Law of Evidence

By Nizam Azeez Sait,

MODULE No. 13

STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES

This is the 13th Module of the subject ‘Law of Evidence’, covering Section 28 to 32 of the Bharatiya Sakshya Adhiniyam (Sections 34, to 38 of the Evidence Act) which are grouped together and titled as “Statements made under special circumstances” including relevancy of entries in books of account and relevancy of entry in public record made in performance of duty and Section 33 (Section 39 of the Evidence Act) under the sub heading “How much of Statement is to be proved”,

MODULE INDEX

1. Relevancy of Entries in Books of Account – Section 28

1.2. Loose Sheets of Paper is not Book for the Purpose of Section 28 the Bharatiya Sakshya Adhiniyam (Section 34 of the Evidence Act)
1.3. Meanings of ‘Account’, ‘Account Book’ and ‘Regularly Kept in the Course of Business’
Account
‘Account Book’
‘Business’
‘Regularly Kept in the Course of Business’
2. Evidentiary Value of Entries in Books of Account
3. Central Bureau of Investigation v V C Shukls AIR 1998 SC 1406 – Jain Diary Case Explained
4. Relevancy of entry in public record made in performance of official duty – Section 29 of the Bharatiya Sakshya Adhiniyam

Basic Elements of Section 29
Public Documents under Section 74
Proof of Public Documents by Certified Copies under Section 77
Probative Value of Entries in Public Record
Revenue Record- Mutation Does Not Confer Title
Relevancy Of Entries In School Register – Date of Birth
Proof of Age of Victims of Offences
Examples of Public Records
Summing Up of Section 29
5. Relevancy of statements in maps, charts and plans – Section 30
Site Plan/Mahazar by prepared by Police officer

6. Relevancy of statement as to fact of public nature contained in certain Acts or notifications – Section 31
7. Facts Stated In Gazette Admissible under Sections 29, 31 Read with Section 80 of the Bharatiya Sakshya Adhiniyam (Ss. 35,S.37 Read With S. 81 Of The Evidence Act, 1872).
8. Relevancy of statements as to any law contained in law-books – Section 32
9. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers – Section 33

1. Relevancy of Entries in Books of Account – Section 28

First of all, we will deal with Section 28 of the Bharatiya Sakshya Adhiniyam (Section 34 of the Evidence Act) relating to entries in books of account including those maintained in an electronic which reads as follows:

Entries in the books of account, including those maintained in an electronic form, regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

Illustration. A sues B for one thousand rupees, and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt.

Under section 28 of the Bharatiya Sakshya Adhiniyam, a party to the proceeding can prove statements of entries in account books regularly kept in the course of business. This is an exception to the general rule that self-serving statements are not admissible. Self-serving statements are generally barred because if permitted it would facilitate persons to fabricate evidence for themselves. Though by virtue of section 28, a party to the proceeding can prove statements of entries in account books regularly kept in the course of business, it comes with a caveat/caution that such statements shall not alone be sufficient evidence to charge any person with liability.

For relevancy under Section 28 following conditions must be fulfilled:

  1. Entries must be made in the books of account (including in the electronic form).
  2. Books of Account must have been kept regularly in the course of business.
  3. Entries must refer to a matter under Court’s Enquiry.

In Kunjamma and Others v. Govinda Kurukkal, 1960 KLT 184 High Court of Kerala observed that:

“No particular set of rules or system of keeping accounts is prescribed under S.34 of the Evidence Act (Section 28 of the Bharatiya Sakshya Adhiniyam). Even the roughest memoranda of accounts kept by petty shop – keepers are admissible if they are authentic.

1.1 Loose Sheets of Paper is not Book for the Purpose of Section 28 the Bharatiya Sakshya Adhiniyam (Section 34 of the Evidence Act)

In Central Bureau of Investigation v V C Shukla AIR 1998 SC 1406, it was reiterated that loose sheets of paper is not a book, the Court observed:

‘Book’ ordinarily means a collection of sheets of paper or other material, blank, written, or printed, fastened or bound together so as to form a material whole. Loose sheets or scraps of paper cannot be termed as ‘book’ for they can be easily detached and replaced. In dealing with the word ‘book’ appearing in S.34 in Mukundram v. Dayaram [AIR 1914 Nag. 44……, the Court observed: – 

“In its ordinary sense it signifies a collection of sheets of paper bound together in a manner which cannot be disturbed or altered except by tearing apart. The binding is of a kind which is not intended to be moveable in the sense of being undone and put together again. A collection of papers in a portfolio, or clip, or strung together on a piece of twine which is intended to be untied at will, would not, in ordinary English, be called a book…………………….. I think the term “book” in S.34 (Section 28 of the Bharatiya Sakshya Adhiniyam) aforesaid may properly; be taken to signify, ordinarily, a collection of sheets of paper bound together with the intention that such binding shall be permanent and the papers used collectively in one volume. It is easier however to say what is not a book for the purposes of S.34 (Section 28 of the Bharatiya Sakshya Adhiniyam), and I have no hesitation in holding that unbound sheets of paper in whatever quantity, though filled up with one continuous account, are not a book of account within the purview of S.34 (Section 28 of the Bharatiya Sakshya Adhiniyam).”

a. Meanings of ‘Account’, ‘Account Book’ and ‘Regularly Kept in the Course of Business’

The words Account, Account Book and Business in Section 34 should be given its ordinary/general meaning.

In Central Bureau of Investigation v V C Shukla AIR 1998 SC 1406, it was further observed:

“It cannot be gainsaid that the words ‘account’, ‘books of account’, ‘business’ and ‘regularly kept’ appearing in S.34 (Section 28 of the Bharatiya Sakshya Adhiniyam) are of general import. Necessarily, therefore, such words must receive a general construction unless there is something in the Act itself, such as the subject matter with which the Act is dealing, or the context in which the words are used, to show the intention of the legislature that they must be given a restrictive meaning.”

‘Account’

Black’s Law Dictionary defines ‘Account’ as:

 ‘A detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contracts or some fiduciary relation. A statement in writing, of debits and credits, or of receipts and payments; a list of items of debits and credits, with their respective dates. A statement of pecuniary transactions; a record or course of business dealings between parties; a list of statement of monetary transactions, such as payments, losses, sales, debits, credits, accounts payable, accounts receivable, etc., in most cases showing a balance or result of comparison between items of an opposite nature.’

‘Account Book’

The meaning of ‘book of account’ as ascribed in Mukundram v. Dayaram AIR 1914 Nag. 44, is quoted with approval in Central Bureau of Investigation v V C Shukla:

“To account is to reckon, and I am unable to conceive any accounting which does not involve either addition or subtraction or both of these operations of arithmetic. A book which contains successive entries of items may be a good memorandum book; but until those entries are totalled or balanced, or both, as the case may be, there is no reckoning and no account. In the making of totals and striking of balances from time to time lies the chief safeguard under which books of account have been distinguished from other private records as capable of containing substantive evidence on which reliance may be placed.”

‘Business’

In Central Bureau of Investigation v V C Shukla, it was further observed:

In Narain Swadesh Weaving Mills v. The Commissioner of Excess Profits Tax [1955 (1) SCR 952], a five Judge bench of this Court held that the word ‘business’ connotes some real, substantial and systematic or organised course of activity or conduct with a set purpose; and the above interpretation was quoted with approval in Mazagaon Dock Lid. v. The Commissioner of Income Tax and Excess Profits Tax [1959 SCR 848]. Again, in Barendra Prasad Ray v. I. T. O. [1981 (2) SCC 693] this Court observed that the word ‘business’ is one of wide import and it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. The activities of the Jain brothers, as sought to be projected by the prosecution now on the basis of the materials collected during investigation (detailed earlier) would, therefore, be ‘business’ for they were being carried on continuously in an organised manner, with a set purpose (be it illegal) to augment their own resources. MR 71/91 is, therefore, a book of account kept in the course of business.

‘Regularly Kept in the Course of Business’

“Regularly” means keeping according to a certain method or form or a system, ie systematically. The expression “Regularly Kept” in Section 28 of the Bharatiya Sakshya Adhiniyam (Section 34 of the Evidence Act) implies that accounts are maintained with some sort of continuity.

The regularity in making the entries in books of account is a question of fact and determination of the question whether a book is a book of account depends on the facts of each case. In Central Bureau of Investigation v V C Shukla, it was further observed:

“The test of regularity of keeping accounts by a shopkeeper who has daily transactions cannot be the same as that of a broker in real estates.”

2. Evidentiary Value of Entries in Books of Account

It is specifically stated in Section 28 of the Bharatiya Sakshya Adhiniyam (Section 34 of the Evidence Act ) that such statements shall not alone be sufficient evidence to charge any person with liability.

In Thariyan V. O. v. St. Theresas Timber Industries, 2017 KHC 102 High Court of Kerala observed in paragraph No.17 that:

“……… It has become trite law that as per S.34 of the Evidence Act(Section 28 of the Bharatiya Sakshya Adhiniyam), the entries in books of accounts alone shall not be sufficient evidence to clothe a person with liability and, therefore, some independent evidence has to be given to substantiate the claim.”

It is further observed in paragraph No. 23 as follows.

“As to what amounts to independent evidence sufficient to corroborate any such document falling under S.34 of the Evidence Act, (Section 28 of the Bharatiya Sakshya Adhiniyam) depends upon the facts and circumstances of each case. What has to be considered is whether there is any other evidence, except the entries in the books of accounts being relied on, to justify the claim made by the person concerned in order to show that the entry is true and correct…..”

In Yesuvadiyan v. Subba Naicker [AIR 1919 Mad. 132] it was observed:

  1. 34, Evidence Act (Section 28 of the Bharatiya Sakshya Adhiniyam), lays down that the entries in books of account, regularly kept in the course of business are relevant, but such a statement will not alone be sufficient to charge any person with liability. That merely means that the plaintiff cannot obtain a decree by merely proving the existence of certain entries in his books of account even though those books are shown to be kept in the regular course of business. He will have to show further by some independent evidence that the entries represent real and honest transactions and that the moneys were paid in accordance with those entries. The legislature however does not require any particular form or kind of evidence in addition to entries in books of account, and I take it that any relevant facts which can be treated as evidence within the meaning of the Evidence Act would be sufficient corroboration of the evidence furnished by entries in books of account if true.”

“If no other evidence besides the accounts were given, however strongly those accounts may be supported by the probabilities, and however strong may be the evidence as to the honesty of those who kept them, such consideration could not alone with reference to S.34, Evidence Act (Section 28 of the Bharatiya Sakshya Adhiniyam), be the basis of a decree.”

In Beni v. Bisan Dayal [AIR 1925 Nag. 445] it was observed that entries in books of account are not by themselves sufficient to charge any person with liability, the reason being that a man cannot be allowed to make evidence for himself by what he chooses to write in his own books behind the back of the parties. There must be independent evidence of the transaction to which the entries relate and in absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another.

In Hira Lal v. Ram Rakha [AIR 1953 Pepsu 113] the High Court, while negativing a contention that it having been proved that the books of account were regularly kept in the ordinary course of business and that, therefore, all entries therein should be considered to be relevant and to have been proved, said that the rule as laid down in S.34 of the Act (Section 28 of the Bharatiya Sakshya Adhiniyam)that entries in the books of account regularly kept in the course of business are relevant whenever they refer to a matter in which the Court has to enquire was subject to the salient proviso that such entries shall not alone be sufficient evidence to charge any person with liability. It is not, therefore, enough merely to prove that the books have been regularly kept in the course of business and the entries therein are correct. It is further incumbent upon the person relying upon those entries to prove that they were in accordance with facts.

Veracity of entries in ledger maintained properly and regularly cannot be doubted on the ground that day books supporting the ledges were not produced (See R V E Venkatachalam Gounder v Arulmigu Vishveswara Swami & V. P Temple AIR 2003 SC 4548)

3. Central Bureau of Investigation v V C Shukls AIR 1998 SC 1406 – Jain Diary Case Explained

In course of the search in J. K Jain’s premises CBI recovered, besides other articles and documents, two diaries, two small note books and two files containing details of receipts of various amounts from different sources recorded in abbreviated forms of digits and initials and details of payments to various persons recorded in similar fashion…. those entries revealed payments amounting to Rs. 65.47 crores. It further revealed that the Jain had acted as middlemen in the award of certain big projects in the power sector of the Government of India to different bidders; that they had official dealings with politicians and public servants whose names were recorded in the diaries and the files; and that some of them had accepted illegal gratification other than legal – remuneration from Jains as a reward for giving them and the companies they own and manage various contracts….. In one of the above charge – sheets Shri Lal Krishna Advani, who at the material time was a member of the Parliament, and the Jains figured as accused and in another Shri V. C. Shukla, also a member of Parliament, figured along with the Jains. After analysing the facts in the light of Section 34 of the Evidence Act (Section 28 of the Bharatiya Sakshya Adhiniyam) the Supreme Court discharged Shri Lal Krishna Advani and Shri V. C. Shukla. The Court held:

“39.  ……even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person. Keeping in view the above principles, even if we proceed on the assumption that the entries made in MR 71/91 are correct and the entries in the other books and loose sheets (which we have already found to be not admissible in evidence under S.34) are admissible under S.9 of the Act to support an inference about the formers’ correctness still those entries would not be sufficient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evidence in support thereof. “In the present case there is no evidence against the petitioners except the diaries, note books and the loose sheet with regard to the alleged payments). The said evidence is of such a nature which cannot be converted into legal evidence against the petitioners.

There is no evidence in the instant case with regard to the monies which are alleged to have been, received by Jains for the purpose of disbursement. There is no evidence with regard to the disbursement of the amount. Then there is no evidence with regard to the fact to prove prima facie that the petitioners i.e. Shri L.K. Advani and Shri V.C. Shukla accepted the alleged amounts as a motive or reward for showing favour or disfavour to any person and that the said favours and disfavours were shown in the discharge of their duties as public servants as contemplated by S.7 of the Act (Prevention of Corruption Act, 1988). Thus, the court will have to presume all the above facts in the absence of any evidence in connection therewith to frame charges against the petitioners.”

For relevancy under Section 28 of the Bharatiya Sakshya Adhiniyam (Section 34 of the Evidence Act) following conditions must be fulfilled:

  1. Entries must be made in the books of account (including in the electronic form).
  2. Books of Account must have been kept regularly in the course of business.
  3. Entries must refer to a matter under Court’s Enquiry.

4. Relevancy of entry in public record made in performance of official duty – Section 29 of the Bharatiya Sakshya Adhiniyam

Section 29 of the Bharatiya Sakshya Adhiniyam (Section 35 of the Evidence Act) reads as follows:

An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record, is kept, is itself a relevant fact.

Basic Elements of Section 29

The following conditions are to be fulfilled before a document can be admissible under this section.

(1) the document must be in the nature of an entry in any public or other official book, register or record,

(2) it must state a fact in issue or a relevant fact,

(3) the entry must be made by a public servant in the discharge of his official duties or in performance of his duties especially enjoined by the law of the country in which the relevant entry is kept. (See Birad Mal Singhvi v. Anand Purohit,: AIR 1988 SC 1796, and Radha Krishna Singh v State of Bihar, AIR 1983 SC 684.

Public Documents under Section 74

The section covers public documents and records of official acts. Section 74 (1) defines public documents as under:

The following documents are public documents: —

(a) 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 India or of a foreign country;

(b) public records kept in any State or Union territory of private documents.

(2) All other documents except the documents referred to in sub-section (1) are private

Proof of Public Documents by Certified Copies under Section 77

Section 76 read with Section 77 of the Bharatiya Sakshya Adhiniyam (Section 77 read with section 78 of the Evidence Act) enables proof of public documents by producing certified copies, even without examining the maker of the entries.

In, Jaswant Singh v. Gurudev Singh 2012 (1) SCC 425, the supreme court held:

certified copy of the public document prepared under S.76 of the Act ( Section 75 of the Bharatiya Sakshya Adhiniyam)  is admissible in evidence under S.77 of the said Act ( Section 76 of the Bharatiya Sakshya Adhiniyam). A certified copy of a public document is admissible in evidence without being proved by calling witness.

(For more on Public Document refer module 19)

Probative Value of Entries in Public Record

Section 29 of the Bharatiya Sakshya Adhiniyam deals with relevancy and not probative value. Probative value depends on the facts and circumstances of each case. Generally, it must be taken along with other evidence. The Court generally presumes that the public officer did his duty duly and based the entries on materials the accuracy of which he was satisfied. Basis on which entry was made would be relevant in considering its probative value. (See Shyam Prathap Singh v Collector of Etawah, AIR 1946 PC 103)

In Radha Krishna Singh v State of Bihar, AIR 1983 SC 684, while dealing with an old revenue document which was held admissible under Section 35 (Section 29 of the Bharatiya Sakshya Adhiniyam), Justice S. Murtaza Fazal Ali, observed:

We may not be understood, while holding that Ex. J. is admissible, to mean that all its recitals are correct or that it has very great probative value merely because it happens to be an ancient document. Admissibility of a document is one thing and its probative value quite another these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and the weight of its probative value may be nil.

Revenue Record- Mutation Does Not Confer Title

In Viswasrao satwarao Naik and Others v State of Maharashtra  2018 (6) SCC 580  it was held that, Presumption of truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleges that the entries in the revenue record are wrong to lead evidences to rebut this presumption.

In (Thakur) Nirman Singh and Others vs. Thakur Lal Rudra Pratap Narain Singh and Others, AIR 1926 PC 100, The Privy Council held that: mutation proceedings are much more in the nature of fiscal inquiries, instituted in the interest of the State, for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property, may be put into occupation of it, with greater confidence that the revenue for it will be paid. Such proceedings are not evidence that the successful applicant was in possession as sole legal owner, in a proprietary sense, to the exclusion of all claims of the other members of the family as co – owners, or for maintenance or otherwise, as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim.

In Smt. Sawarni vs. Smt. Inder Kaur and Others, AIR 1996 SC 2823 it was, inter alia, held that, mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. This was reiterated in Municipal Corporation, Gwalior vs. Puran Singh alias Puran Chand and Others, 2015 (5) SCC 725.

Thus, what emerges is that, mutation does not confer title but still it is relevant.

Relevancy Of Entries In School Register – Date of Birth

A public document in relation to the date of birth is admissible if it satisfied the ingredients of S.35 of the Indian Evidence Act ( Section 29 of the Bharatiya Sakshya Adhiniyam) and if it relates to the fact in issue. The evidentiary value of such documents had been considered by the Supreme Court in a catena of decisions. In the decision in Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796, an election case in which the age of the returned candidate was in issue. The Supreme Court had occasion to deal with probative value of the documents regarding the date of birth. One of the certificates produced to prove the birth date was the certificate issued on the basis of the entries contained in the scholar’s register. The Supreme Court held that such documents are relevant and admissible, but such documents have no evidentiary value for the purpose of proof of date of birth unless the vital piece of evidence in the form of evidence of person on whose information the date of birth of the concerned person was recorded in the document was adduced. Parents or near relatives having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the scholar’s register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value.

In Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury, AIR 1941 Cal. 41 a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show the material on which the entry in the register about the age of the plaintiff was made.

The Courts have consistently held that the date of birth mentioned in scholar’s register of secondary school Certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined. This consistent view has been followed in the following decisions Madan Mohan Singh and Other v. Rajni Kant and Another, AIR 2010 SC 2933, Ravinder Singh Gorkhi v. State of U. P, AIR 2006 SC,  Babloo Pasi v. State of Jharkhand and Another, AIR 2009 SC 314 and Ram Suresh Singh v. Prabhat Singh, AIR 2009 SC 2805. In all the above decisions it was held that even if entry was made in an official record by the concerned official in discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made. The principle regarding the age in public document has been confirmed and reiterated by the Supreme Court in the latest decision reported in State of Madhya Pradesh v. Munna @ Shambhoo Nath, 2016 (1) SCC 696.

Proof of Age of Victims of Offences

In Mahadeo, S/o. Kerba Maske v. State of Maharashtra and Another, 2013 KHC 3921 : 2013 (14) SCC 637, it was held that statutory provision in Juvenile Justice (Care and Protection of Children) Rules is also applicable to determine the age of young victim. The Court observed:

“We can  also in this connection  make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules,   2007,   where   under  R.12,   the  procedure   to  be  followed   in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under R.12(3) of the said Rules, it is stated that:

“12. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be. by the Committee by seeking evidence by obtaining –

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;”

Under R.12(3)(b), it is specifically provided that only in the absence of alternative methods described under R.12(3)(a)(i) to (iii) the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well.

Examples of Public Records

Following are instances of Public Records and hence relevant in particular cases under Section 29 of the Bharatiya Sakshya Adhiniyam (section 35 of the Evidence Act).

Inam Register, Revenue Register, Settlement Register, Survey and Settlement Records, Mutation Orders, Guardianship Certificate, Reports of Judicial Enquiry, Register of govt Office Communication, First Information Report, Police General Diary, Secondary School leaving Certificate, Board Exam Mark lists, School Register of Government Schools, Marriage Register, Municipal Register, Jail Register, Govt Hospital Register, etc

Summing Up of Section 29

To sum up the following conditions are to be fulfilled before a document can be admissible under Section 29 of the Bharatiya Sakshya Adhiniyam (Section 35 of the Evidence Act).

(1) the document must be in the nature of an entry in any public or other official book, register or record,

(2) it must state a fact in issue or a relevant fact,

(3) the entry must be made by a public servant in the discharge of his official duties or in performance of his duties especially enjoined by the law of the country in which the relevant entry is kept.

5. Relevancy of statements in maps, charts and plans – Section 30

Section 30 of the Bharatiya Sakshya Adhiniyam (Section 36 of the Evidence Act) reads as under:

Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Central Government or any State Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.

The section deals with two categories of maps, (1), published maps generally offered for sale; (2) maps or plans made under the authority of Government. The second category of maps are generally made with thorough study and accuracy. As per Section 82 of the Bharatiya Sakshya Adhiniyam (section 83 of the Evidence Act) court shall presume that maps and plans purported to be made by the authority of the government are accurate. Presumption under section 82 of the Bharatiya Sakshya Adhiniyam is rebuttable.

In Biseswar Dandpat v. Sareswati Dei and others AIR 2014 Ori. 97, Orissa High Court in the context of relevancy of maps prepared by government department, observed:

“The maps in question are prepared by the Revenue Department and the same are sold by the State Government pursuant to letter of Board of Revenue in Annexure – 5 and more so the same is published by the Government and offered for sale. The maps in question are printed copy of the original purchased from the Government officers on payment of requisite fees. The said printed copy does not contain any certificate with seal and signature as it is not the certified copy. As per the provisions of S.36 of the Indian Evidence Act (Section 30 of the Bharatiya Sakshya Adhiniyam), there are two types of maps, namely, published map or charts offered for public sale and maps and plans made under authority of Government. Therefore, S.36 of the Evidence Act (Section 30 of the Bharatiya Sakshya Adhiniyam) mandates that the statement of the facts in issue made in published maps generally offered for public sale themselves constitute to be a public document and the element of public document as enshrined in S.74 of the Evidence Act (Section 74 of the Bharatiya Sakshya Adhiniyam is well founded). Therefore, under S.83 of the Evidence Act (Section 82 of the Bharatiya Sakshya Adhiniyam), the Court must presume the said maps to be accurate purporting to be made by the authority of any State Government. So far as rejection of the application on the ground that the maps purchased from competent authority cannot be suo motu exhibited without its formal proof when the defendants disputed genuineness of the map is concerned, the contention is that no formal proof is necessary as there is no dispute regarding genuineness of the documents, for the fact is that the document map has been purchased from the various sources of the State Government having competence over the same. The said documents are public document within the meaning of S.74 (1)(i) of the Indian Evidence Act (Section 74(1)(a) of the Bharatiya Sakshya Adhiniyam). As the said documents forming the Acts of the sovereign authority, the same should have been admitted without any objection as primary evidence under S.62 of the Evidence Act (Section 57 of the Bharatiya Sakshya Adhiniyam). When the competent authority has supplied the printed copy of the original on payment of requisite fees by virtue of letter under Annexure – 5, it can be very well presumed to be accurate and the said printed maps are admissible in evidence as relevant under S.36 and S.83 of Evidence Act (Sections 30 and 82 of the Bharatiya Sakshya Adhiniyam). The printed copy of the original is the public document within the meaning of S.74 of the Indian Evidence Act (Section 74 of the Bharatiya Sakshya Adhiniyam). In Secretary of State (AIR 1942 Bom 161) (supra), the Bombay High Court held that the printed copy of the original is the public document within the meaning of S.74 of the Indian Evidence Act (Section 74 of the Bharatiya Sakshya Adhiniyam).”

Site Plan/Mahazar by prepared by Police officer

A site plan relating to the offence prepared by a police officer relying on the statement of witness would be affected by section 162 of the Criminal Procedure code (Section 181 the Bharatiya Nagarik Suraksha Sanhita, 2023) and would not be relevant. (See Dharam Singh v State of Uttar Pradesh (1964)1 CrLJ 78.) Whereas a site plan prepared by a police officer based on his own observations is relevant (See Tori Singh v. State of Uttar Pradesh AIR 1962 SC 399)

It was further held In Mohanan v State of Kerala 2011 (3) KHC 680: 2011 (4) KLT the context of the contents of the scene mahazar prepared by the police officer:

The observations made personally by investigating officer at the scene, such as what he saw etc., have to be deposed to by him in Court in the light of S.60 of the Evidence Act (Section 55 of the Bharatiya Sakshya Adhiniyam). Those facts must be proved by direct oral evidence of investigating officer and not by producing scene mahazar. In the absence of Police Officer’s oral evidence in Court regarding the facts observed by him at the scene which are stated in the scene mahazar, it will be illegal for the Court to rely upon the contents of scene mahazar as ‘evidence’. In other words, the relevant facts which investigating officer observed at the scene and which are recorded by him in scene mahazar must be deposed to by him in Court, if the Court wants to rely upon them as ‘evidence’.

In Mohanan v State of Kerala, the Kerala High Court relied on the Supreme Court judgment  in Ramji Dayawala & Sons (P) Ltd. v. Invest Import 1981 (1) SCC 80: AIR 1981 SC 2085, wherein It is held as follows:

‘Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.’

6. Relevancy of statement as to fact of public nature contained in certain Acts or notifications – Section 31

Section 31 of the Bharatiya Sakshya Adhiniyam (Section 37 of the Evidence Act) reads as follows:

When the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any Central Act or State Act or in a Central Government or State Government notification appearing in the respective Official Gazette or in any printed paper or in electronic or digital form purporting to be such Gazette, is a relevant fact.

( The words …”notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any Dominion, colony or possession of his Majesty” appearing in Section 37 of the Evidence Act are removed in the new Adhiniyam )

This section makes Recitals in statutes and Gazette Notifications relevant regarding any fact of public nature in respect of which the Court has to form an opinion. This section has to be read along with Section 80 of the Bharatiya Sakshya Adhiniyam (Section 81 of the Evidence Act) which enables the Court to presume genuineness of Government Gazette and private Acts of Parliament.

7. Facts Stated In Gazette Admissible under Sections 29, 31 Read with Section 80 of the Bharatiya Sakshya Adhiniyam (Ss. 35,S.37 Read With S. 81 Of The Evidence Act, 1872).

In, Vimala Bhai v Heralal Gupta, 1990 (2) SCC 22 (L. M. Sharma; K. Ramaswamy, JJ.), the issue was whether a family had migrated from UP, Supreme Court observed:

The Statement of fact contained in the official Gazette made in the course of the discharge of the official duties on private affairs or on historical facts in some cases is best evidence of facts stated therein and is entitled to due consideration but should not be treated as conclusive in respect of matters requiting judicial adjudication. In an appropriate case where there is some evidence on record to prove the fact in issue but it is not sufficient to record a finding thereon, the statement of facts concerning management private temples or historical facts of status of private persons etc. found in the Official Gazette may be relied upon without further proof thereof as corroborative evidence. Therefore, though the statement of facts contained in Indore State Gazette regarding historical facts of Dhangars’ social status and habitation of them may be relevant fact and in an appropriate case the Court may presume to be genuine without any further proof of its contents but it is not conclusive. Where there is absolutely no evidence on record in proof of the migration of the family of the plaintiff or their ancestors from Mathura area, the historical factum of some Dhangars having migrated from U.P. and settled down in Aurangabad District or in the Central Province by itself cannot be accepted as sufficient evidence to prove migration of the plaintiff family.

Supreme Court in Bala Shankar Bhattjee and Others v. Charity Commissioner Gujarat State, AIR 1995 SC 167, relied on Bombay Gazette of 1879, statements of historians and the passages in the historical books based on Sections 35, 81 and 45 of the Evidence Act, (corresponding to Sections 29, 80 and 39 of the Bharatiya Sakshya Adhiniyam) to come to the conclusion that Kalika Mataji temple is a public trust. The Court observed:

It is seen that the Gazette of the Bombay Presidency, Vol. III published in 1879 is admissible under S. 35 read with S. 81 of the Evidence Act 1872 (Section 29 read with section 80 of the Bharatiya Sakshya Adhiniyam). The Gazette is admissible being official record evidencing public affairs and the Court may presume their contents as genuine. The statement contained therein can be taken into account to discover the historical material contained therein and the facts stated therein is evidence under S.45 (Sections 39 of the Bharatiya Sakshya Adhiniyam) and the Court may in conjunction with other evidence and circumstances take into consideration in adjudging the dispute in question, though may not be treated as conclusive evidence. The recitals in the Gazette do establish that Kalika Mataji is on the top of the hill. Mahakali temple and Bachra Mataji on the right and left to the Kalika Mataji. During Moughal rule another Syed Sadar Peer was also installed there, but Kalika Mataji was the chief temple. Hollies and Bills are the main worshipers. On full Moon of Chaitra (April) and dussehra ( in the month of October), large number of Hindus of all classes gather there and worship Kalika Mataji, Mahakali, etc. After the downfall of Moughal empire, Marathas took over and His Highness Scindia attached great importance to the temple. One of the devotees in 1700 offered silver doors. The British annexed the territory pursuant to the treaty between Her Majesty’s Government of India and His Highness Scindia on the 12th December, 1860. A condition was imposed in the treaty for continued payment of fixed cash grants to all the temples from the Treasury and that British emperors accepted the condition. Regular cash grants of fixed sums were given to all the temples by Scindias and British rulers, as evidenced by Exhibits 27, 28, 29 and 30. The historical statement of noted historian, stated by the High Court, by name M. S. Commissionaria in his Vol. 1 of 1938 Edition corroborates the Gazette in the material particulars, which would establish that the temple was constructed on the top of the hill around 14th century and the people congregate in thousands and worship, as of right, to Kalika Mataji and other deities. R.N. Jogelkar’s Alienation manual brought up in 1921 in the Chapter 5 Devasthana also corroborates the historical evidence. It is true that Bai Diwali in her Will, Ex. 22 treated the temple and the properties to be private property and bequeathed to her brother and the litigation ensured in that behalf. At that time, as rightly pointed out by the High Court, the concept of public trust and public temple was not very much in vogue. Therefore, the treatment meted out to these properties at that time is not conclusive. On the other hand the fixed cash grants given by the Rulers Scindias and the successor British emperors, the large endowment of lands given to Kalika Mataji temple by the devotees do indicate that the temple was treated as public temple. The appropriation of the income and the inter se disputes in that behalf are self serving evidence without any probative value. Admittedly, at no point of time, the character of the temple was an issue in any civil proceedings. All the lands gifted to the deity stand in the name of the deities, in particular large extent of agricultural lands belong to Kalika Mataji. The entries in Revenue records corroborated it . The Gazette and the historical evidence of the temple would show that the village is the pilgrimage centre. Situation of the temples on the top of the hill away from the village and worshipped by the people of Hindus at large congregated in the thousands without any let or hindrance and as of right, devotees are giving their offerings in large sums in discharge of their vows, do establish that it is a public temple. It is true that there is no proof of dedication to the public. It is seen that it was lost in antiquity and no documentary evidence in that behalf is available. Therefore, from the treatment meted out to the temple and aforesaid evidence in our considered view an irresistible inference would be drawn that the temple was dedicated to the Hindu public or a section thereof and the public treat the temple as public temple and worship thereat as of right.

In Siddiq M.(D) thr LRs v Mahant Suresh Das 2020 (1) SCC 1 (Ayodya Case), the 5 judges constitution bench expressed a note of caution and observed:

The court may have due regard to appropriate books and reference material on matters of public history. Yet, when it does so, the court must be conscious of the fact that the statements contained in travelogues as indeed in the accounts of gazetteers reflect opinions on matters which are not amenable to be tested by cross – examination at this distant point of time. Consequently, where there is a dispute pertaining to possession and title amidst a conflict of parties, historical accounts cannot be regarded as conclusive. The court must then decide the issue in dispute on the basis of credible evidentiary material.

8. Relevancy of statements as to any law contained in law-books – Section 32

Section 32 of the Bharatiya Sakshya Adhiniyam (Section 38 of the Evidence Act) reads as follows:

When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published including in electronic or digital form under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book including in electronic or digital form purporting to be a report of such rulings, is relevant.

This section enables the court to verify foreign laws and reports of rulings of Courts of foreign countries from authorised published books and reports of such rulings. This section should be read with Section 83 of the Bharatiya Sakshya Adhiniyam (section 84 of the Evidence Act) which enables the court to presume genuineness of such books. Section 83 reads as under:

Presumption as to collections of laws and reports of decisions.

The Court shall presume the genuineness of, every book purporting to be printed or 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.

With respect to Indian laws courts can take judicial notice under Section 52 of the Bharatiya Sakshya Adhiniyam (Section 57 of the Evidence Act).

9. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers – Section 33

Section 33 of the Bharatiya Sakshya Adhiniyam (Section 39 of the Evidence) which is self-explanatory reads as under:

How much of a statement is to be proved

When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.

If it is necessary to read the document or a series of documents as a whole to find out the intent and meaning thereof, that has to be proved as a whole. Otherwise, Section 33 of the Bharatiya Sakshya Adhiniyam (Section 39 of the Evidence Act) applies and evidence may be given of the necessary part only and the Court need only look at the relevant parts.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’.

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Exercise Questions

  1. Discuss law relating to relevancy of Entries in Books of Account.
  2. Discuss Relevancy of entry in public record and its probative value. Whether certified copies of such documents could be admitted without examination of the officer who recorded such entries?