Que. No. 1 : What is evidentiary value of uncommunicated statements ?
Ans:- The term statement in Section 18 to 21 of Evidence Act has been used in its primary meaning namely something i.e. stated and communication is not necessary in order that it may be a statement. Exh.No.6 is a copy of letter written to office of Municipal Board Bangalore being statement can be used as an admission u/s 17 to 21 of the Act even though it has not been communicated to office of Municipal Board. (A.I.R. 1973 My. 280 Veerbasavaradhya .v/s. Devotees of Langadagudi Mutt)
Que. No. 2 : What is evidentiary value of admission made in written statement ?
Ans: As to admission of defendant No.1 to the effect that he has admitted claim of plaintiffs in written statement, same cannot be held to be binding on defendant No.2. It is no evidence against him. (Braham Raj Singh .v/s. Smt. Braham Raj Devi A.I.R. 1982 HP 57)
Non filing of written statement by defendant would not amount to admission of all facts pleaded in the plaint by plaintiff. (Messrs Shri Krishna Gyanoday Sugar Ltd. .v/s. State of Bihar AIR 1975 Patna 123)
Que. No. 3 : What is evidentiary value of recital in sale deed ?
Ans: Recitals in a sale deed by owner of limited estate that property was acquired with the proceeds of Estate must be said to be against a pecuniary interest of vendor and are admissible. (Ramayya .V/s. Mahalakshmi. AIR 1922 Madras 357)
Que. No. 4 : Whether an incorrect admission on a question of law bind the party ?
Ans: ..No..
Que. No. 5 : Whether Magistrate may record confession under Section 164 of Cr.p.C. Who appears before him suo motto ?
Ans: No.
Que.No.6: Whether affidavits are evidence?
Ans: Affidavits are not included in definition of evidence in Sec.3 of Evidence Act and can be used in evidence only if court permits it to be so used for sufficient reason. (Sudhadevi .v/s. M.P.Narayann AIR 1988 S.C. 1389)
Que. 7-What is evidential value of extra judicial confession?
Ans: Extra judicial confession is generally a weak type of evidence. Therefore duty is cast upon court to look for corroboration from other reliable evidence on record.
Que. 8-What is evidentiary value of approver?
Ans: Though conviction can be based on uncorroborated testimony of approver but as a rule of prudence it is unsafe to place reliance on uncorroborated testimony of an approver.
Que.9-If there is discrepancies between medical evidence and testimony of eye witness than how said evidence is to be appreciated?
Ans: Minor variations between medical evidence and ocular evidence do not take away the primacy of letter. Where evidence of eye witness is reliable , medical opinion pointing to alternative possibility is not accepted as conclusive.
Que.10-Whether only on the ground that prosecution has failed to prove motive for the crime, evidence adduced by prosecution can be doubted?
Ans: Even though prosecution has failed to prove motive for the crime, if prosecution is able to establish the case beyond reasonable doubt, absence of motive will not hamper a safe conviction.
Que.11-What is meaning of dying declaration?
Ans: Dying declaration is statement made by a person as to cause of his death or as to any of circumstances resulting his death. It is relevant under Section 32 of Evidence Act. It is exception to rule of hear say.
Que.12-Whether word custody in Section 27 of Evidence Act denotes actual arrest of accused or constructive custody is enough?
Ans: Actual arrest of accused.
Que.13-What is difference between proof and evidence?
Ans: Evidence means an includes all statements and documents which court permits to be made before it. A fact is said to be proved when after considering evidence before court, court believes it to exist or its existence is probable.
Que.14-Whether on the basis of trustworthy dying declaration a legal conviction can be passed when there is no any corroborative evidence?
Ans: Court must be satisfied that deceased was in a fit state of mind to make statement after deceased had a clear opportunity to observe and identify his assailants and he was making statement without influence. Once court is satisfied that dying declaration is true and voluntary, it can be sufficient to convict the accused even without any further corroboration. Dying declaration is not taken on oath. Dying declaration should not be tutored.
Que.15-Whether the presumption provided under Section 80 of Evidence Act is available to dying declaration?
Ans: Yes.Please see this link
Whether court can rely on confession recorded by magistrate if he is not examined as witness? https://www.lawweb.in/2018/08/whether-court-can-rely-on-confession.html
Que.16 Whether dying declaration has a special sanctity and if it is yes, then why?
Ans: Dying declaration made by person on the verge of his death has a special sanctity as that in his solemn moment, person is most unlikely to make any untrue statement. Shadow of impending death is by itself guarantee of truth of statement of deceased regarding circumstances leading to his death.(Narain Singh x State of Haryana AIR 2004 SC 616)
Que.17 What is essential requirement of the person who records a dying declaration? Is it required under law to record it by a Magistrate only?
Ans: There is no requirement of law that dying declaration should be recorded by Magistrate only.
Que.18 Whether dying declaration recorded by police Officer during the course of investigation is admissible in evidence? If yes, under which circumstances?
Ans. dying declaration recorded by police Officer during the course of investigation is admissible in evidence if Magistrate is not available. Dying declaration recorded by police officer during course of investigation is admissible under Section 32 of Evidence Act, yet it is better to leave such dying declaration out of consideration unless and until prosecution satisfying the court as to why it was not recorded by Magistrate or by doctor.
Que.19-Whether a dying declaration recorded by Doctor in absent of Magistrate, particularly when investigating officer was not in position to secure presence of Magistrate can be admissible in evidence?
Ans:- Yes.
Que 20-Whether dying declaration recorded in presence of friends and relatives within short span, before the death of deceased can be relied on?
Ans: No
Que. 21-Whether certificate of Medical Officer about mental state of victim which recording dying declaration is necessary?
Ans: Yes.
Que.22-Dying declaration recorded on the basis of nodes and gestures admissible in evidence? If yes, what precaution should be taken to rely upon such declaration?
Ans: Yes, as it amounts to verbal statement under Section 32 of Evidence Act.
Que.23-If a person alive, whether his dying declaration has presumptive value?
Ans: His dying declaration is admissible under Section 162 of Cr.P.C. As the statement of injured accused person recorded by Magistrate contemplating his death but he survived stating that he was present at the time of occurrence and received injuries to his stomach would be admissible as an admission but not as confession.
Que.24-Whether examination of Magistrate, who recorded confession under Section 164 of Cr.P.C. is must?
Ans: No. As per section 80 confessional statements when recorded in accordance with Section 164 Cr.P.C. Can admitted in evidence without magistrate recording such statements being examined.
Que.25-Whether confession may be recorded after completion of investigation?
Ans. Yes, as police can file supplementary charge sheet if new evidence comes to its knowledge.
Que.26-Whether the admission in plaint is admissible?
Ans:- in Lakshanchandra Vs. Takimdhali, Court observed that though a plaint filed by third party was admissible as evidence of transaction, yet truth of statement contained in plaint could not proved by putting in plaint itself without calling plaintiffs if alive or making out circumstances which would make statement admissible under section 32 of Evidence Act.
Que.27-Whether dying declaration must be recorded by Special Magistrate and there is any specified form?
Ans: No, There is no requirement of law that dying declaration must necessarily made to a magistrate and when such a statement is recorded by Magistrate, there is no specified statutory form for such recording.
Que.28-What is the evidentially value of dying declaration ?
Ans:- Evidential value of dying declaration depends upon facts and circumstances of the case. Necessary conditions are-
No.1- deceased was in fit state of mind.
No.2-voluntarily and truthful.
In case of multiple dying declaration, each dying declaration will have to be considered independently on its own merit as to its evidentiary value and one can not be rejected because of contents of other.
Que.29-What is it actually mean that fact is said to have been discovered in consequence of information received from a person of an offence in the custody of police officer?
Ans: The word fact discovered as used in Section 27 have been held to mean not only object produced but also to embrace the place from which object was produced and knowledge of accused as to this.
Que.30-Whether the admission is admissible against the person other than the person making it?
Ans:- Generally admission is not admissible against the person other than person making it but in certain circumstances it is admissible i.e. agent having same interest.
Que.31-What is effect of admission ?
Ans. Admission is strong piece of evidence admissible and binding unless explained away.
Que.32-Is it absolutely necessary to record the dying declaration of a person in presence of Magistrate?
Ans:- No, there is no requirement of law that dying declaration must be made to magistrate, hence dying declaration recorded by police can be relied on.
Que.33-Whether it is necessary to give oath to the person at the time of recording dying declaration ?
Ans: No.
Que.34-Whether conviction can be given on the basis of retracted confession?
Ans:- Court is required to examine whether confessional statement was voluntary. When court is satisfied that retracted confession is true and voluntary, same can be basis for conviction.
Que.35-Whether statement of accused can be treated as evidence?
Ans: No. - Statement of accused not amounting to confession is admissible in evidence provided it is relevant and admissible under any of the provisions of Evidence Act. Gap in evidence of prosecution evidence can not filed by any statement made by accused in his statement under Section 313 of Cr.P.C.
Que.36-Whether for proving a dying declaration, it is essential requirement of law that the person who recorded it shall narrate/repeat in the exact words the statement of the maker?
Ans: No, dying declaration need not always be recorded in the exact word and in the same language in which it is made by injured. It is not the law that a dying declaration ought in all cases be rejected simply because the very words in uttered by injured are not produced.
Que 37-What are the tests to evaluate confession?
Ans:-Section 24-Confession caused by inducement, threat or promise is not admissible in evidence.
Section 25-confession to police officer is not admissible
Section 26-confession made by accused while in custody of police is not admissible in evidence.
Section 28- confession made after removal of impression caused by inducement threat or promise is relevant.
Section 29- Confession otherwise relevant not to become irrelevant because of promise of secrecy.
Que.38-How far the evidence of a circumstantial nature can be acted upon?
Ans:- A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra MANU/SC/0167/1973 : 1973CriLJ1783 where the following observations were made:
certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...
it must be such as to show that within all human probability the act must have been done by the accused."
IN THE SUPREME COURT OF INDIA
The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...
it must be such as to show that within all human probability the act must have been done by the accused."
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 745 of 1983
Decided On: 17.07.1984
Sharad Birdhichand Sarda Vs. State of Maharashtra
Read full judgment here: Click here
Que.39-Whether dying declaration of one person regarding death of another is to be considered?
Ans:- No. as per Section 32 of Evidence Act only dying declaration of person regarding his own death can be taken into consideration. An exception to this rule,please see this post,
Whether Dying Declaration by a person explaining circumstances of death of another is admissible? https://www.lawweb.in/2018/11/whether-dying-declaration-by-person.html
Que. 40-Whether presence of relatives of victim, while recording the dying declaration, can be considered as a ground for suspicion or rejecting dying declaration?
Ans: Yes.
Que.41-Whether statement of injured recorded by I.O. Under Section 161 of Cr.P.C. can be treated as dying declaration, if the injured succumbs to injuries subsequently?
Ans: Yes,
Que.42-Whether it is obligatory on part of investigating officer to get the signature of accused on statements recorded under Section 27 of Evidence Act ?
Ans:- It is mandatory.
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