Judge to decide as to admissibility of evidence:
When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
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ADVERTISEMENTS:
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
Illustrations:
(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.
ADVERTISEMENTS:
The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.
(b) It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.
ADVERTISEMENTS:
(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (В, С and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before В, С or D is proved, or may require proof of В, С and D before permitting proof of A.
Comments:
Scope:
This section deals with discretions to be exercised by a judge in connection with the admissibility of evidence. As it has been seen in Section 5 of the Act the evidence can be given of only facts which is either in issue or is relevant to issues. To decide the admissibility and non admissibility of evidence Section 136 embodies three basic rules:
Rule 1:
When party proposes to give evidence of any fact the judge may ask the party in what manner the alleged fact, if proved, would be relevant. The question is to be decided by the judge. If he finds that the evidence would not be relevant he would not allow the party from proving it as because, it would only waste the time of the court. In such circumstances the court may disallow such evidence.
Rule 2:
If the fact proposed to be proved is one of which evidence is admissible only upon prove of another fact, the other fact must be proved before evidence of first fact is given. For example, if a person wants to prove a dying declaration, he must first prove that the declarant is dead. [Illustration (a) and Illustration (b)]. Here admission of fact depends on condition.
Rule 3:
The last paragraph is an exception to the above two rules. Where the relevancy of one alleged fact depends upon the prove of another alleged fact, the judge may, in his discretion, allow the first fact to be proved without proof of the second fact. But the party must give undertaking to prove the second fact to the satisfaction of the court in subsequent stage. Illustration (e).
According to the above rules the question of admissibility of evidence is to be decided by the judge. He is invested with wide discretion to allow evidence to be placed on records. “The object is to elicit the truth from the witness but the character, intelligence, moral courage, bias, memory and other circumstances of witness are so various as to require almost equal variety in the manner of interrogation, and the degree of intensity to attain that end.”—GREENLEAF.