It was the first day at work for a junior lawyer at the Tis Hazari Courts. His senior had asked him to go to court for a matter. His senior noticed that he was nervous and said,
"Don’t worry! It is just examination-in-chief of one of the opposite party's witnesses that needs to be recorded. You have to only observe the exhibition of the documents and object wherever you think it is necessary. Tell the judge that the main counsel is on his legs in another court and cannot conduct cross-examination today."
He was nervous, as he had no idea as to what those “necessary objections” were. He closed his eyes and cursed his law school for not teaching him this important lesson.
He went to the court accompanied by the office clerk. When his matter came up and the witness stepped into the witness box, the judge said,
"Mr. Counsel, do you have any objections to the documents exhibited in the examination-in-chief?"
"Yes. Can I get a minute?"
His office clerk, who had been observing courts for the last 10 years, whispered in his ear,
"Sir, object to the photocopied documents. They are marked documents."
He did as the clerk said, but the entire day, he felt embarrassed over his failure. His understanding of the subject was limited to what the office clerk had explained: photocopies are marks and everything else is an exhibit.
He was a junior of mine from college. Fed up with his lack of clarity on the subject, he sought my guidance and we decided to study this topic. In this regard, the questions which assume significance are:
● What is the tendering of a document?
● What are exhibits or marks?
● What is the origin of the practice of using exhibits or marks?
● What is the difference between exhibits and marks?
● Why should documents be given an identity?
● How to decide what name should be given to a document?
● If a document is exhibited, is it considered to be proved?
What is tendering of a document?
At the stage of evidence, the process of producing documents by a party before the court is referred to as 'tendering'. Although most of the documents (except documents with which the opposite party is confronted) are already on the judicial file, at the stage of evidence, they are formally produced and given an identity by providing a nomenclature by using alphabets and letters. Thereafter, those documents become evidence, subject to them being proved under the Indian Evidence Act, 1872 (IEA) and other laws.
What are exhibits and marks?
Similar to how parents give a name to their child, the court gives the document a nomenclature for identity. Once given an identity, these documents then become part of the judicial record. Thus, the documents which are produced at the stage of evidence and given nomenclature by using alphabets and numbers for identification are referred to as exhibits and marks.
What is the origin of the practice of using exhibits or marks?
There is no legal definition of exhibits or marks in any statute and the origin of the terms is out of customary practice. The Delhi High Court in Sudhir Engineering Company v. Nitco Roadways Ltd, categorically held that the practice of exhibition or marking has evolved merely out of customary practice and is without any legal backing.
The only other reference where there is a mention of exhibits is in Part G, Volume I of Chapter 1 of the Delhi High Court (Original Side) Rules, 1967 which provides that every document admitted into evidence must be marked with an exhibit number. Further, there is an Original Side Practice Direction (No.3 of 1974) of the Delhi High COurt, para 6 and 7 which directs the court master to give a label to every document during the trial, with letters indicating the party by whom the exhibit is put. Order 13 Rule 4 of the Code of Civil Procedure (CPC) also provides for making an endorsement on documents that are admitted in evidence.
What is the difference between exhibits and marks?
There is as such no difference between them. It is incorrectly believed that the exhibits are legally admissible and are at a higher pedestal while documents which are marked are not. Marked documents can also be considered legally admissible if they are proved in accordance with the law.
The customary practice being followed is that documents that are not original, such as photocopies of documents, are given the identity of a mark. But this is a practice being followed without any legal basis.
Why should documents be given an identity?
The identity given to a document would help the court and party refer easily to those documents. Instead of saying "Statement under Section 164 CrPC of Victim A" each time, the document can be referred to as Ex. PW1/A. The lawyers can address final arguments with ease and the judge can refer to those documents in a judgment with less confusion. It also helps the appellate courts in locating and referring to the documents.
How to decide what name should be given to a document?
In Sudhir, the Court discussed the various practices in arriving at a name for a document:
In Delhi, the courts usually give the identity to a document as Ex.PW1/1, where the following letters stand for as given below:
P : Plaintiff,
1 : first witness and
the last 1: serial number of the document.
The other documents would be denoted by the consecutive name of Ex. PW1/2, Ex.PW1/3, etc and in case of a second witness, the identity would be Ex.PW2/1, Ex.PW2/2, etc.
Similarly, the documents brought in evidence by defence witnesses would be Ex.DW1/1, Ex. DW1/2 etc.
The admitted documents are referred to as Ex. P-1, Ex.P-2 and in case of defence witnesses, as Ex.D-1 or Ex.D-2.
Documents put during cross-examination
During cross-examination, documents put by the other party are referred to as Ex.PW1/DW1, Ex.PW1/DW2 or Ex.DW1/PW1, Ex.DW1/PW2 etc.
Documents objected to by the opposite party
The documents that are objected to by the opposite party are usually given an identity only by using an alphabet and not a number. For example, the photocopy of a memorandum of association would be Mark A.
If a document is exhibited, is it considered to be proved?
Endorsement of an exhibit number does not mean that the document has been proved. The document is still to be proved as per the IEA and its evidentiary value will be appreciated by the court. (In Sudhir, the court stated that the mere marking of an exhibit on a document does not dispense with the formal proof thereof. This was also reiterated by the apex court in Narbada Devi Gupta v. Birendra Kumar Jaiswal). Hence, when the court gives it an exhibit number, the lawyer should not assume that his job is done.
For example, in a suit for recovery of money, the plaintiff has relied upon certain invoices. Those invoices have been exhibited as Ex.PW1/1(Colly.) But at the time of recording of evidence, the shopkeeper who issued those invoices does not appear in the witness box, then those documents, even though exhibited, will not be regarded as proved. Unless of course, they are admitted.
The final evaluation of the exhibited or marked documents would be by the court, at the time of final judgment, once cross-examination has been concluded. The court will conclude whether the contents of the documents are truthful or not while weighing the testimonies of the witnesses.
Documents that are formally produced at the stage of evidence are given an identity and referred to as exhibits or marks. There is no difference between them and both have to be proved as per the Indian Evidence Act. Their evidentiary value is to be analyzed by the courts at the time of final judgment. Too much time is wasted in courts in arguing on whether a document is an exhibit or a mark as some lawyers fail to understand that it is just an administrative exercise.
The Author is a Metropolitan Magistrate cum Civil Judge, Delhi Judicial Services (2013 batch) and holds an LL.M. from King’s College London, UK.