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." ----------------------------------------------------------------------------------------------------------------------- 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. ----------------------------------------------------------------------------------------------------------- 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. --------------------------------------------------------------------------------------------------------- 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. ----------------------------------------------------------------------------------------------------------- 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. ----------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- 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. --------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- (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. ---------------------------------------------------------------------------------------------------------- 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. ----------------------------------------------------------------------------------------------------------- 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. --------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- (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. ---------------------------------------------------------------------------------------------------------- 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 ---------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- 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." ----------------------------------------------------------------------------------------------------------- (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. ---------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- (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. --------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------- 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) ----------------------------------------------------------------------------------------------------------- 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. ----------------------------------------------------------------------------------------------------------- (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. ---------------------------------------------------------------------------------------------------------- 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. ) ----------------------------------------------------------------------------------------------------------- 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. --------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- 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) ---------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- 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. -------------------------------------------------------------------------------------------------------- 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. -------------------------------------------------------------------------------------------------------- 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). ----------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------- 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 M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur 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. M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur 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. ---------------------------------------------------------------------------------------- M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur |