Chapter 6 (Evidence)

7/28/2019 Chapter 6 (Evidence)

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CHAPTER 6ORAL EVIDNECE

Content6.0 Oral Evidence 2

6.1 Oral Evidence must be direct 46.2 Hearsay Evidence 56.3 Dying Declaration (Cause of death) 15

6.4 Statement in course of business 20

6.5 Statement against the Interest of Maker 22

6.6 Opinion as to Public Right or Custom 23

6.7 Statement made under Section 32(5) and Section 32(6) 24

6.8 Statement made under Section 32(7) and Section 32(8) 25

6.9 Relevancy of Certain Evidence for Proving,

in Subsequence Proceeding 26

Key Terms 29

Assignment Questions 30

Short Questions 30


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CHAPTER 6-

ORAL EVIDNECE

6.0 Evidence Act rests on the cardinal rule that the best evidence available must

always be given. Different kinds of evidence may be used to prove the same fact.

Every relevant fact may be proved by direct or circumstantial evidence or by both.

Under section (3) of Evidence Act Oral evidence means and includes all

statement which the court permits or requires to be made before it by a witness in

relation to matter of facts under enquiry.

Every fact must be proved in one of the following way. By oral evidence

by documentary evidence.


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By oral evidence is meant the testimony of living persons examined in the

person of the Court or commissioners appointed by the Court.

Oral evidence does not always means words falling form the lip of men.

It may include signs made by a person who on account of some illness or

physical injury is unable to speak.

If they are of sufficient understanding, deaf and dumb person may also give

evidence by signs or through interpreters or by writing if they are literate.

Under Section (59) of Evidence Act all facts, except the contents of

documents, may be proved by oral evidence.


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6.1 Oral Evidence must be direct

Under section (60) of Evidence Act, oral evidence must, in all case

whatever, be direct: that is to say-

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if it refers to a fact which could be seen, it must be evidence of witness who

say 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 the

sense or in that manner,

if it refers to an opinion or to the ground on which that opinion is held, it

must be the evidence of the person who hold that opinion on those ground.

Also in under (60) of Evidence Act the opinion of experts expressed in any

treatise commonly offered for sale, and the ground on which such opinion are held,


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may be proved by the production of such treaties if the author is dead or cannot be

found or had become incapable of giving evidence or cannot be called as a witness

without any amount of delay expense which the court regarded as unreasonable.

Also in under section (60) of Evidence Act 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.

6.2 Hearsay Evidence Under Section (60) of Evidence Act hearsay is excluded. But this rule is

subject to the exception mentioned below in which statement are admissible.


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When a witness beginning to repeat, as a truth, the statement of another

person, he must be stopped. If the party examining the witness wishes to use the

statement as evidence he must show that it is admissible under one or another

section (S.136).

The like rule applies to documentary evidence, (S.144); documents must be

proved by primary evidence except in the cases hereinafter mention. (S.64) And

when oral evidence refers to the existence or condition of any material thing the

court may require so thing to be produce. (S.60)

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Oral evidence must be of direct. The person who has direct knowledge of the

of the fact in question must be come to the Court and give evidence one person

must not repeat the statement another as to what the other saw, heard or perceived,

or as to the opinion that other holds.

Under Section (32) of Evidence Act when a person is dead or cannot be

called his statements on certain matter are admissible.

Under Section (32) of Evidence Act, written or verbal statements relevant

facts made by person who is dead, or who cannot be found, or who has become

incapable of giving evidence, or whose attendance cannot be procured without an

amount of delay or expense which under the case appears to the Court

unreasonable, are themselves relevant facts in the following cases: -

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(1) When it relates to the cause of his dead

(2) When the statement was made by such person in the ordinary courseof business, and in particular when it consists of entry made by him

in book kept in the ordinary course of business, or in the discharge

of professional duty; or of an acknowledgment written or of a

document used in commerce written or signed by him; or of the date

of a letter other document usually dated, written or signed by him.

(3) When the statement is against the pecuniary or proprietary interest

of the person making it or when, if true, it would expose him or would

have exposed him to a criminal prosecution or to a suit for damages.


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(4)When the statement gives the opinion of any such person as to the

existence of any public right or custom or matters of public or general

interest, of the existence of which, if it existed he would have been

likely to be aware, and when such statement was made before any

controversy as to such right or custom or matter has arisen.

(5) When the statement relates to the existence of any relationship by

blood, marriage or adoption between persons as to whose relationship

by blood, marriage or adoption the person making the statement had

special means of knowledge, and when the statement was made before

the question in dispute was raised.


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(6)When the statement relates to the existence of any relationship by blood,

marriage adoption between persons deceased, and is made in any will or deed

relating to the affairs of the family to which any such deceased person belonged, or

in any family pedigree or upon any tomb stone, family portrait or other thing on

which statements are usually made, and when such statement was made before the

question in disputed was raised.

(

(7)When the statement is contained in any deed, will, or other document

which relates to any such transaction as is mentioned in section 13, clause

(a).


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-

(8)When the statement was made by a number of persons, and expressed

feelings or impressions on their part relevant to the matter in question.

1. The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of

which she was ravished,

The question is whether she was ravished by B; or the question

is whether A was killed by B under such circumstances that a

wd e g by wdw.


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Statements made by A as to the cause of his or her death, referring

respectively to the murder, the rape and the actionable wrongs under

considerations are relevant facts.

(2)The qe he de f bh.

An entry in the diary of a deceased surgeon regularly kept in the course of

business, stating that gve dy he eded mhe d deveed he fson, is a relevant fact.

3. The question is whether A was in Yangon on a given day. A statement in the

diary of a deceased lawyer, regularly kept in the course of business, that on a given

day the lawyer, regularly kept in the course of business, that on a given day the

lawyer attended A at a placed mentioned, in Yangon, for the purpose of conferring

with him upon specified business, is a relevant fact.


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4. The question is, whether rent was paid to A for certain land.

ee fm deceed ge , yg h he had received the e

cc d hed de eev fc.

5. The question is whether A, a person who cannot be found wrote a letter on a

certain day. That fact that a letter written by him is dated on that day is relevant.

6. The question is what the price of grain was on a certain day in a particular

market. A statement of the price, made by a deceased merchant in the ordinary

course of business, is a relevant fact.

7. The question is whether A, who is dead, was the father of B.

A statement by A that B was his son, is relevant fact.

8 .The question is what was the date of the birth of A.

ee fm deceed fhe fed, announcing the birth of A on a

given day, is relevant fact.


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A

A A

9. The question is, whether and when, A and B were married.

An entry in a memorandum book by C, the deceased father of B, of h dghe

marriage with A on a given date, is a relevant fact.

B

B

10. A sues B for a libel expressed in a painted caricature exposed in a shop

window. The question is as to the similarly of the caricature and its libelous

character. The remarks of the crowd of spectators on these points may be proved.

A

B


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6.3 Dying Declaration (Cause of death) Section (32) (1) of Evidence Act defines dying declaration. The statement must

be as to the cause of declarant's death, or as to any of circumstances of the

transactions which resulted in his death; this is the cause and circumstances of

death. The person who made the statement must be proved death, under section

(104) of Evidence Act. Then under section 31(1) of Evidence A the statement must

be admissible in evidence. If the person making a dying declaration chances live,

his statement is in admissible. All the statement of dead person is not admissible

evidence, but statement as to the cause of death. The statement as to the cause of

death may written or verbal.

Cause of his death


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eme he ce h deh

In the case "Maung Pan Saing and one V. The Union of Myanmar1

it was

held as follow:-

"The statement of one death person is not a relevant fact with respect the

question about the death of another person and is in inadmissible in evidence under

section (32) 1, Evidence Act.

*

The circumstances of the transaction whch e dec deh

admissible in evidence as follow;

he ce f Pk ym wm . The Union of Myanmar2

w hed ecey h he eme m be mde fe he c

1 1956. B. L. R. 297* .. 2 1941. Ran. 789


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has taken place or that the person making it must be near death or that the

ccmce c y cde he c de whe d whee he deh w

ced. Mch 20, K d h wfe h he w gg ehmpe P

wife head written and asked him to come and receive payment due to him. On

March 21, K left his house in time to catch a train for Benhampore, where P lived

wh h wfe Mch 23, K dmembeed bdy w fd k whch hd

been per chased P. It was held on the trial of P for the murder of D, that the

statement made by K to his wife was admissible in evidence under this clause as a

circumstance f he c whch eed K deh*

The statement of dead person can be written or verbal. It section (32) the

wd eb ed ed f he wd f wde ee. Person who made the

*


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Statement before death shall be competent to testify under section (118) of

Evidence Act. All people shall be competent to testify unless the Court insider that

is they are prevented from understanding the question put to them, or from giving

relational answers to those question, by tender years, extreme old age, dies.

eb

Verb

The values of dying declarations are difference because of circumstance of

the transaction.

Verbal

Written Rational Answer


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In the case of "Maung Po Si and other V. The Union of Myanmar3" it was

held as follow:-

There are many cases in which it is quite safe to convict on a dying

deposition, but there are cases in which there is absolutely no doubt that the

deceased had a good opportunity of knowing who the assailant was and could not

have been mistaken, and at the same time there is no possible reason why he

should be falsely accusing the alleged assailant; but where the recognition though

possible was difficult under the circumstances it is not quite safe the convict

merely on dying deposition or assertions and denunciation of the deceased.**

he ce f Kyin Hoke V The Union of Myanmar4 w hed follow:-

ec mde by deceed pe hd be eted with caution.

The essential points should be boned in mind. (1) Danger of per Jury in fabricating

declaration the truth or falsity of which it is impossible to ascertain. (2) Danger of

letting incomplete statement. (3) The experienced fact that implicit reliance cannot

in all cases be place on the declaration of dying person.

****

3 A.I.R. 1938.Ran. 282** 4 1949, B.L.R (H.C) 154**** .


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he ce f Mg T e . The Union of Myanmar5 w hed

When a conviction rest upon a denunciation it is necessary to exercise caution in

appraising evdey e.

*

6.4 STATEMENT IN COURSE OF BUSINESS

Under section 32(2) of Evidence Act statement course of business are relevant-

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(a) Ordinary course of business means when the statement was made by such

person in particular when it consists of any entry; or

(b)Memorandum made by him in books kept in the ordinary course of business orthe discharge of professional duty; or

5 1954, B.L.r (S.C) 11* ..


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(c) of an acknowledge written or signed by him of the receipt of money, goods,

securities or property of any kind; or

(d) of a document used in commerce written or signed by him ; or

(e) of the date of a letter or other document usually dated, written or signed by him.

In the course of business is the current routine of business which was usually

followed by the person whose declaration it is sought to introduce.

Memdm mde by hm bk kep he dy ce f

be me eme mde dg he ce f be pfe

employment in which the declarant was ordinarily or habitually engaged.


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The entries should have been made by the deceased person himself entries

made by another person at his instance are not admissible under this section.

Entries in account book should in order to be relevant be regularly kept in the

course of business.

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6.5 Statement Against the Interest of Maker

Statement of a deceased person in order to be admissible under this clause

must be a statement of a relevant fact and must be against the proprietary or

pecuniary interest of the person making it. The principle upon which such

statement are regarded as a admissible in evidence is that in the ordinary course of

affairs a person is not likely to make a statement to his own detriment unless it is

true.


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Eg. A statement by a land lord, who was dead, that was a tenant on the land

was a statement against his proprietary interest. The statement is relevant an

admissible in evidence under section 32(3) of Evidence Act.-

6.6 Opinion as to Public Right or Custom. The admissibility of declarations of deceased persons in case of public right

or custom, or matters of public or general interest, is allowed, as these right or

customs are generally of ancient and obscure origin, and may be act upon only at

distant intervals of time direct proof of their existence is not, therefore, demanded.


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6.7 Statement made under Section 32(5) and Section 32(6)- -

Under Section 32(5) of evidence Act, no statement is admissible as evidence

except statement made by experts and persons especially skilled in some subjects.

Statement relating to the existence of any relationship between persons alive or

dead is admissible in evidence under section 32(5) of Evidence Act.

Section 32(6) of Evidence Act refers to the existence of relationship

between deceased persons only. This section does not refer to statement relating to

the existence of any relationship between person alive or dead.

Under section 32(5) the person making statement is an expert or a person

especially skilled in particular subject (a person having special means of

knowledge). Section 32(6) refers will or deed, pedigree table family album photo

and painted picture.


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6.8 Statement made under Section 32(7) and Section 32(8)- -

Under Section 32(7) a statement contained in any deed, will or other

document which relates to a transaction by which the right or custom in question

was created, modified, recognized, asserted or denied, is admissible.

Section 32(8) refers to when a number or person assemble together to give

evidence one to common statement, which statement express the feelings or

impressions made in their hands at the time of making it. Such statement is

admissible in evidence.


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6.9 Relevancy of Certain Evidence for Proving, in Subsequence Proceeding.

The evidence given by a witness in judicial proceeding, or before any person

authorized law to take it, is relevant in subsequent judicial proceeding or a later

stage of the same proceeding. Such cases are five in number.

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(a) when the witness is dead;

(b) when he cannot be found;

(c) when he is incapable of giving evidence;

(d) when he is kept out of the way by the adverse party; and

(e) when his presence cannot be obtained without any amount of delay or

expense which the court considers unreasonable.

)

The use of such secondary evidence is limited by three provisions under

section (33) such evidence will be only admissible-


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(1) it the proceeding was between the same parties, or their representative

interest:

(2) if the adverse party in the first proceeding had the right and opportunity

to cross-exam and

(3) if the question in issued were substantially to contradict a witness

(S.155) or corroborate him (S.157)

There are distinctions between section 32 (1) and section (33). Section (32)

refers the statement must be as to the cause f dec deh, y f he

circumstances of the transaction which resulted in his death.

Section (33) refers deposition which are admissible after proof that the

person, who made them is dead or cannot be produced before the Court to given

Evidence. Witness can be produced before the Court to give evidence according to


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the provision of section (33) of Evidence Act. The ruling which refer to section

(33) of Evidence Act can be studied as follow:

On studying above rulings, evidence for proving in subsequence proceeding

must be proved according to section (33) of Evidence Act.

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Key TermsCardinal rule

Circumstantial evidence

Testimony

Hearsay evidence

Dispute

Pedigree table

Tombstone

Cause of death Dying deposition

Dying declaration

Verbal

Testify

Cross-examing

Public right

Custom

Charge

Accused person


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Assignment Questions1. What are the exceptions to the rule that oral evidence must be direct?2. Explain the term hearsay evidence. Under what circumstance is it admissible

in evidence?

3. Explain the term dying declarations. State briefly the usefulness of the factsrelating to the cause of death.

4. Explain evidence value of declarations.5. When is evidence given by a witness in a judicial proceeding, relevant for

the purpose of proving, in a subsequent proceeding?

Short Questions1. Explain the term oral evidence.2. Discuss oral evidence must be direct.3. Write short note hearsay evidence.4. Explain the opinion as to public right or custom.

Chapter 6 (Evidence)

Documents

Transcript of Chapter 6 (Evidence)