Evidence in Yajnavalkya Smriti [Sanskrit]

[५. साक्षिप्रकरणम्]

तपस्विनो दानशीलाः कुलीनाः सत्यवादिनः ।
धर्मप्रधाना ऋजवः पुत्रवन्तो धनान्विताः ॥ २.६८ ॥

त्र्यवराः साक्षिणो ज्ञेयाः श्रौतस्मार्तक्रियापराः ।
यथाजाति यथावर्णं सर्वे सर्वेषु वा स्मृताः ॥ २.६९ ॥

स्त्रीबालवृद्धकितव- मत्तोन्मत्ताभिशस्तकाः ।
रङ्गावतारिपाखण्डि- कूटकृद्विकलेन्द्रियाः ॥ २.७० ॥

पतिताप्तार्थसंबन्धि- सहायरिपुतस्कराः ।
साहसी दृष्टदोषश्च निर्धूताद्यास्त्वसाक्षिणः ॥ २.७१ ॥

उभयानुमतः साक्षी भवत्येकोऽपि धर्मवित् ।
सर्वः साक्षी संग्रहणे चौर्यपारुष्यसाहसे ॥ २.७२ ॥

साक्षिणः श्रावयेद्वादि- प्रतिवादिसमीपगान् ।
ये पातककृतां लोका महापातकिनां तथा ॥ २.७३ ॥

अग्निदानां च ये लोका ये च स्त्रीबालघातिनाम् ।
स तान् सर्वानवाप्नोति यः साक्ष्यमनृतं वदेत् ॥ २.७४ ॥

सुकृतं यत्त्वया किंचिज्जन्मान्तरशतैः कृतम् ।
तत्सर्वं तस्य जानीहि यं पराजयसे मृषा ॥ २.७५ ॥

अब्रुवन् हि नरः साक्ष्यमृणं सदशबन्धकम् ।
राज्ञा सर्वं प्रदाप्यः स्यात्षट्चत्वारिंशकेऽहनि ॥ २.७६ ॥

न ददाति हि यः साक्ष्यं जानन्नपि नराधमः ।
स कूटसाक्षिणां पापैस्तुल्यो दण्डेन चैव हि ॥ २.७७ ॥

द्वैधे बहूनां वचनं समेषु गुणिनां तथा ।
गुणिद्वैधे तु वचनं ग्राह्यं ये गुणवत्तमाः ॥ २.७८ ॥

यस्योचुः साक्षिणः सत्यां प्रतिज्ञां स जयी भवेत् ।
अन्यथा वादिनो यस्य ध्रुवस्तस्य पराजयः ॥ २.७९ ॥

उक्तेऽपि साक्षिभिः साक्ष्ये यद्यन्ये गुणवत्तमाः ।
द्विगुणा वान्यथा ब्रूयुः कूटाः स्युः पूर्वसाक्षिणः ॥ २.८० ॥

पृथक्पृथग्दण्डनीयाः कूटकृत्साक्षिणस्तथा ।
विवादाद्द्विगुणं दण्डं विवास्यो ब्राह्मणः स्मृतः ॥ २.८१ ॥

यः साक्ष्यं श्रावितोऽन्येभ्यो निह्नुते तत्तमोवृतः ।
स दाप्योऽष्टगुणं दण्डं ब्राह्मणं तु विवासयेत् ॥ २.८२ ॥

वर्णिनां हि वधो यत्र तत्र साक्ष्यनृतं वदेत् ।
तत्पावनाय निर्वाप्यश्चरुः सारस्वतो द्विजैः ॥ २.८३ ॥

Lawline

[६. लेख्यप्रकरणम्]

यः कश्चिदर्थो निष्णातः स्वरुच्या तु परस्परम् ।
लेख्यं तु साक्षिमत्कार्यं तस्मिन् धनिकपूर्वकम् ॥ २.८४ ॥

समामासतदर्धाहर्- नामजातिस्वगोत्रकैः ।
सब्रह्मचारिकात्मीय- पितृनामादिचिह्नितम् ॥ २.८५ ॥

समाप्तेऽर्थे ऋणी नाम स्वहस्तेन निवेशयेत् ।
मतं मेऽमुकपुत्रस्य यदत्रोपरि लेखितम् ॥ २.८६ ॥

साक्षिणश्च स्वहस्तेन पितृनामकपूर्वकम् ।
अत्राहममुकः साक्षी लिखेयुरिति ते समाः ॥ २.८७ ॥

उभयाभ्यर्थितेनैतन्मया ह्यमुकसूनुना ।
लिखितं ह्यमुकेनेति लेखकोऽन्ते ततो लिखेत् ॥ २.८८ ॥

विनापि साक्षिभिर्लेख्यं स्वहस्तलिखितं तु यत् ।
तत्प्रमाणं स्मृतं लेख्यं बलोपधिकृतादृते ॥ २.८९ ॥

ऋणं लेख्यकृतं देयं पुरुषैस्त्रिभिरेव तु ।
आधिस्तु भुज्यते तावद्यावत्तन्न प्रदीयते ॥ २.९० ॥

देशान्तरस्थे दुर्लेख्ये नष्टोन्मृष्टे हृते तथा ।
भिन्ने दग्धेऽथवा छिन्ने लेख्यमन्यत्तु कारयेत् ॥ २.९१ ॥

संदिग्धलेख्यशुद्धिः स्यात्स्वहस्तलिखितादिभिः ।
युक्तिप्राप्तिक्रियाचिह्न- संबन्धागमहेतुभिः ॥ २.९२ ॥

लेख्यस्य पृष्ठेऽभिलिखेद्दत्त्वा दत्त्वार्णिको धनम् ।
धनी वोपगतं दद्यात्स्वहस्तपरिचिह्नितम् ॥ २.९३ ॥

दत्त्वार्णं पाटयेल्लेख्यं शुद्ध्यै वान्यत्तु कारयेत् ।
साक्षिमच्च भवेद्यद्वा तद्दातव्यं ससाक्षिकम् ॥ २.९४ ॥

Lawline

Source :- Yajnavalkya Smriti [Sanaskrit]

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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Strict rules of Evidence and standard of proof in it do not apply to departmental proceedings or domestic tribunal.

It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstances to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred with as much practical as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt “but” the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straight Jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries. 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.

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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

The scope and ambit of Sec. 319 of the Code of Criminal Procedure

  • Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it, if it is satisfied that any person other than accused has committed an offence and he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier.
  • The word “EVIDENCE” in Section 319 contemplates EVIDENCE of witnesses given in Court. Under sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. (See Lok Ram v. Nihal Singh and Anr. (AIR 2006 SC 1892)).

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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

Evidence in Intercepted Phone calls

Source : Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra (2013)3SCC(Cri)481

360. The most clinching evidence regarding conspiracy comes from the recordings of intercepted telephone calls between the terrorists and their co-conspirators and collaborators sitting in a foreign land that, in light of the over all facts and circumstances of the case, can only be Pakistan. Unlike the appellant and his dead companion, Abu Ismail (deceased accused no.1), who were constantly on the move, the other terrorists had gone to Hotel Taj, Hotel Oberoi and Nariman House and were holed up there, even taking hostages for some time. From their respective positions they were in regular contact with their collaborators and were constantly receiving moral support, tactical advice and guidance from them by means of mobile phones. Continue reading

Identification by Photograph and Evidence in Digital photography

Source: Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra (2013)3SCC(Cri)481

While dealing with the CST episode we must take note of two other witnesses. Their evidence is extraordinary in that they did not only witness the incidents but also made a visual record of the events by taking pictures of the two killers in action and also of their victims. The pictures taken by these two witnesses, without anything else, are sufficient to conclude the issue of identification of Kasab and Abu Ismail (deceased accused no.1) as the killers of CST. Both the witnesses are professional photographers working with the Times of India group. Both of them, caring little for their own safety and displaying exemplary professionalism, followed the killers practically at their heels. Their ocular testimony together with the photographs taken by them provides a graphic picture of the carnage at CST. Continue reading