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Report No. 69

II. Real Evidence

25.5. Second proviso-Real evidence.-

Under the second proviso to section 60, 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." This proviso, in a sense, permits the court to supplement the oral evidence relating to a material thing by its own inspection. It appears to have been inserted by way of abundant caution, lest it should be argued that by virtue of the main paragraph of the section, only the evidence given by word of mouth is admissible.

25.6. According to Cunningham:1

"By way of securing that the Court shall, in every instance, have before it the best possible means of forming an opinion, it is provided that when the evidence refers to the existence or condition of any material object the Court may require it to be produced for inspection. Such inspection is frequently indispensable in order to the proper understanding of the oral evidence, and enables the court to draw important inferences as to the truthfulness of the witness".

1 Cunningham Evidence, p. 67.

25.7. Wigmore's view-Autoptic Preference.-

The second proviso essentially deals with what is called "real" or material evidence. Wigmore called this species of evidence "Autoptic Preference"-i.e. a fact being evidenced autoptically when it is offered for direct perception by the senses of the tribunal, without depending on any conscious inference from some testimonial or circumstantial fact (it is autopsy by the Court, but autoptic preference by the party).

Wigmore further remarked:

"With reference to this mode of producing persuasion no question of relevancy arises. Res ipsa loquitur-The thing proves or disproves itself. No logical process is employed; only an act of sensible apprehension

Bringing a knife into Court is, in strictness, not giving evidence of the knife's existence. It is a mode of enabling the Court to reach a conviction of the existence of knife, and is in that sense a means of producing persuasion, yet it is not giving evidence in the sense that it is asking the Court to perform a process of inference It is thus, evidence, in the sense that evidence includes all modes, other than argument, by which a party may lay before the tribunal that which will produce persuasion".1

Further, according to Wigmore2-

"It is unnecessary, for the present purposes, to ask whether this is not, after all, merely a third source of inference (additional to testimony and circumstantial evidence) that is, an inference from the impressions or perceptions of the tribunal to the objective existence of the thing perceived. The law does not need and does not attempt to consider theories of metaphysics for the purposes of judicial investigation, a thing perceived by the tribunal as existing, does exist."

1 Wigmore Evidence, (1904), Vol. 2, section 24, cited by Best Evidence, (1922), p. 602.

2. Wigmore Evidence, (1904), Vol. 2, section 1150, cited by Best Evidence, (1922), p. 602.

25.8. Screening of films-English cases.-

In connection with real evidence, reference may be made to an English case where the interesting question arose as to what procedure should be adopted by a court when a request is made for screening a film which is alleged to be obscene. Lawton, L.J. had occasion to explain real evidence1-

"What is a trial on indictment in English law? It is a proceeding before a judge and jury in which the prosecution tries to prove by evidence that a specified crime has been committed. The procedure allows for speeches by counsel and an accused, if he is unrepresented, and for a summing-up by the judge, but what matters is the evidence. This can take a number of forms: it can be oral; it can be written; and it can be what lawyers sometimes call real-that is, an inanimate object In addition, a jury can be taken to see a place or something which cannot be brought into court a common example is a motor car which has been brought to the vicinity of the court and is looked at by the jury outside the courtroom.

When evidence is given orally, all in court hear what is said. When written evidence is produced, it may, or may not be read out. In most cases part of what is written is read out, but not the whole. When a piece of real evidence is produced, a witness has to say from where it came. This having been done, the jury looks at the exhibit. Usually the judge does too and counsel in the case may do so. The exhibit, however is not shown to other persons who may be in court. They may be able to see what the article is it may be a pistol or a knife. Sometimes they cannot; and if what is produced is a folder containing photographs (a common form of exhibit), they will not know what the photographs show unless either the judge, counsel or a witness describes them. The jurors have a duty to look at exhibits and to give them such significance as they think proper.

Sometimes jurors have to use mechanical or electrical devices to appreciate what is of importance about an exhibit Jurors with defective eyesight use their spectacles. Whatever is used is no more than a means by which the jurors look at and assess the real evidence which has been produced. The members of the public in court have no right to claim to be allowed to look at the exhibits. A film put in evidence has to be looked at by a jury, and a screen and a projector are necessary to enable them to do so. Members of the public in court have no more right to see a film than they have to see any other exhibit; and the circumstances may be such that it would be impracticable, even impossible to show the film in the court-room itself."

1. R. v. Waterfield, (1975) 2 All ER 40 (43) (Lawton, LI.).

25.9. Lawton L.J. further said:1

As judges have differed as to how judicial discretion should be exercised in this class of case it may be helpful if we give some guidance. We appreciate that some judges may be of the opinion that the showing or what are alleged to be indecent films in a crowded court is undesirable. The fact that persons with a taste for the nasty may come into court to see the display is of no importance. What does matter is the danger that the presence of such people may create an atmosphere of tension and result in gasps, giggling, and comments which may make the jury's task more difficult. The probability that prurient-minded persons may be present in court creating an undesirable atmosphere should not, however, be allowed to obscure the fact that the public generally are interested in cases of this kind and not for unworthy reasons. Concepts of sexual morality are changing.

Whenever a jury in this class of case returns a verdict whether of guilty or not guilty, intelligent readers of newspapers and weekly journals may want to know what kind of film was under consideration. Experience during the past two decades has shown that every acquittal tends to lead to the greater exposure to public gaze of what previous generations thought seemly only in private, if seemly anywhere. Members of the public have to depend on the press for information on which to base their opinions; but if allegedly indecent films are always shown in closed courtrooms, the press cannot give the public the information which it may want and which is necessary for the formation of public opinion.

If the public learns through the press what kind of films some jurors are adjudging not to be indecent, it may say "enough is enough"; but if it does not know, persons with a taste for pornography may suggest and convince some that obscurantist prosecuting authorities are trying to impose a form of film censorship which might have satisfied standards of sexual behaviour which have long been abandoned; a slide into public licentiousness may result. It follows, so it seems to us, that normally when a film is being shown to a jury, and the judge, in the exercise of his discretion, decides that it should be done in a closed courtroom or in a cinema, he should allow representatives of the press to be present. No harm can be done by doing so: some good may result."

1. R.V. Waterfield, (1975) 2 All ER 40 (44).

III. Provisos to section 60 Case Law

25.10. Case illustrating first proviso-

We may now deal with some cases relating to matters of detail. A case which went up to the Supreme Court1 illustrates the first proviso. In that case, the petitioner Mahendra was married to the respondent-Sushila-on 10-3-1947. In April, 1947, the husband went abroad. The respondent gave birth to a child on 27-8-1947, i.e. after 5 months and 17 days of the marriage.

(* relating to proviso)

1. Mahendra v. Sushila, AIR 1965 SC 364.

25.11. The husband filed a petition under section 12(1)(d) of the Hindu Marriage Act, 1955, for declaring the marriage to be void, on the ground that the wife was pregnant by some person other than the petitioner at the time of the marriage. The defence of the wife, in the beginning, was that the pregnancy was post-marital. Later, her plea was that she became pregnant through the petitioner in December, 1946 or January, 1947, as a result of sex relations with the petitioner before marriage.

25.12. The trial court allowed the petition and declared the marriage as void, but, on appeal by the wife, the High Court of Bombay reversed the decision of the trial court, and dismissed the petition of the husband on the facts. The matter came up before the Supreme Court in appeal under Article 133(1)(c) of the constitution.

25.13. One of the questions which fell for consideration before the Supreme court was the date when the pregnancy commenced, i.e. whether it commenced before the marriage or after marriage. There was also the question of quickening of the child, since that fact had been mentioned by the wife in her letters to the husband after marriage. Both the parties produced their medical witnesses on the question of the quickening of the child. This evidence turned out to be conflicting. Dr. Ajinkya was the expert witness summoned by the petitioner. Dr. Mehta was the expert witness produced by the wife.

25.14. For coming to its own conclusions on the above questions, the Supreme Court referred, inter alia to the opinions of medical experts, expressed in "Obstetrics and Gynaecology" by Dugald Baird, and "Manual of Obstetrics" by Eden and Holland, and also "Medical Jurisprudence" by Modi. After referring to these medical authorities, and preferring the view of Dr. Ajinkya who had more experience than Dr. Mehta, the Supreme Court held that the pregnancy was of a longer duration than one starting on or after 10-3-1947 (when the couple was married). It was, therefore, premarital. The husband's appeal was allowed. This case illustrates the procedure regarding the opinions of experts expressed in their treatises, under the first proviso to section 60.

Indian Evidence Act, 1872 Back

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