UNIT 3 (EVIDENCE LAW)

CHARACTER EVIDENCE

Introduction

The term ‘character’ has not been described in Indian law. The Cambridge dictionary defines
conduct as a particular combination of qualities that make a person different from others.
Honesty, good-natured, modest, violent temper, etc. are all traits of character.
However, in section 55 of the Evidecne Act , it has been stated that the term character includes
both reputation and disposition. It is normally established that reputation is the general opinion
about an individual in the eyes of the others whereas disposition is how that person is in real and
what are his inherent qualities.

EVIDENCE OF CHARACTER IS IRRELEVANT IN CIVIL CASES - Section 52

in civil cases, a fact pertaining to the character of an individual is not relevant.
Illustration-
‘A’, a businessman is charged with fraud. In this case, no evidence of the fact can be
treated as relevant which states that he is an honest man i.e. the character is such that he
can never commit fraud. Neither can the opposite party present evidence of the fact that
A’s character had been so trickery that he must have committed the fraud.

The reasons behind the irrelevance are that a case has to be decided based on the facts of the case
and not the character of the parties. Evidence of conduct doesn’t just delay the proceedings but
also hampers and impairs the mind of the judge. In civil cases, previous convictions of the
accused person are irrelevant.
Exceptions

● Section 55 of the Evidence Act provides that in civil cases, evidence of the good or bad
character of the person that is to receive the amount of damages is relevant. The character
of the original plaintiff is relevant.
● character of the party is itself a fact in issue then the evidence pertaining to the character
of that party is relevant.
EVIDENCE OF PREVIOUS GOOD CHARACTER IS RELEVANT IN CRIMINAL CASES -
Section 53
in criminal cases, the good character of the accused person is relevant. he reason behind this is
the basic human psychology that a person of good character will not generally resort to a
criminal act.
It depends on the discretion of the court that how much weight the evidence of the good
character has to be given while deciding the case.
In the case of Habeeb Mohammad v. State of Hyderabad, the Supreme Court held that in
criminal proceedings, the character of the accused can help in determining the innocence or guilt
of the accused. It can help in either making him suspicious or free from all the suspicions.
Accused is allowed to prove general good character in the question of punishment.

EVIDENCE OF CHARACTER OR PREVIOUS SEXUAL EXPERIENCE NOT RELEVANT

IN CERTAIN CASES - Section 53A
Inserted by ACt 13 of 2013 - cases where offences is committed under following section of
IPC:-
354 , 354A B C D, 376 , 376A B C D E
(sexual harrasement, stalking, vioyerism, intent to dosrobe, outarge modesty, rape,
gang rape. etc)
Or an attempt to commit such offences
And the content or quality of consent is in question then neither the character of the accused nor the
victim is relevant.
PREVIOUS BAD CHARCTER NOT RELEVANT , EXCEPT IN REPLY - Section 54
evidence pertaining to the fact that the accused has a bad character is not relevant in criminal
cases. In other words, the prosecution cannot present evidence of the accused’s bad character as a
part of the main case.

Exception :-
● accused has submitted any evidence of his good character, in such a case to rebut, the
prosecution can present evidence pertaining to the bad character of the accused
● Explanation 1 to Section 54 provides that when the character is itself a fact in issue then
evidence of bad character can be submitted.

CHARACTER AS AFFECTING DAMAGES- Section 55

In cases of civil nature, the character of the person who is ought to receive the amount of
damages is relevant. This section is an exception to Section 52 mentioned above. The evidence
pertaining to the good or bad character of the accused is irrelevant whereas evidence of the good
or bad character of the victim is relevant.

For instance in defamation, the evidence of the good or bad character of the original plaintiff is
relevant to decide the amount of damages that the plaintiff is ought to receive. This is generally
used to reduce the amount of damages.

Explanation of this section states that the term character which is used in sections 52, 53, 54 and
55 includes both reputation and disposition.
 ● Disposition is often referred to as what a person is in a person’s reality. A person’s
inherent qualities which he had obtained through education, upbringing or any
material condition in life is called disposition. A bad reputed person may have a
good disposition.
● Reputation is often referred to as the general estimation of a person. It is what
other people think about that individual. It is to be noted the evidence of those who
do not know the individual but have heard of his reputation is not admissible in court.

ORAL EVIDENCE MUST BE DIRECT - with exceptions

Oral Evidence is one of the form of `Evidence' as defined under Section 3 of Evidence Act which
means all statements which the court permits or requires to be made before it by witness in
relation to matters of fact in question.
Section 60 of Indian Evidence Act then provide that Whenever Oral evidence is to be led it must
be direct.
Evidence Act does not accept `Hearsay' or `Indirect Evidence. Section 60 lays down that oral
evidence must be direct. By direct it is meant that:
(i) If evidence is to be led about a fact which can be heard, witness must be produced who
says that he heard it.
(ii) If evidence is to be led about the fact which can be seen, the witness produced must say he
himself saw it.
(iii) If evidence is to be given about a fact which can be perceived by any other sense or in any
other manner the witness produced must say that he perceived it himself by that sense or in
that manner.
(iv) If evidence is to be given about an opinion or as to the ground on which the opinion is to
be held, the witness produced must say that he holds that opinion and on those ground.
So as a general Rule of Evidence, the oral evidence must be direct. Law does not allow hearsay
or indirect evidence because:
(i) Hearsay evidence being second hand evidence based on information given by other people is
considered to be susceptible piece of evidence will not lead the court to any concrete logical
conclusion.
(ii) Hearsay Evidence can not properly be subjected to test a cross examination, because,
witness giving hearsay evidence having no first hand and direct knowledge of fact relevant,
will escape by replying only i has so heard only.
(iii) Admission of Hearsay evidence will open the doors of fraud.
(iv) Admission of Hearsay or Indirect evidence would encourage tendency to lead weaker proof
of a fact than a strong and more reliable proof.
So court require the proof of any fact, must be given by most reliable and probable evidence,
this can be done by insisting upon only direct oral Evidence. However, Indian Evidence Act has
recognised certain exceptions to general Rule requiring direct oral evidence.
Exception to the Rule of Hearsay Evidence
(i) Statements which are part of Res Gestae, Whether actually constituting a fact in issue or
accompanying and explaining a fact in issue ( Section 6 of Evidence act).
(ii) Admissions and Confessions. [Section 18 to 31]
(iii) Statements of person who is dead or who cannot be found or who cannot attend the court
in circumstances as are provided in Sections 32 and 33 of Evidence Act.
(iv) Statements in books of accounts, government chart and public record. [Section 34 to 38]
(v) Opinion of experts expressed in any treatise commonly offered for sale and the grounds on
which are held, may be proved by indirect evidence. [Proviso to Section 60]

RULES REGARDING THE PROOF OF ATTESTED DOCUMENTS

I. Introduction

● Define "attested document": A document that is signed by witnesses to confirm its

execution.
● Explain the importance of proving the execution of attested documents in legal
proceedings.

II. General Rule for Proof of Attested Documents (Section 68)

● Requirement of an Attesting Witness: If a document is required by law to be attested, it
cannot be used as evidence unless at least one attesting witness is called to prove its
execution.
● Conditions:
○ The attesting witness must be alive.
○ The witness must be subject to the court’s process.
○ The witness must be capable of giving evidence.
● Proviso: It is not necessary to call an attesting witness to prove the execution of a
document (other than a will) that has been registered under the Indian Registration
Act, 1908, unless the execution is specifically denied.

III. Proof When No Attesting Witness is Available (Section 69)

● If no attesting witness can be found, or if the document was executed in the United
Kingdom, the proof required is:
○ The attestation by one witness must be in the handwriting of that witness.
 ○ The signature of the person executing the document must be in the handwriting of
that person.

IV. Admission of Execution (Section 70)

● If a party to an attested document admits its execution, this admission is sufficient proof
against that party, even if the document is required by law to be attested.

V. When Attesting Witness Denies or Does Not Recollect Execution (Section 71)

● If the attesting witness either denies the execution of the document or does not remember
it, the execution of the document can be proved through other evidence.

VI. Proof of Documents Not Required by Law to be Attested (Section 72)

● Documents that are attested but not required by law to be attested can be proved in the
same manner as if they were unattested.

VII. Conclusion

● Summarize the importance of these provisions in ensuring the authenticity and reliability
of attested documents in legal proceedings.

PROVISIONS RELATING TO PROOF OF HANDWRITING AND SIGNATURES

Introduction
The provisions of the Indian Evidence Act concerning the proof of handwriting and signatures
are crucial for establishing the authenticity of documents. They ensure that the purported
signatures or writings in documents, whether traditional or electronic, are properly verified to
prevent fraud and uphold legal integrity.

II. Proof of Handwriting and Signature (Section 67)

● Requirement: When a document is alleged to have been signed or written wholly or in

part by a specific person, the signature or the relevant handwriting must be proven to be
that person’s handwriting.
● Application: This section applies to all types of documents where the authenticity of the
signature or handwriting is in question.

III. Proof of Electronic Signature (Section 67A)

● Requirement: If an electronic signature is alleged to have been affixed to an electronic

record, the signature must be proven to be that of the subscriber, unless it is a secure
electronic signature.
 ● Secure Electronic Signature: For a secure electronic signature, the presumption is that it
is valid unless evidence to the contrary is provided.

IV. Comparison of Signatures, Writing, or Seal (Section 73)

● Comparison: The court is permitted to compare a signature, writing, or seal on a

disputed document with other signatures, writings, or seals that are admitted or proved to
the court’s satisfaction.
● Court's Power: The court may also direct any person present in court to write words or
figures for comparison purposes.
● Finger-Impressions: This section extends to the comparison of finger-impressions with
necessary modifications.

V. Proof of Digital Signature (Section 73A)

● Verification: To verify whether a digital signature is that of the person claimed, the court
may:
○ Direct the concerned person, the Controller, or the Certifying Authority to
produce the Digital Signature Certificate.
○ Instruct any other person to apply the public key listed in the Digital Signature
Certificate to verify the digital signature.

Conclusion :- provide a comprehensive framework to authenticate documents. This ensures

legal proceedings are based on genuine and verifiable evidence, thereby enhancing the reliability
and trustworthiness of documentation in both physical and electronic forms.

PROOF OF ELECTRONIC RECORDS

I. Introduction

● The Indian Evidence Act has evolved to address the increasing use of digital
communication and record-keeping.
● Provisions in the Act ensure the authenticity and admissibility of electronic records in
legal proceedings.

II. Relevant Sections

1. Section 67A: Proof of Electronic Signature

○ If an electronic signature is alleged to have been affixed to an electronic record, it
must be proven to be that of the subscriber.
 ○ Secure electronic signatures are presumed valid unless evidence suggests
otherwise.
2. Section 65B: Admissibility of Electronic Records
○ Specifies conditions for admitting electronic records as evidence.
○ Requires a certificate from a responsible official, detailing the electronic record,
its production, and the involved device.
3. Section 73A: Verification of Digital Signature
○ Allows the court to verify digital signatures by directing the production of the
Digital Signature Certificate.
○ Instructs the use of the public key listed in the certificate to authenticate the
digital signature.

III. Illustrations

● Illustration 1: A contract signed using an electronic signature must be proven in court. A

secure electronic signature is presumed valid unless contested, in which case the digital
signature certificate might be presented as proof.
● Illustration 2: A financial transaction recorded electronically requires a Section 65B
certificate for admissibility, detailing the transaction’s specifics, the devices used, and the
record’s integrity.
● Illustration 3: In the case of a will executed with a digital signature, the court can
request the Certifying Authority to produce the Digital Signature Certificate. The public
key is then used to authenticate the signature.

IV. Conclusion

● The Indian Evidence Act’s provisions for electronic records ensure digital documents are
scrutinized and legitimized as rigorously as traditional paper documents.
● These sections provide a framework for the verification and authentication of electronic
signatures and records, facilitating their use in legal contexts.

The Exclusion of Oral Evidence by Documentary

Evidence - Ch-VI
Introduction
Secs. 91 to 100 deal with the law relating to inadmissibility of oral evidence where documentary
evidence is available, or where a transaction must be in writing
Section 91
● It provides that :
1. when the terms of a contracts or grants or other depositions of the property is reduced
into writing and
2. in all the cases in which any matter is required by law to be reduced to a form of
document
● no evidence shall be given in proof of the terms of such contract, grant or other
disposition of property, or of such matter, except
1. the document itself, or
2. secondary evidence of its contents in cases in which secondary evidence is admissible
● clarifies that the contracts, grants or dispositions of property referred in this section may
be contained in one document or they may be contained in more documents than one.
Illustration:- If a contract be contained in several letters, all the letters in which it is
contained must be proved.
● clarifies that where there are more originals than one, one original only need be proved.
Illustration:- If a bill of exchange is drawn in a set of three, one only need be proved.
● clarifies that if a document includes a statement about a fact that is not directly related to
the specific matters covered in a particular section of the Act, this does not prevent oral
evidence from being presented about that fact.
Illustration A contracts, in writing, with B, for the delivery of indigo upon certain terms.
The contract mentions the fact that B had paid A the price of other indigo contracted for
verbally on another occasion.
● Exception:- 1. When a public officer is required by law to be appointed in writing, and
when it is shown that any particular person has acted as such officer, the writing by which
he is appointed need not be proved.
 Illustration :- A question arises whether A is a judge of the High Court, then the warrant
of appointment is not required to be proved. The fact that he is working as a judge of the
High Court will be proved.
2. Wills admitted to probate in India may be proved by the probate. So,when on the basis
of will probate has been obtained and if later, the question arises on the existence of that
will, the original will is not required to be produced before the court.

Exclusion of Evidence of Oral Agreements [section 92]

Section 92 is complimentary to section 91. According to it, when the terms of any such contract,
grant or other disposition of property, or any matter required by law to be reduced to the form
of a document, have been proved according to the last section, no evidence of any oral
agreement or statement shall be admitted, as between the parties to any such instrument or
their representatives in interest, for the purpose of contradicting, varying, adding to, or
subtracting from, its terms:

PROVISO/EXPLANATION

Invalidating the Document: This proviso allows for oral evidence to show that a document is
void or voidable, such as due to fraud, illegality, mistake, coercion, or any other reasons that
could invalidate the document. For example, if a person was tricked into signing a contract, oral
evidence can be used to prove the deception.
Separate Oral Agreement on Matters Not Covered: Oral evidence can be admitted to prove
the existence of any separate oral agreement regarding a matter on which the document is silent,
as long as this agreement is not inconsistent with the written document. For instance, if a written
lease agreement is silent about the use of the backyard but the landlord and tenant orally agreed
on its use, that oral agreement can be evidenced.
Separate Oral Agreement on a Condition Precedent: This proviso permits oral evidence to
prove the existence of any separate oral agreement that constitutes a condition precedent to the
attaching of any obligation under the document. For example, if a contract for the sale of a house
is agreed to be contingent upon the buyer securing a loan, this condition can be proved by oral
evidence even if it’s not mentioned in the written contract.
Any Distinct Subsequent Oral Agreement: Oral evidence is allowed to prove any subsequent
oral agreement that modifies or rescinds the written document, provided such modification or
rescission is not prohibited by the law. For instance, if the parties later agree to change the
delivery date of goods, this can be established by oral evidence.
Usage or Custom: If there is a common usage or custom that typically attaches to contracts of a
particular description, oral evidence can be introduced to show this custom, as long as it does not
contradict the express terms of the written document. For example, in certain businesses, it may
be customary to provide a specific service that’s not mentioned in the contract.
Relation of Language to Existing Facts: This allows oral evidence to clarify how the language
of the document relates to existing facts or to prove the relation of the language used in the
document to any fact that might affect its interpretation. For instance, if a contract references
“the office,” oral evidence can clarify which office is being referred to if there is ambiguity.

LATENT & PATENT AMBIGUITY

The rule about admission or exclusion of extrinsic evidence has been laid down under section 93
to 98 of the Indian Evidence Act. Such exclusion or admission of extrinsic evidence is in
connection with the facts contained in a document which either a contract or not.
The ambiguity in the language of a document can be divided into two categories:

1. Patent ambiguity 2. Latent ambiguity

A patent ambiguity is when the language of the document or deed is uncertain. The latent
ambiguity is an ambiguity which is not present in the deed but it arises due to extrinsic factors.

Test of difference ; The test to find the difference that whether the ambiguity is a patent
ambiguity or a latent ambiguity is to put the document in the hands of an ordinary intelligent
educated person.

1. If on reading the document the ambiguity can be detected and no definite meaning
can be understood then such ambiguity is patent ambiguity.
2. If on perusal of document no ambiguity can be found by him and the meaning is
definite but when that document is applied to existing circumstances, the
ambiguity arises and its meaning becomes indefinite, then the ambiguity is the latent
ambiguity.

Extrinsic evidence to explain ambiguity in a document

WHEN EE CANNOT BE GIVEN;-

Section 93: Exclusion of evidence while explaining or amendment of an ambiguous document. It
states that when the language of a document is ambiguous or defective on its face, no evidence
can be given to explain or amend it. In other words, if a document has a patent ambiguity—an
ambiguity that is evident just by reading the document itself—then external evidence cannot be
used to clarify or correct the ambiguity.
Illustration:- A agrees, in writing, to sell a horse to B for “Rs. 1,000 or Rs. 1,500”. Evidence
cannot be given to show which price was to be given.
Case Law :- In the case of Keshavlal Lallubhai Patel v. Lal Bhai T. Mills Ltd., it was held by
the Supreme Court that it would not be open for the parties or the court to remove the ambiguity
or vagueness by relying upon the extrinsic evidence.
Section 94:- evidence may not be given to show that the language of such a document is not
meant to apply to a particular fact. For this, two essentials must be fulfilled:

1. The language of the document on the face of it is plain.

2. That such language accurately applies to the existing facts.

Patent ambiguity is based on the Latin maxim Prima Facie, which means something that
appears on the face of the record. That means the meaning of the agreement on the face is
unclear or not understandable.

WHEN EE CAN BE GIVEN

Section 95 :- ambiguity that, on the face, appears to be certain and meaningful, but on
execution, it does not make any relevance to the existing facts or the present circumstances
Illustration :- A sold his house to B stating in the deed as “my house in Lucknow”.
But, A has no house in Lucknow but he has a house in Kanpur in which B is living since the
deed was executed. Then the evidence can be used to prove the fact the deed was related to the
house in Kanpur.

Section 96 EVIDENCE ALLOWED WHEN THE APPLICATION OF LANGUAGE MEANT

TO APPLY ON ONE , APPLIES TO SEVERAL PERSONS……so to clarify that which of the
person or things , the fact is intended to apply on
Illustration:- A agrees to sell his white cow to B for Rs. 2000 and in the deed he has mentioned
“my white cow”. A has two white cows. Evidence can be given to prove that which white cow he
meant in that deed.
Section 97 evidence may be given when the language of the document is such that:

● (a) it partly applies to one set of the existing facts, and

● (b) partly to another set of the existing facts.

But in neither case, it correctly applies as a whole to the document. Thus, evidence may be given
to show the meaning of its exact application.

Illustration:- Rohan agrees to sell to Priya “my land at Jalandhar in possession of Siddharth”.
Rohan has a piece of land at Jalandhar but not in possession of Siddharth, and he has a piece of
land in possession of Siddharth, but it is not at Jalandhar. As the facts of the deed:

● partly applied to one set of existing facts (i.e. Rohan has the piece of land at Jalandhar
but not in possession of Siddharth), and
● partly to another set of existing facts (that the piece of land is in possession of
Siddharth but is not in Jalandhar)
 But neither applies as a whole correctly. Here, evidence may be given of facts showing which
land he meant to sell.

Section 98 :- evidence may be given to make understand the meaning of a particular word in a
particular sense. It is so bcoz sometimes the meaning of the local language of a particular area is
completely unfamiliar with that of the other area.

Illustration :- Let’s say, in Bhopal, oranges mean banana, and in Kerala, oranges mean oranges.
A (resident of Bhopal) agrees to sell to B (resident of Kerala) 5 kg of oranges. Now A delivers 5
kg of Banana to B. Evidence may be given to show the exact meaning of the deed.

PATENT LATENT

Sections 93 and 94 of the Evidence Act. Sections 95 to 98 of the Evidence Act.

uncertain and unmeaning on the face. certain and meaningful on the face.

No oral evidence may be given. (Court’s discretion lies Oral evidence can be given to remove its ambiguity.
only in exceptional cases.)

Patent ambiguity makes the document useless from the As oral evidence is allowed, it does not make the
very beginning document useless.

personal in nature, related to the person executing it. objective in nature, related to the present circumstances.