EVIDENCE CANNOT BE TAKEN ON AFFIDAVIT IN MAINTENANCE PROCEEDING OR UNDER DV ACT-MP HIGH COURT

Madhya Pradesh High Court

Rama Prasanna Tiwari vs Smt. Ashima And Anr.

Dated : 24 February, 2005

Equivalent citations: 2005 (2) MPHT 192

Author: K Lahoti

ORDER K.K. Lahoti, J.

1. Petitioner has challenged order dated 30-10-2004 passed by the Family Court, Rewa in Case No. 1/2004 by which the Family Court has rejected the application filed by the petitioner under Section 126 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.PC’).

2. Before the Family Court, an application under Section 125, Cr.PC has been filed by the respondents for maintenance. In the said proceedings, the respondents filed their affidavit in evidence and petitioner has been directed to cross-examine on the affidavit. At this stage, petitioner raised an objection in writing that in the proceedings, evidence can not be taken on affidavit, but the respondent should be examined in the Court in the presence of petitioner or his Counsel. Family Court relying on Section 10(3) of the Family Court Act found that the Family Court is having jurisdiction to adopt its own procedure for recording evidence and relying on provisions of Code of Civil Procedure held that the affidavit can be received in evidence and rejected the application of the petitioner. This order is under challenge in this petition.

3. Learned Counsel for petitioner submits that under Sub-section (2) of Section 10 there is specific provision that subject to the other provisions of this Act and the Rules, the provisions of the Code of Criminal Procedure, 1973 or the Rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before the Family Court. Section 125 falls under Chapter IX of the Cr.PC and the procedure envisaged under Section 126, Cr.PC shall apply in the proceedings and not the provisions of Code of Civil Procedure. It is submitted that order passed by the Family Court be set aside and the matter be remitted back to the Family Court to decide the matter in accordance with law.

4. Learned Counsel appearing for respondents supported the order and submitted that in view of Sub-section (3) of Section 10 of the Family Courts Act, the Family Court has rightly adopted the procedure and there is no fault in the procedure. Petitioner shall get the opportunity to cross-examine on the affidavit. This will save the time of the Trial Court and no prejudice shall be caused to the petitioner.

5. To consider the rival contentions of the parties, Section 10 of the Family Courts Act, 1984 may be seen :

“Section 10. Procedure generally.– (1) Subject to the other provisions of this Act and the Rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.

(2) Subject to the other provisions of this Act and the rules, the provision of the Code of Criminal Procedure, 1973 or the Rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one Party and denied by the other.”

Aforesaid provisions specifically provide that in the proceedings under Chapter IX of Cr.PC before a Family Court, provisions of Code of Criminal Procedure and the rules made thereunder shall apply. This is specific provision under the Act which provides the procedure for the proceedings under Chapter IX of the Cr.PC. Though Family Courts are vested with the powers to decide the matter under Hindu Marriage Act and other Acts, but so far as proceedings under Chapter IX of the Cr.PC are concerned, there is specific provision to adopt same procedure as envisaged in the Cr.PC. For the proceedings under Section 125 of the Cr.PC, procedure is envisaged under Section 126 of the Cr.PC. For ready reference, Section 126, Cr.PC reads as under :–

“Section 126. Procedure.– (1) Proceedings under Section 125 may be taken against any person in any district–

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-case : Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate m ay think just and proper.

(3) The Court in dealing with applications under Section 125 shall have power to make such order as to costs as may be just.”

Sub-section (2) of Section 126, Cr.PC specifically provides that all evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made. In the present case, respondents have sought an order against the petitioner for their maintenance. In these circumstances, evidence has to be recorded in the presence of the petitioner. Affidavit evidence as has been produced by the respondents can not be said to be evidence recorded in the presence of the petitioner. Provisions of Code of Civil Procedure are not applicable for the proceedings under Chapter IX of the Cr.PC. In the circumstances, Family Court ought to have adopted the procedure envisaged under Section 126 of the Cr.PC. In view of the aforesaid provision, until and unless provision is made, the Family Court has to follow the procedure as envisaged under Section 126, Cr.PC for the proceedings under Chapter IX, Cr.PC. The Family Court has committed an error in directing the parties to file affidavit in evidence and further in permitting the other party to cross-examine on affidavit. According to provisions under Section 126, Cr.PC, evidence has to be recorded in the presence of the person against whom an order of maintenance is proposed to be made. Consequently, impugned order passed by the Family Court, Rewa is, hereby, set aside and the Family Court, Rewa is directed to record the evidence as envisaged under Section 126 of the Cr.PC.

No order as to costs.

C.C. as per rules.

K.K. Lahoti, J.

24 February, 2005


 

Production and Effect of Circumstantial Evidence

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It has been consistently laid down by Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

 We may also make a reference to a decision of Supreme Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:

“In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence….”.

In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In State of U.P. v. Ashok Kumar Srivastava, (AIR 1992 SC 840), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:

(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt,

(5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted”.

There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by Supreme Court as far back as in 1952.

In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of Supreme Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.


Examination of Circumstances in State of U.P. v. Ashok Kumar Srivastava, (AIR 1992 SC 840) :  An evaluation

The circumstances relied upon by the prosecution and accepted by the courts below against the appellant are:

(i) that work of clearance of Juliflora jungle and uprooting of stumps was falsely allotted and without any work being done a cheque for Rs.15643/- was given to the contractor which was encashed by him;

(ii) that there has been flagrant violations of provisions of PWD Codes etc. in the matter of preparation of estimate; accord of sanction; drawing up of the agreement and allotment of work on nomination basis to the appellant;

(iii) that in the measurement book the area where work had been done was recorded by the officials in excess to help the appellant, without having actually visited the site;

(iv) that the allotment of work by nomination was irregular and in violation of codal rules. Major work had been split up so as to bring up the allotment of work within the pecuniary jurisdiction of the Executive Engineers;

(v) the terms of the agreement Ex. P5 concluded between A1 and A4 are ambiguous;

(vi) preparation of bill and making of separate payment for removal of stumps and clearance of jungle was in breach of the codal provisions.

Strictly speaking the above cannot be called “circumstances” against the appellant as the same are more in the nature of “allegations” of the prosecution against the accused. Even otherwise, so far as circumstances 2 to 6 (supra) are concerned, they concern the officials of the department, and may be relevant in the case of the appellant, if the charge of conspiracy can be said to have been established. The charge of conspiracy against the accused was that without any work being done by him, payment was made to him and various documents fabricated to justify the payment, which was misappropriated. Circumstances 1 and 3 derive their colour and content from the aforesaid circumstances.

In appreciating the Supreme court observed therein :

The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution vidence must be rejected on the slightest loubt because the law permits rejection if the doubt is reasonable and not otherwise. We are also conscious of the fact that the presumption of innocence is strengthened, certainly not weakened, by their acquittal by the High Court and ordinarily this Court is slow to interfere with an order of acquittal in exercise of its extraordinary powers under S. 136 of the Constitution. However, in the present case the facts found proved as discussed earlier are (i) the accused were unhappy about the cash and articles given by way of dowry at the time of the ‘tilak’ ceremony, (ii) the accused tatinted, tormented and tortured Meera for the insufficiency of the dowry amount, (iii) a few days before the incident while at Banaras there was a heated argument and then Ashok returned to Lucknow without Meera, (iv) Meera entreated her father-in-law to permit her to join Ashok but the latter refused saying she will have to rot at Banaras alone unless the dowry amount was made good, (v) ignoring her father-in-law’s refusal Meera went to Lucknow, (vi) the two accused Rajendra Lal and Sudha followed her to Lucknow, (vii) while at Lucknow all the three illtreated her, (viii) Meera was found on fire at about 2.30 or 2.45 a.m., (ix) while she was burning the three accused who alone were inside came out of the room and stood in the verandah chit-chatting unconcerned about her plight, (x) none of them tried to help Meeral (xi) soon after that the house was locked and the accused could not be found, (xii) while the two accused were apprehended on the 23rd Ashok could not be traced till he surrendered on 5th September, 1974, and (xiii) false explanation or statements were made to explain away their conduct.


 

Evidence of an interested witness should not be equated with a tainted witness

Supreme  Court in Sarwan Singh and Ors. v. State of Punjab, (1976) 4 SCC 369 and Sucha Singh and Anr. v. State of Punjab, (2003) 7 SCC 643, it is not the law that the evidence of an interested witness should be equated with that of a tainted witness or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of the interested witness has a ring of truth such evidence could be relied upon even without corroboration. This submission of the learned Counsel is, therefore, rejected.

Law of Evidence in the UK

SUBJECT: EVIDENCE

  • Documentary Evidence Act 1882
  • Criminal Evidence Act 1898
  • Evidence Act 1851
  • Civil Evidence Act 1968
  • The Electronic Presentment of Instruments (Evidence of Payment and Compensation for Loss) Regulations 2018
  • Police and Criminal Evidence Act 1984
  • Bankers’ Books Evidence Act 1879
  • Evidence and Powers of Attorney Act 1943
  • Oaths And Evidence (Overseas Authorities And Countries) Act 1963
  • Evidence (Scotland) Act 1852
  • Evidence (Scotland) Act 1840
  • Criminal Evidence (Witness Anonymity) Act 2008
  • Evidence (Proceedings in Other Jurisdictions) Act 1975
  • Civil Evidence (Scotland) Act 1988
  • Youth Justice and Criminal Evidence Act 1999
  • Civil Evidence (Family Mediation) (Scotland) Act 1995
  • The Evidence Through Television Links (England and Wales) Order 2013
  • Criminal Appeal Act 1968
  • The Child Support (Information, Evidence and Disclosure) Regulations 1992
  • The Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005
  • The Evidence in Divorce Actions (Scotland) Order 1989
  • The Children’s Evidence (Northern Ireland) Order 1995

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Corroboration of testimony of prosecutrix as a condition for judicial reliance is not a requirement of law in Rape trial

A conviction can be founded on the testimony of prosecutrix alone unless there are compelling reasons for seeking corroboration. It is further held that her evidence is more reliable than that of an injured witness.

AIR 2005 SC 3570 : (2005) 3 Suppl. SCR 703 : (2005) 8 SCC 122 : JT 2005 (12) SC 150 : (2005) 7 SCALE 663 : (2005) CriLJ SC 4375 Continue reading

Policy to reopen evidence once closed by the order of Court in a Civil suit.

  • “we are satisfied that in the interests of justice and to prevent abuse of the process of court, the trial court ought to have considered whether it was necessary to re-open the evidence and if so, in what manner and to what extent further evidence should be permitted in exercise of its power under Section 151 of the Code”.
  • The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic.
  • The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence.

Continue reading

Witnesses can be summoned under Section 311 Cr.P.C. in spite of order closing prosecution Evidence

Supreme Court held that, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded by the Court and by the APP and tried to be disposed of as if the prosecution has not led any EVIDENCE. From the facts of the case, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Addl. Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge to issue summons to the Investigating Officer if he failed to remain present at the time of the trial of the case. The presence of Investigating Officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. It should be well understood that the prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch. Continue reading

How is it possible to rectify or undo the lapse if it pertains to a vital piece of evidence?

A three-judge bench of Supreme Court has observed in Shivaji Sahabrao Bobade vs. State of Maharashtra (1973) 2 SCC 793 that such an omission does not ipso facto vitiate the proceedings unless prejudice was established by the accused. If the accused succeeds in showing any prejudice it is open to the appellate court to call upon the counsel for the accused to show what explanation the accused has got regarding the circumstances not put to him. Continue reading

What is meant by an evidence of a formal character?

In this context Section 296 of the Code can be read:

(1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavits. Continue reading

A false allegation of rape can cause distress, humiliation and damage to the accused

It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.

Held: the offence of rape does not stand proved.

Evidence: It was also argued that the material witness, namely, milkman Mahavir, who informed the Aunt about the victim lying unconscious in front of the house of one Pappu, was not examined, which is fatal to the case of the prosecution.

Even Pappu before whose house the victim was allegedly lying unconscious was also not examined.

Continue reading