of death would be deemed to be the date 7 years after the disappearance. (174) PLR
40. Evidence Act, 1872 (1 of 1872) S. 114(g) - Assuming that an adverse inference is drawn against a person on account of having not entered into the witness box under Section 114(g) of the Indian Evidence Act, 1872, that in itself would not entitle the appellant/plaintiff to a decree of specific performance.  (178) PLR (Del.)
41. Evidence Act, 1872 (1 of 1872) S. 118 - In a matrimonial proceedings it will be grossly improper for citing a child as a witness to state about the conduct of one or the other of the parents - It should be extreme rare situation where a child could be an objective in its own evidence and not to be partial to the person from whose custody the child is produced - It will cause immense embarrassment at the trial for the child to be compelled to depose against the alleged adulterous conduct of her mother - The father-petitioner was attempting to compel the production of his child as a witness to support a plea that the mother of the child was leading an adulterous living - To let in evidence through a minor daughter was grossly inappropriate and correctly rejected by the court below - Hindu Marriage Act, 1955 (25 of 1955) S. 13. (174) PLR
42. Evidence Act, 1872 (1 of 1872) S. 118 - Child witness - Though there is no prescribe age fixed by law to exclude the child witness from giving evidence on the presumption that the witness has not sufficient understanding - Neither can any precise rule be laid down respecting the degree of intelligence and knowledge which will render a child witness a competent witness - The intellectual capacity of a child to understand question to give rational answer thereto is the sole criteria and test for his/her testimonial competence and not any particular age. (178) P.L.R.  
43. Evidence Act, 1872 (1 of 1872) S. 126 - Application for examination of the counsel as a witness who happened to be his counsel - Provision of Section 126 of Indian Evidence Act are not applicable, when his own client is calling the advocate as a witness for the purpose to prove certain things which have taken place between them. (173) PLR
44. Evidence Act, 1872 (1 of 1872) S. 138 - Petitioner examined witness of the Will - Cross-examination turned hostile and denied the fact that he had attested the Will - Application moved for recalling - Trial Court rightly dismissed the application moved by the petitioner, as witness after his cross-examination, was discharged and at that stage, petitioner should have sought an opportunity to enable him to re-examine the witness as per Section 138 of the Act. (179) PLR
45. Evidence Act, 1872 (1 of 1872) S. 139 - Official - Opposite party would not be allowed to cross examine the official witness while appearing as a formal witness to produce record. (175) PLR
46. Evidence Act, 1872 (1 of 1872) S. 154 - Court in its discretion can permit a person to put question to his own witness - Once the said permission had been granted and the Court had deferred the further cross-examination on the request of counsel for the petitioners, the witness should have been bound for a particular date - In case no such direction had been passed, the application of the petitioners for recalling the witness deserve to be allowed, in view of such permission having been granted on oral request.  (179) PLR
47. Evidence Act, 1872 (1 of 1872) S. 154 - Declaring a witness hostile - A party will not normally be allowed to cross-examine his own witness and declare him hostile unless the Court is satisfied that the statement of witness exhibits an element of hostility or that he has resiled from a material statement or it is satisfied that the witness is not speaking the truth - Had it been recorded in the impugned order that the statements of the witness in the examination-in-chief and in reexamination runs contrary to each other, the provision of Section 154 of the Act would have applied as per the law - Order declaring witness hostile - Set aside. (176) PLR