20 Law of Evidence
20 Law of Evidence
20 Law of Evidence
LAW OF EVIDENCE
Dr. K.S. Chauhan*
I INTRODUCTION
THE PRESENT survey on Law of Evidence for the year 2013 takes into accounts
the cases/ decisions/ judgments given by the Supreme Court of India. The survey
on ‘law relating to Evidence’ focuses much on the decisions rendered by the
Supreme Court of India in relation to issues arising out of various provisions of
the Indian Evidence Act, 1872- a colonial legislation. The survey assumes
importance in the light of government policy to have clarity on aspects of law, to
repeal the obsolete provisions of statutes and to make the Indian laws in tune with
the contemporary needs and standards. The Indian Evidence Act, 1872 (hereinafter
referred to as (IE Act, 1972) has been amended suitably to incorporate the changes
and to cater to the needs of very changing societal structure and its form. In the
survey year 2013, the Parliament has enacted the Criminal Law (Amendment)
Act, 2013 for specifically dealing the ‘sexual offences’, in this process, the
Parliament has amended Indian Penal Code, 1860 (IPC), Criminal Procedure Code,
1973 (Cr PC) along with the IE Act, 1872 to update the legal principles relating to
law of evidence with the changes in the legal principles relating to sexual offences
and other allied issues. Section 53-A has been inserted to deal with the evidence
relating to character and previous sexual experience and its relevance. Section
114-A has also been substituted which provides for presumption against the accused
and the existing principle of presumption in favour of accused has been modified
accordingly. Section 119 has been substituted for evidence of a witness who is
unable to speak or to communicate verbally to permit the admissibility of written
evidence or the signs. At the same time, the proviso in section 146 of the IE Act,
1872 has been substituted thereby disallowing questions of general nature to the
prosecutrix in cross-examination.
An attempt has been made to analyse and crystallise the proposition of law
under various sub- heads in the ascending order of the sections under IE Act,
1872. The survey takes into account those cases which have been reported in
Supreme Court Cases and other journals. The Supreme Court in several of its
* Advocate, Supreme Court of India. The author is grateful to his colleagues Ravi
Prakash & Ajit Kumar Ekka, Advocates Supreme Court, for their comments and
advice and who have supported the author by providing helpful research.
626 Annual Survey of Indian Law [2013
decision has stressed on the appreciation of evidence, the social purpose which is
sought to be achieved by the criminal justice system. The Supreme Court also
stressed on the public abhorrence of the crime needs reflection through imposition
of appropriate sentence by the court. The court while upholding the dictum that
the mechanical rejection of the evidence on the sole ground that it is interested
would invariably lead to the failure of justice and also emphasized on the cardinal
principle of presumptions that a person is not guilty till he is so proved and if two
views are possible on the evidence adduced then the view which is favourable to
the accused should be adopted. However, the Supreme Court also sounded the
note of caution for the paramount consideration of the court is to ensure that
miscarriage of justice is prevented by the courts.
II INTERPRETATION CLAUSES
Motive
The definition of ‘motive’ in the statute book is either illustrative or definitive,
which causes a trouble for the judicial authority/ judges who always entangle with
the question of ‘motive’ in deciding a criminal case. As ‘motive’ constitute an
essential hallmark of criminal jurisprudence in India–it always needs to be proved1
or disproved2 in a criminal case. In Birendra Das v. State of Assam,3 the Supreme
Court held that where there is clear proof of motive for the crime, that leads
additional support to the finding of the court that the accused was guilty, but absence
of clear proof of motive does not necessarily lead to the contrary conclusion. The
consistent judicial approach on the issue of ‘motive’ is further strengthened of the
dictum that the acceptation of the direct evidence on record on proper scrutiny
and analysis of proof of existence of motive or strength of motive does not affect
the prosecution case. 4 The court further noted succinctly as well as realistically
about the subjective aspect of ‘motive’; frailty and uncertainty of determination of
‘motive’ by human minds while deciding a particular case in following words:
That apart, it is always to be borne in mind that different motives may
come into operation in the minds of different persons, for human nature
has the potentiality to hide many things and that is the realistic diversity
of human nature and it would be well nigh impossible for the prosecution
to prove the motive behind every criminal act.5
However, the fragile and inconsistent approach of courts in determination of
motive is reflective of dynamism and importance attached to the facts and
circumstances of a particular case in criminal matters. Sometimes, courts give
priority and weight to the ‘motive’ in a particular set of facts and circumstances
whereas invariably in cases of presence of credible eye-witnesses and other direct
evidences, the court has opined that ‘motive’ loses its significance.6 The following
pointer sums up the law on point: 7
(i) The motive may be considered as a circumstance which is relevant for
assessing the evidence but if the evidence is clear and unambiguous and the
circumstances prove the guilt of the accused, the same is not weakened even
if the motive is not a very strong one.
(ii) The motive loses all its importance in a case where direct evidence of
eyewitnesses is available, because even if there may be a very strong motive
for the accused persons to commit a particular crime, they cannot be convicted
if the evidence of eyewitnesses is not convincing.
(iii) Even if there may not be an apparent motive but if the evidence of the
eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot
stand in the way of conviction.
(iv) Acceptation of the direct evidence on record on proper scrutiny and analysis
of proof of existence of motive or strength of motive does not affect the
prosecution case.
(v) While motive does not have a major role to play in cases based on eye-
witness account of the incident, it assumes importance in cases that rest
entirely on circumstantial evidence.
The substance of section 8 of the Evidence Act which deals with ‘Motive,
preparation and previous and subsequent conduct’ is upheld and reinforced in the
decision of Harivadan Babubhai Patel v. State of Gujarat8 wherein it was held
that the conduct of the accused person is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact. The court further relied on the
precedent in State of Maharashtra v. Damu S/o Gopinath Shinde, 9 wherein it was
held that the recovery of an object is not discovery of a fact as envisaged in the
section. It also reiterated the settled proposition of law that the “fact discovered”
envisaged in the section embraces the place from which the object was produced,
the knowledge of the accused as to it, but the information given must relate
distinctly to that effect.10
Presumptions
The presumptions under ‘Law of Evidence’ play an important role. Although,
the Evidence Act, 1872 defines ‘may presume’ and ‘shall presume’ in section 4 of
the Evidence Act, the Supreme Court of India, in the matter of Rev. Mother
Marykutty v. Reni C Kottaram,11 opined about presumptions as under: 12
Presumption drawn under a statute has only an evidentiary value.
Presumptions are raised in terms of the Evidence Act. Presumption
drawn in respect of one fact may be evidence even for the purpose of
drawing presumption under another.
‘May be’, ‘must be’, ‘will be proved’
The Supreme Court of India in another notable decision in the case of Sujit
Biswas v. State of Assam13 had occasion to deal with the subtle yet important
difference between the expression ‘may be’, ‘must be’ and ‘will be proved’. It is
important to note that all these expression has been articulated and analysed by
the Supreme Court in this case, and the language of the provisions under IE Act,
1872 uses it frequently. The court in this case highlighted the importance in backdrop
of cases where the conviction is based on circumstantial evidence. It has observed
as under: 14
Suspicion, however grave it may be, cannot take the place of proof,
and there is a large difference between something that ‘may be’ proved,
and something that ‘will be proved’. In a criminal trial, suspicion no
matter how strong, cannot and must not be permitted to take place of
proof. This is for the reason that the mental distance between ‘may be’
10 State of Maharashtra v. Suresh (2000) 1 SCC 471; also see State of Punjab v. Gurnam
Kaur and others (2009) 11 SCC 225; Aftab Ahmad Anasari v. State of Uttaranchal
(2010) 2 SCC 583; Bhagwan Dass v. State (NCT) of Delhi, AIR 2011 SC 1863; Manu
Sharma v. State (2010) 6 SCC 1, and Rumi Bora Dutta v. State of Assam (2013) 7 SCC
417.
11 (2013) 1 SCC 327.
12 (2013) 1 SCC 327, 334.
13 (2013) 12 SCC 406.
14 Hanumant Govind Nargundkar v. State of M.P. AIR 1952 SC 343, also see State
through CBI v. Mahender Singh Dahiya AIR 2011 SC 1017; Ramesh v. State of U.P.
AIR 2012 SC 1979.
Vol. XLIX] Law of Evidence 629
and ‘must be’ is quite large, and divides vague conjectures from sure
conclusions. In a criminal case, the court has a duty to ensure that
mere conjectures or suspicion do not take the place of legal proof. The
large distance between ‘may be’ true and `must be’ true, must be covered
by way of clear, cogent and unimpeachable evidence produced by the
prosecution, before an accused is condemned as a convict, and the
basic and golden rule must be applied. In such cases, while keeping in
mind the distance between ‘may be’ true and ‘must be’ true, the court
must maintain the vital distance between mere conjectures and sure
conclusions to be arrived at, on the touchstone of dispassionate judicial
scrutiny, based upon a complete and comprehensive appreciation of
all features of the case, as well as the quality and credibility of the
evidence brought on record. The court must ensure, that miscarriage
of justice is avoided, and if the facts and circumstances of a case so
demand, then the benefit of doubt must be given to the accused, keeping
in mind that a reasonable doubt is not an imaginary, trivial or a merely
probable doubt, but a fair doubt that is based upon reason and common
sense.
The golden principle which runs through the web of administration of justice
is that a person is considered not guilty until and unless the case has been proved
against him.15 Merely on suspicion and circumstances one cannot be held guilty.
The court illustrating the ‘standard of proof’ required in cases of circumstantial
evidences opined that ‘graver the crime, greater should be the standard of proof.
An accused may appear to be guilty on the basis of suspicion but that cannot
amount to legal proof.’16
In case of Sujit Biswas case,17 the Supreme Court further stated that any
circumstances, in respect of which an accused has not been examined under section
313, cannot be used against him. The court further held that mere absconding from
arrest does not lead to a firm conclusion of guilty mind.18 It further opined as
under: 19
An adverse inference can be drawn against the accused only and only
if the incriminating material stands fully established, and the accused
is not able to furnish any explanation for the same. However, the accused
has the right to remain silent, as he cannot be forced to become a witness
against himself.
15 The Supreme Court in the matter of Babu v. State of Kerala (2010) 9 SCC 189, has
held that the presumptions of innocence is a human right.
16 Shard Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622.
17 Supra note 13.
18 Also see, Matru alias Girish Chandra v. State of U.P., AIR 1971 SC 1050, State of
M.P. through CBI v. Paltan Mallah AIR 2005 SC 733.
19 Supra note 13 at 416.
630 Annual Survey of Indian Law [2013
fact thereby discovered, may be proved. However, the proposition of law which
emerges out from the ratio of decisions rendered in year 2013, are as under:
(i) That in the absence of direct evidence, the slightest of a discrepancy,
depicting the possibility of two views would exculpate the accused of
guilt, on the basis of benefit of doubt in cases of circumstantial
evidences.29
(ii) That the circumstances concerned ‘must or should’ and not ‘may be’
established. There is not only a grammatical but a legal distinction
between ‘may be proved’ and ‘must be or should be proved.30
(iii) That each and every incriminating circumstance must be clearly
established by reliable and clinching evidence and the circumstances
so proved must form a chain of events from which the only irresistible
conclusion about the guilt of the accused can be safely drawn and no
other hypothesis against the guilt is possible.31
(iv) That in a case depending largely upon circumstantial evidence, there
is always a danger that conjecture or suspicion may take the place of
legal proof.32
(v) The court must satisfy itself that various circumstances in the chain of
events have been established clearly and such completed chain of events
must be such as to rule out a reasonable likelihood of innocence of the
accused.33
(vi) That when the important link goes, the chain of circumstances gets
snapped and the other circumstances cannot in any manner, establish
the guilt of the accused beyond all reasonable doubts. 34
28 In the survey year 2013, the cases which dealt with the circumstantial evidence were.
Sananullah Khan v. State of Bihar (2013) 3 SCC 52; Sunder alias Sundarajan v. State
by Inspector of Police (2013) 3 SCC 215; Harivadan Babubhai Patel v. State of
Gujarat (2013) 7 SCC 45; Anuj Kumar Gupta @ Sethis Gupta v. State of Bihar (2013)
12 SCC 383; Majendran Langeswaran v. State of NCT Delhi (2013) 7 SCC192;
Rumi Bora Dutta v. State of Assam (2013) 7 SCC 417; Dharminder Singh @ Vijay
Singh v. State (2013) 12 SCC 263; Tenjinder Singh alias Aaka v. State of Punjab
(2013) 12 SCC 503; State of Himachal Pradesh v. Jai Chand (2013)10 SCC 298, State
of Maharashtra v. Lahu @ Lahukumar Ramchandra Dhekhane (2013) 10 SCC 292;
Rishipal v. State of Uttarakhand (2013) 12 SCC 551; R. Kuppusamy v. State represented
by Inspector of Police, Ambeiligai (2013) 3 SCC 322.
29 Sunder alias Sundarajan v. State by Inspector of Police (2013) 3 SCC 215.
30 Also see Shivaji Sahebrao Bobade v. State of Maharashtra 1973 Cri LJ 1783.
31 Ibid.
32 Ibid.
33 Ibid.
34 Harivadan Babubhai Patel v. State of Gujarat (2013) 7 SCC 45.
632 Annual Survey of Indian Law [2013
(vii) That the court has to be watchful and avoid the danger of allowing the
suspicion to take the place of legal proof for some times, unconsciously
it may happen to be a short step between moral certainty and legal
proof.35
(viii) That there is a long mental distance between ‘may be true’ and ‘must
be true’ and the same divides conjectures from conclusions.36
(ix) That more the suspicious circumstances, more care and caution are
required to be taken otherwise the suspicious circumstances may
unwittingly enter the adjudicating thought process of the court even
though the suspicious circumstances had not been clearly established
by clinching and reliable evidences.37
(x) When the other evidence on record are cogent, credible and meet the
test of circumstantial evidence laid down in various decisions, then
there is no justification to come to hold that the prosecution has
deliberately withheld a witness that creates a concavity in the concept
of fair trial.38
(xi) The circumstances from which the conclusion of the guilt is to be drawn
should in the first instance be fully established, and all the facts so
established should also be consistent with only one hypothesis i.e. the
guilt of the accused, which would mean that the onus lies on the
prosecution to prove that the chain of event is complete and not to
leave any doubt in the mind.39
(xii) The circumstances should be of a conclusive nature and tendency and
they should be such as to exclude every hypothesis but the one proposed
to be proved. In other words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be such as to
show that within all human probability, the act must have been done by
the accused.40
Confession & its veracity (section 24-31)
Section 27 of the IE Act, 1872 deals with the issue that ‘how much of
information received from accused may be proved’.41 This provision of the IE
Act, 1872 has been one of the most turbulent paths/ area and has received varied
35 Anuj Kumar Gupta @ Sethis Gupta v. State of Bihar (2013) 12 SCC 383.
36 Jaharlal Das v. State of Orissa (1991) 3 SCC 27
37 Supra, note 29.
38 Supra, note 31.
39 Majendran Langeswaran v. State of NCT Delhi (2013) 7 SCC 192
40 Ibid.
41 S. 27, Indian Evidence Act, 1872.
Vol. XLIX] Law of Evidence 633
42 Sananullah Khan v. State of Bihar, (2013) 3 SCC 52. This presumption is based on
the view that if a fact is actually discovered in consequence of information given and
accordingly can be safely allowed to be given in evidence. But, the extent of the
information admissible must depend on the exact nature of the fact discovered to
which such information is required to be related. Also see, Ram Kishan Lal Sharma
v. State of Bombay, 1955 SCR 903.
43 (2012) 6 SCC 403.
44 (2013) 12 SCC 383.
45 Id. at 388-389.
634 Annual Survey of Indian Law [2013
(i) The solitary circumstance of the accused and victim being last seen
will not complete the chain of circumstances for the Court to record
a finding that it is consistent only with the hypothesis of the guilt of
the accused. No conviction on that basis alone can, therefore, be
founded.51
(ii) That it is not possible to convict Appellant solely on basis of ‘last
seen’ evidence in the absence of any other links in the chain of
circumstantial evidence, the Court gave benefit of doubt to accused
persons.52
Dying Declaration (oral)
The survey year 2013 witnessed numerous decisions by the Supreme Court
of India on issue relating to admissibility, reliance and conviction which is solely
based on ‘Dying Declaration’. Having founded its root in legal maxim “Nemo
moriturus praesumitur mentire” which essentially mean that a man will not meet
his maker with a lie in his mouth,53 the law relating to Dying Declaration has
received varied interpretations based on facts and circumstances of the individual
cases. A dying declaration can be oral or in writing and any adequate method of
communication whether by words or by signs or otherwise will suffice provided
the indication is positive and definite.54 However, the fundamental legal position
relating to the acceptability and evidentiary value of ‘Dying Declaration’55 remain
intact with a minor development of law giving the exquisite and unique facts of
certain cases. These are:
(i) The conviction can be founded solely on the basis of dying declaration
if the same inspires full confidence.56
(ii) The conviction can be recorded on the basis of dying declaration
alone, if the same is wholly reliable, but in the event there exists any
suspicion as regards the correctness or otherwise of the said dying
declaration, the courts, in arriving at the judgment of conviction, shall
look for some corroborating evidence.57
(iii) The court, in order to satisfy whether the deceased was in a fit mental
condition to make the dying declaration, looks up to the medical
opinion. But where the eye-witness said that the deceased was in a fit
and conscious state to make the dying declaration, the medical opinion
cannot prevail.58
(iv) A dying declaration can be oral or in writing and any adequate method
of communication whether by words or by signs or otherwise will
suffice provided the indication is positive and definite. 59
(v) There is no particular form or procedure prescribed for recording a
dying declaration nor it is required to be recorded only by a
Magistrate.60
(vi) It is settled law that if the prosecution solely depends on the dying
declaration, the normal rule is that the courts must exercise due care
and caution to ensure genuineness of the dying declaration, keeping
in mind that the accused had no opportunity to test the veracity of the
statement of the deceased by cross-examination.61
(vii) It is the duty of the court to examine a dying declaration scrupulously
with a microscopic eye to find out whether the dying declaration is
voluntary, truthful, made in a conscious state of mind and without
being influenced by the relatives present or by the investigating agency
who may be interested in the success of investigation or which may
be negligent while recording the dying declaration. 62
(viii) That a dying declaration which has been found to be voluntary and
truthful and which is free from any doubts can be the sole basis for
convicting the accused.63
(ix) That when it is not borne out from the evidence of the doctor that the
injuries were so grave and the condition of the patient was so critical
that it was unlikely that he could make any dying declaration, there
was no justification or warrant to discard the credibility of such a
dying declaration.64
(x) Thus, emphasis was laid on the physical and mental condition of the
deceased and the veracity of the testimony of the witnesses who depose
as regards the oral dying declaration.65
(xi) The insistence of corroboration to a dying declaration is only a rule
of prudence and not a necessity.66
(xii) When the Court is satisfied that the dying declaration is voluntary,
not tainted by tutoring or animosity, and is not a product of the
imagination of the declarant, in that event, there is no impediment in
convicting the accused on the basis of such dying declaration.
(xiii) The dying declaration has been proved in accordance with law, is a
truthful version of the events that occurred and the circumstances
leading to her death. The same is reliable and in fact, to some extent,
finds corroboration from the statements of other witnesses.67
(xiv) It is only if the circumstances surrounding the dying declaration are
not clear or convincing that the court may, for its assurance, look for
corroboration of the dying declaration.68
(xv) It cannot be laid down as an absolute rule of law that a dying
declaration cannot form the sole basis of conviction unless it is
corroborated.69
(xvi) Where the dying declaration suffers from an infirmity, the Courts
will have to adopt a different course to adjudicate the matter in
accordance with law.70
(xvii) It clearly emerges that it is not an absolute principle of law that a
dying declaration cannot form the sole basis of conviction of an
accused when such dying declaration is true, reliable and has been
recorded in accordance with the established practice and principles.71
(xviii)Considering the recording of dying declaration, procedure followed,
her fitness to make a statement, the evidence of doctor and the evidence
of Magistrate, who recorded her statement, it amply prove their case.72
(xix) The claim that there was wrong description of names in the dying
declaration and some of the relatives were present at the time of
recording of dying declaration is not material contradictions which
would affect the prosecution case.73
(xx) Conviction can indisputably be based on a dying declaration. But
before it can be acted upon, the same must be held to have been
rendered voluntarily and truthfully. Consistency in the dying
declaration is the relevant factor for placing full reliance thereupon.
Where the deceased himself/ herself had taken contradictory and
inconsistent stand in different dying declaration, they should not be
accepted on their face value.74
(xxi) The said declaration can be relied and acted upon, provided that the
court ultimately holds the same to be voluntary and definite.
Certification by a doctor is essentially a rule of caution, and therefore,
the voluntary and truthful nature of the declaration can also be
established otherwise.
(xxii) That the ultimate test is whether a dying declaration can be held to be
truthfully and voluntarily given, and if before recording such dying
declaration, the officer concerned has ensured that the declarant was
in fact, in a fit condition to make the statement in question, then if
both these aforementioned conditions are satisfactorily met, the
declaration should be relied upon.75
(xxiii)That if the court finds that the capacity of the maker of the statement
to narrate the facts was impaired, or if the court entertains grave doubts
regarding whether the deceased was in a fit physical and mental state
to make such a statement, then the court may, in the absence of
corroborating evidence lending assurance to the contents of the
declaration, refuse to act upon it.76
(xxiv) There is no statutory prescription as to in what manner or the procedure
to be followed for recording a dying declaration to fall within the
four corners of Section 32(1) of the Evidence Act. The presence of
Magistrate; certification of the doctor as to the mental or the physical
status of the person making the declaration, were all developed by
judicial pronouncements.77
74 Kashi Vishwanath v. State of Karnataka (2013) 7 SCC 162; also see Mehiboobsab
Abbasabi Nadaf v. State of Karnataka, (2007) 13 SCC 112.
75 Koli Chunilal Savji v. State of Gujarat, AIR 1999 SC 3695; Babu Ram v. State of
Punjab, AIR 1998 SC 2808.
76 Laxmi v. Om Prakash AIR 2001 SC 2383.
77 Rafique @ Rauf v. State of Uttar Pradesh (2013) 12 SCC 121.
Vol. XLIX] Law of Evidence 639
(xxv) In that case it would mainly depend upon the date and time vis-à-vis
the occurrence when the statement was alleged to have been made,
the place at which it was made, the person to whom the said statement
was made, the sequence of events, which led the person concerned to
make the statement, the physical and mental condition of the person
who made the statement, the cogency with which any such statement
was made, the attending circumstances, whether throw any suspicion
as to the factum of the statement said to have been made or any other
factor existing in order to contradict the statement said to have been
made as claimed by the prosecution, the nexus of the person who
made the statement to the alleged crime and the parties involved in
the crime, the circumstance which made the person to come forward
with the statement and last but not the least, whether the said statement
fully support the case of the prosecution.78
(xxvi) That it was not absolutely mandatory that in every case a dying
declaration should be recorded only by a Magistrate.79
(xxvii) That neither Section 32 of the Evidence Act nor Section 162(2) of
the Cr PC, mandate that the dying declaration has to be recorded by a
designated or particular person and that it was only by virtue of the
development of law and the guidelines settled by the judicial
pronouncements that it is normally accepted that such declaration
would be recorded by a Magistrate or by a doctor to eliminate the
chances of any doubt or false implication by the prosecution in the
course of investigation.80
Multiple Dying Declarations
In the matter of Ashabai v. State of Maharashtra,81 the court examined the
issue of multiple dying declarations and their evidentiary value. A close survey of
the decisions on this issue by the Supreme Court of India leads to conclusion that
the legal position is not settled as what is the fate of evidentiary value attached to
such multiple dying declaration – the dying declaration which has a jurisprudential
sanctity i.e. it is so solemn and true that a man at the death bed would not like to
meet his maker with a lie on his lips. It observed as under: 82
When there are multiple dying declarations, each dying declaration
has to be separately assessed and evaluated and assess independently
on its own merit as to its evidentiary value and one cannot be rejected
because of certain variation in the other.
78 Ibid.
79 Cherlopalli Cheliminabi Saheb v. State of Andhra Pradesh (2003) 2 SCC 571.
80 Dhan Singh v. State of Haryana (2010) 12 SCC 277.
81 (2013) 2 SCC 224.
82 Supra note 30.
640 Annual Survey of Indian Law [2013
The survey year had another occasion to deal with the issue of multiple
dying declaration in the case of Kashi Vishwanath v. State of Karnataka83 wherein
it observed that consistency in the dying declaration is the relevant factor for
placing full reliance. It further observed as under: 84
When the deceased herself had taken contradictory and inconsistent
stand in different dying declarations. They, therefore, should not be
accepted on their face value. Caution, in this behalf, is required to be
applied.
In the case of Bhadragiri Venkata Ravi v. public Prosecutor, High Court of
Andhra Pradesh, Hyderabad 85 while highlighting the discrepancies in two dying
declarations, the court observed that in case of plural/multiple dying declarations,
the court has to scrutinise the evidence cautiously and must find out whether there
is consistency particularly in material particulars therein. In case there are inter-se
discrepancies in the depositions of the witnesses given in support of one of the
dying declarations, it would not be safe to rely upon the same. In fact it is not the
plurality of the dying declarations but the reliability thereof that adds weight to
the prosecution case. If the dying declaration is found to be voluntary, reliable and
made in a fit mental condition, it can be relied upon without any corroboration.
But the statements should be consistent throughout. The court also noted that
when material inconsistency is present in the dying declaration, as the accused did
not have a right to examine or cross- examine the deceased, such dying declaration
should not be relied upon.86
The issue as to what extent the reliance could be placed on the statement of
hostile witnesses was examined by the Supreme court in the case of Krishan v.
State of Haryana 87 where the veracity of dying declaration was questioned. The
hostility of the witnesses is a relevant consideration, but is not the sole determinative
factor for deciding the guilt or otherwise of an accused. The court emphasised that
if the said dying declaration suffers from any infirmity then the court must look
for corroboration otherwise, the conviction can be based upon it. The court after
perusing catena of decisions on the issue of ‘evidence by hostile witnesses’ 88
held that in the present case the dying declaration has been proved in accordance
with law, is a truthful version of the events that occurred and the circumstances
leading to her death. The same is reliable and in fact, to some extent, finds
corroboration from the statements of other witnesses.
In the matter of Kantilal martaji pandor v. State of Gujarat,89 the Supreme
Court considered whether a letter written by the deceased to the police station
wherein the accused was charged for the offences defined under sec. 306, section
498-A read with section 120-B would constitute the Dying Declaration or not. In
this case, the lower courts have reached the conclusion that the appellant were not
guilty of offences under section 306. The Supreme Court also concluded that when
the cause of death of the deceased is no more a question, these evidences will not
be relevant by relying on its earlier decision 90 and observed as under: 91
Unless the statement of a dead person would fall within the purview of
Section 32(1) of the Indian Evidence Act there is no other provision
under which the same can be admitted in evidence. In order to make
the statement of a dead person admissible in law (written or verbal) the
statement must be as to the cause of her death or as to any of the
circumstance of the transactions which resulted in her death, in cases
in which the cause of death comes into question. *** Even that apart,
when we are dealing with an offence under Section 498-A IPC
disjuncted from the offence under Section 306 IPC the question of her
death is not an issue for consideration and on that premise also Section
32(1) of the Evidence Act will stand at bay so far as these materials are
concerned.
So, a letter written by the deceased could be relevant only under section
32(1) of the IE Act, 1872, which provides that a statement, written or verbal, of
relevant facts made by a person who is dead, is relevant 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. The court concluded that as the cause of the
death of the deceased is no more in question in the present case, the statements
made by the deceased in the letter is not relevant at all.
In Rafique @ Rauf v. State of Uttar Pradesh,92 the Supreme Court of India
examined the interplay of section 32 of the IE Act, 1872 and statement recorded
under section 162 (2) of the Cr PC. The Supreme Court referred its earlier decision
on the issue in Sri Bhagwan v. State of U.P.93 wherein it held as under: 94
doubt’ has been elaborated and dealt by the Supreme Court in the matter of State
of U.P. v. Krishna Gopal 99 and it has been observed as under:100
Doubts would be called reasonable if they are free from a zest for
abstract speculation. Law cannot afford any favourite other than truth.
To constitute reasonable doubt, it must be free from an over emotional
response. Doubts must be actual and substantial doubts as to the guilt
of the accused person arising from the evidence, or from the lack of it,
as opposed to mere vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt; but a fair doubt based
upon reason and common-sense. It must grow out of the evidence in
the cases.
Subsequently, the Supreme Court reached a conclusion in Hiraman v. State
of Maharashtra101 as under:102
Exaggerated doubts, on account of absence of corroboration, will only
lead to unmerited acquittals, causing grave harm to the cause of justice
and ultimately to the social fabric. With the incidents of wives being
set on fire, very unfortunately continuing to occur in our society, it is
expected from the Courts that they approach such situations very
carefully, giving due respect to the dying declarations, and not being
swayed by fanciful doubts.
Discrepancies, embellishment and improvements of witnesses in dying
declaration
In the case of State of Madhya Pradesh v. Dal Singh,103 the Supreme Court
examined the issue of discrepancies, embellishments and improvements of
witnesses which occur frequently in the criminal cases from the stage of trial till it
get finality from Supreme Court. It observed as under:104
So far as the discrepancies, embellishments and improvements are
concerned, in every criminal case the same are bound to occur for the
reason that witnesses, owing to common errors in observation, i.e.,
errors of memory due to lapse of time, or errors owing to mental
disposition, such as feelings shock or horror that existed at the time
of occurrence.
105 Ibid.
106 (2013) 14 SCC 159.
107 Dr. Jaising P. Modi “A Textbook of Medical Jurisprudence and Toxicology” (Lexis
Nexis 24th edn. 2011)
108 Id. at 169.
Vol. XLIX] Law of Evidence 645
none. When burns occur on the scalp, they may cause greater
difficulties. They can usually be distinguished from wounds inflicted
before the body was burnt by their appearance, their position in areas
highly susceptible to burning, and on fleshy areas by the findings
recorded after internal examination. Shock suffered due to extensive
burns is the usual cause of death, and delayed death may be a result of
inflammation of the respiratory tract, caused by the inhalation of smoke.
Severe damage to the extent of blistering of the tongue and the upper
respiratory tract can follow due to the inhalation of smoke.
The Supreme Court placed its reliance on its earlier decision in Mafabhai
Nagarbhai Raval v. State of Gujarat109 wherein the issued was relating to
acceptability of dying declaration of a person who had suffered 99% burn injuries
wherein it opined as under: 110
…[T]hat the doctor who had conducted the post-mortem was a
competent person, and had deposed in this respect. Therefore, unless
there existed some inherent and apparent defect, the court could not
have substituted its opinion for that of the doctor’s. Hence, in light of
the facts of the case, the dying declarations made, were found by this
Court to be worthy of reliance, as the same had been made truthfully
and voluntarily.
In the present case, the question which arose before the Supreme Court for
its consideration was whether the thumb impression which has been put on the
dying declaration is genuine or not. The court noted the earlier decision on this
point in State of Punjab v. Gian Kaur,111 the court gave benefit of doubt in the
situation as the doctors were unable to the explain the presences of ridges and
curves when the skin of the thumb had been completely burnt out. However, in the
case at hand i.e., State of Madhya Pradesh v. Dal Singh,112 the Supreme Court
opined as under: 113
So far as the question of thumb impression is concerned, the same
depends upon facts, as regards whether the skin of the thumb that was
placed upon the dying declaration was also burnt. Even in case of such
burns in the body, the skin of a small part of the body, i.e. of the thumb,
may remain intact. Therefore, it is a question of fact regarding whether
the skin of the thumb had in fact been completely burnt, and if not,
whether the ridges and curves had remained intact
In the case of Jose S/o Edassery Thomas v. State of Kerala,114 the dying
declaration was recorded in the ICU in the Burns Ward (in a case of 92 % Burn),
which got signed by the doctor, a plastic surgeon, wherein it was disputed that the
doctor has not endorsed about the condition of the declarant of the dying
declaration. The court reached the conclusion that when the evidence on record
indicates that the deceased was conscious and when the cumulative effect of the
evidence clearly proves the guilt of accused and chain of circumstances exclusively
leads towards accused. Hence, the accused was held to be guilty in the present
case.
Section 40, 41, 42 & 43
In the case of Guru Granth Saheb sthan Meeraghat Vanaras v. Ved Prakash,115
while examining the issue as whether high court was correct in staying the
proceedings of civil suits till the decision of the criminal case. The Supreme Court
of India relied upon the decision of the Constitution Bench in M.S. Sheriff v. State
of Madras116 which considered the question of simultaneous prosecution of the
criminal proceedings with the civil suit. The Supreme Court of India observed
that no hard and fast rule can be laid down and that possibility of conflicting
decision in civil and criminal courts is not a relevant consideration. The Supreme
Court of India noted the settled proposition of law on section 40,41,42 & 43 of the
IE Act,1872 through series of decision namely M/s. Karam Chand Ganga Prasad
etc. v. Union of India,117 K.G. Premshanker v. Inspector of Police 118 and observed
as under: 119
…[I]f the criminal case and civil proceedings are for the same cause,
judgment of the civil court would be relevant if conditions of any of
Sections 40 to 43 are satisfied but it cannot be said that the same
would be conclusive except as provided in Section 41. Section 41
provides which judgment would be conclusive proof of what is stated
therein. Moreover, the judgment, order or decree passed in previous
civil proceedings, if relevant, as provided under Sections 40 and 42
or other provisions of the Evidence Act then in each case the Court
has to decide to what extent it is binding or conclusive with regard to
the matters decided therein. In each and every case the first question
which would require consideration is, whether judgment, order or
decree is relevant; if relevant, its effect. This would depend upon the
facts of each case
The Supreme Court opined that the order of the high court staying the civil
proceedings till the decision of the criminal case is bad in law because:
(i) Even if there is possibility of conflicting decisions in the civil and
criminal courts, such an eventuality cannot be taken as a relevant
consideration.
(ii) In the facts of the present case there is no likelihood of any
embarrassment to the defendants.
Secondary evidence (section 65)
Section 65 of the IE Act, 1872 crystallises the law relating to the admissibility
of secondary evidence. The general principle underlying the admissibility of
secondary evidence is that when you lose the higher proof, you may offer the next
best in your power. The case admits of the better evidence than that which you
possess, if the superior proof has been lost without one’s fault. The principle that
so long as the higher or superior evidence is within your possession or may be
reached by you, you shall give no inferior proof in relation to it. 120 In the case of
U. Sree v. U. Srinivas,121 the issue before the Supreme Court was whether the
photostat copy of the letter alleged to have been written by the wife to her father
could have been admitted as secondary evidence or not. The Supreme Court set
aside the findings of the courts below and its observation that when the person is
in possession of the document but has not produced the same, it can be regarded
as a proper foundation to lead secondary evidence. The court held that the secondary
evidence may be given of the existence, condition or contents of a document when
the original is shown or appears to be in the possession or power of the person
against whom the document is sought to be proved, or of any person out of reach
of, or not subject to, the process of the court, or of any person legally bound to
produce it, and when, after the notice mentioned in section 66, such person does
not produce it. The admissibility of secondary evidence is subject to large number
of limitations,122 content of secondary evidence cannot be admitted without non-
production of the original being first accounted for in such a manner as to bring it
within one or other of the cases provided for the section,123 must be authenticated
by foundational evidence that the alleged copy is in fact a true copy of the original.124
Burden of proof & onus of proof
In the case of Mohd. Khalil Chisti v. State of Rajasthan,125 the Supreme
Court considered the right to private defence126 and the ‘burden of proof’ vis-a-vis
‘onus of proof’ in given set of facts and circumstances. The Supreme Court
observed that it is well settled that fouler the crime, higher the proof,127termed right
to self defence as a valuable right serving a social purpose.128 The Supreme Court
observed that the non- explanation of the major injuries suffered by the accused
during the course of incident weakens the case of prosecution.129
However, there may be cases where the non-explanation of the injuries by the
prosecution may not affect the prosecution case but in all those cases, the injuries
sustained by the accused are minor and superficial or where the evidence is so
clear and cogent, that it outweighs the effect of the omission on the part of the
prosecution to explain the injuries.130 The court further held that the onus is on the
accused to establish that his action was in exercise of the right of private defence.
The Supreme Court laid down the proposition of law in following words: 131
There is a clear distinction between the nature of burden that is cast
on an accused under Section 105 of the Evidence Act (read with
Sections 96 to 106 of the Penal Code) to establish a plea of private
defence and the burden that is cast on the prosecution under Section
101 of the Evidence Act to prove its case. The burden on the accused
is not as onerous as that which lies on the prosecution. While the
prosecution is required to prove its case beyond a reasonable doubt,
the accused can discharge his onus by establishing a preponderance
of probability.
In the case of Gian Chand and Brothers v. Rattan Lal alias Ratan Singh,132
the Supreme Court of India was considering the issue of ‘burden of proof’ in cases
has no application in India and highlighted the interplay between section 114 and
106 of the Act in following words: 139
A fact otherwise doubtful may be inferred from certain other proved
facts. When inferring the existence of a fact from other set of proved
facts, the court exercises a process of reasoning and reaches a logical
conclusion as to the most probable position. The above position is
strengthened in view of Section 114 of the Evidence Act, 1872. It
empowers the court to presume the existence of any fact which it
thinks likely to have happened. In that process, the courts shall have
regard to the common course of natural events, human conduct, etc.
in addition to the facts of the case. In these circumstances, the
principles embodied in Section 106 of the Evidence Act can also be
utilized. Section 106 however is not intended to relieve the prosecution
of its burden to prove the guilt of the accused beyond reasonable
doubt, but it would apply to cases where the prosecution has succeeded
in proving facts from which a reasonable inference can be drawn
regarding the existence of certain other facts, unless the accused by
virtue of his special knowledge regarding such facts, has offered an
explanation which might drive the court to draw a different inference.
Standard of proof
In the Survey Year 2013, the Supreme Court of India has expressed its varied
opinion on the ‘standard of proof’ and appreciation of evidence by the court of
law in reaching a conclusion based on the facts and circumstances of each case. In
the case of Rev.Mother Marykutty v. Reni C Kottaram,140 it opined as follows:141
The standard of proof evidently is preponderance of probabilities.
Inference of preponderance of probabilities can be drawn not only
from the materials on record but also by reference to the circumstances
upon which he relies
Deliberating on the issue of standard of proof in a departmental enquiry case,
the Supreme Court in the matter of Rajkumar v. Jalgaon Municipal Corporation142
observed that in a departmental inquiry, the disciplinary authority is expected to
prove the charges on preponderance of probability and not on proof beyond
reasonable doubt. The Supreme Court further limited the scope of interference by
the high court in exercise of its writ jurisdiction under article 226 of the Constitution
observed that the high court cannot re-appreciate the evidence acting as a court of
appeal143 nor it is the function of the high court in a petition for a writ under article
226 to review the evidence and to arrive at an independent finding on the evidence
especially when the charged officer had not participated in the inquiry and had not
raised the grounds urged by him before the high court by the inquiring authority.144
It further observed as under:145
It is a well acceptable principle of law that the High Court while
exercising powers under Article 226 of the Constitution does not act
as an appellate authority. Of course, its jurisdiction is circumscribed
and confined to correct an error of law or procedural error, if any,
resulting in manifest miscarriage of justice or violation of the
principles of natural justice
In the case of Goudappa v. State of Karnataka,146 the Supreme Court of India
considered a case in which a crime was committed in furtherance of common
intention and how the evidence needs to be appreciated in such cases. The court
observed pithily and succinctly in following words: 147
But to say this is no more than to reproduce the ordinary rule about
circumstantial evidence, for there is no special rule of evidence for
this class of case. At bottom, it is a question of fact in every case and
however similar the circumstances, facts in one case cannot be used
as a precedent to determine the conclusion on the facts in another. All
that is necessary is either to have direct proof of prior concert, or
proof of circumstances which necessarily lead to that inference, or,
as we prefer to put it in the time- honoured way, ‘the incriminating
facts must be incompatible with the innocence of the accused and
incapable of explanation on any other reasonable hypothesis.
Hostile witness
Every year there are a series of decisions by the Supreme Court on the various
aspects of ‘hostile witness’. The central issue which surrounds every decision is to
what extent the reliance could be placed on statement of hostile witness. A survey
of decisions rendered in year 2013, reveals the following proposition of law: 148
(i) The hostility of the witnesses is a relevant consideration, but is not the
sole determinative factor for deciding the guilt or otherwise of an
accused.
143 State Bank of India v. Ramesh Dinkar Punde (2006) 7 SCC 212.
144 State of Andhra Pradesh v. Sree Rama Rao AIR 1963 SC 1723.
145 (2013) 2 SCC 740 at 750.
146 (2013) 3 SCC 675.
147 Pandurang v. State of Hyderabad AIR 1955 SC 216, 222.
148 Supra note 56.
652 Annual Survey of Indian Law [2013
(ii) The court must consider the cumulative effect of hostile witnesses and
the reliability of a dying declaration. 149
(iii) There is a limited examination-in-chief, cross-examination by the
prosecutor and cross-examination by the counsel for the accused. It is
admissible to use the examination-in-chief as well as the cross-
examination of the said witness insofar as it supports the case of the
prosecution.150
(iv) The evidence of hostile witnesses can also be relied upon by the
prosecution to the extent to which it supports the prosecution version
of the incident.151
(v) The evidence of such witnesses cannot be treated as washed off the
records, it remains admissible in trial and there is no legal bar to base
the conviction of the accused upon such testimony, if corroborated by
other reliable evidence.152
(vi) The courts may rely upon so much of the testimony which supports the
case of the prosecution and is corroborated by other evidence. It is
also now a settled canon of criminal jurisprudence that the part which
has been allowed to be cross-examined can also be relied upon by the
prosecution.153
(vii) The general principle of appreciating evidence of eyewitnesses in such
a case is that where a large number of offenders are involved, it is
necessary for the court to seek corroboration, at least, from two or
more witnesses as a measure of caution.154
(viii) Credible evidence of even hostile witnesses can form the basis for
conviction.155
(ix) That evidence of a hostile witness would not be totally rejected if spoken
in favour of the prosecution or the accused but required to be subjected
to close scrutiny and that portion of the evidence which is consistent
with the case of the prosecution or defence can be relied upon.156
(x) That his evidence to the effect of the presence of accused at the scene
of the offence was acceptable and the prosecution could definitely
rely upon the same.157
149 Ibid.; Also see, Bhajju @ Karan Singh v. State of M.P. (2012) 4 SCC 327.
150 Ibid.
151 Ibid.
152 Ibid.
153 Ibid.
154 Ibid.
155 Ibid.
156 Lahu Kamlakar Patil v. State of Maharashtra (2013) 6 SCC 417.
Vol. XLIX] Law of Evidence 653
(xi) That when a witness is declared hostile and when his testimony is not
shaken on material points in the cross-examination, there is no ground
to reject his testimony in to as it is well-settled158
(xii) Hostile witness is not necessarily a false witness159
(xiii) Granting of a permission by the Court to cross-examine his own witness
does not amount to adjudication by the Court as to the veracity of a
witness. It only means a declaration that the witness is adverse or
unfriendly to the party calling him and not that the witness is
untruthful.160
Evidence and proof of custom
In the case of Laxmibai v. Bhagwanthbuva,161 the Supreme Court of India
examined the evidentiary value of ‘custom’ and ‘usage’ and its evidentiary value.
After elaborating upon the essential ingredients of ‘custom’ i.e., it must be ancient,
uniform, certain, continuous and compulsory, the court also opined that no custom
is valid if it is illegal, immoral, unreasonable or opposed to public policy. The
court stated that the evidence adduced by a party concerned must prove the alleged
custom. A custom cannot be extended by analogy or logical process and it also
cannot be established by a priori method. When a custom has been judicially
recognized by the court, it passes into the law of the land and proof of it becomes
unnecessary under section 57 of the IE Act, 1872. A custom may be proved by
general evidence as to its existence by members of the tribe or family who would
naturally be cognizant of its existence, and its exercise without controversy. 162
‘Will’ as a document and presumption
The IE Act, 1872 makes an elaborate provision in relation to the ‘standard of
evidence’, which is required to prove a ‘Will’. The court in the matter of M. B.
Ramesh v. K. M. Veeraje,163 held that the application of presumption under section
90 of the IE Act, 1872 does not apply to a Will164 rather it has to be proved in
accordance with the provisions of Indian Succession Act, 1925 read with section
68 of the IE Act,1872. The principle underlying section 90 of the IE Act, 1872 is that
the age of a document is unsuspicious character, the production from proper
custody and other circumstances is a rule founded on necessity and convenience.
157 Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1.
158 Attar Singh v. State of Maharashtra (2013) 11 SCC 719
159 Shatrughan v. State of M.P. (1993) Crl LJ 3120
160 See supra note 158; Sat Paul v. Delhi Administration, AIR 1976 SC 294.
161 (2013) 4 SCC 97.
162 Salekh Chand v. Satya Gupta (2008) 13 SCC 119.
163 (2013) 7 SCC 490.
164 Bharpur Singh v. Shamsher Singh (2009) 3 SCC 687.
654 Annual Survey of Indian Law [2013
made, or that those like the wife and children of the testator who would
normally receive their due share in his estate were disinherited because
the testator might have had his own reasons for excluding them. The
presence of suspicious circumstances makes the initial onus heavier
and therefore, in cases where the circumstances attendant upon the
execution of the will excite the suspicion of the court, the propounder
must remove all legitimate suspicions before the document can be
accepted as the last will of the testator.
v. It is in connection with wills, the execution of which is surrounded by
suspicious circumstance that the test of satisfaction of the judicial conscience
has been evolved. That test emphasises that in determining the question as
to whether an instrument produced before the court is the last will of the
testator, the court is called upon to decide a solemn question and by reason
of suspicious circumstances the court has to be satisfied fully that the will
has been validly executed by the testator.
vi. If a caveator alleges fraud, undue influence, coercion etc. in regard to the
execution of the will, such pleas have to be proved by him, but even in the
absence of such pleas, the very circumstances surrounding the execution of
the will may raise a doubt as to whether the testator was acting of his own
free will. And then it is a part of the initial onus of the propounder to remove
all reasonable doubts in the matter.
Evidence of a document
In case of Laxmibai case,167 the court considered the evidentiary value of a
‘Document’ particularly adoption deed. It stated that party to an instrument cannot
be a valid attesting witness to the said instrument, for the reason that such party
cannot attest its own signature. A document must be construed, taking into
consideration the real intention of the parties. In this case, the Supreme Court
stressing upon the substance rather than form of the document held that mere
technicalities cannot defeat the purpose of adoption deed when none of the party
has made any attempt to disprove it.
Classification of oral testimony
In the case of State of Rajasthan v. Babu Meena,168 the facts of the case
related to the credibility of oral testimony of the prosecutrix which the courts
below has found not reliable and hence, acquitted the respondents. The court
reiterated that; if the statement of the prosecutrix is found to be worthy of credence
and reliable, requires no corroboration and the court may convict the accused on
the sole testimony of prosecutrix.169 However, such oral testimony of the prosecutrix
could be classified into three categories as under:170
examined and yet was being withheld from the court. If the answer be positive then
only a question of drawing an adverse inference may arise. If the witnesses already
examined are reliable and the testimony coming from their mouth is unimpeachable
the court can safely act upon it, uninfluenced by the factum of non-examination of
other witnesses.175 However, in the case of Dahari v. State of Uttar Pradesh176 the
Supreme Court held that when the prosecution case stood fully corroborated by
the medical evidence and the testimony of other reliable witness, no adverse
inference could be drawn against the prosecution.
Presumption under section 106 of the Act
The Supreme Court of India in the matter of Sunder alias Sundarajan,177
opined that the section 106178 of the IE Act,1872 is not intended to relieve the
prosecution of its burden to prove the guilt of the accused beyond reasonable
doubt, but the section would apply to cases where prosecution has succeeded in
proving facts for which a reasonable inference can be drawn regarding the existence
of certain other facts, unless the accused by virtue of special knowledge regarding
such facts failed to offer any explanation which might drive the court to draw a
different inference.
Presumption under section 113 A
Highlighting the purpose of statutory presumptions as enshrined in section
113-A of the Indian Evidence Act, 1872, the Supreme Court in the matter of Vajresh
Venkatray Anvekar v. State of Karnataka179 held that presumption under section
113-A of the IE Act, 1872 springs into action which says that when the question is
whether the commission of suicide by a woman had been abetted by her husband
and it is shown that she had committed suicide within a period of seven years from
the date of her marriage and that her husband or such relative of her husband had
subjected her to cruelty, the court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by her husband or by
such relative of her husband. The court further stated that the question is whether
the appellant has been able to rebut this presumption or not.
175 Id. at 55; also see, Tikhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC
145.
176 (2012) 10 SCC 256.
177 Supra note 29.
178 S. 106- Burden of proving fact especially within knowledge. When any fact is especially
within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that intention
is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving
that he had a ticket is on him.
179 (2013) 3 SCC 462.
658 Annual Survey of Indian Law [2013
Medical evidence
In the case of State of Himachal Pradesh v. Jai Chand,190 the Supreme Court
of India reversed the decision of high court which acquitted the respondent in the
present case. The court placed its reliance on the medical report given the doctors
and prevailing circumstances in the case which created a suspicion about the action
of respondent and his family members.
Evidence of child witness
In the case of Hamza v. Muhammedkutty,191 the Supreme Court of India held
that under section 157 of the IE Act, 1872 the previous statements of witness
could be used to corroborate later testimony. In this very case another issue was as
to what evidentiary value should be attached to the ‘Child Witness’. The Supreme
Court of India relied on the celebrated work of Glanville Williams 192 where he
opined that ‘Children are suggestible and sometimes given to living (sic- live) in a
world of make-believe. They are egocentric, and only slowly learn the duty of
speaking the truth’. The Supreme Court stated that as a rule of practical wisdom,
evidence of child witness must find adequate corroboration and once adequately
corroborated, it could be relied upon. 193
Medical evidence versus ocular evidence
The issue of inconsistency between two set of evidence i.e. medical and ocular
evidence and which set of evidence should be given primacy over the other has
been considered in the case of Radha Krishna Nagesh v. State of A.P.194 However,
the proposition of law which emerges out from the analysis of these decisions
remains free from chaos. The court held as under: 195
...[I]t is a settled principle of law that a conflict or contradiction
between the ocular and the medical evidence has to be direct and
material and only then the same can be pleaded. Even where it is so,
the Court has to examine as to which of the two is more reliable,
corroborated by other prosecution evidence and gives the most
balanced happening of events as per the case of the prosecution.
The court further noted that in order to establish a conflict between the ocular
evidence and the medical evidence, there has to be specific and material
contradictions. Merely because, some fact was not recorded or stated by the
doctor at a given point of time and subsequently such fact was established by the
expert report, the FSL Report would not by itself substantiate the plea of
contradiction or variation. The Supreme Court has put it very succinctly that it is
not that every minor variation or inconsistency that would tilt the balance of
justice in favour of the accused. Of course, where contradictions and variations
are of a serious nature, which apparently or impliedly are destructive of the
substantive case sought to be proved by the prosecution, they may provide an
advantage to the accused. Where the eye witness account is found credible and
trustworthy, medical opinion pointing to alternative possibilities may not be
accepted as conclusive.
Admissibility of evidence
The Supreme Court of India has pointed out the difference between the
‘admissibility of a document’ and the ‘probative value such documents’ in the
case of Joseph Johan Peter Sandy v. Veronica Thomas Rajkumar.196 It was held
that even a document may be admissible, still its contents have to be proved as the
appellant did not examine either the attesting witness of the document, nor proved
its contents, no fault can be found with the judgment of the high court.
Evidence of an accomplice / approver (section 133)
Section 133 of the IE Act, 1872, states that an accomplice is a competent
witness against an accused person and conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an accomplice. In the case of
Venkatesha v. State of Karnataka,197 it was held that the proposition that the
approver’s testimony needs corroboration cannot, be doubted as a proposition of
law. The court noted the juristic basis of such corroboration i.e. the approver is by
his own admission a criminal, which by itself makes him unworthy of an implicit
reliance by the court, unless it is satisfied about the truthfulness of his story by
evidence that is independent and supportive of the version given by him.
Sole witness (section 134)
One of the cardinal facets of criminal jurisprudence is that it is the merit of
the statement of particular witness which is relevant and not the number of witnesses
examined by the prosecution. This is reflected from the provision of section 134
of the IE Act, 1872 which states that no particular number of witnesses shall in
any case be required for the proof of any fact. In the matter of Kusti Mallaiah v.
State of Andhra Pradesh,198 the court opined that there is no legal hurdle in
convicting a person on the sole testimony of a single witness if his version is clear
and reliable; as the principle is that the evidence has to be weighed and not
counted. The testimony of a single witness may be categorized into three as
under:199
200 Ibid.
201 Ibid.
202 See supra note 161, Also see, Smt. Rajbir Kaur v. M/s. S. Chokosiri & Co., AIR 1988
SC 1845; Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narayan Singh; AIR
1951 SC 120, Jagdish Singh v. Madhuri Devi, AIR 2008 SC 2296, Dharamvir v.
Amar Singh, AIR 1996 SC 2314; Santosh Hazari v. Purushottam Tiwai (Dead) by
Lrs. AIR 2001 SC 965; and G. Amalorpavam v. R.C. Diocese of Madurai (2006) 3
SCC 224.
Vol. XLIX] Law of Evidence 663
his opinion as to where credibility lies, the appellate court must interfere with the
finding of the trial judge on a question of fact. The court opined that when a piece
of evidence when substantial justice and technical considerations are pitted against
each other, the cause of substantial justice deserves to be preferred and the courts
may in the larger interests of administration of justice may excuse or overlook a
mere irregularity or a trivial breach of law for doing real and substantial justice to
the parties and pass orders which will best serve the interest of justice. The
judgment of a court can be tested on “touchstone of dispassionate judicial scrutiny
based on a complete and comprehensive appreciation of all views of the case, as
well as on the quality and credibility of the evidence brought on record”. 203
In the case of Subodh Nath v. State of Tripura,204 the issue before the court
was the credibility of a juvenile witness who was also an eyewitness to the case.
The court repelling the argument held that when the evidence of child witness has
been corroborated by material particulars by reliable testimony, direct and
circumstantial, hence, it could not be doubted. Further, the Supreme Court of India
observed that in the deposition of witnesses there are always normal discrepancies
due to normal errors of observation, loss of memory, mental disposition of the
witnesses and the like.205 Unless the discrepancies are ‘material discrepancies’ so
as to create a reasonable doubt about the credibility of the witnesses, the court will
not discard the evidence of the witnesses.
Further, in the case of Kumar v. State of Tamil Nadu 206 the credibility of
witness was questioned on the fact that the complainant has named a total of six
persons in complaint, per contra, in the oral evidence, he had only referred to four
of them. The court repelling this argument observed the evidence as fair submission
and opined that the witness did not want to unnecessarily rope in persons who
were not involved in the crime. On that score, it cannot be held that the whole of
the evidence has to be rejected and once the evidence supports the complaint
supported by medical evidence and version of other eyewitness, there is no reason
to impeach the credibility of such witnesses merely on such trivial difference.
Eyewitness and surrounding circumstances
In the case of Manjit Singh v. State of Punjab,207 the Supreme Court deliberated
on the issue of non- examination of crucial witnesses and its impact on the
appreciation and evaluation of the courts in various circumstances. The court
reiterated the settled position of law that ‘it is not the quantity, but the quality of
witnesses/ evidences that is material’208 and the evidence has to be weighed and
not counted.209The court further clarified that the test is whether the evidence has
a ring of truth, is cogent, credible, trustworthy and reliable.210 Further, the legislative
intent from section 134 of the IE Act, 1872 clearly establish that there is no
requirement of that there must be particular number of witnesses to record an
order of conviction against the accused. However, the court further opined the
primacy and importance of material witnesses in the case as under: 211
That apart, it is also to be seen whether such non-examination of a
witness would carry the matter further so as to affect the evidence of
other witnesses and if the evidence of a witness is really not essential
to the unfolding of the prosecution case, it cannot be considered a
material witness.
The court has recorded that it is undoubtedly the duty of the prosecution to
lay before the court all material evidence available to it which is necessary for
unfolding its case; but it would be unsound to lay down as a general rule that every
witness must be examined even though his evidence may not be very material or
even if it is known that he has been won over or terrorised. 212 The charge of
withholding a material witness from the court levelled against the prosecution
should be examined in the background of the facts and circumstances of each case
so as to find whether the witnesses are available for being examined in the court
and were yet withheld by the prosecution.213
Sole eyewitness turning hostile
In the matter of Gudu Ram v. State of Himachal Pradesh,214 the question
before the Supreme Court of India was whether, despite the sole eyewitness to the
incident turning hostile, could the lower courts legitimately convict the accused or
not? The court examined the jurisprudence and traversed through the settled legal
position on reliance of ‘evidence of hostile witness’ and observed that ‘proof
cannot be substituted by robust suspicion’. It held that evidence of hostile witness
need not be completely rejected merely because he has turned hostile215, courts
must look for corroboration of the same in cases of circumspection,216 the court
also must not lose sight of the fact that the witness who makes different statements
at different times has no regard for truth217 and there is no legal bar to base a
209 Ibid.
210 Bipin Kumar Mondal v. State of W.B. (2010) 12 SCC 91.
211 State of U.P. v. Iftikhar Khan 1973 SCC (1) 512.
212 Masalti v. State of U.P. AIR 1965 SC 202.
213 State of H.P. v. Gian Chand (2001) 6 SCC 71.
214 (2013) 11 SCC 546.
215 Ibid.
216 Karuppanna Thevar v. State of Tamil Nadu (1976) 1 SCC 31.
217 Ibid.
Vol. XLIX] Law of Evidence 665
227 (2013) 12 SCC 399, Also see, Ranjit Singh v. State of Madhya Pradesh, AIR 2011 SC
255, Balaka Singh v. State of Punjab, AIR 1975 SC 1962; Ugar Ahir v. State of Bihar,
AIR 1965 SC 277; Nathu Singh Yadav v. State of Madhya Pradesh, AIR 2003 SC
4451.
228 Id. at 404
229 Balraje alias Trimbak v. State of Maharashtra (2010) 6 SCC 673.
230 Inder Singh v. The State (Delhi Administration) (1978) 4 SCC 161.
231 Id. at 162-163.
Vol. XLIX] Law of Evidence 667
Interested witness
The Supreme Court in the case of Habib v. State of Uttar Pradesh232 as well
as in the case of Shanmugam v. State Represented by Inspector of Police, T.N.233
had occasion to examine the evidentiary value of ‘interested witness’ and the caution
which needs to be adopted while appreciating the evidences of such witnesses.
The court reiterated the proposition of law laid down in the decision of Raju @
Balachandran v. State of Tamil Nadu,234 wherein it classified the witnesses in four
categories namely namely (i) a third party disinterested and unrelated witness
(such as a bystander or passer-by); (ii) a third party interested witness (such as a
trap witness); (iii) simply a related-cum- an interested witness (such as the wife of
the victim) having an interest in seeing that the accused is punished; (iv) a related-
cum- interested witness (such as the wife or brother of the victim) having an interest
in seeing the accused punished and also having some enmity with the accused.235
However, it is important to note down the following pointers while appreciating
the evidences of interested witnesses which has been evolved through the judicial
interpretations and forms an integral part of ‘law’ as defined under article 141 of
the Constitution of India:
(i) Interested witnesses being relatives is not a reason to discard their
evidence, if the evidence is trustworthy.236
(ii) The mechanical rejection of the evidence on the sole ground that it is
interested would invariably lead to the failure of justice. 237
(iii) In a murder trial, merely because a witness is interested or inimical,
his evidence cannot be discarded unless the same is otherwise found
to be trustworthy. 238
(iv) The paramount consideration of the court is to ensure that miscarriage
of justice is prevented.239
(v) A court should examine the evidence of a related and interested
witness having an interest in seeing the accused punished and also
having some enmity with the accused with greater care and caution
than the evidence of a third party disinterested and unrelated
witness.240
242 Shanmugam v. State Represented by Inspector of Police, T.N. (2013) 12 SCC 765.
243 Dalip Singh v. State of Punjab (1954) 1 SCR 145.
244 Masalti v. State of U.P. (1964) 8 SCR 133.
245 Kartik Malhar v. State of Bihar (1996) 1 SCC 614; also see Rakesh and Anr. v. State
of Madhya Pradesh JT 2011 (10) SC 525.
246 Shanmugam v. State Represented by Inspector of Police, T.N. (2013) 12 SCC 765.
247 Amit v. State of Uttar Pradesh (2012) 4 SCC 107; also see Vadivelu Thevar v. The
State of Madras AIR 1957 SC 614; Sunil Kumar v. State Govt. of NCT of Delhi (2003)
11 SCC 367; Namdeo v. State of Maharashtra (2007) 14 SCC 150; also see Bipin
Kumar Mondal v. State of West Bengal, AIR 2010 SC 3638.
248 Darya Singh v. State of Punjab (1964) 3 SCR 397, also see Takdir Samsuddin Sheikh
v. State of Gujarat. (2011) 10 SCC 158.
Vol. XLIX] Law of Evidence 669
(xiv) The test is whether the evidence has a ring of truth, is cogent, credible
and trustworthy or otherwise. 249
(xv) The legal system has laid emphasis on value, weight and quality of
evidence rather than on quantity, multiplicity or plurality of
witnesses.250
The difference between a partisan witness on one hand and an interested
witness who is unrelated to the victim but has some beneficial interest in the outcome
of a litigation on the other, remains obscure. However, in an appeal against acquittal,
the appellate court is entitled to re-appreciate the evidence on record if the court
finds that the view of the trial court acquitting the accused was unreasonable or
perverse. The golden thread which runs through the web of administration of justice
in criminal cases and that if two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the other to the innocence, the
view which is favourable to the accused should be adopted.
Police official as witness
The issue as to whether the conviction could be sustained merely on the
strength of evidences adduced by the Police Official as witness was considered in
the case of Pramod Kumar v. State (Govt. of NCT of Delhi).251 The contention of
the appellant was primarily based on the non- examination of independent witness
by the prosecution and merely reliance on the evidence of official witness (Police)
does not inspire the confidence in the prosecution version. However, the court in
its wisdom held that the cardinal principle of criminal law i.e. ‘it is the quality of
the evidence which weighs over the quantity of evidence’ is unimpeachable. It
opined that the witnesses from the department of police cannot per se be said to be
untruthful or unreliable. It would depend upon the veracity, credibility and un-
impeachability of their testimony. It further observed as under: 252
[T]hat there is no absolute command of law that the police officers cannot be
cited as witnesses and their testimony should always be treated with suspicion.
Ordinarily, the public at large show their disinclination to come forward to become
witnesses. If the testimony of the police officer is found to be reliable and trustworthy,
the court can definitely act upon the same. If, in the course of scrutinising the
evidence, the court finds the evidence of the police officer as unreliable and
untrustworthy, the court may disbelieve him but it should not do so solely on the
presumption that a witness from the department of police should be viewed with
distrust.
249 Ibid.
250 Ibid.
251 (2013) 6 SCC 588.
252 State of U.P. v. Anil Singh, 1988 Supp (2) SCR 611, also see State, Govt. of NCT of
Delhi v. Sunil 1988 Supp SCC 686, Ramjee Rai v. State of Bihar (2001) 1 SCC 652,
Kashmiri Lal v. State of Haryana 2013 AIR SCW 3102.
670 Annual Survey of Indian Law [2013
However, considering the facts and circumstances of the present case i.e.
especially when the informant has stated that the signature was taken while he
was in a drunken state, the panch witness had turned hostile and some of the
evidence adduced in the court did not find place in the statement recorded under
section 161 of the Code – the court opined that it is a proper case where the
investigation officer should have examined and his non- examination creates a
lacuna in the case of the prosecution. 259
III CONCLUSION
259 For details as in which all other circumstances the examination of investigation officer
is imperative kindly see, Arvind Singh v. State of Bihar (2001) 6 SCC 407, also see
Rattanlal v. State of Jammu and Kashmir (2007) 13 SCC 18 ; Ravishwar Manjhi v.
State of Jharkhand (2008) 16 SCC 561.
260 (2013) 13 SCC 1