> Section 33 of Evidence Act-----Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.----
Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided----
That the proceeding was between the same parties or their representatives in interest;
That the adverse party in the first proceeding had the right and opportunity to cross-examine;
That the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.---- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
Monday, March 3, 2014
Section 33 of Evidence Act
Section 32--Of the relevancy of facts of Evidence Act
Of the relevancy of facts
STATEMENT BY PERSONS WHO CANNOT BE CALLED AS WITNESSES
Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.----
Statements, written or verbal, of relevant facts made by a person who is dead, or 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 which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:---
(1) When it relates to cause of death.--- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) Or is made in course of business.---- When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods securities or property of any kind; or of a document used in commerce written and signed by him; or of the date of a letter or other document usually dated, written or signed by him.
(3) Or against interest of maker.----- When the statement is against the pecuniary or propriety interest of the person making it, or when, if true it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
(4) Or gives opinion as to public right or custom, or matters of general interest.---- When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
(5) Or relates to existence of relationship.---When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6) Or is made in will or deed relating to family affairs.----When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
(7) Or in document relating to transaction mentioned in Section 13, clause (a).---- When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, clause (a).
(8) Or is made by several persons and express feelings relevant to matter in question.---- When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.
Illustrations
(a) The question is, whether A was murdered by B; or A dies of injuries received in the transaction in the course of which she was ravished. The question is, whether she was ravished by B; or the question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.
Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.
(b)The question is as to the date of A’s birth.
An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day, he attended A’s mother and delivered her of a son, is a relevant fact.
(c)The question is, whether A was in Calcutta on a given day.
A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on the given day the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.
(d) The question is, whether a ship sailed from Bombay harbour on a given day.
A letter written by a deceased member of a merchant’s firm, by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.
(e) The question is, whether rent was paid to A for certain land.
A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact.
(f) The question is, whether A and B were legally married.
The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.
(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant.
(h) The question is, what was the cause of the wreck of a ship.
A protest made by the Captain, whose attendance cannot be produced, is a relevant fact.
(i)The question is, whether a given road is a public way.
A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.
(j) The question is, what was the price of grain on a certain day in a particular market.
A statement of the price, made by a deceased banya in the ordinary course of business, is a relevant fact.
(k)The question is, whether A, who is dead, was the father of B.
A statement by A that B was his son, is a relevant fact
(l) The question is, what was the date of birth of A.
A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.
(m) The question is, whether, and when, A and B were married.
An entry in a memorandum-book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.
(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.
Wednesday, February 19, 2014
Section 31 of Evidence Act
Section 31. Admissions not conclusive proof, but may estop.---- Admissions are not conclusive proof of the matters admitted but they may operate as estopples under the provisions hereinafter contained.
Section 30 of Evidence Act
Section 30. Consideration of proved confession affecting person making it and others jointly under trial for some offence.----
When more person than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation.---- “Offence” as used in this section, includes the abetment of, or attempt to commit, the offence.
Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said--- “B and I murdered C”. The Court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said--- “A and I murdered C”.
This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.
Section 29 of Evidence Act
Section 29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc..---
If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him.
Section 28 of Evidence Act
Section 28. Confession made after removal of impression caused by impression, threat or promise, relevant.---- If such a confession as is referred to in Section 24 is made after the impression caused by such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant.
Section 27 of Evidence Act
Section 27. How much of information received from accused may be proved.---
Proved that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
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