Evidence Act, 1872-Section 32 Clause (5)-Date of birth-Proof of-Horoscope-Evidentiary value of-Held : Horoscope is a weak piece of evidence to prove age of a person and cannot be relied upon unless its authenticity is proved by cogent evidence-Cannot be given primacy over the school leaving certificate-Service Law. At the time of appointment as Patwari, respondent disclosed his date of birth to be 1.10.34. On a complaint, an enquiry was conducted and it was found that his actual date of birth was 25.11.31. Thereupon, Deputy Commissioner dismissed him from service. He unsuccessfully preferred appeal before Commissioner. Thereafter, Respondent filed suit for declaration that the correct date of birth is the one recorded in service book i.e. 1.10.34 and in support submitted his horoscope. Trial Court dismissed the suit holding that there was no ground to interfere with the orders of Deputy Commissioner. First appellate court allowed the appeal accepting the date of birth as mentioned in the horoscope. High Court dismissed the Second appeal on the ground that no substantial question of law was involved. In appeal to this court, appellant contended that school register and the connected records were produced which showed that the date of birth was 25.11.1931. The evidentiary value of these documents was discarded by the first appellate court primarily on the ground that a horoscope was produced according to which the date of birth was 1.10.1934.- Allowing the appeal, the Court HELD : 1. The school records have more probative value than a horoscope. Where no other material is available, the horoscope may be considered but subject to its authenticity being established. These aspects were not considered by the first appellate court and the High Court. The High Court was, therefore, not justified in dismissing the Second Appeal by observing that there was no substantial question of law involved. [764-D-E] 2. Respondent claimed that both school leaving certificate and the horoscope were produced and the date of birth was recorded by relying on the horoscope. It has not been explained as to how varying dates remained and why no steps were taken to get the school records corrected. On enquiry, the school leaving certificate was found to be forged one. There was no effort to reconcile the discrepancy in the so-called horoscope and the school record as taken note of by the Trial Court. The first Appellate Court took a different view without any plausible reason. [762-G-H; 763-B] 3. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 Clause (5) Evidence Act, 1872, must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time etc. mentioned therein. No evidence was led by the respondent to prove authenticity of the same. In any event the same was not to be given primacy over the school leaving certificate. It was not shown as to how the entry therein was wrong. The onus was on the respondent to prove that the same was not correct, which was not discharged. [763- E-F, C-D] Ram Narain Vallia v. Monee Bibi, ILR 9 Cal. 613; Mst. Biro v. Atma Ram, AIR (1937) PC 101 and Satish Chandra Mukhopadhya v. Mohendra Lal Pathak, ILR 97 Cal. 849, relied on. 4. The statement contained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative, is more authentic evidence under Section 32 Clause (5) unless it is established that it is inherently improbable. The time of one's birth relates to the commencement of one's relationship by blood and a statement therefore of one' age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 Clause (5). Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the need of a particular situation. Entires in the school register and admission form regarding date of birth constitute good proof of age. [763-G-H, 764-A, B-C] Uttam Chandra v. State of Rajasthan, [1982] 2 SCC 202, relied on. Atul Nanda, A.A.G. for the State of Punjab, Arun K. Sinha for the Appellant. Nidhesh Gupta, Vinod Shukla and Ms.S. Janani, for the Respondent.- 2005 AIR 1868, 2005(2 )SCR758 , 2005(3 )SCC702 , 2005(3 )SCALE173 , 2005(3 )JT220

CASE NO.:

Appeal (civil)  1730 of 2005

PETITIONER:

State of Punjab

RESPONDENT:

Mohinder Singh

DATE OF JUDGMENT: 14/03/2005

BENCH:

ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T

(Arising out of SLP (C) No. 22477/2003 

ARIJIT PASAYAT, J.

Leave granted.

Appellant-State calls in question legality of the judgment 

rendered by a learned Single Judge of the Punjab and Haryana High Court 

dismissing the Second Appeal filed by it under Section 100 of the Code 

of Civil Procedure, 1908 (in short the 'Code') holding that no question 

of law was involved.

The background facts are as under:

The respondent (hereinafter referred to as the 'plaintiff') was 

appointed as a Patwari on 5.2.1958.  At the time of appointment he 

disclosed his date of birth to be 1.10.1934. Complaints were received 

and preliminary enquiry was conducted and it was held that his actual 

date of birth is 25.11.1931.  A suit was filed by the respondent for 

declaration to the effect that his date of birth as recorded in service 

book i.e. 1.10.1934 is the correct date of birth and plaintiff is 

entitled to all benefits and privileges which would have accrued to him 

had he continued on that basis till the date of superannuation i.e. 

30.9.1992 and for setting aside the punishment awarded for allegedly 

manipulating records and disclosing wrong date of birth.  

Following issues were framed by the trial Court:

"1. Whether the High Court was justified in 

observing that no substantial question of law arises 

in the second appeal, whereas the substantial 

question of law was/is whether interpretation of the 

expression "Government" in Rule 2.5 Note 1 of Punjab 

Civil Service Rules is not competent/appointing 

authority, who is the Deputy Commissioner in this 

Case?

2. Whether as per Rule 2.5 Note 1 of Punjab Civil 

Service Rules, the date of birth entered in the 

Service Book of an employee cannot be changed by the 

Competent Authority after conducting a regular 

enquiry and giving proper opportunity of hearing to 

the said employee?

3. Whether submission of wrong date of birth at 

the time of joining service amounted to misconduct on 

the part of the said employee?

4. Whether the date of birth entered in the 

matriculation certificate shall not prevail over the 

date of birth mentioned in the horoscope?

5. Whether entering a correct date of birth in 

service book after valid enquiry qua the correct date 

of birth of the Respondent can be challenged, which 

was entered after affording proper opportunity of 

hearing and which is final and never challenged as 

bad?

6. Whether the respondent, who is literate and was 

qualified to be appointed as Patwari was supposed to 

know the admissibility of document in respect of date 

of birth, did not tamper with documents by submitting 

a wrong date of birth i.e. 1.10.1934 instead of 

25.11.1931?

7. Whether a long span of 33 years ought to be 

allowed to come in the way to correct a false entry 

regarding date of birth made on wrong and tampered 

documentation of an employee, which undoubtedly being 

the date of birth shall seriously affect the services 

of the colleagues of the said employees in the same 

cadre?"

Learned Civil Judge (Senior Division) dismissed the suit holding 

that there was no ground to interfere with the orders of the Deputy 

Commissioner who, on the basis of the enquiry conducted, had observed 

that the date of birth was 1931 and not 1934 and if he had given actual 

date of birth he would have been over age and would not have been 

eligible for the post of patwari. The enquiry report of the Additional 

Deputy Commissioner was submitted on 21.5.1985.  The Sub-Divisional 

officer, Sangrur who hold the enquiry held that the charge regarding 

change of date of birth from 25.11.1931 to 1.10.1934 was proved.  The 

Deputy Commissioner dismissed the respondent from service with effect 

from 27.7.1988 after granting opportunity of hearing. An appeal was 

filed before the Commissioner who by order dated 18.6.1990 dismissed 

the same.  He, however, reduced the punishment by observing that ends 

of justice would be met if he is reduced by one stage in his running 

grade with effect from the date on which he was charge-sheeted till 

retirement and he will not earn any increment during the period of this 

reduction till the date on which respondent was superannuated from 

service.  

Against the order passed by the trial court an appeal was 

preferred before the District Judge who held that the materials on 

record do not show that there was any change in the true date of birth 

and the claimed date of birth i.e. 1.10.1934 is the actual date of 

birth as recorded.  Second Appeal filed by the appellant as noted above 

was dismissed on the ground that no substantial question of law was 

involved.

Learned counsel for the appellant submitted that the approach of 

the first Appellate Court is not proper. On the basis of materials on 

record and after enquiry it was held that the date of birth was 

25.11.1931 and not on 1.10.1934 as claimed.  School register and the 

connected records were produced which clearly show that the date of 

birth was 25.11.1931. The evidentiary value of these documents was 

discarded by the first Appellate Court primarily on the ground that a 

horoscope was produced according to which the date of birth was 

1.10.1934.

In response, learned counsel for the respondent submitted that on 

evaluation of evidence the first Appellate Court held that the date of 

birth was 1.10.1934 and when a horoscope is available merely because a 

different date is indicated in the school record same is of no 

consequence.  

During the course of hearing of the matter we directed the 

respondent to produce the original school leaving certificate which was 

sought to have been brought from the Government High School, Gujjarwal. 

It was filed by the respondent. A perusal thereof shows that the date 

of birth has been clearly indicated to be 25.11.1931.  Stand of the 

respondent as noted above was that the date of birth was entered in the 

service record by relying on the horoscope.  It is to be noted that 

respondent claimed that both school leaving certificate and the 

horoscope were produced and the date of birth was recorded by relying 

on the horoscope.  It has not been explained as to how varying dates 

remained. If according to the respondent, the horoscope reflected the 

actual state of affairs it has not been explained as to why no steps 

were taken to get the school records corrected.  The first Appellate 

Court was not justified in its conclusion that there was no material 

adduced by the present appellant to substantiate its stand regarding 

the date of birth.  One thing further significant is that a school 

leaving certificate was produced at the time of appointment.  On 

enquiry it was found that the same was forged one. Apart from the fact 

that there was no effort to reconcile the discrepancy in the so-called 

horoscope and the school record is a factor which has rightly been 

taken note of by the Trial Court.  Without any plausible reason the 

first Appellate Court took a different view.  

In terms of Section 32, clause 5 of the Indian Evidence Act, 1872 

(in short the 'Evidence Act'), the evidentiary value of a horoscope has 

to be considered.  No evidence was led by the respondent to prove 

authenticity of the same.  In any event the same was not to be given 

primacy over the school leaving certificate.  It was not shown as to 

how the entry therein was wrong. The onus was on the respondent to 

prove that the same was not correct, which was not discharged.  Two 

photostat copies of the school leaving certificate were produced before 

the enquiry officer.  He compared them and found that even to naked eye 

change of figure "31" to "34" was visible.  Interestingly in the said 

copies the date of birth was indicated even after the change to be 

25.11.1934 and not 1.10.1934 as claimed.

       

Horoscope is a very weak piece of material to prove age of a 

person. In most cases, the maker of it may not be available to prove 

that it was made immediately after the birth.  A heavy onus lies on the 

person who wants to press it into service to prove its authenticity.  

In fact, a horoscope to be treated as evidence in terms of Section 32 

Clause (5) must be proved to have been made by a person having special 

means of knowledge as regards authenticity of a date, time etc. 

mentioned therein.  In that context horoscopes have been held to be 

inadmissible in proof of age. (See Ram Narain Vallia v. Monee Bibi (ILR 

9 Cal.613), Mst. Biro v. Atma Ram (AIR 1937 PC 101), Satish Chandra 

Mukhopadhya v. Mohendra Lal Pathak (ILR 97 Cal. 849).

     

On the contrary, the statement contained in the admission 

register of the school as to the age of an individual on information 

supplied to the school authorities by the father, guardian or a close 

relative is more authentic evidence under Section 32, Clause (5) unless 

it is established by unimpeachable contrary material to show that it is 

inherently improbable. The time of one's birth relates to the 

commencement of one's relationship by blood and a statement therefore 

of one's age made by a person having special means of knowledge, 

relates to the existence of such relationship as that referred to in 

Section 32 Clause (5).

As observed by this Court in Umesh Chandra v. State of Rajasthan 

(1982 (2) SCC 202), ordinarily oral evidence can hardly be useful to 

determine the correct age of a person, and the question, therefore, 

would largely depend on the documents and the nature of their 

authenticity. Oral evidence may have utility if no documentary evidence 

is forthcoming.  Even the horoscope cannot be reliable because it can 

be prepared at any time to suit the needs of a particular situation.  

Entries in the school register and admission form regarding date of 

birth constitute good proof of age. There is no legal requirement that 

the public or other official book should be kept only by a public 

officer and all that is required under Section 35 of the Evidence Act 

is that it should be regularly kept in discharge of official duty.  In 

the instant case the entries in the school register were made ante 

litem motam.    

Therefore, the school records have more probative value than a 

horoscope. Where no other material is available, the horoscope may be 

considered but subject to its authenticity being established.  These 

aspects were not considered by the first appellate Court and the High 

Court. 

        

The High Court was, therefore, not justified in dismissing the 

Second Appeal by observing that there was no substantial question of 

law involved.  

Since the first appellate Court acted on irrelevant materials and 

left out of consideration relevant materials question of law was 

involved. The suit that was filed was rightly dismissed by the Trial 

Court.

   

Accordingly the appeal is allowed.  No costs. 

Code of Civil Procedure, 1908 - Order XVI, Rules 1 and 2 r/w s.151 - Partition suit - Defendants filed application for permission to file a list of witnesses, which included the name of the plaintiff's Advocate - Trial Court granted the defendants the leave to file the list of witnesses but rejected their prayer for permission to cite the plaintiff's advocate as a witness on ground that no reason therefor was assigned in the application - Justification of - Held: Justified - If the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together - Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate - Therefore, it would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness - In the instant case, the concerned advocate was engaged by the plaintiffs almost 11 years prior to the filing of application by the defendants - During this long interregnum, the defendants never objected to the appearance of the plaintiff's advocate by pointing out that he was interested in the subject matter of the suit - The prayer made by the defendants for being allowed to cite the plaintiff's advocate as a witness was not only misconceived but also mischievous ex-facie with an oblique motive of boarding him out of the case. Constitution of India, 1950 - Articles 226 and 227 - Interlocutory order passed by Subordinate Court - Challenge to - Exercise of powers under Arts. 226 and 227 - Scope - Held: In the instant case, the High Court totally ignored the principles and parameters laid down by this Court for exercise of power u/Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. Advocates - Relationship between lawyer and his client - Duty imposed upon an Advocate - Discussed - Held: An Advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client - If an Advocate has reason to believe that he will be a witness in the case, he should not accept a brief or appear in the case - Principles of `uberrima fides' - Bar Council of India Rules, 1975 - Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV. Appellant Nos.1 to 3 and one other person filed suit for partition and separate possession of 1/6th share each in the suit property and also for grant of a declaration that sale deed dated 10.7.1997 executed by appellant Nos.4 to 6 was not binding on them. Respondent Nos.1 and 2 filed written statement, and subsequently, also filed an application under Order XVI Rule 1(1) and (2) read with Section 151 C.P.C. supported by an affidavit of respondent No.1 for permission to file the list of witnesses, which included the name of `NRK', the Advocate who had been representing the appellants in the suit from the very beginning. The trial Court partly allowed the application of respondent Nos.1 and 2 and granted them leave to file the list of witnesses but rejected their prayer for permission to cite `NRK' as a witness on ground that no reason therefor was assigned in the application. The respondents challenged the order of the trial Court by filing a petition under Articles 226 and 227 of the Constitution insofar as their prayer for citing `NRK' as a witness was rejected. The High Court allowed the petition and set aside the order of the trial Court holding that reasons were not required to be assigned to justify the summoning of a particular person as a witness. In the instant appeal, the questions arising for consideration were: 1) whether the High Court committed serious error by interfering with the order of the trial Court without recording a finding that the said order was vitiated due to want of jurisdiction or any patent legal infirmity in exercise of jurisdiction; and 2) whether a litigant filing the list of witnesses is bound to indicate, howsoever briefly, the relevance of the witness to the subject matter of the suit etc., and, in any case, one party to the proceedings cannot cite the advocate representing the other side as a witness and thereby deprive the latter of the services of the advocate without disclosing as to how his testimony is relevant to the issues arising in the case. =Allowing the appeal, the Court HELD:1. The High Court totally ignored the principles and parameters laid down by this Court for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. [Para 10] [427-H; 428-A-B] Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675 and Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 - relied on. 2.1. The relationship between a lawyer and his client is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer. Therefore, he has a duty to fulfill all his obligations towards his client with care and act in good faith. Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty. [Para 12] [428-F-G] 2.2. The duties of an advocate to the Court, the client, opponent and colleagues are enumerated in Chapter II of Part IV of the Bar Council of India Rules, 1975. Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV of the Rules, regulate the duty of an advocate to the client. An analysis of the above Rules show that one of the most important duty imposed upon an advocate is to uphold the interest of the client fearlessly by all fair and honourable means. An advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client. If he has reason to believe that he will be a witness in the case, the advocate should not accept a brief or appear in the case. [Paras 13, 14] [428-H; 429-A-B; H; 430-A] 2.3. If the prayer made by the respondents for being allowed to cite `NRK' as a witness is critically scrutinized in the backdrop of the duties of an advocate towards his client, it is clear that the same was not only misconceived but was mischievous ex-facie. Neither in the written statement nor the additional written statement filed by them before the trial Court, the respondents had attributed any role to `NRK' in relation to the subject matter of the suit. The concerned advocate was engaged by the plaintiffs- appellants in 1996 i.e. almost 11 years prior to the filing of application by the respondents under Order XVI Rule 1(1) and (2) read with Section 151 CPC. During this long interregnum, the respondents never objected to the appearance of `NRK' as an advocate of the appellants by pointing out that he was interested in the subject matter of the suit. Notwithstanding this, the respondents cited him as a witness in the list filed along with the application. The sole purpose of doing this was to create a situation in which the advocate would have been forced to withdraw from the case. Luckily for the appellants, the trial Court could see the game plan of the respondents and frustrated their design by partly dismissing the application. The Single Judge of the High Court ignored that the respondents had included the name of `NRK' in the list of witnesses proposed to be summoned by them with an oblique motive of boarding him out of the case and passed the impugned order by recording one line observation that the respondents were not required to give reasons for summoning the particular person as a witness. [Para 15] [430-G-H; 431- A-D] 2.4. If the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together. Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate. Therefore, it would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness. The impugned order of the High Court is set aside and the one passed by the trial Court is restored. The respondents shall pay cost of Rs.50,000/- to the appellants. [Para 16] [431-E-H] Mange Ram v. Brij Mohan (1983) 4 SCC 36 and V. C. Rangadurai v. D. Gopalan (1979) 1 SCC 308 - relied on. Case Law Reference: (2010) 8 SCC 329 relied on Para 6, 9 (1983) 4 SCC 36 relied on Para 6, 11 (2003) 6 SCC 675 relied on Para 7, 8 (1979) 1 SCC 308 relied on Para 14 CIVIL APPELLLATE JURISDICTION : Civil Appeal No. 2015 of 2011. From the Judgment & Order dated 24.2.2010 of the High Court of Karnataka at Bangalore in W.P. No. 2610 of 2007 (GM-CPC). Krian Suri for the Appellants. S.N. Bhat for the Respondents.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(s).2015 OF 2011 (Arising out of SLP(C)No.20821/2010) KOKKANDA B. POONDACHA AND OTHERS Appellant(s) VERSUS K.D. GANAPATHI AND ANOTHER Respondent(s) J U D G M E N T Leave granted. Whether the respondents (defendant Nos.5 and 6 in the suit filed by the appellants), could cite the advocate representing the appellants as a witness in the list filed under Order XVI Rule 1 (1) and (2) read with Section 151 of the Code of Civil Procedure (CPC) without giving an iota of indication about the purpose of summoning him in future is the question which arises for consideration in this appeal filed against order dated 24.02.2010 passed by the learned Single Judge of the Karnataka High Court whereby he set aside the order passed by the trial Court partly dismissing the application of the respondents. 2 Appellant Nos.1 to 3 and one Parvathy filed suit, which came to be registered as O.S. No.75 of 1996, for partition and separate possession of 1/6th share each in the suit property and also for grant of a declaration that sale deed dated 10.7.1997 executed by defendant Nos.2 to 4, who were, later on, transposed as plaintiff Nos.5 to 7 (appellant Nos.4 to 6 herein), was not binding on them. Defendant Nos.5 to 7 (including respondent Nos.1 and 2 herein) filed written statement on 19.2.1998. Respondent Nos.1 and 2 filed additional written statement on 9.8.2002. After two years and seven months, they filed an application dated 11.3.2005 under Order XVI Rule 1 (1) and (2) read with Section 151 C.P.C. supported by an affidavit of respondent No.1 for permission to file the list of witnesses, which included the name of Shri N. Ravindranath Kamath, Advocate, who was representing the appellants in the suit from the very beginning. The trial Court partly allowed the application of respondent Nos.1 and 2 and granted leave to them to file the list of witnesses but rejected their prayer for permission to cite Shri N. Ravindranath Kamath as witness No.1. The reasons assigned by the trial Court for partially declining the prayer of respondent Nos.1 and 2 are extracted below: "......................While citing advocate of the opposite party as a witness, the defendants 3 3 and 4 ought to have given reason for what purpose they are citing him as a witness and examining him in their favour. Once the advocate for the opposite party is cited as a witness in the list, the opposite party losses precious service of his advocate. In that circumstances, the party will suffer. Under the circumstances, so as to know for what purpose the defendant no.2 and 3 are citing and examining the N.R. Kamath advocate for the plaintiff in their favour have to assign reason. The Court has to very cautious and careful while considering such an aspect of the matter of examining and citing the advocate for the opposite party in their favour. The Court has to determine as to whether the evidence of said advocate is material for the decision of the case or not? Unless defendant no.2 and 3 assigned reason in the application or in the affidavit as to why they are citing the advocate for the opposite party and examining in their favour, the application filed by defendant no.2 and 3 is not maintainable and the said application is not sustainable under law. In the above said Judgment, in para 2, it is clearly held that, "but appellants then filed a petition seeking permission to cite the advocate of the respondents as a witness". But herein this case, the defendant no.2 and 3 are not seeking permission to cite the advocate for the plaintiff as a witness. Defendant no.2 and 3 not only have to seek permission of this Court to cite the advocate for the Plaintiff as a witness, but also he has to give good reasons for what purpose he is citing him as a witness and examining in his favour. Without assigning any reasons and without seeking permission to cite the advocate for the Plaintiff as a witness in the witness list, application to that extent is not tenable and same is liable to be dismissed to that extent." The respondents challenged the order of the trial Court by filing a petition under Articles 226 and 227 of the Constitution insofar as their prayer for citing Shri N. Ravindranath Kamath as a witness was rejected. The learned 4 Single Judge allowed the petition and set aside the order of the trial Court by simply observing that reasons are not required to be assigned to justify the summoning of a particular person as a witness. Mrs. Kiran Suri, learned counsel for the appellants relied upon the judgment of this Court in Shalini Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329 and argued that the order under challenge is liable to be set aside because the High Court committed serious error by interfering with the order of the trial Court without recording a finding that the said order is vitiated due to want of jurisdiction or any patent legal infirmity in the exercise of jurisdiction and that refusal of the trial Court to permit the respondents to cite Shri N. Ravindranath Kamath as a witness had prejudiced their cause. She further argued that the respondents are not entitled to cite and summon as a witness the advocate representing the appellants because in the application filed by them, no justification was offered for doing so. In support of this argument, Mrs. Suri relied upon the judgment of this Court in Mange Ram vs. Brij Mohan (1983) 4 SCC 36. Shri S.N. Bhatt, learned counsel for the respondents argued that even though his clients had filed application belatedly, the trial Court was not justified in 5 declining their prayer for citing Shri N. Ravindranath Kamath as a witness merely because he was representing the appellants. Learned counsel submitted that at the stage of filing the list of witnesses, the plaintiffs or for that reason the defendants are not required to disclose the nature of the evidence to be given by the particular witness or its relevance to the subject matter of the suit etc. and the trial Court had grossly erred in not granting leave to the respondents to cite Shri N. Ravindranath Kamath as one of their witnesses. Shri Bhatt relied upon the judgment in Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675 and argued that even after amendment of Section 115, C.P.C., the High Court can, in exercise of supervisory power under Article 227, correct the error of jurisdiction committed by the Subordinate Court. We have considered the respective submissions. We shall first consider the question whether the High Court could interfere with the order of the trial Court without considering the question whether the said order was vitiated due to want of jurisdiction or the trial Court had exceeded its jurisdiction in deciding the application of the respondents and the order passed by it has resulted in failure of justice. In Surya Dev Rai's case (supra), the two Judge Bench, after detailed analysis of the various 6 precedents on the scope of the High Court's powers under Articles 226 and 227 of the Constitution culled out nine propositions including the following:- "(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (I) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of 7 law, and (ii) a grave injustice or gross failure of justice has occasioned thereby." In Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra), the Court again examined the scope of the High Court's power under Article 227 of the Constitution and laid down the following proposition: "Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration in the larger public interest whereas Article 226 is meant for protection of individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court." The learned Single Judge of the High Court totally ignored the principles and parameters laid down by this Court for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the 8 Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. The next question which needs consideration is whether a litigant filing the list of witnesses is bound to indicate, howsoever briefly, the relevance of the witness to the subject matter of the suit etc., and, in any case, one party to the proceedings cannot cite the advocate representing the other side as a witness and thereby deprive the latter of the services of the advocate without disclosing as to how his testimony is relevant to the issues arising in the case. In Mange Ram vs. Brij Mohan (supra), this Court interpreted Order XVI Rule 1 (1),(2) and (3) CPC and observed: "If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the court." At this stage, we may also advert to the nature of relationship between a lawyer and his client, which is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer. Therefore, he has a duty to fulfill all his obligations towards his client with care 9 and act in good faith. Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty. The duties of an advocate to the Court, the client, opponent and colleagues are enumerated in Chapter II of Part IV of the Bar Council of India Rules, 1975 (for short, "the Rules"). Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV of the Rules, which regulate the duty of an advocate to the client, read as under: "12. An advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned. 13. An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardising his client's interests. 14. An advocate shall, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client's judgment in either engaging him or continuing the engagement. 15. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to 10 any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence." An analysis of the above reproduced Rules show that one of the most important duty imposed upon an advocate is to uphold the interest of the client fearlessly by all fair and honourable means. An advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client. If he has reason to believe that he will be a witness in the case, the advocate should not accept a brief or appear in the case. In V. C. Rangadurai v. D. Gopalan (1979) 1 SCC 308, A.P.Sen, J. outlined the importance of the relationship of an advocate with his client in the following words: "Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession. Lord Brougham, then aged eighty-six, said in a speech, in 1864, that the first great quality of an advocate was 'to reckon everything subordinate to the interests of his client'. What he said in 1864 about 'the paramountcy of the client's interest', is equally true today. The relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character requiring a high degree of fidelity and good faith. It is purely a personal relationship, involving the highest personal trust and confidence which cannot be delegated without consent. A lawyer when 11 entrusted with a brief, is expected to follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he occupies a position of trust. The appellant completely betrayed the trust reposed in him by the complainants." If the prayer made by the respondents for being allowed to cite Shri N. Ravindranath Kamath as a witness is critically scrutinised in the backdrop of the above noted statement on the duties of an advocate towards his client, we have no hesitation to hold that the same was not only misconceived but was mischievous ex-facie. Neither in the written statement nor the additional written statement filed by them before the trial Court, the respondents had attributed any role to Shri N. Ravindranath Kamath in relation to the subject matter of the suit. The concerned advocate was engaged by the plaintiffs-appellants in 1996 i.e. almost 11 years prior to the filing of application by the respondents under Order XVI Rule 1(1) and (2) read with Section 151 CPC. During this long interregnum, the respondents never objected to the appearance of Shri N. Ravindranath Kamath as an advocate of the appellants by pointing out that he was interested in the subject matter of the suit. Notwithstanding this, the respondents cited him as a witness in the list filed along with the application. The sole purpose of doing this was to create a situation in which the advocate would have been forced to withdraw from 12 the case. Luckily for the appellants, the trial Court could see the game plan of the respondents and frustrated their design by partly dismissing the application. The learned Single Judge ignored that the respondents had included the name of Shri N. Ravindranath Kamath in the list of witnesses proposed to be summoned by them with an oblique motive of boarding him out of the case and passed the impugned order by recording one line observation that the respondents were not required to give reasons for summoning the particular person as a witness. We may add that if the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together. Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate. Therefore, it would be a prudent exercise of discretion by the Court to insists that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness. In the result, the appeal is allowed, the impugned 13 order is set aside and the one passed by the trial Court is restored. The respondents shall pay cost of Rs.50,000/- to the appellants. ........................J. (G.S. SINGHVI) ........................J. (ASOK KUMAR GANGULY) NEW DELHI, FEBRUARY 22, 2011.

RECORDING OF VOICE - PERMISSIBLE

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU                
CRIMINAL REVISION CASE NO.1219 OF 2010        


27-07-2010 


Y. Ranganadh Goud   


State rep. By the Public Prosecutor, High Court of AP., Hyderabad.


Counsel for the Petitioner : Sri C. Mastan Naidu


Counsel for the  Respondent:  Public Prosecutor


:ORDER:  


1.      The revision petitioner/A-1 is accused of offences punishable  under
Sections  417, 420, 376 and 506 IPC in Crime No.122 of 2009 of Ponnur Town 
Police Station.  The Sub Divisional  Police Officer, Bapatla filed petition
Criminal M.P.No.3250 of 2010 before the Additional Judicial Magistrate of the
First Class, Ponnur under Section 173 Cr.P.C requesting the court to record
original voice of the petitioner/A-1 and the victim before the court for
forwarding the same to Andhra Pradesh Forensic Science Laboratory, Hyderabad for 
comparison with a Compact  Disc (CD) allegedly  containing voices/conversations
of A-1 and the victim recorded by cell phone. This petition was opposed by A-1.
The lower court  by the impugned order dated 24.06.2010 allowed the petition
permitting to record original voices of A-1 and the victim in open court and
fixed a date.  As against the said order, A-1 filed the present revision
petition.


2.      Main contention put forward  by the petitioner's counsel in this revision
petition is that directing A-1 to give sample voice for the purpose of
comparison of the same with his alleged voice contained in a C.D, offends  A-1's
fundamental right under Article 20(3) of the Constitution of India and that
therefore, the lower court should not have passed the impugned order.  The
petitioner's counsel placed reliance on Vinod Kumar v. The State1 of the Delhi
High Court and H. Chandrashekhar v. Shafiq Ali Khan2 of the Karnataka High Court
in this regard.  In the former  decision, the Delhi High Court held that there
is nothing in the Evidence Act which even remotely suggests that the court has
power to call upon  a prosecution witness to get his sample voice recorded for
comparison with his disputed tape recorded voices and that neither Section 73 of
the Evidence Act provides for recording of sample voice for comparison nor under
Section 45 of the said Act, evidence of an expert on comparison of sample voice
with disputed one has been made admissible.  The Delhi High Court further held
that even the High Court in exercise of inherent power under Section 482 Cr.P.C
cannot direct the trial court to do so.  In the latter decision, the Karnataka
High Court held  that no person can be compelled to give his voice to be tested
in comparison of voice already recorded, following the view  taken  by the Delhi
High Court.


3.      The petitioner's counsel also placed reliance on State v. Taylor3 wherein
it was held that to compel a suspect  while in custody and prior to his trial,
to speak the very words a witness heard the offender speaking at the time of the
offence, so as to enable the witness to compare the voice of the suspect with
that of the offender and thereby, if possible, to identify the suspect, as being
the offender, and to admit in evidence at his trial on identification, is
violative of  his privilege against of 'self-incrimination'.


4.      On the other hand, it is contended by the Additional Public Prosecutor
that in case, the petitioner/A-1 is not willing to give his sample voice for the
purpose of comparison with voice contained in the C.D, then he may be  permitted
to do so subject to the lower court drawing adverse inference on his refusal to
give his sample voice.   The petitioner's counsel contended that  such drawing
of adverse inference in criminal law is not permissible.  The Additional Public
Prosecutor further contended that  recording sample voice of the accused in
court, does not violate  Article 20(3) of the Constitution of India.


5.      State of Bombay v. Kathi Kalu Oghad4  rendered by a Bench consisting of 11
Judges of the Supreme Court  has been the leading case on  Article 20(3) of the
Constitution of India.  While upholding  obtaining of specimen finger
impressions and specimen handwritings  from the accused person vis--vis Article
20(3) of the Constitution of India, the Supreme Court observed therein:


"It is well established that cl. (3) of Art. 20 is directed against self-
incrimination by an accused person. Self-incrimination must mean conveying
information based upon the personal knowledge of the person giving the
information and cannot include merely the mechanical process of producing
documents in court which may throw a light on any of the points in controversy,
but which do not contain any statement of the accused based on his personal
knowledge. For example, the accused person may be in possession of a document   
which is in his writing or which contains his signature or his thumb impression.
The production of such a document, with a view to comparison of the writing or
the signature or the impression, is not the statement of an accused person,
which can be said to be of the nature of a personal testimony. When an accused
person is called upon by the Court or any other authority holding an
investigation to give his finger impression or signature or a specimen of his
handwriting, he is not giving any testimony of the nature of a 'personal
testimony. ' The giving of a 'personal testimony' must depend upon his volition.
He can make any kind of statement or ay refuse to make any statement. But his 
finger impressions or his handwriting, in spite of efforts at concealing the
true nature of it by dissimulation cannot change their intrinsic character.
Thus, the giving of finger impressions or of specimen writing or of signatures
by an accused person, though it may amount to furnishing evidence in the larger
sense, is not included within the expression 'to be a witness. '


In order that a testimony by an accused person may be said to have been self-
incriminatory, the compulsion of which comes within the prohibition of the
constitutional provision, it must be of such a character that by itself it
should have the tendency of incriminating the accused, if not also of actually
doing so. In other words, it should be a statement which makes the case against
the accused person at least probable, considered by itself. A specimen
handwriting or signature or finger impressions by themselves are no testimony at
all, being wholly innocuous because they are unchangeable except in rare cases
where the ridges of the fingers or the style of writing have been tampered with.
They are only materials for comparison in order to lend assurance to the Court
that its inference based on other pieces of evidence is reliable. They are
neither oral nor documentary evidence but belong to the third category of
material evidence which is outside the limit of 'testimony. '"


6.      In Selvi v. State of Karnataka5 the Supreme Court made a distinction
between such materials  which are likely to lead to incrimination by themselves
and those materials which furnish a link in the chain of evidence which could
lead into the same result; and held that reliance on contents  of compelled
testimony comes within the prohibition of Article 20(3) of the Constitution of
India but it is not barred for the purpose of identification or corroboration
with the facts already noted by the investigators. The Supreme Court observed:


"136.  Since the majority decision in Kathi Kalu Oghad (4 supra) is the
controlling precedent, it will be useful to re-state the two main premises for
understanding the scope of 'testimonial compulsion'.  The first is that
ordinarily it is the oral or written statements which convey the personal
knowledge of a person in respect of relevant facts that amount  to 'personal
testimony' thereby coming within the prohibition contemplated by Article 20(3).
In most cases, such 'personal testimony' can be readily distinguished from
material evidence such as bodily substances and other physical objects.  The
second premise is that in some cases, oral or written statements can be relied
upon but only for the purpose of identification or comparison with facts and
materials that are already in the possession of the investigators.  The bar of
Article 20(3) can be invoked when the statements are likely to lead to
incrimination by themselves or 'furnish a link in the chain of evidence' needed
to do so. We must emphasize that a situation where a testimonial response is
used for comparison with facts already known to investigators is inherently
different from a situation where a testimonial response helps the investigators
to subsequently discover fresh facts or materials that could be relevant to the
ongoing investigation.
------------------------------------------------------------------      --------
----------------------------------------------------------


However, the compulsory extraction of material (or physical) evidence lies
outside the protective scope of Article 20(3).  Furthermore, even testimony in
oral or written form can be required under compulsion if it is to be used for
the purpose of identification or comparison with materials and information that
is already in the possession of investigators."


7.      If the facts in the present case are examined in the light of the above
pronouncements of the Apex Court, it is evident that the Sub Divisional Police
Officer, Bapatla is already in possession of a CD containing voices or
conversation  said to be between A-1 and the victim woman; and the investigating
officer wanted sample voice of A-1 and the victim to be recorded in court for
the purpose of making comparison of voices contained in the CD with the sample
voices recorded in open court.  This exercise of recording of sample voices of
A-1 and the victim in open court is not going to incriminate A-1 on the basis of
such sample voice, but only facilitates the investigating officer and the court
to identify voice contained in the CD which is already in possession of the
investigating officer.  By any stretch of imagination, the exercise of recording
sample voice of A-1 for the purpose of identifying the male voice already
contained in CD which is collected by the investigating officer during
investigation, cannot amount to testimonial compulsion which is prohibited under
Article 20(3) of the Constitution of India.


8.      This is not the stage to consider  about relevancy or admissibility or
evidentiary value of the talk contained in the CD and the expert's opinion on
comparison of that talk contained in the CD with sample voices to be recorded in
the lower court.  Those contentions are left open to be decided by the trial
court during recording of evidence and during final disposal of the case after
trial in case the police are going to file charge sheet.    Since  this Court
found that the proposed exercise of recording sample voices of the petitioner/A-
1 and the victim is not offended by Article 20(3) of the Constitution of India,
the lower court is at liberty to proceed towards  that exercise.


9.      In the result, the criminal revision petition is dismissed.


?1 1981 CRI.L.J.927 
2 2001(1) CCC 453 
3 213 SCt 330:49 SE 2nd 289  
4 1962 (3) SCR 10 
5 2010 AIR SCW 3011   

CAN A HEAD CONSTABLE RECORD DYING DECLARATION?

SEC. 32 OF EVIDENCE ACT M DYING DECLARATION WAS RECORDED BY HEAD CONSTABLE. DECEASED WAS FIT TO MAKE A STATEMENT - THE STATEMENT WAS READ OVER TO HIM AND AFTER HE FOUND THE STATEMENT AS CORRECT HIS SIGNATURE WAS OBTAINED ON THE STATEMENTS, ADMISSIBLESTATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES

32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.—Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, with an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: -

(1) When it relates to cause of death.—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person s’ death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) Or is made in course of business.—When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

(3) Or against interest of maker.—When the statement is against the pecuniary or proprietary interest of the person making it or when, if true, it would expose him or would have exposed him to criminal prosecution or to a suit for damages.

(4) Or gives opinion as to public right or custom, or matters of general interests.—When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

(5) Or relates to existence of relationship.—When the statement relates to the existence of any relationship ¹[by blood, marriage or adoption] between persons as to whose relationship ¹[by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

(6) Or is made in will or deed relating to family affairs.—When the statement relates to the existence of any relationship ¹[by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statement are usually made, and when such statement was made before the question in dispute was raised.

(7) Or is document relating to transaction mentioned in Section 13, clause (a).—When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, clause (a).

(8) Or is made by several persons and expressed feelings relevant to matter in question.—When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

ILLUSTRATIONS

(a) The question is, whether A was murdered by B, or

A dies of injuries received in a transaction the course of which she was ravished. The quest is whether she was ravished by B; or

The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.

Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A’s birth.

An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Calcutta on a given day.

A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Bombay harbour on a given day.

A letter written by a deceased member of a merchants firm, by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land.

A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders is a relevant fact.

(f) The question is, whether A and B were legally married.

The statement of a deceased clergyman that he married them under circumstances that the celebration would be a crime is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.

(h) The question is, what was the cause of the wreck of a ship.

A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way.

A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a particular market.

A statement of the price, made by a deceased baniya in the ordinary course of his business is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B.

A statement by A that B was his son, is a relevant fact.

(l) The question is, what was the date of birth of A.

A letter from A has deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married.

An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved. 2010 SAR CRI. 748. STATEMENT RECORDED UNDER SEC. 161 CAN ALSO BE TREATED AS A DYING DECLARATION AFTER HIS DEATH - FIRST ON THE DATE OF INCIDENT, ANOTHER ON THE SECON D DAY AND LAST ONE IS ON THIRD DAY. FIRST BY MAGISTRATE AND SECOND BY POLICE AND THIRD BY HUSBAND OF DECEASED WIFE.2010 SAR CRI 758.