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Report No. 185

Section 144

This Section refers to 'evidence as to matters in writing'. It reads as follows:

"144. Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Explanation.- A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts."

There is one illustration below Section 144 as follows:

"The question is,whether A assaulted B. C deposes that he heard A say to .- "B wrote a letter accusing me of theft, and I will be revenged on him". The statement is relevant, as showing A's motive for the assault, and evidence may be given of it, though no other evidence is given about the letter."

The illustration, according to para 80.5 of the 69th Report, deals with a declaration about a mental element present contemporaneously (Section 14). It is stated further that the illustration satisfied the test mentioned by the Privy Council in Subramaniam v. Public Presentor: 1956(1) WLR 465 (PC). In that case, the accused's conviction was questioned in the Privy Council because the trial judge had wrongly excluded evidence tendered by the accused that he had done the act with which he was charged, under duress, because he had been threatened with death if he acted otherwise.

It was immaterial whether or not the threats would have been carried out, that is whether or not they were true, but what is important is whether or not the accused believed the statements made to him. (see Phipson, 15th Ed, 1999, para 25.08). The author also say.- "If, for example, the purpose is to tender the statement as evidence of the speaker's state of mind, then it may be admissible as original evidence". In the foot note 46, the author says that it may be equally tendered as evidence of the hearer's state of mind and refers to the above case when the defence was one of duress and evidence of statements alleged to counter threats made to the accused was admissible. It can also be relevant as res gestae.

In paras 80.6 and 80.7, it was pointed out that the Section needs some improvement. The proposal was to split up the two categories of cases mentioned in Section 144 into two separate subSections, keeping the Explanation and illustration intact. We agree that such an amendment would be useful. In fact, in the first situation, the word 'evidence' is used and in the second, the word 'statement' is used.

We agree with para 80.7 of the 69th Report for redrafting Section 144 as follows:

"(1) Any witness may be asked, while under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who has called the said witness, to give secondary evidence of it; and if, in the opinion of the Court, the document ought to be produced, the objection shall be upheld.

(2) If a witness, while under examination, is about to make any statement as to the contents of any document, the adverse party may object to such statement being made until such document is produced, or until facts have been proved which entitle the party who has called the said witness to give secondary evidence of it; and, if in the opinion of the Court, the document ought to be produced, the objection shall be upheld."

(The Explanation and illustration as at present remain.)



Review of the Indian Evidence Act, 1872 Back




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