How to prove call details record(CDR) in court as per Indian law?

 Proving Call Detail Records (CDRs) in court under Indian law involves several steps to ensure their admissibility and authenticity as evidence. Here’s a step-by-step guide to the process:

1. Obtain the CDRs Legally:

• Legal Procedure: CDRs must be obtained through a legal procedure, typically by a court order or by a request from a law enforcement agency during an investigation.
• Authority: The request for CDRs should be made by an authorized officer, usually not below the rank of Superintendent of Police, and should be sanctioned by a competent authority as per the Indian Telegraph Act, 1885, and the Information Technology Act, 2000.

2. Ensure Authenticity:

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Important provisions of Indian evidence Act relating to public documents

74. Public documents.—The following documents are public documents—

(1) documents forming the acts or records of the acts—

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country;

(2) public records kept [in any State] of private documents.

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Claim for privilege under S 122 of The Indian Evidence Act - Communications during marriage

Section 122 of the Indian Evidence Act

Section 122 of the Indian Evidence Act, 1872, states that no person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married. This means that spouses cannot be forced to reveal private conversations they had with each other during their marriage.

Purpose of the privilege

The purpose of the spousal communication privilege is to protect the confidentiality of marriages and to encourage open and honest communication between spouses. This privilege is based on the idea that a marriage is a confidential relationship and that spouses should be able to speak freely to each other without fear of their words being used against them in court.

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Notes on leading questions as per provisions of Indian Evidence Act

S. 141 of Indian Evidence Act:- Leading questions.—Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.

In simpler terms, a leading question is one that prompts or guides the witness towards a particular response.

 S. 142 of Indian Evidence Act: When they must not be asked.—Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

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What is basic concept of "Proved", "Not proved" and "Disproved" as per provisions of Indian Evidence Act?

S. 3 of Indian Evidence Act:-  Interpretation clause.

“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.

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What is basic concept of Primary Evidence and Secondary Evidence as per provisions of Indian Evidence Act?

 S 62 of Indian Evidence Act:-  Primary evidence.—Primary evidence means the document itself produced for the inspection of the court.

Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document.

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.

Explanation 2.—Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original.

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What is basic concept of privileged communications during marriage as per Provisions of Indian Evidence Act?

S. 122 of Indian Evidence Act :- Communications during marriage.—No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

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What is the basic concept of Impeaching credit of witness?

S. 155 of Indian Evidence Act:- Impeaching credit of witness.—The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him—

(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;

(2) by proof that the witness has been bribed, or has [accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

(4) [* * *]

Explanation.—A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

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What is basic concept of the expressions ‘Shall presume’, ‘May presume’ and ‘Conclusive proof’?

 According to S 4 of  the Indian Evidence Act, 1872, the expressions 'May presume','Shall presume', and 'Conclusive proof' have specific meanings and implications:

1. May Presume: When the Act provides that the court may presume a fact, the court has the discretion to either regard that fact as proved unless and until it is disproved or to call for proof of it. This means that the court has the option to presume the fact or to require evidence to establish it.

2. Shall Presume: When the Act directs the court to presume a fact, the court is obligated to regard that fact as proved unless and until it is disproved. In other words, the court must assume the truth of the fact unless there is evidence to the contrary.

3. Conclusive Proof: Conclusive proof refers to a situation where one fact is established, and as a result, other facts or conditions become conclusively proven. Once a fact is deemed to be conclusively proven, it cannot be challenged or disproved. This type of proof is considered absolute and final.

These expressions play a crucial role in determining the burden of proof and the weight given to certain facts in legal proceedings.

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What is basic concept of Marshalling and appreciation of evidence?

 The marshaling of evidence is not the repetition of what a witness said but the critical grouping together of the relevant statements of particular witnesses for and against a particular fact. It is the skill of picking up various pieces of evidence on a particular disputed point and putting them together.  A Judge must have clear picture of various disputed points regarding  which the evidence has to be marshalled.

Appreciation of evidence means assessing the worth, value and quality of a particular  piece of evidence.

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Supreme Court: Distinction between Issue estoppel and principle of Double jeopardy

The principle of issue-estoppel is also known as 'cause of action estoppel' and the same is different from the principle of double jeopardy or; autre fois acquit, as embodied in Section 403 Code of Criminal Procedure. This principle applies where an issue of fact has been tried by a competent court on a former occasion, and a finding has been reached in favour of an accused. Such a finding would then constitute an estoppel, or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused is tried subsequently, even for a different offence, which might be permitted by Section 403(2) Code of Criminal Procedure. Thus, the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence, arising out of a transaction, a trial has taken place and the accused has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in the two trials should be the same but also, the fact in issue, proved or not, as present in the earlier trial, must be identical to what is sought to be re-agitated in the subsequent trial. If the cause of action was determined to exist, i.e., judgment was given on it, the same is said to be merged in the judgment. If it was determined not to exist, the unsuccessful Plaintiff can no longer assert that it does; he is estopped per rem judicatam.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 67 of 2013

Decided On: 11.01.2013

 Ravinder Singh  Vs.  Sukhbir Singh and Ors.

Hon'ble Judges/Coram:

B.S. Chauhan and V. Gopala Gowda, JJ.

Citation:  (2013) 9 SCC 245,MANU/SC/0026/2013

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Supreme Court Judgment on appreciation of evidence of injured witness

Injured Witness

26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness".

28. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1243 of 2007

Decided On: 14.09.2010

 Abdul Sayeed  Vs.    State of Madhya Pradesh

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Important provisions of Bankers Book Evidence Act relating to production of evidence in court

2. Definitions.—In this Act, unless there is something repugnant in the subject or context,—

9[(8) “certified copy” means when the books of a bank,—

(a) are maintained in written form, a copy of any entry in such books together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the bank's business after the date on which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title; and

(b) consist of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of such entry or a copy of such printout together with such statements certified in accordance with the provisions of Section 2-A.]

Subs. by Act 21 of 2000, S. 93 & Sch. III (w.e.f. 9-6-2000).

10[(c) a printout of any entry in the books of a bank stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism obtained by a mechanical or other process which in itself ensures the accuracy of such printout as a copy of such entry and such printout contains the certificate in accordance with the provisions of Section 2-A.]

 Ins. by Act 55 of 2002, S. 11(b) (w.e.f. 6-2-2003).

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Basic concept of Digital signature and Electronic signature

1) Concept of Electronic signature was introduced in Information Technology Act by Amendment Act 2009.

Statement of Objects and Reasons of Amendment Act 10 of 2009.-
The United Nations Commission on International Trade Law (UNCITRAL) in the Year 2001 adopted the Model Law on Electronic Signatures. The General Assembly of the United Nations by its Resolution No. 56/80, dated 12th December, 2001, recommended that all States accord favourable consideration to the said Model Law on Electronic Signatures. Since the digital signatures are linked to a specific technology under the existing provisions of the Information Technology Act, it has become necessary to provide for alternate technology of electronic signatures for bringing harmonisation with the said Model Law.

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Important Notes on Indian Evidence Act

1) Notes on confession of accused as per Evidence Act(S 24-30)

https://www.lawweb.in/2018/08/notes-on-confession-of-accused-as-per.html

2) Notes on Estoppel- S 115 of Indian evidence Act

https://www.lawweb.in/2018/05/short-notes-on-estoppel-s-115-of-indian.html

3) Notes on Burden of proof (S 101-111 of Evidence Act)

https://www.lawweb.in/2019/04/notes-on-burden-of-proof-s-101-111-of.html

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Whether Judge has power to put questions or production?

165 of Evidence Act:- Judge's power to put questions or order production.—The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:

Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

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Basic concept of issue estoppel in criminal law

The principle of issue-estoppel is entirely a creature of judicial decisions, and has not been embodied in the Code of Criminal Procedure. The rule of issue-estoppel in a criminal trial is that where an issue of fact has been decided by a competent Court on a former occasion and a finding reached in favour of an accused, such a finding constitutes an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as barring the reception of evidence to disturb the finding of fact in a subsequent or different trial of the accused.

The rule of issue-estoppel relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent Court at a previous trial. The rule as to issue-estoppel applies where same issue was distinctly raised and inevitably decided in earlier proceedings between the same parties.

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Whether dying declaration is admissible in civil suits?

There is a clear distinction between the principles governing the evaluation of a dying declaration under the English law and the Indian law. Under the English law, credence and relevancy of a dying declaration is only when the person making such a statement is in hopeless condition and expecting an imminent death. So under the English law, for its admissibility, the declaration should have been made when in the actual danger of death and that the declarant should have had a full apprehension that his death would ensue. However, under the Indian law, the dying declaration is relevant, whether the person who makes it was or was not under expectation of death at the time of such declaration. The dying declaration is admissible not only in the case of homicide but also in civil suits. The admissibility of a dying declaration rests upon the principle of nemo meritorious praesumuntur mentiri (a man will not meet his maker with a lie in  his mouth).

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 301 of 2008

Decided On: 15.03.2012

Bhajju  Vs.  State of M.P.

Hon'ble Judges/Coram:

A.K. Patnaik and Swatanter Kumar, JJ.

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Basic concept of Chance Witness

CHANCE WITNESS. “If by coincidence or chance a person happens to be at the place of. occurrence at the time it is taking place, he is called a chance witness." The expression chance witnesses is borrowed from foreign countries.

 The defining attributes of a ‘chance witness’ were

explained by Mahajan, J., in the case of Puran Vs. The State

of Punjab, AIR 1953 SC 459. It was held that such witnesses

have the habit of appearing suddenly on the scene when

something is happening and then disappearing after noticing

the occurrence about which they are called later on to give

evidence.

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Basic concept of Stock witness

A Stock Witness is a person who is at the back and call of the police. He obliges police with this tailored testimony. Such a witness is used by the police in raid cases. Such witness are highly disfavoured by the judges.

Once it is proved that a certain witness examined by the prosecution is a stock witness of the police, the court would be justified in discarding his testimony. But that in itself is not enough to falsify the entire prosecution case. In such a case, it is the duty of the court to brush aside the testimony of the stock witness and to see if the remaining prosecution evidence is enough to sustain the conviction of the accused.

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