1 Indian Evidence Act

Citations on

Indian Evidence Act, 1872

Compiled By:

M.P.Murugan,M.A.LL.B.,

Judicial Magistrate No.II,

Thanjavur, Tamil Nadu.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

2 Indian Evidence Act

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

3 Indian Evidence Act

The prosecution must stand or fall on its own legs and it cannot derive any strength

form the weaknesses of the defence. – (Sharad Birdhichand Sarda vs. State of

Maharashtra, 1984 (4) SCC 116)

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

4 Indian Evidence Act

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

5 Indian Evidence Act

Honourable Mr.Justice. Chinnappa Reddy, J.

in Ram Chander vs. The State of Haryana (AIR 1981 SC 1036)

"The adversary system of trial being what is is, there is an unfortunate tendency

for a judge presiding over a trial to assume the role of a referee or an umpire

and to allow the trial to develop into a contest between the prosecution and the

defence with the inevitable distortions flowing from combative and competitive

elements entering the trial procedure. If a Criminal Court is to be an effective

instrument in dispensing justice, the presiding judge must cease to be a

spectator and a mere recording machine. He must become a participant in the

trial by evincing intelligent active interest by putting questions to witnesses in

order to ascertain the truth."

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2009 (4). M.L.J. 214.

Dr.Arijit Pasayat and A.K.Ganguly,JJ. 6.2.2009. Arjun Singh vs.State of H.P.

A Magistrate should not be a silent spectator leaving the prosecution and the defence

to simply fight out the case before the court. lt is the role of the Magistrate to secure

the presence of the witnesses and there should be periodical Monitoring of service of

summons. lf there is difficulty in securing the presence of the witness, the higher

officials in the police department should be addressed through the principal Judge

concerned and the principal District Judge is also is expected to help the Magistrate in

this regard.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

6 Indian Evidence Act

Presence of other witnesses in court hall while examining other witness.

Dr. Kasi Iyer Vs. State of Kerala

The question that arises for decision is whether the Court has got power to order

unexamined witnesses out of Court until their examination is taken up.

To ensure a fair trial even in the absence of any specific provision in any

enactment the Court has inherent power to order that no witness who has to

give evidence should be present when the deposition of the other witnesses arc

being taken until he himself is examined as a witness. in criminal trials, a

prosecutory is entitled to remain in Court only in his capacity as prosecutor and

if he is witness also, he may be ordered to retire.

AIR.2004. SC 1280, 2004 (1) ALD (Cri) 447, 2004 Cri.L.J 880, 2004(1)CTC474,

JT2004(1)SC81, 2004 (1) KLT 1038 (SC), 2004(1)SCALE42, (2004)2SCC447.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

7 Indian Evidence Act

Sl.No Contents Page No.

1 Speedy Trial 11

2 Respect begets respect 12

3 guidelines in giving witness protection 13

4 Playing of video recording in court hall 15

5 Child witness 15

6 Test Identification Parade 20

7 Observation of Criminal Court in civil Proceeding 25

8 Confession 25

9 Confession to police officer 30

10 Confession & Recovery 31

11 Confession of co-accused 34

12 Dying Declaration 36

13 Entries made in public Documents. 45

14 Expert Opinion 49

15 Various rules for expert opinion 52

16 Medical Evidence 58

17 Judicial Notice 61

18 Hearsay evidence 62

19 Succession Act , S. 63 – Evidence Act , S.68 63

20 Secondary Evidence 65

21 Marking of Photograph 71

22 Comparison of signature 74

23 Burden of proof 75

24 When the nominees of the missing insured can

lay a claim to the benefits of the policies and

what their obligations are. Are they bound to

continue to pay premium?

77

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

8 Indian Evidence Act

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

9 Indian Evidence Act

25 Sample of Blood against will of the accused 80

26 Presumption as to legitimacy of child 81

27 Postal receipt and acknowledgement - presume

due service of notice.

83

28 Exception to Adverse inference 83

29 Estoppel 85

30 Evidentiary value of former statement 86

31 Leading question 88

32 Re-examination 89

33 Hostile witness 90

34 F.I.R. - Not substantive piece of evidence 92

35 Interested witness 95

36 Sole eye-witness 99

37 DNA Test 101

38 Adoption 102

39 Appreciation of evidence 103

40 corroboration 107

41 Unnatural conduct of witnesses. 109

42 Investigation 110

43 Circumstantial Evidence 111

44 Benefit of Doubt 112

45 Injuries on accused 113

46 Motive 117

47 contradictions or discrepancies 118

48 Credibility of witness 126

49 Defence witness 128

50

Evidence in the form of C.D., V.C.D.

131

51 Words & Phrases 132

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

10 Indian Evidence Act

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

11 Indian Evidence Act

Speedy Trial

1).All the delay and lack of accountability and half baked schemes amount to

a daily mockery of the fundamental right to speedy trial. The Supreme

Court made it clear that "speedy trial is of essence to criminal justice and

there can be no doubt that the delay in trial by itself constitutes denial of

justice" (Hussainara Khatoon V. State of Bihar AIR 1979 SC 1364).

2). "there can be no doubt that speedy trial -- and by speedy trial we mean a

reasonably expeditious trial -- is an integral and essential part of

fundamental right to life and liberty enshrined in Art 21" Hon'ble Supreme

Court in Maneka Gandhi V. Vol, AIR 1978 SC 597.

3). It is a very important obligation. Even apart from Art. 21 the constitutional

mandate for speedy justice is inescapable. The preamble of the

Constitution enjoins the state to secure social, economic and political

justice to all its citizens. The Directive Principles of State Policy declare

that the state should strive for a social order in which such justice shall

inform all the institutions of national life {(Art 38 (1)}. This is elaborated by

specifically adding that "The State shall secure that the operation of the

legal system promotes justice..; to ensure that opportunities for securing

justice are not denied to any citizen by reason of economic or other

disabilities" (Art 39A). While interpreting this provision the Supreme Court

has held that "social justice would include 'legal justice' which means that

the system of administration of justice must provide a cheap, expeditious

and effective instrument for realization of justice by all section of the

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

12 Indian Evidence Act

people irrespective of their social or economic position or their financial

resources" (Babu V. Raghunathji AIR 1976 SC 1734.)

4).2009. Cri.L.J.1731 (SC) , 2008 (2) MLJ.1051 , 2OO8(2).MLJ.1051,

2008(2) MLJ 1649 (SC) It is bounden duty of court to avoid unreasonable

delay to ensure the right to a speedy trial which is one of the important

constitutional rights of the accused. Hence when there is inordinate delay

in conducting trial, it vitiates the entire proceedings and will amount to

abuse of process of law. In the present case after filing the F.I.R. in crime

number 26 of 1995, until this day there has been no progress and the fate

of the .F.I.R. is also not explained by the prosecution, it is proper to quash

the said .F.I.R. to secure the ends of justice.

5).2008(2).MLJ.1376 ; -If the court comes to the decision that continuance of

the prosecution would be a harassment to the accused, then the court will

have to go to the rescue of the accused at any stage of proceedings –

Proceedings is liable to be quashed.

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6). (2008) 1 MLJ (Crl) 1045 (SC) --State of Gujarat Vs. Turabali

Gulamhussain Hirani and Another ----- Judicial Dominion - When the

Court had an occasion to summon a Senior official that too in some

extreme and compelling situation - He must be given proper respect by the

Court and he should not be humiliated - Such Senior Officials need not be

made to stand all the time when the hearing is going on, and they can be

offered a chair by the Court to sit - They need to stand only when

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

13 Indian Evidence Act

answering or making a statement in the Court - Respect begets respect -

Advised.

7). In the matter of Swaran Singh v. State of Punjab, the Supreme Court

observed,

"A witness has to visit the Court at his own cost, every time the case is

differed for a different date. Nowadays it has become more or less

fashionable to repeatedly adjourn a case. Eventually the witness is tired

and gives up."

8).The guidelines have been issued by Usha Mehra and Pradeep

Nandrajog., JJ(Delhi High Court, has on 14th October 2003) on a petition

filed by Neelam Kataria, whose son Nitesh was allegedly murdered by

Rajya Sabha MP D.P. Yadav's son Vikas and nephew Vishal.

The Delhi High Court has given the following guidelines in giving witness

protection:

1. The Court has also made it compulsory for the investigating officer of a

case to inform the witness about the new guidelines.

2. The Court has appointed the Member Secretary of the Delhi Legal

Services Authority to decide whether a witness requires police protection

or not.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

14 Indian Evidence Act

3. The competent authority shall take into account the nature of security risk

to him/her from the accused, while granting permission to protect the

witness.

4. Once the permission is granted, it shall be the duty of the Commissioner of

Police to give protection to the witness.

The High Court said that its order would operate until legislation is passed in this

regard.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

15 Indian Evidence Act

SS.3, 14 Evidence (2) 39, 45 and 65-B– Playing of video recording in court room

– 2011 (3) SCC Cri. 294 = 2011 (4) SC 454. Aruna Ramachandra Shanbaug vs.

Union of India.

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Child Witness

1). In SURESH vs. STATE OF UTTAR PRADESH AIR 1981 SC 1122, it was

decided that a child as young as 5 years can depose evidence if he

understands the questions and answers in a relevant and rational manner.

The age is of no consequence, it is the mental faculties and understanding

that matter in such cases. Their evidence, however, has to

be scrutinized and caution has to be exercised as per each individual

case. The court has to satisfy itself that the evidence of a child is reliable

and untainted. Any sign of tutoring will render the evidence questionable

as decided in CHANGAN DAM vs. STATE OF GUJRAT 1994 CrLJ 66 SC.

If the court is satisfied, it may convict a person without looking for

collaboration of the child’s witness. It has been stated many a times that

support of a child’s evidence should be a rule of prudence and is very

desirable.

2). A child witness is a privileged witness and he may not have to take an

oath. In M SUGAL vs. THE KING 1945 48 BLR 138, it was decided that a

girl of about ten years of age could give evidence of a murder in which she

was an eye-witness as she could understand the questions and answer

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

16 Indian Evidence Act

them frankly even though she was not able to understand the nature of

oath. The same principle has been applied in India too through QUEEN

vs. SEWA BHOGTA 1874 14 BENG and PRAKASH SINGH vs. STATE OF

MP AIR 1993 SC 65.

3). A VOIRE DIRE test (Here, the Court puts certain preliminary questions

that are unconnected to the case just in order to know the competency of

the child witness) of a child witness is not essential but desirable. A judge

may ask a few questions and get them on record so as to demonstrate

and check the competency of the child witness. It can be presumed that

this is a duty imposed on all the judges by the Section 118 of the IEA,

1872. The judge can ask questions also to find out whether the child has a

rough idea of the difference between truth and falsehood.

4). In SURESH vs. STATE OF UP case, it was held that a child who is not

administered oath due to his young years and is not required to give

coherent or straight answers as a privileged witness can give evidence but

this evidence should not be relied upon totally and completely.

5).2010 (I) MLJ 124 (SC)-- Evidence Act- A child of tender age can be

allowed to testify if he has intellectual

6).AIR 2007 Supreme Court 2400 – State of Madhya Pradesh Vs. Chamru @

Bhagwandas etc.-- Child witness – Testimony of – Appreciation – Witness

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

17 Indian Evidence Act

– Witness during investigation not disclosing identity of accused though

known – Statements in Court disclosing that she knew name of accused –

Statement that she had seen voltage of bulb lighted 200 yards away –

Indicates that she was tutored – Most of her statements were

exaggerations and embellishment – Part of her evidence was also

contrary to evidence of other eye witnesses – Witness not credible witness

– Judgment of acquittal does not suffer from any infirmity.

7).2009 Cr.LJ. 2442 (SC) - Child witness - conviction can be based on it if

child is found competent to depose and his Evidence is found reliable.

8).The supreme court in Tahal Singh v. Punjab AIR 1979 SC 1347observed:

“In our country, particularly in rural areas it is difficult to think of a load of

13 year as a child. A vast majority of boys around that age go in fields to

work. They are certainly capable of understanding the significance of the

oath and necessity to speak the truth.” in this regard a very important

observation has been made in Jarina Khatun v. State of Assam 1992 Cr LJ

733, that the Trial Court is the best judge in the matter of deciding the

competency of such a witness as there, the child himself appears before

the court. Therefore it has opportunity to see him, notice his demeanors,

record his evidence and thereafter on scrutiny accepted his testimony.

9).State v. Yenkappa (2003) CRI LJ 3558:-- Here the accused was convicted

for the murder of his own wife on the basis of the statements of his

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

18 Indian Evidence Act

children who were adolescents .admission of such statement was

challenged on appeal. in this regard the accused produced some evidence

as to the fact that the children have been tutored and therefore their

evidence must be rejected. Here the SC observed that it is the setteled

law that just because the witness happens to be a child witness his

evidence could not be rejected in toto on that score. ii) However the court

must be cautious enough to see that an innocent is not punished solely

acting upon the testimony of child witness , as the children are very easily

suspect able for tutoring. Iii) Here if one look upon the circumstances of

the case then , it will be found that the presence of these witnesses in the

house is the normal situation and their witnessing the incident cannot be

regarded as unusual or unnatural. therefore, their evidence inspires

confidence.

10). 2009 (1). M.L.J. 759 (SC) - The evidence of child witness is not

required to be rejected per se, but the court as a rule of prudence

considers such evidence with close scrutiny and only on being convinced

about quality thereof and reliability can record conviction, based thereon.

11). 2008 (2) MLJ. 1064 – Sections.118- Evidence Act - Credibility of

child witness.

12). (2007) 1 MLJ (Crl) 406 Ananda Sekaran Vs State by Inspector of

Police, Chennai - Child witness – Evidence by child witness – Such

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

19 Indian Evidence Act

evidence, without corroboration, not safe to be acted upon to prove

abetment.

13). Sec.118 – Competency of witness – evidence of child witness –

cogent and convincing evidence to be admissible. (Sundar v. State) 2011

(2) MLJ (crl) 127.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

20 Indian Evidence Act

Test Identification Parade.

1) Evidence Act .sec.9 - Identification parade - Evidence only corroborative in

nature -It is only a supportive evidence to the substantive piece of eye

witnesses account to the occurrence. 2009 (4) M.L.J. 608

2) 2008 .CrLL.J-(III) 3036 (SC) Sec.9- Evidence Act - Test of I/D Parade - Do

not constitute substantive evidence-identification can only be used as

Corroborative of statement in court.

3) 2O08.CrlL.J. 3693.Mad. (D.B) (A) Sec.9 - Evidence Act - I/D parade -

witnesses not admitting that they have seen photographs of accused prior

to test I/D parade - Mere admissition of one witnesses to effect that news

have come in papers before 10 days and facts have also come in papers

will not mean that he had seen photographs of accused and got his

memory refreshed- Held, I/D parade proved.

4) 2008 (2) MWN (Cr) 28 (DB). Date of Judgment: 11.6.2008. Ramesh Vs.

State by Inspector of Police, Jolarpet, Vellore Dist. Evidence At, S.9 –

T.I.Parade – conducting of – P.W.s already seen accused before

conducting of T.I.Parade – conducting of T.I.Parade, held, a futile exercise.

Case referred:- Budhesan and Another v. state of U.P AIR 1970 SC 1321.

5) 2009 (3) MWN (Cr.) 438. Date of Judgment: 2.11.2009. Kannan and

others Vs. State, Inspector of Police, Thoothukudi. The accused was

exposed to the witnesses before conduction of Idneitfication parade. So,

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

21 Indian Evidence Act

the Idnetification parade is of no value. Cases referred: i) Ravindra v.

state of Maharashtra 1998 SCC (Cri,) 1527, ii) Vijayan v. state of kerala,

1999 SCC Cri. 378 and iii) Rajesh govind jagesha v. state of Maharashtra,

1999 SCC Cri. 1452.

6) Showing photograph of accused to the witness before the parade – would

take away the effect of TI parade (State of M.P vs. Chamru) 2010 (3) SCC

(crl) 698.

7) 2008 (3) MLJ Crl 1287. Date of Judgment: 4.9.2008. Krishnamurthy and

Another v. state, Inspector of Police. Thanjavur Taluk P.S. ++Persons who

last seen the deceased accompanied by Accused not participated in the

test identification parade. Effect of.

8) 2011 (1) MLJ (Crl) 242 SC. Vijay @ Chinee v. State of MP. Dtd: 27.7.2010

(Judge: Dr.B.S.Chauhan, J). Sec.9 of Evidence Act – test identification

parade – non-holding of – effect – purpsose of holding – principles

reiterated.

9) 2006 (1) L.W. (Crl) 166 Alumalai & 5 others Vs. State rep. by Inspector of

Police, Hasanur P.S. – Failure to hold Test Identification parade does not

make the evidence of identification in Court admissible. Identification of an

accused by the witness for the first time in Court should not form the basis

of conviction.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

22 Indian Evidence Act

10) Non-holding of Test Identification parade – (vijay @chinee Vs. State

of M.P) 2011 (1) MLJ 242 SC).

11) 2002 SAR (Criminal) 185 SC. (N.Santosh Hegde and Doraiswamy

Raju, JJ.) 7.2.2000. Chander Pal vs. State of Haryana. Identification

parade – holding of – necessity of – prosecution witness specifically

stating that he did not know the accused s ince beofre the incident in

question – non-holding of identification parade would render it rather

difficult to accept the evidence of such witness.

12) 2008 (2) I.W 1059:- Criminal Trial Test Identification parade. Field;

Failure of the Witnesses in the T,I.parade at first instance, can not shake

the prosecution case - Mere not identification of the accused by the

prosecution witnesses in the T.I.Parade can not be taken as a ground to

belier. entire prosecution case since, admittedly, the same prosecution

witnesses have identified the accused in the open court.

13) 2009 (3) .M.L.J. 1102 (SC) NOC ;- Whether test identification parade

is necessary or not would depend upon facts and circumstances of each

case.

14) In Pramod Mandal vs. State of Bihar - (2004) 13 SCC 150 in order to

contend that mere delay in holding the test identification parade will not

prevent the Court from accepting the evidence when defence failed to

impute any motive to the prosecution by way of cross examination for

delay in holding the T.I. parade. In Pramod Mandal (supra) it was held that

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

23 Indian Evidence Act

delay of one month in holding the T.I. parade was not fatal.

15) It may be pointed out that identification test is not substantive

evidence. Such tests are meant for the purpose of helping the

investigating agency with an assurance that their progress with the

investigation into the offence is proceeding on right lines. (Matru Alias

Girish Chandra vs. The State of U. Pradesh - 1971(2) SCC 75 at para 17)

16) It is also held by this Court that identification test parade is not

substantive evidence but it can only be used in corroboration of the

statements in Court. (See Santokh Singh vs. Izhar Hussain and Anr. -

(1973) 2 SCC 406 at para 11)

17) In the case of Amitsingh Bhikam Singh Thakur vs. State of

Maharashtra - (2007) 2 SCC 310 this court held on a consideration of

various cases on the subject that the identification proceedings are in the

nature of tests and there is no procedure either in Cr. P.C., 1973 or in the

Indian Evidence Act for holding such tests. The main object of holding

such tests during investigation is to check the memory of witnesses based

upon first impression and to enable the prosecution to decide whether

these witnesses could be cited as eye witnesses of the crime.

18) However, the decision of this Court in Soni vs. State of Uttar

Pradesh - (1982) 3 SCC 368(1) is more relevant to the facts of the case in

hand. In Soni (supra), the facts have not been discussed in the judgment

which was rather brief but one thing is made clear that T.I. Parade was

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

24 Indian Evidence Act

held after a lapse of 42 days from the date of the arrest of the appellant.

This Court held that such delay in holding the T.I. parade by itself throws a

doubt on the genuineness of such identification and we respectfully agree

with the view that it is difficult to remember the facial expression of the

accused persons after such a long gap in the facts of this case.

19) 2009 (3) M.L.J. 1072 (SC-NOC) Identification for the first time in

court is permissible in law. However, the said principle should be applied

having regard to the facts and circumstances of each case. Courts

ordinarily do not give much credence to identification made in the court for

the first time and that too after a long time .

20) 2007 (1) MLJ (Crl) 190 – Khaja Hussian and others Vs. Inspector of

Police, Coimbatore ---Indian Evidence Act (1 of 1872), Section 9 –

Identification parade – Delay in conducting – Mere delay is no ground to

reject the evidence about the identification of the accused – In the present

case even assuming that there was delay it has been explained by the

Judicial Magistrate and Investigation Officer.

21) When FIR is lodged against unknown persons TI parade is held for

the purpose of testing the veracity of the witness in regard to his capability

of identifying persons who where not known to him. (Ravi v. State ) (2010

3 SCC (crl) 730).

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

25 Indian Evidence Act

Observation of Criminal Court in civil Proceeding

1).Civil court is not bound by any observation made by criminal court – I)

S.Nachimuthu Gounder vs. Chellammal., 1997 Cr.L.J.(NOC) 190. Mad, ii)

Perumal v. Devarajan, AIR 1974 Mad 14)

2).An order Under Sec.125 of Cr.P.C does not prove marriage in Civil court,

but it is a piece of evidence. (Ashk v. usha) AIR 1984 Del.347.

3).Entries in note books and loose sheets kept in a file are not admissible –

Central Bureau of Investigation vs. V.C.Shukla) 1998 Crimes 219 (SC),

AIR 1998 SC 1406, 1998 Cr.L.J 1905 SC.

4).Admissibility of Judgment of a Criminal Court in civil case – Admission

made during criminal trial can be used in Civil Case also after giving an

opportunity to the maker to explain those admissions. (Seth Ramdayal Jat

vs. Laxmi Prasad) 2009 (11) SCC 545.

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Confession

1) Sec.24 & 27 – confession – evidentiay value – held, confessional

statement disowned by accused and unsupported by any witness cannot

be used for judging guilt and must be left out of consideration. 2011 (1)

SCC (crl) 646 = 2011 (2) SCC 188. (M.Nagehwar Rao vs. State of A.P)

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

26 Indian Evidence Act

2) confession when recorded according to law and a certificate about his

voluntary character appended – Magistrate need not be examined – Modi

Ganga vs. State of Orissa. (AIR 1981 SC 1165, 1981 Cr.L.J.628, 1981

SCC (Crl) 411, 1981 (2) SCC 224)

3) Time for reflection to accused – 24 hours time must be given. (Sarwan

Singh v. State of Punjab. - AIR 1957 SC 637, 1957 Cr.L.J.1014, 1957 SCC

699)

4) 2010 (1) .M.L.J. 583; - Extra Judicial Confession - A court can sustain

conviction on the confession if it inspires the confidence of the court.

Before doing so, the court must satisfy; the two tests. First, to whom and

under what circumstances the extra judicial confession was given.

Secondly, whether such evidence inspires the confidence of the court.

5) Timing of recording statement — not a ground for retraction :---The

Supreme Court in the case of Balakrishna v. State of West Bengal, AIR

1974 SC 120, in the context of S. 107 of the Customs Act, observed that

the provision is plain that an authorised custom official is entitled to

examine any person at any time, at any place in the course of enquiry.

May be, situations arise where failure to question a witness quickly may

mean irretrievable loss of a valuable material and S. 107 meets this need.

In view of above, it may not be possible to seek retrac-tion on the basis of

odd timing of recording statement alone, unless the statute provides

otherwise.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

27 Indian Evidence Act

6) The Madras High Court (Full Bench), in the well-known case of Roshan

Beevi v. Joint secretary to Govt. Tamil Nadu, Public deptt. — 1983

L.W. Crl. 289 : (AIR 1984 NOC 103), observed that any confessional

statement obtained from detainee by keeping him in prolonged custody

has to be regarded with grave suspicion, because there is always room for

criticism that such a confession might have been obtained from extorted

maltreatment or induced by improper means.

7) In holding that prolonged custody will vitiate the value of statement, the

Madras High Court referred to the case of Nathu v. State of Uttar Pradesh,

AIR 1956 SC 56, where the Supreme Court observed that the prolonged

custody may stamp the confessional statement so obtained as involuntary

one, and the intrinsic value of such a statement may be vitiated.

8) The FERA Board, in the case of Kishore Gordhanadas Tanna in Appeal

No. 69/1984 decided on 27-8-1984, has observed "thus recording late at

night the statement of persons by the officers of the department ipso facto

results in the exercise of undue influence and coercion on those persons,

and in such cases, the question of furnishing details regarding the type of

coercion or force used by the officers does not arise".

9) In Pangambam Kalanjay Singh v. State of Manipur, AIR 1956 AIR SC 9, it

had been earlier observed that if confession is retracted, it has to be corroborated

on the basis of independent evidence. In Pakani Swami v. State

of Tamil Nadu, AIR 1956 SC 593, the Court held that corroboration was

necessary when a suspicion was cast on the genuineness of a confession.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

28 Indian Evidence Act

10) In Puran v. State of Punjab, AIR 1953 SC 459, The SC observed that

it is a settled rule of evidence that unless a retracted confession is

corroborated in material particulars, it is not prudent to base a conviction in

a criminal case on its strength alone. In Bharat v. State of Uttar Pradesh,

(1971) 3 SCC 950, the Court observed that the Courts do not act upon a

retracted confession without finding assurance from some other source as

to the guilt of the accused.

11) In the case of Pyare Lal Bhargava v. State of Rajasthan, AIR 1963

SC 1094, the Supreme Court has summed up the position of retracted

confessions by observing that it is unsafe to rely upon a confession much

less on a retracted confession, unless the court is satisfied that the

retracted confession is true and voluntarily made and has been

corroborated in material particulars.

12) 2006 (1) SCC 714 Sivakumar Vs. State by Inspector of Police –

Extra judicial confession made before the village administrative officer is

admissible in evidence and this could be relied upon.

13) (2007) 4 Supreme Court Cases 257 - Crl. Appeal No.1228 of 2004 ,

Abdul Vahab Abdulmajid Shaikh and others Vs. State of Gujarat, Crl.

Appeal No. 129 of 2005, Abdul Vahab Abdulmajid Shaikh and others Vs.

State of Gujarat, Crl. Appeal No. 130 of 2005, State of Gujarat Vs. Yasin

Ganibhai Haveliwala and Others Crl. Appeal No. 1228 of 2004 with Nos.

129-30 of 2005, decided on April 24, 2007 --------- S.24 – Confession of

accused – Voluntary nature of - Determination of – Retraction at later

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

29 Indian Evidence Act

stage – Effect of – Held, merely because the confession was retracted

later; that does not mean that the confession was not voluntary in nature –

Whether the accused was willing to give confession voluntarily or not is to

be determined from his mental state at the time when he gave the

confession – In the present case, confession of accused recorded by Dy.

Commissioner of Police (DCP) under TADA Act – Accused had expressed

his willingness to make the confession – DCP took all precautions to

ascertain that the confession was voluntary – Confession recorded after

complying with all procedural formalities and these facts incorporated in

confessional statement – Before the Magistrate, accused had no case that

he was put under pressure or third-degree methods had been used

against him to extract confession – In view of the said facts, held, the

above confession was voluntary, truthful and admissible in evidence.

14) Supreme Court of India --- Criminal Appeal No. 1243 of 2006 ---

Judge(s): Harjit Singh Bedi & Chandramauli Kumar Prasad --- Date of

Judgment: 23 July, 2010 --Podyami Sukada Vs.State of M.P. (Now

Chhatisgar). Extra judicial confession : “evidentiary value of extra

judicial confession depends upon trustworthiness of the witness before

whom confession is made.”

15) Evidence Act – Sec.24- Retracted confession – conviction based

solely on retracted confession was opposed to law and could not be

allowed to stand – AIR 1953 S.C 411. Arjuna Lal Misra V. State of Orissa.

Date of Judgment.30.11.1950.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

30 Indian Evidence Act

16) Retracted confession – when may be relied on – Held, the same can

be relied on if made voluntarily – Burden of proving voluntary nature of

confession is on prosecution. ( Noor Aga vs. State of Punjab) 2010 (3)

SCC (cr) 748.

Sec.25 & 26

1). Sec .25 - 2008 (2).M.LJ. 326; - Evidence Act - Sec-25- Confession statement

to police officer - Can not be used during trial - However can be used if infavour

of the accused.

2) Confession to police officer – confessional statement of accused can be

referred in deciding nature of offence committed (Ganesan v. State) 2011 2 MLJ

Crl 546. Ms. Chitra venkatraman,J)

3) Distinction between Sec.25 & Sec.26 ; Commissioner of Police v. narender

Singh . AIR 2006 SC 1800, 2006 (4) SCC 265.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

31 Indian Evidence Act

Confession & recovery U/s. 27

1).The information must come from the accused in custody of police and

exact information given by the accused while is custody which leads to the

discovery of the articles have to be proved. (Bodhraj vs. State of J.K.) –

AIR 2002 SC 3164 = 2002 (8) SCC 45.

2).Witness to recovery is must – Premchand vs. State of Punjab. 1986

Cr.L.J. 1131.

3).2009.(4). MLJ. 1143--- I.P.C. - At the time of further cross examination all

the witnesses clearly given go bye to entire story of prosecution. -- 'Mere

recovery of weapons with reference to crime, the conviction can not be

sustained if they have no evidence to offer.'

4).2009 Cr.LJ (NOC) 1181 Mad.---- Non recovery of weapon of offence - Not

fatal to case.

5).2006 (2) CTC 650 (Mad) – Sampath Vs. The State rep. by Inspector of

Police, Kallal P.S. --- Failure on the part of the investigating agency to

recover non-incriminating materials from the scene of occurrence is

immaterial when there is eyewitness for occurrence.

6).Confession leading to recovery – material object recovered belatedly after

charge sheet filed. - whether can be used as a piece of evidence.

(A.Kuppan vs . State of T.N) 2011 1 MLJ (crl) 628. (M.Chockalingam,J)

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

32 Indian Evidence Act

7).2008 (2).M.L.J. 1714 - Recovery of incriminating objects -Respectable

independent witnesses of locality not summoned as witness- only V.A.O's

Summoned - No manifest error or illegality commited by inspector of

police-By failure to summon respectable independent witnesses of locality,

earliar recovery not vitiated - Requirement , Court, to be cautious in

evaluating the evidence - said PWS not having special interest or have

anything againt accused - Their evidence acceptable.

8).AIR 2007 Supreme Court 2531-- Swamy Shraddananda alias Murali

Manohar Mishra Vs. State of Karnataka - Disclosure Statement – Fact

discovered – Included place from which object is produced and knowledge

of accused as to it – Murder case- Deceased buried in a big court-yard –

Accused pinpointing exact place of burial – Also marking that place –

Skeleton of deceased exhumed from marked place – This part of

confessional statement before police – Is admissible.

9).Section 27 starts with the word `provided'. Therefore, it is a proviso by way

of an exception to Sections 25 and 26 of the Evidence Act. If the facts

deposed under Section 27 are not voluntary, then it will not be admissible,

and will be hit by Article 20(3) of the 38 Constitution of India. [See State of

Bombay vs. Kathi Kalu Oghad, [AIR 1961 SC 1808].

10). The Privy Counsel in Pulukori Kottaya vs. King Emperor, [1947 PC

67] held that Section 27 of the Evidence Act is not artistically worded but it

provides an exception to the prohibition imposed under the preceding

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

33 Indian Evidence Act

sections. However, the extent of discovery admissible pursuant to the facts

deposed by accused depends only to the nature of the facts discovered to

which the information precisely relates.

11). 2010 MLJ (Cri) 452 (SC) - Sec.27 - Reliability of materials

discovered pursuant to facts deposed by accused in police custody. The

limited nature of the admissibility of the facts discovered pursuant to the

statement of the accused under Section 27 can be illustrated by the

following example: Suppose a person accused of murder deposes to the

police officer the fact as a result of which the weapon with which the crime

is committed is discovered, but as a result of such discovery no inference

can be drawn against the accused, if there is no evidence connecting the

knife with the crime alleged to have been committed by the accused.

(Musheer Khan v. State of M.P.) Asok Kumar Ganguly,J. 28.1.2010.

12). Admissibility of recoveries in evidence made pursuant to disclosure

by accused – No confessional statement made to police was relied upon

by courts below to convict accused but only objects recovered in

furtherance of statement of accused were relied upon to complete chain

events – moreover the said objects were duly identified by owners during

investigation as well as during trial – hence, recovered objects were

admissible. ( Sanatan Naskar v. State of W.B) 2010 (3) SCC (crl) 814.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

34 Indian Evidence Act

Sec.30

1).2008 (1) MLJ 427 = 2008 (1) MLJ 193 =AIR 1992 SC 3258 – Unless

jointly tried, confession of co-accused cannot be used.

2).2008 (2).M.L.J. 53 – Confession by A-6 Implicating himself and A-l and A-

2 -Judicial Confession of A-6 Inculpatory in nature- Confession of A-6

Proved - Can be taken in to consideration against Al- and A-2

3).2008 (1) MLJ. 142 (SC) (K.G.Balakrishnan and G.P.Mathur,JJ). 24.4.2007.

Prakash Kumar @ Prakash Bhutto and others and state of Gujarat. -- The

confession of a co-accused by itself is not sufficient to hold other accused

guilty: Rule of prudence requires the Court to seek corroboration to test its

veracity.

4). (2007) 1 MLJ (Crl.) 279 --- Valarmathi Vs. State – Sec.30 – Extra-judicial

confession of co-accused – Evidentiary value of – Confession given by coaccused

cannot be treated as evidence against the other accused unless

it is proved – It is admissible only as a corroborative piece of evidence.

5). (2008) 1 MLJ (Crl) 427 – Mohammed Ashan Vs. Senior Intelligence

Officer, Directorate of Revenue Intelligence, Chennai-17 ---- Section 30 –

Allegation that accused No.1 and 2 were found in possession of heroin

supplied by Accused No.3 – Complaint filed in the year 1993 – Case

against some accused persons split up and ended in acquittal – Not

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

35 Indian Evidence Act

challenged – Absconding accused No.3 arrested in a different case at

Karnataka – Except the retracted confession of the co-accused, no other

incriminating materials – Quash petition filed – Objection that the accused

should face trial, cannot be entertained – No material to frame the charges

– Confession of co-accused cannot be used, unless jointly tried-

Proceedings quashed – Petition allowed. RATIONES DECIDENDI –

“When the case against the split up accused ended in acquittal, there is no

purpose in conducting trial against others on the basis of the confession of

the co-accused which is inadmissible in evidence unless, jointly tried.”

============================================================

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

36 Indian Evidence Act

Dying Declaration

1).Dying Declaration and ability to talk – the patient must be able to speak. 1)

Padman vs. State of Orissa- 1981 SCC (crl) 362. ii) Om Prakash vs. State

of Punjab, AIR 1992 SC 138, 1992 Cr.L.J. 3935, 1992 SCC (crl) 848., iii)

Prakash vs. State of M.P., AIR 1992 SC 65, 1992 Cr.L.J. 1127, 1987 92)

SCC 627, 1987 SCC (crl) 43. iv) Harda vs. State of M.P. , 1989 Cr.L.J.

1058, v) V.s.More vs. State of M.H., AIR 1978 SC 519, 1978 Cr.L.J 644,

1978 (1) SCC 622.

2).Conviction and sentence on sole basis of dying declaration – no doubt

with regard to truthfulness of dying declaration – conviction of accused

proper. (Chirra Shivraj v. State of A.P) (Anile R. Dave,J) 2011 1 MLJ (crl)

812 (SC).

3).Dying Declaration – necessary condition of death failing which statement

would be inadmissible. (S.Arul Raja vs. State of T.N) 2010 4 MLJ 67 SC. –

Supreme court of india -- criminal appeal no.699 of 2008 --judge(s): aftab

alam,deepak verma----date of judgment: tuesday, december 15, 2009 ---

sharda versus state of rajasthan. --- Dying declaration - First two dying

declarations exonerating appellant-mother-in-law, stating death to be

accidental - First dying declaration corroborated by evidence of PW 31,

doctor and PW 22, ASI - Both statements recorded on 16.8.1999, date of

incidence, in quick succession - Third dying declaration made on 19.8.99

to Magistrate wherein appellant-mother-in-law stated to have set

deceased ablaze - Both Trial court and High Court on relying upon third

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

37 Indian Evidence Act

declaration, convicting appellant. Held, the fact that last dying declaration

has many over-writings and some dates have been scored out to put new

dates, creates doubt as to its veracity. It was recorded few days later as

compared to the earlier statements which were recorded on the same day.

Second dying declaration was signed by father of the deceased but he

never objected to such statement having not been made by deceased. His

explanation that at the time of discharge while signing many papers, he

signed the declaration also without knowing the contents cannot be

accepted. Further police complaint was made only on 19.8.1999 and he

kept silent between 16.8.1999 to 19.8.1999. Hence, Exh. P 18 being

unreliable cannot sustain appellant's conviction.

4).2009 (4) .M.L.J. 839 - Evidence Act - Sec-32 - Dying declaration - When

the accused who gave the dying declaration survived, the dying

declaration can be construed as extra- judicial confession and since it was

made to the Executive Magistrate himself, it can be construed as made 'in

the immediate presence of a Magistrate' and as such, the same is

admissible in evidence.

5).Admissibility of statements under Section 32, Evidence Act -In Vinay D.

Nagar v. State of Rajasthan, Criminal Appeal No. 210 of 2007 the

statement made by the deceased under Section 161 Cr PC indicating the

involvement of the appellant in the abduction of a boy has no remote

connection or reference to the death of deceased. It was thus held

inadmissible under Section 32 of Evidence Act. The court’s observations

are noteworthy:“The statement recorded by the police although could be

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

38 Indian Evidence Act

proved as there would not be any bar under Section 162 Cr PC for proof of

such statement, but it would not be admissible under Section 32 of the

Evidence Act, and thus it could not have been relied upon by the

prosecution to prove the motive for commission of the crime by the

accused appellant.”

6).The prosecution case was that it was to avoid the deceased giving

evidence against the appellant in the abduction case that he came to be

killed. [Vinay D. Nagar v. State of Rajasthan, Criminal Appeal No. 210 of

2007, decided on March 3, 2008]

7).Veracity of Dying Declarations:- The court held that it is not necessary that

the dying declaration should be recorded by a magistrate of course if it is

so done it will add to its veracity but when two dying declarations were

consistent they were held to be reliable. [Rajendra & Ors. v. state of

Maharashtra, Cr. App. No. 1619 of 2005 decided on July 27, 2006.]

8).Dying declarations in dowry death cases -In Sher Singh & Anr. v. State of

Punjab, Criminal Appeal No. 646 of 2006 the Supreme Court detailed the

admissibility of dying declaration thus: “Normally, the court places reliance

on the medical evidence for reaching the conclusion whether the person

making a dying declaration was in a fit state of mind, but where the person

recording the statement states that the deceased was in a fit and

conscious state, the medical opinion will not prevail, nor can it be said that

since there is no certification of the doctor as to the fitness of mind of the

declarent, the dying declaration is not acceptable. What is essential is that

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

39 Indian Evidence Act

the person recording the dying declaration must be satisfied that the

deceased was in a fit state of mind. Where it is proved by the testimony of

the Magistrate that the declarant was fit to make the statement without

there being the doctor’s opinion to that effect, it can be acted upon

provided the court ultimately holds the same to be voluntary and truthful. A

certificate by the doctor is essentially a rule of caution and, therefore, the

voluntary and truthful nature of a statement can be established

otherwise.” [Sher Singh & Anr. v. State of Punjab, Criminal Appeal No. 646

of 2006, decided February 15, 2008]

9).Dying declaration - Not accepted – A dying declaration retracted by the

maker in Anil Prakash Shukla v. Arvind Shukla, Cr. Appl. No. 830 of 2002

came to be rejected both by the High Court and the Supreme Court. In this

case the magistrate who recorded the declaration did not appear to give

evidence. [Anil Prakash Shukla v. Arvind Shukla, Cr. Appl. No. 830 of 2002

decided on May 1, 2007]

10). Ravi Kumar alias Kutti Ravi v. State of Tamil Nadu Cr. App. No. 630

of 2005 Decided on 22nd Jan, 2006 – The death of a lady was caused by

pouring kerosene on her and burning. She gave a dying declaration

naming the accused. The defense argument that her dying statement was

in Telegu and was translated into Tamil by the doctor hence it may not be

admissible was set aside by the court. The other argument that in the

hospital entry register it was initially registered as a cause of suicide was

also rejected as the doctor put the defense that the deceased’s father was

not clear about the event when he brought his daughter to the hospital

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

40 Indian Evidence Act

hence for the sake of entry the doctor registered it as suicide. But after

getting a clear picture of event, he erased the same and noted

accordingly. Hence the Supreme Court upheld the conviction of the

accused.

11). More than one D.D – In this case there were two dying declarations

though one was made before the Magistrate. But the forensic expert

opinion which remained unimpeached raised doubt as regards the

condition of the deceased to make a voluntary and truthful statement. After

examining the case law the court came to the conclusion that “the dying

declaration must inspire confidence so as to make it safe to act upon.

Whether it is safe to act upon a dying declaration depends upon not only

the testimony of the person recording dying declaration – be it even a

magistrate but also all the material available on record and the

circumstances including the medical evidence” (Emphasis supplied). And

the court refused conviction on the basis of dying declaration. [Nallapati

Sivaiah v. Sub-Divisional Officer, Guntur, A.P., Cr. App. No. 1315 of 2005,

decided on September 26, 2007]

12). The court held that dying declaration is only a piece of untested

evidence and must like any other evidence, satisfy the court that what is

stated therein is the unalloyed truth and that is absolutely safe to act upon

it. If after careful scrutiny the court is satisfied that it is true and free from

any effort to induce the deceased to make a false statement and if it is

coherent and consistent, there should be no legal impediment to make it

basis of conviction. The court in this case convicted the accused for life

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

41 Indian Evidence Act

imprisonment under section 302 on the basis of dying declaration. [Smt.

Shakuntala v. State of Haryana, Cr. Appeal No. 376 of 2002 decided on

July 27, 2007]

13). Inconsistencies in Dying Declarations - Benefit of doubt to be given

to accused -The accused in Mehiboobsab Abbasabi Nadaf v. State of

Karnataka, Criminal Appeal No. 130 of 2006 was given benefit of doubt

because of the inconsistencies in the different dying declarations made by

the deceased.

14). About the acceptability of dying declaration the Court's observation

are illustrative. The Court said:--"Conviction can indisputably be based on

a dying declaration. But before it can be acted upon, the same must be

held to have been rendred voluntarily and truthfully. Consistency in the

dying declaration is the relevant factor for placing full reliance thereupon.

In this case, 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." [Mehiboobsab Abbasabi Nadaf v. State of Karnataka, Criminal

Appeal No. 130 of 2006 decided on August 1, 2007]

15). Dying Declaration not to be disregarded easily.-- The Supreme Court

held that the high court found fault with the dying declaration only because

he did not mentioned PW3 i.e. his son was also there. The court felt the

high court erred in this and restored life imprisonment given by trial court.

[Heera Lal Yadav v. State of M.P. & Ors. Cr. App. No. 546 of 2000 decided

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

42 Indian Evidence Act

on July 4, 2006]

16). 2010 (1) M.L.J. 460 Evidence Act - When the defacto complaint died

subsequent to the registration of the case and before the trial was started,

the statement given by him can be sought to be introduced in evidence by

virtue of sec.32 of the Indian evidence Act, provided it falls within any one

of the eight categories enumerated in the said section . When it does not

fall within those categories, convicting a person merely relying on an

averment made in the complaint without the same having been proved by

reliable evidence shall not be in accordance with law.

17). 2007 (1) MLJ (Crl) 222 Ravikumar @ Kutti Ravi Vs. State of Tamil

Nadu --- Dying declaration reveals accused lit fire on the deceased –

Accident Register indicates self-immolation – Contradictions – Effect of –

Doctor who made entry, explained his position that such entry was made

on presumption since cause of injuries was not informed him at that time –

It was erased when he knows the correct state of affairs – Evidence of

Magistrate and Doctor is absolutely clear and unambiguous – Defence

version of suicide cannot be accepted on the face of two dying

declarations of the deceased recorded by Magistrate and Police Head

Constable.

18). (2008) 2 SCC 516 (SC) Vikas and Others Vs. State of Maharashtra

Dying declaration – Bride burning – Contradictory dying declarations –

Credibility of evidence recorded by Magistrate over other dying

declarations – Evidentiary value of dying declaration recorded by a

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

43 Indian Evidence Act

competent Magistrate having no animus and not being an interested

witness, reiterated, would stand on a much higher footing.

19). 2006 (3) SCC 161 P. Mani Vs. State of Tamil Nadu - Conviction can

be recorded on the basis of the dying declaration alone but the same must

be wholly reliable. In a case, where suspicion can be raised as regards the

correctness of dying declaration, the court before convicting the accused

on the basis therefore would look for some corroborative evidence. If

evidence brought on records suggests that such dying declaration does

not reveal the entire truth, it may be considered only as a piece of

evidence, in which event conviction may not be rested only on the basis

thereof.

20). Executive Magistrate recorded the dying declaration, not obtaining

certificate from medical officer but ascertaining from PW-7 doctor that

deceased was in a fit state of mind to give statement – held, certification

by doctor can be a rule of caution and therefore, vouluntary and truthful

nature of declaration can be established otherwise. (Govindappa vs. State

of Karnataka) 2010 (3) SCC (crl) 184.

21). Non-examination of doctor before whom declaration recorded and

certified the condition of the victim – effect – explanation for nonexamination

– importance of. (nallapati sivaiah vs. SDO, 2010 (3) SCC

(crl) 560.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

44 Indian Evidence Act

22). Question -answer form – question were asked to which deceased

gave replies but statement of deceased was not recorded in question and

answer form – held, dying declaration need not be in question -answer

form. (amarsingh Munnasingh Suryawanshi vs. State of M.H) 2010 (3)

SCC (crl) 553.

23). Maker of Dying declaration not dying – admissibility of such

statement – Held, for statement to be admissible in evidence as dying

declaration, person making statement should no longer alive. (S.Arul Raja

vs. State of T.N) 2010 (3) SCC (crl) 801.

24). Statement before Magistrate in anticipation of death – statement

recorded under S.32 – injured witness survived – Held, in such eventuality

statement so recorded has to be treated as of superior quality / higher

degree than a statement recorded under S.161 Cr.P.c can be used as

provided Under Sec. 157 of Evidence Act. (Ranjit singh and others vs.

State of M.P) 2011 (2) SCC (crl) 227 = 2011 4 SCC 336.

25). Dying declaration – credibility – police personnel, if may record –

Held, there is no mandatory requirement that dying declaration has to be

recorded by any designated or particular person – it is only to eliminate

chances of any doubt or false implication by prosecution, that such

declaration should be recorded by a Magistrate or by a doctor – DD

recorded by Head constable after declared that the victim is fit to make

statement by doctor – reliable. (2011 (1) SCC (crl) 352 = 2010 (12) scc

277. (Dhan singh vs. State of haryana)

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

45 Indian Evidence Act

Sec.35 -Entries made in public Documents.

The entries made in public documents are a relevant fact and thus admissible in

a court of law subject to the following three conditions:

1. That the entry must be one in any public or official book, register or record;

2. It must be an entry relating to a fact in issue or relevant fact;

3. It must be made by a public servant in the discharge of his official duty

specifically enjoined by law.

As no definition is given in the Act, for expressions 'public' or 'official book',

reference can be given to Sec.74 of the Act, which states, what are public

documents. Birth and death registers, marriage register, school registers,

electoral roll, record of rights, revenue records, mutation entries, gazetteer,

F.I.R. and case diary, charge sheet, etc are examples for public documents,

register/records. A document admissible in evidence under this provision would

automatically not be credible simply because it had been admitted as evidence.

Such document would be considered subject to relevancy and by assessing the

evidence as a whole and not in isolation.

Now the moot question is what is the probative value of entries made in public

documents? It has to be clearly understood that the probative value of a

document is different from its admissibility. In fact, the courts, while testing the

veracity of entries made in public documents, must find out its probative value

also. For example, an entry regarding date of birth made in the school register is

relevant and admissible under Sec.35 of the Evidence Act. But it would have

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

46 Indian Evidence Act

probative value only when it is made on the information given by parents or

some one having special knowledge of the fact. Truly speaking, it will have no

evidentiary value unless the person who made the entry or who had given the

information about the date of birth is examined. The failure to rebut the entries

made in public documents cannot increase the evidentiary value of those

entries.

The legal position in this regard is being settled by a Division Bench decision of

Supreme Court in Birad Mal Singhvi v. Anand Purohit, 1988 (Supp) SCC 606

para 14 (E.S.Venkataramiah and K.N.Singh, JJ). The Court observed:

"....The entries regarding dates of birth contained in the Scholar's register and

the secondary school examination certificate have no probative value, if no

person on whose information the date of birth of the candidate was mentioned in

the school record is examined. The entry contained in the admission form or in

the scholar's register must be shown to be made on the basis of information

given by parents or a person having special knowledge about the date of birth of

the person concerned. If the entry is made on the basis of information given by a

stranger or by someone else who had no special means of knowledge of the

date of birth, such entry will have no evidentiary value....".

The principle enunciated through this decision is being followed in a catena

decisions of the Apex Court. A few of such decisions are Desh Raj v. Bodh Raj

(2008) 2 SCC 186 Para 25and 26, State of Punjab v. Mohinder Singh, (2005) 3

SCC 702, Maduri Patil v. Addl.Commr.Tribal Development, (1994)6 SCC 241.

Moreover, evidentiary value of entries in public documents will not be presumed

to be correct if they are shown to be not correct by the evidence produced.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

47 Indian Evidence Act

The point law in this aspect is discussed by Apex Court in Sita Ram Bhau Patil

v. Ramchandra Nago Patil, AIR 1977 SC 1712, para 20, (A.N.Ray, M.H.Beg and

P.S.Kailasam JJ). The Court observed: " ....There is no abstract principle that

whatever will appear in the record of rights will be presumed to be correct when

it is shown by evidence that the entries are not correct...."

1).Birth Register extract obtained from municipality is a valuable piece of

evidence as regards age of victim. (anandhan vs. State) 1995 Cr.L.J. 632.

2).Sec.35- Evidence Act - Sec.363 and 366(A) .I.P.C - Offence of kidnapping

a minor -Proof of age of minor - Entry in school register - Admissible in

evidence- Due weight should be given it. 2008 (3).M.L.J. 905 (SC)

3). Relevance of entry in public records – entry in respect of age – Register of

Municipal corporation, Government Hospital, nurshing home should be

relied and entry in the school record is to be discarded – admissibility of

entry of school register / certificate to be proved in accordance with law.

(Satpal Singh v. State of Haryana) 2010 4 MLJ 685 SC = 2010 (3) SCC

(crl) 1081.

4).Relevancy of entry in public record – determination of age – school

transfer certificate to be admissible in evidence – Evidenciary value given

only on examination of person who made or gave such entry. ( alamelu vs.

State) 2011 2 MLJ (crl) 78 (SC). Surinder singh Nijjar,J.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

48 Indian Evidence Act

Sec.41

1).2009 (4) .M.L.J. 1045 (SC)-- Indian Evidence Act - Pendency of two

proceedings whether Civil or Criminal would not attract the provisions of

sec.41 of the Evidence Act. A judgment has to be pronounced. The

genuiness of the will must be gone into. ii) A Criminal proceeding will have

primacy over the civil proceeding. Precedence to a Criminal proceeding is

given having regard to the fact that disposal of a civil proceeding ordinarily

takes a long time and in the interest of justice the former should be

disposed of as expeditiously as possible.

2).2008-2-L.W. 447 Thiruvengada Pillai Vs. Navaneethammal & another -

Agreement/Genuineness, dispute as to, power of Court to compare thumb

impressions, Scope, Specif Performance, Practice, Evidence Act(1872),

Section 45/Expert opinion, Section 73, (Indian) Stamp Act (1899), Section

54/Stamp paper, Use of, within six months whether necessary, Expiry

date, Section 35, 37/Admissibility of agreement in payment of duty and

penalty. – ii) (Indian)Stamp Rules (1925) applicable to Tamil Nadu –

Rules do not contain any provision that the stamp papers of required value

should be purchased together from the same vendor with consecutive

serial numbers – Rules merely provide that where two or more sheets of

paper on which stamps are engraved or embossed are used to make up

the amount of duty chargeable in respect of any instrument, a portion of

such instrument shall be written on each sheet so used – Document

cannot be termed as invalid merely because it is written on two stamps

papers purchased by the same person on difference dates.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

49 Indian Evidence Act

Expert Opinion

1).2010 (1) .M.L.J. 429 – when hand writing expert is not well versed in the

language mentioned in documents it would be better that documents are

compared by a handwriting expert who knows the said language.

2).Expert witness is a weak type of evidence. The court do not consider it as

conclusive. It is not safe to rely upon it without seeking independent and

reliable corroboration. (S.gopal Reddy vs. State of A.P.) 1996 Cr.L.J. 3237

(SC).

3).Conviction solely on experts opinion – particularly on handwriting experts

is not permissible. (Magan Behari Lal vs. State of Punjab) AIR 1977 SC

1091 = 1977 Cr.L.J. 711 (SC).

4).2010 (1) CTC 424 (Justice S.Nagamuthu) R. Jagadeesan Vs N.Ayyasamy

and another – Section 45 – Expert Opinion – Age of writing – Duty of Court

– Non-availability of scientific method – Sending documents for opinion in

respect of age of writing is only futile – Direction not to send documents

henceforth unless new methods are invented to find out age of writings

was issued.

5).2008) 8 MLJ 299 – R. Elango Vs. K. Dhanasekaran and Others – Section

45 - Comparison of signature - Opinion of handwriting expert- If the

request for comparison of signatures, is made before commencement of

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

50 Indian Evidence Act

trial, the request shall be accorded - Party may state his/her own choice of

expert - Opinion of handwriting expert is of weak value and it shall be

considered along with other evidence and materials An experts' opinion

does not impinge the power of the Court to compare the signatures -

Expert should be summoned to Court and he shall take photographs for

comparison - It is not lawful to send the documents away from the custody

of the Court - CRPs allowed.

6).2010 (1) CTC 424- R. Jagadeesan Vs N.Ayyasamy and another ---Section

45 – Expert Opinion – Age of writing – Duty of Court – Non-availability of

scientific method – Sending documents for opinion in respect of age of

writing is only futile – Direction not to send documents henceforth unless

new methods are invented to find out age of writings was issued. --- In

view of all the above, in my considered opinion, sending the documents for

opinion in respect of the age of the writing on documents should not be

resorted to hereafter by the Courts unless, in future, due to scientific

advancements, new methods are invented to find out the age of the

writings.

7).2009 (2) CTC 65. --- R.Regupathi,J. V.Srinivasan vs. E.S.Gunasekar.

3.2.2009. --- Sec.45 – proceedings pending under section 138 of N.I.Actaccused

seeking to send cheque to handwriting expert – defemce not

taken during initial questioning or during Sec.313, Cr.P.C questioning or in

reply to statutory notice – application, held, belated and liable to be

dismissed.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

51 Indian Evidence Act

8).Expert Opinion assists the Court in the matter of scientific nature. Expert

gives opinion for the matter after assessing it. This opinion is not binding in

nature and is merely advisory. Only an opinion is to be given and not a

conclusion of matter by an expert. It should be of corroborative nature to

facts and circumstances of the case. If opinion contradicts an

unimpeachable eye witness or documentary evidence then it will not have

an upper hand over direct evidences. Expert opinion helps a Judge to form

an independent opinion in every mater. Section of the Act does not provide

for any specific attainment, study of experience for an expert. Experts are

admissible as witness but, they are not to make conclusion as it is a

judicial function. Experts have to state the facts, which he has seen, heard

or perceived through his/ her sense. They are not helpful to Court in the

interpretation of law. It is weak evidence.[ Field’s, Commentary, “Law of

Evidence”, Delhi Law House, 12th Edition, Volume 3]

9).To be appointed as expert one must have attainment in professional

qualification. Some professional experience or should have made special

study in subject. He must prove himself as an expert before Court. Some

training must have been practiced by expert into that scientific field or has

special knowledge of that field. Or, if he has made some observation in

that field.[ Ratanlal and Dhirajlal, “The Law of Evidence”, Wadhwa &

Wadhwa Company, 21st Edition, Lawyers Edition]

10). Opinion is sought so that the court is able to assess evidence with a

reasonable degree by relying on its own experience. But in some cases

the Court is not able to come to a conclusion on the basis of its experience

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

52 Indian Evidence Act

as because Court is ill equipped. And, for that opinion of an expert is being

sought.

11). It is for Court to decide that if case partakes character of science or

art and possessing knowledge of that specific subject is a must for that

case to be adjudged then expert opinion is to be sought. So when subject

matter of courts inquiry is of such a scientific nature then the Court takes

the Technical assistance in that field. Once the opinion is admitted by the

Court then it is no more an Expert’s opinion but the opinion of Court. And

these opinions are not authoritative in value but they are persuasive.

[Bachraj Factories Ltd v. Bombay Telephone Co. Ltd., AIR 1939 Sind 245].

12). When there is a conflict between the opinion evidence and oral

testimony of the evidence, then evidence can be assessed in two ways.

The first method can be applied only in those cases where the oral

evidence is above reproach and creates confidence and there is no false

no appreciable reason for the false application of any accused. Where the

evidence is not of that character and the opinion evidence is not open to

any doubt or suspicion, the only safe and judicial method of assessing

method is the second method.[ Thakurs and others v. State AIR 1955 all

189]

13). Various rules for expert opinion are: - The first rule is of Experts

educational background. That means even the doctor is examined and is

subjected to scrutiny and cross examination. And if his opinion and

observations contained in his statement are supported then the report can

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

53 Indian Evidence Act

be looked at otherwise not. So even the examination of Doctor becomes

essential.[Dhobi Yadav v. State of Bihar AIR 1989 (2) , Cr. L.C., 629 at p

641 (patna) ] ii) The second test is of the exhibits and the illustrations

that the expert brings with him or makes. He should not base his opinion

on the basis of memory and abbreviated notes. But he should have the

opinion of such a level that even if there is an expert evidence of the

opposite party then also he is able to defend his stand. Iii) The third test

is of readiness to detail his techniques and procedures. As an expert

should not be of skipful nature as to outlining his procedures that he has

followed. And he should be so confident that no qualms can say that he

has skipped procedures in reaching to his conclusions.[From Evidence to

proof, by Marshall Honts, pp.130, 131] iv) And the conclusive test is

that an Expert is conservative and is cautious. And phrases his conclusion

that in all probabilities the offence was committed by the accused only.

[From Evidence to proof, by Marshall Honts, pp.130, 131]

14). It is a well settled principle that the opinion of an Expert should be

taken with a great caution and moreover the decision should not be based

simply on the basis of the opinion of an Expert, without a substantial

corroboration, as it is unsafe otherwise. Opinion of an Expert by its very

nature, weak, and infirm and in itself cannot of itself form the basis for a

conviction and should be taken with a great caution[Magan Bihari Lal v.

State of Punjab AIR 1977 SC 1091].

15). It is their duty of court not to occupy the role of an expert by

themselves and S.C. has always deprecated the courts to take the role of

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

54 Indian Evidence Act

an expert. But, before applying the opinion of an expert the court has to

see to apply its own admitted or proved things and compare them with the

disputed ones. And they have to verify the premises of the expert in one

case and value the opinion in the other case[ Joginder Prasad v. Joy kanta

Roy AIR 1971 Assam 168].

16). When the direct evidence is well corroborated by the circumstantial

evidence and conforms to probabilities, there is no reason why it should

not be accepted. The mere fact that the expert has come to a different

conclusion on a particular point would not render that part of his story

open to doubt especially when the data on which the expert has come to

that conclusion is insufficient. The data on which the expert weigh must

weigh with the Court and the opinion of the expert must be judged in the

light thereof.[Brij Basi v. Moti Ram AIR 1982 All 323 at p 321]

17). (2008) 8 MLJ 299 ---R. Elango Vs. K. Dhanasekaran and Others

---Indian Evidence Act (1 of 1872), Section 45 - Comparison of signature -

Opinion of handwriting expert- If the request for comparison of signatures,

is made before commencement of trial, the request shall be accorded -

Party may state his/her own choice of expert - Opinion of handwriting

expert is of weak value and it shall be considered along with other

evidence and materials An experts' opinion does not impinge the power of

the Court to compare the signatures - Expert should be summoned to

Court and he shall take photographs for comparison - It is not lawful to

send the doc u ments away from the custody of the Court – CRP’s

allowed. RATIO DECIDENDI --"If a party to a suit seeks opinion of the

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

55 Indian Evidence Act

handwriting expert, before commencement of trial, the same shall be

accorded. Party can suggest his choice of expert. Expert opinion is of

weak evidentiary value and can be considered along with other evidence.

An expert never supplants the view of the Court. Original documents

should not be sent out of the custody of the Court. Expert can be

summoned to take photographs for comparison. "

18). 2006 (4) CTC 850 --- N. Chinnasamy Vs. P.S. Swaninathan –

Sections 45 & 73 – Principles regarding Examination of Documents by

Handwriting Expert or other Experts – Section 73 authorises Court to

compare disputed signature with admitted signature and arrive at own

conclusion regarding genuineness of signature but it is always safe to take

aid of handwriting expert to scientifically compare such handwriting with

reasons – Documents should be examined in Court premises in presence

of responsible officer of Court and sending original document in custody of

Court to Handwriting Expert is bad procedure and where it is necessary to

send it to expert Application under Section 73 or 45 should be treated as

Application for appointment of Commissioner and expert should be

directed to conduct examination of document in presence of

Commissioner and expert could be given photo copies of documents if he

inspects same in Court premises in presence of responsible officer of

Court – Applications filed belatedly is objectionable – Appellate Court

could seek expert’s opinion even if Trial Court had compared signature

and arrived at some conclusion – When defendant disputes signature in

document relied on by plaintiff it is for plaintiff to take steps for examination

of disputed signature by sending document to handwriting expert –

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

56 Indian Evidence Act

Defendant filed written statement disputing signature in agreement and

five years thereafter filed Application to send document for comparison by

expert with admitted signature without referring to any document

containing admitted signature – Dismissal of Application by Trial Court

upheld.

19). 2009 (4) .M.L.J. 551(SC) - Sec.45 - A court is not found by the

evidence of the experts. which is to a large extent advisory in nature. The

court must derive its own conclusion upon considering the opinion of the

experts which may be adduced by both sides, cautiously and upon taking

in to consideration the authorities on the point on which he deposes.

20). (2008) 1 CTC 491 --- S. Gopal Vs. D. Balachandran – Sec. 45 –

Cheque admittedly signed by drawer cannot be sought to be analysed by

an expert for opinion as to age of ink used in cheque – Age of ink cannot

be determined by an expert with scientific accuracy and use of old ink on

purpose would only dent opinion of expert and result in further confusion.

Drawer of cheque admitting his signature in the cheque contending that

the same was a blank one and it was therefore required to be sent to the

expert for opinion with regard to the age of the ink to prove that the blank

cheque was misused. Magistrate dismissed the Application on the ground

that there was no necessity to send the cheque for expert opinion when

the accused had admitted the signature in the cheque. Held, age of the ink

cannot be determined by expert with scientific accuracy. Even then, if

there is use of old ink on purpose, it would result in only further confusion

and create a dent in the opinion of the expert. No necessity, therefore, for

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

57 Indian Evidence Act

sending disputed cheque admittedly signed by the drawer, to an expert for

opinion. Revision dismissed.

21). (2007) 1 MLJ ( Crl) 1297 -- P.R. Ramakrishnan Vs. P. Govindarajan

Section 45 – Code of Criminal Procedure, 1973 (2 of 1974), Section 243 –

Negotiable Instruments Act 926 of 1881), Section 138 – Trial for alleged

offence under Section 138 of Negotiable Instruments Act – Petition by

accused for sending disputed cheque for expert opinion – Dismissal of,

only on ground that it being belated one – Held, principle laid down by

Apex Court in Ms. Kalyani Baskar, (2007) 1 MLJ (Crl) 1020 (SC),

applicable – As such, disputed cheque, to be sent for comparison, if

relevant documents, produced.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

58 Indian Evidence Act

Medical Evidence

1). Medical evidence corroborating injured victim's evidence - (2011 (1) SCC

Crl. 401 = 2011 (1) SCC 793) Kailash and others vs. State of M.H.

2).Direct testimony of an eyewitness is preferable-- Upholding the

judgment of the High Court in Shyam v. State of MP through P.S. Bercha,

Cr. App. No. 215 of 2007, the Supreme Court observed thus:- “Over

dependence on such opinion evidence, even if the witness is an expert in

the filed, to checkmate the direct testimony given by an eyewitness is not

a safe modus adoptable in criminal cases. It has now become axiomatic

that medical evidence can be used to repel the testimony of eyewitness

only if it is so conclusive as to rule out even the possibility of the

eyewitness’s vision to be true.” [Shyam v. State of MP through P.S.

Bercha decided on February 15, 2007]

3).Medical evidence when specifically rules out the injury claimed to have

been inflicted as per the eyewitness' version, then the court can draw

adverse inference that the prosecution version is no trustworthy. (kapildeo

Mandal v. State of Bihar) 2010 4 SCC (crl) 203.

4).20091. M.L.J. 133-- Statements made to the doctor by on injured - witness

brought before him for treatment, as to the murder of persons involved in

the offence and their names entered in the accident register- Not relevant

evidence - May have no evidentiary value.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

59 Indian Evidence Act

5).1998 Crl.L.J. 3651 (kerala high court) S.Marimuthu,J. --- P.Johnson and

others v. state of kerala. ------ offence u/s.321 and 326 –non-examination

of doctor who took X-ray and non-production of X-ray report - criminal

liablity under sections 325 and 326 could be said to be not established.

6).2010. (1) MLJ. 859 (SC) I.P.C - Appreciation of evidence - Discrepancy

between ocular and medical evidence -In an incident when killing of so

many persons takes place, it would be difficult for a witness to remember

with precision the kind of weapon used by a particular Accused, Such

evidence of witnesses is not liable for rejection an hypothetical so-called

medical discrepancy.

7).2009 3 MLJ Crl. 1132 (SC). S.B.Sinha and H.S.Bedi,JJ. 31.3.2008.

Shivappa and others and State of Karnataka. Medical opinion is

admissible in evidence like all other types of evidences. There is no hard

and fast rule with regard to appreciation of medical evidence. It is not to be

treated as sacrosanct.

8).Medical Evidence vis-a-vis ocular evidence – if contradictory – effect of –

principles reiteratted. (2010 (3) SCC (crl) 1262, Abdul Sayeed v. State of

M.P)

9).Medical evidence vis-a-vis ocular evidence – contradiction in – acquittal

confirmed – accused 2 & 4 said to have used stone and stick – trial court

acquitted as there was no evidence of deceased being hit by stone and

stick – injuries did not correspond to weapons allegedly used by accused

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

60 Indian Evidence Act

– acquittal confirmed. ( Chakali maddilety & others vs. state of A.P) 2011

(2) SCC Cri. 445 = 2010 12 SCC 72.

10). 2006 (1) MLJ (Cri) 188 S.C Vishnu alias Undraya Vs. State of

Maharashtra – Medical witness as an expert to assist the court to

determine the age of the victim in a rape case is not a witness of fact and

the evidence given by the medical expert is really of an advisory character,

and if the opinion is accepted by the court, it is not the opinion of the

expert but a finding of the court.

11). 2006 (2) CTC 831 (Mad) Ganesan Vs. The State rep. by Inspector of

Police, Erode Taluk P.S. When ocular evidence is credible and cogent,

medical evidence to the contrary cannot corrode evidentiary value of

ocular evidence, especially when in case of rape, prosecutrix has come

forward with such case sacrificing her future prospects of marriage.

12). Relying on doctor's version contention that the death was not due to

any injury but it was due to cardiac arrest and respiratory failure as a result

of tetanus – Held, doctor's evidence was by way of hypothetical answer

that the death would not occur because of the injuries received by a shrapedged

weapon – hence contention rejected. (Ganesh vs. State of

karnataka) 2010 94) SCC (crl) 474.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

61 Indian Evidence Act

S.57 – Judicial notice.

AIR 2007 Supreme Court 2369

Smt. Ass Kaur ( Deceased) by L.Rs. V. Kartar Singh (Dead) by L.Rs. & Others

Evidence Act (1 of 1872), S.57 – Judicial notice – Custom – Court can take

judicial notice – When custom has been repeatedly recognised by Courts –

Proof thereof, not necessary.

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(2007) 5 MLJ 1273 (SC)

Ganmani Anasuya and Others Vs. Parvatini Amarendra Chowdhary and Others

Indian Evidence Act (1 of 1872), Section 58 – Suit for partition – Admission by a

party – May be used against such party – Joint business venture – Suit for

partition – Share of immoveable property and for accounts of joint venture -

Statement of account by one party – Preparation from books of account –

Admission to be in his signature – Plea of settlement of accounts – Half share in

another property of business – Same fraction in the business also – Question of

settlement of accounts, share in partition and limitation for relief of accounts –

Not considered in the judgment under appeal – Remanded for decision on all

points.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

62 Indian Evidence Act

Hearsay Evidence

1) Sec.60 – Evidence of Police officer as to receipt of information to him

given by some other person – that some other person when is not

examined, the evidence about information is not admissible. (Bhugdomal

vs. State of Gujarat. (AIR 1983 SC 906, 1983 Cr.L.J. 1276, 1984 (1) SCC

319.

2) Sec.60- hearsay evidence – reliance on contemporaneous newspaper

publications Exts. P-5 & P-6 for corroborating oral testimony – Held,

impermissible since reporters of Exts.P-5 & 6 had categorically stated that

they had no personal knowledge of events published therein. (2011 (1)

SCC (crri) 423 = 2011 (1) SCC 503. (Joseph M.Puthussery vs. t.S.John)

3) Hearsay evidence can be used only to corroborate the substantive

Evidence. (Pawan Kumar vs. State of Haryana) AIR 2003 SC 2987 = 2003

(11) SCC 241 = 2004 SCC (crl) 109 = 2003 Cr.L.J 3553.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

63 Indian Evidence Act

Succession Act (39 of 1925), S. 63 – Evidence Act (1 of 1872) , S.68

1). 2007 (5) CTC 318 – J. Mathew (died) and Others Vs. Leela Joseph

---Section 63 & 68 – Proof of signature on Will and proof of attestation thereof by

two attesting witnesses may not amount to proof of execution of Will –

Propounder of Will is required to prove that Testator has signed Will after

understanding contents thereof or after understanding nature of disposition –

Execution of Will can be proved by direct evidence such as evidence to effect

that Testator himself had written Will or Will has been scribed or typed according

to instructions of Testator or that Will has been read over and explained to

Testator whereafter he puts his signature – It can also be proved by indirect

evidence by examining person who was present at time of execution of Will or

scribe or attesting witness would testify that Testator had given such instructions

or understood its contents – It can also be proved from other surrounding

circumstances – Registration of Will has some value but cannot lead to

inexorable conclusion that due execution of Will is proved and it is genuine –

Will contained endorsement that it had been prepared by Testator himself and

he was conversant with English and Testator's friend examined as Defence

Witness admitted in examination that Testator had talked to him about execution

of Will that forms the subject matter of Suit – Attestation of Will by person known

to Propounder and coming from some other place would not impeach execution

of Will and such circumstance had been explained by Propounder – Nature of

disposition disclosed no partial disposition – Will held to be proved.

2) . AIR 2007 Supreme Court 2219 - Apoline D'Souza Vs. John D'Souza-- Will –

Execution of – Suspicious circumstances – Testatrix 96 years old lady – Scribe

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

64 Indian Evidence Act

of will not known – Attesting witness not know to testatrix and stated that Will

was not drafted before her – She had only proved her signature – As per said

witness document was handwritten one – Whereas Original Will is typed – No

evidence to show that contents of Will were read over and explained to testatrix

- Several cuttings and over-writings in Will – Establishing suspicious

circumstances – Due execution of Will, cannot be said to be proved.

3) 2006 (5) CTC 351 - Robert Prabhakar Vs. David Ebenezer - Propounder of

Will examined himself as PW1 in probate proceedings in respect of Will

executed by his mother and admitted in evidence that his father came to know

about Will only after death of his mother – Scribe of Will, brother in law of

propounder of Will and attesting witness, friend of scribe, deposed and asserted

that father was present at time of execution of Will and also participated in

preparation of Will – Evidence of PW1 contradicted evidence of Scribe and

Attesting witness on material aspect – Complaint filed by father against the

defendant, produced by propounder of Will, though referred to property did not

refer to execution of Will – Propounder did not establish due execution and

attestation of Will.

4) 2006 (5) CTC 733 – K. Kallan (Died) and others Vs. M. Kallan and another –

Sections 63 & 65 – Admissibility of document – Xerox copy of registration copy

of sale deed is inadmissible in evidence when there is no explanation offered

regarding non-filing of original sale deed or even a registration copy of it and to

let in secondary evidence.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

65 Indian Evidence Act

Secondary evidence

1).2008 (1) MLJ 708 SC – Loss of Original F.I.R. duly Proved - Secondary

adduced and accepted.

2). (2009) 3 MLJ 602 – K. SUBRAMANI /Vs/ P. RAJESH KHANNA Any

document can be marked subject to recording the objection except an

objection regarding deficiency of stamp duty.

3).The word "instrument" but not "document" is used in Sec.35 of the Indian

Stamp Act. The "instrument" as defined in Sec.2(14) includes document.

The definition is not Exhaustive. Section 63 of the Indian Evidence Act

speaks for Secondary Evidence but not anything about Instrument.

Secondary Instrument is unknown to law. Impounding can be made in

respect of Instrument, but not copy thereof. Procedure on impounding has

been mentioned from Sec.35 to 40. So when the Original Instrument is not

admissible in evidence, copy should not be admitted. Ref. may be made to

Lal Khan Sultan Ahmad Allah Ditta AIR 1950 Lah, 150. Pr. 15 of its runs : "

But Anr. hurdle is placed in the latter's path by the fact that the original sale

deeds were admittedly understamped. In such circumstances, even

secondary evidence would be barred. "

8. It is clear from the decisions of this Court and a plain reading of Sections

33, 35 and 2(14) of the Act that an instrument which is not duly stamped

can be impounded and when the required fee and penalty has been paid

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

66 Indian Evidence Act

for such instrument it can be taken in evidence under Section 35 of the

Stamp Act. Sections 33 or 35 are not concerned with any copy of the

instrument and party can only be allowed to rely on the document which is

an instrument within the meaning of Section 2(14). There is no scope for

the inclusion of the copy of the document for the purposes of the Indian

Stamp Act. Law is now no doubt well settled that copy of the instrument

cannot be validated by impounding and this cannot be admitted as

secondary evidence under the Indian Stamp Act, 1899.

http://www.indiankanoon.org/doc/1515290/

As far as the point of impounding 'COPY' is concerned, this may be

useful........ ....http://www.orkut.co.in/Main#CommMsgs ?

cmm=49944354&tid=5570516112722611698

4) Evidence Act sec 63, 65 - secondary evidence

Admissibility- document in question admittedly photocopies- no

possibility of said document being compared with the original as

same is with another person- conditions in sec 65 (a) not satisfieddocument

cannot be accepted as secondary evidence ( AIR 2007

SC 1721) xerox copies in absence of original should not be

permitted to be marked- --- AIR 2007 NOC 1852 Mad

5) AIR 2011 SC 1492 ( H. Siddiqui V/S A. Ramalingam) Date of disp.

4/3/2011 ---

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

67 Indian Evidence Act

6) If the company does not produce the original share certificates, the

copies of the share certificates produced by the mechanical process

of obtaining xerox copies/photo copies would be admissible in

evidence as secondary evidence being copies of the original

documents taken out by such mechanical process.

http://www.indiankanoon.org/doc/706241/

7) 2007 (5) CTC 206 – Amutha Beelarmine Corera Vs. Elsie

Villavarayer – Sections 63 & 65 – Xerox copy of an Approved Plan

sought to be marked as Secondary Evidence – Application rejected

by Trial Court – When accuracy of copy viz. Xerox copy is not

disputed, Xerox copy of Plan falls under category of Secondary

Evidence – Secondary Evidence is admissible only when loss of

original is proved – Examination of Building Inspector of Municipality

who also produced entire file in which original Plan was missing is

sufficient satisfaction of provisions of Section 65 of Evidence Act –

Liberty given to Respondent to raise objections available under law

with reference to said document. (Paras 8, 11 & 14)

8) Supreme Court, Bench: P Sathasivam, B Chauhan Civil Appeal

No. 6956 of 2004 H. Siddiqui (dead) by Lrs. ..Versus A.

Ramalingam. March 4, 2011---- Provisions of Section 65 of the Act

1872 provide for permitting the parties to adduce secondary

evidence. However, such a course is subject to a large number of

limitations. In a case where original documents are not produced at

any time, nor, any factual foundation has been led for giving

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

68 Indian Evidence Act

secondary evidence, it is not permissible for the court to allow a

party to adduce secondary evidence. Thus, secondary evidence

relating to the contents of a document is inadmissible, until the non

production of the original is accounted for, so as to bring it within one

or other of the cases provided for in the section. The secondary

evidence must be authenticated by foundational evidence that the

alleged copy is in fact a true copy of the original. Mere admission of

a document in evidence does not amount to its proof. Therefore, the

documentary evidence is required to be proved in accordance with

law. The court has an obligation to decide the question of

admissibility of a document in secondary evidence before making

endorsement thereon. (Vide: The Roman Catholilc Mission & Anr. v.

The State of Madras & Anr., AIR 1966 SC 1457; State of Rajasthan

& Ors. v. Khemraj & Ors., AIR 2000 SC 1759; Life Insurance

Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC

491; and M. Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC 712).

9) In State of Bihar and Ors. v. Sri Radha Krishna Singh & amp; Ors.,

AIR 1983 SC 684, this Court considered the issue in respect of

admissibility of documents or contents thereof and held as under:

"Admissibility of a document is one thing and its probative value

quite another - these two aspects cannot be combined. A document

may be admissible and yet may not carry any conviction and the

weight of its probative value may be nil."

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

69 Indian Evidence Act

10) In Madan Mohan Singh & Ors. v. Rajni Kant & Anr., AIR 2010

SC 2933, this Court examined a case as a court of fifth instance.

The statutory authorities and the High Court has determined the

issues taking into consideration a large number of documents

including electoral rolls and school leaving certificates and held that

such documents were admissible in evidence. This Court examined

the documents and contents thereof and reached the conclusion that

if the contents of the said documents are examined making mere

arithmetical exercise it would lead not only to improbabilities and

impossibilities but also to absurdity. This Court examined the

probative value of the contents of the said documents and came to

the conclusion that Smt. Shakuntala, second wife of the father of the

contesting parties therein had given birth to the first child two years

prior to her own birth. The second child was born when she was 6

years of age; the third child was born at the age of 8 years; the

fourth child was born at the age of 10 years; and she gave birth to

the fifth child when she was 12 years of age. Therefore, it is the duty

of the court to examine whether documents produced in the Court or

contents thereof have any probative value.

11) Sec.67 of the Evidence Act,: Yashoda, J. v. K.Shobha Rani reported

in 2007(3) CTC 781 & Naval Kishore, J. v. D.Swarna Bhadran

reported in 2008(1) CTC 97 ---- unless the non-production of original

is satisfactorily explained, secondary evidence cannot be looked

into.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

70 Indian Evidence Act

12) J.Yasoda v. K. Shoba Ravi (2007(3)CTC 781) relied on by the

learned counsel for the respondent, the issue was relating to

accepatance of secondary evidence being photocopies of the

original documents. The matter arose from a judgment of the Andhra

Pradesh High Court and the High Court found that the photocopies

cannot be received as secondary evidence in terms of Section 63 of

the Indian Evidence Act, since the documents in question were

photocopies and as there were no possibility of the document, being

compared with the original. It was in the said factual context that the

Apex Court observed that secondary evidence is an evidence, which

may be given in the absence of that better evidence which law

requires to be given first, when a proper explanation of its absence is

given.

13)In J. Naval Kishore V. I. Swarnabhadran (2008(1) CTC 97) a Division

Bench of this Court considered the proof of execution of a Will as

well as the issue relating to the marking of a xerox copy of the

alleged family arrangement. It was in the said factual context that the

Division Bench observed that as per Section 67 of the Indian

Evidence Act, unless the non-production of the original is

satisfactorily explained, secondary evidence cannot be looked into.

Since the document sought to be marked in the said case was a

xerox copy, the Bench observed that the possibility of manipulation

in xerox copy cannot be ruled out.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

71 Indian Evidence Act

14)HIGH COURT AT MADRAS - DATED: 10.07.2008 – JUSTICE

K.K.SASIDHARAN., C.R.P.(PD)No.3645 of 2007 and M.P.No.1 of

2007 – P.K.Pandian Vs. Komala --- Certified copy of a document

could be marked as secondary evidence. The respondent would be

at liberty to adduce evidence or to prove that there were material

alterations in the registered document and it is open to her to file

appropriate application before the trial Court, in case the document

has to be subjected to expert opinion. It is needless to mention that

the evidentiary value of the document and the contention advanced

on the side of the respondent pertaining to alteration of the extent of

property is a matter to be looked into by the trial Court on the basis

of evidence and on merits and as per law.

15) 2006 (5) CTC 36 --- P. Devaraj Vs. V. Geetha --- Section 65 –

Defendant in Suit sought to file photo copy of lease deed for

collateral purposes and pleaded that document was mixed up with

other document and could not be filed earlier along with written

statement – Affidavit did not contain any averment regarding any

bone fide search for document – Mixing up of documents cannot be

construed to mean “lost” occurring in Section 65 – Section 65 further

contemplates that secondary evidence is not permissible for any

reason arising from default or neglect of person seeking to produce

such secondary evidence – Order of Trial Court declining receipt of

such lease deed upheld.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

72 Indian Evidence Act

16) AIR 2006 RAJASTHAN 187 --- Shankar Lal & Ors Vs. The

Civil Judge (Jr.Divn.), Shahpura & Ors. – Evidence Act (1 of 1872),

Sec.65 – Stamp Act (2 of 1899), Sec.2 (14) – Registration Act (16 of

1908), Sec.49 – Secondary evidence – Admissibility – Suit for

declaration – Plaintiff’s allegation that defendants attempted to

encroach their plot – Original document filed by plaintiff to prove title

was insufficiently stamped and unregistered document – And was,

therefore, inadmissible in evidence – No secondary evidence can be

allowed to be led to prove title.

17) 2006 (3) CTC 482 --- The Inspector of Police, CBCID, Dindigul @

Madurai, in Karimedu PS Cr.No. 261/96 Vs. Mohan, S/o Manickam,

Madurai. – Sec 65 – Secondary Evidence – Acceptability of –

Original Dying Declaration and FIR sent to Tahsildar for conducting

enquiry and same was found to be missing from his custody – Xerox

copies available in case diary can be received and it is admissible –

Final report directed to be received by Magistrate along with Xerox

copies of FIR and Dying Declaration.

18) 2007 (3) CTC 781 --- J. Yashoda Vs. K. Shobha Rani ------Sections

63 & 65 – Secondary Evidence – Admissibility of Photo Copies of

Documents - Secondary evidence as a general rule is admissible

only in absence of primary evidence – If original itself is found to be

inadmissible, party to Suit is not entitled to introduce secondary

evidence of its contents – In order to enable a party to produce

secondary evidence it is necessary for party to prove existence and

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

73 Indian Evidence Act

execution of original document – Secondary evidence of contents of

a document cannot be admitted without non-production of original

being first accounted for in such a manner as to bring it within one or

other of cases provided for in Section 65 of the Evidence Act – Only

when conditions prescribed in Section 65 are satisfied, documents

can be admitted as secondary evidence – Original was found to be

in existence – Secondary evidence not admissible.

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Marking of Photograph.

2006 (2) CTC 43 (Mad.) Rama Srinivasa Rao Vs. Dr. N. Ragavan

It is not proper to mark photographs in cross-examination even though the

witness admits it. The photograph has to be marked only through the person

who took photographs or through person at whose instance it was taken.

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(2007) 1 MLJ 87 --- Damodaran Vs. Poogavanam Ammal

Secs.65,66 – Revision petitioner’s application for grant of leave to receive and

mark Xerox copy of certificate, dismissed – On ground, revision petitioner not

complied with statutory requirements under Section 65 of the Act – No notice

given either, as per Section 66 – Revision petitioner has not established that he

has complied with statutory requirements under the Act – Not established that

notice under Section 66 was sent to respondents – No illegality or infirmity in

impugned order – No grave injustice caused to petitioner to warrant

interference.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

74 Indian Evidence Act

Comparison of signature.

1). 2006 (4) MLJ 1744 – P. Gopalasamy Vs. Dishnet Wirless Ltd., formerly

known as Dishnet D.S.L. Ltd., Chennai and another – Section 73 –

Comparison of signature – Application seeking comparison of the signature of

the second defendant in the vakalat with that of his admitted signature –

Allegation of fraud against the second defendant and appearance of second

defendant in Court sought for – Application dismissed on the ground that the

issue raised had no connection with the issue involved in the suit – Revision

against that order – Presence of the second defendant for the purpose of getting

his signature is not required – Admitted signature of the second defendant could

be produced for the purpose of comparison – Allegation of fraud can be

considered at the time of trial of the suit – Revision allowed.

2) (2008) 6 MLJ 220-- Ganapathy Thevar Vs. Shankuga Thevar.

Indian Evidence Act (1 of 1872), Sections 73, 101 and 102 – Burden of proof –

Sections 73, 101 and 102 – Burden of proof – Section – Comparison of

signature or writing – Court comparing disputed handwriting with admitted

handwriting – Though Court has power to compare handwritings, it must be

done with caution – No reasons given for arriving at subjective satisfaction in

favour of defendant – The plaintiff discharged the initial burden of proof – The

burden then shifted to the defendant who failed to discharge same.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

75 Indian Evidence Act

Burden of Proof

1). 2006 (4) CTC 766 -- Tulsi and others Vs. Chandrika Prasad and others ---

Section 91 – Forbids proving of contents contained of writing otherwise than by

writing itself and it merely lays down “best evidence rule” – Where document in

issue is capable of being construed differently parties can let in evidence to

show how they understood same. I) Sections 101 to 103 – Non-examination of

party to transaction – Mortgagor pleaded that amount due under mortgage was

tendered to mortgagee in presence of her husband – Mortgagee should have

examined herself to deny such tender of mortgaged amount.

2). 2005 SCC (Cri) 1213 (Arijit Pasayat and S.H.Kapadia,JJ) Harbans Kaur

and another Vs. State of Haryana. 1.3.2005. Evidence Act, S.101 and 103 –

Criminal trial – witnesses – related witness – plea of partiality – reason for

falsely implicating the accused must be shown by the person raising the plea.

3). 2007 (1) CTC 367 ---- Lakshmi Priya Vs. K.V. Krishnamurthy

Sections 101 to 103 – Burden of proof – Matrimonial Disputes – In matrimonial

disputes normally husband and wife are best person to give evidence but when

wife made particular reference to mother in law as reason for non

consummation of marriage mother in law ought to have been examined.

4) (2008) 4 SCC 54 --- Krishna Janardhan Bhat Vs. Dattatraya G. Hegde

Criminal Procedure Code, 1973 – Ss. 315 (1) proviso (b) & 313 – Burden of

proof on accused – Mode of discharging – Held, an accused need not examine

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

76 Indian Evidence Act

himself. He may discharge his burden on the basis of the materials already

brought on record.

Hence, view taken by the courts below that for proving the defence the accused

is required to step into the witness box and unless he does so he would not be

discharging his burden, held, not sustainable – Constitution of India – Act 19(1)

(a) – Freedom of speech and expression – Right to be silent – Evidence Act,

1872 – Ss. 101, 103 & 3 D. Criminal Trial – Appreciation of evidence – Standard

of proof required on the part of an accused and that of the prosecution –

Distinction between – Held, whereas prosecution must prove the guilt of an

accused beyond all reasonable doubt, the standard of proof required on the part

of an accused is “preponderance of probabilities” – Inference of preponderance

of probabilities can be drawn not only from the materials brought on record by

the parties but also by reference to the circumstances upon which the accused

relies – Evidence Act, 1872 – Ss. 101, 103, 105 & 3 – Negotiable Instruments

Act, 1881, S. 138.

4). (2007) 2 MLJ 382 -- R.Sivasubramanian Vs. S. Krishnaveni ---- Secs. 101

to 103 – Hindu Marriage Act (25 of 1955), Section 13 (1) (1-a) – Petition by

husband for dissolution of marriage – On ground – non-consummation of

marriage – Later amending it to one of cruelty – Wife denying all allegations –

Submission, she a dutiful wife – Petitioner demanded Rs.1 lakh from her parents

and ill-treated her – Petitioner demanded evidence does not establish, he

suffered cruelty, much less, mental cruelty at wife’s hands – Burden on petitioner

to prove wife treated him cruely – Petitioner not proved his case by acceptable

evidence – Trial Court finding petitioner’s evidence highly unreliable and without

due corroboration – No reason to interfere with trial Court’s order.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

77 Indian Evidence Act

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AIR 2004 SC 2070 Bench: R Lahoti, A Lakshmanan --- L.I.C. Of India vs

Anuradha on 26/3/2004.---- Section 108 :- When the nominees of the missing

insured can lay a claim to the benefits of the policies and what their obligations

are. Are they bound to continue to pay premium? If so how long are they bound

to make payment, and when does the law presume the death of such an

insured?

One Mr. Sham Prakash Sharma, the late husband of Mrs. Anuradha

(Respondent before Supreme Court) had taken a Life Insurance policy (the

Petitioner before Supreme Court). The policy was commenced with effect from

February 8, 1986. The premium was payable every six months and was paid for

two years. The respondent’s husband suddenly disappeared from Bombay on

July 17, 1988 and thereafter he was not traceable and his whereabouts were not

known. The respondent logged a First Information Report (FIR) with the Police.

On July 11, 1988 LIC sent a communication address to Mr. Sham Prakash

Sharma, delivered at his residence, informing that the Insurance Policy had

lapsed for non-payment of premium. On June 29, 1996, the respondent

approached the LIC for release of benefits under the policy proceeding on an

assumption that Mr. Sham Prakash was dead as he had not been seen and

heard for seven years. The LIC turned down the claim of the respondent relying

on Rule 14 of Insurance Manual which reads as under:

“Where a person is reported missing, it is to be advised to the claimant the life

insured will be presumed to be dead after seven years of production of decree

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

78 Indian Evidence Act

from the court of law and in the meantime the policy is to be kept in force by

making the payment regularly.”

The respondent, aggrieved by rejection approached the State Consumer

Disputes Redressal Commission complaining of deficiency of service on the part

of Petitioner. The Petitioner, namely LIC, refuted the contention of deficiency and

contended that the policy had lapsed, since it was not kept alive, and the claim

was not maintainable. The State Commission accepted to the Respondents

claim and held that the Rule 14 relied on by the Petitioner had no relevance in

view of statutory presumption arising under Section 108 of the evidence Act. The

Petitioner namely, LIC, preferred an appeal before the High Court and which

was also dismissed.

The Petitioner, LIC, filed an appeal before the Supreme Court against the

judgment of High Court and during the course of hearing an appeal, it was

submitted for the council of LIC that in case it had no objection to the release of

payment due under the policy to the Respondent as ex-gratia payment to honor

the judgment of High Court and it was only interested to settle the law in this

area.

The Supreme Court held that both High Court and the Commission held wrong

in holding that after the lapse of seven years, when the matter came before the

court, not only death can be presumed but also time of death could be assumed,

which would be the time when the fact of missing was first noticed, the Supreme

Court held under Section 108, only death can be presumed and not the time of

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

79 Indian Evidence Act

death. This fact has to be proved by the direct or circumstantial evidence, it

further held that High Court and Commission went wrong in holding “that on

expiry of seven years by the time issue raised in Consumer Forum or Civil

Court, an evidence was addressed that the person was not heard of for a period

of seven years by wife and/or family members of the person then only the death

can be presumed but it could also be assumed that the presumed death had

synchronized with the date when he was reported missing, or date and time

could be correlated to the point of time coinciding with the commencement of

calculation of seven years from the backward of initiation of legal proceedings.

The Supreme Court further held that in order to successful maintain the claim for

the benefit under the insurance policy, it is necessary for the policy to kept alive

by punctual payment of premium under the claim was made. The Apex court

also held that the Petitioner namely, LIC, was justified in turning down the claims

by pleading that the policy had lapsed and the all that could be paid to the

Claimants was the paid up value of the policy.

The inferences are:

1. After the lapse of seven years, ONLY and only death could be presumed

by the court.

2. There is no presumption of the time of death under Section 108 of Indian

Evidence Act, 1872.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

80 Indian Evidence Act

3. Time of death has to be proved by independent evidence.

4. The Claimant in order to successfully maintain the claim in such cases,

has to continue to pay premium till the claim is made, failure to payment of

premium shall lead to lapse of policy and disentitle the nominee or the

Claimant to pay the entire amount payable under the policy.

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2007 (3) TLNJ 425 (Civil) -- J.M. Jeyachandran Samuel Vs. G.S.S. Masilamani

Section 109 – Burden of Proof – The presumption is if the tenant continue to be

a tenant it is for him to prove that he continues to be a tenant and in case of

surrender of possession by the tenant, it is for the Land Lord to prove whether

the tenant has surrendered his possession or not.

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Sample of Blood against will of the accused

Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418 where their

Lordships of the Supreme Court held that no person can be compelled to

give sample of blood for analysis against his or her will and no adverse

inference can be drawn for such refusal. At paragraph 26 of the judgment

their Lordships held as follows:-"From the above discussion it emerges

(1) that courts in India cannot order blood test as a matter of course;

(2) wherever applications are made for such prayers in order to have

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

81 Indian Evidence Act

roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must

establish non-access in order to dispel the presumption arising under

Section 112 of the Indian Evidence Act, 1872.

(4) The court must carefully examine as to what would be the consequence

of ordering the blood test; whether it will have the effect of branding a

child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis."

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(2007) 2 MLJ (Crl) 386

Shanmugam Vs. Samundeeswari and Another

Indian Evidence Act (1 of 1872), Sections 4, 112 – Presumption as to legitimacy

of child – Proof of access or non-access – Rebuttable presumption of law –

Which can only be displaced by a strong preponderance of evidence and not by

a mere balance of probabilities – whether the result of DNA – RNA test is

conclusive in nature – It is not enough to escape from the conclusiveness under

the Section – If a husband and wife were living together during the time of

conception but the DNA test revealed that the child was not born to the

husband, the conclusiveness in law would remain irrebutable – Held: The

question regarding degree of proof of access for rebutting the conclusiveness

must be answered in the light of what is meant by access or non access.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

82 Indian Evidence Act

(2007) 2 MLJ (Crl) 1420 (SC) --- Hatti Singh Vs. State of Haryana

Section 114 – Presumption under – Recovery of articles belonging to

deceased – Application of such presumption is limited – How for – Such

presumption may be in respect of commission of theft or receipt of stolen

property, if a person is found in possession of the property belonging to the

deceased – On such presumption alone, the appellant could not have been

convicted for the charge of murder particularly when on the same evidence

other persons had been given benefit of doubt.

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(2008) 7 MLJ 336 --- Saraswathi and Others Vs. Chinna Rengay Gounder

(died) and Others ----- Section 112 – Birth – Conclusive proof of legitimacy –

Whenever a child is born out of a wedlock, there is a conclusive presumption of

legitimacy, unless it is rebutted by reliable evidence – There was a legal

marriage between the first plaintiff and one Dharmaraj – No rebuttal evidence to

show that the parties to the marriage had no access to each other –

Presumption under Section 112 has to be necessarily raised – Plaintiffs 2 and 3

are presumed to be the legitimate children born out of the lawful wedlock of the

first plaintiff and Dharmaraj – Non- Production of birth certificate would not raise

any doubt or affect the paternity of plaintiffs 2 and 3.

(C) Hindu law – Family arrangement – No importance can be attached to an

unregistered family arrangement – Non-registration militates against the validity

of the family arrangement.

(D) Indian Evidence Act (1 of 1872), Section 114 – Marriage – Presumption as to

– First plaintiff and one Dharmaraj are shown to be married according to custom

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

83 Indian Evidence Act

– Hence legal and valid marriage documents must be preserved – Nonproduction

of family card and marriage invitation, does not affect the

photographs, verified on oath – Second appeal allowed.

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2006 (4) MLJ 1758 -- Pandurangam Vs. Annammal

Sections 35, 114 – Relevancy of entries made in public records – Proof of

parentage – Relevancy of birth extract – No amount of evidence can be raised

in respect of a plea not raised – Birth extract which was not pleaded, was

obtained during the pendency of the suit – It has no sanction of pleadings to test

its veracity – Proof of parentage cannot be inferred from the birth extract –

Adverse inference drawn against the plaintiff for non-examination of his vendor,

whose status is questioned – Only when the initial burden is proved, question of

rebuttal would arise – But the plaintiff has not discharged the initial burden – No

presumption can be drawn in favour of the birth certificate – Suit for partition is

not maintainable – Perverse findings of the lower Courts, set aside – Second

appeal allowed.

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2008 .((2) M.L.J 1016.

General Clauses Act, Sec -27 - Indian Evidence Act, Sec.114(e) - Postal receipt

and acknowledgement - presume due service of notice.

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sec.114 - ADVERSE INFERENCE – EXCEPTION

The common principle of law is that if the opposite party can be cross

examination discredit the plaintiff's witness and shows that there is no case left

for the opposite party to answer, held, the opposite party need not enter the

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

84 Indian Evidence Act

witness box, it is not open for the plaintiff in such a case to seek an adverse

inference against the opposite party for not examining itself. (AIR 1986 Cal 61)

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2006 (8) SCC 629 --- Jagmodhan Mehatabsing Gujaral Vs. Sate of

Maharashtra --- Evidence Act, 1872 – Section 114 III. (g) – Non-production of

relevant record by accused for inspection by court – Effect – Said suppression,

held, gave rise to considerable substance in allegations of prosecution.

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(2007) 1 MLJ (Crl) 373 (SC) --- Kailash Vs. State of M.P.

Section 113-B read Section 114 – Presumption, under – Can be drawn, when –

Dowry death – Evidence by witnesses relating to dowry demand, harassment

and torture – No discrepancy in said evidence – Deceased subjected to cruelty

and harassment in connection with dowry demand soon before her death – The

interval between such cruelty and harassment and death, not much – Death of

deceased not under normal circumstances – Conviction under section 304-B

I.P.C., not interfered with – But sentence reduced to 8 years.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

85 Indian Evidence Act

SEC.115 – ESTOPEL

The term estoppel is said to have been derived from the French term 'estoup'

which means 'shut the mouth'. The doctrine of estoppel is a rule of evidence

contained in Section 115 of the Indian Evidence Act. When one person by his

declaration , act or omission intentionally caused or permitted another to believe

a thing to be true and act upon such belief, neither he nor his representative

shall be allowed in any suit or proceeding between himself and such person or

his representative to deny the truth of that thing.

The law recognises different kinds of estoppel. They are as follows:

(1) Estoppel by Record

It results from the judgement of a competent court. If a judgement has become

final, a party to the dispute has no right to say against the judgement. It is

contained in Sections 40 to 44 of the Indian Evidence Act.

(2) Estoppel by Deed

When a person agrees to another in a matter by a deed acknowledging the

same, the person cannot say against the contents.

(3) Estoppel in conduct

This happens with the act or conduct or misrepresentation of one which has

induced a chage of position in another.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

86 Indian Evidence Act

Partition deed acted upon by brother selling property allotted to his share and

utilising proceeds to himself - he can not plead that deed was nominal (AIR

2003 S.C. 4444)

Indian Evidence Act 1872 – Section 115 – Estoppel – The mere dismissal of

application of a particular party without any discussion would definitely not be

advantageous to the opposite party and not amounts to an Estoppel.

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2009 (1) L.W. 132 --- Evi Act. Sec. 145, marking of affidavit in earlier

proceedings.---- Such an affidavit is only a former statement of the said

witness,Which can be used for contradicting the said witness u/s 145 of the

Evidence Act, at the time of examination before the lower court.------- It cannot

be assumed that the witness would not tell the truth resiling from his earlier

statement - It is made clear that the former statement made by a witness can be

either used for corroboration or contradiction under the Evidence Act and such

statement would not fall within the ambit of substantive evidence, unless it falls

u/s 33 of the Evidence Act. (S.P.D.Karuppaiya Vs. 1.State through The

Superintendent of Police, Sivagangai District , 2. The Deputy Superintendent of

Police, Karaikudi, Sivagangai District. 3. The Inspector of Police, Karaikudi

Town Police Station, Sivagangai District. )

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2006 (1) CTC 112 (Mad.) Anand Vs. Perumalsamy

Deposition of witness in earlier criminal proceedings could be produced in

subsequent civil proceedings and opportunity could be granted to the party to

recall and further examine witness.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

87 Indian Evidence Act

2009-2 L.W. (Crl.) 804 -- State rep. by SPE/CBI/ECW/Chennai Vs.

M.Gopalakrishnan & 15 others.

It has been made clear by the Hon’ble Apex court that a clever witness in his

examination-in-chief faithfully conforms to what he stated earlier to the police or

in the committing court, but in the cross-examination introduces statements in

subtle way contradicting in effect what he stated in the examination in chief if his

designs obvious we do not see why the court cannot, during the course of his

cross-examination, (sic-reexamination) permit the person calling him as a

witness to put questions to him which might be put in cross-examination by the

adverse party. To confine the operation of S.154 of the Evidence Act to a

particular stage in the examination of a witness is to read words in the section

which are not there and that if a party calling a witness is permitted to put such

questions to the witness after he has been cross-examined by the adverse party,

the adverse party will not have any opportunity to further cross-examine the

witness, on the answers elicited by putting such questions. In such an event the

court certainly, in exercise of its discretion, will permit the adverse party to crossexamine

the witness on the answers elicited by such questions. The ruling of the

Hon’ble Supreme Court in the above referred decision is squarely applicable to

the facts and circumstances of this revision petition. It is clear that at any stage

of the examination of the witness, the court can apply its discretion judiciously,

treat the witness hostile and permit the party to cross-examine the witness. It

has been made clear that it is only the judicial discretion of the court, in order to

meet the ends of justice. It need not be confined to chief examination of the

witness alone.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

88 Indian Evidence Act

Leading Questions

1). In Varkey Joseph v. State of Kerela [AIR 1993 SC 1892], the Supreme

Court held that the prosecutor ought not to be allowed to frame questions

in such a manner, which the witness may answer in ‘yes’ or ‘no’ so as to

enable him to elicit such answers, which he expects or desires. It also held

that allowing such leading questions would offend the right of the accused

to fair trial enshrined in Article 21 of the Constitution of India.

2).Whatever answer the witness shall be compelled to give shall not be used

against him as evidence, except that if the answer is false the witness may

be prosecuted for giving false evidence.[ Arumuga Nadar v. State of Tamil

Nadu ,AIR 1976 SC 2588.]

3). In Prakash v. State of Maharashtra[1975 Cr.LJ. 1297 SC.], it has been

held that no scandalous question should be put unless there are

reasonable grounds to believe them to be true. Section 150 is the penalty

that may ensue against a reckless cross-examination, if the court is of

opinion that the questions were asked without reasonable grounds.

4). In Mohinder Singh v. State[] ILR 1970(2) Del 854.], it was held that a trial

judge shall not permit questions which are scandalous, vexatious or even

those cantankerous, which elicit irrelevant or inadmissible answers, or

even those which do not advance the trial, but are calculated to hinder or

delay in progress.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

89 Indian Evidence Act

5). In Fatima Riswana v. State[AIR 2005 SC712.], where concerning

commission of offences to acts or pornographic material, evidences as to

the subject-matter of which could cause embarrassment not only to the

presiding officer, both male and female, but also to the lady

witnesses/accused as well as to any decent persons the Supreme Court

held that presiding officer could make adjustments or arrangements in the

procedure so as to minimize embarrassment to himself or herself and the

witness.

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Re-examination

2009 (4) .M.L J. 356.

Evidence Act The Purpose. of re-examination is only to get the clarifications of

some doubts created in the cross examination. One can not supplement the

examination in chief by way of re-examination and for the first time start

introducing totally new facts which have no concern with cross examination.

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2006 (1) SCC 191 Rajan Rai Vs. State of Bihar

Three injured witnesses were not ready to depose on behalf of the prosecution,

out of fear of the accused persons, as such merely because they could not be

examined by the prosecution. The evidence of other witnesses cannot be

discarded especially when their statement were recorded by police immediately

after recording of the fardbeyan As such, no adverse inference can be drawn

against the prosecution for not examining witness.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

90 Indian Evidence Act

Hostile witness

1).Evidence of Hostile witness remains admissible evidence and it is open to

court to rely upon dependable part of that evidence, which is found to be

acceptable and duly corroborated by some other reliable evidence

available on record – 2011 (1) SCC Crl. 593 = 2011 (2) SCC 36.

(Himanshu @ Chintu vs. state (NCT of Delhi).

2).2009 (3) M.L.J. 1085 (SC) NOC Hostile witness - Evidence of hostile

witnesses - part of their statement can be taken in to consideration -

portion consistent with case of prosecution or defence may be accepted.

3).2009 (3). M.L.J. 172 Indian Evidence Act.sec.154 - Hostile witness - At

any stage of the examination of the witness, the court can apply its

discretion judiciously, treat the witness hostile and permit the party to

cross- examine the witness and it is only the Judicial discretion , of the

court, in order to meet the ends of justice. It need not be confined to chief

examination of the witness alone.

4).2009 (3) .M.L.J. 172 Evidence Act - Sec.154 - Hostile witness - petition

filed before court below seeking permission to treat PW-2 as hostile

witness since he did not support prosecution case and to cross- examine

him - Impugned order dismissing same - Revision petition- P.W2 in cross -

examination changed his version in favour of accussed without any basis

for reasons best known to him which can not be justified- There is clear

error apparent an part of court below in overlooking legal position, based

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

91 Indian Evidence Act

on material facts available on record - Court below failed in exercising its

discretion judiciously - Impugned order set aside permitting revision

petitioner to treat P.W.2 as hostile and to Cross Examine him.

5).2011 (1) MLJ Crl Page.1. (M.chockalingam and M.Sathyanarayanan, JJ).

3.9.10. State rep.by I.P, Cuddalore District Vs Basheer and Others--

Testimony of a hostile witness can be relied on y the Court for the purpose

of proving the guilt of the accused and it cannot be rejected in toto. -- In

the sentencing process, court is required to consider relevant facts and

circumstances of each case, nature of gravity and the manner in which the

offences are committed.

6).Evidence of hostile witness – reliability of. (Paramjeet Singh vs. State of

Uttrakhand) 2010 4 MLJ 481(SC).

7).2008 (1) MLJ. 637 I.P.C.395,395- witnesses to prove confession turned

hostile - I/D parade conducted belatedly- Not fatal.-- The witnesses

identifying the accused for the first time before the court without having

participated in the test I/D parade and identifying the accused is totally

inadmissible.

8). 2006 (1) MLJ (Cri) 253 (Mad.) Periyakutty alias Kutty alias

Kalyanasundaram and another Vs. Inspector of Police, P-6, Kodungaiyur

P.S. – The Court need not ignore the entire evidence of a witness, who

turned hostile. The Court can always look into any portion of the evidence

of the witness turning hostile to find out whether it can be relied on and

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

92 Indian Evidence Act

whether it contains any material, either in favour of the state or in favour

of the accused.

9). (2007) 4 MLJ 984 A. Bommusamy Vs. Government of Tamil Nadu –

Hostile witness, evidence of – Admissibility - Disciplinary enquiry –

Evidence of hostile witness inadmissible – Tribunal wholly relied on

evidence of hostile witness while confirming dismissal order – Reliance on

such evidence contrary to law – Tribunal's finding to that extent, illegal and

perverse.

10). Court may , in its discretion, permit the person who calls a witness to

put any question to him which might be put in cross-examination by the

adverse part. – 161 statement to be looked into whether the witness was

actually resiling from the position taken during investigation. - 2011 (1)

L.W. (Crl) 615. (R.Srinath vs. State., Cr.O.P.No.25787/2010., T.Mathivanan

,J. Date of Judgment: 11.3.2011).

11). Hostile witness - duty of prosecution – non-examination of

investigating officer – Effect of. (2011 (1) L.W. (crl) 544) R.Mala,J.

7.3.2011. (Kumaresan vs. State & Anbunathan vs. State)

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AIR 2007 S.C. 2594-- Asharam & Anr. Vs. State of Madhya Pradesh

Criminal P.C. (2 of 1974), S. 156 – F.I.R. - Not substantive piece of evidence –

cannot contradict evidence of eye-witness.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

93 Indian Evidence Act

(2007) 5 MLJ 1232 - M.Subramani Vs. P. Shanmugam and Others

Recitals in documents – Recitals as to boundaries in documents not inter

parties not admissible in evidence unless executants examined as held in

Amiappa Nainar Vs. Annamalai Chettiar (1972) 1 MLJ 317 – Minor discrepancy

in document cannot be considered for throwing out plaintiff's claim, relying on

improved documents on other side – Defendants themselves not proved

documents they relied on – Said documents inadmissible in evidence –

Appellate Court not considered issue in proper perspective.

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Sec.165

The power of judge to put questions has been conferred by Section 165 of

the Indian Evidence Act. It reads thus:

The judge may, in order to discover or to obtain proper proof of relevant facts,

ask any question he pleases, in any form, at any time, of any witness, or of the

parties, about any fact relevant or irrelevant; and may order the production of

any document or thing; and neither the parties nor their agents shall be entitled

to make any objection to any such question or order, nor without the leave of the

Court, to cross-examine any witness upon any answer given in reply to any such

question.Thus the power of a judge is very wide in putting questions. The

conditions to be followed while putting questions is laid down in various judicial

pronouncements. Some conditions as laid down in judgements and in the Act

are as follows:

Judge cannot compel any witness who has entitlement to refuse to answer by

virtue of the privileges envisaged in Ss. 121 to 131.

• His questions must be within the bounds fixed in S. 148 or S. 149 of the

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

94 Indian Evidence Act

Evidence Act.

• Questions which help the court to discover or to obtain proper proof of

relevant facts can be asked.

• Questions must be so asked as there is no partisanship and without

frightening or bullying witnesses.

• The judge shall not dispense with primary evidence of any document

except in cases specifically exempted in the Act.

2006 (4) MLJ 1641 --- Durairaj, Proprietor, SPM Poultry Farm and another Vs.

S.K.M. Animal Feeds and Foods India Ltd., Erode, rep. by its Managing Director,

S.K.S. Maeilanandhan

Indian Evidence Act (1 of 1872), Section 165 – Civil Procedure Code (5 of

1908), Section 24 – Judge – Power to put questions – Petitions seeking transfer

of two suits – Allegation, that the Judge had put questions to the witness – Any

clarification sought for by the Judge only helps the Court to clear the disputed

questions in the case – Judge has the power to put questions to the witness –

Judge cannot be doubted for putting questions to the witness – Any reasonable

clarification sought for by the Court is well within the purview of Section 165.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

95 Indian Evidence Act

Interested Witness

1). Interested witness – “interested witness” and “related witness” – distinction

between – held – related is not equilent to 'interested” - witness may be

called “interested” only when he or she has deerived some benefit from

the result of a litigation in the decree in a civil case, or in seeing an

accused person punished – witness who is a natural one and is the only

possible eye-witness in the circumstances of a case cannot be said to be

“interested”. (State of U.P vs Kishanpal). 2010 4 SCC (crl) 182.

2).2010 (1) SCC Crl. 1356. State of Maharastra vs. Ahmed Shaikh Babajan

and others. 24.10.2008. (C.K.Thakker and D.K.Jain, JJ). Criminal trial –

witnesses – interested or partisan witness – meaning of the term

interested – A close relative, though not characterised as an interested

witness, held, may be so if he has oblique and animus to somehow convict

the accused.

3).Appreciation of evidence – eye-witnesses – related witnesses – interested

witnesses – eveidence of – to be analysed and assessed with great care

and caution – PW-1 is brother of deceased – PW-4 is wife of D-1 – PW-5

is brother of PW-4 – all eyewitnesses, being closely related deceased

party, are interested witnesses. (DB) K.N.Bahsha & Aruna Jagadeesan,JJ.

2011 (1) MWN (cr) 301. (Saravanan and 2 others vs. State)

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

96 Indian Evidence Act

4).2009 L M.L.J. 48 (SC) - Evidence of interested witnesses - credibility -

Relationship not a factor to affect credibility - It is for the court to find out

whether it is cogent and credible - distinction between normal

discrepancies and material discrepancies- The former does not carrode

the credibility of a witness - while the latter does so.

5).2009. Cr.LJ, 2805 (SC) Evidence Act- Sec-3 - interested witness -

Evidence of - murder case - Eye witnesses family members of deceased -

Their evidence can not per re be discarded on that ground - Relationship

is not a factor to affect credibility of witness.

6). (2007)1 SCC 699 -- Salim Sahab Vs. State of M.P. – Interested Witness –

Relationship of witness with deceased – Not a ground to reject testimony

of the witness – When the plea of false implication by the witness has

some basis court must adopt a careful approach and see that the

testimony is cogent and credible.

7). (2008) 3 SCC 100 --- K.T.Palanisamy Vs. State of Tamil Nadu Criminal

Trial – Appreciation of evidence – Credibility of witness – Interested/

Partisan witnesses – On facts, all prosecution witnesses related to

deceased. That all witnesses saw deceased accompanying the accused

one after the other at different places, held, is difficult to believe –

Therefore, on facts, held, chances of their deposing falsely cannot be

ruled out - Hence, in a situation of this nature it is difficult to hold that a

judgment of conviction can be founded on the sole circumstances of the

deceased having been last seen with the appellant-accused by the

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

97 Indian Evidence Act

prosecution witnesses who were all interested and partisan witnesses –

Witnesses – Interested on partisan witness –Circumstantial evidence –

Last seen together.

8).2009 (13) SCALE 177 Pandurang Chandrakant Mhatre & ORS. Vs State

of Maharashtra – Interested witnesses – Evidence of interested witnesses

may be relied upon if such evidence is otherwise trustworthy – Evidence of

such witnesses has to be examined with great care and caution to obviate

possibility of false implication or over-implication.

9). Interested testimony in grave crime – occurrence place surrounded by

houses and there were also one tea shop and number of persons were

present at that time – non-examination of independent witness – fatal to

prosecution. ---------- No valid reason assigned by prosecution for non

production of witness – adverse inferece cane be drawn in vieww of with

holding material witness. – (Saravanan vs. State) 2011 2 MLJ 612.

(K.N.Bhasha & Ms.Aruna Jagadeesan,JJ)

10). Eye-witness account – Motive established – eye-witness, though

related to deceased, natural witnesses as their presence at place of

occurrence usual and expected – also eye-witness account corroborated

by medical evidence – evidence of said eye-witness, natural witness

cannot be discarded. (chunni Lal v. State of U.P) 2010 4 MLJ 680 S.C.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

98 Indian Evidence Act

11). Statements of interest witness to be admissible in evidence, is to be

corroborative by other witness, expert evidence and circumstantial of a

case whereby the chain of evidence leading to the guilt of an accused is

completed. ii) the existence of a strong motive behind the commission of a

crime is not necessary in a case of direct and clear evidence. ( 2011 91)

MLJ (crl) 132 (SC) .( Dharnidhar and others vs. State of U.P)

12). Eye-witness account – Motive established – eye-witness, though

related to deceased, natural witnesses as their presence at place of

occurrence usual and expected – also eye-witness account corroborated

by medical evidence – evidence of said eye-witness, natural witness

cannot be discarded. (chunni Lal v. State of U.P) 2010 4 MLJ 680 S.C.

------ ------ ------- ------

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

99 Indian Evidence Act

Sole Eye-Witness

1).2010(1) L.W. 1224--- PW1 sole eye witness - the court can rely upon the

sole related eye witness only when the testimony of such related witness

inspires confidence.

2).Solitary eye-witness – appreciation of testimony of – Held, where

prosecution story rests on single eye-witness, such witness must inspire

full confidence, which was not the case herein, where conduct of sole eyewitness

was unnatural – conviction reversed. 2011 92) SCC (cri) 462 =

2010 12 SCC 1182. ( Birappa and another vs. State of Karnataka).

3).AIR 2007 Supreme Court 2257-- State of Rajasthan V. Om Prakash –

Penal Code (45 of 1860), S.300 – Murder – Evidence of solitary witness –

can be basis for conviction – Even if he is related to deceased –

Corroboration is not a must. (1999 Cri LJ 1987 (Raj) – Reversed)

4).No rule of law that states that there cannot be any conviction on testimony

of a sole eye-witness – in a fit case court may believe a reliable sole eyewitness

if in his testimony mades specific reference to identity and his

specific overt acts in the incident. (Ranjit singh vs. State of M.P) 2011 (2)

SCC crl 227 = 2011 4 SCC 336.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

100 Indian Evidence Act

5).Evidence of a sole witness can be relied upon to base a conviction if that

evidence is reliable and acceptable – Tika ram vs. State of M.P. - 2010 (4)

SCC (crl) 667.

6).Evidence of solitary witness – can be basis for conviction. (jodhraj Singh v.

State of Rajasthan) 2010 94) SCC cri. 633.

7).Sec.134 – court not concerned with number of witnesses examined – it is

concerned with merit of statement made bya witness – non-examination of

of other eye-witnesses and some persons who had gathered at scene

after occurrence, held, not fatal to prosecution case, if testimony of sole

eye-witness examined found to be cogent, consistent and reliable. (2011

91) SCC Crl 381 = 2010 (12) SCC 324. (State of U.P Vs. Krishna Master

and others)

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

101 Indian Evidence Act

DNA TEST

1). 2006 (1) MLJ (Cri) 741 - Ravichandran Vs. Sub Inspection of Police, A.W.

P.S. Perambalur. --- Accused disowned the pregnancy of the complainant

resulting in Criminal compliant of cheating. Order of the trial court permitting the

police with a direction to perform DNA typing test through a medical practitioner

on the accused, complainant and her child to find out paternity as a part of

evidence is sustainable.

2). 2006 (2) M.L.J (CRL.) 110 --- S. Andi Thevar Vs. State, rep. by the Inspector

of Police, SPE/CBI Special Crime Branch, Chennai. – Constitution of India,

1950 – Art.21 – Order of Magistrate directing petitioner to undergo a DNA test –

No testimonial compulsion – No violation of Constitutional rights – Orders

allowed under the Code – Son of petitioner – Missing – Dead body found near

the house of petitioner – DNA test to fix identity of dead person – No quashing of

order.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

102 Indian Evidence Act

Adoption

(2008) 3 MLJ 695 -- Shobana Vs. Sundararaj and Others - Adoption – Factum

of – Contention that plaintiff was adopted by Chellammal – Both were not

relatives – Chellammal remained as a Christian till her last breath – Concept of

adoption is alien to Christian law – Factum of adoption, not proved – Second

appeal dismissed. By no stretch of imagination, the letters could be relied upon

to prove the fact of adoption. The plaintiff examined P.W.4 on her side, to say

about the fact that she was with Chellammal during her life time. But, in his

cross-examination, he crucifies the contention of the plaintiff by stating that

Chellammal remained as a Christian till her last breath and that her funeral

ceremonies were conducted by salvation army priest of Ganagarammam Village

and that the plaintiff was also a Christian. The concept of adoption is alien to

Christian Law.

Even though the third defendant claims that she was adopted by Chellammal

and in case if she does not prove the said allegation that will not clothe the

plaintiff with any rights to get reliefs as prayed for.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

103 Indian Evidence Act

Appreciation of evidence

1).Each case must be judged on its own facts – For appreciation of evidence,

there cannot be any hard-and -fast rule – one statement by one of the

witness may not be taken out of contex to abjure guilt on part of all

accused persons. (Bhanwar Sungh vs. State of M.P) 2010 4 SCC (cr) 378.

2).Non-filing of charge sheet against co-accused – name of co-accused

found in FIR & Dying declaration – but neither charge sheet filed nor any

explanation offered for the same – prosecution case doubtful. (Rangaiah

Vs. State of Karnataka, 2010 (4) SCC (crl) 91.

3).Absconding by itself not conclusive proof of either guilt or guilty

conscience (Paramjeet Singh v. State of Uttarakhand) 2010 4 MLJ 481

(SC).

4). In RAMESHWAR vs. STATE OF RAJASTHAN AIR 1952 SC 54, it was

held that an omission to administer an oath, even to an adult, goes only to

the credibility of the witness and not to his competency.

5).Duty of court – Separating truth from falsehood – witnesses trying to mix

truth with falsehood and falsely implicate some innocent person – court

has a duty to separate the falsehood and if after scrutinising the remaining

evidence carefully the same is found to be trustworthy and the substratum

of the prosecution case remains intact, the prosecution case can be

believed to that extent. (Janardan Singh vs. State of Bihar) 2010 (3) SCC

(Crl) 253.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

104 Indian Evidence Act

6).2009 (3) CTC 59 - M.B. SUBRAMANIAM /VS/ A. RAMASAMY GOUNDER

AND OTHERS:- section 3 evidence act – evidence without pleadings

should be eschewed – evidence adduced by legal heirs of vendor that

vendor did not receive consideration under sale deed without necessary

pleadings has to be eschewed. ii) Evidence Act, 1872 (1 of 1872), Section

3 – Appreciation of evidence – Evidence adduced by witnesses should be

assessed cumulatively and stray admissions or sentences in such

evidence should not be taken in isolation.

7).2008.(2) MLJ. 862. M.Jeyapaul,J. 15.4.2008. Kamala Ganapathy

Subbramanian vs. State. Komaralingam P.S. --- Complaint by co-owner -

joint family properties worth Crores of Rupees -Allegations as plundered

by petitioner - criminal action will lie - civil court can decide nature and

entitlement of properties - Alleged theft - Remedy only by criminal

proceedings - Material allegation in complaint as to breach of trust,

mischief, theft- petition to quash dismissed.

8).Law does not permit the court to punish accused on of moral conviction or

suspicion alone – where offence alleged to have been committed is

serious one, prosecution must provide greater assurance that its case has

been proved beyond reasonable doubt - More serious the offence, stricter

the degree of proof required, since a higher degree of assurance is

required for conviction. (2011 91) SCC (crl) 98= 2010 (10) SCC 439.

Paramjeet Singh @ Pamma vs. State of Uttarakhand.

9). Evidence has to be weighed and not counted:- The time-honored

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

105 Indian Evidence Act

principle is that evidence has to be weighed and not counted. On this

principle stands the edifice of Section 134 of the Indian Evidence Act,

1872. Thus, there is no legal impediment in convicting a person on the

sole testimony of a single witness. It is not the number, the quantity, but

the quality that is material. The Supreme Court held, test is whether the

evidence has a ring of truth, is cogent, credible and trustworthy, or

otherwise. [Kunju @ Balachandran v. State of Tamil Nadu, decided on

January 16, 2008]

10). Non-examination of writer of complaint – serious doubt about the

genuineness of the Ex.P.1, the report,(complaint) said to have been given

by PW.1 – inconsistent version throws serious doubt not only in respect of

the person who wrote the Ex.P.1, but also who are all the persons

accompanied P.W.1 at the time of recording the report, Ex.P-1 – nonexamination

of the person who is said to have written the report Ex.P-1 is

also fatal to prosecution case- 2007 – 1- L.W. (crl) 18. 20.7.2006.

K.N.Basha, J. Mirthagai Ali v. state, rep.by The Inspectot of police, D-2,

P.S., Madras.

11). 2009.(1 ).MLJ. 460 (SC)-- Prosecution has not offered any

explanation for non-examination of investigating officer and doctor and

unreliability of evidence adduced by witness, sufficient to discard the

prosecution version.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

106 Indian Evidence Act

12). Court should read the evidence as a whole – So read, if it appears to

have a ring of truth, then discrepancies, inconsistencies, infirmities or

deficiencies of minor nature not touching core of the case cannot be

ground for rejecting the evidence – court should sift the evidence to

separate falsehood from truth – it should not adopt hyper-technical

approach. (2011 (1) SCC (crl) 381 = 2010 (12) SCC 324) State of U.P vs.

Krishna Master and others.

13). Direct Evidence – corroboration when necessary – Evidence of a

witness when is neither wholly unacceptable nor wholly impecable,

corroboration is essential. ( I) Phool chand vs. State of Rajasthan, 1977

SC 317, 1977 Cr.L.J 207:, ii) thangavel v. State of T.N. , 1981 Cr.L.J (NOC)

210(mad).

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

107 Indian Evidence Act

Corroboration:

1). Criminal Trial – Proof – corroboration – when necessary – admitted

animosity between parties and presence of large number of accused –

possibility false implication. (2011 (1) SCC (crl) 756 = 2010 (12) SCC 298).

(Deo narain vs. State of U.P).

2). Corroboration – part corroboration of victim's evidence whose modesty

was outraged – when relevant. (2011 (1) SCC Crl. 401 = 2011 (1) SCC

793) Kailash and others vs. State of M.H.

3). FIR – evidentiary value of FIR – FR is not substantive evidence but it can

be used for corroboration – Sunder singh vs. State of Uttaranchal. (2011

(1) SCC (crl) 114 = 2010 (10) SCC 611.

4). Is a rule of prudence. Evidentiary value of a deposition which is otherwise

admissible is not just wiped out in absence of corroboration. Even in

absence of corroboration, a deposition for its quality may be safely

accepted to be correct. It will be unfortunate if on account of over

emphasis for corroboration, a crime goes unpunished by not giving due

weight on uncorroborated evidence when such evidence is otherwise

reliable.(1996 Cr.L.J. 2446 SC=1996(1) ACJ 569 Pattu Lal vs. State of

Punjab).

5). It is a general handicap attached to all eye witnesses, if they fail to speak

with precision their evidence would be assailed a vague and evasive; on

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

108 Indian Evidence Act

the contrary if they speak to all events very well and correctly, their

evidence becomes vulnerable to be attacked as tutored. Both the

approaches are dogmatic and fraught with each of pragmatism. The

testimony of a witness should be viewed from broad angles. It should not

be weighed in golden scales, but with cogent standards. In a particular

case an eye witness may be able to narrate the incident with all details

without mistake, if the occurrence has made an imprint on the canvas of

his mind in sequences in which occurred. He may be a person whose

capacity for absorption and retention of events is stronger than another

person.(1997(4) RCR 331 SC Bhag Singh vs. State of Punjab).

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

109 Indian Evidence Act

Unnatural conduct of witnesses.

1).PW-1 and PW-2 close friends of deceased – present at the time of

occurrence – deposed that they have left injured in lurch and disappeared

from scene – they did not inform about occurrence to anybody till they

were asked by the police – their conduct is unnatural and unbelievable –

their presence at the time of occurrence is doubtful – their testimony

cannot be accepted ( State of T.N. vs. Subair) Dr.Arijit Pasayat , J. 2009

(2) MLJ (Crl) 1055 (SC).

2).Witnesses – eye-witness – unnatural conduct of – effect of – (DB)

(K.N.Bashs,J) 2011 (1) MWN (crl) 388. (State vs. David Raj)

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

110 Indian Evidence Act

Investigation

1).2009 3 MLJ Crl. 1126 SC. Dr.Arijit Pasayat and Ashok Kumar

Ganguly,JJ.) 3.3.2009. State of M.P. vs. Dhara Singh and another. --- The

veracity of contents in FIR cannot in all cases be tested with reference to

police station daily diary. --- Defect in investigation or procedural

irregularity does not by itself vitiate and nullify the trial.

2).Defective or illegal investigation – effect of – unsafe to rely on such

evidences (Babu vs. State of Kerala) 2010 (3) SCC (crl) 1179.

3).Evidence of I.O – scope of – (Rameshbhai Mohanbhai vs. State of

Gujarat) – Justice: P.Sathasivam ) 2010 4 MLJ 495 SC.

4). Investigation – fairness in – necessity – fairness in investigation and trial is

a human right of an accused – Prosecution must also be fair to accused –

state cannot suppress any vital document from court only because the

same would support the case of the accused – on that ground acquittal

upheld. ( Samadhan dhudaka Koli vs. State of M.H) 2010 4 SCC (crl) 62.

5). lapses in investigation – Effect, Held, cannot affect credibility of witnesses

– further held – plea that name of accused was not mentioned in inquest

report hence adding to vulnerability of prosecution version, clearly

unsustainable. ( Aqeel Ahamad vs. State of U.P) 2010 (4) SCC (crl) 11.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

111 Indian Evidence Act

Circumstantial Evidence

1). Doctrine of Circumstantial evidence is brought into aid where there are no

eye-witnesses to the occurrence and it is for the prosecution to establish

complete chain of circumstances leading to definite conclusion poointing

towards guilt of accused – Accused not entitled to acquittaal merely because

there was no eye-witness to occurrence. (Sanatan Naskar vs. State of W.B)

2010 (3) SCC (crl) 814.

2). Conviction and sentence – circumstantial evidence – prosecution brought

home guilt of accused – In order to substantiare that the accused has committed

sexuaal assault which resulted in her hanging, when he prosecution has no

direct evidence, the circumstances must constitute a chain without a snap and

that too, be pointing to the hypothesis that except the accused, no one could

have committed the offence- conviction upheld. (Mohan Rao Naidu vs. State)

2011 2 MLJ 150.

3). 2009.(4). MLJ. 600-- when the prosecution case hinges upon

circumstantial evidence, the circumstantial evidence must be of such a nature

as to form a complete chain without any missing link. The prosecution should

establish the guilt of the accused by proving such circumstences forming a

complete chain without any missing link pointing towards the guilt of the

accused.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

112 Indian Evidence Act

Benefit of Doubt

1).2008.(3).MLJ. 956 - Shortage of loss- Matter relates to business

transaction - To be resolved by raising a civil dispute.

2).2008-2-M.L.J (Crl) 1127 (SC) --- Umar Mohammad Vs. State of Rajasthan

Indian Penal Code (45 of 1860) – Benefit of doubt given to one coaccused

– Another accused / appellant stands on same footing – Hence

he too, is entitled to benefit of doubt.

3).2006 Crl. L.J. 1922 Full Bench (Kerala) T. Moosa and etc Vs. S.I. of

Police, - Vadakara P.S. Ernakulam ---- Even when a co-accused is

acquitted in the very same trial the other accused can be convicted if there

are good reasons to do so. Acquittal of some of the accused by itself is not

a reason to bar the trial in the case of the other accused. –

4).2002 SCC Crl. 780. (M.B.Sha and R.P.Sethi,JJ). Kalyan and others and

State of U.P. 28.9.2001. variance between the FIR and the depositio

made in the court, held, high court erred in setting aside the acquittal of

appellants merely of an alternative view – criminal trial – reversal of

acquittal is not proper – when two views are possible – burden of proof –

proof beyond reasonable doubts – absence of – acquittal justified.

5).Proof beyond reasonable doubt – explanations of “reasonable doubt” -

case law – reiterated (State of U.P. vs. Awdhessh) 2010 (4) SCC (crl) 257.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

113 Indian Evidence Act

Injuries on Accused

1) Grievous injuries – non-explanation – effect held, prosecution owes duty to

explain the same. (Ravishwar manjhi vs. State of Jharkhand) 2010 (4)

SCC (crl) 50.

2) 2007(2).M.L.J.1055 (SC) = 2009(4) MLJ.903.(SC) Unexplained minor

injuries on accused part - not helpful to accused - would not affect

prosecution case.

3) Effect of non-explanation of injuries on accused person – related

(interested) witness – enmity – held, by itself is not sufficient to discard

testimony of a witness who is otherwise reliable. (Hari vs. Statte of M.H)

2009 (11) SCC 96.

4) 2009. (3). MLJ. 1068 (SC-NOC) Though prosecution has a duty to

explain the injuries on the person of an accused there are cases where

non-explanation of the injuries by the prosecution may not affect the

prosecution case. This would apply to cases where the injuries sustained

by the accused are minor and superficial or where the evidence is so clear

and cogent - So, independent and disinterested, so probable, consistent

and creditworthy that it far outweights the effect of the omission on the part

of the prosecution to explain the "injuries" Therefore, no general principles

have been laid down that non-explanation of injury on accused person

shall in all cases vitiate the prosecution.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

114 Indian Evidence Act

5) (2008) 3 Supreme Court Cases 709 (Babu Ram and Others Vs. State of

Punjab) Criminal Trial - prosecution – Omission on part of prosecution to

explain injuries on accused – Held, omission assumes much greater

important where the evidence consists of interested or inimical witnesses

or where the defence gives a version which competes in probability with

that of the prosecution version.

6) 2006 (2) Crimes 157 (S.C) (Rajpal and others Vs. State of Haryana) Non

explanation of injuries by prosecutor may not affect the prosecution case

in all cases and particularly where injuries sustained by accused are minor

and superficial or where evidence is so clear and cogent, independent and

disinterested, plausible, consistent and creditworthy that is outweigh effect

of omission.

7) Unexplained injuries sustained by accused leading to suppression of

material facts and true version of occurrence by prosecution will vitiate the

proceedings against accused thereby rendering the conviction

unsustainable. 2011 (3) MLJ 13. Justice. A.Arumughaswamy,J.

27.01.2011. Rajasekaran and others vs. State (Mayiladuthurai P.S)

8) 2011 (1) MLJ Crl 59 SC. Sikandar Singh v. state of Bihar. (D.K.Jain,

J.)Crl. A. No.227 of 2007 Dtd: 9.7.10. I) Non-explanation of injury on

accused is not fatal to prosecution case- when evidence against

accused is cogent and trustworthy outweighing said nonexplanation.

ii) Sec.96, 97, 100 of IPC – doctrine of riht of private

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

115 Indian Evidence Act

defence – applicaility – evidence on record reveals apppellants are

aggressors – non of the members of said aggressors party can claim

right of private defence.

9) I) When there is a complaint and counter complaint. The Officer

should enquire into both complaints and register the case and

thereafter investigate into the matter and he should not accept only

one complaint. ii) Bounden duty is cast upon the investigating

officer to register both the cases and conduct common investigation

in both cases by examining the witnesses in pursuance of the said

complaints. (2010 4 MLJ Crl 550) M.V.P.Maharaja vs. State. 12.4.2010.

(Justice M.M.Sundresh,J).

10) Non-explanation of injury on accused – when prejudicial – held,

it is not the law that whenever accused sustains injury in the same

occurrence, prosecution is obliged to explain the injury and on

failure of prosecution to do so, prosecution ccase has to be

disbelieved. (sikandar singh vs. State of Bihar) yc or significance.

(Dharnidhar v. State of U.P) 2010 (3) SCC (crl) 417.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

116 Indian Evidence Act

Motive

1). Non-mentioning of motive in FIR -not fatal, when sufficient evidence led by

prosecution to establish motive. ( 2011 (1) MLJ 110 (sc)) State of U.P. vs.

Krishna Master.

2) Motive – Completed chain of circumstances – character and conduct of

appellant towards his wife unnatural – these facts establish motive.

(G.Parshwanath v. State of Karnataka) 2010 (3) SCC (crl) 1027.

3) Motive alone cannot form basis for conviction but in the light of other

circumstances, motive goes a longway in forging links in chain of evidence -

2010 (3) SCC (crl) 1469 (Santosh Kumar Singh vs. State).

4) Motive – relevance – relevance – absence of motive in a case pending on

circumstantial evidence is a factor tha weighs in favour of accused – In a case of

circumstantial evidence, motive must be established at least to a certain extent.

2010 (3) SCC (crl) 1179. (Babu vs. State of Kerala)

5). Motive is an important circumstance in a cases where prosecution is based

on circumstantial evidence. (Niranjan Panja v. State of W.B) 2010 (3) SCC (crl)

177.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

117 Indian Evidence Act

6) It is always not necessary for prosecution to establish definite motive for

commission of crime to secure conviction of accused – absence of motive does

not essentially result in acquittal of accused if he is otherwise found guilty by

cogent and reliable evidence – However, in cases which are entirely or mainly

based upon circumstantial evidence, motive can have greater relevancy or

significance. (Dharnidhar v. State of U.P) 2010 (3) SCC (crl) 419.

7). Motive – relevance of direct evidence vis-a-vis circumstantial evidence –

Motive, held, may not be relevent where there is sufficient evidence to prove an

offence beyond reasonable doubt – But absence of motive assumes significance

in case of circumstantial evidence. (2011 (1) SCC Crl. 821 = 2011 (3) SCC 109.

(CBI vs. Mahendra singh Dahiya)

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

118 Indian Evidence Act

contradictions or discrepancies

1).Minor contradictions, inconsistencies, embellishments or improvements –

normal discrepancies are bound to occur due to errors of observation,

errors memory due to lapse of time, due to mental disposition such as

shock and horror at the time of occurrence – mere marginal variations

cannot be dubbed as improvements – they may be elaborations of earlier

statements made by witness – trivial matters which do not affect core of

prosecution case, should not be made a ground on which evidence is

rejected in its entirety – State of U.P vs. Naresh and others. (2011 (2) SCC

cri. 216 = 2011 4 SCC 324. (Justice Sathasivam and Dr.B.S.chauhan,JJ)

8.3.2011.

2).State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, In cases

involving sexual harassment, molestation etc. the court is duty bound to

deal with such cases with utmost sensitivity. Minor contradictions or

insignificant discrepancies in the statement of a prosecutrix should not be

a ground for throwing out an otherwise reliable prosecution case.

Evidence of the victim of sexual assault is enough for conviction and it

does not require any corroboration unless there are compelling reasons

for seeking corroboration. The court may look for some assurances of her

statement to satisfy judicial conscience. The statement of the prosecutrix

is more reliable than that of an injured witness as she is not an

accomplice.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

119 Indian Evidence Act

3).State of Himachal Pradesh Vs. Raghubir Singh (1993) 2 SCC 622,--

Honourable Supreme Court held that there is no legal compulsion to look

for any other evidence to corroborate the evidence of the prosecutrix

before recording an order of conviction. Evidence has to be weighed and

not counted. Conviction can be recorded on the sole testimony of the

prosecutrix, if her evidence inspires confidence and there is absence of

circumstances which militate against her veracity.

4).A similar view has been reiterated by this Court in Wahid Khan Vs. State of

Madhya Pradesh (2010) 2 SCC 9, placing reliance on earlier judgment in

Rameshwar Vs. State of Rajasthan AIR 1952 SC 54.

5). In Mulla & Anr. Vs. State of Uttar Pradesh (2010) 3 SCC 508, the Supreme

court (Hon'ble P. Sathasivam, J.) placed reliance on Matru@Girish

Chandra Vs. The State of Uttar Pradesh AIR 1971 SC 1050; and Santokh

Singh Vs. Izhar Hussain & Anr. AIR 1973 SC 2190, wherein it had been

held that the Tests Identification Parades do not constitute substantive

evidence. They are primarily meant for the purpose of providing the

investigating agency with an assurance that their progress with the

investigation into the offence is proceeding on right lines. The Test

Identification Parade can only be used as corroboration of the statement in

Court. The necessity for holding the Test Identification Parade can arise

only when the accused persons are not previously known to the

witnesses. The test is done to check the veracity of the witnesses.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

120 Indian Evidence Act

6).Vijay @ Chinee vs State Of M.P. on 27 July, 2010 – Discrepancies and

inconsistencies in depositions of witnesses:- It is settled legal proposition

that while appreciating the evidence of a witness, minor discrepancies on

trivial matters, which do not affect the core of the prosecution case, may

not prompt the Court to reject the evidence in its entirety. The law on the

point can be summarised to be that the evidence of the witnesses must be

read as a whole and the cases are to be considered in totality of the

circumstances and while appreciating the evidence of a witness, minor

discrepancies on trivial matters, which do not affect the core of the

prosecution case, should not be taken into consideration as they cannot

form grounds to reject the evidence as a whole.

7).Contradictions, inconsistencies, exaggerations or embellishments – minor

contradictions – PW-1 implicating other co-accused in FIR lodged by her,

not implicated in her S.161 statements – improvements in IR by PW-1,

held, cannot be a reason to discard her testimony. (Sambhu Das v. State

of Assam) (2010 (3) SCC (crl) 1301.

8). In State of Rajasthan Vs. Om Prakash AIR 2007 SC 2257, while dealing

with a similar issue, this Court held that "irrelevant details which do not in

any way corrode the credibility of a witness cannot be levelled as

omissions or contradictions."

9).State Vs. Saravanan & Anr. AIR 2009 SC 152, while dealing with a similar

issue, this Court observed as under :- ".....while appreciating the evidence

of a witness, minor discrepancies on trivial matters without affecting the

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

121 Indian Evidence Act

core of the prosecution case, ought not to prompt the court to reject

evidence in its entirety. Further, on the general tenor of the evidence given

by the witness, the trial court upon appreciation of evidence forms an

opinion about the credibility thereof, in the normal circumstances the

appellate court would not be justified to review it once again without

justifiable reasons. It is the totality of the situation, which has to be taken

note of. Difference in some minor detail, which does not otherwise affect

the core of the prosecution case, even if present, that itself would not

prompt the court to reject the evidence on minor variations and

discrepancies."

10). Contradictions, inconsistencies, exaggerations or embellishments –

variations found in statement of eye-witness Pw2 (brother & son of

deceased persons) – if material. (Dharnidhar vs. State of U.P) 2010 (3)

SCC (cri) 491.

11). In the case of Ujagar Singh v. Mst. Jeo reported in AIR 1959 SC

1041, the Supreme Court has held that the ordinary rule is that all customs

general or otherwise have to be proved, but under Section 57 of the

Evidence Act, 1872 nothing need to be proved of which the Court can take

judicial notice. It was also held that when a custom has been repeatedly

recognized by Courts, it is blended into the law of land and proof of the

same would become unnecessary under Section 57 of Evidence Act,

1872.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

122 Indian Evidence Act

12). The court shall have to bear in mind that different witnesses react

differently under different situations whereas some become speechless,

some start wailing while some others run away from the scene and yet

there are some who may come forward with courage, conviction and belief

that the wrong should be remedied. As a matter of fact it depends upon

individual to individuals. There cannot be any set pattern or uniform rule of

human reactions and to discard a piece of evidence on the ground of his

reaction not falling within a set pattern is unproductive and a pedantic

exercise. (AIR 1999 SC 3717 Leela Ram vs. State of Haryana).

13). Although there are some contradictions and inconsistencies in the

statements of the eye witnesses but we are not to forget that distortions

and embellishments are invariably to be found even in the testimony of

most truthful witnesses. We are not obvious of the fact that the facilities of

perception, retention and reproductive vary from individual to individual.

(1997(2) RCR 95 State of Punjab vs. Fauja Singh. )

14). It may be that each injury has not been graphically described. But

we cannot forget that human memory has limitations. Equally even the

perception of events cannot be photographic. When an incident is

described some details may be forgotten and some may be ignored as

being unnecessary. However on a later date one cannot recapitulate the

sequence of events and narrate it. Minor variations may actually be

indicative of truthfulness rather than false hood.(2000(2) RCR 1. State of

Haryana vs. Ram Kishan).

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

123 Indian Evidence Act

15). 2009-2 L.W.(Crl.) 757 – Jayaseelam Vs. State of Tamilnadu. ----

Discrepancies in the evidence / kinds of, “Normal” discrepancies and

“Material” discrepancies, Maxims, principle of “falsus in uno falsus in

omnibus” (false in one thing, false in everything), Tenability of the plea,

Scope. ---- Even if major portion of evidence is found to be deficient, in

case residue is sufficient to prove guilt of an accused, his conviction can

be maintained – It is the duty of the Court to separate grain from chaff –

Where chaff can be separated from grain, it would be open to the Court to

convict an accused notwithstanding the fact that evidence has been found

to be deficient, or to be not wholly credible – Falsity of material particular

would not ruin it from the beginning to end – Maxim “falsus in uno falsus in

ombibus” has no application in India and the witness or witnesses cannot

be branded as liar(s). -------- Maxim “falsus in uno falsus in omnibus “has

not received general acceptance nor has this maxim come to occupy the

status of rule of law – It is merely a rule of caution. All that it amounts to, is

that in such cases testimony may be disregarded, and not that it must be

disregarded – Doctrine merely involves the question of weight of evidence

which a court may apply in a given set of circumstances, but it is not what

may be called ‘a mandatory rule of evidence. ------ Where it is not

feasible to separate truth from falsehood, because grain and chaff are

inextricably mixed up, and in the process of separation an absolutely new

case has to be reconstructed by divorcing essential details presented by

the prosecution completely from the context and the background against

which they are made, the only available course to be made is to discard

the evidence in toto. While normal discrepancies do not corrode the

credibility of a party’s case, material discrepancies do so.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

124 Indian Evidence Act

16). AIR 2007 Supreme Court 2257 State of Rajasthan Vs. Om Prakash

Evidence Act ( 1 of 1872), S.3 – Witness – Appreciation of evidence –

Improvements made by witness as to irrelevant details – Cannot be

labelled as omissions or contradictions.

17). 2005 SCC Crl. 1611. (K.G.Balakrishnan and H.K.Sema, JJ).

Ramashish Rai vs. Jagadish Singh. 17.11.2004. Criminal Trial –

appreciation of evidence – credibility of witnesses –discrepancies in

testimony of prosecution witness – every discrepancy in the prosecution

witness cannot be treated as fatal – discrepancy which does not affect the

prosecution case materially does not create infirmity. ---- Motive - When

prosecution case is strong and positive, motive becomes inconsequential.

18). Court should read the evidence as a whole – So read, if it appears to

have a ring of truth, then discrepancies, inconsistencies, infirmities or

deficiencies of minor nature not touching core of the case cannot be

ground for rejecting the evidence – court should sift the evidence to

separate falsehood from truth – it should not adopt hyper-technical

approach. (2011 (1) SCC (crl) 381 = 2010 (12) SCC 324) State of U.P vs.

Krishna Master and others.

19). Appreciation of evidence – contradictions, inconsistencies,

exaggerations or embellishments – only material or serious contradictions

in statements of witnesses affect prosecution case – statements of

witnesses should be read in entirety. 2011 (1) SCC (crl) 266 = 2010 (12)

SCC 350. - Ashok Kumar vs. State of Haryana.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

125 Indian Evidence Act

20). Court has to judge whether contradiction / omission is of such

magnitude that it materially affects trial – minor contradictions,

inconsistencies, embellishments or improvements on trivial matters which

do not affect core of prosecution case, cannot be a ground to reject

evidence entirely. 2011 (2) SCC (cri) 375 = 2010 (13) SCC 657. sunil

kumar sambhudayal gupta vs. State of M.H.

21). Appreciation of evidence – contradictions, inconsistencies,

exaggerations or embellishments – consequences of – trial had gone on

for eight or nine years – evidence recorded after a long period of time –

Held; some discrepancies are bound to occur. 2011 (2) SCC (cri) 460 =

2010 (12) SCC 108. Hari Sing vs. State of M.P.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

126 Indian Evidence Act

Credibility of witness

1).Credibility of witness – demeanour of witnesses – faact that trial court has

advantage to observe demeanour of witness – relevance ( Babu vs. State

of Kerala) 2010 (3) SCC (cr) 1179.

2).Credibility of witness – presence established by other witness – evidence

corroborated by recoveris, FIR version, injuries on other witness, etc.

(Prithi vs. State of Haryana) (2010 (3) SCC (Crl) 960.

3).Eye-witness – conduct of, not disclosing about occurrence to anyone for

long time, till their examination by police – would destroy credibility of their

version eye witness – no reason given for such non-disclosure – evidence

unreliable and untrustworthy. (DB) K.N.Basha,J. (2011 (1) MWN (crl) 291.

(Gopal @Rajagopal vs. State). 11.11.2010.

4).Eye-witnesses – parraot like version of Pw-1 to PW-4 giving minute ,

photographic and dramatic details about occurrence and attributing

specific overt acts to each of 14 Accused – Held, most unsafe and

hazardous to place reliance on evidence PW-1 to 4 – Decision of Supreme

Court in Selvi vs. State of T.N., AIR 1981 SC 1230 followed. ( Kanagaraj

and 12 others vs. State) K.N.Basha & Aruna Jagadeesan,JJ. (2011 (1)

MWN 172 (DB)). 1.12.2010.

5).Trial court after considering entire eveidence, should form opinion about

credibility of witnesses - 2011 (2) SCC (cri) 375 = 2010 (13) SCC 657.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

127 Indian Evidence Act

Sunil kumar sambhudayal gupta vs. State of M.H.

6). Identification of accused at nigh / darkness – eye-witness identified

accused in torchlight – omission to take torchlight into possession by

police – effect of – factum of torch had been mentioned in FIR – other

witnesses also testified thereto in their statements under S.161 – merely

because torch had not been taken into possession by police, held, would

not mean that statements eye-witnesses were not credible. --- Hari singh

vs. State of U.P. - 2011 (2) SCC (crl) 411 = 2010 13 SCC 756.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

128 Indian Evidence Act

Defence witness

1).Standard of proof required to prove prosecution and defence cases –

burden of proof – while prosecution has to prove its case beyond

reasonable doubt, the defence of accused has to be tested on the

touchstone of probability. --------ii) In every case the court has to see

whether defence set up by accused is probable, having regard to totality

of facts and circumstances of the case – If defence appears to be

probable, the court may accept such defence – this is primarily a matter of

appreciation of evidence on record and no straitjacket formula can be

enunciated in this regard. (Shanjiv Kumar v. State of Punjab) (2010 (3)

SCC (Crl) 330.

2).Sec.101 – the accused need not disprove the prosecution case and the

onus on the accused is not as heavy as that of prosecution.

(M.S.Narayana Menon vs. State of Kerala) 2006 (6) SCC 39 = 2006 SCC

(crl) 30.

3).Defence – falsity of statement / defence plea – false plea taken by

accused – its adverse effect on his defence – held, false plea is another

link in the chain of circumstantial evidence. (Santosh Kumar singh vs.

State, (2010 (3) SCC (cri) 1469.

4).Evidence on record that might aid defence – onus to exhibit and prove the

same – held, it was for defence and not for prosecution to make use of

such evidence – CBI as an investigating had fairly collected all relevant

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

129 Indian Evidence Act

evidence but it was for appellant-accused to prove evidence favourable to

him, by exhibiting relevant documents and calling necessary witnesses.

9Santosh Kumar singh v. State ) 2010 (3) SCC (crl) 1469.

5).Alibi – plea of alib has to be established by accused by leading positive

evidence – failure of said plea would not necessarily lead to success of

prosecution case which has to be independently proved by prosecution

beyond reasonable doubt. (Sk. Sattar v. State of Maharashtra) 2010 (3)

SCC (crl) 906.

6).Defence witness – credibility of – Held; defence witnesses have been

observed to be often untruthfull – but that is not to say that in all cases

defence witnesses must be held to be untruthful, merely because they

support the case of accused – right of accused to explain incriminating

circumstances appearing against him, serves a purpose, which cannot be

ignored outright. (Sanjiv Kumar vs. State of Punjab) yc or significance.

(Dharnidhar v. State of U.P) 2010 (3) SCC (crl) 330.

7). Sec.58 – Failure to prove defence is not admission of guilt by the

accused. (Manager R.B.I vs. Mani) AIR 2005 SC 2179 = 2005 (5) SCC

100.

8).Apology – belated apology – Held, apology in a contempt proceeding must

be offerred at the earliest possible opportunity – Belated apology is liable

to be rejected. 2011 (1) SCC (crl) 200 = 2010 (11) SCC 493. Ranveer

yadav vs. State of Bihar.

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

130 Indian Evidence Act

9). Criminal trial – witnesses – defence witnesses – statement made in crossexamination

supporting prosecution case – Held, defence would be bound

by such statements. 2011 (1) SCC (crl) 266 = 2010 (12) SCC 350. - Ashok

Kumar vs. State of Haryana.

10). S.231 of Cr.P.C – Choice of witness for prosecution – power of

prosecutor – child produced as eye-witness instead of his mature elder

brother and sister who had also seen the incident – Held, it was for public

prosecutor to decide whether mature witnesses should be examined or not

and whether child witness had no role in the matter – defence never

requested trial court to call upon Public Prosecutor to examine the elder

brother and sister – defence also failed to examine them as defence

witness or to make a prayer to examine them as court witness – Held, for

non-examination of elder brother and sister, child witness could not be

blamed, nor could his evidence be brushed aside is a casual manner. -

(State of U.P vs. Krishna Master and others) 2011 (1) SCC (cri) 381 =

2010 (12) SCC 324.

11). Cross-examination – Sec.137 of Evidence Act – Conduct of defence

lawyer – cross-examination of a witness on a point for days together with a

view to confuse him – cannot be permitted. (2011 91) SCC Crl 381 = 2010

(12) SCC 324. (State of U.P Vs. Krishna Master and others).

-----------------------------------------------------------------------------------------------------------

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

131 Indian Evidence Act

Evidence in the form of C.D., V.C.D.

What is the procedure to adduce the evidence in the form of Compact Disc,

Video Disc in the evidence ? How to deal with such application of production of

evidence in the form of Compact Disc. Kindly go through the following Citations.

1). Velusamy K. K. v. N. Palanisamy 2011 (4) SCALE 61 -

http://indiankanoon.org/doc/1126109

2). http://www.indiankanoon.org/doc/476184/

Stovekraft Private Limited

3). http://www.indiankanoon.org/doc/195080/

Y. Ranganadh Goud vs State Rep. By The Public ... on 27 July, 2010

4). http://www.indiankanoon.org/doc/1955364/

Dharambir vs Central Bureau Of Investigation ... on 11 March, 2008

5).AIR2007SC590,

(2006)11SCC1/http://www.indiankanoon.org/doc/1611925/

Jagjit Singh vs. State of Haryana and Ors. (11.12.2006 – SC).

6). http://www.indiankanoon.org/doc/1830482/

2. Sri . Gopala Krishna Belur and Ors . vs . Sri . B . S . Yeddiyurappa and

Anr . . ( 18 . 10 . 2010 - KARHC )

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

132 Indian Evidence Act

Words & Phrases

1).Anticipatory Bail – 2011 (1) SCC crl. 514 = 2011 (1) SCC 694. (Siddharam

Satlingappa Mhetre vs. State of M.H and others).

2).Any offence – 2010 (3) SCC (cr) 630

3).Charge Sheet & Final report = 2010 (3) SCC (cr) 652.

4).Clever Forgery & forgery - 2010 (3) SCC (cr) 924.

5).Coagulated – in NDPS Act- solidified, clotted, curdled – 2011 (2) SCC (crl)

286 = 2011 (4) SCC 441. (Harjit Singh vs. State of Punjab)

6).Common intention – same intention – similar intention and common object

- 2010 (3) SCC (cr) 1262.

7).compensation - 2010 (3) SCC (cr) 1285

8).Consent - 2010 (3) SCC (cr) 1081

9).Corpus delicti - 2010 (3) SCC (cr) 960

10). Court - 2011 (1) SCC crl. 442 = 2011 91) SCC 534. Institute of

Chartered Accountants of India vs. Vimal Kumar Surana and another.

11). “Death” - 2011 (2) SCC (crl) 294 = 2011 (4) SCC 454. (Aruna

Ramachandra Shanbaug vs. Union Of India)

12). Demand of dowry - 2010 (3) SCC (cr) 248.

13). Dowry - 2011 (1) SCC (crl) 266. = 2009 (12) SCC 350 . Ashok

Kumar vs. state of Haryana.

14). Dowry death - 2010 (3) SCC (cr) 1154

15). Employer – Sec. 2(e) Employees P.f. And Miscellaneus Provisions

Act, (19 of 1952) ( T.A. Bhansali v. Inspector of Police) C.T.Selvam,J. 2010

4 MLJ Crl. 544.

16). Enquiry - 2010 (3) SCC (cr) 344

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133 Indian Evidence Act

17). Evidence & Hearsay Evidence.– 2011 (1) SCC Crl. 741 = 2011 (2)

SCC 532. Kalyan Kumar gogi vs. Ashutosh Agnihotri and another.

18). Fair trial – Every opportunity to be extended to accused to establish

his defence – Latching opportunity to accused in rebutting presumption

U/s. 118(a) & 139 of N.I.Act, held not at all Fair trial. (S.Palanivelu,J) 2011

(1) MWN (cr) DCC 173.

19). Falsely represents - 2010 (3) SCC (cr) 1439

20). Fraud - 2010 (3) SCC (cr) 878

21). Goad - 2010 (3) SCC (cr) 367

22). Good faith & Public good - 2010 (3) SCC (cr) 138.

23). Heat of Passion – 2011 (1) SCC (crl) 934. = 2009 917) SCC 63.

Suchand Bouri vs. State of W.B.

24). Hearsay evidence & Evidence – 2011 (1) SCC Crl. 741 = 2011 (2)

SCC 532. Kalyan Kumar gogi vs. Ashutosh Agnihotri and another.

25). Instigation - 2010 (3) SCC (cr) 367

26). Interested Witness - 2010 (3) SCC (cr) 491.

27). Interlocutory order – Order which is made pending cause and before

a final hearing on merits – Interlocutory order is made to secure some end

and generally collateral to issue formed by plading and not connected with

final judgment (T.Mathivanan,J) 2011 (1) MWN (cr) DCC 28.

28). Investigation – Ashok Kumar todi vs. Kishar jahan and others. (2011

(2) SCC crl. 75 = 2011 (3) SCC 758.

29). Life & Personal Liberty - 2011 (1) SCC crl. 514 = 2011 (1) SCC 694

(siddharam Satlingappa Mhetre vs. State of M.H and others.

30). Live in Relationship & wife - 2011 (1) SCC (crl) 59 = 2010 (10) SCC

469. (D.Velusamy vs. D.Patchaiammal)

31). Live in the nature of marriage” Live in arrangement” “keep” - 2011 (1)

SCC (crl) 59 = 2010 (10) SCC 469. (D.Velusamy vs. D.Patchaiammal)

M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur

134 Indian Evidence Act

32). Living will & “Death” - 2011 (2) SCC (crl) 294 = 2011 (4) SCC 454.

(Aruna Ramachandra Shanbaug vs. Union Of India)

33). Palimony - 2011 (1) SCC (crl) 59 = 2010 (10) SCC 469. (D.Velusamy

vs. D.Patchaiammal).

34). Per incuriam decision - 2011 (1) SCC crl. 514 = 2011 (1) SCC 694.

(siddharam Satlingappa Mhetre vs. State of M.H and others).

35). Possession - 2010 (3) SCC (cr) 1431

36). Prescribed – Ashok Tshering Bhutta vs. State of Sikkim) 2011 (2)

SCC (crl) 258 = 2011 (4) SCC 402.

37). Presume - 2010 (3) SCC (cr) 367

38). What is “Proceedings & Trial” - Proceeding as distinguished from

“Trial) 2011 (1) SCC (crl) 207 = 2010 (11) SCC 520. Harinarayan G.Bajaj

vs. State of Maharashtra and others.

39). Provocation - 2010 (3) SCC (cr) 155

40). Publication - 2011 (1) SCC crl. 423 = 2011 (1) SCC 503. (Joseph

M.Puthussery vs. T.S.John and others).

41). Reason to believe - 2010 (3) SCC (cr) 748

42). Relative – PWDVA, 2005 – Sandhya Manoj Wankhade vs. Manoj

Bhimrao Wankhade ( 2011 (2) SCC crl. 21 = 2011 (3) SCC 650.

43). Securities - 2010 (3) SCC (cr) 114.

44). Services - 2010 (3) SCC (cr) 1313

45). Soon before – 304-B IPC cases - 2011 (2) SCC (crl) 393 = 2010 (13)

SCC 689.

46). Soon before her death - 2010 (3) SCC (cr) 539

47). Soon before her death. 2011 (1) SCC Crl. 266 = 2010 (12) SCC 350.

Ashok Kumar vs. Sstate of Haryana.

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135 Indian Evidence Act

48). Spot delivery - 2010 (3) SCC (cr) 114.

49). sudden fight - 2011 (1) SCC (crl) 934. = 2009 917) SCC 63.

Suchand Bouri vs. State of W.B.

50). Suicide – held – sui means self – cide means killing – K.Mohan vs.

State of T.N. (2011 (2) SCC crl. 1 = 2011 93) SCC 626.

51). Taking cognizance – meaning explained – 2011 (1) SCC (cri) 1181.

Mona Panwar vs. High court Judicature of Allahabad.

52). sufficient ground - 2010 (3) SCC (cr) 452

53). Urge - 2010 (3) SCC (cr) 367

54). Yellow Journal - 2011 (1) SCC crl. 423 = 2011 (1) SCC 503. (Joseph

M.Puthussery vs. T.S.John and others).

55). Whistleblower - 2010 (3) SCC (cr) 841.

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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur