Law of Evidence (BSA, 2023) Test 5 — Questions & Solutions
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On the 'last seen together' theory as a piece of circumstantial evidence, which proposition is correct?
aThe theory comes into play where the time gap is so small that the possibility of any person other than the accused being the author of the crime becomes impossible
bA conviction can be recorded solely because the accused was last seen with the deceased
cThe theory applies with full force regardless of the time gap between last being seen and discovery of death
dThe theory is irrelevant unless a test identification parade is also held
Answer: A
The last seen theory applies only where the time gap is so small that any other person being the author becomes impossible; mere last-seen evidence is not conclusive and cannot alone sustain conviction (Ashok v Maharashtra; Dharam Deo Yadav), under s 6, BSA 2023 [s 8 IEA].
Q2Relevancy of facts
A is accused of a crime. Which of the following post-event facts is relevant as conduct against A?
aThat A remained calm and did not flee, which conclusively proves his innocence
bThat A set up a false plea of alibi to shield himself, and that he attempted to abscond after a warning letter
cThat A is of good reputation in his village
dThat A had filed his income tax returns regularly
Answer: B
Setting up a false plea of alibi and absconding after a warning letter are relevant as conduct under s 6, BSA 2023 [s 8 IEA] (Krishna Ghosh v State of WB; Sk. Yusuf v State of WB), though mere not-fleeing does not prove innocence.
Q3Relevancy of facts
Where the question is whether a given document is the will of A, the state of A's property and of his family at the date of the alleged will is relevant. This relevancy is best explained by the provision dealing with facts:
aForming part of the same transaction (res gestae)
bShowing the existence of a state of mind such as intention
cNecessary to explain or introduce a relevant fact, or to support or rebut an inference
dConstituting a course of business
Answer: C
Under s 7, BSA 2023 [s 9 IEA], facts necessary to explain or introduce a fact in issue, or to support/rebut an inference, are relevant; the state of A's property and family at the date of the alleged will falls here.
Q4Relevancy of facts
Under the provision making anything said, done or written by one conspirator relevant against the others (s 8, BSA 2023), a statement made by a conspirator is relevant against a co-conspirator:
aOnly if it was said while the co-conspirator was personally present
bOnly after the object of the conspiracy has been fully achieved
cOnly if the statement was made to a police officer
dEven if said before the co-conspirator joined or after he left the conspiracy, provided it was in reference to the common intention
Answer: D
Under s 8, BSA 2023 [s 10 IEA], anything said, done or written by one conspirator in reference to the common intention is relevant against another, even if done before he joined or after he left the conspiracy (Sardul Singh Caveeshar v State of Bombay).
Q5Relevancy of facts
Which statement on documents and statements connected with a conspiracy is correct?
aDocuments used by conspirators in achieving the object of the conspiracy are admissible, but those created after the object is achieved are not
bDocuments created by conspirators after the object of the conspiracy is achieved are admissible against co-conspirators
cStatements made by conspirators after they are arrested are relevant against co-conspirators under the conspiracy provision
dA conspirator's statement can be used both for and against the co-conspirator
Answer: A
Documents used in achieving the object of the conspiracy are admissible, but those created after the object is achieved are not (Badri Rai v State of Bihar); post-arrest statements fall outside the section as the conspiracy has ended (Navjot Sandhu), under s 8, BSA 2023 [s 10 IEA].
Q6Relevancy of facts
Where the question is whether A committed a crime and the circumstances are such that it must have been committed by A, B, C or D, evidence that the crime could not have been committed by B, C or D is relevant. This relevancy arises because the facts:
aForm part of the same transaction
bAre inconsistent with a fact in issue or make its existence highly probable or improbable
cShow a course of business
dEstablish identity through a test identification parade
Answer: B
Under s 9, BSA 2023 [s 11 IEA], facts not otherwise relevant become relevant if they are inconsistent with any fact in issue, or make its existence highly probable or improbable; excluding B, C and D as authors falls here.
Q7Relevancy of facts
On a charge of murder by deliberately running down a woman bicyclist with a motorcar, the prosecution leads evidence of similar attacks by the accused on other women. Such evidence of a series of similar occurrences is admissible chiefly to:
aProve the accused's general bad character
bEstablish the identity of the accused through reputation
cProve intention or knowledge and rebut the defence of accident
dShow a course of business under the relevant section
Answer: C
Under s 13, BSA 2023 [s 15 IEA], where an act forms part of a series of similar occurrences, evidence of similar facts is admissible to prove intention or knowledge and to rebut the defence of accident (R v Mortimer; Noor Mohamed v The King).
Q8Relevancy of facts
A letter is proved to have been properly addressed and posted, and there is no proof it was returned from the Dead Letter Office. The inference that it was delivered to the addressee rests on the relevancy of:
aA fact forming part of the same transaction
bConduct subsequent to a fact in issue
cThe character of the addressee
dThe existence of a course of business according to which the act would ordinarily be done
Answer: D
Under s 14, BSA 2023 [s 16 IEA], the doing of an act may be inferred from the existence of a course of business according to which it would ordinarily be done; a properly posted, unreturned letter is presumed delivered.
Q9Relevancy of facts
A is accused of murdering B. The prosecution wishes to prove that, shortly before the murder, A procured poison similar to that administered to B. Under the BSA, 2023, this fact is relevant because it shows:
apreparation and conduct of the accused
bthe opinion of the accused
ca fact forming part of the same transaction
dthe occasion of the crime
Answer: A
Procuring poison before the death evidences preparation (and conduct previous to the fact), relevant under BSA s 6 [IEA s 8], which makes preparation and the conduct of an accused relevant.
Which of the following does NOT fall within the statutory meaning of 'secondary evidence' of the contents of a document?
aA certified copy of the document
bAn oral account of the contents given by a person who was merely told of the contents by another
cA copy made from the original by a mechanical process ensuring accuracy
dAn oral account of the contents given by a person who has himself seen the document
Answer: B
Secondary evidence includes certified copies, mechanical copies, copies compared with the original, counterparts, and oral accounts by a person who has himself seen the document (BSA s.58 [IEA s.63]). An account by one merely told of the contents is hearsay, not secondary evidence.
An original document is admittedly in the possession of the adverse party. The party seeking to prove it gives the prescribed notice to produce, which the adverse party ignores. Before secondary evidence is led, what is essential?
aNothing further; secondary evidence of a document in the adversary's possession is admissible even without any notice
bA handwriting expert must first verify the lost original
cThe party must have given the adverse party the prescribed notice to produce, unless a recognised exception dispenses with notice
dThe court must first order arrest of the adverse party for non-production
Answer: C
Where the original is in the adversary's possession, secondary evidence is admissible only after the prescribed notice to produce has been given, unless a recognised exception dispenses with notice (BSA s.60 read with s.66 [IEA ss.65, 66]). Rajesh Bhatia v G Parimala 2006 (3) ALD 415.
In which of the following situations is notice to produce NOT required before leading secondary evidence?
aWhere the original is a routine commercial invoice in the adversary's possession
bWhere the adverse party is willing and able to produce the document
cWhere the original is in the custody of an independent third party within the court's reach
dWhere the document to be proved is itself a notice
Answer: D
Notice to produce is unnecessary, inter alia, where the document to be proved is itself a notice; where the adverse party must from the nature of the case know it will be required; where it was obtained by fraud or force; or where its loss has been admitted (BSA s.66 [IEA s.66]). Lokchand Prithi Singh v Union of India AIR 1959 Raj 231.
A party wishes to prove the contents of a public document such as a register of land records maintained by a revenue office. Which form of proof is contemplated by law?
aA certified copy of the public document is admissible to prove its contents
bOnly the original public record physically produced in court is admissible
cOnly an oral account by the custodian officer is admissible
dA simple photocopy is admissible as primary evidence of a public document
Answer: A
Contents of public documents may be proved by certified copies furnished by the custodian officer under BSA ss.74-77 [IEA ss.74-77]; certified copies are admissible without producing the original. Banamali Das v Rajendra Chandra Mardaraj Harichandan AIR 1975 SC 1863.
The terms of a contract have been reduced to writing and proved. One party now seeks to lead oral evidence of a prior oral agreement to add a further term not mentioned in the document. As a general rule, is this permissible?
aYes, oral agreements always prevail over written terms
bNo, where the terms of a contract are reduced to a document, no oral agreement may be admitted to contradict, vary, add to or subtract from its terms
cYes, but only if the contract is unregistered
dYes, provided the oral term is proved by two witnesses
Answer: B
Once the terms are reduced to and proved by the document, no evidence of an oral agreement may be admitted to contradict, vary, add to or subtract from its terms (BSA s.95 [IEA s.92]). Bai Hira Devi v Official Assignee of Bombay AIR 1958 SC 448.
A party admits a written sale deed exists but pleads that the transaction recorded was a sham never intended to operate, and that the real arrangement was a wholly different oral agreement. Can oral evidence of the real arrangement be led despite the bar on varying written terms?
aNo, the bar is absolute once a written document exists
bNo, oral evidence is excluded unless the deed is unregistered
cYes, oral evidence is admissible to show the document was a sham never intended to be acted upon, as the bar applies only when a party relies on the document
dYes, but only to prove fraud, not a sham transaction
Answer: C
The bar in BSA s.95 [IEA s.92] applies only when a party relies on the document as embodying the transaction; it does not bar oral evidence that the document was a sham never intended to be acted upon. Gangabai v Chhabubai AIR 1982 SC 20.
A tape recording of an incriminating conversation is sought to be relied on at trial. Which of the following is NOT among the conditions for its admissibility?
aThe voice of the speaker must be identified by the maker of the record or someone recognising the voice
bThere must be no possibility of tampering with or erasure of any part of the recording
cThe recording must be carefully sealed and kept in safe or official custody
dThe recording must have been made with the prior written consent of the speaker
Answer: D
Admissibility of a tape recording requires voice identification, proof of accuracy, no possibility of tampering, relevance, safe sealed custody, and audibility. Prior consent of the speaker is not a condition. Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra AIR 1975 SC 1788.
Entries in books of account, including those maintained in electronic form and regularly kept in the course of business, are tendered to fasten liability on a person. What is their evidentiary effect?
aThey are relevant, but are not alone sufficient evidence to charge any person with liability
bThey are conclusive proof of the liability of the person debited
cThey are wholly inadmissible because they are self-serving
dThey are admissible only if the original paper ledger, not the electronic record, is produced
Answer: A
Entries in books of account, including those kept in electronic form regularly in the course of business, are relevant but are not alone sufficient to charge any person with liability (BSA s.28 [IEA s.34]). CBI v V C Shukla AIR 1998 SC 1406.
A sale deed acknowledges receipt of the full consideration. The seller now wishes to lead oral evidence that part of the consideration was in fact never received. Is such oral evidence permissible?
aNo, it would contradict an admission in a written document and is wholly barred
bYes, the acknowledgment of receipt of consideration is not a term of the deed, so oral evidence that the amount was not received is admissible
cNo, because acknowledgment of receipt is a term of the contract that cannot be varied
dYes, and the buyer may in reply prove an oral agreement that the price was lower than recited
Answer: B
An acknowledgment of receipt of consideration is not a 'term' of the sale deed, so oral evidence that the amount was not received is admissible; but this does not entitle the other party to prove an oral agreement that the price was less than recited (BSA s.95 [IEA s.92]). Mohammad Taki Khan v Jang Singh AIR 1935 All 529 (FB).
Q19Burden of proof, presumptions & estoppel
A University recorded in its school register that a student had passed the examination, and on that footing the student pursued his further studies for a year. In one case the University sought to deny the pass a year later; in another (SA Manjunath v University of Bangalore) it discovered and corrected its mistake immediately. The correct legal position is that estoppel:
aoperates in both situations because a University owes a duty of accuracy
boperates in neither situation because there is no estoppel against a statute-created body
coperates where the student continued studies for a year, but not where the University corrected the mistake immediately and the student suffered no detriment
doperates only where the mistake is corrected immediately
Answer: C
Registrar, University of Madras v Sundara Shetty held the University estopped where the student studied a year on the faith of the record; SA Manjunath (AIR 1967 Kant 119) found no estoppel where the error was corrected at once and no detriment resulted — detriment/alteration of position is essential under Section 121, BSA 2023 [old Section 115, IEA].
Q20Burden of proof, presumptions & estoppel
Retrenched workmen, being in penury, were compelled to accept retrenchment benefits and later challenged the legality of the retrenchment. On the question whether they were estopped, the correct view is:
aThey are estopped, having accepted and retained the benefits of the transaction
bThey are estopped by their conduct in not protesting at the time of acceptance
cEstoppel applies but only to the extent of the benefit actually received
dThey are not estopped, as acceptance forced by penury is not a free election and works no estoppel
Answer: D
In Workmen of Subong Tea Estate v Outgoing Management (AIR 1967 SC 420), forced acceptance of benefits in penury was held not to estop the workmen from challenging the retrenchment, since election must be voluntary — relevant to estoppel under Section 121, BSA 2023 [old Section 115, IEA].
Q21Burden of proof, presumptions & estoppel
On the relationship between landlord and tenant, which statement correctly reflects the estoppel recognised in Section 122, BSA 2023?
aThe tenant is precluded from denying the landlord's title at the beginning of the tenancy, and the landlord is precluded from denying the tenancy
bOnly the tenant is estopped; the landlord is free to deny that any tenancy ever existed
cBoth are free to deny each other's status because tenancy estoppel was abolished by the new code
dThe tenant may deny the landlord's title once he has paid one month's rent
Answer: A
Section 122, BSA 2023 [old Section 116, IEA] codifies tenant/landlord estoppel: acceptance of rent on one side and of an estate on the other precludes the tenant from denying the landlord's title at the start of the tenancy and the landlord from denying the tenancy (Tej Bhan Madan v II Addl District Judge).
Q22Burden of proof, presumptions & estoppel
A son attests his mother's sale deed of the suit property and raises no objection to the sale at that time. Years later he sues claiming his own interest in the land and assailing the sale. He is:
anot estopped, because mere attestation is not a representation of fact
bestopped by conduct from assailing the sale or claiming any interest in the land
cnot estopped, because silence can never amount to estoppel by conduct
destopped only if he had taken some pecuniary benefit under the sale
Answer: B
In Mahboob Sahab v Syed Ismail (AIR 1995 SC 1205) the son who attested the sale deed without objection was held estopped by conduct from challenging the sale or claiming interest — estoppel in pais under Section 121, BSA 2023 [old Section 115, IEA].
Q23Burden of proof, presumptions & estoppel
The doctrine of promissory estoppel, as developed in Indian law (Motilal Padampat Sugar Mills v State of UP; Union of India v Godfrey Phillips), differs from estoppel under the BSA chiefly because:
ait is a pure rule of evidence and cannot operate against the Government
bit requires the promisee to prove actual quantified monetary damage
cit can rest on a representation as to future conduct and, in India, can itself found a cause of action
dit can be invoked even to validate a transaction the legislature has declared void
Answer: C
Promissory estoppel is an equitable doctrine resting on a promise as to future conduct (unlike estoppel under Section 121, BSA 2023 [old Section 115, IEA] which needs an existing fact), and in India (Godfrey Phillips) it may found a cause of action; but it cannot defeat a statute (Motilal Padampat Sugar Mills, AIR 1979 SC 621).
Q24Burden of proof, presumptions & estoppel
A Hindu husband takes a second wife during the subsistence of his first marriage, an illegal union, and treats her as his wife. In her application for maintenance she relies on estoppel against the husband, who denies she is his wife. The plea of estoppel:
asucceeds, because the husband held her out as his wife and cannot now resile
bsucceeds, since estoppel by conduct overrides marital-status law
cfails only if the husband revoked his representation before the application
dfails, because there can be no estoppel against the provisions of a statute
Answer: D
In Yamunabai Anantrao Adhav v Anantrao Shivram Adhav (AIR 1988 SC 644) the Court held there is no estoppel against a statute; the second wife of a void marriage cannot use estoppel to claim maintenance, as that would defeat the law — a limit on Section 121, BSA 2023 [old Section 115, IEA].
Q25Burden of proof, presumptions & estoppel
A broker employed to fill in particular shares is handed a signed blank transfer; instead he fills it with shares other than those instructed and steals the share certificate to complete the fraud. In the transferor's action against the company for wrongly removing his name from the register, the transferor is:
anot estopped, because his execution of the blank transfer was not the proximate or real cause of the loss
bestopped, because by signing the transfer in blank he enabled the fraud
cestopped, since negligence in custody of share documents always works an estoppel
destopped only as against a bona fide purchaser, not against the company
Answer: A
In Swan v North British Australasian Co the signing of the blank transfer was held not the real/proximate cause where the broker forged a wholly different transaction; estoppel by negligence under Section 121, BSA 2023 [old Section 115, IEA] requires the negligence to be the proximate cause in the transaction itself.
Q26Burden of proof, presumptions & estoppel
A customer of a bank, by failing to give timely information that cheques debited to his account were forged, allowed the bank to remain in ignorance so it could not pursue the forger. When the customer later asserts the cheques are forgeries, the principle in Canara Bank v Canara Sales Corpn is that:
ano estoppel arises, because a customer owes no duty of disclosure to his bank
bthe customer is estopped and the debit stands for the whole amount, estoppel not being measured by the prejudice caused
cthe debit stands only to the extent the bank could have recovered from the forger
dthe customer is estopped but the bank must first sue the forger
Answer: B
Where a duty to speak exists, silence works an estoppel and its consequences are not measured by the prejudice: the customer is debited for the whole amount (Canara Bank v Canara Sales Corpn, AIR 1987 SC 1603; Ogilvie v West Australian Mortgage) — estoppel by conduct/silence under Section 121, BSA 2023 [old Section 115, IEA].
Q27Admissions & confessions
Regarding the bar on confessions made to a police officer, which of the following is correct?
aA statement to a customs officer is barred because he is a police officer
bThe maker must already be a formally arrested accused for the bar to apply
cThe expression 'police officer' is construed in a wide and popular sense
dA first information report that does not amount to a confession is wholly inadmissible
Answer: C
The words 'police officer' are read in a wide and popular sense; a customs officer is not a police officer, and the maker need not be a formally accused person in custody (Raja Ram Jaiswal v State of Bihar AIR 1964 SC 828; State of Punjab v Barkat Ram AIR 1962 SC 276) [s.25, IEA; s.23(1), BSA].
Q28Admissions & confessions
For the purposes of the bar on confessions while in 'police custody', the expression 'custody' has been judicially understood to mean:
aOnly formal custody after a recorded arrest
bCustody beginning only when the charge-sheet is filed
cConfinement in a jail or lock-up alone
dAny kind of surveillance, restriction or restraint by the police even without formal arrest
Answer: D
Custody is not confined to formal arrest; it commences the moment the accused's movements are restricted and he is under direct or indirect police surveillance (Paramhansa Jadab v State AIR 1964 Ori 144) [ss.26-27, IEA; s.23, BSA].
Q29Admissions & confessions
In a civil proceeding, a statement adverse to a party is made not by that party but by a person from whom the party derived his interest in the subject matter, during the continuance of that person's interest. Such a statement:
aMay rank as an admission and be given in evidence against the party
bCan never be used as an admission against the party
cIs admissible only if the maker is dead
dIs admissible only against the maker personally
Answer: A
Statements by predecessors-in-interest made during the continuance of their interest rank as admissions against the party deriving title from them [ss.18-20, IEA; ss.16-18, BSA] (Kalishanker Das v Dhirendra Nath AIR 1954 SC 505).
Q30Admissions & confessions
Which of the following correctly states the evidentiary character of an admission?
aAn admission is conclusive proof of the fact admitted
bAn admission is the best evidence against its maker, though not conclusive, and may operate as an estoppel
cAn admission is irrelevant unless it was communicated to another person
dAn admission can never be explained away by its maker
Answer: B
An admission is the best evidence against its maker and, though not conclusive, shifts the onus and may operate as an estoppel; its relevance does not depend on communication (Thiru John v Returning Officer AIR 1977 SC 1724; Narayan Bhagwantrao Gosavi AIR 1960 SC 100) [s.17, IEA; s.15, BSA].
Q31Admissions & confessions
An admission may be proved against the person who makes it, but an admission generally cannot be proved by or on behalf of the person making it EXCEPT in which case?
aWhere it is favourable to the maker's pleadings
bWhere it concerns the contents of a document and is oral
cWhere, being a statement of the existence of a state of mind or body relevant or in issue, it was made at or about the time the state existed and is supported by conduct making its falsehood improbable
dWhere it was made to a police officer
Answer: C
A self-serving admission is provable, inter alia, where it states a relevant state of mind/body made contemporaneously and supported by conduct rendering its falsehood improbable [s.21, IEA; s.20, BSA].
Q32Admissions & confessions
Which statement about an extra-judicial confession is correct as per settled law?
aIt is the strongest form of evidence and needs no scrutiny
bIt is inadmissible in all circumstances
cIt can never form the basis of a conviction
dBy its very nature it is a weak type of evidence and must be approached with caution
Answer: D
An extra-judicial confession is by its nature a weak type of evidence requiring caution, but if voluntary, reliable and trustworthy it may be relied upon and a conviction founded upon it (Arul Raja v State of Tamil Nadu (2010) 8 SCC 233; State of T.N. v Kutty AIR 2001 SC 2778).
Q33Witnesses, examination & cross-examination
The purpose and scope of re-examination of a witness under the BSA, 2023 is best described as:
aIts purpose is to explain matters referred to in cross-examination, and new matter may be introduced only with the court's permission, after which the adverse party may further cross-examine on it
bIt is strictly confined to explaining matters arising in cross-examination, and new matter can never be introduced
cIt permits the party to freely supplement the examination-in-chief with wholly new facts
dLeading questions may be freely put in re-examination without leave even when objected to
Answer: A
Under Section 143 BSA, 2023 [old s.138 IEA], re-examination is directed to explaining matters from cross-examination; new matter may be introduced only by leave of court, whereupon the adverse party may cross-examine on it (Rammi v State of M.P.).
Q34Witnesses, examination & cross-examination
A spouse is sought to be examined to prove a communication made to her by her husband during the subsistence of the marriage; the husband does not consent. Under the BSA, 2023, the communication is:
aAlways admissible because the marriage has relevance to the dispute
bProtected from disclosure unless the maker or his representative consents, save in suits between the spouses or where one is prosecuted for a crime against the other
cProtected only if it was expressly labelled confidential when made
dAdmissible because the bar protects the communication and not the persons
Answer: B
Under Section 128 BSA, 2023 [old s.122 IEA], marital communications are privileged unless the maker consents, except in suits between the spouses or prosecutions for a crime by one against the other (MC Verghese v TJ Ponnan).
Q35Witnesses, examination & cross-examination
A husband's incriminating statement to his wife during marriage was overheard by a neighbour, who is called to depose to it. The accused husband claims marital privilege. Under the BSA, 2023:
aThe neighbour cannot depose because the privilege attaches to the communication itself
bThe neighbour may depose only with the wife's consent
cThe neighbour may depose, as the bar protects the spouses personally and not a third party who overheard the communication
dThe neighbour may depose only if the spouses are now divorced
Answer: C
Under Section 128 BSA, 2023 [old s.122 IEA], the prohibition binds the spouse personally; a third party who overheard the communication may prove it (Appu v State; MC Verghese v TJ Ponnan).
Q36Witnesses, examination & cross-examination
An accomplice deposes for the prosecution against the accused. Regarding the evidentiary value of his testimony under the BSA, 2023, which statement is correct?
aAn accomplice is an incompetent witness against the accused
bA conviction based solely on the uncorroborated testimony of an accomplice is illegal per se
cAn accomplice's evidence must be corroborated on every material particular by direct evidence of the accused's guilt
dAn accomplice is a competent witness and a conviction on his uncorroborated testimony is not illegal, though as a rule of prudence corroboration in material particulars is insisted upon
Answer: D
Under Section 138 BSA, 2023 [old s.133 IEA], read with the prudence rule reflected in the illustration to Section 119 BSA [old s.114(b) IEA], an accomplice is competent and conviction on his uncorroborated testimony is not illegal, but corroboration in material particulars is insisted on as prudence (Haroon Haji Abdulla).
Q37Witnesses, examination & cross-examination
During trial the judge himself wishes to put questions to a witness about a fact he considers relevant, and even to order production of a document. The defence objects that this exceeds the judge's role. Under the BSA, 2023:
aThe judge may ask any question he pleases, in any form, at any time, of any witness, about any fact relevant or irrelevant, and order production of documents
bThe judge may only put questions already framed by counsel
cThe judge may question a witness only on facts already deposed to in examination-in-chief
dThe judge may not ask any question that counsel has not first put
Answer: A
Under Section 168 BSA, 2023 [old s.165 IEA], the judge may ask any question in any form at any time of any witness about any fact to discover or obtain proof of relevant facts, subject to the safeguards (privilege, primary evidence, judgment on relevant facts duly proved).
Q38Witnesses, examination & cross-examination
A person is summoned merely to produce a document and brings it to court. The adverse party seeks to cross-examine him on its contents. Under the BSA, 2023, which is correct?
aHe becomes a witness the moment he produces the document and may be cross-examined
bHe does not become a witness merely by producing the document and cannot be cross-examined unless called as a witness
cHe may be cross-examined but cannot be examined-in-chief
dHe may be cross-examined only by the party who summoned him
Answer: B
A person who merely produces a document does not thereby become a witness and cannot be cross-examined unless he is called as a witness (Parmeshwari Devi v State), consistent with the cross-examination scheme under Section 142 BSA, 2023 [old s.137 IEA].
Q39BSA new features (electronic/digital records as primary evidence)
A litigant seeks to prove the contents of an e-mail exchange by having a witness orally narrate what the messages said, without producing the electronic record itself. Under the BSA, 2023, this is:
aPermissible, because all facts including the contents of electronic records may be proved by oral evidence
bPermissible, because oral evidence is always the best evidence of an electronic record
cImpermissible, because the contents of documents and electronic records must be proved by the document/record itself or by admissible secondary evidence, not by oral evidence
dImpermissible only if the opposite party objects within the prescribed period
Answer: C
Under BSA s.54 [old IEA s.59], all facts EXCEPT the contents of documents or electronic records may be proved by oral evidence; their contents must be proved by primary evidence (the record itself) or admissible secondary evidence (P Ram Reddy v Land Acquisition Officer).
Q40BSA new features (electronic/digital records as primary evidence)
Which of the following correctly states the relevance of entries in a public record under the BSA, 2023?
aOnly entries in physical registers, and never electronic records, are relevant as public-record entries
bSuch an entry is conclusive proof of the fact stated and cannot be rebutted
cSuch an entry is relevant only if the public servant who made it is examined as a witness
dAn entry in a public or other official book, register or record, OR an electronic record, stating a relevant fact and made by a public servant in discharge of official duty, is relevant and may be presumed genuine
Answer: D
Under BSA s.25 [old IEA s.35], an entry in any public/official book, register, record OR an electronic record, made by a public servant in discharge of duty, is relevant and may be presumed genuine (State of Bihar v Radha Krishna Singh); BSA expressly extends this to electronic records.
Q41BSA new features (electronic/digital records as primary evidence)
Regarding entries in books of account under the BSA, 2023, which statement is most accurate?
aEntries in books of account, including those maintained in electronic form, regularly kept in the course of business, are relevant, but are not alone sufficient to charge any person with liability
bEntries in books of account are conclusive proof of liability against the person charged
cOnly books of account kept in physical form, and not electronic accounts, are relevant
dBooks of account become relevant only after the court records reasons for admitting them
Answer: A
Under BSA s.28 [old IEA s.34], entries in books of account, including those kept in electronic form, regularly kept in the course of business, are relevant but are not alone sufficient to charge any person with liability (CBI v V C Shukla; Jaswant v Sheo Narayan).
Q42BSA new features (electronic/digital records as primary evidence)
A party seeks to rely on a tape recording (an electronic record) to corroborate a witness. Which of the following is NOT among the conditions the courts require for admitting such a recording?
aThe voice of the speaker must be identified, and the accuracy of the recorded statement proved by the maker
bThe recording must have been made in the presence of, and with the prior written consent of, a Magistrate
cThere must be no possibility of tampering with or erasure of any part of the recorded statement
dThe recording must be carefully sealed and kept in safe or official custody, and the voice clearly audible
Answer: B
Records and tape recordings (electronic records) are admissible subject to identification of the voice, proof of accuracy by the maker, no possibility of tampering/erasure, relevance, safe-custody/sealing and audibility (Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra; Ram Singh v Ram Singh); prior written consent of a Magistrate is NOT a requirement.
Q43Dying declaration & statements (S26 BSA / old S32)
Which of the following best states the position of Indian law, as settled in Pakala Narayana Swamy, on the declarant's expectation of death when a statement as to the cause of death is sought to be admitted under S26 BSA (old S32)?
aThe statement is admissible only if made under expectation of imminent death, as in English law.
bThe statement is admissible only if a doctor certifies that the maker apprehended death.
cThe statement is relevant whether or not the maker was, at the time, under expectation of death.
dThe statement is admissible only if the maker actually died within 24 hours of making it.
Answer: C
Unlike the English rule, Indian law (Pakala Narayana Swamy, PC) makes a dying declaration relevant whether or not the maker was under expectation of death; expectation of imminent death goes only to the weight attached. Section 26 BSA 2023 [old S32 IEA].
Q44Dying declaration & statements (S26 BSA / old S32)
In a dowry-death case the deceased made two dying declarations that materially conflict with each other. What is the correct approach for the court?
aBoth declarations must be rejected outright since they contradict each other.
bThe later declaration must always prevail as the more considered account.
cThe earliest declaration must always prevail as the most spontaneous account.
dThe court must examine each in its correct perspective and ordinarily prefer the one corroborated by other prosecution evidence.
Answer: D
Where there are multiple inconsistent dying declarations the court must consider each in its correct perspective and the test of prudence is to see which declaration is corroborated by other prosecution evidence (Nallam Veera Satyanandam; Sudhakar v State of MP). Section 26 BSA 2023 [old S32 IEA].
Q45Dying declaration & statements (S26 BSA / old S32)
Which one of the following propositions about dying declarations is INCORRECT?
aOnly a Magistrate is legally competent to record a valid dying declaration; one recorded by any other person is inadmissible.
bA dying declaration may form the sole basis of conviction without corroboration if found wholly reliable.
cA dying declaration is admissible in civil as well as criminal proceedings in which the cause of death comes into question.
dA dying declaration recorded on the basis of nods and gestures can have evidentiary value.
Answer: A
It is not mandatory that only a Magistrate record a dying declaration; it can be recorded by anybody (Surender Kumar v Punjab; Laxman v State of Maharashtra). The other statements are correct. Section 26 BSA 2023 [old S32 IEA].
Q46Dying declaration & statements (S26 BSA / old S32)
A dying declaration contains two parts; one part is shown to be inaccurate. When may the accurate part still be relied upon by the court?
aIn no case; once any part is shown false the whole declaration must be rejected (falsus in uno).
bWhere the accuracy of the accurate part does not depend on the inaccurate part and the two are severable.
cOnly if the inaccurate part relates to the identity of the assailant.
dOnly if the declaration was recorded by a Magistrate in question-and-answer form.
Answer: B
Where the accuracy of one part of a dying declaration does not depend on the other, the accurate part may be accepted; only if the false part cannot be severed must the declaration be rejected as a whole (Godhu v State of Rajasthan). Section 26 BSA 2023 [old S32 IEA].
Q47Expert & opinion evidence, character
In a forgery trial the only handwriting expert is unavailable and no party examines one. The court wishes to satisfy itself about the disputed writing. Which of the following best reflects the law on the court comparing handwriting itself under the BSA, 2023?
aThe court has absolute and unfettered power to act as a handwriting expert in every case
bThe court can never compare handwriting under any circumstances and must acquit
cThe court may compare a disputed signature with admitted signatures, but should be slow to do so and must not compare without expert aid where the comparison signatures are themselves not admitted
dThe court may direct the accused to give a specimen only with the accused's written consent
Answer: C
Under s 47 BSA [s 73 IEA], the court may compare a disputed signature with admitted ones but has no absolute power to act as an expert (Hamida v Humer; O Bharathan v K Sudhakaran AIR 1996 SC 1140) and should be slow to do so without expert aid where the comparison signatures are not themselves admitted.
Q48Expert & opinion evidence, character
B is tried for the offence of cheating. The defence seeks to lead evidence that B enjoys a generally good reputation in his locality. The prosecution objects. Which statement is correct under the BSA, 2023?
aEvidence of B's good character is irrelevant in a criminal trial
bEvidence of B's good character lets the prosecution freely prove particular bad acts in reply
cGood character is relevant only if B first proves bad character of the witnesses
dEvidence of B's good character is relevant, but only of general reputation/disposition, not of particular good acts
Answer: D
Under s 46 BSA [s 53 IEA] the fact that the accused is of good character is relevant in criminal proceedings (Habeeb Mohammad v State of Hyderabad AIR 1954 SC 51); per s 50 BSA [s 55 IEA, Expln] 'character' means general reputation and disposition, not particular acts.
Q49Expert & opinion evidence, character
In a civil suit for damages for defamation, the plaintiff's bad character is sought to be shown to reduce the quantum of damages. Which statement is correct under the BSA, 2023?
aThough character is generally irrelevant in civil cases, it is relevant where it affects the amount of damages the person ought to receive
bCharacter is wholly irrelevant in civil cases without exception
cBad character of a party may always be proved in any civil case to test credibility
dOnly good character, never bad character, is relevant in civil cases
Answer: A
Under s 49 BSA [s 55 IEA], in civil cases character rendering conduct probable/improbable is generally irrelevant, but character is relevant insofar as it affects the amount of damages a person ought to receive (Englishman v Lajpat Rai ILR 37 Cal 760).
Q50Expert & opinion evidence, character
The court must form an opinion on whether a particular village custom of pre-emption exists. Whose opinion is relevant under the BSA, 2023?
aOnly that of a person formally qualified as an expert in customary law
bThe opinion of persons likely to know of the existence of such general custom or right
cOnly the opinion of the village headman, to the exclusion of all others
dNo oral opinion is admissible; the custom must be proved exclusively by registered documents
Answer: B
Under s 42 BSA [s 48 IEA, read with s 49 on usages], when the court has to form an opinion as to the existence of a general custom or right, the opinions of persons likely to know of its existence are relevant (Kehar Singh v Dewan Singh AIR 1966 SC 1555).
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