Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the




1] The entire voyage of every criminal trial is to find out the truth. In criminal justice delivery system trial is genus of which contradiction and omission are species. To prove guilt of the accused the prosecution has to prove all ingredients of offence beyond all reasonable doubts. Evidence of prosecution fundamentally emerges from investigation. In our criminal justice delivery system, there are mainly four stages,  those are

A) Investigation by police or inquiry by Court.
B) Prosecution evidence.
C) Defence evidence.
D) Conclusion of Trial.

2] All these stages are interdependent and as we accept long standing legal maxim ‘Audi Alterum Partem meaning there by hear the other side’. In order to appreciate the evidence, the whole evidence on the touchstone of firmness and truthfulness of witnesses need to be considered.
3] The Indian Evidence Act,1872 postulates three stages of oral evidence those are

1)  Examination in chief
2) Cross Examination
3) Re Examination, if required.
4] To appreciate trustworthiness and truthfulness of
a witness contradiction and omission are very important. It helps defence side and also to the prosecution when particular witness turns over from his previous statement.

5] As per Oxford dictionary, the term ‘contradict’ means,
1) denies (a statement).
2) deny a statement made by (a person).
3) be in opposition to or in conflict with.
In other words To contradict means to affirm to the contrary and contradiction means setting of one statement against another and not setting of one statement against nothing at all. If a witness deposes in the Court that a certain fact existed but he has not stated accordingly in his statement before the police,
it is a case of conflict between the deposition in the Court and
statement made before the police.

6] Term ‘Omission’ emerges from verb ‘omit’ means:
(a) Leave out; not insert or include
(b) leave undone
(c) omitting or being omitted
(d) Thing omitted
Oxford dictionary defines the word 'omission' to mean something that has not been included; the act of not including somebody or something. If a witness has deposed in the examination in chief a certain thing which he has omitted
to state before the police in his statement it is called omission.

The relevant provisions in respect of subjects can be found in section 145 and 155(3) of the Indian Evidence Act and under section 162 of Code of Criminal Procedure. Criminal Manual also provides necessary procedure to record the Contradiction and Omission.
Procedure under Criminal Manual
7] The Chapter VI, para 29
(1) When a statement recorded under Section 161 of the Code of Criminal Procedure,1973 is used in the manner indicated in Section 162 of the Code, the passage which has been specifically put to the witnesses in order to contradict him should first be marked for identification and exhibited  after it is proved.
(2) The method of proving such a statement is to question the Police Officer, who had recorded the statement, whether the passage marked is a true extract from the statement recorded by him.

(3) When a statement recorded under section 161 of the Code is used to contradict a witness, the specific statement put to the witness should be set out accurately in the record of the deposition of the witness.
(4) Omissions in the statement recorded under Section 161 should, if denied by the witness, be proved by questioning the Police Officer, whether the witness had made the statement which he says he had.
8] Section 145, provides the manner by which the witness whose previous statement is recorded in writing can be cross examined. Previous statement must be in writing or reduced to writing. For better understanding, this Section can be divided in two parts.
i) Where witness admits his previous statement and
ii) When he does not admit.

9] If the witness admits that he has previously made such statement, then the fact that he made such previous statement stands proved. Hence, it is not required to show such previous statement to him. However, if he says, that he had not made any such statement, then his previous statement should be shown to him and his attention must be drawn to that statement. The principle behind the insistence on showing the previous statement is that unless the  statement is shown to witness he may not be able to remember whether he made such statement or not. This showing will give him an opportunity to remind himself whether he had made any such statement or not. And if after showing him, he admits that he had made such previous
statement then again the fact that he made such statement previously, will stand proved. But if, even after showing the previous statement to him, he denies to have made it, then previous statement which is shown to him, should be proved to be his previous statement.

10] Section 155 of the Indian Evidence Act makes available various modes to impeach the credit of the witness. One of the modes in clause 3 of the Section 155 is by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. The credit of a witness can be impeached by the adverse party or with the consent of the Court by the party who calls him. Hence, proving of the omissions and contradictions in criminal trial is one of the modes to impeach the credibility of the witness. When the contradictions are proved, and such contradictions are material, then the testimony and evidence of such witness becomes weak.


11] A witness had stated before the police and his statement was recorded as per Sec.161 of the Code that “at 10.00 a.m. I saw 'B' hit 'C' on head and killed 'C”. Before, the Court he deposes in examination in chief that “At 8.00 a.m. I saw 'B' hit 'C' with thick iron rod on head and killed 'C.” His statement before the police is contradictory to statement before the Court in respect of time of assault. Secondly, before the police, he omitted to mention a material fact namely use of iron rod. This material omission may amount to contradiction. Both these contradictions will have to be proved in following manner only. Firstly, the witness should be asked that had you stated before the police “that you saw the assault at 10 a.m.?” and in another question that you did not state before police that 'B' hit 'C' with iron bar.” If he admits both the things and answers affirmatively then the statement before police need not be shown to him because by his admission the contradiction in previous statement and present statement stand proved. However, if he answers in negative, then he should be shown his statement before police. The contradictory portion should be confronted to him and then he should be asked that “You have stated this statement before police, what have you to say?”. If he answers in affirmative then that previous statement stands proved and may not be exhibited. The Courts are expected to record this answer in following manner. The witness is shown the portion marked “A” in his statement before police namely that “At 10 a.m. I saw B hit C”. The witness states that, it is true that I stated it before the police. In fact, the portion I saw 'B' hit 'C' is not a contradiction because witness is not stating contrary to it and hence that portion of previous statement is not admissible in evidence in view of Section 162(1) the Code. But it may be taken on record to clear the context in which it is stated. Merely by referring the words “At 10 a.m.” one will not get clear meaning of admission
hence though inadmissible under Section 162 of the Code the contradiction may be taken with so much words in statement before police which will give the context in which they are used so that his admission can be read as a whole.

12] Now if the witness even after confronting the portion marked “A” says that he did not state it before police, then the statement before police will have to be proved. And  that can be proved through police officer. The answer of the witness is expected to be noted in following manner. “the witness is confronted the portion marked “A” in his statement before police namely, that “At 10 a.m. I saw 'B' hit 'C”. The witness states that “ I did not state this portion “A” before police. Thereafter, when the police officer who recorded statement of witness, will come in the witness box, should be confronted with portion marked “A” and should be asked “whether the witness had stated it before you?” The police officer almost in all cases answers affirmatively because he had recorded that statement as per the say of witness under Section 161(3) of the Code. When the police officer answers in affirmative, then the portion marked “A” is said to be proved and thus the previous statement of the witness is proved. Then that portion “A” has to be exhibited.

13] It is sometimes said that, Judges do not allow putting requisite questions to prove omissions and contradictions in FIR under the pretext that FIR (First Information Report) before court is already exhibited and proved document and if there are some omissions and contradiction pertaining to FIR, the Court can read FIR in order to find out what are the omission and contradictions.
Merely reading the contents of FIR by the Court for the purpose of finding out omission and contradiction is not enough since, to prove the omission and contradiction, the attention of witness must be drawn to the contents of FIR.
Secondly, if that complainant for the first time deposed before the court which was absent in FIR then an opportunity to explain must be given to the witness that why this particular fact is absent in FIR.

14] Sometimes the prosecution witnesses do not support the prosecution case even though statement of said witness has been recorded during the course of investigation U/s.161 of the Code. Said witness while recording his examination in chief by the prosecutor, is avoiding to depose in his examination in chief

the fact or the incriminating circumstances against the Accused even though he has stated accordingly in his statement before the police. Therefore, it is the duty of the prosecutor to prove the contradiction in his previous statement (statement before police) in the manner and procedure hereinbefore mentioned.

15] In a criminal trial arising out of police investigation the statement is recorded by the police under Section 161 of the Code and such statement can not be used for any purpose except those mentioned in Section 162 of the Code. The contradiction and omission in the testimony of the witness is to be proved with reference to statement recorded under Section 161 of the Code.
17] In the case of Tahsildar Singh & Anr. Vs. The State of Uttar Pradesh, AIR 1959 Supreme Court 1012, the six Judge bench of the Hon'ble Supreme Court considered the scope of Section 162 of the Code, as it existed then. Whether an omission on material aspect may amount to contradiction or not was also discussed. However, in the Code of Criminal Procedure of 1973 an explanation was added to Section 162 of the Code, which was not there in the earlier Code, to the effect that omission may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs. It is also provided in the said explanation that whether any omission amounts to a contradiction in the particular context shall be a question of fact.

17] The Hon'ble Apex Court in the matter of Tahsildar Singh supra has given guidelines relating to the omission and contradictions which can be briefly stated as under:

1. A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witnessbox and for no other purpose;
2. statements not reduced to writing by the police officer can not be used for contradiction;
3. though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so called but because it is deemed to form part of the recorded statement;
4. such a fiction is permissible by construction only in the following three cases :
(i) when a recital is necessarily implied from the recital or recitals found in the statement;

Illustration : in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witnessbox he says that he saw A and C stabbing B at the same pint of time; in the statement before the police the word "only" can implied, i.e., the witness saw A only stabbing B;
(ii) a negative aspect of a positive recital in a statement;
I llustration : in the recorded statement before the police the witness says that a dark man stabbed B, but in the witnessbox
he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together;

Illustration : the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing, i.e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false.
18] The duty of the Court is to discover the truth and to find out whether the accused is guilty or not. Facts come before the Court by way of oral testimony of witness and other documents. As human being is not free from certain error, moreover with different perception, power of senses and different intellect i.e. analytical reasoning, mental status etc. Therefore, it is not possible to lay down strict rule or straight jacket formula in appreciation of all contradictions and omissions. So every contradiction or omission must, therefore, be judged by reference to various factors. Sometime due to this very nature of human intellect and perception of senses contradictions and omission occur. Real and truthful eyewitness may sometime make genuine mistake in statement before the police and the Court. At that time it must be remembered that contradictions and discrepancies are natural and inevitable in the testimony of even truthful witnesses. So then “when the evidence is discrepant or exaggerated allowance has to be made for the idiosyncrasies of the class from which the witnesses are drawn, their powers of observation, strength of memory and facility of description with a discount for possible bias or prejudice”(Taylor on trial or cases, page86).

19] The Hon'ble Apex Court in the case of Shakila Khader .vrs. Ausher Gama, AIR 1975 Supreme Court 1324
has held that “under section 162 of Cr.P.C. only witnesses on behalf of the prosecution could be contradicted by reference
to their statements made to the police, and not court witnesses or defence witnesses.
20] In the case of S. Govindaraju Vs.. State of Karnataka, 2013 Bom. CR (Cri.) 78, the Hon'ble Supreme Court made following observation with reference to contradiction and omission:"
It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions / omissions were of such magnitude so as to materially a ffect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not effect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial Court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so.

         Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the
other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt.”
22] If the said omission is on minor points, it is not contradiction and the Court will not take cognizance of those omissions. The Court will take cognizance of those omissions which are on material point and which are called contradictions by way of omissions. In order to prove the
omissions, it is necessary to find out as to what he has deposed before the court in the examination in chief and omitted to state in his statement before police.

24] The Hon’ble Supreme Court in the matter of Ganesh K. Gulve etc. v/s. State of Maharashtra, AIR 2002 15 SC 3068 observed that, " In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is committed. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely connected with the crime be also convicted. Everyone's different way of narration of same facts. These are only illustrative instances. Bearing in mind these broad principles, the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct state of affairs. It is for the courts to separate the grain from the chaff. .. ".

25] The Hon'ble Apex Court in the case of Appabhai .Vs. State of Gujrat, AIR 1988 S.C. 694 has observed that, "The Court while appreciating the evidence must not attach undue importance to minor discrepancies.
The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter, so as to demolish the entire prosecution story. The witnesses now a days go on adding embellishment to their version perhaps for the fear of their testimony being  rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
26] The effect of omission which may amount to contradiction depends upon totality of proved facts. Their Lordship of Hon'ble Supreme Court in Boya Ganganna and others V/s. State of A.P., AIR 1976 SC 1541 that “Minor contradictions are bound to appear when ignorant and illiterate women are giving evidence. Even in case of trained and educated person's memory sometimes fails and this would be much more so if case is ignorant and rustic woman.”

27) Recently the Hon'ble Apex Court had make observation about statement recorded under section 164 of Cr. P. C. in relation to sensitive cases of rape in the case of State of Karnataka by Nonavinakere Police Versus Shivanna @ Tarkari Shivanna [2014 (3) Bom.C.R.(Cri.)
98]. Hon'ble Supreme Court has observed in para 4 of the judgment, “4. What we wished to emphasize is that the recording of evidence of the victim and other witnesses multiple times ought to be put to an end which is the primary reason for delay of the trial. We are of the view that if the evidence is recorded for the first time itself before the Judicial Magistrate under section 164 Cr. P.C. and the same be kept in sealed cover to be produced and treated as deposition of the witnesses and hence admissible at the stage of trial with liberty to the defence to crossexamine them with further  liberty to the accused to lead his defence witness and other evidence with a right to crossexamination by the prosecution, it can surely cut short and curtail the protracted trial if it is introduced at least for trial of rape cases which is bound to reduce the duration of trail and thus offer a speedy remedy by way of a fast track procedure to the Fast Track Court to resort to.”

28] In Oxford dictionary the word Hostile is defined as "very unfriendly or aggressive and ready to argue or fight" This is a Latin origin word derived from "hostlis", from "hostis", means enemy. A witness who is unfavourable is not necessarily hostile. A hostile witness is one who, from the manner in which he gives his evidence shows that he is not desirous of telling the truth.
29] Section 154 of the Evidence Act empowers the Court to allow the person who calls a witness to put any question to him which might be put in cross–examination by the adverse party. The Hon'ble Supreme Court in the case of Sat Paul Vs. Delhi Administration, AIR 1976 S.C. 294, has held that the discretion conferred by Section 154 on the Court is unqualified and untrammeled and is apart from any question of hostility. It is to be liberally exercised whenever the Court from witness's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a 18 perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. It is also held that the grant of such permission does not amount to an adjudication by the Court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expression, such as, “declared hostile”, “declared unfavourable”, the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.

29] In another significant judgment the Hon'ble Supreme Court in the case of Gangadhar Behera and Ors. Vs. State of Orissa, AIR 2002 Supreme Court 3633, has held that maxim “Falsus in uno falsus in omnibus” is not applicable in India and the witnesses cannot be branded as liar. It is further held that the doctrine is a dangerous one specially in India for if a whole body of a testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of a criminal justice would come to a dead stop. It is further held that, therefore, it has to be apprised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respect the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well.

31] In the case of State of U.P. vrsRamesh Prasad 19 Misra and another, (1996) 10 SCC 360, the Hon’ble Apex Court observed that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted .....”
32] It is also observed by the Hon'ble Apex Court in the a case of Koli Lakhmanbhai Chanabhai vs. State of Gujrat, AIR 2000 Supreme Court 210 that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version and it is not necessary that it should be relied upon or rejected as a whole.

33] In the case of Balu Sonba Shinde VrsState of Maharashtra, AIR 2002 SC 3137, the Hon'ble Supreme Court held that, ‘while it is true declaration of a witness to be hostile does not ipso facto amount to rejection of his evidence – and it is now well settled that the portion of evidence being advantageous to the parties may be taken advantage of – but the court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such reliance.’ A witness is considered to be hostile witness when in the opinion of the Court the witness is saying against the party which has invited him and the witness adopts an adverse attitude to the party that has invited him. A hostile witness is that who gives evidence in his own way but he shows that he does not intend to speak truth. The hostility of the witness and his adverse attitude can only be inferred from his statement and his conduct. The Court should exercise its  discretion very judiciously because the witness wants to conceal the truth or who has been won over by the adverse party. Therefore, it is necessary that if witness did not disclose the fact even though he knows the fact the Court should declare the witness hostile and permit to crossexamination to the party who has called such witness to adduce evidence.

34] Contradiction and omission are very important part of actual cross examination during criminal trial. Proved contradictions and omissions, if relevant and material, affect veracity and trustworthiness of a witness. It is, thus, the duty of the Court to record contradiction and omission carefully and properly as per the manner guided by the Hon'ble Apex Court, strictly with adherence to the provisions of section 145 of Evidence Act and section 162 of Code of Criminal Procedure. Similarly, the evidence of the hostile witness cannot be outrightly rejected for his hostility.


Popular posts from this blog

How long a Will is valid after the Death?


Probate In India: Definition, Importance & Application