Burden of Providing Evidence: Part III of Indian Evidence Act

Which of the contesting parties should provide evidence in a judicial proceeding is determined on the basis of some judicial principles that are laid down in the Indian Evidence Act.  This write up is exclusively about such principles included in Part III of Indian Evidence Act.  

Who holds the burden of providing evidence?

First of all, the burden of providing evidence rests on the person who asserts anything in the court and not on who denies it. This burden remains constant and never shifts at all.

Then the burden of providing evidence in a suit or proceeding lies on the person, who would fail if no evidence is given on both sides. This burden shifts from one side to another in the course of the proceedings or at every instance of providing evidence.

Then the burden of providing evidence lies on the person who wants the court to believe something unless law has prescribed something different. In order to make some evidence provided by someone admissible, it is quite necessary to prove beforehand that he is entitled to give that evidence.

The burden of proving an exceptional circumstance in an offence, such as unsoundness of mind of the accused or grave and sudden provocation, provided for in the Indian Penal Code or any other penal law rests upon the accused.

Whenever any fact is within the knowledge of a person, the burden of proving the fact rests upon that person.

If a person is shown to be alive within 30 years, the burden of proving that he is not alive is on the person who affirms it.

On the other hand, if a person has not been heard of for seven years by those who would naturally have heard of him, the burden of proving that he is alive is on the person who affirms that he is alive.

Some judicial presumptions

If some relationship like that of partners in a partnership, landlord and tenant in a tenancy relation, principal and agent in a contractual relation etc is in question in a proceeding, then there will be a judicial presumption that such a relationship continues to exist till the contrary is proved by the person who affirms it.

When a person is in possession of a property, the burden of proving that he is not the owner of it is on the person who affirms that the person is not its owner.

The good faith in a transaction, such as a sale, between parties has to be proved by the person who stands to the other in a position of active confidence in the bonafide nature of the transaction.

If a child is born within 280 days after the divorce of the spouses, it is a conclusive proof that it is a legitimate child. The presumption will not hold good if it can be proved that the husband and wife had no access to each other during those days.

In the case of some offences like terrorists attack, abetment of suicide by a married woman, dowry death of a woman, and absence of consent in a rape case, coming under sections 111A, 113A, 113B & 114A of the Indian Evidence Act respectively, the burden of proving lies squarely on the accused.

Estoppel not acceptable

Estoppel means disallowing to say (taking a stand about) one thing at a time and the opposite of it at another time.

In providing proof, a party in a judicial proceeding shall not be allowed to say one thing at a time and the opposite of it at a later time. Therefore when a person makes others believe one thing in a proceeding, he cannot deny it at a later stage.

Different types of estoppels

When a consented matter is settled in a competent court, the parties are precluded from re-agitating the matter afresh by taking a fresh stand. This is called estoppels by record or res judicata.

A person who stated something in a deed cannot deny it and assert something else. This is called estoppels by deed.

A person who claims as a tenant cannot deny later that the landlord had no title at the time of the tenant’s entry by a licence into the tenancy in question.

Similarly, the acceptor of a bill of exchange cannot say that the drawer had no authority to draw the bill or endorse it.

Competency of a witness

In general, all persons are legally competent to give evidence. But in the case of a child or a lunatic person the court will conduct a precursor test to identify whether the witness has competency to give evidence. The preliminary enquiry is called voire dire test. In this test, the judge will put some general questions to the individual so as to test the witness’s competency.

Compelling a witness to provide evidence

Any person is competent enough to testify as a witness unless he/she suffers from problems like inability to understand the questions being so young or quite old in age, or unsoundness of mind etc.

Any competent witness can be compelled by the court to answer any question put to him. However a competent witness cannot be compelled to answer some questions which are privileged. For example a husband and wife are generally competent witnesses. But they cannot be asked to disclose the communications in a matrimonial relation between them, which are privileged, except in suits or proceedings between spouses in a marriage. No communication of whatsoever nature made between them shall be compelled to be disclosed without consent of the concerned party in any other kind of suit or proceeding. The privilege exists even after divorce.

Similarly, a judge cannot be compelled to answer any question regarding anything which came to his knowledge as a judge, without an order of a superior court to which he is subordinate. But he can be questioned about something he witnessed while he was acting as a judge.

Ban on disclosing official records

No officer is allowed to give evidence regarding unpublished official records relating to any affairs of the State, without obtaining permission of the Head of the Department. An officer shall not be compelled to disclose any communication made to him in official confidence, if he considers such disclosure would go against public interest.

A magistrate or officer shall not be compelled to answer the source of his information regarding the commission of any offence.  Similarly, a revenue officer should not be asked to disclose the source of information regarding the offence against public revenue.

Professional communications between the lawyers and the clients is insulated from disclosure. But any communication pertaining to any illegal action between them is not at all precluded from disclosure. Information on any crime committed by the legal counsel during his engagement as an advocate is also not protected.

Examination of witnesses

The party on whom the burden of proof lies should begin examination of witnesses by calling his witnesses - this is called Examination-in-Chief.

Then, the opposite party should examine the witness - this is called Cross Examination.

Thereafter, the party who called him for Examination-in-Chief can re-examine the witness on answers given in Cross Examination.

Examination-in-Chief

In Examination-in-Chief, a witness may be asked questions relating to relevant facts and facts in issue. Leading questions are not allowed to be asked in Examination-in-Chief. Questions that are irrelevant can also be asked if they are useful in corroborating the testimony of the witness.

When the witness gives in answer any fact including a relevant fact, he can be questioned as to any circumstance which occurred around such time or place of occurrence of the fact. This is permitted only when the court is of the opinion that such circumstances would help in corroborating the testimony of the witness to the fact in issue. However, a statement of witness made to a police officer shall not be used for such corroboration.

No leading question is allowed in Examination-in-Chief if the other party objects to it. But it can be asked when the court permits it. The court usually permits leading questions in matters of introductory nature or of already proved facts. But in re-examination, no leading question is allowed.

A party calling a witness can cross examine him when the witness turns hostile. A witness can be allowed to refresh his memory by looking at the records made by him at the time of the transaction in question. The other party should be shown the record if they demand.

Cross Examination

Cross Examination is the most fruitful test to discover the truth. But relevant facts alone must be enquired into in the process.

In cross examination, a witness can be asked questions regarding his previous statements in writing, by showing or without showing the record. The scope of cross examination is limited generally to relevant facts alone, but some other facts may also be asked to test his credibility.

Harassing the witness

The court can direct the witness not to answer any question asked by the counsel exclusively to harass him or injure his character. The court can forbid any question which is needlessly offensive, even if it is a proper one.

However, the credibility of any witness can be impeached by proving that the witness is bribed or his statement is inconsistent with the former.

Re-examination

The purpose of re-examination is to afford the party an opportunity of explaining the inconsistencies made in the cross-examination. If a new matter is asked in re-examination the adverse party has a right to cross-examine him on that particular point.

Judge’s power to ask questions

At any stage of the proceeding, the judge has the power to ask any question on relevant or irrelevant facts to the party about anything, in any form so as to obtain proof of any relevant fact. He can also order the production of any document or thing. The parties can neither object nor cross examine the witness, on such questions. However, the judge cannot compel a party to answer a particular question or produce a particular document which he refuses to answer or produce, as it is a privileged one.

A trial judge is not a mute or blind spectator, nor is he a dynamic functionary.  He asks questions so as to get evidence in a detached and dispassionate manner with the object of ascertaining truth of the disputed matter. It is an extraordinary power, but the judge should not usurp the power of a counsel. Every trial is a voyage in search of truth. If prosecution fails to do its duty the trial court should be vigilant enough to put such questions to discharge its duty.

No criminal action on witness

No criminal action can be taken on any witness for any answer he gave in a witness deposition, except for the offence of giving false evidence. Therefore, a witness cannot be excused from answering any relevant question fearing that he will be incriminated for telling anything as part of witness examination.

A person, who is not a party to suit, cannot be compelled to produce any document that would criminate him unless he has agreed to produce them.

Improper admission and rejection of evidence

A court of appeal or revision should not disturb a decision of the lower court on the sole ground that there was improper admission or rejection of proper evidence at the trial stage, if there are sufficient other independent materials to prove the decision in the judgment. That means, improper admission or rejection of evidence alone is not a sufficient ground to allow a new trial or reversal of any judgment. 

Conclusion

The law of evidence plays a great role in administration of justice. For that it is essential to provide reliable, relevant and admissible evidence to establish the substantive rights of the contesting parties in a court of law. The law makes the job of providing evidence foolproof.

The author can also be reached at rajankila@hotmail.com