Read Also: Mere Marking is Not Proof Vs. Waiver, if No Objection
Jojy George Koduvath.
Preponderance of Authority Mandates – Objections Be Raised at Trial, Not First Time in Appeal
| Core Propositions 1. R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752 is the odd decision of the Supreme Court for the following two counts:- (a) The crux and nucleus of this decision is “waiver”. It is not accepted or followed by any Supreme Court decision. On the contrary, the subsequent decisions took the stand that objection to marking a document cannot be taken first time in appeal (that is, it can be in trial – atleast while cross-examining the witness through whom the document is exhibited. (b) Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938 (and other decisions in this line) authoritatively stand against the waiver principle. 2. R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752 is the sole and odd decision of the supreme Court that says – “objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit”. 3. All other Supreme Court decisions say it must be at trial, and not in appeal as first time. E.g., Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107: “should be taken at the trial before the document is marked as an exhibit and admitted to the record.” 4. Sarkar on Evidence, 1st Edn., p.1084, “it has been stated that where copies of the documents are admitted without objection in the trial Court, “no objection to their admissibility can be taken afterwards in the court of appeal“. (Quoted in: Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107.) 5. Sundar @ Sundarrajan Vs. State by Inspector of Police, (2024) 12 SCC 764 (Not first be in Appeal) 6. Lachhmi Narain Singh v. Sarjug Singh, (2022) 13 SCC 746 (Must be before the trial court, and not be in appeal.) 7. Rajender @ Rajesh Vs. State (NCT of Delhi), (2019) 10 SCC 623 (Must be in Trial Court and Not first be in Appeal) 8. Sonu @ Amar v. State of Haryana, (2017) 8 SCC 570 (if not taken at the trial, cannot be permitted at the appellate stage) 9. Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107 (Mode of proof – objection should be taken at the trial before the document is marked) 10. Gopal Das Vs. Sri Thakurji, AIR 1943 PC 83 (Not first in Appeal: referred to in: Sonu @ Amar v. State of Haryana). 11. Padman v. Hanwanta, AIR 1915 PC 111, (objection to the admissibility in appeal for the first time.Objection should have been taken in the trial court.) |
1. Substantive Admissibility Vs. Mode of Proof
- A document which is inherently inadmissible in evidence (e.g., an un-stamped document barred by the Stamp Act or evidence prohibited by statute) can be challenged at any time – even in appeal, despite a challenge in the trial court.
- But objection to mode of proof stands on a different footing. Here, the admissibility of the document itself is not disputed, but the method used to prove it stands irregular, informal, or deficient (e.g., tendering a certified copy or photocopy without first laying the foundational facts for secondary evidence).
In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752, laid down the crucial distinction between two classes of evidentiary objections. It is observed as under:
- “20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case.
- However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently.
- The objections to the admissibility of documents in evidence may be classified into two classes:
- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
- (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
- In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stagee or even in appeal or revision.
- In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit.
The Rationale: Upholding Fairness and Preventing Prejudice
A timely objection alerts the party tendering the document, giving them the opportunity to cure the procedural defect and adopt a regular method of proof. Allowing a party to stay silent during trial and object on appeal would unfairly prejudice the opponent.
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752, continues (Para 20) as under:
- The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons:
- firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and
- secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence.
- Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.”
In Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107, it is pointed out as under:
- “14. To the same effect is the judgment of the Privy Council in the case of Gopal Das V. Thakurji in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a court of appeal and then complaint for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record.”
Judicial Precedents: Mere Marking Does Not Equal Proof
- Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938.
- Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745
- Ramji Dayawala v. Invest Import: AIR 1981 SC 2085
Judicial Precedents: Objections Must Be Raised at Trial, Not for the First Time in Appeal
The decisions commonly say: (i) the objection must be taken at trial and (ii) not first time in appeal. In Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107, it is pointed out as under:
- Similarly, in Sarkar on Evidence, 1st Edn., p.1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage.”
- Sundar @ Sundarrajan Vs. State by Inspector of Police, (2024) 12 SCC 764 (Not first be in Appeal)
- Lachhmi Narain Singh v. Sarjug Singh, (2022) 13 SCC 746 (Must be before the trial court, and not be in appeal.)
- Rajender @ Rajesh Vs. State (NCT of Delhi), (2019) 10 SCC 623 (Must be in Trial Court and Not first be in Appeal)
- Sonu @ Amar v. State of Haryana, (2017) 8 SCC 570 (if not taken at the trial, cannot be permitted at the appellate stage)
- Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107 ((Mode of proof – objection should be taken at the trial before the document is marked ))
- Gopal Das Vs. Sri Thakurji, AIR 1943 PC 83 (Not first in Appeal: referred to in: Sonu @ Amar v. State of Haryana).
- Padman v. Hanwanta, AIR 1915 PC 111, (objection to the admissibility in appeal for the first time.Objection should have been taken in the trial court.)
Judicial Reflections on Waiving Objections Through Cross-Examination
The law on the point (whether a challenge in cross-examination, sufficient) can be deduced from the following decisions-
(i) In Thakor Rajuji Takhaji v. Owner of Tractor No. RJ-21-3R-8180, Kawarilal, 2024 Guj HC 14451), it is held as under:
- “The cross examination of the respondent/s does not suggest that they had any objection to the documents produced.”
(ii) Khan v. Habib Khan @ Abdul Mujeeb Khan, 11 Mar 2020 (Del), where it is observed –
- “5. Learned counsel appearing for the respondents submits that the original documents were duly produced before the Trial Court at the time of the recording of the evidence of the respondent and the copies of the said documents, after comparison, were exhibited and marked as Exhibit PW1/6 to PW1/8 and no objection was taken by the petitioner with regard to the proof of the said documents and exhibit marking of the copies and there is even no cross-examination or suggestion during cross examination that the originals have not been produced.”
(iii) In Corporation of Calcutta v. Baldeo Shaw, 2011-3 Crimes (HC) 784; 2011-2 CalLJ 221; 2011-1 CriLR 890, it is held as under:
- “The cash memo, i.e., Exhibit-A was admitted into evidence and marked Exhibit. No objection was raised by the complainant in course of cross-examination in the matter of admission of such a document.”
(iv) In Kuntal Kundu v. National Insurance Company Limited, 2008-3 WBLR 717), it is held as under:
- “In the case before us, the appellant in his evidence-in-chief specifically tendered the said certificate and the same along with others was marked as Exhibit without objection. We have already pointed out that even no suggestion was given in cross-examination disputing either the contents or the genuineness of those documents.
(v) In Noorjahan, Altaf Ahmed v. Sadrunisa, Hajifatehulla Khan, 2005-3 BomLR 625; 2005-3 MhLJ 10, it is pointed out as under:
- “It is further pertinent to note that there was no effective cross-examination in respect of this document. There was no objection taken to the document being received and marked in evidence either.”
(vi) In Alacs Finanz Ltd v. Oksh Technologies, AIR 2005 (Del) 376, it is held as under:
- “When the certified copy of the Resolution was tendered in evidence, no objection to its admission or mode of proof was raised. Not even in the cross-examination.”
(vii) In R. Vijayabalan v. D. Jayakumari, 2001-1 MLJ 555, it is observed as under:
- “… when those documents were marked, there was no objection raised for marking the documents and even in the cross-examination there was no challenge made with reference to those documents marked before the court and since the said act would amount to waiver…”.
(viii) In Lionel Edwards Ltd. v. State of West Bengal, AIR 1967 Cal-191, it is held as under:
- “Documents are either proved by witnesses or marked on admission. When it is marked on admission without reservation, the contents are not only evidence but are taken as admitted, the result being the contents cannot be challenged either by way of cross-examination or otherwise. In respect of documents marked on admission dispensing with formal proof, the contents are evidence, although the party admitting does not thereby accept the truth of the contents and is free to challenge the contents by way of cross-examination or otherwise.” (Quoted in: Life Insurance Corporation of India v. Manjula Mohanlal Joshi, AIR 1975 Ori 116; ILR 1975 Cut 422).
