Statutes Evidence. Contemporaneously with Indian legislation on the subject of relating to Evidence, Parliament enacted several statutes dealing with the same subject, which applied to British India either expressly or as part of the British Empire. These are: 13 Geo. III, c. 63, secs. 40, 41, 42 (depositions respecting offences etc. committed in India), 44 (depositions respecting causes of action arising in India), 45 21 Geo. III, c. 70, sec. 6 (authenticated copies of orders of the Governor-General and Council). 24 Geo. III, c. 25, secs. 78 (depositions taken in India), 81 (examination de bene esse of witnesses upon interrogatories). 26 Geo. III c. 57, secs. 28 (taking evidence in India for parliamentary proceedings against Indian offenders), 38 (proof of bonds executed in India). 42 Geo. III, c. 85, sec. 3 (examination de bene esse of witnesses upon interrogatories). I Geo. IV, c. 101 (examination of witnesses in support of divorce bills), secs. 1, 2, 3. 3 & 4 Wm. IV, c. 41, secs. 7, 8, 9, 13, 19 (evidence before Judicial Committee). 6 & 7 Vic. c. 22 (unsworn testimony). 6 & 7 Vic. c. 94, sec. 3 (foreign jurisdiction). 6 & 7 Vic. c. 98, sec. 4 (slave-trade). 11 & 12 Vic. c. 21, secs. 73, 74, 77, 82 (evidence in insolvency cases). 14 & 15 Vic. c. 99, sec. 7 (proof of judicial proceedings of Indian Courts). 14 & 15 Vic. c. 40, sec. II (registers of marriage). 18 & 19 Vic. c. 104 (Chinese passenger ships), sec. 15. 19 & 20 Vic. c. 113 (evidence in relation to matters pending before foreign tribunals). 20 & 21 Vic. c. 85 (divorce and matrimonial causes), sec. 47. 22 Vic. c. 20 (taking evidence out of jurisdiction). 22 & 23 Vic. c. 631 (ascertaining law in force in one part of Her Majesty's dominions when pleaded in the Courts of another part). 24 Vic. c. 11 (ascertaining law of foreign countries when pleaded in Courts within Her Majesty's dominions). 31 & 32 Vic. c. 37 (documentary evidence). 33 Vic. c. 14 (naturalisation), sec. 12. 33 & 34 Vic. c. 52 (Extradition Act, 1870), secs. 14, 15, 24o. 1 See Login v. Princess Victoria of Coorg, 1 Jur. O. S. 109, 30 Beav. 632. 36 & 37 Vic. c. 60 (amending Extradition Act, 1870), secs. 4, 5. 39 & 40 Vic. c. 46 (slave-trade), sec. 3. 44 & 45 Vic. c. 58 (army), secs. 52, 125, 163, 164, 165, 180. 44 & 45 Vic. c. 69 (fugitive offenders), sec. 29. II. Differences between the English and the Indian Laws Having thus given a sketch of the legislation relating to Evidence in India, we have now to note the principal differences between the English and the Indian laws on this subject. For convenience of reference the order of the sections of the Indian Evidence Act will here be followed. 1. In England the particulars of the complaint may not be dis- Terms of closed by the witnesses for the prosecution, either as original or complaints. confirmatory evidence, and the details of the statement can only be elicited by the prisoner's counsel on cross-examination1. Under the Indian Act, sec. 8, illustrations j and k, the terms of the complaint are admissible as original evidence. 2. To prove the existence of a conspiracy, or to show that any Evidence of person was a party to it, a letter giving an account of the con- conspiracy. spiracy is admissible under the Indian Act, sec. 10, even though not written in support of it or in furtherance of it. The contrary rule is followed in England. (Taylor, $$ 593, 594-) 3. In India the inducement, etc. which renders a confession Confesinadmissible must be one proceeding from a person in authority sions. (Act I of 1872, sec. 24). In England it seems enough if the inducement is held out by any one in his presence and he by his silence sanctions its being made. (Tayl. § 873.) 4. In India it is necessary to prevent the police from torturing persons in their custody for the purpose of extracting confessions. The Evidence Act therefore declares that a confession made to a police-officer is absolutely inadmissible (even though no threat be used or false hope held out), and a confession made while in the custody of the police is inadmissible, unless made in the immediate presence of a magistrate (secs. 25, 26). There is no such exclusion in England. 5. In England the confession of an accused person is not evidence against any one but himself. Even when A is indicted for receiving stolen goods from B, a confession by B that he was guilty of the theft is no evidence of that fact as against 42. Under 1 R. v. Walker, 2 M. & Rob. 212; and see Taylor, § 581. 2 R. v. Turner, 1 Moo. C. C. 347. Dying declarations. Entries in course of the Evidence Act, however (sec. 30), where two persons are being tried jointly for the same offence, a confession by one may be taken 'into consideration' as against the other. It is hardly necessary to state that the Indian Courts have given this section a strict interpretation. Such a rule would be dangerous in any country; but it is especially so in India, where a culprit commonly endeavours to exculpate himself at the expense of his alleged accomplices, and where the object of the police is often, not merely to find out the criminal, but to prove criminality against a particular man whom it is desired to crush. 6. In England dying declarations are admissible only in criminal cases where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the declaration.' In India (sec. 32 and ill. a) they are admissible in civil suits as well as in criminal prosecutions for rape or any other offence. In England, to render a dying declaration admissible, the declarant must have been in actual danger of death, he must have been fully aware of this danger, and death must have ensued (Tayl. § 718). In India the statement is relevant, whether the person who made it was or was not at the time when it was made 'under expectation of death.’ 7. In England to make entries in the course of business adbusiness. missible, they must be shown to have been made contemporaneously with the acts which they relate (Tayl. § 704). The Evidence Act (sec. 32, cl. 2) contains no such restriction. In England such entries are evidence only of those things which according to the course of business it was the duty of the person to enter, and are no evidence of independent collateral matters1. There is no such restriction under the Indian Act. Pedigree cases. 8. In England the declaration of an illegitimate member of a family would not be admissible in pedigree cases. In India the English rule has been rescinded since 1855. On this point the Evidence Act (sec. 32, cl. 5) merely requires that the declarant had special means of knowledge of the relationship, and that the statement was made before the question in dispute was raised. In India, therefore, the statements made by servants, friends and neighbours, as to relationship, and statements made by a deceased person asserting his own illegitimacy, would be admissible. How doubtful this is in England, see Taylor, § 637. Statements 9. Under the Evidence Act, sec. 32, cl. (7), statements made by by deceased deceased persons and contained in documents relating to any persons. 1 Chambers v. Bernasconi, 1 C. M. & R. 368: Tayl. § 685. 2 See Act II of 1865 (sec. 47). 8 Doe v. Barton, 2 M. & Rob. 28. transaction by which any right was created, etc., are admissible upon questions of mere private rights. In England such evidence does not appear to be admissible. See Tayl. § 615. books. 10. In England, to render entries in public books or registers Entries in admissible, they must have been made promptly, or at least without public such long delay as to impair their credibility, and in the mode required by law, if any has been prescribed (Tayl. § 1594). The Evidence Act (sec. 35) contains no such rule. 11. Section 36 of the Evidence Act as to maps and charts, and sec. Maps. 38, as to proof of foreign laws, go somewhat beyond the English rules on these subjects. The Indian Act admits statements made laws. in 'published maps or charts generally offered for public sale,' and in maps and plans made under the authority of Government.' It Foreign also permits books containing foreign laws to be directly referred to. A munsif's opinion on the state of the Scotch marriage-law, or the meaning of an article of the Code Napoleon, is perhaps not very likely to be correct. The Indian Act, however, dispenses with the necessity of calling professional or official experts to speak on the subject. As to the English rules, see Taylor, §§ 622, 1423, 1425. in rem. 12. In India judgments in rem are conclusive in criminal, as Judgments well as in civil proceedings (Evidence Act, sec. 41). In England this seems doubtful; see Taylor, §§ 1680, 1681. 13. In England, a party to a suit would not be allowed to defeat a judgment by showing that in obtaining it he had practised an imposition upon the Court (Tayl. § 1713). Under the Evidence Act, however, there is no such restriction, section 44, as now worded, permitting any party to a suit or other proceeding to show that a judgment was obtained by his own fraud or collusion. convic tions. 14. The opinion of experts only is admissible under the Evi- Opinions dence Act (sec. 45) as to questions of sanity. It is otherwise in as to sanity. England, at least in the Probate Court, where witnesses to a will may give their opinion as to the sanity of the testator1. See Tayl. § 1416. 15. Under the Evidence Act (sec. 54) the fact that the accused Previous person has been previously convicted of any offence is relevant, and may be proved in the first instance by the prosecution. When, therefore, a man is tried for forgery, or theft, or burning a ship to cheat insurance companies, the prosecution may prove that he was previously convicted of an assault, or of a dacoity, or of grievous hurt in that he, through motives of jealousy, cut off his wife's nose. On a trial for coining, evidence may be tendered of a conviction for adultery, which is a criminal offence under the Penal 1 Wheeler v. Alderson, 3 Hagg. Ecc. R. 544, 604, 605. Judicial notice. Certified copies of registers. Attested instruments. Compari son of seals. Code; and when a man is tried for waging war against the Queen, proof may be given of a conviction for selling goods with a counterfeit trademark, or for keeping a gambling-house. The object of this strange enactment is expressly declared in the report of the Select Committee, to be to prejudice the prisoner; and the Indian legislature has thus enabled the prosecution to mislead an ignorant magistrate and stupid jurors and assessors into the belief that a man who had (e.g.) cut off his wife's nose would be more likely than other men to commit crimes involving fraud or dishonesty. In England, it is scarcely necessary to say that, except under the Prevention of Crimes Act, 1871 (sec. 191), such evidence can be given only in reply to evidence of good character offered for the defence. 6 16. The provisions in the Evidence Act, sec. 57, clause (7), as to judicial notice of the names etc. of gazetted officers, and the provisions in the same section that the Court may resort for its aid to appropriate books or documents of reference,' are in advance of the English law on these subjects. The Act (sec. 61) permits the opinions of experts, expressed in any treatise commonly offered for sale, and the grounds of such opinions, to be proved by the production of the treatise, if the author is dead, etc. This also is in advance of English law. See Taylor, § 1482. 17. The Evidence Act (sec. 65) makes certified copies of registers of births, deaths, marriages, etc. admissible in criminal as well as in civil proceedings. In England, in criminal proceedings, the original registers must be produced: 3 & 4 Vic. c. 92, s. 17. 18. In England, when the validity of an instrument depends on its formal attestation, the attesting witness must always be produced (Tayl. § 1843). In India, the admission of a party to such an instrument of its execution by himself has, since 1855, been sufficient proof of its execution as against him. 19. Under the Evidence Act, secs. 47 and 73, comparison of a disputed writing or seal with a genuine writing or seal may be made by witnesses or by the Court in criminal as well as in civil proceedings. There is no such provision in England as to seals. As to writings, see 17 & 18 Vic. c. 125, secs. 27, 103; and 28 & 29 Vic. c. 18, secs. I and 8. 20. Oral admissions of the contents of a document are not admissible as primary evidence under the Evidence Act (secs. 22, 1 Previous convictions are proveable under this enactment only as against alleged receivers of stolen goods. 2 See Act II of 1855, sec. 38: Act I of 1872, sec. 70. |