Kalinga University

Naya Raipur
Faculty of Law

Course – BA LLB Sem.-7th

Subject - Law and Emerging Technologies
Subject Code: BALLB703
Unit 4
 Unit 4
GENETIC AND MEDICAL TECHNOLOGIES

1. Explain Oral and Documentary Evidence.

Ans. Evidence may be classified into Oral Evidence and Documentary Evidence, a fact may
be proved either by oral evidence of fact or by documentary evidence, if any. This means there
are two methods of proving a fact. One is by producing witnesses of fact, which are called oral
evidence and the other by producing the document which records the fact in question and this is
called documentary evidence.
Section 59 and 60 of the Indian Evidence Act, 1872 provides the provisions relating to
oral evidence Section 59 provides for proof of Facts by oral evidence, Section 60 says that oral
evidence must direct in other words hearsay evidence no evidence.
Meaning of Oral Evidence:
The term Oral signifies by word of mouth. 'Oral Evidence' literally means “The evidence,
which is confined to words spoken by mouth".
It is a fact to the knowledge of the court by the statement of a witness qualified to speak
on the point. However a witness, who is unable to speak, is permitted and considered as
competent to give evidence in any matter which, he can make it intelligible. Verbal
Statements includes signs and gestures. A deaf may testify by signs or by writing Oral
evidence, if worthy of credit, is sufficient without documentary evidence to prove a fact or title.
Definition of Oral Evidence:
Section.3 of the Indian Evidence Act defines oral evidence, the first Part of the Evidence which
defines Evidence deals with ’Oral evidence'. It says - “All Statements which the court permits or
requires to be made before it, by witnesses in relation to matter of fact under enquiry, such
statements are called Oral Evidence."
The evidence of witnesses in general is given orally, and this Means Oral Evidence.
Therefore Oral Evidence includes the statement of witnesses before the court which the Court
either permits or requires them to make. The statement may made by witnesses capable of
making it. A witness who can speak may communicate his knowledge of the fact to the court by
signs or by writing and it will be treated as oral evidence
Proof of Facts by oral Evidence (Section.59) :
Section 59 says that, “All facts, except the contents of documents, may be proved by oral
evidence. (The words or electronic records inserted by IT Act 2000).
Importance of Oral Evidence:
This Section lay down that, where written documents exist, they shall be produced as being
the best evidence of their own contents and no oral evidence can be adduced to prove as to what
is wrong in the document.
While receiving oral evidence great Care must be exercised. The Court must sift the
evidence, separate grain from chaff and accept what it finds to be true and reject the rest. The
real test for accepting or rejecting the evidence is:
A) How consistent the story is with itself.
B) How it stands the taste of cross examination; and
C) How far it fits in with the rest of the evidence and the circumstances of the case.
Oral Evidence Must Be Direct:
Section 60 of Indian Evidence Act reads as follows:
Oral evidence must, in all cases, whatever, be direct; that is to say -

 If it refers to a fact which could be seen, it must be the evidence of a witness who says he
saw it;

 If it refers to a fact which could be heard, it must be the evidence of a witness who says
he heard it;

 If it refers to a fact which could be perceived by any other sense or in any other manner,
it must be the evidence of a witness who says he perceived it by that sense or in that
manner;

 If it refers to opinions or to the grounds in which that opinion is held, it must be the evidence
of the person who holds that opinion on those grounds -
Provided that the opinion of experts expressed in any treatise commonly offered for sale, and
the grounds on which such opinions are held, may be proved by the production of such treatise if
the author is dead or cannot be found or has become incapable of giving evidence or cannot be
called as a witness without an amount of delay or expense which the Court regards as
unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any material thing
other than a document, the Court may, if it thinks fit, require the production of such material
thing for its inspection.

Documentary Evidence:

The provisions related to the documentary evidence are provided under Chapter-V of
the Indian Evidence Act, 1872. Section 3 of the Act defines the term “document”. Any matter
which is expressed or described on any substance by means of letters, figures or remarks or by
more than one means and which can be used for recording the matter is considered as a
“document”.

Generally, the most common document which we have to deal with is described by letters. The
documents are written in any language of communication such as Hindi, English, Urdu etc.

The documents produced before the court as evidence are the documentary evidence and there
must primary or secondary evidence to prove the contents of the documents. Primary evidence
has been defined under section 62 of the Indian Evidence Act and it means the original
document when itself produced before the court for the inspection.

The secondary evidence has been defined under section 63 of the Act. The secondary evidence
is the certified copy of the evidence or copy of original documents. Secondary evidence also
includes the oral accounts given by a person about the contents of the document who has himself
seen it.

Secondary Evidence is an alternative source of Evidence. Secondary Evidence is

admissible in the absences of the Primary Evidence.

2. When Secondary Evidence is Admissible ?

Ans. According to Section 65.of the Indian Evidence Act, 1872 Secondary evidence may be
given of the existence, condition or contents of a document in the following cases:
a) When the original is shown or appears to be in the possession or power of the person against
whom the document is sought to be proved, or of any person out of reach of, or not subject to,
the process of the Court, or of any person legally bound to produce it, and when, after the notice
mentioned in Section 66, such person does not produce it;
b) When the existence, condition or contents of the original have been proved to be admitted in
writing by the person against whom it is proved or by his representative in interest;
c) When the original has been destroyed or lost, or when the party offering evidence of its
contents cannot, for any other reason not arising from his own default or neglect, produce it in
reasonable time;
d) When the original is of such a nature as not to be easily movable;
e) When the original is a public document within the meaning of Section 74;
f) When the original is a document of which a certified copy is permitted by Evidence Act, or by
any other law in force in India to be given in evidence;
g) When the originals consist of numerous accounts or other documents which cannot
conveniently be examined in Court, and the fact to be proved is the general result of the whole
collections. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is
admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of
the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may
be given as to the general result of the documents by any person who has examined them, and
who is skilled in the examination of such documents.
Secondary Document is the document which is not original
document. Giving Secondary Evidence is exception to the general rule. Notice is required to
be given before giving secondary evidence. The value of Secondary evidence is not as that
of primary Evidence .

3. What do you mean by Primary Evidence? Explain.

Ans. S.62 & S.63 of Indian Evidence Act deals with Primary Evidence and Secondary Evidence
respectively. Primary evidence is differ from secondary evidence. Primary evidence most
commonly called as best evidence, because it is actual item and not copy of original one like
secondary evidence .

Meaning of Primary Evidence -

"Primary evidence means the document itself produced for the inspection of the Court."

Explanation - 1
Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterparts, each counterpart being executed by one or some
of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation - 2
Where a number of documents are all made by one uniform process, as in the case of printing,
lithography or photography, each is primary evidence of the contents of the rest; but, where they
are all copies of a common original, they are not primary evidence of the contents of the original.

Illustration
A person is shown to have been in possession of a number of placards, all printed at one time
from one original. Any one of the placards is primary evidence of the contents of any other, but
no one of them is primary evidence of the contents of the original

Examples of Primary Evidence-

Here are few examples of primary evidence.
A) Manuscripts - it may be either typed or handwritten, it can be single note or lengthy book,
but original did not copied from another documents. It includes : Books, such as biographies (not
an autobiography), personal papers, memoirs, autobiographies, correspondence, diaries,letters,
artificial collections, etc.

B) Archives - Archival may be either personal document or institutional.

C) Original art - paintings, drawings, watercolors, sculpture, architectural drawings, and plans
are primary evidence.

Conclusion -
Primary evidence is differ from secondary Evidence. Primary evidence is the best evidence in
Judicial proceedings because that are original documents and not the copy of original documents
like secondary evidence.

4. Difference between Primary Evidence and Secondary Evidence.

Ans. Following are the notable differences between the Primary and Secondary Evidence.
No Primary Evidence Secondary Evidence

1)
Primary Evidence is original Secondary Evidence is the document which is not
document which is presented to original document but those documents which are
the court for its inspection. mentioned in Section.63.

2) It is the main source of Evidence. It is an alternative source of Evidence.

3) Section 62 of the Evidence Act Section 63 of the Indian Evidence Act defines
defines Primary Evidence Secondary Evidence

4) Primary Evidence is the best Secondary Evidence is not best evidence but is
Evidence evidence of secondary nature and is admitted in
exceptional circumstances mentioned in Section
65.

5) Giving Primary Evidence is Giving Secondary Evidence is exception to the

general rule. general rule.

6) Primary Evidence itself is Secondary Evidence is admissible in the absence

admissible. of the Primary Evidence.

7) No notice required before giving Notice is required to be given before giving

Primary Evidence. Secondary Evidence.

8) The value of Primary Evidence is The value of Secondary Evidence is not that of
highest. Primary Evidence
5. Explain the exclusion of oral by documentary evidence.

Ans. Hearsay Evidence means whatever a person is heard to say it includes: i) A statement
made by a person, not called as witness; ii) A statement contained or recorded in any book,
document or record which is not admissible. The hearsay witness may not be able to say
correctly and completely the truth of his statement.

Definitions :

Taylor :

'All the evidence which does not derive its value solely from the credit given to the
witness himself, but which rests also in part on the veracity and competence of some other
person .'

Bentham :

The supposed oral testimony transmitted through oral, supposed orally delivered
evidence of a supposed extra judicially narrating witness judicially delivered viva voce by the
judicially deposing witness

Hearsay Evidence means whatever a person is heard to say... it includes...

1) a statement made by a person , not called as witness

2) s statement contained or recorded in any book, document or record which is not admissible.

Oral evidence must be direct

Evidence given by the witness may be oral or documentary. Section 60 of the Indian
Evidence Act says that, oral Evidence to be admissible, it must be direct. In other words, Hearsay
Evidence is no evidence.

A statement oral or written, by a person not called as witness comes under the general
rule of hearsay.

Section 60 of Indian Evidence Act reads as follows :

 Oral evidence must, in all cases, whatever, be direct; that is to say

 If it refers to a fact which could be seen, it must be the evidence of a witness who says he
saw it;

 If it refers to a fact which could be heard, it must be the evidence of a witness who says
he heard it;

 If it refers to a fact which could be perceived by any other sense or in any other manner,
it must be the evidence of a witness who says he perceived it by that sense or in that
manner;

 If it refers to opinions or to the grounds in which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds -

Provided that the opinion of experts expressed in any treatise commonly offered for sale, and
the grounds on which such opinions are held, may be proved by the production of such treatise if
the author is dead or cannot be found or has become incapable of giving evidence or cannot be
called as a witness without an amount of delay or expense which the Court regards as
unreasonable.

Provided also that, if oral evidence refers to the existence or condition of any material thing
other than a document, the Court may, if it thinks fit, require the production of such material
thing for its inspection.

Conditions :

As stated above, The fundamental principle of law of evidence is: Hearsay

Evidence must not be admitted. Hearsay Evidence is also known as derivative or second hand
or unoriginal evidence. It is the evidence of facts, which the witnesses has not learnt through his
own bodily senses, but learnt through the medium of others. It is regarded as ambiguous and
misleading.

Exclusion of hearsay evidence :

Section 60 excludes hearsay Evidence. The evidence of fact the happening of which
could be seen can be given only by an eyewitness. If the evidence refers to a fact which could be
perceived by any order sense or in any other manner, it shall be the evidence of a person who
Personally perceived it by that sense or in that manner.
 Thus in all cases, the evidence has to be that of person who himself witnessed the happening
of the fact of which he gives Evidence. such witnesses is called as eye witnesses or a witness of
fact and the principle is known as that of direct Oral Evidence or of the exclusion of hearsay
Evidence.
Reasons for Exclusion of Hearsay Evidence :

The reasons for exclusion of hearsay Evidence are as follows :

1) Hearsay Evidence cannot be tested by Cross-Examination.

2) It supposes some better evidence and encourages substitution of weaker for stronger evidence.

3) Hearsay Evidence is intrinsically weak.

4) The evidence is not given on oath or under personal responsibility by the original declarant.
5) It has a Tendency to protect legal investigation
6) As truth depreciates in the process of repetition, it is not reliable.
7) Its reception will increase opportunities for fabrication
Exceptions :
Exceptions to hearsay Evidence are as follows :
1) Res gestae under Section 6 :
The statement of a person may be proved through another person who appears as a witness if
the statement is a part of the transaction issue
2) Admission and Confessions (Under Section 17 - Section 23 and Section 24 - Section 30) :
An admission of liability or confession of guilt which takes place outside the court is proved
through the testimony of the witnesses to whom the admission or confession was made. such
witness is not a witness of fact as he has not seen or observed the main occurance through nay of
his sense but had only heard about it from the mouth of the party who admitted his liability or
confessed to the guilt.
3) Statement Relevant :
Statements by a person who cannot be called as a witness (Dying Declaration. Section
32(1). Statements, which are mostly the statements of the deceased persons who are not available
as witnesses. The evidence of such statement is therefore, the evidence of hearsay and it
specially declared to be relevant.
4) Evidence given in the former proceedings (Section 33)
It is provided that evidence is given by a witness in the proceeding can be used as an
evidence of the truth of the facts stated in any subsequent proceeding between the same parties,
provided that the witness has died or is, for some other reasons, not available.
5) Statements in public documents (Section 35)
The statement in public document such as, the Acts of the Parliament, official books and
registers can be proved by the production of the documents and it is not necessary to produce
before the court the draftsman of the documents.
6) Opinions of Experts (Section 45- Section 51) :
It is provided that the opinion of experts expressed in any treaties commonly offered for
sale and the ground on which such opinions are held may be proved by the production of such
treaties if the author is dead or cannot found or become incapable of giving evidence, or cannot
be called as witness without an amount of delay or expense which the court regards reasonable.
Thus the opinion of experts can be cited in his absence only.

6. What do you mean by Presumption?

Ans. Section 79 to 90A of the Indian Evidence Act 1872 lay down the provisions relating to
the presumptions as to document. Section 79 to 85 of the said Act deal with are called
presumptions of law and Section 86 to 88 and 90 are related to the presumptions of fact.
Meaning and Definition of Presumption - The term presumption can be defined to be an
inference affirmative or diss-affirmative of the truth or falsehood of a doubtful fact proportion,
drawn by a process of probable reasoning from something proved or taken for granted.
Classification of Presumptions -

Presumptions are broadly Classified into three groups :

1) Presumption of Fact or Natural Presumption
2) Presumption of law or Artificial Presumption
i) Rebutable
ii) Irrebuttable or Conclusive
3) Mixed Presumptions (Presumption of Fact and law both)
1) Presumption of Fact or Natural Presumption :
Sections 86 - 88, 90,, 113A and 114 lay down the provisions relating to Presumption of
Fact or Natural Presumptions as stated below. these principles are generally rebuttable.

Section 86.Presumption as to certified copies of foreign judicial records

Section 87.Presumption as to Books, Maps and Charts

Section 88.Presumption as to Telegraphic Messages

Section 90.Presumption as to documents thirty years old

Section 113A.Presumption as to abatement of suicide by a married women

Section 113B.Presumption as to dowry death

2) Presumption of law or Artificial Presumption: Presumptions of law or artificial

presumptions are inferences or propositions established by law.

Presumptions of law are of two kinds :

i) Rebuttable Presumptions of law :
These kinds of presumptions arise when presumptions of law are certain legal
rules, defining the amount of evidence requisite to Support a particular allegation, which facts
being proved, may be either explained away or rebutted by evidence to the contrary but are
conclusive in absence of such evidence. For example, A man is presumed innocent until he is
proved guilty. A child is born in a legal wedlock shall be presumed legitimate and one who
questions his legitimacy must disprove it.
Following are the Examples of this presumptions :

Section 107.Burden of proving death of person known to have been alive within thirty years.

Section 108.Burden of proving that person is alive who has not been heard of for seven years.

Section 102.On whom burden of proof lies.

ii) Irrebuttable or Conclusive :
These Presumptions are those legal rules which are not outcome of any evidence
that the fact is otherwise. Section 82 of Indian Penal Code is the well-known instance of an
irrebuttable presumption of law which provides that nothing is an offense which is done by a
child under 7 year of age. Section 115, 116 and Section 117 of the Indian Evidence Act 1872
deals with the rule Estoppel which are the examples of irrebuttable presumptions.
Following are the Examples of this presumptions :
Section 115. Estoppel

Section 116. Estoppel of tenant and of license of person in possession

Section 117. Estoppel of acceptor of bill of exchange, bailee or licensee
3) Mixed Presumptions (Presumption of Fact and law both) :
Mixed presumptions of law and Fact are mainly confined to the English law of real
property so it is not necessary to presume subject here.The Indian Evidence Act has made some
provisions for the presumptions of fact and the presumptions of law. In certain sections of the
Evidence Act, it has been provided that the court may presume certain facts. In some other
sections, The court shall presume a fact has been used. There are certain sections in which it is
said that a certain fact is conclusive proof of a certain another fact. Section 4 of the Evidence Act
controls these sections and gives a direction to courts as to how proceed under those sections of
the evidence act.

Presumption as to Document -
Under the Indian Evidence Act, presumption as to document are as follows -
a) Presumption as to genuineness of certified copies ).
The Court shall presume to be genuine every document purporting to be a certificate,
certified copy, or other document, which is by law declared to be admissible as evidence of any
particular fact, and which purports to be duly certified by any officer of the Central Government
or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly
authorized thereto by the Central Government;
Provided that such document is substantially in the form and purports to be executed in the
manner directed by law in that behalf. The Court shall also presume that any officer by whom
any such document purports to be signed or certified, held, when he signed, the official character
which he claims in such paper.
b) Presumption as to documents produced as records of evidence (Section -80).
Whenever any document is produced before any Court, purporting to be a record or
memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial
proceeding or before any officer authorized by law to take such evidence or to be statement or
confession by any prisoner or accused person taken in accordance with law, and purporting to be
signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume -
that the document is genuine; that any statements as to the circumstances under which it was
taken, purporting to be made by the person signing it, are true, and that such evidence, statement
or confession was duly taken.
c) Presumption as to Gazettes, newspapers, private Acts of Parliament and other
documents (Section -81)
The Court shall presume the genuineness of every document purporting to be the London
Gazette, or any official Gazette or the Government Gazette of any colony, dependency or
possession of the British Crown, or to be a newspaper or journal, or to be a copy of private Act
of Parliament of the United Kingdom printed by the Queen’s Printer and of every document
purporting to be a document directed by any law to be kept by any person, if such document is
kept substantially in the form required by law and is produced from proper custody.
d) Presumption as to Gazettes in electronic forms (Section - 81A).
Presumption as to Gazettes in electronic forms.- The Court shall presume the genuineness of
every electronic record purporting to be the Official Gazette or purporting to be electronic record
directed by any law to be kept by any person if such electronic record is kept substantially in the
form required by law and is produced from proper custody.
e) Presumption as to document admissible in England without proof of seal or signature
(Section - 82).
When any document is produced before any Court, purporting to be a document which, by
the law in force for the time being in England or Ireland, would be admissible in proof of any
particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or
signature authenticating it, or of the judicial or official character claimed by the person by whom
it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine and
that the person signing it held at the time when he signed it, the judicial or official character
which he claims; and the document shall be admissible for the same purpose for which it would
be admissible in England or Ireland.
f) Presumption as to Maps or Plans made by authority of Government ( Section - 83).
The Court shall presume that maps or plans purporting to be made by the authority of the
Central Government or any State Government were so made, and are accurate, but maps or plans
made for the purposes of any cause must be proved to be accurate.
g) Presumption as to collections of laws and reports of decisions (Section - 84) -
The Court shall presume the genuineness of every book purporting to be printed and
published under the authority of the Government of any country, and to contain any of the laws
of that country; and of every book purporting to contain reports of decisions of the Courts of
such country.
h) Presumption as to powers of attorney (Section 85) -
The Court shall presume that every document purporting to be a power-of-attorney, and to
have been executed before, and authenticated by, a Notary Public, or any Court, Judge,
Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so
executed and authenticated.
i) Presumption as to electronic agreements (Section 85A).
The Court shall presume that every electronic record purporting to be an agreement containing
the electronic signatuers of the parties was so concluded by affixing the electronic signature of
the parties.
j) Presumption as to electronic records and digital signatures (Section 85B).
(1) In any proceedings involving a secure electronic record, the Court shall presume unless
contrary is proved, that the secure electronic record has not been altered since the specific point
of time to which the secure status relates.
(2) In any proceedings, involving secure digital signature, the Court shall presume unless the
contrary is proved that—
(a) the secure electronic signature is affixed by subscriber with the intention of signing or
approving the electronic record;
(b) except in the case of a secure electronic record or a secure digital signature, nothing in this
section shall create any presumption, relating to authenticity and integrity of the electronic record
or any electronic signature.
k) Presumption as to Digital Signature Certificates (Section 85C)
The Court shall presume, unless contrary is proved, that the information listed in an
Electronic Signature Certificate is correct, except for information specified as subscriber
information which has not been verified, if the certificate was accepted by the subscriber.
l) Presumption as to certified copies of foreign judicial records (Section 86) -
The Court may presume that any document purporting to be a certified copy of any judicial
record of any country not forming part of India] or of Her Majesty’s dominions is genuine and
accurate, if the document purports to be certified in any manner which is certified by any
representative of the Central Government in or for such country to be the manner commonly in
use in that country for the certification of copies of judicial records. An officer who, with respect
to any territory or place not forming part of India or Her Majesty’s dominions, is a Political
Agent therefore, as defined in section 3, clause (43), of the General Clauses Act, 1897 (10 of
1897), shall, for the purposes of this section, be deemed to be a representative of the Central
Government in and for the country comprising that territory or place.
m) Presumption as to Books, Maps and Charts (Section 87)
The Court may presume that any book to which it may refer for information on matters of
public or general interest, and that any published map or chart, the statements of which are
relevant facts, and which is produced for its inspection, was written and published by the person,
and at the time and place, by whom or at which it purports to have been written or published.
n) Presumption as to Telegraphic Messages (Section 88) -
The Court may presume that a message, forwarded from a telegraph office to the person to
whom such message purports to be addressed, corresponds with a message delivered for
transmission at the office from which the message purports to be sent; but the Court shall not
make any presumption as to the person by whom such message was delivered for transmission.
o) Presumption as to electronic messages (Section 88A)
The Court may presume that an electronic message, forwarded by the originator through an
electronic mail server to the addressee to whom the message purports to be addressed
corresponds with the message as fed into his computer for transmission; but the Court shall not
make any presumption as to the person by whom such message was sent. Explanation For the
purposes of this section, the expressions “addressee” and “originator” shall have the same
meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of
the Information Technology Act, 2000.
p) Presumption as to due execution etc., of documents not produced (Section 89)
The Court shall presume that every document, called for and not produced after notice to
produce, was attested, stamped and executed in the manner required by law.
q) Presumption as to documents thirty years old (Section 90)
Where any document, purporting or proved to be thirty years old, is produced from any
custody which the Court in the particular case considers proper, the Court may presume that the
signature and every other part of such document, which purports to be in the handwriting of any
particular person, is in that person’s handwriting, and, in the case of a document executed or
attested, that it was duly executed and attested by the persons by whom it purports to be executed
and attested. Explanation: Documents are said to be in proper custody if they are in the place in
which, and under the care of the person with whom, they would naturally be; but no custody is
improper if it is proved to have had a legitimate origin, or if the circumstances of the particular
case are such as to render such an origin probable. This Explanation applies also to Section 81.
Illustrations
(a) A has been in possession of landed property for a long time. He produces from his custody
deeds relating to the land showing his titles to it. The custody is proper.
r) Presumption as to electronic records five years old (Section 90A)
Where any electronic record, purporting or proved to be five years old, is produced from
any custody which the Court in the particular case considers proper, the Court may presume that
the electronic signature which purports to be the electronic signature of any particular person was
so affixed by him or any person authorised by him in this behalf.
Explanation: Electronic records are said to be in proper custody if they are in the place in
which, and under the care of the person with whom, they naturally be; but no custody is
improper if it is proved to have had a legitimate origin, or the circumstances of the particular
case are such as to render such an origin probable.

7. Differentiate between Presumption Of Fact and Presumption of Law.

Ans. Following are the difference between presumption of fact and presumption of law,

No. Presumption of Fact/May Presumption of Law

Presume

1) Presumption of fact is based on Presumption of law is based on provisions of

logic, human. law.

2) The position of Presumption of fact The position of Presumption of law is certain

is uncertain. and uniform.

3) Presumption of fact is always The Presumption of law is conclusive unless

rebuttable and goes away when rebutted as provided under rule giving ruse to
explained or rebutted by presumption.
establishment of positive proof.

4) The court can ignore presumption The court cannot ignore presumption law.
of fact however strong it is.

5) The presumptions of fact are The presumptions of law are derived on

derived on basis of law of nature, established judicial norms and they have
prevalent customs and human become part of legal rules.
experience.

6) The Court can exercise its Presumption of law is mandatory i.e. Court is
discretion while drawing bound to draw presumption of law.
presumptions of fact i.e.
presumption of facts is
discretionary presumption.
8. Discuss and Differentiate between Public and Private Documents.

Ans.Public Documents
Introduction
All the documents may be classified into two categories either ' Public documents' or ' Private
documents' . S. 74 of Indian evidence Act deals with definition of Public document whereas S.76
to S.78 deals with the modes or the proof for the purpose of proving the contents of a public
document. The public documents are admitted in evidence and as an exception to hearsay rule as
the fact contained in them are of public interest and they are the statements made by the
authorised and competent agent of public in the course of their official duties.

Definition of Public Document.

S.74 Public documents
The following documents are public documents :—

(1) Documents forming the acts, or records of the acts—

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, of any part of India or of the
Commonwealth, or of a foreign country;

(2) Public records kept in any State of private documents.

In order to bring documents within the definition of "public document" as laid down in
S.74, it must be shown to gave been prepared by any public servant in the discharge of his
official duty. The mere fact that it is kept in a public office does not make it a public document.

According to the definition given u/s. 74, only those documents are said to be public
documents as form of the act and records of public officer. It also includes the act of parliament
and state legislatures, proclamation, ordinance, state papers and gazettes.

The acts and record of acts of the proceedings of the municipal board would come under
the category of acts or records of acts of official bodies. Municipal register of birth and death
kept by municipal board is a public document. The acts and record of election tribunals are the
documents which would come within the meaning of public document. The record of court of
justice and other judicial writings are public documents.
S.74 (2) refers to private document through made by private individuals but kept as record in
public offices in order to facilitate public to have an access to it. Such private documents are kept
in Public offices are regarded as public documents . for example , S.51 of the Indian registration
Act , 1908 provides for the maintenance of certain records of the documents registered and S.57
of the same Act , enables the registration officer to give certified copies of all such documents .

Examples of Public documents

1) Birth and death registers of municipalities .
2) Charge sheet
3) confessions recorded by magistrate u/s . 164 of Cr.P.C.
4) Deposition of witnesses recorded by an officer of the Court.
5) Entry in the register of power of attorney kept in the registration office .
6) sanction to prosecute.
7) Notice u/s 106 of Cr.P.C.
8) Record of information u/s.145 Cr.P.C
S.75 Private documents
All other documents are private.
This section simply provides that any document not coming under of the two clauses of S.74 is
private document. A deed of contract, memorandum, letter, sale deed, etc .are the private
documents.

Certified copies of Public Documents S.76 -

Every public officer having the custody of a public document, which any person has a
right to inspect, shall give that person on demand a copy of it on payment of the legal fees there
for together with a certificate written at the foot of such copy that it is a true copy of such
document or part thereof, as the case may be, and such certificate shall be dated and subscribed
by such officers with his name and his official title, and shall be sealed whenever such officer is
authorized by law to make use of a seal, and such copies so certified shall be called certified
copies.

Explanation -Any officer who, by the ordinary course of official duty, is authorized to deliver
such copies, shall be deemed to have the custody of such documents within the meaning of this
section.
S. 77 Proof of documents by production of certified copies :
Such certified copies may be produced in proof of the contents of the public documents or parts
of the public documents of which they purport to be copies.

The certified copies as referred in S.76 may be produce on proof of the contents of public
document or parts of public documents. Any person who has a right to inspect a public document
may obtain a certified copy of it from the public officer whose custody it is and may produce
before the court for purpose of proving the contents of such public documents. Certified copies
are treated as equivalent to originals.

S.78 Proof of other official documents :

The following public documents may be proved as follows -
(1) Acts, orders or notifications of the General Government in any of its departments, or of the
Crown Representative or of any State Government or any department of any State Government.

By the records of the departments, certified by the heads of those departments respectively, or

By any document purporting to be printed by order of any such Government or as the case may
be, of the Crown Representative;

(2) The proceedings of the Legislatures -by the journals of those bodies respectively, or by
published Acts or abstracts, or by copies purporting The Orient Tavern be printed 3by order of
the Government concerned;
(3) Proclamations, orders or regulations issued by Her Majesty or by the privy Council, or by any
department of Her Majesty’s Government, By copies or extracts contained in the London Gazette,
or purporting to be printed by the Queen’s Printer;
(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country - By
journals published by their authority, or commonly received in that country as such, or by a copy
certified under the seal of the country or sovereign, or by a recognition thereof in some central
Act;
(5) The proceedings of a municipal body in a State, - By a copy of such proceedings certified by
the legal keeper thereof of by a printed book purporting to be published by the authority of such
body,
(6) Public documents of any other class in a foreign country, - by the original, or by a copy
certified by the legal keeper thereof with a certificate under the seal of a notary public, or of an
Indian consul or diplomatic agent, that the copy is duly certified by the officer having the legal
custody of the original and upon proof of the character of the document according to the law of
the foreign country.
This section deals with the special modes of proof are available for the purpose of proving
the contents of certain kinds of public documents like government statutes , proceedings of
legislatures or of a municipal body .The modes available under this section are nor exhaustive
and resort can be had to any other modes also.

There are six kinds of public documents referred in S. 78 which are as under -
1) Acts and notifications
2) proceedings of the legislature
3) Proclamation , orders and regulations of her majesty ir of the privy council.
4) This Acts of the executive or proceedings of foreign legislatures .
5 ) Proceedings of municipal bodies
6) Public documents of any other class in a foreign country.

Case law -
A) Manjula V. Mani 1998 Cr. L. J 1476 (mad).
In this case, Madras High Court Held that Hindu Marriage register is a public document.
Therefore the certificate copies of such register may be obtained from the office of marriage
registrar and the same are admissible in evidence in a criminal charge of bigamy punishable
u/s494 Indian penal code.

B) shyam lal vs State 1998 Cr. l.J. 2879 (All)

The first Information report is a public document and said accused is entitled to have its certified
copy from the police authorites or from the court on Payment of requisite fee.
Conclusion -
Documents are classified into two categories Public And private documents . Any document not
come under the definition of Pubic documents are Private documents. Certified copies of a
public document may be issued only by public officer having its custody and may be produce in
proof of the contents of the public Document.

Differences:
No. Public Document Private Document
1) Section 74 of the Evidence Act Section 75 of the Evidence Act defines Private
defines Public Document. Document.

2) The following documents are Sec. 75. All other documents are private.
public documents —
(1) Documents forming the acts, or
records of the acts—
(i) of the sovereign authority,
(ii) of official bodies and tribunals,
and
(iii) of public officers, legislative,
judicial and executive, of any part
of India or of the Commonwealth,
or of a foreign country;
(2) Public records kept in any
State of private documents.

3) Public documents are kept in the Private documents are kept in the custody of some
custody some special authority. private persons

4) It is prepared by a Public Servant. It is created / prepared out of an agreement between

the parties concerned
5) Certified copies of the Public Certified copies of Private documents can be
documents may be issued to a issued.
person requiring them.

6) Certified copies of Public Certified copies of Private document cannot be

Document can be received in taken in evidence without proof of the original
evidence without proof. document.