Wild Landscape

Substantive Documents, and Documents used for Corroboration, Refreshing Memory and Contradicting Witnesses

Created: 07 Jul 2024 at 23:29

Saji Koduvath, Advocate, Kottayam.

Key Takeaways

  • Document must be Relevant and Admissible – A document, exhibited in court for placing its ‘contents’ for judicial consideration, must be relevant and admissible. 
  • Relevancy of Documents – Sec. 5 and 136 of the Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.
  • Admissibility of Documents – Generally speaking, all relevant documents are admissible. But, various provisions of the Evidence Act, Civil and Criminal Procedure Codes, Stamp Act, Registration Act etc. stipulate various formalities or regulations for tendering documents in evidence. ‘Relevancy’ is a matter of judicial application of the mind by the court. But, ‘admissibility’ is governed solely by the legal principles.
  • Substantive Evidence and Corroborative Evidence or evidence for refreshing memory) – Substantive evidence is the evidence that can be independently looked into and relied upon by the Court, contra distinct to corroborative evidence (Sec. 157, Evid. Act) and the evidence for refreshing memory of witness (Sec. 159, Evid. Act) .
  • Probative Value of Documents – Even when a relevant and admissible evidence (document) is admitted in court, the probative value thereof (when the evidence is evaluated for judicial resolution) will be a matter for the court to determine (E.g. School Admission Register has more probative value than the horoscope).

Admissibility, one thing; and Probative Value, quite another

State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:

  • “Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

If there is a dispute regarding age, the Supreme Court, in State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868, held that the date of birth available in the School Admission Register has more probative value than the horoscope. The probative value of FIR, Scene-Mahazar, Post-Mortem Report, photocopy of a Registered Deed etc., by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered, by examining the proper witness.

In Om Prakash Vs. State of Punjab, 1993(2) CLR 395, and Jora Singh Vs. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probity evidence’ because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy Vs. C. Jayarama Reddy: AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)

Test Identification Parade provides Corroboration

It is well settled that substantive evidence of the witness is his evidence in the court, but when the accused person is not previously known to the witness identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. (See: Suresh Chandra Bahri v. State of Bihar : 1995 Supp (1) SCC 80; Referred to in: Malkhansingh v. State of MP, 2003-5 SCC 746)

In Ramanbhai Naranbhai Patel v. State of Gujarat, (2000) 1 SCC 358, it is observed that it cannot be held that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless ; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It is also pointed out in Malkhansingh v. State of MP that in appropriate cases the court can accept the evidence of identification even without insisting on corroboration. See:

  • Kanta Prashad vs. Delhi Administration: AIR 1958 SC 350;
  • Vaikuntam Chandrappa v. State of AP: AIR 1960 SC 1340 ;
  • Budhsen v. State of UP: AIR 1970 SC 1321
  • Rameshwar Singh v. State of J and K: (1971) 2 SCC 715;
  • Harbajan Singh v. State of J and K: (1975) 4 SCC 480).

It is held in State of Uttar Pradesh v. Boota Singh (1979) 1 SCC 31 that the evidence of identification (before court) becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time. This principle is followed in Malkhansingh v. State of MP, 2003-5 SCC 746, where the accused committed gang rape and criminally intimidated a tribal woman, who was posted as Assistant Teacher in the Primary Government School.

It is interesting to note that our Apex Court upheld the conviction, in Ram Nath Mahto v. State of Bihar, (1996) 8 SCC 630, even when the witness while deposing in Court did not identify the accused out of fear, though he had identified him in the test identification parade. In this case the Court relied upon the evidence of the Magistrate, who had conducted the test identification parade (Referred to in: Malkhansingh v. State of MP, 2003-5 SCC 746).

Substantive Evidence and Evidence for Corroboration & for Refreshing Memory.

A Post-Mortem Report (Ganpat Raoji Suryavanshi v. State of Maharashtra, 1980 Cr. L.J. 853), Wound Certificate or Commission Report in a former case is not a substantive evidence .  Doctor or Commissioner can refresh memory (Sec. 159, Evid. Act) with reference to the document. Similarly, mere marking of a Scene Mahazar, without examining the Investigating Officer who prepared it, will not render substantive aid to the prosecution case.

In Rameshwar Dayal v. State of U.P., AIR 1978 SC 1558, referring to Inquest Report, Site Plans etc., it is held by the Supreme Court, as follows:

  • “That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.”

[See also: Munshi Prasad Vs. State of Bihar,(2002) 1SCC 351; State of Haryana v. Ram Singh,  (2002) 2SCC 426; Vijay Paul v. State of Delhi: 2015 SC 1495; Mohanan v. State of Kerala: 2011(4) KLT 59.]

A ‘Certificate’ or ‘Expert Opinion’ is NOT Per Se Admissible

A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. Unless presumption can be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate can be taken as proved unless its contents are proved in a formal manner.

This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.

Unless the expert is examined in the court, his opinion cannot be relied on. (State of Maharashtra vs. Damu, AIR 2000 SC 1691). Opinion or report of a finger print expert is not a substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record (Musheer Khan Vs. State of M.P, 2019-7 SCC 781; AIR. 2010 SC 3762).

Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.

What is ‘Certificate’, in Law

A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. If presumption cannot be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate or report can be taken as proved unless its contents are proved in a formal manner. (This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.)

Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.

Documents used for Contradicting

Credit of a witness can be impeached under Sec. 155 (3) of the Evidence Act with reference to his previous statements. Sec. 145 is the provision to cross examine a witness with regard to his previous writing. Sec. 145 reads as under:

  • “145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Sec. 145 Enables to Contradict Witnesses with his previous statements:

  1. Without the (previous) writing being shown to him.
  2. Without such writing being proved.
  3. When the writing is used to contradict the witness and his attention is called to those parts of it (that are to be used for contradicting), the writing need not be shown to the counsel of the witness (or other side) for his perusal.
  4. The writing need not be one that is admissible in evidence (it can be unstamped, even if it requires stamp; or unregistered, even if it requires registration).
  5. Material ‘omissions’ (in the previous writings) may amount to contradiction.

Conditions for invoking Sec. 145:

  1. The writing must be a ‘previous’ one.
  2. The (previous) writing must be of that witness himself.
  3. It must be relevant to matters in question
  4. If it is intended to contradict the witness by the writing, “his attention must be called” to those parts of it which are to be used for the purpose of contradicting him.
  5. If the witness denies (or says that he does not remember) such previous statement it can be proved, subsequently (for impeaching the credit of the witness).
  6. If the writing is not ‘ready with’ the cross examiner while the attention of the witness is called to those parts used for the purpose of contradicting him, the cross examiner must have ‘undertaken’ to prove the document, and the Court must have given the permission as envisaged in Sec. 136 of the Evidence Act.
    • Section 136 Evidence Act reads as under:Judge to decide as to admissibility of evidence:
    • When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
    • If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
    • If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
  7. When it is to be proved, original or other admissible copy must be produced.
  8. Though statement in an inadmissible document can be used for contradiction (without showing him), if the witness is to be cross examined showing him his previous ‘unstamped’ statement (especially when it is with respect to his signature – used by showing the document) it must be an ‘admissible’ one as regards stamp, inasmuch as Sec. 35 of the Indian Stamp Act, 1899 directs that no instrument chargeable with duty shall be ‘admitted’ in evidence ‘for any purpose’ by any person having by law or consent of parties authority to receive evidence (V.  Madhusudhan Rao v. S.  Nirmala Bai, AIR 2019 AP  93; SMS Tea Estates Pvt. Ltd. v. M/s. Chandmari Tea Co. (2011) 14 SCC 66 – followed in Naina Thakkar v. Annapurna Builders, (2013) 14 SCC 354).
    • Note: Now, this matter (qua – arbitration clause in an agreement) is pending consideration before a Constitutional Bench as referred to by N. N.  Global Mercantile Private Limited v. Indo Unique Flame Limited, 2021 SCC Online 13). As of now, unstamped or improperly stamped documents can be used only after paying stamp duty (with or without penalty, as the case may be).
    • Read Blog: Unstamped & Unregistered Documents and Collateral Purpose
  9. But, an unregistered compulsory-registrable-document can be ‘used’ and ‘admitted’ under Sec. 145, as it is a ‘collateral purpose’ [Section 49 of the Registration Act itself allows it – to use such documents for ‘collateral purpose’. See: K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564; S. Kaladevi vs V.R. Somasundaram (2010) 5 SCC 401].
  10. Even if the ‘right to give evidence’ of a party ‘is over’, the courts will allow that party to ‘prove’ the document (under the second limb of Sec. 145), subsequently. For example – If the contradiction arises when the defendants’ witness is cross examined, the plaintiff can adduce evidence without ‘reopening’ his evidence (for, this provision is a statutory one).

Important points to be noted while invoking Sec. 145

  1. If the witness admits the previous statement, no question as to ‘producing’ or ‘proving’ or ‘marking’ the same arises for consideration.
  2. The purposes of invoking sec. 145 are only to test the veracity of the statement made by a witness in his examination-in-chief, and also to impeach his credit (Tahsildar Singh v. The State of UP, AIR 1959 SC 1012) under Sec. 155 (3).
  3. Even if the document or the contradicting part is marked, and it is proved (for the purpose of contradicting him), it cannot be read in evidence; because, such writing will not be a substantive evidence (and the purpose of this provision is only impeaching the credit of the witness)
  4. The court has to allow the cross examiner to produce and prove the previous statement, if the witness denies such previous statement, even if technically his ‘evidence is over’ (it being statutory right).
  5. When an ‘omission’ is to be proved, the ‘specific part’ of the previous statement, where the omission ought to have been naturally stated, should be ‘put’ to the witness, for his explanation, if any. (See: Tahsildar Singh v. The State of UP, AIR 1959 SC 1012 – “if made, would have been recorded”). It is for 2 reasons:
    1. The section itself requires “his attention must be called to those parts of it which are to be used for the purpose of contradicting him”. It is to satisfy the principles of ‘natural justice’.
    2. The witness has a right to explain admissions under Sec. 31.
      • Evidence Act Sec. 31 reads: “Admissions not conclusive proof, but may estop.: Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.”
  6. If the cross examiner does not seek ‘explanation’ while putting the “those parts of (the previous statement) which are to be used for the purpose of contradicting him” the counsel who conducted the chief examination can seek the ‘explanation, if any’, in re-examination, on that contradictory-part (in the light of Sec. 31).
  7. ‘Cross Examination’ in Sec. 145 includes ‘cross examination’ showing the signature of the witness in the ‘previous statement’. (That is, a witness can be compelled to ‘refresh’ the document under Sec. 159.)

See Blog: How to Contradict a Witness under Sec. 145, Evidence Act

Documents used for Corroboration

Courts adjudicate the issues before it based on substantive evidence. In several cases it may be unusual that no direct evidence comes forth; for example, sexual offences, conspiracy, etc. In some cases certain corroborative evidence, to the already placed substantive evidence, may assure confidence to the minds of judges.  Section 156 of the Evidence Act lays down that such testimonies can be brought into evidence. It is beyond doubt that such an evidence should also be an admissible one.

Section 156 of the Evidence Act reads as under:

  • “156. Questions tending to corroborate evidence of relevant fact, admissible.
  • When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
  • Illustration A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.”

The requirement of corroboration in certain cases is described by our Apex Court as under in Khema @ Khem Chandra v. The State of Uttar Pradesh (10 August, 2022) as under:

“21. This Court, in the celebrated case of Vadivelu Thevar v. State of Madras, (1957) SCR 981, has observed thus:

  • “…….Hence, in our opinion, it is a sound and well­established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
    • Wholly reliable.
    • Wholly unreliable.
    • Neither wholly reliable nor wholly unreliable.
  • In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial..……”
  • 22. We find that the testimony of Inder (PW­2) would fall under the 3rd category i.e. his evidence can be said to be “neither wholly reliable nor wholly unreliable”. As such, it will be necessary that there is some corroboration to his ocular testimony.”

Effect of Marking Documents Without Objection & ‘Probative Value’ of Evidence

Effect of marking a document without formal proof, on admission (or without objection), is also a subject of controversy.

First viewAdmission of contents & it dispenses with formal proof, and proof of truth of its contents.
Second ViewAdmission of contents – but, does not dispense with proof of truth of its contents. [Kaliya Vs. State of Madhya Pradesh (2013-10 SCC 758) Nandkishore Lalbhai Mehta Vs. New Era Fabrics, AIR 2015 SC 3796; Sait Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865]
Third viewIf truth is in issue, mere proof of contents, or marking without objection, is not proof of truth. [Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085]
Fourth viewAdmission of contents, dispenses with proof and truth; but its probative value will be a matter for the court. [Rakesh Mohindra v. Anita Beri: 2015  AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758].
Fifth viewCourt should require the party producing the document to adduce proper evidence as to execution, and to cure formal defects.

Mere marking – Not dispense with proof (of truth of contents)

In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of documents (day book and ledger) as exhibits do not dispense with the proof of documents. InNandkishore Lalbhai Mehta Vs. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses do not prove contents of a document.

In Kaliya Vs. State of Madhya Pradesh (2013-10 SCC 758) it is held as under:

  • “Mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission Vs. The State, AIR 1966 SC 1457; Marwari Khumhar Vs. Bhagwanpuri Guru Ganeshpuri AIR 2000 SC 2629; RVE Venkatachala Gounder Vs. Arulmigu AIR 2003 SC 4548; Smt. Dayamathi Bai Vs. K.M. Shaffi, AIR 2004 SC 4082; and LIC of India  Vs. Rampal Singh Bisen,2010-4 SCC 491).”
  • [Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is observed [referring RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami, AIR 2003  SC  4548, Dayamati Bai Vs. K.M. Shaffi, 2004 SC 4082, Bhagyarathi Das v. Agadhu Charan Das, 62 (1986) CLT 298,  Budhi Mahal v. Gangadhar Das, 46 (1978) CLT 287 etc.] that a close reading of the above judicial pronouncements would show that whenever a document is marked as exhibit without objection, it will be presumed that a party having right of objection has waived formal proof of the document and in such situation, the entire contents of the document would be admissible in evidence. How ever, by such admission of document, the truth and correctness of the contents by it self would not be established and there must be some evidence to support the contents of such document.

Secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.

The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta Vs. New Era Fabrics: AIR  2015  SC 3796]

In Rakesh Mohindra Vs. Anita Beri [2015AIR(SCW) 6271] it is held:

  • “Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”

If ‘TRUTH’ IS IN ISSUE- Mere Marking Not Amounts to ‘Waiver’

IF the TRUTH is IN ISSUE mere proof of handwriting or execution not evidence of truth:   IF the TRUTH of the facts stated in a document is IN ISSUE mere proof of the hand-writing and execution of the document would not furnish evidence of the truth of the facts or contents of the document.

In Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, it us held as under:

  • “If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”

If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (See: Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88,  2012(1) CTC 53; 2013-1 KLT 293.)

Admission – May dispense with proof; but probative value may be less or nil

Court examines probative value of secondary evidence: It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra Vs. Anita Beri: 2015  AIR(SCW) 6271].

Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.

Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court. 

  • See: LIC Vs. Ram Pal Singh Bisen, 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
  • M. Chandra Vs. M. Thangamuthu. Nandkishore Lalbhai Mehta Vs.New Era Fabrics, AIR 2015 SC 3796;
  • Birad Mal SinghviVs. Anand Purohitb, 1988 (Supp) SCC 604 (date of birth).

Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case. The probative value of Scene-Mahazar, Postmortem Report, photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.

In Kaliya Vs. State of MP: 2013-10 SCC 758 (relying on  H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand  Vs. MSS Food Products: 2012-2 SCC 196) held as under:

  • “The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”

In Life Insurance Corporation of India Vs. Ram Pal Singh Bisen, 2010-4 SCC 491, it is observed as under:

  • “26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..
  • 27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”

The Calcutta High Court (DB) quoting Life Insurance Corporation of India Vs. Ram Pal Singh Bisen [2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company Vs. Smt. Santa Dey (2019-2 ACC 36: 2018-3 TAC 473) as under:

  • “On the authority of the aforesaid decision, we hold that even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such  document lost its credibility and is of no probative value.”

In Kalyan Singh, Vs. Chhoti, AIR 1990  SC 396, it is observed as under:

  • “A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”

Court should allow to adduce proper evidence to prove documents

As stated in detail above, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. (Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC).

Inasmuch as (a) mere marking of a document on admission will not amount to proof, or evidence of the contents of the document or its truth; (b) the probative value of a document ‘marked without objection’ is low or nil, for want of proper proof; and (c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’, it is legitimate to say that before taking an adverse stance as to proof in this count, the court should give an opportunity to the party who relies on the document to cure the deficiency.

Defect for not producing a proper power of attorney being curable, in Haryana State Coop.  Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. It is further pointed out that this principle is reiterated in following cases also:

  • F.A. Sapa v. Singora, (1991) 3 SCC 375;
  • H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
  • V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
  • Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
  • Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617 (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
  • Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196;
  • (held that defective verification or affidavit is curable);
  • Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
  • Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
  • KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428.

Read Related Blogs

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery

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2024-07-07 23:29:20 +0000 UTC
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Admissibility, Substantive Evidence and Probative Value – General Principles

Admissibility, Substantive Evidence and Probative Value – General Principles

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2024-07-07 23:29:20 +0000 UTC
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