(8) I am firmly of the opinion that mere admission of document in evidence does not amount to its proof. Admission in evidence of a party's document may in specified cases exclude the right of opposite party to challenge its admisibility. The most prominent examples are when secondary evidence of a document within the meaning of Sections 63-65 of the Evidence Act is adduced without laying foundation for its admissibility or where a document not properly stamped is admitted in evidence attracting applicability of Section 36 of Stamp Act. But the right of a party disputing the document to argue that the document was not proved will not he taken away merely because it had not objected to the admisibility of the document. The most instructive example is of a Will. It is a document required by law to be attested and its execution has to he proved in the manner contemplated by Section 68 of the Evidence Act read with Section 63 of the Succession Act. The party challenging the Will shall not be excluded from demonstrating at the final hearing that the execution of the Will, though exhibited, was not proved is statutorily required.
(9) THE law laid down by the Supreme Court in Sait Taraji Khimechand VS. Yelamarti Satvam (AIR 1071 SC 1865) is :- 'The mere marking of an exhibit does not dispense with the proof of docments'.
(10) TWO Division Benches of Lahore High Court Ferozchin VS. Nawab Khan, AIR 1928 Lahore 432 and Hari Singh VS. Firm Karam Chand, AIR 1927 Lahore 115 have clearly held that the admission of documents under Order 13 Rule 4 Civil Procedure Code does not bind the parties and unproved documents cannot be regarded as proved nor do they become evidence in the case without formal proof
(11) I have looked into the provisions of Delhi High Court (Original Side) Rules 1967 also. Chapter XIII Rule 3 provides for documents admitted in evidence being numbered in such manner as the Court may direct.
11.1 There is an Original Side Practice Direction (No.3 of 1974), which vide paras 6 and 7 provides :- 6. The Court Master of the Court shall lake charge of every document or object put in as an exhibit during the trial of any case and shall mark or label every exhibit with a letter or letters indicating the party by whom the exhibit is put in or the witness by whom it is proved, and with a number, so that all exhibits put in by a party, or proved by a witness, arc numbered in one consecutive series. 7. The Court Master of the Court shall examine all documents produced or offered in evidence and bring any apparent insufficiency of the court fee or other stamps to the notice of the Judge for orders. He shall endorse all documents admitted in evidence and all documents rejected with the particulars required by law and sign or initial such endorsement. (underlining by me).
11.2 A bare reading of this Practice Direction shows that it is not artistically drafted 'Proved' as used in para 6 is nothing else except used loosely for 'put in' 'produced' or 'tendered'. After all the question of proof is not answered by Court during the statement of witnesses simultenously with production of documents nor does the Court Master decide upon proof of documents. Para 7 makes it clear that endorsement by the Court Master of exhibit number, on a document is 'admission in evidence' and not proof of a document.
(12) IN Baldeo Sahai VS. Ram Chander & Ors., AIR 1931 Lahore 546 it was said :- "There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents MC (marked ?) proved and formally tendered in evidence. It is at this later stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are returned to the party who produced them with an endorsement thereon to that effect”. A reading of the report shows that it was the practice of the Court to endorse the documents soon on their filing which practice was deprecated and hence slopped. The word "proved" has been used by the Division Bench in the sense of 'proposed to be proved' as is clear from its having been used alongwith the word 'tendered' or "admitted" in evidence. The word proved has been loosely used for describing the stage after filing of the documents, when the Court would decide only whether they should be admitted or rejected. The Division Bench cannot be read as holding that the document is not to be endorsed with an Exhibit number unless and until proved. As stated in para 6 hereinabove, the stages of tendering/admitting/rejecting in evidence and holding a document proved - are two distinct and different stages, not one. They are respectively the second and third stages.
(13) ADMISSION of a document in evidence is not to be confused with proof of a document.
(14) WHEN the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each lime a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit. (Note:- the Hon’ble Judge is referring to the Section 134 of the Indian Evidence Act, 1872, which reads: “Number of witnesses – No particular number of witnesses shall in any case be required for the proof of any fact”; vide which the Hon’ble Court have the jurisdiction to disbelieve any document or oral deposition – Author).
(15) THE marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was I he document before the witness when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering which was the document to which the witness was refering to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit.
(16) THIS makes the position of law clear. Any practise contrary to the abovesaid statement of law has no sanctity and cannot be permitted to prevail.
(17) EVERY Court is free to regulate its own affairs within the framework of law. Chapter XIII Rule 3 abovesaid contemplates documents admilted in evidence being numbered in such manner as the Court may direct. I make it clear for this case and for all the cases coming up before me in future that the documents tendered and admitted in evidence shall be marked with numerical serial numbers, prefixed by Ex.P if filed by plaintiff or petitioner and prefixed by Ex.D if filed by defendant or respondent.
(18) REVERTING back to the case before me, let the report of Notary Public be endorsed with an exhibit number by the Court Master.
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IMP POINT: In my file about Police Stations, I wrote that, from the Bus Stops the Indian Police do arrest people. I did not have a ready example to give. Now I am giving that example:- “Arrest at Bus Stands - 2005 (3) AD(Del) 633 : 2005 (2) JCC 604 : 2005 (118) DLT 353 : 2005 (81) DRJ 72 : 2005 LE(Del) 173 – State Versus Tika Ram - However, on 8th April, 1996, the convict Tika Ram was apprehended at Ruparia Bus stand, near Nepal border”. In this Case, Tika Ram had been a Nepali Servant, who had been sentenced to death by ASJ:DELHI. DHC reduced that to Life Imprisonment. Mainly relying upon Confession and Disclosure of his pant with gold ornaments. Motive is the Torture he faced from family members.
In fact, the Magistrate and ASJ had permitted Framing of this case, which I am prima facie not able to believe. Nepalis are very loyal. Indian Army, Pakistan Army, USA Army, UK Army etc many armys have their own Gurkha Regement, and all such Gurkhas are expected to live within one territory at Nepal during monthly 2 months leave. All these countries have “Official Secret Act”. However, no-one fears that, Gorkha Soldier of India will commit theft of document and give to his brother Gorkha Soldier of USA. Whereas we have many Indians in Jail under OSA espionage charges, we do not have this fear.
At Kerala Gorkhas are Night Watchmen, who kill poisonous snakes only with Khurki and knife.
In fact, among the beneficiaries of the deaths, how many had been questioned is to be ascertained from Delhi Police. Had I been in Judiciary to handle this case, I could have made efforts to locate.
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This Tika Ram’s case I read yesterday only, and above Tika Ram case was read by me. My remakrs in the “NHRC FILE : 85. SREEKESH TORTURE CASE” is copied below.
My Remarks from D.Ashokan's statement:-
Interpretation: the Translator begs to Interpret the circumstances revealed at this point of this Document, in the interests of justice, that, according to the Facts alleged by the CI, on date xxx-5-09 [25-5-09] the complainant before Hon'ble NHRC, namely Mr. Sreekesh had not at all been questioned by the Police Personnel, the only incident took place is the Exchange of hot/ angry Words between the Advocate for Mr. Sreekesh and the Circle Inspector, and after the exchange of words the Complainant Mr. Sreekesh left in the company of his Advocate. From the Statement recorded by 'witness Dr. Rajesh Kumar' it may be read that, Injured person Mr. Sreekesh had two days old injuries on 26-5-09, but the experienced Circle Inspector could not note any injuries/ weakness upon the person of Mr. Sreekesh on date 25-5-09. The most important point is, if it is to speak only about Narco-Analysis test, it was not at all necessary for the Police to Summon a De-facto complainant to the Police Station; thus the Translator have the honour to Interpret the Incident dated xxx-5-09 [25-5-09] that, many relevant informations had been concealed by the 'accused' before Hon'ble NHRC – Translator
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(Interpretation: in the interest of justice, the Translator beg to do interpretation of this submission made by witness: the accused CI is interpreting the Statute Criminal Procedure Code, 1973, Section 154 to the effect that, FIR is written against particular persons and not about theft of 4 kg Gold; and just because a Suspect will allege injuries and get admitted in the Hospital for 10 days, the Police can/ will be black-mailed/ compelled to discard the investigations against the said individual; but continue investigating about the theft of 4 kg gold without questioning the suspect. The Circle Inspector had not told even one word about, how 4008 grams = 501 Sovereign according to Kerala measurement having value of more than Rs.50,10,000/- had been send alone in the hand of an individual, who did not have Breakfast and did not clear his Bowels/ Natural Calls while permitting him to go away taking the said Consignment, and how he had been permitted to travel alone by Public Conveyance without being escorted/ shadowed by another person, and whether the Investigating Officer Circle Inspector had ever suspected the role of owners of the said Gold to cheat the Income Tax/ Wealth Tax Departments. According to the Circle Inspector Ashokan, only Employees will commit theft and not employers thus they need not even be questioned. – Translator).
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NHRC Case Number 55/11/1/09-10 dated 20-10-2009.
Law Division M-4.
TRANSLATION FROM MALAYALAM
This file contains 10 documents in 25 pages, all photocopies.
Translator's Submissions:- The photocopies provided for the translation have many words, at many pages, incomplete because of tag's place darkness and right side margin of bottom margin had caused loss of one words each in each line or loss of one complete line. It is written as a precaution against any words not becoming readable. At such places xxx sign is used - Translator.
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Translation of photocopy of Petition enquiry report, typed written in 4 pages:-
PETITION ENQUIRY REPORT
No. 1816/PF-12/2009.KSD.
PROFORMA
(1). Name of the Complainant: R. Ajayan, Peoples Union for Civil Liberties, Secretary for the District of Thiru-vanantha-puram District.
(2). Name of the Opposite Party:- Police Personnel at the place Harippad.
(3). Complaint re-written only in (Diamond's) important details: On the date 13-05-09, from the Allapuzha/ Alleppey Branch of M/s Bhima Jewellers, one individual named Mr. Sreekesh had taken Gold weighing 4 kilograms to the place Kollam/ Quilon; while he had been enroute to his destination, at the place Harippad, the thieves had stolen the said Gold; for this incident the Case had been registered at the Police Station Harippad, vide Crime Number 275 of 2009, under section 379 IPC; due to the (investigation for) said case during dates 22-05-09 to 25-05-09 he had been detained by the Police Personnels at the place Harippad and tortured by the Police Personnels working under the Circle Inspector of Police at the place Harippad; this is the News Item.
(4). Whether case had been registered relying upon the Complaint; if yes details of the complainant; the details of the case: Case Number, date, time etc:- No.
(5). The Investigating Officer's name, designation etc details: Not applicable.
(6). The Investigation reached now, at which stage: Not applicable.
(7). The facts which had been revealed during Investigation about the complaints/ allegations made:-
On date 28-05-2009 in the News Papers a Report had appeared with the head-line: “Youth alleges xxx torture” (Note: this head-line had been written in English, means the complaint is relying upon a News report in English – Translator). Relying upon the said News report, the complainant had submitted his complaints before the following offices:- (1) Hon'ble xxx Minister Shri Kodiyeri Balakrishnan and (2) Hon'ble Human Rights Commission; the said complaint had been forwarded to this office for my personal investigations and Report.
Regarding the allegations in the complaint, direct investigations had been carried out and during said investigation the witnesses had been met and questioned and the undermentioned witnesses statements had been recorded. Besides that, the file had been examined: related to this incident the Case had been registered at the Police Station Harippad, Crime No-275 of 2009, under section 379 IPC; the CD file related to this case had been examined.
(1). Mr. Sreekesh, aged 26 years, son of Mr. Muralidhara Pai, resident of house named Priya Veetil, TC 54/574, at the place Karaikka Mandapam, Village Nemam, Taluk Thiru-vanantha-puram.
(2). Mr. Ajith, aged 40 years, son of Mr. Santha Kumar, resident of house named Melethil Ullakath Veetil, at the place Karim Kulam Desam, Village Karim Kulam, Taluk Neyattin-Kara.
(3). Dr. Rajesh Kumar, Assistant Civil Surgeon, Hospital Perro-Kkada.
(4). Mr. Shiju, working in the designation of Sub-Inspector at the Police Station Kochi City Hill.
(5). Mr. Dina Dayal Vallan, bearing number PCA 5010, at the Police Station Nedumudi.
(6). Mr. Suresh Krishna B, bearing number PC 4788, at the Police Station Allapuzha South.
(7). Mr. B. Ashokan, working in the designation of Assistant Sub-Inspector at the Police Station Harippad.
(8). Mr. PM Baiju, working in the designation of Sub-Inspector at the Police Station Harippad.
(7). Mr. D. Ashokan, working in the designation of Circle Inspector at the Police Station Harippad.
During the investigation the following facts had been revealed:-
The individual named Mr. Sreekesh, aged 27 years, son of Mr. Muralidhara Pai, resident of house named Priya Veetil, TC 54/474, at the Village Nemam, District Thiru-vanantha-puram; who had been working at M/s Bhima Jewellers, Kollam/ Quilon; on date 13-05-09 during morning time, from the residence of the persons owning M/s Bhima Jewellers, located at the place Allapuzha/ Alleppey; in a bag, Gold weighing 4 kilograms and 8 grams had been taken by this individual and while he had been going from Allapuzha to Kollam travelling by the KSRTC (= Kerala State Road Transport Corporation) Super Fast Bus running between the places Thrissur to Thiru-vanantha-puram; in that between the places Allapuzha and Harippad, some persons had opened the Zip of the Bag and that had been opened using Blade (or any other sharp tool), and the above stated Gold had been stolen and taken away by those persons; this factum had came to the knowledge at day time 09.45 hrs at the place Harippad; and xxx including the said individual had came to the Police Station Harippad and relying upon the Statements recorded by the said individual, the Sub-Inspector at the Police Station Harippad had registered the Crime Number 8 275/09 u/s 379 IPC. On the said date the Circle-Inspector at the Police Station Harippad had been on the Court duty at the place Neyattin-Kkara, thus the Circle-Inspector at the Police Station Kayam-Kkulam had carried out the investigation for the said date and the further investigation had been carried out by Mr. D. Ashokan the Circle-Inspector at the Police Station Harippad. (Note: the differences in the age and door number of the Victim are not corrected – Translator).
Hence the Statement given by Mr. Sreekesh could not be believed completely, the said individual had been subjected for Poly-graph test at the Forensic (Science) Laboratory, Thiru-vanantha-puram; on 19-05-09. In the said Poly-graph test, a few suspicious points/ hints/ tips could be received about Mr. Sreekesh; and relying upon those points, (Note-Submissions by Translator: 'the complainant/ suspect Mr. Sreekesh had been brought or summoned to a closed place/ Police Station after sunset', are the words avoided to be written by the Investigating Officer at this place - Translator) on date 23-5-09 during night time by 09.30'o clock, following Police Personnels who had been Assistants in the investigation in the said case, namely, Shri Shiju, working in the designation of Sub-Inspector at the Police Station South; Mr. Dina Dayal Vallan, bearing number PC 5010; Mr. Suresh Krishna, bearing number 4788; and Mr. Joseph Stanley, bearing number 4524: these all Police Personnels had done Questioning in detail about this incident, and when the Questioning had been progressing, including the Circle Inspector, all the above 4 Police Officers had been present, and the above named Shri. Sreekesh had been tortured a little more than the permissible negligible physical hurt: the undersigned Investigating Officer will have to think like that. From the side of an experienced Circle Inspector, like this defects could not have been committed and it is revealed in the investigation that, the delinquency deserves prosecution/ further action.
The incident of theft of Gold having weight more than 4 kilograms, the crime which had been registered on date 13-05-09 vide Crime number 275 of 2009 under section 379 IPC; related to the investigation of this case, the above named Mr. Sreekesh had been summoned by the Investigating Officers between dates 13-05-09 to 23-05-09 depending upon the progress in the investigation, to know many things and to get doubts clarified; besides that like what had been alleged in the complaint, the said individual had not been illegally detained in the Police Station, or had not caused harassment in any manner: these things had been revealed in the investigation carried out by the undersigned investigating officer. Other-than what had been described in the previous paragraph, all other complaints which had been alleged in the complaint are without foundation and contrary to established facts: these things had been revealed in the investigation carried out by the undersigned investigating officer.
(Column No-8). Number of witnesses who had been questioned: 9.
(Column No-9). Whether the complainant had been questioned: No. Related to the xxx Mr. Sreekesh, son of xxx had been xxx subjected (Note:- the complete answer may be, 'the complainant in this PIL complaint had not been questioned, however the real victim, namely Mr. Sreekesh, had been questioned' – Translator).
(Column No-10). If the females had died suspiciously within the same year of the solemnization of marriage, (at the nuptial house) of their arrival; if the case is like that, whether the instruction which had been given by the Central Government in such cases had been complied ? If yes, write the complete details:- Not applicable.
(Column No-11). Whether the Certificate etc thing related to the Injury had been collected and examined ? If yes, write the details. If no, write the reason for the same:- Not applicable.
(Column No-12). What is the opinion of the medical officer regarding the injury/ death:- Not applicable.
(Column No-13). Whether case had been charged ? If yes, when ? At which stage the said case is:- Not applicable.
(Column No-14). Regarding the said case if any other details are available describe the same:- Not applicable.
Following documents are Annexed herewith:- (1) Original complaint which had been forwarded to this office, (2) statements of the witnesses, (3) Polygraph Test Report xxx copy.
Sd/- name not written.
Deputy Police Superintendent,
Kayam-Kulam.
/CERTIFIED TO BE TRUE TRANSLATION/
Dated: 21-10-2009.
G.Ramanathan, Advocate,
Translator. Enrolment No. Delhi 1282/2000.
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Translation of the 2nd document's photocopy. At the top margin of the document which is in 5 pages handwriting, at alternative pages, the page numbers 43, 45 and 47 are given:-
Statement made by Mr. Sreekesh, aged 26 years, son of Mr. Muralidhara Pai, resident of house named Priya Veetil, TC 54/474, at the place Karaikka Mandapam, Village Nemam, Taluk Thiru-vanantha-puram, District Thiru-vanantha-puram:
I am working at the M/s Bhima Jewellers, Kollam/ Quilon since the last 9 years, in the designation of Shop Assistant. I had been doing all the jobs including Sales. Complying the directions issued by the Manager, I used to collect the Gold from the house of (the shop owners) M/s Bhima, located at Allapuzha/ Alleppey to the Show-room at Kollam/ Quilon. When I am ordered to do such work, on the previous night itself that will be told by the Manager. On date 12-5-09 during night time by 8½'o clock when the shop had been getting closed, the Manager Mr. Muralidharan Potti had told that, on the next day, should go to Allapuzha, and one pair of Ear-Studd should be given to one individual at the place Kayam-kulam. On that day during morning 6'o clock, a bus had been boarded by me and at 7.45'o got down at the Medical College Junction, from there hired an Autorickshaw and reached at the residence of the Shop Owner. It might by approximately 8'o clock at that time. From the place Kollam (Show room) xxx had been given to me, that had been given by me to their house, and from the hands of Mrs. Shilpa who is wife of xxx had collected one bag in Navy Blue colour. Inside the bag, there had been Gold. At that time I had no knowledge as to how many kilograms Gold had been contained by the said bag. While having possession of the said bag, I had my food/ breakfast from the Gokulam Restaurant located opposite Shree Rama Kalyana Mandapam (= permanently constructed marriage solemnizing halls). After that reached at the Kalyana Mandapam and went to the Toilet and reached at the Bus Stand and had boarded the KSRTC (= Kerala State Road Transport Corporation) Bus and purchased the ticket for the place Kayam Kulam. At that occasion, the time of morning 8.30'o clock had been over. The bus in which I had boarded had been Thiru-vanantha-puram Superfast Bus. The bus had left the place and reached at the place Ambala Puzha, at that time 4 or 5 persons/ passengers had boarded the bus. The bus had been the Model which had the door at the front side. The seat at which I had been sitting is: at the left side of the bus, from the front side, at the second seat. The persons/ passengers who had boarded the bus from the place Ambala-Puzha had been standing at the right side of the seat where I had been sitting by creating a Crowd. I had been keeping the bag in the laps. A