Name of Student –SANAT PANDEY

Enrolment No.– L19BALB091

Ans.1-In this case the vigilance department of ABC Bank has ordered Paul, the bank
manager to question on suspicious transaction done by John as a clerk in third quarter of FY
2020-21. Here in this case John made the confession about his misappropriation of Bank's
total money of 51,64,233 to Paul and about his other transaction details. Section 24 of Indian
Evidence Act states that in order to be a valid confession it should not be caused by
inducement, threat or promise. In the opinion of court if the confession appears to have been
by any incitement, pledge, threat or gain any advantage or escape some temporary poor with
respect to proceeding against him then that confession will be irrelevant. So here in the
present case John made the self-harming statement only on the condition when Branch
manager Paul has assured him that no disciplinary action will be taken if he discloses the
amount which he has kept with him and later that was transferred into cryptocurrency
account. Also from the fact it is clear that John’s confession is induced because he was
worried about his job as he was the only member in his family. So here John has made the
statement only in order to gains him advantage in proceeding against him. That's why the
confession made by John to Paul is not voluntary hence it is irrelevant and will not be
admissible.

Further the statement of John to the SHO in local police station will not be admissible
because section 25 of Indian Evidence Act states that the confession to police officer not to
be proved. It means that any confession made by the accused to police officer cannot be
proved against him on offence because if the confession to police were allowed to be proved,
then the police by hook or by crook means will try to secure confession of the accused who
so would not do it voluntary. There is also the possibility that in order to end case soon,
police will pressurize the accused for confession that's why the court has restricted the
confession before the Police officer under section 25 of IEA. In the case of Dagdu vs State of
Maharashtra the honourable Court held that the confession should not be obtained through
any shortcut means like torture or force but it should be done voluntarily by proper
investigation. In the police station John has given a written format of his confession to the
SHO but it was merely a verbatim reproduction of the statement given to Paul which was
itself involuntary as was made to gain advantage in proceeding and done under inducement.

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Therefore, the confession of John both to Paul and SHO is irrelevant hence not admissible in
the court of law.

Ans.3- The Indian Evidence Act under section 122 provided with the privileged
communication between the spouses in which any kind of information shared between
couples will be protected and cannot be admitted as evidence due to the matrimonial
relationship involved in the communication. The supreme court held that the section 122 will
apply to the matrimonial communication during the time of marriage and even after the
dissolution of marriage. This privilege exists because marriage institution is considered the
foundation of the society and it is vital to protect the relationship between husband and wife.
In this case of Mark and Mary who has filed a joint petition for divorce by mutual consent
where Mark changes his decision later but Mary did not want to continue the relationship
anymore and filed petition for maintenance under section 125 of Crpc and also filed for
protection under Section 12 of Protection of women from domestic violence act. In this case
Mary wanted to testify the conversation at counselling session which can be permitted as
evidence because to avail privilege under section 122 there should be a legal marriage which
is satisfied in this case. However, this privilege is not absolute and cannot be claim in
situation where one spouse is subjected to prosecution for crime against the other.

So here as Mary has sued Mark in a serious crime of domestic violence indicate that the
relationship between Mark and Mary has reached a stage where the harmony between their
relationship has been ruptured hence preventing the disclosure of communication between
them at the counselling session would serve no sensible purpose. As the marital privileges
exist because of the relationship of marriage is to protect the intimate relationship of husband
and wife but it cannot compromise with the sanctity of justice itself hence perpetrator can’t
get free hand in the shadow of privilege communication. Also section 122 of Indian Evidence
Act provided with the exception that at the time of communication between spouses the
presence of third person will eliminate confidentiality so the involvement of parents here in
order to make them convince for counselling session marriage has diluted the privilege grants
to spouses. The idea behind the section 122 is to protect the privacy of citizen with regard to
social institution to hold sanctity of marriage and maintain the stability in the society, but it
cannot defy the safety of individuals.

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Hence the privileges provided to the spouses cannot be justified in the perpetrator of crime
against spouses, the adjective nature of the Indian Evidence Act covers every kind of
domestic violence in its purview. In this case it is clear that the harmony of marriage has
already been disintegrated hence there is no purpose to serve by including matrimonial
communication anymore. It is essential here to carve out the provided privilege and make all
relevant evidence admissible in the court to serve the purpose of end of Justice. Therefore,
spouse communication frivolous under Section 122 will not be applicable here and Mary can
testify the conversation with Mark at the counselling session.

Ans 4.- In this case Adv. Mathew is representing accused Luke in the criminal case of rape
and is doing cross examination from the prosecutrix Ms.X. Here we will decide whether the
question asked by Advocate Mathew is permissible or not under Indian Evidence Act.

Q1- Here Mathew is asking about academic qualification of Ms.X in which he wants to know
about status, position of prosecutrix which is a quite normal practice in court to discover
about his/her status in society. Section 146 (2) of Indian Evidence Act allows lawful question
in cross examination to discover the position in life of witness. So this question about
academic qualification is permissible.

Q2- In the next question Adv. has asked about parents’ current marital status which is not
related to a matter to the proceeding that's why it is not permissible. When we read section
149 along with section 148 (2) it talks about any question which is not relevant to the
proceedings or remote in attempt to discover the truth, the court in this case decide that
witness cannot be compelled to answer it. Therefore, question about parent's marital status is
not relevant in this case that's why not permissible.

Q3-Section 54 of Indian Evidence Act states that the previous bad character is not relevant in
the proceedings and evidence may be given only for general reputation and not of any
particular act. So here asking prosecutrix about her previous criminal case is not relevant
because in present proceedings it is of no use asking about her activities in the past and in
such case evidence should be only given for general disposition. That's why here this
question is not permissible.

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Q4-The question asked by Adv. Mathew from Ms. X about her abortion after the filing of
criminal complaint comes under the category of leading question. Section 141 of Indian
Evidence Act defines leading question as those question which mislead the witness as in the
way to receive desired answer. However, under section 143 leading question are allowed if it
is relevant and related to the fact in issue. So here the question about abortion is related with
the proceeding that's why it is permissible.

Q5-The question asked about the criminal complaint alleging rape after call off engagement
ceremony by accused is done in attempt to know the veracity of the statement, so to discover
that whether prosecutrix is telling truth or not. Section 146(1) allows lawful questions in
cross examination in attempt to check his/her integrity, understanding, accuracy and mean of
judging and to test whether accused is telling truth. So the question asked by Mr. Matthew to
check the veracity of statement is permissible.

Q6- The question asked from Ms. X about suspense from government service on dereliction
of duty is irrelevant here because it is not related with the facts of the case of proceeding.
Section 148 (2) talks about the improper question which are not relative to the matter of
proceeding and are remote in time should not be allowed to asked to witness. So here the
question about suspension from government service is of no use in the and it's just made to
degrade the character of witness in the eyes of court that's why it is not permissible.

Q7- The question asked by Adv Mathew about the live in relationship between the accused
and prosecutrix is not relevant here because it is made an attempt to shake credibility and
injured character of Ms. X. When we read section 114(A) along with Proviso of section 146
we found that in the cross examination in rape cases the question on general character,
previous sexual experience and about proving of consent or quality of consent shall not be
asked from victims. That's why this question on relationship as consent in issue is not
allowed under section 114(A) hence not permissible in the court of law.

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Ans.5- The evidentiary value of the printout of the incoming and outgoing call detail of
Joseph and with the annexure produce by Alex will be decided by section 65B. Section 65B
of Indian Evidence Act talks about the admissibility of electronic records in which it is
provided that paper printout by computer shall be deemed as a document if it satisfy the
condition mention under 65 B (2) and certified under 65B (4). Here in this case Joseph has
used the SIM card on the alleged date of offence. The Court later summons Alex, Zonal
Manger of MNO Co. Ltd. where he provided the information about sim card and printout of
the call details and annexure which certified the document because it managed by the service
provider MNO Co.Ltd. The information that was produced by the computer output was
lawfully managed by the corporation that was stored in its database which was used regularly
to store and process information on the period where Alex as the authority of zonal manger
have lawful control over the management of computer.

The said information that was contained in the electronic record was regularly fed because it
was the job of MNO Co. Ltd to store and retrieve the data of their users in the ordinary course
of their activities. Also throughout the said period there were no issues reported in the
computer operating or any error in its database management that would have compromise the
accuracy of content or effect the electronic record as such. In the landmark judgement of
Anwar PV vs Pk Basher it was held that information stored in the electronic form in computer
on being printed as paper shall be considered as document if it concurs with condition
mention in the section 65B (2). So here we have seen that the condition with respect to the
information of the computer output like identification of electronic record, e-evidence
information, timely fed of data in ordinary course of activity mentioned under 65B (2) are
satisfied here.

In the recent judgement of Arjun Panditrao Khotkar vs Kailash Kushantrao Gorantyal the
supreme court held that along with the concurrence of condition under section 65(2), the
certificate under Section 65B (4) of the evidence act is also essential for the admissibility of
electronic records. So here in this case Alex, Zonal manager of MNO Co. Ltd. who was in
responsible official position and under his best knowledge and ability, identified the printout
of incoming and outgoing call details, provided the sim card used by Joseph and provided
annexure about accuracy in statement of electronic record which therefore certified the said

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document under section 65B (4). So in this case as all the condition mention under section
65B (2) are met and also it got certified under section 65B (4) which ultimately hold the
parameter of authenticity and source of electronic record hence it is admissible in the court.

Ans 7.- In the present case a criminal case of causing death by negligence against Doctor
Cain is registered due to the death of Jonathan in cosmetic surgery conducted by Dr. Cain. As
it is a case of medical negligence, Doctor Able is produced before court as an expert in this
case. Section 45 of Indian Evidence Act explicitly deals with the opinion of expert where the
court in order to know the technicalities about particular subject needs assistance from the
expert to give their opinion. The testimony of Expert is valuable to the Court in order to
form opinion in the field of Science and Art. In the case of Titli vs Jones it was held that the
expert opinion should be advisory and corroborated to the facts and circumstances of the
case. In this case Dr Abel was a medical practitioner who have his qualification in MBBS and
MD with specialisation in ENT and have appeared as a witness in other similar case made
him expert in the field of medicine Dr Abel went through the medical records and the post-
mortem report of Jonathan where he testifies that victim died due to asphyxia as a result of
blocked air passages. Dr Abel testifies that the clotting of blood in the respiratory passages
which causes asphyxia is only due to the surgical incision made by doctor Cain. This resulted
into a heart attack leads to the death of Jonathan. The value of the expert opinion is
determined by the facts upon which it is based and the ability of expert in forming of credible
opinion. In the present case the testimony of Dr. Abel is corroborated with the other material
facts like the report on cause of death which makes his opinion reliable on. However, the
evidence given by expert is just a matter of opinion and is not a fact base testimony so it is
given slight value as compared to direct evidence because even if expert is specialized in his
field, he cannot be considered as direct witness and cannot testify about the facts of the case
as in comparison to eye witness.

So in this case Dr. Abel has given his testimony only on the basis of post-mortem report
prepared by Dr Adam and he was not personally present at the time of Jonathan’s death. Also
here the role of Dr. Abel as an expert is simply to give his opinion on the basis of his
specialisation in medical fields and not to convince the court to believe his opinion like
giving statement about his appearance as witness several times or he is not under any
influence of prosecution as such. Here in the present case although the court will consider the

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testimony of Dr Abel under section 45 as an expert opinion but it will not be a ground solely
to convict Doctor Cain.

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