Whether the court can convict accused based on oral evidence without insisting on documentary evidence though available?

 Basically prosecution case rests upon the documents in the form of registers and journals. First informant has inspected those documents and then only he came to conclusion that Applicant has not accounted money of Rs.28,834/- accepted from the account-holders. Without inspecting registers, he was not in a position to conclude about misappropriation. It is true that as per Section 61 of the Indian Evidence Act contents of the document can be proved either by primary or secondary evidence. In this case, they are not proved in either way. So, I find lacuna in the prosecution evidence i.e. to say even there is an oral evidence in the form of all the witnesses (except P.W.1), however their version could not be substantiated by producing the documentary evidence in the form of register and journals. So, it cannot be said that the offence of criminal breach of trust by the Applicant is proved beyond reasonable doubt. Though the investigating agency have seized some registers, but they were not tendered in evidence and proved. This is serious lacuna in the prosecution evidence. Without proving the documents, no finding of guilt for offence under Section 409 of IPC can be arrived at. So, certainly it has resulted into illegality when both the Courts convicted the Applicant for offence under Section 409 of IPC. Certainly, there is a scope for interference by the Revisional Court. So the conviction needs to be set aside. {Para 28}

Duty of Police & Court

29. It is the part of investigation to seize relevant register and journals. First informant in his FIR has given the duration of registers from 20th August 2006 upto 28th February 2007 whereas the registers seized were written upto 30th August 2004 and upto 15th February 2005). Even if they can be said to be relevant, they were kept in the police station only. Neither APP in-charge nor the trial Court Judge were vigilant in taking appropriate steps/directions. They conducted trial without registers. Trial Court discussed evidence and convicted the applicant by overlooking absence of important piece of evidence. It is strange even the Appellate Court overlooked this fact and confirmed the conviction. This is blatant disregard to the responsibility bestowed on the stakeholders.

 IN THE HIGH COURT OF BOMBAY

Criminal Revision Application (ST) No. 4181 of 2024 and Interim Application (ST) No. 4204 of 2024

Decided On: 19.03.2024

Anand Narayan Sakpal Vs. State of Maharashtra

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation:  MANU/MH/2312/2024.

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Whether the court can acquit accused due to absence of medical evidence if reliable oral evidence is available in the case?

 It is true that unfortunately there is no medical examination as PW3 father of victim, who was an illiterate person hailing from another District, seems to have left with the victim to reach to his native and on the way, he has realized that she was no more alive. Thereafter, he had performed last rituals. Consequently, there is no supportive medical evidence. However, merely absence of medical evidence, is no good ground to discard the direct and ocular evidence of parents coupled with evidence of an independent witness regarding rape. Law does not make it imperative for prosecution to corroborate its case by adducing medical evidence. When direct evidence inspires confidence, case of prosecution can still be accepted. Here is a case of such nature where parents and independent witness, who have seen the incident, have narrated the occurrence while in witness box. Their testimonies have not been rendered doubtful. Hence, even in absence of medical evidence, case of prosecution can safely said to be inspiring confidence and can be readily accepted. {Para 12}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 673 OF 2002

Bhaulal S/o. Dokraji Reswal Vs  The State of Maharashtra

CORAM : ABHAY S. WAGHWASE, J.

PRONOUNCED ON : 06 MARCH, 2024

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How to appreciate evidence regarding fact and extent of encroachment in suit for removal of encroachment?

 The Cadesteral Surveyor, therefore, will have first to ascertain the boundary marks and boundaries of undisputed and unencroached area of the land, based on undisputed boundary marks, as seen in the public record, and thereafter measure the extent of encroachment. {Para 35}

36. If such report of the Commissioner is proved, as rendered, keeping in view the requirements of rules relating to measurement and if it withstands the test of cross-examination, unless admitted document, alone can be the foundation as to proof of fact and of extent of encroachment.

37. In the present case, the procedure, as emerging from foregoing discussion, has not admittedly been adopted.

38. The Substantial Questions of Law are answered as follows:

Answers to Substantial Questions of Law Nos. [1] and [2]:

[i] Fact of encroachment may be proved partly by oral evidence;

[ii] the extent of encroachment cannot be proved in absence of public records and procedure emerging from Section 36 and Section 60 of Evidence Act;

[iii] it would be impermissible to record a finding as to the fact and extent of encroachment, if any, without ascertaining the fact and extent of encroachment by measurement, based on public record and undisputed and/or settled boundaries of respective lands and measurement of surrounding lands, as may be required.

Answer to Substantial Question of Law No. [3]:

[v] it would not be proper to dismiss the suit simply because the Court Commissioner has not adopted a correct procedure of measurement and the exercise of re-measurement, according to rules, will have to be got done through Court Commissioner again and again, if necessary, because failures of Cadesteral Surveyors are not attributable to parties to the suit.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 97 of 2009

Decided On: 04.05.2009

Vijay shrawan shende and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.H. Joshi, J.

Citation: 2009 (5) MHLJ 279,MANU/MH/0370/2009.

Read full Judgment here: Click here

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Under which circumstances plaintiff can prove encroachment by oral evidence?

PROOF OF FACT OF ENCROACHMENT

24. If there be undisputed boundaries, encroachment can be a question or a matter of fact, which can be seen by a person where encroachment was witnessed. Fact of encroachment also could be a matter of oral evidence, if the admitted boundaries are destroyable, and have been destroyed in presence of witness by the party making the encroachment.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 97 of 2009

Decided On: 04.05.2009

Vijay shrawan shende and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.H. Joshi, J.

Citation: 2009 (5) MHLJ 279,MANU/MH/0370/2009

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Whether court can allow appointment of court commissioner before completion of evidence of both parties?

  This Court has consistently held

that the Court Commissioner should not be

appointed until the recording of oral

evidence is completed. Some of the orders

passed by this Court are as under :-

(1) Syed Mushtaque Ahmad Syed Ismail and

others Vs. Syed Ashique Ali Khan Hatdar [2011

(6) Mh.L.J. 334 = 2012 (2) Bom. C.R. 790],

(2) Nalubai Shinde and others Vs. Gopinath

Shinde [2011(2) Mh.L.J.991],

(3) Dnyandeo Vithal Salke and others vs.

Dagdu Kadar Inamdar, 2017 (3) Mh.L.J. 314.

(4) Chandrakant Kashinath Dike and others vs.

Smt.Satyabhama Vishwanath Dike and another,

Writ Petition No.8877/2013 (Aurangabad Bench)

decided on 17.01.2014.

(5) Dhondiba Bapu Zaware vs. Santosh Paraji

Zaware and others, Writ Petition No.4756/2014

(Aurangabad Bench) decided on 08.12.2014.

(6) Dipak Laxman Gadekar and anr. Vs. Trimbak

Ravji Shirsath, Writ Petition No.

11593/2015 (Aurangabad Bench), decided on

23/08/2017,

(7) Mahadeo s/o Vaijanath Bembalge Vs.

Chandrakala w/o Ramesh Athane, Writ

Petition No. 832/2018 (Aurangabad Bench),

decided on 04/06/2018,

(8) Dhondiram Nivrutti Pawar through L.Rs.

Vs. Laxman Khashaba Pawar and others, Writ

Petition No. 1196/2017, (Bombay Bench),

decided on 23/01/2018,

(9) Sanjay Balasaheb Khandare Vs. Vivek

Surinder Mahajan and another, Writ Petition

No. 4958/2018,(Aurangabad Bench), decided

on 29/01/2018.

(10) Bhika Mahadu Katkar and another Vs. Arjun

Bhimraj Ghode, WP No.1890/2019 (Aurangabad

Bench) decided on 09/07/2019.

(11) Sitaram Suklal Patil and another Vs.

Vasudeo Suklal Patil, WP bNo.9626/2016

(Aurangabad Bench), decided on 31/07/2017.

(12) Sarjerao Nathu Bangar and others

Vs. Namdeo Keru Bangar and others, WP

No.13441/2019 (Aurangabad Bench), decided

on 07/11/2019.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.14551 OF 2019

ASHOK HARDAYAL MEHTA Vs RAHUL TATYARAM MANDAGE AND OTHERS

CORAM : RAVINDRA V. GHUGE, J.

DATE : 12th December, 2019.

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Whether court can convict an accused based on oral evidence if weapon of offence is not recovered?

C.2 Failure to recover the weapon and examine a ballistic expert

17. The deceased had sustained a gun-shot injury with a point of entry and exit. The non-recovery of the weapon of offences would therefore not discredit the case of the prosecution which has relied on the eyewitness accounts of PWs 1, 2 and 3.

18. However, a three-judge Bench of this Court, in Gurucharan Singh v. State of Punjab, (1963) 3 SCR 585, has analysed the precedents of this Court and held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon. Speaking through Justice P B Gajendragadkar (as the learned Chief Justice then was), this Court held:
“41. It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. State [(1950) SCR 821] . In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible Rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr Purushottam is right in contending as a general proposition that in every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence.”
(emphasis supplied)
Supreme Court

JUSTICE Dr Dhananjaya Y Chandrachud JUSTICE A S Bopanna JUSTICE Vikram Nath

Gulab Vs. State of Uttar Pradesh

Criminal Appeal No. 81 of 2021

9th December 2021

Citation: 2021 ALL SCR (ONLINE) 744

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Can the plaintiff prove that his construction was before the datum line based on oral evidence without supporting documentary evidence?

 As a legal proposition, Mr. Diwan may be right that if evidence of the witness goes unchallenged the court may accept it. But the question is of existence of structure and ownership, and, as discussed by me, earlier, these two aspects cannot be said to have been proved only on the basis of oral evidence of P.W. 2. The plaintiff has to prove that his structure existed prior to 1964. He has no documents of any nature whatsoever for showing the structure to be in existence prior to 1962 and therefore the trial court rightly refused to believe the evidence of P.W. 2 regarding these two aspects. {Para 20}

26. The sum and substance of this discussion is that the plaintiff has no documentary evidence at all to prove that the structure was in existence since prior to 1977 or was in existence on 1.1.1962. The oral evidence of the plaintiff and his witness Kurmi P.W.2, cannot and does not, lead the court to come to the conclusion that the structure was so in existence since 1962. The so-called cross-examination of Pednekar the witness of the Corporation is not an admission and it does not help the plaintiff in any way much less in proving the case of the plaintiff about the structure in existence since 1962. Scores of other documents filed by the plaintiff are not required to be considered because they are subsequent to 1972. Therefore, conclusion is that the trial court was fully justified in holding the crucial issue against the plaintiff. Its finding about the failure of the plaintiff to prove the existence of the structure prior to 1977 or from 1962 are based on facts, sound reasoning and logic, and are not liable to be interfered with on any counts.

 Then in paragraph 12 the Gauhati High Court held that "The power under Section 337 of the Act cannot be utilised and/or used in respect of a building constructed on the own land of a person after completion of the same and after assessed by the Municipal Authority, and this power should be utilised within a reasonable time, though no time limit has been prescribed in section itself."

31. Though this judgment of the Gauhati High Court is repeatedly and strenuously relied upon by Mr. Diwan in support of his submission, it cannot be of any help to the plaintiff for the simple reason that in the case before the Gauhati High Court the construction was made by the person upon his land. That is the distinguishing factor in that case and in the present case the plaintiff - appellant is not the owner of the land. Land upon which the suit structure is there, does not belong to him. The owner is before the court as defendant No.2, who has proved his ownership over the land and therefore if the structure is erected on somebody else's land then the judgment of Gauhati High Court cannot be made applicable. It would amount to giving protection to a trespasser, to legalise an illegal act and would be detrimental to the interest of the owner.

32. Notice under Section 351 was given to the plaintiff. He gave reply with supporting documents. All those were considered and then the order of demolition is passed. Before the trial court, no issue was framed by the court whether the principles of natural justice were not followed by the Authorities nor any such submission was made.

35. Mr. Diwan also contended that order of demolition is a drastic step and particularly if the structure is in existence since 1972 then ordering demolition in 2000, was not at all proper in the circumstances. According to him some other form of penalty could have been imposed and structure could have been regularised.

36. The factual aspect of this matter is that land upon which the structure stands does not belong to the plaintiff. Even BMC has no authority to regularise the structure on somebody else's property. If the property is of the BMC and there is illegal structure, the BMC may in a given case regularise the structure but where the property does not belong to the BMC and the land is owned by somebody else, then even the BMC can not regularise the structure. No other penalty can compensate the real owner. It is equally true that when the plaintiff came before the court his dominant intention was to prevent demolition of the structure pursuant to 351 notice and BMC was concerned with only one aspect i.e. whether the plaintiff has necessary documents to show that the construction which he was making in 2001 is with the permission and on the basis of a sanction plan. The BMC found that there was no sanction plan and second aspect of the matter was that the plaintiff failed to prove before BMC Authorities that his structure was in existence before the datum line.

37. At this juncture, it is necessary to consider one more aspect. According to the plaintiff the suit structure as it was there on the date of filing of the suit has been in existence since 1972. This contention is also false, and, in any event, it is not supported by the document. He tendered, the agreement between him and the vendor Lallu Bhika. Even the agreement of 1972 with Lallu Bhika mentions the suit property as Zopda i.e. hut only. In the assessment extract, this structure is mentioned as CI shed only and the first date of assessment is shown as 1.4.1979. But whereas the photographs tendered by the BMC after part of the structure was demolished, pending appeal, for road widening clearly shows that all the bricks used are absolutely new. This clearly fortifies the case of the BMC that in 2001 the plaintiff constructed four rooms. Obviously this is done by the plaintiff after demolishing the old hut. New structure of the plaintiff, cannot be called as Zopda or hut as is referred in the document of 1972. It cannot be referred as to C.I. shed as is referred in the assessment bill. It is a new construction for which plaintiff has no approved plans nor he has any permission of the BMC for construction.

38. Counsel for the BMC and defendant No.2 submitted that even if all the documents of the plaintiff are accepted, they do not firstly prove that the structure was in existence prior to datum line, that these documents do not prove that the new structure erected by the plaintiff was with the permission of the BMC or on the basis of any approved plan. My attention was drawn to the order of the Commissioner, which is a detailed order, wherein each document of the plaintiff is considered by the Commissioner. In any case, what ultimately comes before the court is important and therefore when plaintiff has miserably failed to prove his title over the property and failed to prove existence of the structure prior to 1972, has failed to prove that when he re-erected the structure in 2001, it was done by him with the permission of the BMC on the basis of sanction and approved plans, then the trial court was fully justified in dismissing the suit and rejecting the claim and contention of the plaintiff.

39. Mr. Diwan also contended that there was no rationale behind fixing the datum line and no action was taken by the BMC from 1972 to 2001. Limitation, in my opinion, in view of the provisions of the BMC Act does not apply in this case. No doubt demolition is a drastic action, but looking to the tendency of the citizens of making illegal construction in the City of Mumbai, which are hundreds and thousands in numbers, BMC is required to be empowered with such drastic action and whether there is a rationale behind fixing the datum line, the court cannot go into this question, because this is a question of policy.

40. It is to be noted that Mr. Diwan had cited some authorities about the testimony of single witness and use of unregistered document for collateral purpose. There is no dispute about this proposition. But in the facts of the case neither the evidence of the single witness can be taken as a proof of the existence of the structure prior to 1972 even if the evidence of witness had gone unchallenged. I have already discussed and noted that illegality and validity of structure are required to be proved on the basis of documentary evidence otherwise that will create chaotic situation where everybody will examine numerable witnesses for proving these facts. There cannot be any substitute for written permission of the BMC for construction nor there cannot be any substitute for approved plan before construction. Therefore, for all these reasons, there is no merit in this Appeal.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.G. DESHPANDE, J.

Namdev Pandurang Panchal Vs. Mumbai Municipal Corpn. Of Gr. Bombay & Anr.

First Appeal No.1241 of 2005

16th September, 2005

Citation: 2005(4) ALL MR 689,2006(1) MHLJ 194

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Whether court can permit a party to adduce oral evidence regarding written agreement?

This Court in Gangabai v. Chhabubai [(1982) 1 SCC 4 :

AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [(2000) 1

SCC 434 : AIR 2000 SC 426] with reference to Section 92(1)

held that it is permissible to a party to a deed to contend

that the deed was not intended to be acted upon, but was

only a sham document. The bar arises only when the

document is relied upon and its terms are sought to be

varied and contradicted. Oral evidence is admissible to

show that document executed was never intended to

operate as an agreement but that some other agreement

altogether, not recorded in the document, was entered into

between the parties.” (Emphasis Supplied) {Para 22}

27. A perusal of the above judgment would show that the oral evidence of a written agreement is excluded except when it is

 sought to be alleged the document as a sham transaction.

28. It is beyond dispute that a sale deed is required to be registered i.e. a document required by law to be reduced to the form of a document. Therefore, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding or subtracting from its terms. The proviso (1) of Section 92 of the Evidence Act on which reliance was placed is a proof of such fact which would invalidate any document such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. Section 92 of the Evidence Act reads as under:

“92. Exclusion of evidence or oral agreement. - When the

terms of any such contract, grant or other disposition of

property, or any matter required by law to be reduced to

the form of a document, have been proved according to the

last section, no evidence of any oral agreement or

statement shall be admitted, as between the parties to any

such instrument or their representatives in interest, for the

purpose of contradicting, varying, adding to, or subtracting

from, its terms:

Proviso (1).—Any fact may be proved which would

invalidate any document, or which would entitle any person

to any decree or order relating thereto; such as fraud,

intimidation, illegality, want of due execution, want of

capacity in any contracting party, want or failure of

consideration, or mistake in fact or law.”

29. The respondents were free to prove fraud in execution of the sale deed. However, factually, the respondents have not alleged any  fraud in their suit or in the written statement in the suit filed by appellant No. 1. The feigned ignorance about the nature of document cannot be said to be an instance of fraud. In the

absence of any plea or proof of fraud, respondent No.1 is bound by the written document on which he admitted his signatures and of his wife. There is no oral evidence which could prove fraud, intimidation, illegality or failure of consideration to permit the respondents to lead oral evidence to dispute the sale deed dated 14.9.1970. Therefore, the judgments referred to by Mr. Mehta are of no help to support his arguments. Thus, the findings recorded by the First Appellate Court as affirmed by the High Court are clearly erroneous in law and are, thus, set aside.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1491 OF 2007

PLACIDO FRANCISCO PINTO (D) by LRs  Vs JOSE FRANCISCO PINTO

Author: HEMANT GUPTA, J.

Dated: SEPTEMBER 30, 2021.

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Supreme Court: Presumption of truth attached to record of right can not be rebutted by oral evidence

 Therefore, we find that the presumption of truth attached to the
record-of-rights can be rebutted only if there is a fraud in the entry
or the entry was surreptitiously made or that prescribed procedure
was not followed. It will not be proper to rely on the oral evidence to
rebut the statutory presumption as the credibility of oral evidence
vis-a-vis documentary evidence is at a much weaker level.
25. In view thereof, we find that the High Court has erred in law in
allowing the defendant's appeal relying upon oral evidence to rebut
the statutory presumption of truth attached to the revenue record.
The onus of proof was placed on the defendant by the learned trial
court. The burden is on the person who asserts such a relationship
as per Section 109 of the Evidence Act. The defendant has failed to

rebut the presumption of truth on the basis of reliable, trustworthy
and cogent documentary evidence to prove the relationship of a
tenant.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1511 OF 2020

SHRI PARTAP SINGH  Vs  SHIV RAM 

Dated:FEBRUARY 20, 2020.
HEMANT GUPTA, J.

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Whether it is necessary to adduce oral evidence to prove terms of lease deed?

 Section 91 of the Indian Evidence Act deals with evidence of terms of contracts, grants and other dispositions of property reduced to the form of documents. The lease deed is a document within the meaning of Section 91 and, therefore, no amount of oral evidence is required for elucidation of the terms and conditions stipulated under the said lease deed. The document speaks for itself. So also Section 92 is relevant in the present case which relates to exclusion of evidence of oral agreement. When the document itself is admitted, no oral agreement can improve the defendant's case.

IN THE HIGH COURT OF CALCUTTA

G.A. No. 1058 of 2016 and C.S. No. 100 of 2009

Decided On: 14.02.2018

Kanak Projects Limited  Vs.  Hooghly Printing Company Limited

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Whether oral evidence can be given in respect of unregistered exchange deed?

 It is clear from the above judgment that the best evidence of the contents of the document is the document itself and as required Under Section 91 of the Evidence Act the document itself has to be produced to prove its contents. But having regard to Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and proved Under Section 91 of the Evidence Act. Since Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such it can neither be proved Under Section 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Exhibit P2.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5415 of 2011

Decided On: 02.07.2018

Shyam Narayan Prasad Vs. Krishna Prasad and Ors.

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Whether oral evidence contrary to hospital records can be relied on?

 There is one more reason that was given by the trial court in discarding
the dying declaration and if correct, that would afford strong
circumstance to justify its conclusion. It is the PW-4 who has come as a
shield to protect the appellants. For this reason, we advert to the
statement of Balraj (PW-4), brother of the deceased. He stated that on
the night intervening 19th – 20th September, 1999, Ramesh was with him.
He further deposed that at 4:00 a.m. on 20th September, 1999, they
received the information about the deceased having sustained burn
injuries and he along with Ramesh reached PGIMS, Rohtak where she
was already present. It is on the basis of this statement that the trial
court observed that since Ramesh was with Balraj (PW-4) in his house,
he could not be present at the place of incident when it took place and,
therefore, he is falsely implicated and mentioning of his name
considerably dents the veracity of dying declaration thereby rendering it
questionable. However, we find that in accepting the aforesaid version
of PW-4, the trial court committed a serious mistake. As per the hospital
records, it is Ramesh who had brought the deceased to the hospital and
got her admitted which was even the defence case as well. The trial
court completely overlooked this pertinent aspect. This fact alone is
sufficient to discredit the statement of PW-4 that Ramesh was with him
in his house and both of them had received the information about the
incident and when both of them reached PGIMS, Rohtak, the deceased
was already there. In these circumstances, we entirely agree with the
High Court that PW-4, though brother of the deceased, appears to have
been won over by the appellants.
 Present case appears to have been stung by 'culture of compromise'.
Fortunately, statement of PW-4 in attempting to shield the accused
Ramesh has been proved to be false in view of the records of PGIMS,
Rohtak and, therefore, we held that High Court was right in discarding
his testimony.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2526 OF 2014

RAMESH V STATE OF HARYANA 

Citation: 2017 CRLJ 352

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When court can grant permission to lead oral evidence contrary to terms of written agreement?

 The next contention on behalf of the appellant is that Sub-section (1) of Section 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parol evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the norm of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-section (1) of Section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to Section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by Sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties. Tyagaraja Mudaliyar and Anr. v. Vedathanni. MANU/PR/0014/1935. The Trial Court was right in permitting the respondent to lead parol evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parol evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1537 of 1970

Decided On: 06.11.1981

Smt. Gangabai Rambilas Gilda

Vs.

Smt. Chhabubai Pukharajji Gandhi

Coram:

D.A. Desai and R.S. Pathak, JJ.

Citation:AIR 1982 SC 20

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Whether court can permit defendant to lead oral evidence to find out nature of transaction?

In so far as the first submission of the learned counsel for the
plaintiff that the defendant no.1 could not have been permitted to lead
evidence to contradict the contents of the agreement to sale dated 17th
October 1995 in view of Sections 91 and 92 of the Indian Evidence Act,
1872 is concerned, in my view, the defendant no.1 had not led evidence
to contradict the contents of the said agreement for sale dated 17th
October 1995. The case of the defendants before the trial Court was that
the said transaction entered into between the parties was not to be acted

upon as the same was to be kept as a security in favour of the plaintiff
and was not to be acted upon as an agreement to sale. The defendant no.1
had disputed the entire transaction and thus could lead evidence in that
regard in view of Section 92 of the Indian Evidence Act, 1872. The first
appellate Court, in my view, has rightly adverted to the judgments of the
Supreme Court referred to aforesaid and has rightly rejected the
contention raised by the plaintiff. In my view, there is no substance in
this submission of the learned counsel for the plaintiff.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.144 OF 2016
along with
CIVIL APPLICATION NO.228 OF 2016

Manohar Pamandas Jani
 V
 Madhukar Trimbak Waychal
 CORAM : R.D. DHANUKA, J.
 DATE :  25th October 2016
Citation: 2017(1) ALLMR 102

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Whether party is estopped from rebutting uninformed concession made at bar by its counsel?

 At this stage, we must deal with the submission made on
behalf of the appellant that there was a concession by the
respondent before the High Court that AGREEMENT-II is not a
tripartite agreement but a bipartite agreement16
.
What is the number of parties to a document is a
question of fact. When a fact is in issue17, the same is required
to be proved in accordance with the provisions of the Evidence
Act. Disposition of the property whether it be by way of a
contract or grant or any other, if reduced to writing, parties
are prohibited from giving any evidence regarding the terms of
such disposition18 except the document itself or ‘secondary
evidence’19 of that document. Provided that such secondary
16 20.. That apart, Shri A. Krishnan, learned counsel for the respondent, at the very outset had admitted that
the findings recorded by the learned District Judge to say that the Assignment Agreement is a tripartite
agreement is not correct and the objection in this regard raised by Shri V.K. Tankha, learned Senior
Advocate, may be accepted, he agrees that the same is a Bi parte agreement.
17 The Indian Evidence Act, 1872 – Section 3. Facts in issue.– The expression “facts in issue” means and
includes – any fact from which, either by itself or in connection with other facts, the existence,
non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or
proceeding, necessarily follows.
18 Section 91 – Evidence of terms of contracts, grants and other dispositions of property reduced to
form of documents – When the terms of a contract, or of a grant, or of any other disposition of property,
have been reduced to the form of a document, and in all cases in which any matter is required by law to be
reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant
or other disposition of property, or of such matter, except the document itself, or secondary evidence of its
contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
19 Section 63 – Secondary evidence. Secondary evidence means and includes.— (1) certified copies given
under the provisions hereinafter contained;
 (2) Copies made from the original by mechanical processes which in themselves ensure the
accuracy of the copy, and copies compared with such copies;
 (3) Copies made from or compared with the original;
 (4) Counterparts of documents as against the parties who did not execute them;
 (5) Oral accounts of the contents of a documents given by some person who has himself seen
it.

evidence is otherwise admissible under the Evidence Act.
Though oral evidence can be secondary evidence under
Section 63(5), Section 64 mandates that documents must be
proved by primary evidence except in exceptional
circumstances specified under the other provisions of
Evidence Act. Logically, a concession at the bar regarding the
content of a written agreement including the fact as to who are
the parties to the document, in our opinion, does not stand on
any different footing than the oral evidence of the parties. The
concession made by the counsel for the respondent is not
secondary evidence admissible under any of the clauses ofSection 65 of the Evidence Act. Therefore, in our opinion, the
concession made at the bar by the learned counsel (for the
respondent herein) before the High Court does not preclude
the respondent from asserting that AGREEMENT-II is a
tripartite agreement. The tenor and content and the fact that
representatives of the three companies signed the document
cannot be ignored simply on the basis of an uninformedconcession made at the bar.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8299 OF 2016
(Arising out of SLP (C) No.33227 of 2015)
Sasan Power Limited 
V
North American Coal Corporation
India Private Limited 
Citation: (2016) 10 SCC813

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Whether it is permissible to adduce oral evidence to prove legal misconduct of arbitrator?

We have referred to series of decisions to appreciate
the concept of misconduct and how a party is entitled to
make it the fulcrum of assail in his objection under Sections
30 and 33 of the 1940 Act. Misconduct, as has been laid
down, does not always have a moral connotation. To elaborate,
it may not have any connection with the

individual/personal conduct of the arbitrator. The said conduct
would be in sphere of moral misconduct. As far as legal
misconduct is concerned, as the authorities would
demonstrate, the same must be manifest or palpable from
the proceedings before the arbitrator. To elaborate, a person
urging the ground of legal misconduct has to satisfy the
court from the records of the arbitral proceedings that there
has been a legal misconduct on the part of the arbitrator as
a consequence of which the award gets vitiated. The question
of adducing any kind of oral evidence to substantiate
the plea or stand or stance does not arise. It has to be
shown from the proceedings carried on before the arbitrator
and the evidence adduced before the arbitrator. Evidence
cannot be adduced in court to substantiate the challenge on
the score of legal misconduct. We are not entering upon
any discussion pertaining to moral misconduct as that is
not the issue in the case at hand. The decision in Fiza
Developers and Inter-Trade Private Limited (supra) has
been rendered by this Court while interpreting Section 34 of
the 1996 Act. The context being different, we are not inclined
to apply the principles enumerated therein to the objection
filed under Sections 30 and 33 of the 1940 Act, for

the simon pure reason that the authorities are plenty to
make it limpid that the issue of legal misconduct on the part
of the arbitrator should be manifestly discernable from the
record.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9187 of 2015
(@ SLP(C) NO. 34309 OF 2014)
M/s Cochin Shipyard Ltd
 Versus
M/s Apeejay Shipping Ltd.
Citation:(2015) 15 SCC522

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Whether witnesses can be permitted to submit written statement in lieu of oral evidence in departmental enquiry?

It is apparent and cannot be disputed that the Enquiry Officer is not a Court. Evidence to be adduced by the parties before the Enquiry Officer in oral form is to be recorded in a concise form or a summary pattern. Either it could be recorded word to word or even by way of a summary. The witnesses of the respective sides are at liberty to file a written statement in lieu of oral evidence.

22. In fact, the experience is that such written statements are more preferred by the employees as well as the Management since it ensures that all the aspects of the case are put forth, no point is lost or is missed, in as much as, the other side gets an opportunity to study such statement and prepare itself to cross examine the said witness. In my view, it is not an anathema to lead oral evidence in the form of a written statement before an Enquiry Officer in a domestic enquiry.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition Nos. 9133 and 9140 of 2015

Decided On: 24.02.2016

 Siddheshwar Urban Co-Op. Bank Ltd. Vs. Ganesh and Ors.

Hon'ble Judges/Coram:R.V. Ghuge, J.

Citation: 2016(2) MHLJ 880

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Whether court can consider oral evidence in absence of pleading?

Pleading of the parties in a civil
 suit is significant and important. It is
 foundation of the stance taken by the parties in
 civil Suit. Order VI Rule 1 provides that plaint
 is a pleading of the plaintiff and written
 statement is pleading of the defendant. Parties
 have to lead their evidence according to their
 pleading. Especially, oral evidence cannot be, in
 the absence of pleading, as has been provided under
 Order VI Rule 2 of the Code. Oral evidence in the
 absence of pleadings, has to be ignored. The
 Supreme Court has time and again recognised the
 importance of the pleading. Recent judgment of the
 Supreme Court in the matter of "State Bank of India
V/s S. N. Goyal" reported in 2008 AIR SCW 4355
 may be usefully referred to. In the case on hand,
 copy of the written statement is not available,
 either with the learned counsel appearing for the
 Appellant or for the Respondent. However, pleading
 of the parties have been set out in nutshell by the
 Courts below in their judgments. From the
 judgments, it appears that such pleading was not
 raised by the defendants in their written statement

 itself. Consequently, there was no issue and no
 finding of the trial Court, no point for
 determination and no finding of the first Appellate
 Court. Such new plea, raised before the High
 Court, cannot be considered to be a ground within
 the parameters of section 100 of the Code. In my
 considered view, this appeal is devoid of
 substantial question of law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPELLATE SIDE, APPELLATE JURISDICTION
SECOND APPEAL NO.: 605 OF 2005

 Laxuman S/o Dadarao Bodake, V Vithal S/o Dadarao Bodake,

CORAM: S. B. DESHMUKH, J.
DATED: 4th SEPTEMBER, 2008.
Citation: 2008(6)AIR Bom R581

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Whether oral evidence in respect of Auction sale is admissible?

Mr. Almeida, learned Counsel for the defendants,
contended that in terms of Section 91 of the Evidence Act, oral
evidence with respect to the said auction sale in order to
establish that the auction sale is not only of the property
registered under no. 27202 but also in respect of 1/5th of the
property registered under no. 29845, is not admissible. On the
contrary, the contention of Mr Usgaonkar, learned Counsel for
the plaintiffs is that in respect of auction sale no document was
required to be executed by the Court and therefore Section 91 of
the Evidence Act does not bar such evidence. He relied upon the
Judgment of Division Bench of Patna High Court in the case of
“Tribeni Prasad Singh Vs. Ramasray Prasad Chaudhury”,
reported in A.I.R. 1932 Patna 80. In the case supra, the learned
Division Bench has observed that Section 65 of Civil. P.C. says
that where immovable property is sold in execution of a decree
and such sale has become absolute, the property shall be
deemed to have vested in the purchaser from the time when the
property is sold and not from the time when the sale becomes
absolute. It has been held that it is clear that the title of the
auction-purchaser is derived from the sale and not from the sale
certificate. It has been further held that the sale certificate is
merely evidence of title of the auction-purchaser and not the
title deed in the sense that the title is conveyed or created by it.
It is further observed that the word “sale certificate” itself
denotes that it is only a certificate by the Court that the auctionpurchaser
has purchased the property. It is further observed
that no provision of law has been placed before the Court to
show that the title of the auction-purchaser is derived from the
sale certificate. In the case supra, mortgaged property was
purchased by the decree holder in execution proceedings but no
sale certificate was obtained nor any document of delivery of
possession under Rule 95 or order XXI of C.P.C. was applied for
and obtained. In terms of Rule 94 of Order XXI of C.P.C., when
a sale of immovable property has become absolute, the Court
shall grant certificate specifying the property sold and the name
of the person who at the time of sale is declared to be the
purchaser and such certificate shall bear the date the day on
which the sale became absolute. An omission to obtain the
certificate does not destroy or take away the title of the
purchaser and the purchaser in such case can prove his title and
purchase by evidence aliunde. But when there is order of
confirmation of sale, the production of the same is sufficient to
prove the title of the auction-purchaser. The certificate of sale
may not by itself create title but is certainly evidence of title.
The facts and circumstances in the case of “Tribeni Prasad
Singh” (supra) are different. The ratio in the said judgment
does not apply to the facts of the present case. In the present
case, the property was not purchased in execution proceeding
and hence the provisions of order XXI of C.P.C. would not apply.
Auction was held in a Partition Suit No. 3450/1964. The said
document of auction proceedings was signed by Dr. Eurico Das
Dores Santana Da Silva, the learned Civil Judge Senior Dicision;
by Mr. Abel Agnelo Da Piedade Noronha, the Escrivao/Clerk of
that Court; by Mr. Antonio Coelho, the bailiff of the Court and by
the purchasers namely Maria Purificacao Jesuina Consolacao
Miranda Gomes and Soter Paulo Menino Gomes. It is stated in
the said document of auction proceedings that the said written
proceedings are being sent to Land Registration Office in terms
of the law. The document further shows that on 25/08/1972, the
executing parties namely Maria Jesuita Miranda Gomes and her
husband Soter Paulo admitted execution of the so-called
certificate of sale, before the Sub-Registrar, Salcete. On
26/09/1972, the execution of the said document of auction-sale
has been registered in the Land Registration Office of Salcete
under No. 1371 of Book No. 1, Vol. 99 at pages no. 335 to 340.
Section 91 of the Evidence Act, inter alia, provides that in all
cases in which matter is required by law to be reduced to the
form of a document, no evidence shall be given in proof of such
matter except the document itself, or secondary evidence of its
contents in cases in which secondary evidence is admissible
under the provisions herein before contained. In my view, the
learned First Appellate Court has rightly held that on account of
Section 91 of the Evidence Act, oral evidence in respect to the
auction sale in order to show that the auction sale was not only
in respect of the property registered under no. 27202 and
matriz no. 345 but also in respect of the property bearing
registration no. 29845 and matriz no. 344, is not admissible.
Hence the substantial question no. (1) above is answered in the
negative i.e. against the plaintiffs.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 85 of 2009
 Smt. Dea Lima Gomes Alemao,

Versus
Smt. Aurora Silva e Diniz,

CORAM :- U. V. BAKRE, J.
 Reserved on : 8thAugust, 2014.

Citation; 2016(3) ALLMR183

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