How a “Fact” is Proved
Facts occupy center position in any Litigation.
Every litigation presupposes the accrual of “cause of
action”, that is to say, reasons for initiating legal action in the Court of
law.
Accrual of cause of action
presupposes infringement of some statutory right / fundamental right /
equitable right / contractual right / common law right or any other right recognized under the statutes or customs.
In order to commence a legal action, the person must have
some real grievance against any person, i.e. he must claim that his rights,
whether under the law, or under the contract, or under equity, or under the
common law or customs, is infringed; or must say that law has been breached to
his prejudice.
Broadly speaking, Cause of action has two
dimensions, one, the accrual of cause of action, i.e. that moment of time when
the rights of the Person is infringed and such infringement of right entitles
him to move the Court of law, although he may choose not to move the Court
immediately; like for example, a Persons sells goods and raise Invoice, dated
01.01.2015, and where the terms of payment agreed was 7 days from the date of
Invoice; and therefore, if the payment is not made by 08.01.2015 (7 whole days
would be calculated from 02.01.2015 to 08.01.2015), the Seller will have
accrual of “Cause of action” on 09.01.2015;
And second, cause of action means, the “bundle
of facts” which are necessary
(sufficient) to prove, by the person approaching the
court of law, for certain reliefs. Therefore at the outset we may see the
mandate of section 101 of Evidence Act
Section 101: Burden of proof: 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. When a person is bound to prove the
existence of any fact, it is said that the burden of proof lies on that person.
Illustrations
(a) A desires a Court to give
judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has
committed the crime.
(b) A desires a Court to give
judgment that he is entitled to certain land in the possession of B, by reason
of facts which he asserts, and which B denies, to be true. A must prove the
existence of those facts.
The
concept of “cause of action” has relevance in civil proceedings. In criminal
law, the ingredients of the offence are the “issues” before the court, which
the complainant / prosecution must “prove”, with the aid of evidences of “facts
in issue” and “relevant facts”; by adducing evidence (oral and documentary).
Now let us see what is a Fact:
S.3 of the Evidence Act, 1872
defines "Fact"."Fact" means and includes
(1) any thing, state of things, or relation of
things, capable of being perceived by the senses;
(2) any mental condition of which any person is
conscious.
Illustrations
(a) That there are certain objects arranged in a
certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a
fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a
certain intention, acts in good faith, or fraudulently, or uses a particular
word in a particular sense, or is or was at a specified time conscious of a
particular sensation, is a fact.
(e) That a man has a certain reputation, is a
fact.,
The “Fact” implies– something that actually exists; an aspect of reality;
an actual or alleged event or circumstance, as distinguished from its legal
effect, consequence or interpretation; an evil deed; a crime. (Source: Blacks
Law dictionary).
Facts may
broadly be divided into two categories – Facta Probanda (Principal Facts) and
Facta Probantia (Evidentiary Facts). Facta Probanda are those facts which are
required to be proved; and Facta probantia are those facts by the means of
which “Facta Probanda” (Principal Facts) are proved.
Facts are proved
by leading “Evidence”. So let us see what is the legal meaning of Evidence.
S.3: "Evidence""Evidence" means
and includes: all statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact under inquiry, such
statements are called oral evidence; all documents including
electronic records produced for the inspection of the Court, such documents are
called documentary evidence.
Evidence Act -
overview
In this
backdrop, it is necessary to look at the test prescribed by law as “when a fact
is said to be proved, fact not proved or fact disproved.
S.3 of Evidence Act:
"Proved".
A fact is said to be proved when, after considering the matters before it, the
Court either believes it 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.
"Disproved''.
A fact is said to be disproved when, after considering the matters before it,
the Court either believes that it does not exist, or considers its
non-existence so probable that a prudent man ought, under the circumstances of
the particular case, to act upon the supposition that it does not exist.
"Not
proved". A fact is said not to be proved when it is neither proved nor
disproved.
The next issue
is – who is to Prove the Fact
The principles
as to burden of proving a fact, would depend upon the nature of fact which is
to be proved and also the presumption of law which is carried in a particular
provision of law. These principles are set out in Sections 101 to 106; and of
course in various Statutes which declares the presumption of law in respect of certain
facts.
In Civil trials,
the trial Court whilst framing issues, cast burden to prove a fact upon the
respective parties, based on their pleadings and documents produced in support
of their pleadings.
In dispute
relating to possession or dispossession of any immovable property, Section 110
recognizes a very valuable principle that the person in possession of an
immovable property is the owner of the said property unless the other person
shows a better title. This is called a presumption of law. Similarly, for
example, Section 434 of the Companies Act, 1956, creates a presumption of,
wherein it is provided that Company shall be deemed to be unable to pay its
debts. Therefore, in a Winding up proceedings initiated against a Company for
its failure to pay legitimate and legally enforceable debt, the Petitioner is
not required to prove that the Company has actually become an insolvent, and
the law will presume that Company is unable to pay its debt.
The next question may arise what is the nature of evidence which
may be given to prove a Fact. The answer lies in Section 5 of Evidence Act.
S.
5: Evidence may be given of facts in issue and relevant facts: Evidence
may be given in any suit or proceedings of the existence or non-existence of
every fact in issue and of such other facts as are hereinafter declared to be
relevant, and of no others.
Principal Facts may be proved or disproved by
leading of “relevant facts” and “facts in issue” –
Evidence may be given of such facts, from which, either by itself or in
connection with other facts, the natural and safe inference may be drawn, of
the existence, non-existence, nature, or extent of any right, liability, or
disability, asserted or denied in any suit or proceeding. These are called
“Facts in issue”, i.e. these are such evidentiary facts which have a direct
bearing on the “issues” involved in the instant case.
Admission of
facts by the adverse party (S.17 to 23, 31)
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Confession of
facts by the accused person (S.24 to 30)
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Judicial
notice of fact by Court (S.56)
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Testimony of
the accomplice who has participated in the crime (S.30, 133)
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Evidence may
be given of such facts which would answer the question whether the alleged
act was accidental or intentional (S.15)
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Evidence may
be given of Entries in books of account, including those maintained in an
electronic form (S.34)
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In civil cases, Evidence
cannot be given of fact
that the character of any person concerned is such as to render probable or
improbable any conduct imputed to him, except in so far as such character
appears from facts otherwise relevant. (S.52)
In civil cases, Evidence may
be given of such facts to prove the fact that the character of any person is
such that he is not entitled to any damages. (S.55)
In criminal proceedings, Evidence may
be given of such facts to prove that the person accused is of a good character.
(S.53)
In criminal proceedings Evidence
cannot be given of such facts to prove that the accused person has a bad character,
unless evidence has been given that he has a good character, in which case it
becomes relevant. (S.54)
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Evidence may
be given of such facts to prove the things said or done by conspirator in
reference to common design (S.10)
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To prove that
a particular act was done, Evidence may be given of such facts of the
existence of any course of business, according to which the act naturally
would have been done. (S.16)
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Evidence may
be given of such facts to prove the existence of a Custom (S.13, 48)
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Evidence may
be given of such facts to prove the high reputation of a person who is
claiming damages (S.12)
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Evidence may be
given of “dying declaration” (S.32)
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Evidence may
be given of such facts stated by a person 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 (S.32)
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Evidence may
be given of such facts which have occasioned in evidence in any earlier
judicial proceeding (S.33, 80)
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A Fact may
deemed proved by reason of Presumption of law (Ss.111A, 112, 113A, 113B, 114,
114B, and S.3 definition part)
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Evidence may
be given of such facts showing the existence of any state of mind, such as
intention, knowledge, good faith, negligence, rashness, ill-will or good-will
towards any particular person, or showing the existence of any state of body
or bodily feeling. (S.14)
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Evidence may
be given of existence of such facts to show inconsistency with any fact in
issue or relevant fact; or to prove that the existence of such evidentiary
facts, by themselves or in connection with other facts, make the existence or
non-existence of any fact in issue or relevant fact highly probable or improbable.
(S.11)
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Evidence may
be given of such facts to show that any judgment, order or decree was
delivered by a Court not competent to deliver it, or was obtained by fraud or
collusion. (S.44)
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Evidence may
be given of such facts which are closely connected with fact in issue as to
form part of the same transaction. (S.6)
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Evidence may
be given of such facts which are necessary to explain or introduce relevant
facts or facts in issue. (S.9)
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When the Court
has to form an opinion – upon a point of foreign law or of science or art, or
as to identity of handwriting or finger impressions, evidence can
be given of the opinions upon that point of persons specially skilled in such
foreign law, science or art, or in questions as to identity of
handwriting or finger impressions. (S.45)
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When
the Court has to form an opinion as to the relationship of one person to
another, Evidence
may be given of such facts constituting the opinion, expressed
by conduct, as to the existence of such relationship, or any person who, as a
member of the family or otherwise, has special means of knowledge on the
subject.
(S.50)
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Evidence may
be given of such facts showing the motive of the person or which shows the
preparation for any fact in issue or relevant fact. (S.8)
Evidence may
be given of such facts showing the nature of conduct of any party, or of any
agent to any party, to any suit or proceeding, in reference to such suit or
proceeding, or in reference to any fact in issue therein or relevant thereto,
and the conduct of any person an offence against whom is the subject of any
proceeding. (S.8)
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Evidence may
be given of information retrieved from Internet. (S.65B)
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Evidence may
be given of tape / video recorded conversation etc. (S.65B)
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Evidence can be given of such facts which are the occasion of relevant
facts / facts in issue (S.7)
Evidence can be given of such facts which are cause of relevant facts /
facts in issue. (S.7)
Evidence can be given of such facts which are the effects of relevant
facts / facts in issue. (S.7)
Evidence can be given of such facts which constitutes the state of
things, under which they have happened. (S.7)
Evidence can be given of such facts which afforded an opportunity for
their occurrence. (S.7)
Evidence can be given of such facts which afforded an opportunity for
transaction. (S.7)
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The next
question is – how these facts are proved
These aforesaid
list of the means by which any Principal fact may be proved – may be proved by
leading (i) oral and or (ii) documentary
evidence.
This leading of
oral and / or documentary evidence is subject to two exceptions (a) the
evidentiary fact led must be relevant to the controversy before the Court; and (b)
it must be admissible evidence, i.e. the evidentiary fact led should not be in
the category of privileged communication (S.136, 122 to 132) or be under the
principle of estoppel. (S.115, 116, 117)
Relevancy and Admissibility of evidence
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Privileged communications
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Estoppel
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Coming to Oral
Evidence (S.59, 60, 118, 119, 120, 121, 135)
All facts,
except the contents
of documents or electronic records, may be proved by oral evidence. (S.59).
This oral evidence must be direct. (S.60)
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Who can give
oral evidence. (S.118, 120, 121)
What are the
number of witnesses required to prove a Fact. (S.134)
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Examination –
in –chief / Affidavit of Evidence
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Cross
Examination
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Re-examination
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Documentary
evidence
Primary
evidence / original document (S.62, 64)
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Secondary
evidence (S.63, 65)
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Proof of
Electronic evidence
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Proof of Hand
writing / Signature (S.47, 67, 73; S.311A CrPC)
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Proof of
document 30 years old (S.90)
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Proof of
meaning of ambiguous documents (S.93 to 100)
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Proof of
document which is attested (S.68 to 71)
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Best evidence
Rule. (S.91, 92)
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Judges power
to compel the production of any document (S.165)
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Public
documents (S.74, 76, 77, 78, 79)
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How a Power of
Attorney is said to be duly proved. (S.85)
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Foreign
Judicial Records (S.86)
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Exhibiting of
documents
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Then we come to
appreciation of evidences on record.
It is profitable
to repeat as how a fact is proved, not proved and disproved.
S.3 of Evidence Act:
"Proved".
A fact is said to be proved when, after considering the matters before it, the
Court either believes it 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.
"Disproved''.
A fact is said to be disproved when, after considering the matters before it,
the Court either believes that it does not exist, or considers its
non-existence so probable that a prudent man ought, under the circumstances of
the particular case, to act upon the supposition that it does not exist.
"Not
proved". A fact is said not to be proved when it is neither proved nor
disproved.
Fact proved,
not proved and disproved.
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Appreciation
of Evidence
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Circumstantial
evidence
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Benefit of
doubt
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Proving of
guilt beyond Reasonable doubt
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Presumption of
innocence
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Illegally
obtained evidence
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Having all said and done, it
is very important to understand – How intentions / dishonesty / acting in good
faith / in bad faith, with ill-will, are proved
Leading
evidence to prove the existence of any state of mind, i.e. intentions of
dishonesty, fraudulently; negligence; ill will etc. or good faith etc. may
seems to be very difficult and onerous.
But, it
is very important to understand that, one is not required to lead any specific
evidence to show the existence of any state of mind, i.e. intentions of
dishonesty, fraudulently; negligence; ill will etc. or good faith etc.
What is
required to be led in evidence is, the positive “acts and omissions” of the
opposite party or of the prosecuting party, which will go to show that the said
person acted honestly, dishonestly, with ill-will, in good faith or in bad faith,
with negligently, in the surrounding circumstances of the case.
The
existence of intentions of dishonesty, fraudulently; negligence; ill will etc.
or good faith etc. are a matter of “appreciation of evidence”, which are sought
to be established, by way of “arguments”, at the conclusions of evidences on
both sides, thereby drawing natural and logical inferences, from the proved
acts and omissions, in the backdrop of surrounding circumstances. (Ss.8 &
14 of Evidence Act).
This
appreciation of evidence, is done by employing the test of “behaviour of a Prudent
Man”, i.e. how an ordinary prudent man would have behaved in the facts of the
case before hand; and then comparing it with the proved acts and omissions of
the opposite party or of the prosecuting party.
Who is a Prudent Man / what
are the attributes of a prudent Man: A prudent man is a wise man, may not be a
genius. A prudent man is not in a hurry. He is not influence by his emotions
and act after weighing the occasion. He deliberates. He pauses. He rethinks and
willing to learn. He agonizes. He is willing to see the point of view, which
was never in his mind. He may not be learned but has robust common sense and
has basic instinct that moves man and woman. The said definition of prudent man
calls upon the judge to become realistic and practical.
The test
of good faith is, doing of an act showing that ordinary prudence has been
exercised according to the standards of a reasonable person. Good faith
contemplates an honest effort to ascertain the facts upon which the exercise of
power rests. A lack of diligence, which an honest man of ordinary prudence is
accustomed to exercise, is, in law, a want of good faith.
That
degree of care that a reasonable person can be expected to exercise to avoid
harm reasonably foreseeable if such care is not taken; due care is care
proportioned to any given situation, its surroundings, peculiarities and
hazards. It may and often does require extraordinary care;
Reasonable man – is careful, moral, prudent,
calculating, law abiding; are those who think and reason intelligently; is a
person having the power of self control to be expected of an ordinary person of
the age; a person exercising those qualities of attention, knowledge and
intelligence and judgment, which requires of its members for the protection of
their own interests and the interests of others; he can read between the lines;
read in an implication more readily than a lawyer; AIR 2001 SC 24.
Reckless – Intention cannot exist
without foresight but foresight can exist without intention, for, a man may
foresee the possible or probable consequences of his conduct and yet not desire
them to occur; none the less if he persists on his conduct, he knowingly the
runs the risk of bringing about the unwished result. To describe this state of
mind, the word reckless is most appropriate; (2008) 1 SCC 791, Para 13;
AIR 2008
SC 3062, Para 13;
A person
is entitled for excuse for committing an error of judgment only if he has
exercised due care and attention and his conduct shows that there has been no
negligence on his part.
Where a
party has acted with due care and attention, a thing shall be deemed to be done
in good faith; where a thing is done honestly, whether done negligently or not,
is done in good faith. The definition of the term in the General Clauses Act,
1897 lays stress on the one aspect of honesty only, irrespective of negligence,
but in the Indian Penal Code stress is laid on two aspects, viz, honesty of
intention alongwith due care and attention.
When a
case is concerned with IPC, the definition in IPC shall and that of the General
Clauses Act shall not prevail. (1980) 1 Cal HN 276.
No new trial for
improper admission or rejection of evidence (S.167)
http://thepracticeoflawjalan.blogspot.in/2015/02/section-167-no-new-trial-for-improper.html
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