LAW OF EVIDENCE - Rulings (Courtesy: M.P. MURUGAN)

1 Indian Evidence Act
Citations on
Indian Evidence Act, 1872
Compiled By:
M.P.Murugan,M.A.LL.B.,
Judicial Magistrate No.II,
Thanjavur, Tamil Nadu.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
2 Indian Evidence Act
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
3 Indian Evidence Act
The prosecution must stand or fall on its own legs and it cannot derive any strength
form the weaknesses of the defence. – (Sharad Birdhichand Sarda vs. State of
Maharashtra, 1984 (4) SCC 116)
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
4 Indian Evidence Act
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
5 Indian Evidence Act
Honourable Mr.Justice. Chinnappa Reddy, J.
in Ram Chander vs. The State of Haryana (AIR 1981 SC 1036)
"The adversary system of trial being what is is, there is an unfortunate tendency
for a judge presiding over a trial to assume the role of a referee or an umpire
and to allow the trial to develop into a contest between the prosecution and the
defence with the inevitable distortions flowing from combative and competitive
elements entering the trial procedure. If a Criminal Court is to be an effective
instrument in dispensing justice, the presiding judge must cease to be a
spectator and a mere recording machine. He must become a participant in the
trial by evincing intelligent active interest by putting questions to witnesses in
order to ascertain the truth."
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2009 (4). M.L.J. 214.
Dr.Arijit Pasayat and A.K.Ganguly,JJ. 6.2.2009. Arjun Singh vs.State of H.P.
A Magistrate should not be a silent spectator leaving the prosecution and the defence
to simply fight out the case before the court. lt is the role of the Magistrate to secure
the presence of the witnesses and there should be periodical Monitoring of service of
summons. lf there is difficulty in securing the presence of the witness, the higher
officials in the police department should be addressed through the principal Judge
concerned and the principal District Judge is also is expected to help the Magistrate in
this regard.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
6 Indian Evidence Act
Presence of other witnesses in court hall while examining other witness.
Dr. Kasi Iyer Vs. State of Kerala
The question that arises for decision is whether the Court has got power to order
unexamined witnesses out of Court until their examination is taken up.
To ensure a fair trial even in the absence of any specific provision in any
enactment the Court has inherent power to order that no witness who has to
give evidence should be present when the deposition of the other witnesses arc
being taken until he himself is examined as a witness. in criminal trials, a
prosecutory is entitled to remain in Court only in his capacity as prosecutor and
if he is witness also, he may be ordered to retire.
AIR.2004. SC 1280, 2004 (1) ALD (Cri) 447, 2004 Cri.L.J 880, 2004(1)CTC474,
JT2004(1)SC81, 2004 (1) KLT 1038 (SC), 2004(1)SCALE42, (2004)2SCC447.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
7 Indian Evidence Act
Sl.No Contents Page No.
1 Speedy Trial 11
2 Respect begets respect 12
3 guidelines in giving witness protection 13
4 Playing of video recording in court hall 15
5 Child witness 15
6 Test Identification Parade 20
7 Observation of Criminal Court in civil Proceeding 25
8 Confession 25
9 Confession to police officer 30
10 Confession & Recovery 31
11 Confession of co-accused 34
12 Dying Declaration 36
13 Entries made in public Documents. 45
14 Expert Opinion 49
15 Various rules for expert opinion 52
16 Medical Evidence 58
17 Judicial Notice 61
18 Hearsay evidence 62
19 Succession Act , S. 63 – Evidence Act , S.68 63
20 Secondary Evidence 65
21 Marking of Photograph 71
22 Comparison of signature 74
23 Burden of proof 75
24 When the nominees of the missing insured can
lay a claim to the benefits of the policies and
what their obligations are. Are they bound to
continue to pay premium?
77
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
8 Indian Evidence Act
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
9 Indian Evidence Act
25 Sample of Blood against will of the accused 80
26 Presumption as to legitimacy of child 81
27 Postal receipt and acknowledgement - presume
due service of notice.
83
28 Exception to Adverse inference 83
29 Estoppel 85
30 Evidentiary value of former statement 86
31 Leading question 88
32 Re-examination 89
33 Hostile witness 90
34 F.I.R. - Not substantive piece of evidence 92
35 Interested witness 95
36 Sole eye-witness 99
37 DNA Test 101
38 Adoption 102
39 Appreciation of evidence 103
40 corroboration 107
41 Unnatural conduct of witnesses. 109
42 Investigation 110
43 Circumstantial Evidence 111
44 Benefit of Doubt 112
45 Injuries on accused 113
46 Motive 117
47 contradictions or discrepancies 118
48 Credibility of witness 126
49 Defence witness 128
50
Evidence in the form of C.D., V.C.D.
131
51 Words & Phrases 132
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
10 Indian Evidence Act
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
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Speedy Trial
1).All the delay and lack of accountability and half baked schemes amount to
a daily mockery of the fundamental right to speedy trial. The Supreme
Court made it clear that "speedy trial is of essence to criminal justice and
there can be no doubt that the delay in trial by itself constitutes denial of
justice" (Hussainara Khatoon V. State of Bihar AIR 1979 SC 1364).
2). "there can be no doubt that speedy trial -- and by speedy trial we mean a
reasonably expeditious trial -- is an integral and essential part of
fundamental right to life and liberty enshrined in Art 21" Hon'ble Supreme
Court in Maneka Gandhi V. Vol, AIR 1978 SC 597.
3). It is a very important obligation. Even apart from Art. 21 the constitutional
mandate for speedy justice is inescapable. The preamble of the
Constitution enjoins the state to secure social, economic and political
justice to all its citizens. The Directive Principles of State Policy declare
that the state should strive for a social order in which such justice shall
inform all the institutions of national life {(Art 38 (1)}. This is elaborated by
specifically adding that "The State shall secure that the operation of the
legal system promotes justice..; to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other
disabilities" (Art 39A). While interpreting this provision the Supreme Court
has held that "social justice would include 'legal justice' which means that
the system of administration of justice must provide a cheap, expeditious
and effective instrument for realization of justice by all section of the
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
12 Indian Evidence Act
people irrespective of their social or economic position or their financial
resources" (Babu V. Raghunathji AIR 1976 SC 1734.)
4).2009. Cri.L.J.1731 (SC) , 2008 (2) MLJ.1051 , 2OO8(2).MLJ.1051,
2008(2) MLJ 1649 (SC) It is bounden duty of court to avoid unreasonable
delay to ensure the right to a speedy trial which is one of the important
constitutional rights of the accused. Hence when there is inordinate delay
in conducting trial, it vitiates the entire proceedings and will amount to
abuse of process of law. In the present case after filing the F.I.R. in crime
number 26 of 1995, until this day there has been no progress and the fate
of the .F.I.R. is also not explained by the prosecution, it is proper to quash
the said .F.I.R. to secure the ends of justice.
5).2008(2).MLJ.1376 ; -If the court comes to the decision that continuance of
the prosecution would be a harassment to the accused, then the court will
have to go to the rescue of the accused at any stage of proceedings –
Proceedings is liable to be quashed.
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6). (2008) 1 MLJ (Crl) 1045 (SC) --State of Gujarat Vs. Turabali
Gulamhussain Hirani and Another ----- Judicial Dominion - When the
Court had an occasion to summon a Senior official that too in some
extreme and compelling situation - He must be given proper respect by the
Court and he should not be humiliated - Such Senior Officials need not be
made to stand all the time when the hearing is going on, and they can be
offered a chair by the Court to sit - They need to stand only when
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
13 Indian Evidence Act
answering or making a statement in the Court - Respect begets respect -
Advised.
7). In the matter of Swaran Singh v. State of Punjab, the Supreme Court
observed,
"A witness has to visit the Court at his own cost, every time the case is
differed for a different date. Nowadays it has become more or less
fashionable to repeatedly adjourn a case. Eventually the witness is tired
and gives up."
8).The guidelines have been issued by Usha Mehra and Pradeep
Nandrajog., JJ(Delhi High Court, has on 14th October 2003) on a petition
filed by Neelam Kataria, whose son Nitesh was allegedly murdered by
Rajya Sabha MP D.P. Yadav's son Vikas and nephew Vishal.
The Delhi High Court has given the following guidelines in giving witness
protection:
1. The Court has also made it compulsory for the investigating officer of a
case to inform the witness about the new guidelines.
2. The Court has appointed the Member Secretary of the Delhi Legal
Services Authority to decide whether a witness requires police protection
or not.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
14 Indian Evidence Act
3. The competent authority shall take into account the nature of security risk
to him/her from the accused, while granting permission to protect the
witness.
4. Once the permission is granted, it shall be the duty of the Commissioner of
Police to give protection to the witness.
The High Court said that its order would operate until legislation is passed in this
regard.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
15 Indian Evidence Act
SS.3, 14 Evidence (2) 39, 45 and 65-B– Playing of video recording in court room
– 2011 (3) SCC Cri. 294 = 2011 (4) SC 454. Aruna Ramachandra Shanbaug vs.
Union of India.
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Child Witness
1). In SURESH vs. STATE OF UTTAR PRADESH AIR 1981 SC 1122, it was
decided that a child as young as 5 years can depose evidence if he
understands the questions and answers in a relevant and rational manner.
The age is of no consequence, it is the mental faculties and understanding
that matter in such cases. Their evidence, however, has to
be scrutinized and caution has to be exercised as per each individual
case. The court has to satisfy itself that the evidence of a child is reliable
and untainted. Any sign of tutoring will render the evidence questionable
as decided in CHANGAN DAM vs. STATE OF GUJRAT 1994 CrLJ 66 SC.
If the court is satisfied, it may convict a person without looking for
collaboration of the child’s witness. It has been stated many a times that
support of a child’s evidence should be a rule of prudence and is very
desirable.
2). A child witness is a privileged witness and he may not have to take an
oath. In M SUGAL vs. THE KING 1945 48 BLR 138, it was decided that a
girl of about ten years of age could give evidence of a murder in which she
was an eye-witness as she could understand the questions and answer
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
16 Indian Evidence Act
them frankly even though she was not able to understand the nature of
oath. The same principle has been applied in India too through QUEEN
vs. SEWA BHOGTA 1874 14 BENG and PRAKASH SINGH vs. STATE OF
MP AIR 1993 SC 65.
3). A VOIRE DIRE test (Here, the Court puts certain preliminary questions
that are unconnected to the case just in order to know the competency of
the child witness) of a child witness is not essential but desirable. A judge
may ask a few questions and get them on record so as to demonstrate
and check the competency of the child witness. It can be presumed that
this is a duty imposed on all the judges by the Section 118 of the IEA,
1872. The judge can ask questions also to find out whether the child has a
rough idea of the difference between truth and falsehood.
4). In SURESH vs. STATE OF UP case, it was held that a child who is not
administered oath due to his young years and is not required to give
coherent or straight answers as a privileged witness can give evidence but
this evidence should not be relied upon totally and completely.
5).2010 (I) MLJ 124 (SC)-- Evidence Act- A child of tender age can be
allowed to testify if he has intellectual
6).AIR 2007 Supreme Court 2400 – State of Madhya Pradesh Vs. Chamru @
Bhagwandas etc.-- Child witness – Testimony of – Appreciation – Witness
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
17 Indian Evidence Act
– Witness during investigation not disclosing identity of accused though
known – Statements in Court disclosing that she knew name of accused –
Statement that she had seen voltage of bulb lighted 200 yards away –
Indicates that she was tutored – Most of her statements were
exaggerations and embellishment – Part of her evidence was also
contrary to evidence of other eye witnesses – Witness not credible witness
– Judgment of acquittal does not suffer from any infirmity.
7).2009 Cr.LJ. 2442 (SC) - Child witness - conviction can be based on it if
child is found competent to depose and his Evidence is found reliable.
8).The supreme court in Tahal Singh v. Punjab AIR 1979 SC 1347observed:
“In our country, particularly in rural areas it is difficult to think of a load of
13 year as a child. A vast majority of boys around that age go in fields to
work. They are certainly capable of understanding the significance of the
oath and necessity to speak the truth.” in this regard a very important
observation has been made in Jarina Khatun v. State of Assam 1992 Cr LJ
733, that the Trial Court is the best judge in the matter of deciding the
competency of such a witness as there, the child himself appears before
the court. Therefore it has opportunity to see him, notice his demeanors,
record his evidence and thereafter on scrutiny accepted his testimony.
9).State v. Yenkappa (2003) CRI LJ 3558:-- Here the accused was convicted
for the murder of his own wife on the basis of the statements of his
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
18 Indian Evidence Act
children who were adolescents .admission of such statement was
challenged on appeal. in this regard the accused produced some evidence
as to the fact that the children have been tutored and therefore their
evidence must be rejected. Here the SC observed that it is the setteled
law that just because the witness happens to be a child witness his
evidence could not be rejected in toto on that score. ii) However the court
must be cautious enough to see that an innocent is not punished solely
acting upon the testimony of child witness , as the children are very easily
suspect able for tutoring. Iii) Here if one look upon the circumstances of
the case then , it will be found that the presence of these witnesses in the
house is the normal situation and their witnessing the incident cannot be
regarded as unusual or unnatural. therefore, their evidence inspires
confidence.
10). 2009 (1). M.L.J. 759 (SC) - The evidence of child witness is not
required to be rejected per se, but the court as a rule of prudence
considers such evidence with close scrutiny and only on being convinced
about quality thereof and reliability can record conviction, based thereon.
11). 2008 (2) MLJ. 1064 – Sections.118- Evidence Act - Credibility of
child witness.
12). (2007) 1 MLJ (Crl) 406 Ananda Sekaran Vs State by Inspector of
Police, Chennai - Child witness – Evidence by child witness – Such
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
19 Indian Evidence Act
evidence, without corroboration, not safe to be acted upon to prove
abetment.
13). Sec.118 – Competency of witness – evidence of child witness –
cogent and convincing evidence to be admissible. (Sundar v. State) 2011
(2) MLJ (crl) 127.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
20 Indian Evidence Act
Test Identification Parade.
1) Evidence Act .sec.9 - Identification parade - Evidence only corroborative in
nature -It is only a supportive evidence to the substantive piece of eye
witnesses account to the occurrence. 2009 (4) M.L.J. 608
2) 2008 .CrLL.J-(III) 3036 (SC) Sec.9- Evidence Act - Test of I/D Parade - Do
not constitute substantive evidence-identification can only be used as
Corroborative of statement in court.
3) 2O08.CrlL.J. 3693.Mad. (D.B) (A) Sec.9 - Evidence Act - I/D parade -
witnesses not admitting that they have seen photographs of accused prior
to test I/D parade - Mere admissition of one witnesses to effect that news
have come in papers before 10 days and facts have also come in papers
will not mean that he had seen photographs of accused and got his
memory refreshed- Held, I/D parade proved.
4) 2008 (2) MWN (Cr) 28 (DB). Date of Judgment: 11.6.2008. Ramesh Vs.
State by Inspector of Police, Jolarpet, Vellore Dist. Evidence At, S.9 –
T.I.Parade – conducting of – P.W.s already seen accused before
conducting of T.I.Parade – conducting of T.I.Parade, held, a futile exercise.
Case referred:- Budhesan and Another v. state of U.P AIR 1970 SC 1321.
5) 2009 (3) MWN (Cr.) 438. Date of Judgment: 2.11.2009. Kannan and
others Vs. State, Inspector of Police, Thoothukudi. The accused was
exposed to the witnesses before conduction of Idneitfication parade. So,
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
21 Indian Evidence Act
the Idnetification parade is of no value. Cases referred: i) Ravindra v.
state of Maharashtra 1998 SCC (Cri,) 1527, ii) Vijayan v. state of kerala,
1999 SCC Cri. 378 and iii) Rajesh govind jagesha v. state of Maharashtra,
1999 SCC Cri. 1452.
6) Showing photograph of accused to the witness before the parade – would
take away the effect of TI parade (State of M.P vs. Chamru) 2010 (3) SCC
(crl) 698.
7) 2008 (3) MLJ Crl 1287. Date of Judgment: 4.9.2008. Krishnamurthy and
Another v. state, Inspector of Police. Thanjavur Taluk P.S. ++Persons who
last seen the deceased accompanied by Accused not participated in the
test identification parade. Effect of.
8) 2011 (1) MLJ (Crl) 242 SC. Vijay @ Chinee v. State of MP. Dtd: 27.7.2010
(Judge: Dr.B.S.Chauhan, J). Sec.9 of Evidence Act – test identification
parade – non-holding of – effect – purpsose of holding – principles
reiterated.
9) 2006 (1) L.W. (Crl) 166 Alumalai & 5 others Vs. State rep. by Inspector of
Police, Hasanur P.S. – Failure to hold Test Identification parade does not
make the evidence of identification in Court admissible. Identification of an
accused by the witness for the first time in Court should not form the basis
of conviction.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
22 Indian Evidence Act
10) Non-holding of Test Identification parade – (vijay @chinee Vs. State
of M.P) 2011 (1) MLJ 242 SC).
11) 2002 SAR (Criminal) 185 SC. (N.Santosh Hegde and Doraiswamy
Raju, JJ.) 7.2.2000. Chander Pal vs. State of Haryana. Identification
parade – holding of – necessity of – prosecution witness specifically
stating that he did not know the accused s ince beofre the incident in
question – non-holding of identification parade would render it rather
difficult to accept the evidence of such witness.
12) 2008 (2) I.W 1059:- Criminal Trial Test Identification parade. Field;
Failure of the Witnesses in the T,I.parade at first instance, can not shake
the prosecution case - Mere not identification of the accused by the
prosecution witnesses in the T.I.Parade can not be taken as a ground to
belier. entire prosecution case since, admittedly, the same prosecution
witnesses have identified the accused in the open court.
13) 2009 (3) .M.L.J. 1102 (SC) NOC ;- Whether test identification parade
is necessary or not would depend upon facts and circumstances of each
case.
14) In Pramod Mandal vs. State of Bihar - (2004) 13 SCC 150 in order to
contend that mere delay in holding the test identification parade will not
prevent the Court from accepting the evidence when defence failed to
impute any motive to the prosecution by way of cross examination for
delay in holding the T.I. parade. In Pramod Mandal (supra) it was held that
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
23 Indian Evidence Act
delay of one month in holding the T.I. parade was not fatal.
15) It may be pointed out that identification test is not substantive
evidence. Such tests are meant for the purpose of helping the
investigating agency with an assurance that their progress with the
investigation into the offence is proceeding on right lines. (Matru Alias
Girish Chandra vs. The State of U. Pradesh - 1971(2) SCC 75 at para 17)
16) It is also held by this Court that identification test parade is not
substantive evidence but it can only be used in corroboration of the
statements in Court. (See Santokh Singh vs. Izhar Hussain and Anr. -
(1973) 2 SCC 406 at para 11)
17) In the case of Amitsingh Bhikam Singh Thakur vs. State of
Maharashtra - (2007) 2 SCC 310 this court held on a consideration of
various cases on the subject that the identification proceedings are in the
nature of tests and there is no procedure either in Cr. P.C., 1973 or in the
Indian Evidence Act for holding such tests. The main object of holding
such tests during investigation is to check the memory of witnesses based
upon first impression and to enable the prosecution to decide whether
these witnesses could be cited as eye witnesses of the crime.
18) However, the decision of this Court in Soni vs. State of Uttar
Pradesh - (1982) 3 SCC 368(1) is more relevant to the facts of the case in
hand. In Soni (supra), the facts have not been discussed in the judgment
which was rather brief but one thing is made clear that T.I. Parade was
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
24 Indian Evidence Act
held after a lapse of 42 days from the date of the arrest of the appellant.
This Court held that such delay in holding the T.I. parade by itself throws a
doubt on the genuineness of such identification and we respectfully agree
with the view that it is difficult to remember the facial expression of the
accused persons after such a long gap in the facts of this case.
19) 2009 (3) M.L.J. 1072 (SC-NOC) Identification for the first time in
court is permissible in law. However, the said principle should be applied
having regard to the facts and circumstances of each case. Courts
ordinarily do not give much credence to identification made in the court for
the first time and that too after a long time .
20) 2007 (1) MLJ (Crl) 190 – Khaja Hussian and others Vs. Inspector of
Police, Coimbatore ---Indian Evidence Act (1 of 1872), Section 9 –
Identification parade – Delay in conducting – Mere delay is no ground to
reject the evidence about the identification of the accused – In the present
case even assuming that there was delay it has been explained by the
Judicial Magistrate and Investigation Officer.
21) When FIR is lodged against unknown persons TI parade is held for
the purpose of testing the veracity of the witness in regard to his capability
of identifying persons who where not known to him. (Ravi v. State ) (2010
3 SCC (crl) 730).
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
25 Indian Evidence Act
Observation of Criminal Court in civil Proceeding
1).Civil court is not bound by any observation made by criminal court – I)
S.Nachimuthu Gounder vs. Chellammal., 1997 Cr.L.J.(NOC) 190. Mad, ii)
Perumal v. Devarajan, AIR 1974 Mad 14)
2).An order Under Sec.125 of Cr.P.C does not prove marriage in Civil court,
but it is a piece of evidence. (Ashk v. usha) AIR 1984 Del.347.
3).Entries in note books and loose sheets kept in a file are not admissible –
Central Bureau of Investigation vs. V.C.Shukla) 1998 Crimes 219 (SC),
AIR 1998 SC 1406, 1998 Cr.L.J 1905 SC.
4).Admissibility of Judgment of a Criminal Court in civil case – Admission
made during criminal trial can be used in Civil Case also after giving an
opportunity to the maker to explain those admissions. (Seth Ramdayal Jat
vs. Laxmi Prasad) 2009 (11) SCC 545.
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Confession
1) Sec.24 & 27 – confession – evidentiay value – held, confessional
statement disowned by accused and unsupported by any witness cannot
be used for judging guilt and must be left out of consideration. 2011 (1)
SCC (crl) 646 = 2011 (2) SCC 188. (M.Nagehwar Rao vs. State of A.P)
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
26 Indian Evidence Act
2) confession when recorded according to law and a certificate about his
voluntary character appended – Magistrate need not be examined – Modi
Ganga vs. State of Orissa. (AIR 1981 SC 1165, 1981 Cr.L.J.628, 1981
SCC (Crl) 411, 1981 (2) SCC 224)
3) Time for reflection to accused – 24 hours time must be given. (Sarwan
Singh v. State of Punjab. - AIR 1957 SC 637, 1957 Cr.L.J.1014, 1957 SCC
699)
4) 2010 (1) .M.L.J. 583; - Extra Judicial Confession - A court can sustain
conviction on the confession if it inspires the confidence of the court.
Before doing so, the court must satisfy; the two tests. First, to whom and
under what circumstances the extra judicial confession was given.
Secondly, whether such evidence inspires the confidence of the court.
5) Timing of recording statement — not a ground for retraction :---The
Supreme Court in the case of Balakrishna v. State of West Bengal, AIR
1974 SC 120, in the context of S. 107 of the Customs Act, observed that
the provision is plain that an authorised custom official is entitled to
examine any person at any time, at any place in the course of enquiry.
May be, situations arise where failure to question a witness quickly may
mean irretrievable loss of a valuable material and S. 107 meets this need.
In view of above, it may not be possible to seek retrac-tion on the basis of
odd timing of recording statement alone, unless the statute provides
otherwise.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
27 Indian Evidence Act
6) The Madras High Court (Full Bench), in the well-known case of Roshan
Beevi v. Joint secretary to Govt. Tamil Nadu, Public deptt. — 1983
L.W. Crl. 289 : (AIR 1984 NOC 103), observed that any confessional
statement obtained from detainee by keeping him in prolonged custody
has to be regarded with grave suspicion, because there is always room for
criticism that such a confession might have been obtained from extorted
maltreatment or induced by improper means.
7) In holding that prolonged custody will vitiate the value of statement, the
Madras High Court referred to the case of Nathu v. State of Uttar Pradesh,
AIR 1956 SC 56, where the Supreme Court observed that the prolonged
custody may stamp the confessional statement so obtained as involuntary
one, and the intrinsic value of such a statement may be vitiated.
8) The FERA Board, in the case of Kishore Gordhanadas Tanna in Appeal
No. 69/1984 decided on 27-8-1984, has observed "thus recording late at
night the statement of persons by the officers of the department ipso facto
results in the exercise of undue influence and coercion on those persons,
and in such cases, the question of furnishing details regarding the type of
coercion or force used by the officers does not arise".
9) In Pangambam Kalanjay Singh v. State of Manipur, AIR 1956 AIR SC 9, it
had been earlier observed that if confession is retracted, it has to be corroborated
on the basis of independent evidence. In Pakani Swami v. State
of Tamil Nadu, AIR 1956 SC 593, the Court held that corroboration was
necessary when a suspicion was cast on the genuineness of a confession.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
28 Indian Evidence Act
10) In Puran v. State of Punjab, AIR 1953 SC 459, The SC observed that
it is a settled rule of evidence that unless a retracted confession is
corroborated in material particulars, it is not prudent to base a conviction in
a criminal case on its strength alone. In Bharat v. State of Uttar Pradesh,
(1971) 3 SCC 950, the Court observed that the Courts do not act upon a
retracted confession without finding assurance from some other source as
to the guilt of the accused.
11) In the case of Pyare Lal Bhargava v. State of Rajasthan, AIR 1963
SC 1094, the Supreme Court has summed up the position of retracted
confessions by observing that it is unsafe to rely upon a confession much
less on a retracted confession, unless the court is satisfied that the
retracted confession is true and voluntarily made and has been
corroborated in material particulars.
12) 2006 (1) SCC 714 Sivakumar Vs. State by Inspector of Police –
Extra judicial confession made before the village administrative officer is
admissible in evidence and this could be relied upon.
13) (2007) 4 Supreme Court Cases 257 - Crl. Appeal No.1228 of 2004 ,
Abdul Vahab Abdulmajid Shaikh and others Vs. State of Gujarat, Crl.
Appeal No. 129 of 2005, Abdul Vahab Abdulmajid Shaikh and others Vs.
State of Gujarat, Crl. Appeal No. 130 of 2005, State of Gujarat Vs. Yasin
Ganibhai Haveliwala and Others Crl. Appeal No. 1228 of 2004 with Nos.
129-30 of 2005, decided on April 24, 2007 --------- S.24 – Confession of
accused – Voluntary nature of - Determination of – Retraction at later
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
29 Indian Evidence Act
stage – Effect of – Held, merely because the confession was retracted
later; that does not mean that the confession was not voluntary in nature –
Whether the accused was willing to give confession voluntarily or not is to
be determined from his mental state at the time when he gave the
confession – In the present case, confession of accused recorded by Dy.
Commissioner of Police (DCP) under TADA Act – Accused had expressed
his willingness to make the confession – DCP took all precautions to
ascertain that the confession was voluntary – Confession recorded after
complying with all procedural formalities and these facts incorporated in
confessional statement – Before the Magistrate, accused had no case that
he was put under pressure or third-degree methods had been used
against him to extract confession – In view of the said facts, held, the
above confession was voluntary, truthful and admissible in evidence.
14) Supreme Court of India --- Criminal Appeal No. 1243 of 2006 ---
Judge(s): Harjit Singh Bedi & Chandramauli Kumar Prasad --- Date of
Judgment: 23 July, 2010 --Podyami Sukada Vs.State of M.P. (Now
Chhatisgar). Extra judicial confession : “evidentiary value of extra
judicial confession depends upon trustworthiness of the witness before
whom confession is made.”
15) Evidence Act – Sec.24- Retracted confession – conviction based
solely on retracted confession was opposed to law and could not be
allowed to stand – AIR 1953 S.C 411. Arjuna Lal Misra V. State of Orissa.
Date of Judgment.30.11.1950.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
30 Indian Evidence Act
16) Retracted confession – when may be relied on – Held, the same can
be relied on if made voluntarily – Burden of proving voluntary nature of
confession is on prosecution. ( Noor Aga vs. State of Punjab) 2010 (3)
SCC (cr) 748.
Sec.25 & 26
1). Sec .25 - 2008 (2).M.LJ. 326; - Evidence Act - Sec-25- Confession statement
to police officer - Can not be used during trial - However can be used if infavour
of the accused.
2) Confession to police officer – confessional statement of accused can be
referred in deciding nature of offence committed (Ganesan v. State) 2011 2 MLJ
Crl 546. Ms. Chitra venkatraman,J)
3) Distinction between Sec.25 & Sec.26 ; Commissioner of Police v. narender
Singh . AIR 2006 SC 1800, 2006 (4) SCC 265.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
31 Indian Evidence Act
Confession & recovery U/s. 27
1).The information must come from the accused in custody of police and
exact information given by the accused while is custody which leads to the
discovery of the articles have to be proved. (Bodhraj vs. State of J.K.) –
AIR 2002 SC 3164 = 2002 (8) SCC 45.
2).Witness to recovery is must – Premchand vs. State of Punjab. 1986
Cr.L.J. 1131.
3).2009.(4). MLJ. 1143--- I.P.C. - At the time of further cross examination all
the witnesses clearly given go bye to entire story of prosecution. -- 'Mere
recovery of weapons with reference to crime, the conviction can not be
sustained if they have no evidence to offer.'
4).2009 Cr.LJ (NOC) 1181 Mad.---- Non recovery of weapon of offence - Not
fatal to case.
5).2006 (2) CTC 650 (Mad) – Sampath Vs. The State rep. by Inspector of
Police, Kallal P.S. --- Failure on the part of the investigating agency to
recover non-incriminating materials from the scene of occurrence is
immaterial when there is eyewitness for occurrence.
6).Confession leading to recovery – material object recovered belatedly after
charge sheet filed. - whether can be used as a piece of evidence.
(A.Kuppan vs . State of T.N) 2011 1 MLJ (crl) 628. (M.Chockalingam,J)
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
32 Indian Evidence Act
7).2008 (2).M.L.J. 1714 - Recovery of incriminating objects -Respectable
independent witnesses of locality not summoned as witness- only V.A.O's
Summoned - No manifest error or illegality commited by inspector of
police-By failure to summon respectable independent witnesses of locality,
earliar recovery not vitiated - Requirement , Court, to be cautious in
evaluating the evidence - said PWS not having special interest or have
anything againt accused - Their evidence acceptable.
8).AIR 2007 Supreme Court 2531-- Swamy Shraddananda alias Murali
Manohar Mishra Vs. State of Karnataka - Disclosure Statement – Fact
discovered – Included place from which object is produced and knowledge
of accused as to it – Murder case- Deceased buried in a big court-yard –
Accused pinpointing exact place of burial – Also marking that place –
Skeleton of deceased exhumed from marked place – This part of
confessional statement before police – Is admissible.
9).Section 27 starts with the word `provided'. Therefore, it is a proviso by way
of an exception to Sections 25 and 26 of the Evidence Act. If the facts
deposed under Section 27 are not voluntary, then it will not be admissible,
and will be hit by Article 20(3) of the 38 Constitution of India. [See State of
Bombay vs. Kathi Kalu Oghad, [AIR 1961 SC 1808].
10). The Privy Counsel in Pulukori Kottaya vs. King Emperor, [1947 PC
67] held that Section 27 of the Evidence Act is not artistically worded but it
provides an exception to the prohibition imposed under the preceding
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
33 Indian Evidence Act
sections. However, the extent of discovery admissible pursuant to the facts
deposed by accused depends only to the nature of the facts discovered to
which the information precisely relates.
11). 2010 MLJ (Cri) 452 (SC) - Sec.27 - Reliability of materials
discovered pursuant to facts deposed by accused in police custody. The
limited nature of the admissibility of the facts discovered pursuant to the
statement of the accused under Section 27 can be illustrated by the
following example: Suppose a person accused of murder deposes to the
police officer the fact as a result of which the weapon with which the crime
is committed is discovered, but as a result of such discovery no inference
can be drawn against the accused, if there is no evidence connecting the
knife with the crime alleged to have been committed by the accused.
(Musheer Khan v. State of M.P.) Asok Kumar Ganguly,J. 28.1.2010.
12). Admissibility of recoveries in evidence made pursuant to disclosure
by accused – No confessional statement made to police was relied upon
by courts below to convict accused but only objects recovered in
furtherance of statement of accused were relied upon to complete chain
events – moreover the said objects were duly identified by owners during
investigation as well as during trial – hence, recovered objects were
admissible. ( Sanatan Naskar v. State of W.B) 2010 (3) SCC (crl) 814.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
34 Indian Evidence Act
Sec.30
1).2008 (1) MLJ 427 = 2008 (1) MLJ 193 =AIR 1992 SC 3258 – Unless
jointly tried, confession of co-accused cannot be used.
2).2008 (2).M.L.J. 53 – Confession by A-6 Implicating himself and A-l and A-
2 -Judicial Confession of A-6 Inculpatory in nature- Confession of A-6
Proved - Can be taken in to consideration against Al- and A-2
3).2008 (1) MLJ. 142 (SC) (K.G.Balakrishnan and G.P.Mathur,JJ). 24.4.2007.
Prakash Kumar @ Prakash Bhutto and others and state of Gujarat. -- The
confession of a co-accused by itself is not sufficient to hold other accused
guilty: Rule of prudence requires the Court to seek corroboration to test its
veracity.
4). (2007) 1 MLJ (Crl.) 279 --- Valarmathi Vs. State – Sec.30 – Extra-judicial
confession of co-accused – Evidentiary value of – Confession given by coaccused
cannot be treated as evidence against the other accused unless
it is proved – It is admissible only as a corroborative piece of evidence.
5). (2008) 1 MLJ (Crl) 427 – Mohammed Ashan Vs. Senior Intelligence
Officer, Directorate of Revenue Intelligence, Chennai-17 ---- Section 30 –
Allegation that accused No.1 and 2 were found in possession of heroin
supplied by Accused No.3 – Complaint filed in the year 1993 – Case
against some accused persons split up and ended in acquittal – Not
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
35 Indian Evidence Act
challenged – Absconding accused No.3 arrested in a different case at
Karnataka – Except the retracted confession of the co-accused, no other
incriminating materials – Quash petition filed – Objection that the accused
should face trial, cannot be entertained – No material to frame the charges
– Confession of co-accused cannot be used, unless jointly tried-
Proceedings quashed – Petition allowed. RATIONES DECIDENDI –
“When the case against the split up accused ended in acquittal, there is no
purpose in conducting trial against others on the basis of the confession of
the co-accused which is inadmissible in evidence unless, jointly tried.”
============================================================
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
36 Indian Evidence Act
Dying Declaration
1).Dying Declaration and ability to talk – the patient must be able to speak. 1)
Padman vs. State of Orissa- 1981 SCC (crl) 362. ii) Om Prakash vs. State
of Punjab, AIR 1992 SC 138, 1992 Cr.L.J. 3935, 1992 SCC (crl) 848., iii)
Prakash vs. State of M.P., AIR 1992 SC 65, 1992 Cr.L.J. 1127, 1987 92)
SCC 627, 1987 SCC (crl) 43. iv) Harda vs. State of M.P. , 1989 Cr.L.J.
1058, v) V.s.More vs. State of M.H., AIR 1978 SC 519, 1978 Cr.L.J 644,
1978 (1) SCC 622.
2).Conviction and sentence on sole basis of dying declaration – no doubt
with regard to truthfulness of dying declaration – conviction of accused
proper. (Chirra Shivraj v. State of A.P) (Anile R. Dave,J) 2011 1 MLJ (crl)
812 (SC).
3).Dying Declaration – necessary condition of death failing which statement
would be inadmissible. (S.Arul Raja vs. State of T.N) 2010 4 MLJ 67 SC. –
Supreme court of india -- criminal appeal no.699 of 2008 --judge(s): aftab
alam,deepak verma----date of judgment: tuesday, december 15, 2009 ---
sharda versus state of rajasthan. --- Dying declaration - First two dying
declarations exonerating appellant-mother-in-law, stating death to be
accidental - First dying declaration corroborated by evidence of PW 31,
doctor and PW 22, ASI - Both statements recorded on 16.8.1999, date of
incidence, in quick succession - Third dying declaration made on 19.8.99
to Magistrate wherein appellant-mother-in-law stated to have set
deceased ablaze - Both Trial court and High Court on relying upon third
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
37 Indian Evidence Act
declaration, convicting appellant. Held, the fact that last dying declaration
has many over-writings and some dates have been scored out to put new
dates, creates doubt as to its veracity. It was recorded few days later as
compared to the earlier statements which were recorded on the same day.
Second dying declaration was signed by father of the deceased but he
never objected to such statement having not been made by deceased. His
explanation that at the time of discharge while signing many papers, he
signed the declaration also without knowing the contents cannot be
accepted. Further police complaint was made only on 19.8.1999 and he
kept silent between 16.8.1999 to 19.8.1999. Hence, Exh. P 18 being
unreliable cannot sustain appellant's conviction.
4).2009 (4) .M.L.J. 839 - Evidence Act - Sec-32 - Dying declaration - When
the accused who gave the dying declaration survived, the dying
declaration can be construed as extra- judicial confession and since it was
made to the Executive Magistrate himself, it can be construed as made 'in
the immediate presence of a Magistrate' and as such, the same is
admissible in evidence.
5).Admissibility of statements under Section 32, Evidence Act -In Vinay D.
Nagar v. State of Rajasthan, Criminal Appeal No. 210 of 2007 the
statement made by the deceased under Section 161 Cr PC indicating the
involvement of the appellant in the abduction of a boy has no remote
connection or reference to the death of deceased. It was thus held
inadmissible under Section 32 of Evidence Act. The court’s observations
are noteworthy:“The statement recorded by the police although could be
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
38 Indian Evidence Act
proved as there would not be any bar under Section 162 Cr PC for proof of
such statement, but it would not be admissible under Section 32 of the
Evidence Act, and thus it could not have been relied upon by the
prosecution to prove the motive for commission of the crime by the
accused appellant.”
6).The prosecution case was that it was to avoid the deceased giving
evidence against the appellant in the abduction case that he came to be
killed. [Vinay D. Nagar v. State of Rajasthan, Criminal Appeal No. 210 of
2007, decided on March 3, 2008]
7).Veracity of Dying Declarations:- The court held that it is not necessary that
the dying declaration should be recorded by a magistrate of course if it is
so done it will add to its veracity but when two dying declarations were
consistent they were held to be reliable. [Rajendra & Ors. v. state of
Maharashtra, Cr. App. No. 1619 of 2005 decided on July 27, 2006.]
8).Dying declarations in dowry death cases -In Sher Singh & Anr. v. State of
Punjab, Criminal Appeal No. 646 of 2006 the Supreme Court detailed the
admissibility of dying declaration thus: “Normally, the court places reliance
on the medical evidence for reaching the conclusion whether the person
making a dying declaration was in a fit state of mind, but where the person
recording the statement states that the deceased was in a fit and
conscious state, the medical opinion will not prevail, nor can it be said that
since there is no certification of the doctor as to the fitness of mind of the
declarent, the dying declaration is not acceptable. What is essential is that
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
39 Indian Evidence Act
the person recording the dying declaration must be satisfied that the
deceased was in a fit state of mind. Where it is proved by the testimony of
the Magistrate that the declarant was fit to make the statement without
there being the doctor’s opinion to that effect, it can be acted upon
provided the court ultimately holds the same to be voluntary and truthful. A
certificate by the doctor is essentially a rule of caution and, therefore, the
voluntary and truthful nature of a statement can be established
otherwise.” [Sher Singh & Anr. v. State of Punjab, Criminal Appeal No. 646
of 2006, decided February 15, 2008]
9).Dying declaration - Not accepted – A dying declaration retracted by the
maker in Anil Prakash Shukla v. Arvind Shukla, Cr. Appl. No. 830 of 2002
came to be rejected both by the High Court and the Supreme Court. In this
case the magistrate who recorded the declaration did not appear to give
evidence. [Anil Prakash Shukla v. Arvind Shukla, Cr. Appl. No. 830 of 2002
decided on May 1, 2007]
10). Ravi Kumar alias Kutti Ravi v. State of Tamil Nadu Cr. App. No. 630
of 2005 Decided on 22nd Jan, 2006 – The death of a lady was caused by
pouring kerosene on her and burning. She gave a dying declaration
naming the accused. The defense argument that her dying statement was
in Telegu and was translated into Tamil by the doctor hence it may not be
admissible was set aside by the court. The other argument that in the
hospital entry register it was initially registered as a cause of suicide was
also rejected as the doctor put the defense that the deceased’s father was
not clear about the event when he brought his daughter to the hospital
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
40 Indian Evidence Act
hence for the sake of entry the doctor registered it as suicide. But after
getting a clear picture of event, he erased the same and noted
accordingly. Hence the Supreme Court upheld the conviction of the
accused.
11). More than one D.D – In this case there were two dying declarations
though one was made before the Magistrate. But the forensic expert
opinion which remained unimpeached raised doubt as regards the
condition of the deceased to make a voluntary and truthful statement. After
examining the case law the court came to the conclusion that “the dying
declaration must inspire confidence so as to make it safe to act upon.
Whether it is safe to act upon a dying declaration depends upon not only
the testimony of the person recording dying declaration – be it even a
magistrate but also all the material available on record and the
circumstances including the medical evidence” (Emphasis supplied). And
the court refused conviction on the basis of dying declaration. [Nallapati
Sivaiah v. Sub-Divisional Officer, Guntur, A.P., Cr. App. No. 1315 of 2005,
decided on September 26, 2007]
12). The court held that dying declaration is only a piece of untested
evidence and must like any other evidence, satisfy the court that what is
stated therein is the unalloyed truth and that is absolutely safe to act upon
it. If after careful scrutiny the court is satisfied that it is true and free from
any effort to induce the deceased to make a false statement and if it is
coherent and consistent, there should be no legal impediment to make it
basis of conviction. The court in this case convicted the accused for life
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
41 Indian Evidence Act
imprisonment under section 302 on the basis of dying declaration. [Smt.
Shakuntala v. State of Haryana, Cr. Appeal No. 376 of 2002 decided on
July 27, 2007]
13). Inconsistencies in Dying Declarations - Benefit of doubt to be given
to accused -The accused in Mehiboobsab Abbasabi Nadaf v. State of
Karnataka, Criminal Appeal No. 130 of 2006 was given benefit of doubt
because of the inconsistencies in the different dying declarations made by
the deceased.
14). About the acceptability of dying declaration the Court's observation
are illustrative. The Court said:--"Conviction can indisputably be based on
a dying declaration. But before it can be acted upon, the same must be
held to have been rendred voluntarily and truthfully. Consistency in the
dying declaration is the relevant factor for placing full reliance thereupon.
In this case, the deceased herself had taken contradictory and
inconsistent stand in different dying declarations. They, therefore, should
not be accepted on their face value. Caution, in this behalf, is required to
be applied." [Mehiboobsab Abbasabi Nadaf v. State of Karnataka, Criminal
Appeal No. 130 of 2006 decided on August 1, 2007]
15). Dying Declaration not to be disregarded easily.-- The Supreme Court
held that the high court found fault with the dying declaration only because
he did not mentioned PW3 i.e. his son was also there. The court felt the
high court erred in this and restored life imprisonment given by trial court.
[Heera Lal Yadav v. State of M.P. & Ors. Cr. App. No. 546 of 2000 decided
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
42 Indian Evidence Act
on July 4, 2006]
16). 2010 (1) M.L.J. 460 Evidence Act - When the defacto complaint died
subsequent to the registration of the case and before the trial was started,
the statement given by him can be sought to be introduced in evidence by
virtue of sec.32 of the Indian evidence Act, provided it falls within any one
of the eight categories enumerated in the said section . When it does not
fall within those categories, convicting a person merely relying on an
averment made in the complaint without the same having been proved by
reliable evidence shall not be in accordance with law.
17). 2007 (1) MLJ (Crl) 222 Ravikumar @ Kutti Ravi Vs. State of Tamil
Nadu --- Dying declaration reveals accused lit fire on the deceased –
Accident Register indicates self-immolation – Contradictions – Effect of –
Doctor who made entry, explained his position that such entry was made
on presumption since cause of injuries was not informed him at that time –
It was erased when he knows the correct state of affairs – Evidence of
Magistrate and Doctor is absolutely clear and unambiguous – Defence
version of suicide cannot be accepted on the face of two dying
declarations of the deceased recorded by Magistrate and Police Head
Constable.
18). (2008) 2 SCC 516 (SC) Vikas and Others Vs. State of Maharashtra
Dying declaration – Bride burning – Contradictory dying declarations –
Credibility of evidence recorded by Magistrate over other dying
declarations – Evidentiary value of dying declaration recorded by a
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
43 Indian Evidence Act
competent Magistrate having no animus and not being an interested
witness, reiterated, would stand on a much higher footing.
19). 2006 (3) SCC 161 P. Mani Vs. State of Tamil Nadu - Conviction can
be recorded on the basis of the dying declaration alone but the same must
be wholly reliable. In a case, where suspicion can be raised as regards the
correctness of dying declaration, the court before convicting the accused
on the basis therefore would look for some corroborative evidence. If
evidence brought on records suggests that such dying declaration does
not reveal the entire truth, it may be considered only as a piece of
evidence, in which event conviction may not be rested only on the basis
thereof.
20). Executive Magistrate recorded the dying declaration, not obtaining
certificate from medical officer but ascertaining from PW-7 doctor that
deceased was in a fit state of mind to give statement – held, certification
by doctor can be a rule of caution and therefore, vouluntary and truthful
nature of declaration can be established otherwise. (Govindappa vs. State
of Karnataka) 2010 (3) SCC (crl) 184.
21). Non-examination of doctor before whom declaration recorded and
certified the condition of the victim – effect – explanation for nonexamination
– importance of. (nallapati sivaiah vs. SDO, 2010 (3) SCC
(crl) 560.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
44 Indian Evidence Act
22). Question -answer form – question were asked to which deceased
gave replies but statement of deceased was not recorded in question and
answer form – held, dying declaration need not be in question -answer
form. (amarsingh Munnasingh Suryawanshi vs. State of M.H) 2010 (3)
SCC (crl) 553.
23). Maker of Dying declaration not dying – admissibility of such
statement – Held, for statement to be admissible in evidence as dying
declaration, person making statement should no longer alive. (S.Arul Raja
vs. State of T.N) 2010 (3) SCC (crl) 801.
24). Statement before Magistrate in anticipation of death – statement
recorded under S.32 – injured witness survived – Held, in such eventuality
statement so recorded has to be treated as of superior quality / higher
degree than a statement recorded under S.161 Cr.P.c can be used as
provided Under Sec. 157 of Evidence Act. (Ranjit singh and others vs.
State of M.P) 2011 (2) SCC (crl) 227 = 2011 4 SCC 336.
25). Dying declaration – credibility – police personnel, if may record –
Held, there is no mandatory requirement that dying declaration has to be
recorded by any designated or particular person – it is only to eliminate
chances of any doubt or false implication by prosecution, that such
declaration should be recorded by a Magistrate or by a doctor – DD
recorded by Head constable after declared that the victim is fit to make
statement by doctor – reliable. (2011 (1) SCC (crl) 352 = 2010 (12) scc
277. (Dhan singh vs. State of haryana)
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
45 Indian Evidence Act
Sec.35 -Entries made in public Documents.
The entries made in public documents are a relevant fact and thus admissible in
a court of law subject to the following three conditions:
1. That the entry must be one in any public or official book, register or record;
2. It must be an entry relating to a fact in issue or relevant fact;
3. It must be made by a public servant in the discharge of his official duty
specifically enjoined by law.
As no definition is given in the Act, for expressions 'public' or 'official book',
reference can be given to Sec.74 of the Act, which states, what are public
documents. Birth and death registers, marriage register, school registers,
electoral roll, record of rights, revenue records, mutation entries, gazetteer,
F.I.R. and case diary, charge sheet, etc are examples for public documents,
register/records. A document admissible in evidence under this provision would
automatically not be credible simply because it had been admitted as evidence.
Such document would be considered subject to relevancy and by assessing the
evidence as a whole and not in isolation.
Now the moot question is what is the probative value of entries made in public
documents? It has to be clearly understood that the probative value of a
document is different from its admissibility. In fact, the courts, while testing the
veracity of entries made in public documents, must find out its probative value
also. For example, an entry regarding date of birth made in the school register is
relevant and admissible under Sec.35 of the Evidence Act. But it would have
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
46 Indian Evidence Act
probative value only when it is made on the information given by parents or
some one having special knowledge of the fact. Truly speaking, it will have no
evidentiary value unless the person who made the entry or who had given the
information about the date of birth is examined. The failure to rebut the entries
made in public documents cannot increase the evidentiary value of those
entries.
The legal position in this regard is being settled by a Division Bench decision of
Supreme Court in Birad Mal Singhvi v. Anand Purohit, 1988 (Supp) SCC 606
para 14 (E.S.Venkataramiah and K.N.Singh, JJ). The Court observed:
"....The entries regarding dates of birth contained in the Scholar's register and
the secondary school examination certificate have no probative value, if no
person on whose information the date of birth of the candidate was mentioned in
the school record is examined. The entry contained in the admission form or in
the scholar's register must be shown to be made on the basis of information
given by parents or a person having special knowledge about the date of birth of
the person concerned. If the entry is made on the basis of information given by a
stranger or by someone else who had no special means of knowledge of the
date of birth, such entry will have no evidentiary value....".
The principle enunciated through this decision is being followed in a catena
decisions of the Apex Court. A few of such decisions are Desh Raj v. Bodh Raj
(2008) 2 SCC 186 Para 25and 26, State of Punjab v. Mohinder Singh, (2005) 3
SCC 702, Maduri Patil v. Addl.Commr.Tribal Development, (1994)6 SCC 241.
Moreover, evidentiary value of entries in public documents will not be presumed
to be correct if they are shown to be not correct by the evidence produced.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
47 Indian Evidence Act
The point law in this aspect is discussed by Apex Court in Sita Ram Bhau Patil
v. Ramchandra Nago Patil, AIR 1977 SC 1712, para 20, (A.N.Ray, M.H.Beg and
P.S.Kailasam JJ). The Court observed: " ....There is no abstract principle that
whatever will appear in the record of rights will be presumed to be correct when
it is shown by evidence that the entries are not correct...."
1).Birth Register extract obtained from municipality is a valuable piece of
evidence as regards age of victim. (anandhan vs. State) 1995 Cr.L.J. 632.
2).Sec.35- Evidence Act - Sec.363 and 366(A) .I.P.C - Offence of kidnapping
a minor -Proof of age of minor - Entry in school register - Admissible in
evidence- Due weight should be given it. 2008 (3).M.L.J. 905 (SC)
3). Relevance of entry in public records – entry in respect of age – Register of
Municipal corporation, Government Hospital, nurshing home should be
relied and entry in the school record is to be discarded – admissibility of
entry of school register / certificate to be proved in accordance with law.
(Satpal Singh v. State of Haryana) 2010 4 MLJ 685 SC = 2010 (3) SCC
(crl) 1081.
4).Relevancy of entry in public record – determination of age – school
transfer certificate to be admissible in evidence – Evidenciary value given
only on examination of person who made or gave such entry. ( alamelu vs.
State) 2011 2 MLJ (crl) 78 (SC). Surinder singh Nijjar,J.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
48 Indian Evidence Act
Sec.41
1).2009 (4) .M.L.J. 1045 (SC)-- Indian Evidence Act - Pendency of two
proceedings whether Civil or Criminal would not attract the provisions of
sec.41 of the Evidence Act. A judgment has to be pronounced. The
genuiness of the will must be gone into. ii) A Criminal proceeding will have
primacy over the civil proceeding. Precedence to a Criminal proceeding is
given having regard to the fact that disposal of a civil proceeding ordinarily
takes a long time and in the interest of justice the former should be
disposed of as expeditiously as possible.
2).2008-2-L.W. 447 Thiruvengada Pillai Vs. Navaneethammal & another -
Agreement/Genuineness, dispute as to, power of Court to compare thumb
impressions, Scope, Specif Performance, Practice, Evidence Act(1872),
Section 45/Expert opinion, Section 73, (Indian) Stamp Act (1899), Section
54/Stamp paper, Use of, within six months whether necessary, Expiry
date, Section 35, 37/Admissibility of agreement in payment of duty and
penalty. – ii) (Indian)Stamp Rules (1925) applicable to Tamil Nadu –
Rules do not contain any provision that the stamp papers of required value
should be purchased together from the same vendor with consecutive
serial numbers – Rules merely provide that where two or more sheets of
paper on which stamps are engraved or embossed are used to make up
the amount of duty chargeable in respect of any instrument, a portion of
such instrument shall be written on each sheet so used – Document
cannot be termed as invalid merely because it is written on two stamps
papers purchased by the same person on difference dates.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
49 Indian Evidence Act
Expert Opinion
1).2010 (1) .M.L.J. 429 – when hand writing expert is not well versed in the
language mentioned in documents it would be better that documents are
compared by a handwriting expert who knows the said language.
2).Expert witness is a weak type of evidence. The court do not consider it as
conclusive. It is not safe to rely upon it without seeking independent and
reliable corroboration. (S.gopal Reddy vs. State of A.P.) 1996 Cr.L.J. 3237
(SC).
3).Conviction solely on experts opinion – particularly on handwriting experts
is not permissible. (Magan Behari Lal vs. State of Punjab) AIR 1977 SC
1091 = 1977 Cr.L.J. 711 (SC).
4).2010 (1) CTC 424 (Justice S.Nagamuthu) R. Jagadeesan Vs N.Ayyasamy
and another – Section 45 – Expert Opinion – Age of writing – Duty of Court
– Non-availability of scientific method – Sending documents for opinion in
respect of age of writing is only futile – Direction not to send documents
henceforth unless new methods are invented to find out age of writings
was issued.
5).2008) 8 MLJ 299 – R. Elango Vs. K. Dhanasekaran and Others – Section
45 - Comparison of signature - Opinion of handwriting expert- If the
request for comparison of signatures, is made before commencement of
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
50 Indian Evidence Act
trial, the request shall be accorded - Party may state his/her own choice of
expert - Opinion of handwriting expert is of weak value and it shall be
considered along with other evidence and materials An experts' opinion
does not impinge the power of the Court to compare the signatures -
Expert should be summoned to Court and he shall take photographs for
comparison - It is not lawful to send the documents away from the custody
of the Court - CRPs allowed.
6).2010 (1) CTC 424- R. Jagadeesan Vs N.Ayyasamy and another ---Section
45 – Expert Opinion – Age of writing – Duty of Court – Non-availability of
scientific method – Sending documents for opinion in respect of age of
writing is only futile – Direction not to send documents henceforth unless
new methods are invented to find out age of writings was issued. --- In
view of all the above, in my considered opinion, sending the documents for
opinion in respect of the age of the writing on documents should not be
resorted to hereafter by the Courts unless, in future, due to scientific
advancements, new methods are invented to find out the age of the
writings.
7).2009 (2) CTC 65. --- R.Regupathi,J. V.Srinivasan vs. E.S.Gunasekar.
3.2.2009. --- Sec.45 – proceedings pending under section 138 of N.I.Actaccused
seeking to send cheque to handwriting expert – defemce not
taken during initial questioning or during Sec.313, Cr.P.C questioning or in
reply to statutory notice – application, held, belated and liable to be
dismissed.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
51 Indian Evidence Act
8).Expert Opinion assists the Court in the matter of scientific nature. Expert
gives opinion for the matter after assessing it. This opinion is not binding in
nature and is merely advisory. Only an opinion is to be given and not a
conclusion of matter by an expert. It should be of corroborative nature to
facts and circumstances of the case. If opinion contradicts an
unimpeachable eye witness or documentary evidence then it will not have
an upper hand over direct evidences. Expert opinion helps a Judge to form
an independent opinion in every mater. Section of the Act does not provide
for any specific attainment, study of experience for an expert. Experts are
admissible as witness but, they are not to make conclusion as it is a
judicial function. Experts have to state the facts, which he has seen, heard
or perceived through his/ her sense. They are not helpful to Court in the
interpretation of law. It is weak evidence.[ Field’s, Commentary, “Law of
Evidence”, Delhi Law House, 12th Edition, Volume 3]
9).To be appointed as expert one must have attainment in professional
qualification. Some professional experience or should have made special
study in subject. He must prove himself as an expert before Court. Some
training must have been practiced by expert into that scientific field or has
special knowledge of that field. Or, if he has made some observation in
that field.[ Ratanlal and Dhirajlal, “The Law of Evidence”, Wadhwa &
Wadhwa Company, 21st Edition, Lawyers Edition]
10). Opinion is sought so that the court is able to assess evidence with a
reasonable degree by relying on its own experience. But in some cases
the Court is not able to come to a conclusion on the basis of its experience
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
52 Indian Evidence Act
as because Court is ill equipped. And, for that opinion of an expert is being
sought.
11). It is for Court to decide that if case partakes character of science or
art and possessing knowledge of that specific subject is a must for that
case to be adjudged then expert opinion is to be sought. So when subject
matter of courts inquiry is of such a scientific nature then the Court takes
the Technical assistance in that field. Once the opinion is admitted by the
Court then it is no more an Expert’s opinion but the opinion of Court. And
these opinions are not authoritative in value but they are persuasive.
[Bachraj Factories Ltd v. Bombay Telephone Co. Ltd., AIR 1939 Sind 245].
12). When there is a conflict between the opinion evidence and oral
testimony of the evidence, then evidence can be assessed in two ways.
The first method can be applied only in those cases where the oral
evidence is above reproach and creates confidence and there is no false
no appreciable reason for the false application of any accused. Where the
evidence is not of that character and the opinion evidence is not open to
any doubt or suspicion, the only safe and judicial method of assessing
method is the second method.[ Thakurs and others v. State AIR 1955 all
189]
13). Various rules for expert opinion are: - The first rule is of Experts
educational background. That means even the doctor is examined and is
subjected to scrutiny and cross examination. And if his opinion and
observations contained in his statement are supported then the report can
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
53 Indian Evidence Act
be looked at otherwise not. So even the examination of Doctor becomes
essential.[Dhobi Yadav v. State of Bihar AIR 1989 (2) , Cr. L.C., 629 at p
641 (patna) ] ii) The second test is of the exhibits and the illustrations
that the expert brings with him or makes. He should not base his opinion
on the basis of memory and abbreviated notes. But he should have the
opinion of such a level that even if there is an expert evidence of the
opposite party then also he is able to defend his stand. Iii) The third test
is of readiness to detail his techniques and procedures. As an expert
should not be of skipful nature as to outlining his procedures that he has
followed. And he should be so confident that no qualms can say that he
has skipped procedures in reaching to his conclusions.[From Evidence to
proof, by Marshall Honts, pp.130, 131] iv) And the conclusive test is
that an Expert is conservative and is cautious. And phrases his conclusion
that in all probabilities the offence was committed by the accused only.
[From Evidence to proof, by Marshall Honts, pp.130, 131]
14). It is a well settled principle that the opinion of an Expert should be
taken with a great caution and moreover the decision should not be based
simply on the basis of the opinion of an Expert, without a substantial
corroboration, as it is unsafe otherwise. Opinion of an Expert by its very
nature, weak, and infirm and in itself cannot of itself form the basis for a
conviction and should be taken with a great caution[Magan Bihari Lal v.
State of Punjab AIR 1977 SC 1091].
15). It is their duty of court not to occupy the role of an expert by
themselves and S.C. has always deprecated the courts to take the role of
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
54 Indian Evidence Act
an expert. But, before applying the opinion of an expert the court has to
see to apply its own admitted or proved things and compare them with the
disputed ones. And they have to verify the premises of the expert in one
case and value the opinion in the other case[ Joginder Prasad v. Joy kanta
Roy AIR 1971 Assam 168].
16). When the direct evidence is well corroborated by the circumstantial
evidence and conforms to probabilities, there is no reason why it should
not be accepted. The mere fact that the expert has come to a different
conclusion on a particular point would not render that part of his story
open to doubt especially when the data on which the expert has come to
that conclusion is insufficient. The data on which the expert weigh must
weigh with the Court and the opinion of the expert must be judged in the
light thereof.[Brij Basi v. Moti Ram AIR 1982 All 323 at p 321]
17). (2008) 8 MLJ 299 ---R. Elango Vs. K. Dhanasekaran and Others
---Indian Evidence Act (1 of 1872), Section 45 - Comparison of signature -
Opinion of handwriting expert- If the request for comparison of signatures,
is made before commencement of trial, the request shall be accorded -
Party may state his/her own choice of expert - Opinion of handwriting
expert is of weak value and it shall be considered along with other
evidence and materials An experts' opinion does not impinge the power of
the Court to compare the signatures - Expert should be summoned to
Court and he shall take photographs for comparison - It is not lawful to
send the doc u ments away from the custody of the Court – CRP’s
allowed. RATIO DECIDENDI --"If a party to a suit seeks opinion of the
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
55 Indian Evidence Act
handwriting expert, before commencement of trial, the same shall be
accorded. Party can suggest his choice of expert. Expert opinion is of
weak evidentiary value and can be considered along with other evidence.
An expert never supplants the view of the Court. Original documents
should not be sent out of the custody of the Court. Expert can be
summoned to take photographs for comparison. "
18). 2006 (4) CTC 850 --- N. Chinnasamy Vs. P.S. Swaninathan –
Sections 45 & 73 – Principles regarding Examination of Documents by
Handwriting Expert or other Experts – Section 73 authorises Court to
compare disputed signature with admitted signature and arrive at own
conclusion regarding genuineness of signature but it is always safe to take
aid of handwriting expert to scientifically compare such handwriting with
reasons – Documents should be examined in Court premises in presence
of responsible officer of Court and sending original document in custody of
Court to Handwriting Expert is bad procedure and where it is necessary to
send it to expert Application under Section 73 or 45 should be treated as
Application for appointment of Commissioner and expert should be
directed to conduct examination of document in presence of
Commissioner and expert could be given photo copies of documents if he
inspects same in Court premises in presence of responsible officer of
Court – Applications filed belatedly is objectionable – Appellate Court
could seek expert’s opinion even if Trial Court had compared signature
and arrived at some conclusion – When defendant disputes signature in
document relied on by plaintiff it is for plaintiff to take steps for examination
of disputed signature by sending document to handwriting expert –
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
56 Indian Evidence Act
Defendant filed written statement disputing signature in agreement and
five years thereafter filed Application to send document for comparison by
expert with admitted signature without referring to any document
containing admitted signature – Dismissal of Application by Trial Court
upheld.
19). 2009 (4) .M.L.J. 551(SC) - Sec.45 - A court is not found by the
evidence of the experts. which is to a large extent advisory in nature. The
court must derive its own conclusion upon considering the opinion of the
experts which may be adduced by both sides, cautiously and upon taking
in to consideration the authorities on the point on which he deposes.
20). (2008) 1 CTC 491 --- S. Gopal Vs. D. Balachandran – Sec. 45 –
Cheque admittedly signed by drawer cannot be sought to be analysed by
an expert for opinion as to age of ink used in cheque – Age of ink cannot
be determined by an expert with scientific accuracy and use of old ink on
purpose would only dent opinion of expert and result in further confusion.
Drawer of cheque admitting his signature in the cheque contending that
the same was a blank one and it was therefore required to be sent to the
expert for opinion with regard to the age of the ink to prove that the blank
cheque was misused. Magistrate dismissed the Application on the ground
that there was no necessity to send the cheque for expert opinion when
the accused had admitted the signature in the cheque. Held, age of the ink
cannot be determined by expert with scientific accuracy. Even then, if
there is use of old ink on purpose, it would result in only further confusion
and create a dent in the opinion of the expert. No necessity, therefore, for
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
57 Indian Evidence Act
sending disputed cheque admittedly signed by the drawer, to an expert for
opinion. Revision dismissed.
21). (2007) 1 MLJ ( Crl) 1297 -- P.R. Ramakrishnan Vs. P. Govindarajan
Section 45 – Code of Criminal Procedure, 1973 (2 of 1974), Section 243 –
Negotiable Instruments Act 926 of 1881), Section 138 – Trial for alleged
offence under Section 138 of Negotiable Instruments Act – Petition by
accused for sending disputed cheque for expert opinion – Dismissal of,
only on ground that it being belated one – Held, principle laid down by
Apex Court in Ms. Kalyani Baskar, (2007) 1 MLJ (Crl) 1020 (SC),
applicable – As such, disputed cheque, to be sent for comparison, if
relevant documents, produced.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
58 Indian Evidence Act
Medical Evidence
1). Medical evidence corroborating injured victim's evidence - (2011 (1) SCC
Crl. 401 = 2011 (1) SCC 793) Kailash and others vs. State of M.H.
2).Direct testimony of an eyewitness is preferable-- Upholding the
judgment of the High Court in Shyam v. State of MP through P.S. Bercha,
Cr. App. No. 215 of 2007, the Supreme Court observed thus:- “Over
dependence on such opinion evidence, even if the witness is an expert in
the filed, to checkmate the direct testimony given by an eyewitness is not
a safe modus adoptable in criminal cases. It has now become axiomatic
that medical evidence can be used to repel the testimony of eyewitness
only if it is so conclusive as to rule out even the possibility of the
eyewitness’s vision to be true.” [Shyam v. State of MP through P.S.
Bercha decided on February 15, 2007]
3).Medical evidence when specifically rules out the injury claimed to have
been inflicted as per the eyewitness' version, then the court can draw
adverse inference that the prosecution version is no trustworthy. (kapildeo
Mandal v. State of Bihar) 2010 4 SCC (crl) 203.
4).20091. M.L.J. 133-- Statements made to the doctor by on injured - witness
brought before him for treatment, as to the murder of persons involved in
the offence and their names entered in the accident register- Not relevant
evidence - May have no evidentiary value.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
59 Indian Evidence Act
5).1998 Crl.L.J. 3651 (kerala high court) S.Marimuthu,J. --- P.Johnson and
others v. state of kerala. ------ offence u/s.321 and 326 –non-examination
of doctor who took X-ray and non-production of X-ray report - criminal
liablity under sections 325 and 326 could be said to be not established.
6).2010. (1) MLJ. 859 (SC) I.P.C - Appreciation of evidence - Discrepancy
between ocular and medical evidence -In an incident when killing of so
many persons takes place, it would be difficult for a witness to remember
with precision the kind of weapon used by a particular Accused, Such
evidence of witnesses is not liable for rejection an hypothetical so-called
medical discrepancy.
7).2009 3 MLJ Crl. 1132 (SC). S.B.Sinha and H.S.Bedi,JJ. 31.3.2008.
Shivappa and others and State of Karnataka. Medical opinion is
admissible in evidence like all other types of evidences. There is no hard
and fast rule with regard to appreciation of medical evidence. It is not to be
treated as sacrosanct.
8).Medical Evidence vis-a-vis ocular evidence – if contradictory – effect of –
principles reiteratted. (2010 (3) SCC (crl) 1262, Abdul Sayeed v. State of
M.P)
9).Medical evidence vis-a-vis ocular evidence – contradiction in – acquittal
confirmed – accused 2 & 4 said to have used stone and stick – trial court
acquitted as there was no evidence of deceased being hit by stone and
stick – injuries did not correspond to weapons allegedly used by accused
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
60 Indian Evidence Act
– acquittal confirmed. ( Chakali maddilety & others vs. state of A.P) 2011
(2) SCC Cri. 445 = 2010 12 SCC 72.
10). 2006 (1) MLJ (Cri) 188 S.C Vishnu alias Undraya Vs. State of
Maharashtra – Medical witness as an expert to assist the court to
determine the age of the victim in a rape case is not a witness of fact and
the evidence given by the medical expert is really of an advisory character,
and if the opinion is accepted by the court, it is not the opinion of the
expert but a finding of the court.
11). 2006 (2) CTC 831 (Mad) Ganesan Vs. The State rep. by Inspector of
Police, Erode Taluk P.S. When ocular evidence is credible and cogent,
medical evidence to the contrary cannot corrode evidentiary value of
ocular evidence, especially when in case of rape, prosecutrix has come
forward with such case sacrificing her future prospects of marriage.
12). Relying on doctor's version contention that the death was not due to
any injury but it was due to cardiac arrest and respiratory failure as a result
of tetanus – Held, doctor's evidence was by way of hypothetical answer
that the death would not occur because of the injuries received by a shrapedged
weapon – hence contention rejected. (Ganesh vs. State of
karnataka) 2010 94) SCC (crl) 474.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
61 Indian Evidence Act
S.57 – Judicial notice.
AIR 2007 Supreme Court 2369
Smt. Ass Kaur ( Deceased) by L.Rs. V. Kartar Singh (Dead) by L.Rs. & Others
Evidence Act (1 of 1872), S.57 – Judicial notice – Custom – Court can take
judicial notice – When custom has been repeatedly recognised by Courts –
Proof thereof, not necessary.
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(2007) 5 MLJ 1273 (SC)
Ganmani Anasuya and Others Vs. Parvatini Amarendra Chowdhary and Others
Indian Evidence Act (1 of 1872), Section 58 – Suit for partition – Admission by a
party – May be used against such party – Joint business venture – Suit for
partition – Share of immoveable property and for accounts of joint venture -
Statement of account by one party – Preparation from books of account –
Admission to be in his signature – Plea of settlement of accounts – Half share in
another property of business – Same fraction in the business also – Question of
settlement of accounts, share in partition and limitation for relief of accounts –
Not considered in the judgment under appeal – Remanded for decision on all
points.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
62 Indian Evidence Act
Hearsay Evidence
1) Sec.60 – Evidence of Police officer as to receipt of information to him
given by some other person – that some other person when is not
examined, the evidence about information is not admissible. (Bhugdomal
vs. State of Gujarat. (AIR 1983 SC 906, 1983 Cr.L.J. 1276, 1984 (1) SCC
319.
2) Sec.60- hearsay evidence – reliance on contemporaneous newspaper
publications Exts. P-5 & P-6 for corroborating oral testimony – Held,
impermissible since reporters of Exts.P-5 & 6 had categorically stated that
they had no personal knowledge of events published therein. (2011 (1)
SCC (crri) 423 = 2011 (1) SCC 503. (Joseph M.Puthussery vs. t.S.John)
3) Hearsay evidence can be used only to corroborate the substantive
Evidence. (Pawan Kumar vs. State of Haryana) AIR 2003 SC 2987 = 2003
(11) SCC 241 = 2004 SCC (crl) 109 = 2003 Cr.L.J 3553.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
63 Indian Evidence Act
Succession Act (39 of 1925), S. 63 – Evidence Act (1 of 1872) , S.68
1). 2007 (5) CTC 318 – J. Mathew (died) and Others Vs. Leela Joseph
---Section 63 & 68 – Proof of signature on Will and proof of attestation thereof by
two attesting witnesses may not amount to proof of execution of Will –
Propounder of Will is required to prove that Testator has signed Will after
understanding contents thereof or after understanding nature of disposition –
Execution of Will can be proved by direct evidence such as evidence to effect
that Testator himself had written Will or Will has been scribed or typed according
to instructions of Testator or that Will has been read over and explained to
Testator whereafter he puts his signature – It can also be proved by indirect
evidence by examining person who was present at time of execution of Will or
scribe or attesting witness would testify that Testator had given such instructions
or understood its contents – It can also be proved from other surrounding
circumstances – Registration of Will has some value but cannot lead to
inexorable conclusion that due execution of Will is proved and it is genuine –
Will contained endorsement that it had been prepared by Testator himself and
he was conversant with English and Testator's friend examined as Defence
Witness admitted in examination that Testator had talked to him about execution
of Will that forms the subject matter of Suit – Attestation of Will by person known
to Propounder and coming from some other place would not impeach execution
of Will and such circumstance had been explained by Propounder – Nature of
disposition disclosed no partial disposition – Will held to be proved.
2) . AIR 2007 Supreme Court 2219 - Apoline D'Souza Vs. John D'Souza-- Will –
Execution of – Suspicious circumstances – Testatrix 96 years old lady – Scribe
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
64 Indian Evidence Act
of will not known – Attesting witness not know to testatrix and stated that Will
was not drafted before her – She had only proved her signature – As per said
witness document was handwritten one – Whereas Original Will is typed – No
evidence to show that contents of Will were read over and explained to testatrix
- Several cuttings and over-writings in Will – Establishing suspicious
circumstances – Due execution of Will, cannot be said to be proved.
3) 2006 (5) CTC 351 - Robert Prabhakar Vs. David Ebenezer - Propounder of
Will examined himself as PW1 in probate proceedings in respect of Will
executed by his mother and admitted in evidence that his father came to know
about Will only after death of his mother – Scribe of Will, brother in law of
propounder of Will and attesting witness, friend of scribe, deposed and asserted
that father was present at time of execution of Will and also participated in
preparation of Will – Evidence of PW1 contradicted evidence of Scribe and
Attesting witness on material aspect – Complaint filed by father against the
defendant, produced by propounder of Will, though referred to property did not
refer to execution of Will – Propounder did not establish due execution and
attestation of Will.
4) 2006 (5) CTC 733 – K. Kallan (Died) and others Vs. M. Kallan and another –
Sections 63 & 65 – Admissibility of document – Xerox copy of registration copy
of sale deed is inadmissible in evidence when there is no explanation offered
regarding non-filing of original sale deed or even a registration copy of it and to
let in secondary evidence.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
65 Indian Evidence Act
Secondary evidence
1).2008 (1) MLJ 708 SC – Loss of Original F.I.R. duly Proved - Secondary
adduced and accepted.
2). (2009) 3 MLJ 602 – K. SUBRAMANI /Vs/ P. RAJESH KHANNA Any
document can be marked subject to recording the objection except an
objection regarding deficiency of stamp duty.
3).The word "instrument" but not "document" is used in Sec.35 of the Indian
Stamp Act. The "instrument" as defined in Sec.2(14) includes document.
The definition is not Exhaustive. Section 63 of the Indian Evidence Act
speaks for Secondary Evidence but not anything about Instrument.
Secondary Instrument is unknown to law. Impounding can be made in
respect of Instrument, but not copy thereof. Procedure on impounding has
been mentioned from Sec.35 to 40. So when the Original Instrument is not
admissible in evidence, copy should not be admitted. Ref. may be made to
Lal Khan Sultan Ahmad Allah Ditta AIR 1950 Lah, 150. Pr. 15 of its runs : "
But Anr. hurdle is placed in the latter's path by the fact that the original sale
deeds were admittedly understamped. In such circumstances, even
secondary evidence would be barred. "
8. It is clear from the decisions of this Court and a plain reading of Sections
33, 35 and 2(14) of the Act that an instrument which is not duly stamped
can be impounded and when the required fee and penalty has been paid
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
66 Indian Evidence Act
for such instrument it can be taken in evidence under Section 35 of the
Stamp Act. Sections 33 or 35 are not concerned with any copy of the
instrument and party can only be allowed to rely on the document which is
an instrument within the meaning of Section 2(14). There is no scope for
the inclusion of the copy of the document for the purposes of the Indian
Stamp Act. Law is now no doubt well settled that copy of the instrument
cannot be validated by impounding and this cannot be admitted as
secondary evidence under the Indian Stamp Act, 1899.
http://www.indiankanoon.org/doc/1515290/
As far as the point of impounding 'COPY' is concerned, this may be
useful........ ....http://www.orkut.co.in/Main#CommMsgs ?
cmm=49944354&tid=5570516112722611698
4) Evidence Act sec 63, 65 - secondary evidence
Admissibility- document in question admittedly photocopies- no
possibility of said document being compared with the original as
same is with another person- conditions in sec 65 (a) not satisfieddocument
cannot be accepted as secondary evidence ( AIR 2007
SC 1721) xerox copies in absence of original should not be
permitted to be marked- --- AIR 2007 NOC 1852 Mad
5) AIR 2011 SC 1492 ( H. Siddiqui V/S A. Ramalingam) Date of disp.
4/3/2011 ---
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
67 Indian Evidence Act
6) If the company does not produce the original share certificates, the
copies of the share certificates produced by the mechanical process
of obtaining xerox copies/photo copies would be admissible in
evidence as secondary evidence being copies of the original
documents taken out by such mechanical process.
http://www.indiankanoon.org/doc/706241/
7) 2007 (5) CTC 206 – Amutha Beelarmine Corera Vs. Elsie
Villavarayer – Sections 63 & 65 – Xerox copy of an Approved Plan
sought to be marked as Secondary Evidence – Application rejected
by Trial Court – When accuracy of copy viz. Xerox copy is not
disputed, Xerox copy of Plan falls under category of Secondary
Evidence – Secondary Evidence is admissible only when loss of
original is proved – Examination of Building Inspector of Municipality
who also produced entire file in which original Plan was missing is
sufficient satisfaction of provisions of Section 65 of Evidence Act –
Liberty given to Respondent to raise objections available under law
with reference to said document. (Paras 8, 11 & 14)
8) Supreme Court, Bench: P Sathasivam, B Chauhan Civil Appeal
No. 6956 of 2004 H. Siddiqui (dead) by Lrs. ..Versus A.
Ramalingam. March 4, 2011---- Provisions of Section 65 of the Act
1872 provide for permitting the parties to adduce secondary
evidence. However, such a course is subject to a large number of
limitations. In a case where original documents are not produced at
any time, nor, any factual foundation has been led for giving
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
68 Indian Evidence Act
secondary evidence, it is not permissible for the court to allow a
party to adduce secondary evidence. Thus, secondary evidence
relating to the contents of a document is inadmissible, until the non
production of the original is accounted for, so as to bring it within one
or other of the cases provided for in the section. The secondary
evidence must be authenticated by foundational evidence that the
alleged copy is in fact a true copy of the original. Mere admission of
a document in evidence does not amount to its proof. Therefore, the
documentary evidence is required to be proved in accordance with
law. The court has an obligation to decide the question of
admissibility of a document in secondary evidence before making
endorsement thereon. (Vide: The Roman Catholilc Mission & Anr. v.
The State of Madras & Anr., AIR 1966 SC 1457; State of Rajasthan
& Ors. v. Khemraj & Ors., AIR 2000 SC 1759; Life Insurance
Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC
491; and M. Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC 712).
9) In State of Bihar and Ors. v. Sri Radha Krishna Singh & amp; Ors.,
AIR 1983 SC 684, this Court considered the issue in respect of
admissibility of documents or contents thereof and held as under:
"Admissibility of a document is one thing and its probative value
quite another - these two aspects cannot be combined. A document
may be admissible and yet may not carry any conviction and the
weight of its probative value may be nil."
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
69 Indian Evidence Act
10) In Madan Mohan Singh & Ors. v. Rajni Kant & Anr., AIR 2010
SC 2933, this Court examined a case as a court of fifth instance.
The statutory authorities and the High Court has determined the
issues taking into consideration a large number of documents
including electoral rolls and school leaving certificates and held that
such documents were admissible in evidence. This Court examined
the documents and contents thereof and reached the conclusion that
if the contents of the said documents are examined making mere
arithmetical exercise it would lead not only to improbabilities and
impossibilities but also to absurdity. This Court examined the
probative value of the contents of the said documents and came to
the conclusion that Smt. Shakuntala, second wife of the father of the
contesting parties therein had given birth to the first child two years
prior to her own birth. The second child was born when she was 6
years of age; the third child was born at the age of 8 years; the
fourth child was born at the age of 10 years; and she gave birth to
the fifth child when she was 12 years of age. Therefore, it is the duty
of the court to examine whether documents produced in the Court or
contents thereof have any probative value.
11) Sec.67 of the Evidence Act,: Yashoda, J. v. K.Shobha Rani reported
in 2007(3) CTC 781 & Naval Kishore, J. v. D.Swarna Bhadran
reported in 2008(1) CTC 97 ---- unless the non-production of original
is satisfactorily explained, secondary evidence cannot be looked
into.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
70 Indian Evidence Act
12) J.Yasoda v. K. Shoba Ravi (2007(3)CTC 781) relied on by the
learned counsel for the respondent, the issue was relating to
accepatance of secondary evidence being photocopies of the
original documents. The matter arose from a judgment of the Andhra
Pradesh High Court and the High Court found that the photocopies
cannot be received as secondary evidence in terms of Section 63 of
the Indian Evidence Act, since the documents in question were
photocopies and as there were no possibility of the document, being
compared with the original. It was in the said factual context that the
Apex Court observed that secondary evidence is an evidence, which
may be given in the absence of that better evidence which law
requires to be given first, when a proper explanation of its absence is
given.
13)In J. Naval Kishore V. I. Swarnabhadran (2008(1) CTC 97) a Division
Bench of this Court considered the proof of execution of a Will as
well as the issue relating to the marking of a xerox copy of the
alleged family arrangement. It was in the said factual context that the
Division Bench observed that as per Section 67 of the Indian
Evidence Act, unless the non-production of the original is
satisfactorily explained, secondary evidence cannot be looked into.
Since the document sought to be marked in the said case was a
xerox copy, the Bench observed that the possibility of manipulation
in xerox copy cannot be ruled out.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
71 Indian Evidence Act
14)HIGH COURT AT MADRAS - DATED: 10.07.2008 – JUSTICE
K.K.SASIDHARAN., C.R.P.(PD)No.3645 of 2007 and M.P.No.1 of
2007 – P.K.Pandian Vs. Komala --- Certified copy of a document
could be marked as secondary evidence. The respondent would be
at liberty to adduce evidence or to prove that there were material
alterations in the registered document and it is open to her to file
appropriate application before the trial Court, in case the document
has to be subjected to expert opinion. It is needless to mention that
the evidentiary value of the document and the contention advanced
on the side of the respondent pertaining to alteration of the extent of
property is a matter to be looked into by the trial Court on the basis
of evidence and on merits and as per law.
15) 2006 (5) CTC 36 --- P. Devaraj Vs. V. Geetha --- Section 65 –
Defendant in Suit sought to file photo copy of lease deed for
collateral purposes and pleaded that document was mixed up with
other document and could not be filed earlier along with written
statement – Affidavit did not contain any averment regarding any
bone fide search for document – Mixing up of documents cannot be
construed to mean “lost” occurring in Section 65 – Section 65 further
contemplates that secondary evidence is not permissible for any
reason arising from default or neglect of person seeking to produce
such secondary evidence – Order of Trial Court declining receipt of
such lease deed upheld.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
72 Indian Evidence Act
16) AIR 2006 RAJASTHAN 187 --- Shankar Lal & Ors Vs. The
Civil Judge (Jr.Divn.), Shahpura & Ors. – Evidence Act (1 of 1872),
Sec.65 – Stamp Act (2 of 1899), Sec.2 (14) – Registration Act (16 of
1908), Sec.49 – Secondary evidence – Admissibility – Suit for
declaration – Plaintiff’s allegation that defendants attempted to
encroach their plot – Original document filed by plaintiff to prove title
was insufficiently stamped and unregistered document – And was,
therefore, inadmissible in evidence – No secondary evidence can be
allowed to be led to prove title.
17) 2006 (3) CTC 482 --- The Inspector of Police, CBCID, Dindigul @
Madurai, in Karimedu PS Cr.No. 261/96 Vs. Mohan, S/o Manickam,
Madurai. – Sec 65 – Secondary Evidence – Acceptability of –
Original Dying Declaration and FIR sent to Tahsildar for conducting
enquiry and same was found to be missing from his custody – Xerox
copies available in case diary can be received and it is admissible –
Final report directed to be received by Magistrate along with Xerox
copies of FIR and Dying Declaration.
18) 2007 (3) CTC 781 --- J. Yashoda Vs. K. Shobha Rani ------Sections
63 & 65 – Secondary Evidence – Admissibility of Photo Copies of
Documents - Secondary evidence as a general rule is admissible
only in absence of primary evidence – If original itself is found to be
inadmissible, party to Suit is not entitled to introduce secondary
evidence of its contents – In order to enable a party to produce
secondary evidence it is necessary for party to prove existence and
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
73 Indian Evidence Act
execution of original document – Secondary evidence of contents of
a document cannot be admitted without non-production of original
being first accounted for in such a manner as to bring it within one or
other of cases provided for in Section 65 of the Evidence Act – Only
when conditions prescribed in Section 65 are satisfied, documents
can be admitted as secondary evidence – Original was found to be
in existence – Secondary evidence not admissible.
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Marking of Photograph.
2006 (2) CTC 43 (Mad.) Rama Srinivasa Rao Vs. Dr. N. Ragavan
It is not proper to mark photographs in cross-examination even though the
witness admits it. The photograph has to be marked only through the person
who took photographs or through person at whose instance it was taken.
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(2007) 1 MLJ 87 --- Damodaran Vs. Poogavanam Ammal
Secs.65,66 – Revision petitioner’s application for grant of leave to receive and
mark Xerox copy of certificate, dismissed – On ground, revision petitioner not
complied with statutory requirements under Section 65 of the Act – No notice
given either, as per Section 66 – Revision petitioner has not established that he
has complied with statutory requirements under the Act – Not established that
notice under Section 66 was sent to respondents – No illegality or infirmity in
impugned order – No grave injustice caused to petitioner to warrant
interference.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
74 Indian Evidence Act
Comparison of signature.
1). 2006 (4) MLJ 1744 – P. Gopalasamy Vs. Dishnet Wirless Ltd., formerly
known as Dishnet D.S.L. Ltd., Chennai and another – Section 73 –
Comparison of signature – Application seeking comparison of the signature of
the second defendant in the vakalat with that of his admitted signature –
Allegation of fraud against the second defendant and appearance of second
defendant in Court sought for – Application dismissed on the ground that the
issue raised had no connection with the issue involved in the suit – Revision
against that order – Presence of the second defendant for the purpose of getting
his signature is not required – Admitted signature of the second defendant could
be produced for the purpose of comparison – Allegation of fraud can be
considered at the time of trial of the suit – Revision allowed.
2) (2008) 6 MLJ 220-- Ganapathy Thevar Vs. Shankuga Thevar.
Indian Evidence Act (1 of 1872), Sections 73, 101 and 102 – Burden of proof –
Sections 73, 101 and 102 – Burden of proof – Section – Comparison of
signature or writing – Court comparing disputed handwriting with admitted
handwriting – Though Court has power to compare handwritings, it must be
done with caution – No reasons given for arriving at subjective satisfaction in
favour of defendant – The plaintiff discharged the initial burden of proof – The
burden then shifted to the defendant who failed to discharge same.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
75 Indian Evidence Act
Burden of Proof
1). 2006 (4) CTC 766 -- Tulsi and others Vs. Chandrika Prasad and others ---
Section 91 – Forbids proving of contents contained of writing otherwise than by
writing itself and it merely lays down “best evidence rule” – Where document in
issue is capable of being construed differently parties can let in evidence to
show how they understood same. I) Sections 101 to 103 – Non-examination of
party to transaction – Mortgagor pleaded that amount due under mortgage was
tendered to mortgagee in presence of her husband – Mortgagee should have
examined herself to deny such tender of mortgaged amount.
2). 2005 SCC (Cri) 1213 (Arijit Pasayat and S.H.Kapadia,JJ) Harbans Kaur
and another Vs. State of Haryana. 1.3.2005. Evidence Act, S.101 and 103 –
Criminal trial – witnesses – related witness – plea of partiality – reason for
falsely implicating the accused must be shown by the person raising the plea.
3). 2007 (1) CTC 367 ---- Lakshmi Priya Vs. K.V. Krishnamurthy
Sections 101 to 103 – Burden of proof – Matrimonial Disputes – In matrimonial
disputes normally husband and wife are best person to give evidence but when
wife made particular reference to mother in law as reason for non
consummation of marriage mother in law ought to have been examined.
4) (2008) 4 SCC 54 --- Krishna Janardhan Bhat Vs. Dattatraya G. Hegde
Criminal Procedure Code, 1973 – Ss. 315 (1) proviso (b) & 313 – Burden of
proof on accused – Mode of discharging – Held, an accused need not examine
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
76 Indian Evidence Act
himself. He may discharge his burden on the basis of the materials already
brought on record.
Hence, view taken by the courts below that for proving the defence the accused
is required to step into the witness box and unless he does so he would not be
discharging his burden, held, not sustainable – Constitution of India – Act 19(1)
(a) – Freedom of speech and expression – Right to be silent – Evidence Act,
1872 – Ss. 101, 103 & 3 D. Criminal Trial – Appreciation of evidence – Standard
of proof required on the part of an accused and that of the prosecution –
Distinction between – Held, whereas prosecution must prove the guilt of an
accused beyond all reasonable doubt, the standard of proof required on the part
of an accused is “preponderance of probabilities” – Inference of preponderance
of probabilities can be drawn not only from the materials brought on record by
the parties but also by reference to the circumstances upon which the accused
relies – Evidence Act, 1872 – Ss. 101, 103, 105 & 3 – Negotiable Instruments
Act, 1881, S. 138.
4). (2007) 2 MLJ 382 -- R.Sivasubramanian Vs. S. Krishnaveni ---- Secs. 101
to 103 – Hindu Marriage Act (25 of 1955), Section 13 (1) (1-a) – Petition by
husband for dissolution of marriage – On ground – non-consummation of
marriage – Later amending it to one of cruelty – Wife denying all allegations –
Submission, she a dutiful wife – Petitioner demanded Rs.1 lakh from her parents
and ill-treated her – Petitioner demanded evidence does not establish, he
suffered cruelty, much less, mental cruelty at wife’s hands – Burden on petitioner
to prove wife treated him cruely – Petitioner not proved his case by acceptable
evidence – Trial Court finding petitioner’s evidence highly unreliable and without
due corroboration – No reason to interfere with trial Court’s order.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
77 Indian Evidence Act
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AIR 2004 SC 2070 Bench: R Lahoti, A Lakshmanan --- L.I.C. Of India vs
Anuradha on 26/3/2004.---- Section 108 :- When the nominees of the missing
insured can lay a claim to the benefits of the policies and what their obligations
are. Are they bound to continue to pay premium? If so how long are they bound
to make payment, and when does the law presume the death of such an
insured?
One Mr. Sham Prakash Sharma, the late husband of Mrs. Anuradha
(Respondent before Supreme Court) had taken a Life Insurance policy (the
Petitioner before Supreme Court). The policy was commenced with effect from
February 8, 1986. The premium was payable every six months and was paid for
two years. The respondent’s husband suddenly disappeared from Bombay on
July 17, 1988 and thereafter he was not traceable and his whereabouts were not
known. The respondent logged a First Information Report (FIR) with the Police.
On July 11, 1988 LIC sent a communication address to Mr. Sham Prakash
Sharma, delivered at his residence, informing that the Insurance Policy had
lapsed for non-payment of premium. On June 29, 1996, the respondent
approached the LIC for release of benefits under the policy proceeding on an
assumption that Mr. Sham Prakash was dead as he had not been seen and
heard for seven years. The LIC turned down the claim of the respondent relying
on Rule 14 of Insurance Manual which reads as under:
“Where a person is reported missing, it is to be advised to the claimant the life
insured will be presumed to be dead after seven years of production of decree
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
78 Indian Evidence Act
from the court of law and in the meantime the policy is to be kept in force by
making the payment regularly.”
The respondent, aggrieved by rejection approached the State Consumer
Disputes Redressal Commission complaining of deficiency of service on the part
of Petitioner. The Petitioner, namely LIC, refuted the contention of deficiency and
contended that the policy had lapsed, since it was not kept alive, and the claim
was not maintainable. The State Commission accepted to the Respondents
claim and held that the Rule 14 relied on by the Petitioner had no relevance in
view of statutory presumption arising under Section 108 of the evidence Act. The
Petitioner namely, LIC, preferred an appeal before the High Court and which
was also dismissed.
The Petitioner, LIC, filed an appeal before the Supreme Court against the
judgment of High Court and during the course of hearing an appeal, it was
submitted for the council of LIC that in case it had no objection to the release of
payment due under the policy to the Respondent as ex-gratia payment to honor
the judgment of High Court and it was only interested to settle the law in this
area.
The Supreme Court held that both High Court and the Commission held wrong
in holding that after the lapse of seven years, when the matter came before the
court, not only death can be presumed but also time of death could be assumed,
which would be the time when the fact of missing was first noticed, the Supreme
Court held under Section 108, only death can be presumed and not the time of
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
79 Indian Evidence Act
death. This fact has to be proved by the direct or circumstantial evidence, it
further held that High Court and Commission went wrong in holding “that on
expiry of seven years by the time issue raised in Consumer Forum or Civil
Court, an evidence was addressed that the person was not heard of for a period
of seven years by wife and/or family members of the person then only the death
can be presumed but it could also be assumed that the presumed death had
synchronized with the date when he was reported missing, or date and time
could be correlated to the point of time coinciding with the commencement of
calculation of seven years from the backward of initiation of legal proceedings.
The Supreme Court further held that in order to successful maintain the claim for
the benefit under the insurance policy, it is necessary for the policy to kept alive
by punctual payment of premium under the claim was made. The Apex court
also held that the Petitioner namely, LIC, was justified in turning down the claims
by pleading that the policy had lapsed and the all that could be paid to the
Claimants was the paid up value of the policy.
The inferences are:
1. After the lapse of seven years, ONLY and only death could be presumed
by the court.
2. There is no presumption of the time of death under Section 108 of Indian
Evidence Act, 1872.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
80 Indian Evidence Act
3. Time of death has to be proved by independent evidence.
4. The Claimant in order to successfully maintain the claim in such cases,
has to continue to pay premium till the claim is made, failure to payment of
premium shall lead to lapse of policy and disentitle the nominee or the
Claimant to pay the entire amount payable under the policy.
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2007 (3) TLNJ 425 (Civil) -- J.M. Jeyachandran Samuel Vs. G.S.S. Masilamani
Section 109 – Burden of Proof – The presumption is if the tenant continue to be
a tenant it is for him to prove that he continues to be a tenant and in case of
surrender of possession by the tenant, it is for the Land Lord to prove whether
the tenant has surrendered his possession or not.
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Sample of Blood against will of the accused
Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418 where their
Lordships of the Supreme Court held that no person can be compelled to
give sample of blood for analysis against his or her will and no adverse
inference can be drawn for such refusal. At paragraph 26 of the judgment
their Lordships held as follows:-"From the above discussion it emerges
(1) that courts in India cannot order blood test as a matter of course;
(2) wherever applications are made for such prayers in order to have
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
81 Indian Evidence Act
roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must
establish non-access in order to dispel the presumption arising under
Section 112 of the Indian Evidence Act, 1872.
(4) The court must carefully examine as to what would be the consequence
of ordering the blood test; whether it will have the effect of branding a
child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis."
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(2007) 2 MLJ (Crl) 386
Shanmugam Vs. Samundeeswari and Another
Indian Evidence Act (1 of 1872), Sections 4, 112 – Presumption as to legitimacy
of child – Proof of access or non-access – Rebuttable presumption of law –
Which can only be displaced by a strong preponderance of evidence and not by
a mere balance of probabilities – whether the result of DNA – RNA test is
conclusive in nature – It is not enough to escape from the conclusiveness under
the Section – If a husband and wife were living together during the time of
conception but the DNA test revealed that the child was not born to the
husband, the conclusiveness in law would remain irrebutable – Held: The
question regarding degree of proof of access for rebutting the conclusiveness
must be answered in the light of what is meant by access or non access.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
82 Indian Evidence Act
(2007) 2 MLJ (Crl) 1420 (SC) --- Hatti Singh Vs. State of Haryana
Section 114 – Presumption under – Recovery of articles belonging to
deceased – Application of such presumption is limited – How for – Such
presumption may be in respect of commission of theft or receipt of stolen
property, if a person is found in possession of the property belonging to the
deceased – On such presumption alone, the appellant could not have been
convicted for the charge of murder particularly when on the same evidence
other persons had been given benefit of doubt.
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(2008) 7 MLJ 336 --- Saraswathi and Others Vs. Chinna Rengay Gounder
(died) and Others ----- Section 112 – Birth – Conclusive proof of legitimacy –
Whenever a child is born out of a wedlock, there is a conclusive presumption of
legitimacy, unless it is rebutted by reliable evidence – There was a legal
marriage between the first plaintiff and one Dharmaraj – No rebuttal evidence to
show that the parties to the marriage had no access to each other –
Presumption under Section 112 has to be necessarily raised – Plaintiffs 2 and 3
are presumed to be the legitimate children born out of the lawful wedlock of the
first plaintiff and Dharmaraj – Non- Production of birth certificate would not raise
any doubt or affect the paternity of plaintiffs 2 and 3.
(C) Hindu law – Family arrangement – No importance can be attached to an
unregistered family arrangement – Non-registration militates against the validity
of the family arrangement.
(D) Indian Evidence Act (1 of 1872), Section 114 – Marriage – Presumption as to
– First plaintiff and one Dharmaraj are shown to be married according to custom
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
83 Indian Evidence Act
– Hence legal and valid marriage documents must be preserved – Nonproduction
of family card and marriage invitation, does not affect the
photographs, verified on oath – Second appeal allowed.
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2006 (4) MLJ 1758 -- Pandurangam Vs. Annammal
Sections 35, 114 – Relevancy of entries made in public records – Proof of
parentage – Relevancy of birth extract – No amount of evidence can be raised
in respect of a plea not raised – Birth extract which was not pleaded, was
obtained during the pendency of the suit – It has no sanction of pleadings to test
its veracity – Proof of parentage cannot be inferred from the birth extract –
Adverse inference drawn against the plaintiff for non-examination of his vendor,
whose status is questioned – Only when the initial burden is proved, question of
rebuttal would arise – But the plaintiff has not discharged the initial burden – No
presumption can be drawn in favour of the birth certificate – Suit for partition is
not maintainable – Perverse findings of the lower Courts, set aside – Second
appeal allowed.
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2008 .((2) M.L.J 1016.
General Clauses Act, Sec -27 - Indian Evidence Act, Sec.114(e) - Postal receipt
and acknowledgement - presume due service of notice.
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sec.114 - ADVERSE INFERENCE – EXCEPTION
The common principle of law is that if the opposite party can be cross
examination discredit the plaintiff's witness and shows that there is no case left
for the opposite party to answer, held, the opposite party need not enter the
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
84 Indian Evidence Act
witness box, it is not open for the plaintiff in such a case to seek an adverse
inference against the opposite party for not examining itself. (AIR 1986 Cal 61)
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2006 (8) SCC 629 --- Jagmodhan Mehatabsing Gujaral Vs. Sate of
Maharashtra --- Evidence Act, 1872 – Section 114 III. (g) – Non-production of
relevant record by accused for inspection by court – Effect – Said suppression,
held, gave rise to considerable substance in allegations of prosecution.
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(2007) 1 MLJ (Crl) 373 (SC) --- Kailash Vs. State of M.P.
Section 113-B read Section 114 – Presumption, under – Can be drawn, when –
Dowry death – Evidence by witnesses relating to dowry demand, harassment
and torture – No discrepancy in said evidence – Deceased subjected to cruelty
and harassment in connection with dowry demand soon before her death – The
interval between such cruelty and harassment and death, not much – Death of
deceased not under normal circumstances – Conviction under section 304-B
I.P.C., not interfered with – But sentence reduced to 8 years.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
85 Indian Evidence Act
SEC.115 – ESTOPEL
The term estoppel is said to have been derived from the French term 'estoup'
which means 'shut the mouth'. The doctrine of estoppel is a rule of evidence
contained in Section 115 of the Indian Evidence Act. When one person by his
declaration , act or omission intentionally caused or permitted another to believe
a thing to be true and act upon such belief, neither he nor his representative
shall be allowed in any suit or proceeding between himself and such person or
his representative to deny the truth of that thing.
The law recognises different kinds of estoppel. They are as follows:
(1) Estoppel by Record
It results from the judgement of a competent court. If a judgement has become
final, a party to the dispute has no right to say against the judgement. It is
contained in Sections 40 to 44 of the Indian Evidence Act.
(2) Estoppel by Deed
When a person agrees to another in a matter by a deed acknowledging the
same, the person cannot say against the contents.
(3) Estoppel in conduct
This happens with the act or conduct or misrepresentation of one which has
induced a chage of position in another.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
86 Indian Evidence Act
Partition deed acted upon by brother selling property allotted to his share and
utilising proceeds to himself - he can not plead that deed was nominal (AIR
2003 S.C. 4444)
Indian Evidence Act 1872 – Section 115 – Estoppel – The mere dismissal of
application of a particular party without any discussion would definitely not be
advantageous to the opposite party and not amounts to an Estoppel.
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2009 (1) L.W. 132 --- Evi Act. Sec. 145, marking of affidavit in earlier
proceedings.---- Such an affidavit is only a former statement of the said
witness,Which can be used for contradicting the said witness u/s 145 of the
Evidence Act, at the time of examination before the lower court.------- It cannot
be assumed that the witness would not tell the truth resiling from his earlier
statement - It is made clear that the former statement made by a witness can be
either used for corroboration or contradiction under the Evidence Act and such
statement would not fall within the ambit of substantive evidence, unless it falls
u/s 33 of the Evidence Act. (S.P.D.Karuppaiya Vs. 1.State through The
Superintendent of Police, Sivagangai District , 2. The Deputy Superintendent of
Police, Karaikudi, Sivagangai District. 3. The Inspector of Police, Karaikudi
Town Police Station, Sivagangai District. )
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2006 (1) CTC 112 (Mad.) Anand Vs. Perumalsamy
Deposition of witness in earlier criminal proceedings could be produced in
subsequent civil proceedings and opportunity could be granted to the party to
recall and further examine witness.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
87 Indian Evidence Act
2009-2 L.W. (Crl.) 804 -- State rep. by SPE/CBI/ECW/Chennai Vs.
M.Gopalakrishnan & 15 others.
It has been made clear by the Hon’ble Apex court that a clever witness in his
examination-in-chief faithfully conforms to what he stated earlier to the police or
in the committing court, but in the cross-examination introduces statements in
subtle way contradicting in effect what he stated in the examination in chief if his
designs obvious we do not see why the court cannot, during the course of his
cross-examination, (sic-reexamination) permit the person calling him as a
witness to put questions to him which might be put in cross-examination by the
adverse party. To confine the operation of S.154 of the Evidence Act to a
particular stage in the examination of a witness is to read words in the section
which are not there and that if a party calling a witness is permitted to put such
questions to the witness after he has been cross-examined by the adverse party,
the adverse party will not have any opportunity to further cross-examine the
witness, on the answers elicited by putting such questions. In such an event the
court certainly, in exercise of its discretion, will permit the adverse party to crossexamine
the witness on the answers elicited by such questions. The ruling of the
Hon’ble Supreme Court in the above referred decision is squarely applicable to
the facts and circumstances of this revision petition. It is clear that at any stage
of the examination of the witness, the court can apply its discretion judiciously,
treat the witness hostile and permit the party to cross-examine the witness. It
has been made clear that it is only the judicial discretion of the court, in order to
meet the ends of justice. It need not be confined to chief examination of the
witness alone.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
88 Indian Evidence Act
Leading Questions
1). In Varkey Joseph v. State of Kerela [AIR 1993 SC 1892], the Supreme
Court held that the prosecutor ought not to be allowed to frame questions
in such a manner, which the witness may answer in ‘yes’ or ‘no’ so as to
enable him to elicit such answers, which he expects or desires. It also held
that allowing such leading questions would offend the right of the accused
to fair trial enshrined in Article 21 of the Constitution of India.
2).Whatever answer the witness shall be compelled to give shall not be used
against him as evidence, except that if the answer is false the witness may
be prosecuted for giving false evidence.[ Arumuga Nadar v. State of Tamil
Nadu ,AIR 1976 SC 2588.]
3). In Prakash v. State of Maharashtra[1975 Cr.LJ. 1297 SC.], it has been
held that no scandalous question should be put unless there are
reasonable grounds to believe them to be true. Section 150 is the penalty
that may ensue against a reckless cross-examination, if the court is of
opinion that the questions were asked without reasonable grounds.
4). In Mohinder Singh v. State[] ILR 1970(2) Del 854.], it was held that a trial
judge shall not permit questions which are scandalous, vexatious or even
those cantankerous, which elicit irrelevant or inadmissible answers, or
even those which do not advance the trial, but are calculated to hinder or
delay in progress.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
89 Indian Evidence Act
5). In Fatima Riswana v. State[AIR 2005 SC712.], where concerning
commission of offences to acts or pornographic material, evidences as to
the subject-matter of which could cause embarrassment not only to the
presiding officer, both male and female, but also to the lady
witnesses/accused as well as to any decent persons the Supreme Court
held that presiding officer could make adjustments or arrangements in the
procedure so as to minimize embarrassment to himself or herself and the
witness.
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Re-examination
2009 (4) .M.L J. 356.
Evidence Act The Purpose. of re-examination is only to get the clarifications of
some doubts created in the cross examination. One can not supplement the
examination in chief by way of re-examination and for the first time start
introducing totally new facts which have no concern with cross examination.
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2006 (1) SCC 191 Rajan Rai Vs. State of Bihar
Three injured witnesses were not ready to depose on behalf of the prosecution,
out of fear of the accused persons, as such merely because they could not be
examined by the prosecution. The evidence of other witnesses cannot be
discarded especially when their statement were recorded by police immediately
after recording of the fardbeyan As such, no adverse inference can be drawn
against the prosecution for not examining witness.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
90 Indian Evidence Act
Hostile witness
1).Evidence of Hostile witness remains admissible evidence and it is open to
court to rely upon dependable part of that evidence, which is found to be
acceptable and duly corroborated by some other reliable evidence
available on record – 2011 (1) SCC Crl. 593 = 2011 (2) SCC 36.
(Himanshu @ Chintu vs. state (NCT of Delhi).
2).2009 (3) M.L.J. 1085 (SC) NOC Hostile witness - Evidence of hostile
witnesses - part of their statement can be taken in to consideration -
portion consistent with case of prosecution or defence may be accepted.
3).2009 (3). M.L.J. 172 Indian Evidence Act.sec.154 - Hostile witness - At
any stage of the examination of the witness, the court can apply its
discretion judiciously, treat the witness hostile and permit the party to
cross- examine the witness and it is only the Judicial discretion , of the
court, in order to meet the ends of justice. It need not be confined to chief
examination of the witness alone.
4).2009 (3) .M.L.J. 172 Evidence Act - Sec.154 - Hostile witness - petition
filed before court below seeking permission to treat PW-2 as hostile
witness since he did not support prosecution case and to cross- examine
him - Impugned order dismissing same - Revision petition- P.W2 in cross -
examination changed his version in favour of accussed without any basis
for reasons best known to him which can not be justified- There is clear
error apparent an part of court below in overlooking legal position, based
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
91 Indian Evidence Act
on material facts available on record - Court below failed in exercising its
discretion judiciously - Impugned order set aside permitting revision
petitioner to treat P.W.2 as hostile and to Cross Examine him.
5).2011 (1) MLJ Crl Page.1. (M.chockalingam and M.Sathyanarayanan, JJ).
3.9.10. State rep.by I.P, Cuddalore District Vs Basheer and Others--
Testimony of a hostile witness can be relied on y the Court for the purpose
of proving the guilt of the accused and it cannot be rejected in toto. -- In
the sentencing process, court is required to consider relevant facts and
circumstances of each case, nature of gravity and the manner in which the
offences are committed.
6).Evidence of hostile witness – reliability of. (Paramjeet Singh vs. State of
Uttrakhand) 2010 4 MLJ 481(SC).
7).2008 (1) MLJ. 637 I.P.C.395,395- witnesses to prove confession turned
hostile - I/D parade conducted belatedly- Not fatal.-- The witnesses
identifying the accused for the first time before the court without having
participated in the test I/D parade and identifying the accused is totally
inadmissible.
8). 2006 (1) MLJ (Cri) 253 (Mad.) Periyakutty alias Kutty alias
Kalyanasundaram and another Vs. Inspector of Police, P-6, Kodungaiyur
P.S. – The Court need not ignore the entire evidence of a witness, who
turned hostile. The Court can always look into any portion of the evidence
of the witness turning hostile to find out whether it can be relied on and
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
92 Indian Evidence Act
whether it contains any material, either in favour of the state or in favour
of the accused.
9). (2007) 4 MLJ 984 A. Bommusamy Vs. Government of Tamil Nadu –
Hostile witness, evidence of – Admissibility - Disciplinary enquiry –
Evidence of hostile witness inadmissible – Tribunal wholly relied on
evidence of hostile witness while confirming dismissal order – Reliance on
such evidence contrary to law – Tribunal's finding to that extent, illegal and
perverse.
10). Court may , in its discretion, permit the person who calls a witness to
put any question to him which might be put in cross-examination by the
adverse part. – 161 statement to be looked into whether the witness was
actually resiling from the position taken during investigation. - 2011 (1)
L.W. (Crl) 615. (R.Srinath vs. State., Cr.O.P.No.25787/2010., T.Mathivanan
,J. Date of Judgment: 11.3.2011).
11). Hostile witness - duty of prosecution – non-examination of
investigating officer – Effect of. (2011 (1) L.W. (crl) 544) R.Mala,J.
7.3.2011. (Kumaresan vs. State & Anbunathan vs. State)
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AIR 2007 S.C. 2594-- Asharam & Anr. Vs. State of Madhya Pradesh
Criminal P.C. (2 of 1974), S. 156 – F.I.R. - Not substantive piece of evidence –
cannot contradict evidence of eye-witness.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
93 Indian Evidence Act
(2007) 5 MLJ 1232 - M.Subramani Vs. P. Shanmugam and Others
Recitals in documents – Recitals as to boundaries in documents not inter
parties not admissible in evidence unless executants examined as held in
Amiappa Nainar Vs. Annamalai Chettiar (1972) 1 MLJ 317 – Minor discrepancy
in document cannot be considered for throwing out plaintiff's claim, relying on
improved documents on other side – Defendants themselves not proved
documents they relied on – Said documents inadmissible in evidence –
Appellate Court not considered issue in proper perspective.
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Sec.165
The power of judge to put questions has been conferred by Section 165 of
the Indian Evidence Act. It reads thus:
The judge may, in order to discover or to obtain proper proof of relevant facts,
ask any question he pleases, in any form, at any time, of any witness, or of the
parties, about any fact relevant or irrelevant; and may order the production of
any document or thing; and neither the parties nor their agents shall be entitled
to make any objection to any such question or order, nor without the leave of the
Court, to cross-examine any witness upon any answer given in reply to any such
question.Thus the power of a judge is very wide in putting questions. The
conditions to be followed while putting questions is laid down in various judicial
pronouncements. Some conditions as laid down in judgements and in the Act
are as follows:
Judge cannot compel any witness who has entitlement to refuse to answer by
virtue of the privileges envisaged in Ss. 121 to 131.
• His questions must be within the bounds fixed in S. 148 or S. 149 of the
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
94 Indian Evidence Act
Evidence Act.
• Questions which help the court to discover or to obtain proper proof of
relevant facts can be asked.
• Questions must be so asked as there is no partisanship and without
frightening or bullying witnesses.
• The judge shall not dispense with primary evidence of any document
except in cases specifically exempted in the Act.
2006 (4) MLJ 1641 --- Durairaj, Proprietor, SPM Poultry Farm and another Vs.
S.K.M. Animal Feeds and Foods India Ltd., Erode, rep. by its Managing Director,
S.K.S. Maeilanandhan
Indian Evidence Act (1 of 1872), Section 165 – Civil Procedure Code (5 of
1908), Section 24 – Judge – Power to put questions – Petitions seeking transfer
of two suits – Allegation, that the Judge had put questions to the witness – Any
clarification sought for by the Judge only helps the Court to clear the disputed
questions in the case – Judge has the power to put questions to the witness –
Judge cannot be doubted for putting questions to the witness – Any reasonable
clarification sought for by the Court is well within the purview of Section 165.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
95 Indian Evidence Act
Interested Witness
1). Interested witness – “interested witness” and “related witness” – distinction
between – held – related is not equilent to 'interested” - witness may be
called “interested” only when he or she has deerived some benefit from
the result of a litigation in the decree in a civil case, or in seeing an
accused person punished – witness who is a natural one and is the only
possible eye-witness in the circumstances of a case cannot be said to be
“interested”. (State of U.P vs Kishanpal). 2010 4 SCC (crl) 182.
2).2010 (1) SCC Crl. 1356. State of Maharastra vs. Ahmed Shaikh Babajan
and others. 24.10.2008. (C.K.Thakker and D.K.Jain, JJ). Criminal trial –
witnesses – interested or partisan witness – meaning of the term
interested – A close relative, though not characterised as an interested
witness, held, may be so if he has oblique and animus to somehow convict
the accused.
3).Appreciation of evidence – eye-witnesses – related witnesses – interested
witnesses – eveidence of – to be analysed and assessed with great care
and caution – PW-1 is brother of deceased – PW-4 is wife of D-1 – PW-5
is brother of PW-4 – all eyewitnesses, being closely related deceased
party, are interested witnesses. (DB) K.N.Bahsha & Aruna Jagadeesan,JJ.
2011 (1) MWN (cr) 301. (Saravanan and 2 others vs. State)
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
96 Indian Evidence Act
4).2009 L M.L.J. 48 (SC) - Evidence of interested witnesses - credibility -
Relationship not a factor to affect credibility - It is for the court to find out
whether it is cogent and credible - distinction between normal
discrepancies and material discrepancies- The former does not carrode
the credibility of a witness - while the latter does so.
5).2009. Cr.LJ, 2805 (SC) Evidence Act- Sec-3 - interested witness -
Evidence of - murder case - Eye witnesses family members of deceased -
Their evidence can not per re be discarded on that ground - Relationship
is not a factor to affect credibility of witness.
6). (2007)1 SCC 699 -- Salim Sahab Vs. State of M.P. – Interested Witness –
Relationship of witness with deceased – Not a ground to reject testimony
of the witness – When the plea of false implication by the witness has
some basis court must adopt a careful approach and see that the
testimony is cogent and credible.
7). (2008) 3 SCC 100 --- K.T.Palanisamy Vs. State of Tamil Nadu Criminal
Trial – Appreciation of evidence – Credibility of witness – Interested/
Partisan witnesses – On facts, all prosecution witnesses related to
deceased. That all witnesses saw deceased accompanying the accused
one after the other at different places, held, is difficult to believe –
Therefore, on facts, held, chances of their deposing falsely cannot be
ruled out - Hence, in a situation of this nature it is difficult to hold that a
judgment of conviction can be founded on the sole circumstances of the
deceased having been last seen with the appellant-accused by the
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
97 Indian Evidence Act
prosecution witnesses who were all interested and partisan witnesses –
Witnesses – Interested on partisan witness –Circumstantial evidence –
Last seen together.
8).2009 (13) SCALE 177 Pandurang Chandrakant Mhatre & ORS. Vs State
of Maharashtra – Interested witnesses – Evidence of interested witnesses
may be relied upon if such evidence is otherwise trustworthy – Evidence of
such witnesses has to be examined with great care and caution to obviate
possibility of false implication or over-implication.
9). Interested testimony in grave crime – occurrence place surrounded by
houses and there were also one tea shop and number of persons were
present at that time – non-examination of independent witness – fatal to
prosecution. ---------- No valid reason assigned by prosecution for non
production of witness – adverse inferece cane be drawn in vieww of with
holding material witness. – (Saravanan vs. State) 2011 2 MLJ 612.
(K.N.Bhasha & Ms.Aruna Jagadeesan,JJ)
10). Eye-witness account – Motive established – eye-witness, though
related to deceased, natural witnesses as their presence at place of
occurrence usual and expected – also eye-witness account corroborated
by medical evidence – evidence of said eye-witness, natural witness
cannot be discarded. (chunni Lal v. State of U.P) 2010 4 MLJ 680 S.C.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
98 Indian Evidence Act
11). Statements of interest witness to be admissible in evidence, is to be
corroborative by other witness, expert evidence and circumstantial of a
case whereby the chain of evidence leading to the guilt of an accused is
completed. ii) the existence of a strong motive behind the commission of a
crime is not necessary in a case of direct and clear evidence. ( 2011 91)
MLJ (crl) 132 (SC) .( Dharnidhar and others vs. State of U.P)
12). Eye-witness account – Motive established – eye-witness, though
related to deceased, natural witnesses as their presence at place of
occurrence usual and expected – also eye-witness account corroborated
by medical evidence – evidence of said eye-witness, natural witness
cannot be discarded. (chunni Lal v. State of U.P) 2010 4 MLJ 680 S.C.
------ ------ ------- ------
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
99 Indian Evidence Act
Sole Eye-Witness
1).2010(1) L.W. 1224--- PW1 sole eye witness - the court can rely upon the
sole related eye witness only when the testimony of such related witness
inspires confidence.
2).Solitary eye-witness – appreciation of testimony of – Held, where
prosecution story rests on single eye-witness, such witness must inspire
full confidence, which was not the case herein, where conduct of sole eyewitness
was unnatural – conviction reversed. 2011 92) SCC (cri) 462 =
2010 12 SCC 1182. ( Birappa and another vs. State of Karnataka).
3).AIR 2007 Supreme Court 2257-- State of Rajasthan V. Om Prakash –
Penal Code (45 of 1860), S.300 – Murder – Evidence of solitary witness –
can be basis for conviction – Even if he is related to deceased –
Corroboration is not a must. (1999 Cri LJ 1987 (Raj) – Reversed)
4).No rule of law that states that there cannot be any conviction on testimony
of a sole eye-witness – in a fit case court may believe a reliable sole eyewitness
if in his testimony mades specific reference to identity and his
specific overt acts in the incident. (Ranjit singh vs. State of M.P) 2011 (2)
SCC crl 227 = 2011 4 SCC 336.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
100 Indian Evidence Act
5).Evidence of a sole witness can be relied upon to base a conviction if that
evidence is reliable and acceptable – Tika ram vs. State of M.P. - 2010 (4)
SCC (crl) 667.
6).Evidence of solitary witness – can be basis for conviction. (jodhraj Singh v.
State of Rajasthan) 2010 94) SCC cri. 633.
7).Sec.134 – court not concerned with number of witnesses examined – it is
concerned with merit of statement made bya witness – non-examination of
of other eye-witnesses and some persons who had gathered at scene
after occurrence, held, not fatal to prosecution case, if testimony of sole
eye-witness examined found to be cogent, consistent and reliable. (2011
91) SCC Crl 381 = 2010 (12) SCC 324. (State of U.P Vs. Krishna Master
and others)
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
101 Indian Evidence Act
DNA TEST
1). 2006 (1) MLJ (Cri) 741 - Ravichandran Vs. Sub Inspection of Police, A.W.
P.S. Perambalur. --- Accused disowned the pregnancy of the complainant
resulting in Criminal compliant of cheating. Order of the trial court permitting the
police with a direction to perform DNA typing test through a medical practitioner
on the accused, complainant and her child to find out paternity as a part of
evidence is sustainable.
2). 2006 (2) M.L.J (CRL.) 110 --- S. Andi Thevar Vs. State, rep. by the Inspector
of Police, SPE/CBI Special Crime Branch, Chennai. – Constitution of India,
1950 – Art.21 – Order of Magistrate directing petitioner to undergo a DNA test –
No testimonial compulsion – No violation of Constitutional rights – Orders
allowed under the Code – Son of petitioner – Missing – Dead body found near
the house of petitioner – DNA test to fix identity of dead person – No quashing of
order.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
102 Indian Evidence Act
Adoption
(2008) 3 MLJ 695 -- Shobana Vs. Sundararaj and Others - Adoption – Factum
of – Contention that plaintiff was adopted by Chellammal – Both were not
relatives – Chellammal remained as a Christian till her last breath – Concept of
adoption is alien to Christian law – Factum of adoption, not proved – Second
appeal dismissed. By no stretch of imagination, the letters could be relied upon
to prove the fact of adoption. The plaintiff examined P.W.4 on her side, to say
about the fact that she was with Chellammal during her life time. But, in his
cross-examination, he crucifies the contention of the plaintiff by stating that
Chellammal remained as a Christian till her last breath and that her funeral
ceremonies were conducted by salvation army priest of Ganagarammam Village
and that the plaintiff was also a Christian. The concept of adoption is alien to
Christian Law.
Even though the third defendant claims that she was adopted by Chellammal
and in case if she does not prove the said allegation that will not clothe the
plaintiff with any rights to get reliefs as prayed for.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
103 Indian Evidence Act
Appreciation of evidence
1).Each case must be judged on its own facts – For appreciation of evidence,
there cannot be any hard-and -fast rule – one statement by one of the
witness may not be taken out of contex to abjure guilt on part of all
accused persons. (Bhanwar Sungh vs. State of M.P) 2010 4 SCC (cr) 378.
2).Non-filing of charge sheet against co-accused – name of co-accused
found in FIR & Dying declaration – but neither charge sheet filed nor any
explanation offered for the same – prosecution case doubtful. (Rangaiah
Vs. State of Karnataka, 2010 (4) SCC (crl) 91.
3).Absconding by itself not conclusive proof of either guilt or guilty
conscience (Paramjeet Singh v. State of Uttarakhand) 2010 4 MLJ 481
(SC).
4). In RAMESHWAR vs. STATE OF RAJASTHAN AIR 1952 SC 54, it was
held that an omission to administer an oath, even to an adult, goes only to
the credibility of the witness and not to his competency.
5).Duty of court – Separating truth from falsehood – witnesses trying to mix
truth with falsehood and falsely implicate some innocent person – court
has a duty to separate the falsehood and if after scrutinising the remaining
evidence carefully the same is found to be trustworthy and the substratum
of the prosecution case remains intact, the prosecution case can be
believed to that extent. (Janardan Singh vs. State of Bihar) 2010 (3) SCC
(Crl) 253.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
104 Indian Evidence Act
6).2009 (3) CTC 59 - M.B. SUBRAMANIAM /VS/ A. RAMASAMY GOUNDER
AND OTHERS:- section 3 evidence act – evidence without pleadings
should be eschewed – evidence adduced by legal heirs of vendor that
vendor did not receive consideration under sale deed without necessary
pleadings has to be eschewed. ii) Evidence Act, 1872 (1 of 1872), Section
3 – Appreciation of evidence – Evidence adduced by witnesses should be
assessed cumulatively and stray admissions or sentences in such
evidence should not be taken in isolation.
7).2008.(2) MLJ. 862. M.Jeyapaul,J. 15.4.2008. Kamala Ganapathy
Subbramanian vs. State. Komaralingam P.S. --- Complaint by co-owner -
joint family properties worth Crores of Rupees -Allegations as plundered
by petitioner - criminal action will lie - civil court can decide nature and
entitlement of properties - Alleged theft - Remedy only by criminal
proceedings - Material allegation in complaint as to breach of trust,
mischief, theft- petition to quash dismissed.
8).Law does not permit the court to punish accused on of moral conviction or
suspicion alone – where offence alleged to have been committed is
serious one, prosecution must provide greater assurance that its case has
been proved beyond reasonable doubt - More serious the offence, stricter
the degree of proof required, since a higher degree of assurance is
required for conviction. (2011 91) SCC (crl) 98= 2010 (10) SCC 439.
Paramjeet Singh @ Pamma vs. State of Uttarakhand.
9). Evidence has to be weighed and not counted:- The time-honored
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
105 Indian Evidence Act
principle is that evidence has to be weighed and not counted. On this
principle stands the edifice of Section 134 of the Indian Evidence Act,
1872. Thus, there is no legal impediment in convicting a person on the
sole testimony of a single witness. It is not the number, the quantity, but
the quality that is material. The Supreme Court held, test is whether the
evidence has a ring of truth, is cogent, credible and trustworthy, or
otherwise. [Kunju @ Balachandran v. State of Tamil Nadu, decided on
January 16, 2008]
10). Non-examination of writer of complaint – serious doubt about the
genuineness of the Ex.P.1, the report,(complaint) said to have been given
by PW.1 – inconsistent version throws serious doubt not only in respect of
the person who wrote the Ex.P.1, but also who are all the persons
accompanied P.W.1 at the time of recording the report, Ex.P-1 – nonexamination
of the person who is said to have written the report Ex.P-1 is
also fatal to prosecution case- 2007 – 1- L.W. (crl) 18. 20.7.2006.
K.N.Basha, J. Mirthagai Ali v. state, rep.by The Inspectot of police, D-2,
P.S., Madras.
11). 2009.(1 ).MLJ. 460 (SC)-- Prosecution has not offered any
explanation for non-examination of investigating officer and doctor and
unreliability of evidence adduced by witness, sufficient to discard the
prosecution version.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
106 Indian Evidence Act
12). Court should read the evidence as a whole – So read, if it appears to
have a ring of truth, then discrepancies, inconsistencies, infirmities or
deficiencies of minor nature not touching core of the case cannot be
ground for rejecting the evidence – court should sift the evidence to
separate falsehood from truth – it should not adopt hyper-technical
approach. (2011 (1) SCC (crl) 381 = 2010 (12) SCC 324) State of U.P vs.
Krishna Master and others.
13). Direct Evidence – corroboration when necessary – Evidence of a
witness when is neither wholly unacceptable nor wholly impecable,
corroboration is essential. ( I) Phool chand vs. State of Rajasthan, 1977
SC 317, 1977 Cr.L.J 207:, ii) thangavel v. State of T.N. , 1981 Cr.L.J (NOC)
210(mad).
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
107 Indian Evidence Act
Corroboration:
1). Criminal Trial – Proof – corroboration – when necessary – admitted
animosity between parties and presence of large number of accused –
possibility false implication. (2011 (1) SCC (crl) 756 = 2010 (12) SCC 298).
(Deo narain vs. State of U.P).
2). Corroboration – part corroboration of victim's evidence whose modesty
was outraged – when relevant. (2011 (1) SCC Crl. 401 = 2011 (1) SCC
793) Kailash and others vs. State of M.H.
3). FIR – evidentiary value of FIR – FR is not substantive evidence but it can
be used for corroboration – Sunder singh vs. State of Uttaranchal. (2011
(1) SCC (crl) 114 = 2010 (10) SCC 611.
4). Is a rule of prudence. Evidentiary value of a deposition which is otherwise
admissible is not just wiped out in absence of corroboration. Even in
absence of corroboration, a deposition for its quality may be safely
accepted to be correct. It will be unfortunate if on account of over
emphasis for corroboration, a crime goes unpunished by not giving due
weight on uncorroborated evidence when such evidence is otherwise
reliable.(1996 Cr.L.J. 2446 SC=1996(1) ACJ 569 Pattu Lal vs. State of
Punjab).
5). It is a general handicap attached to all eye witnesses, if they fail to speak
with precision their evidence would be assailed a vague and evasive; on
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
108 Indian Evidence Act
the contrary if they speak to all events very well and correctly, their
evidence becomes vulnerable to be attacked as tutored. Both the
approaches are dogmatic and fraught with each of pragmatism. The
testimony of a witness should be viewed from broad angles. It should not
be weighed in golden scales, but with cogent standards. In a particular
case an eye witness may be able to narrate the incident with all details
without mistake, if the occurrence has made an imprint on the canvas of
his mind in sequences in which occurred. He may be a person whose
capacity for absorption and retention of events is stronger than another
person.(1997(4) RCR 331 SC Bhag Singh vs. State of Punjab).
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
109 Indian Evidence Act
Unnatural conduct of witnesses.
1).PW-1 and PW-2 close friends of deceased – present at the time of
occurrence – deposed that they have left injured in lurch and disappeared
from scene – they did not inform about occurrence to anybody till they
were asked by the police – their conduct is unnatural and unbelievable –
their presence at the time of occurrence is doubtful – their testimony
cannot be accepted ( State of T.N. vs. Subair) Dr.Arijit Pasayat , J. 2009
(2) MLJ (Crl) 1055 (SC).
2).Witnesses – eye-witness – unnatural conduct of – effect of – (DB)
(K.N.Bashs,J) 2011 (1) MWN (crl) 388. (State vs. David Raj)
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
110 Indian Evidence Act
Investigation
1).2009 3 MLJ Crl. 1126 SC. Dr.Arijit Pasayat and Ashok Kumar
Ganguly,JJ.) 3.3.2009. State of M.P. vs. Dhara Singh and another. --- The
veracity of contents in FIR cannot in all cases be tested with reference to
police station daily diary. --- Defect in investigation or procedural
irregularity does not by itself vitiate and nullify the trial.
2).Defective or illegal investigation – effect of – unsafe to rely on such
evidences (Babu vs. State of Kerala) 2010 (3) SCC (crl) 1179.
3).Evidence of I.O – scope of – (Rameshbhai Mohanbhai vs. State of
Gujarat) – Justice: P.Sathasivam ) 2010 4 MLJ 495 SC.
4). Investigation – fairness in – necessity – fairness in investigation and trial is
a human right of an accused – Prosecution must also be fair to accused –
state cannot suppress any vital document from court only because the
same would support the case of the accused – on that ground acquittal
upheld. ( Samadhan dhudaka Koli vs. State of M.H) 2010 4 SCC (crl) 62.
5). lapses in investigation – Effect, Held, cannot affect credibility of witnesses
– further held – plea that name of accused was not mentioned in inquest
report hence adding to vulnerability of prosecution version, clearly
unsustainable. ( Aqeel Ahamad vs. State of U.P) 2010 (4) SCC (crl) 11.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
111 Indian Evidence Act
Circumstantial Evidence
1). Doctrine of Circumstantial evidence is brought into aid where there are no
eye-witnesses to the occurrence and it is for the prosecution to establish
complete chain of circumstances leading to definite conclusion poointing
towards guilt of accused – Accused not entitled to acquittaal merely because
there was no eye-witness to occurrence. (Sanatan Naskar vs. State of W.B)
2010 (3) SCC (crl) 814.
2). Conviction and sentence – circumstantial evidence – prosecution brought
home guilt of accused – In order to substantiare that the accused has committed
sexuaal assault which resulted in her hanging, when he prosecution has no
direct evidence, the circumstances must constitute a chain without a snap and
that too, be pointing to the hypothesis that except the accused, no one could
have committed the offence- conviction upheld. (Mohan Rao Naidu vs. State)
2011 2 MLJ 150.
3). 2009.(4). MLJ. 600-- when the prosecution case hinges upon
circumstantial evidence, the circumstantial evidence must be of such a nature
as to form a complete chain without any missing link. The prosecution should
establish the guilt of the accused by proving such circumstences forming a
complete chain without any missing link pointing towards the guilt of the
accused.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
112 Indian Evidence Act
Benefit of Doubt
1).2008.(3).MLJ. 956 - Shortage of loss- Matter relates to business
transaction - To be resolved by raising a civil dispute.
2).2008-2-M.L.J (Crl) 1127 (SC) --- Umar Mohammad Vs. State of Rajasthan
Indian Penal Code (45 of 1860) – Benefit of doubt given to one coaccused
– Another accused / appellant stands on same footing – Hence
he too, is entitled to benefit of doubt.
3).2006 Crl. L.J. 1922 Full Bench (Kerala) T. Moosa and etc Vs. S.I. of
Police, - Vadakara P.S. Ernakulam ---- Even when a co-accused is
acquitted in the very same trial the other accused can be convicted if there
are good reasons to do so. Acquittal of some of the accused by itself is not
a reason to bar the trial in the case of the other accused. –
4).2002 SCC Crl. 780. (M.B.Sha and R.P.Sethi,JJ). Kalyan and others and
State of U.P. 28.9.2001. variance between the FIR and the depositio
made in the court, held, high court erred in setting aside the acquittal of
appellants merely of an alternative view – criminal trial – reversal of
acquittal is not proper – when two views are possible – burden of proof –
proof beyond reasonable doubts – absence of – acquittal justified.
5).Proof beyond reasonable doubt – explanations of “reasonable doubt” -
case law – reiterated (State of U.P. vs. Awdhessh) 2010 (4) SCC (crl) 257.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
113 Indian Evidence Act
Injuries on Accused
1) Grievous injuries – non-explanation – effect held, prosecution owes duty to
explain the same. (Ravishwar manjhi vs. State of Jharkhand) 2010 (4)
SCC (crl) 50.
2) 2007(2).M.L.J.1055 (SC) = 2009(4) MLJ.903.(SC) Unexplained minor
injuries on accused part - not helpful to accused - would not affect
prosecution case.
3) Effect of non-explanation of injuries on accused person – related
(interested) witness – enmity – held, by itself is not sufficient to discard
testimony of a witness who is otherwise reliable. (Hari vs. Statte of M.H)
2009 (11) SCC 96.
4) 2009. (3). MLJ. 1068 (SC-NOC) Though prosecution has a duty to
explain the injuries on the person of an accused there are cases where
non-explanation of the injuries by the prosecution may not affect the
prosecution case. This would apply to cases where the injuries sustained
by the accused are minor and superficial or where the evidence is so clear
and cogent - So, independent and disinterested, so probable, consistent
and creditworthy that it far outweights the effect of the omission on the part
of the prosecution to explain the "injuries" Therefore, no general principles
have been laid down that non-explanation of injury on accused person
shall in all cases vitiate the prosecution.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
114 Indian Evidence Act
5) (2008) 3 Supreme Court Cases 709 (Babu Ram and Others Vs. State of
Punjab) Criminal Trial - prosecution – Omission on part of prosecution to
explain injuries on accused – Held, omission assumes much greater
important where the evidence consists of interested or inimical witnesses
or where the defence gives a version which competes in probability with
that of the prosecution version.
6) 2006 (2) Crimes 157 (S.C) (Rajpal and others Vs. State of Haryana) Non
explanation of injuries by prosecutor may not affect the prosecution case
in all cases and particularly where injuries sustained by accused are minor
and superficial or where evidence is so clear and cogent, independent and
disinterested, plausible, consistent and creditworthy that is outweigh effect
of omission.
7) Unexplained injuries sustained by accused leading to suppression of
material facts and true version of occurrence by prosecution will vitiate the
proceedings against accused thereby rendering the conviction
unsustainable. 2011 (3) MLJ 13. Justice. A.Arumughaswamy,J.
27.01.2011. Rajasekaran and others vs. State (Mayiladuthurai P.S)
8) 2011 (1) MLJ Crl 59 SC. Sikandar Singh v. state of Bihar. (D.K.Jain,
J.)Crl. A. No.227 of 2007 Dtd: 9.7.10. I) Non-explanation of injury on
accused is not fatal to prosecution case- when evidence against
accused is cogent and trustworthy outweighing said nonexplanation.
ii) Sec.96, 97, 100 of IPC – doctrine of riht of private
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
115 Indian Evidence Act
defence – applicaility – evidence on record reveals apppellants are
aggressors – non of the members of said aggressors party can claim
right of private defence.
9) I) When there is a complaint and counter complaint. The Officer
should enquire into both complaints and register the case and
thereafter investigate into the matter and he should not accept only
one complaint. ii) Bounden duty is cast upon the investigating
officer to register both the cases and conduct common investigation
in both cases by examining the witnesses in pursuance of the said
complaints. (2010 4 MLJ Crl 550) M.V.P.Maharaja vs. State. 12.4.2010.
(Justice M.M.Sundresh,J).
10) Non-explanation of injury on accused – when prejudicial – held,
it is not the law that whenever accused sustains injury in the same
occurrence, prosecution is obliged to explain the injury and on
failure of prosecution to do so, prosecution ccase has to be
disbelieved. (sikandar singh vs. State of Bihar) yc or significance.
(Dharnidhar v. State of U.P) 2010 (3) SCC (crl) 417.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
116 Indian Evidence Act
Motive
1). Non-mentioning of motive in FIR -not fatal, when sufficient evidence led by
prosecution to establish motive. ( 2011 (1) MLJ 110 (sc)) State of U.P. vs.
Krishna Master.
2) Motive – Completed chain of circumstances – character and conduct of
appellant towards his wife unnatural – these facts establish motive.
(G.Parshwanath v. State of Karnataka) 2010 (3) SCC (crl) 1027.
3) Motive alone cannot form basis for conviction but in the light of other
circumstances, motive goes a longway in forging links in chain of evidence -
2010 (3) SCC (crl) 1469 (Santosh Kumar Singh vs. State).
4) Motive – relevance – relevance – absence of motive in a case pending on
circumstantial evidence is a factor tha weighs in favour of accused – In a case of
circumstantial evidence, motive must be established at least to a certain extent.
2010 (3) SCC (crl) 1179. (Babu vs. State of Kerala)
5). Motive is an important circumstance in a cases where prosecution is based
on circumstantial evidence. (Niranjan Panja v. State of W.B) 2010 (3) SCC (crl)
177.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
117 Indian Evidence Act
6) It is always not necessary for prosecution to establish definite motive for
commission of crime to secure conviction of accused – absence of motive does
not essentially result in acquittal of accused if he is otherwise found guilty by
cogent and reliable evidence – However, in cases which are entirely or mainly
based upon circumstantial evidence, motive can have greater relevancy or
significance. (Dharnidhar v. State of U.P) 2010 (3) SCC (crl) 419.
7). Motive – relevance of direct evidence vis-a-vis circumstantial evidence –
Motive, held, may not be relevent where there is sufficient evidence to prove an
offence beyond reasonable doubt – But absence of motive assumes significance
in case of circumstantial evidence. (2011 (1) SCC Crl. 821 = 2011 (3) SCC 109.
(CBI vs. Mahendra singh Dahiya)
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
118 Indian Evidence Act
contradictions or discrepancies
1).Minor contradictions, inconsistencies, embellishments or improvements –
normal discrepancies are bound to occur due to errors of observation,
errors memory due to lapse of time, due to mental disposition such as
shock and horror at the time of occurrence – mere marginal variations
cannot be dubbed as improvements – they may be elaborations of earlier
statements made by witness – trivial matters which do not affect core of
prosecution case, should not be made a ground on which evidence is
rejected in its entirety – State of U.P vs. Naresh and others. (2011 (2) SCC
cri. 216 = 2011 4 SCC 324. (Justice Sathasivam and Dr.B.S.chauhan,JJ)
8.3.2011.
2).State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, In cases
involving sexual harassment, molestation etc. the court is duty bound to
deal with such cases with utmost sensitivity. Minor contradictions or
insignificant discrepancies in the statement of a prosecutrix should not be
a ground for throwing out an otherwise reliable prosecution case.
Evidence of the victim of sexual assault is enough for conviction and it
does not require any corroboration unless there are compelling reasons
for seeking corroboration. The court may look for some assurances of her
statement to satisfy judicial conscience. The statement of the prosecutrix
is more reliable than that of an injured witness as she is not an
accomplice.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
119 Indian Evidence Act
3).State of Himachal Pradesh Vs. Raghubir Singh (1993) 2 SCC 622,--
Honourable Supreme Court held that there is no legal compulsion to look
for any other evidence to corroborate the evidence of the prosecutrix
before recording an order of conviction. Evidence has to be weighed and
not counted. Conviction can be recorded on the sole testimony of the
prosecutrix, if her evidence inspires confidence and there is absence of
circumstances which militate against her veracity.
4).A similar view has been reiterated by this Court in Wahid Khan Vs. State of
Madhya Pradesh (2010) 2 SCC 9, placing reliance on earlier judgment in
Rameshwar Vs. State of Rajasthan AIR 1952 SC 54.
5). In Mulla & Anr. Vs. State of Uttar Pradesh (2010) 3 SCC 508, the Supreme
court (Hon'ble P. Sathasivam, J.) placed reliance on Matru@Girish
Chandra Vs. The State of Uttar Pradesh AIR 1971 SC 1050; and Santokh
Singh Vs. Izhar Hussain & Anr. AIR 1973 SC 2190, wherein it had been
held that the Tests Identification Parades do not constitute substantive
evidence. They are primarily meant for the purpose of providing the
investigating agency with an assurance that their progress with the
investigation into the offence is proceeding on right lines. The Test
Identification Parade can only be used as corroboration of the statement in
Court. The necessity for holding the Test Identification Parade can arise
only when the accused persons are not previously known to the
witnesses. The test is done to check the veracity of the witnesses.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
120 Indian Evidence Act
6).Vijay @ Chinee vs State Of M.P. on 27 July, 2010 – Discrepancies and
inconsistencies in depositions of witnesses:- It is settled legal proposition
that while appreciating the evidence of a witness, minor discrepancies on
trivial matters, which do not affect the core of the prosecution case, may
not prompt the Court to reject the evidence in its entirety. The law on the
point can be summarised to be that the evidence of the witnesses must be
read as a whole and the cases are to be considered in totality of the
circumstances and while appreciating the evidence of a witness, minor
discrepancies on trivial matters, which do not affect the core of the
prosecution case, should not be taken into consideration as they cannot
form grounds to reject the evidence as a whole.
7).Contradictions, inconsistencies, exaggerations or embellishments – minor
contradictions – PW-1 implicating other co-accused in FIR lodged by her,
not implicated in her S.161 statements – improvements in IR by PW-1,
held, cannot be a reason to discard her testimony. (Sambhu Das v. State
of Assam) (2010 (3) SCC (crl) 1301.
8). In State of Rajasthan Vs. Om Prakash AIR 2007 SC 2257, while dealing
with a similar issue, this Court held that "irrelevant details which do not in
any way corrode the credibility of a witness cannot be levelled as
omissions or contradictions."
9).State Vs. Saravanan & Anr. AIR 2009 SC 152, while dealing with a similar
issue, this Court observed as under :- ".....while appreciating the evidence
of a witness, minor discrepancies on trivial matters without affecting the
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
121 Indian Evidence Act
core of the prosecution case, ought not to prompt the court to reject
evidence in its entirety. Further, on the general tenor of the evidence given
by the witness, the trial court upon appreciation of evidence forms an
opinion about the credibility thereof, in the normal circumstances the
appellate court would not be justified to review it once again without
justifiable reasons. It is the totality of the situation, which has to be taken
note of. Difference in some minor detail, which does not otherwise affect
the core of the prosecution case, even if present, that itself would not
prompt the court to reject the evidence on minor variations and
discrepancies."
10). Contradictions, inconsistencies, exaggerations or embellishments –
variations found in statement of eye-witness Pw2 (brother & son of
deceased persons) – if material. (Dharnidhar vs. State of U.P) 2010 (3)
SCC (cri) 491.
11). In the case of Ujagar Singh v. Mst. Jeo reported in AIR 1959 SC
1041, the Supreme Court has held that the ordinary rule is that all customs
general or otherwise have to be proved, but under Section 57 of the
Evidence Act, 1872 nothing need to be proved of which the Court can take
judicial notice. It was also held that when a custom has been repeatedly
recognized by Courts, it is blended into the law of land and proof of the
same would become unnecessary under Section 57 of Evidence Act,
1872.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
122 Indian Evidence Act
12). The court shall have to bear in mind that different witnesses react
differently under different situations whereas some become speechless,
some start wailing while some others run away from the scene and yet
there are some who may come forward with courage, conviction and belief
that the wrong should be remedied. As a matter of fact it depends upon
individual to individuals. There cannot be any set pattern or uniform rule of
human reactions and to discard a piece of evidence on the ground of his
reaction not falling within a set pattern is unproductive and a pedantic
exercise. (AIR 1999 SC 3717 Leela Ram vs. State of Haryana).
13). Although there are some contradictions and inconsistencies in the
statements of the eye witnesses but we are not to forget that distortions
and embellishments are invariably to be found even in the testimony of
most truthful witnesses. We are not obvious of the fact that the facilities of
perception, retention and reproductive vary from individual to individual.
(1997(2) RCR 95 State of Punjab vs. Fauja Singh. )
14). It may be that each injury has not been graphically described. But
we cannot forget that human memory has limitations. Equally even the
perception of events cannot be photographic. When an incident is
described some details may be forgotten and some may be ignored as
being unnecessary. However on a later date one cannot recapitulate the
sequence of events and narrate it. Minor variations may actually be
indicative of truthfulness rather than false hood.(2000(2) RCR 1. State of
Haryana vs. Ram Kishan).
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
123 Indian Evidence Act
15). 2009-2 L.W.(Crl.) 757 – Jayaseelam Vs. State of Tamilnadu. ----
Discrepancies in the evidence / kinds of, “Normal” discrepancies and
“Material” discrepancies, Maxims, principle of “falsus in uno falsus in
omnibus” (false in one thing, false in everything), Tenability of the plea,
Scope. ---- Even if major portion of evidence is found to be deficient, in
case residue is sufficient to prove guilt of an accused, his conviction can
be maintained – It is the duty of the Court to separate grain from chaff –
Where chaff can be separated from grain, it would be open to the Court to
convict an accused notwithstanding the fact that evidence has been found
to be deficient, or to be not wholly credible – Falsity of material particular
would not ruin it from the beginning to end – Maxim “falsus in uno falsus in
ombibus” has no application in India and the witness or witnesses cannot
be branded as liar(s). -------- Maxim “falsus in uno falsus in omnibus “has
not received general acceptance nor has this maxim come to occupy the
status of rule of law – It is merely a rule of caution. All that it amounts to, is
that in such cases testimony may be disregarded, and not that it must be
disregarded – Doctrine merely involves the question of weight of evidence
which a court may apply in a given set of circumstances, but it is not what
may be called ‘a mandatory rule of evidence. ------ Where it is not
feasible to separate truth from falsehood, because grain and chaff are
inextricably mixed up, and in the process of separation an absolutely new
case has to be reconstructed by divorcing essential details presented by
the prosecution completely from the context and the background against
which they are made, the only available course to be made is to discard
the evidence in toto. While normal discrepancies do not corrode the
credibility of a party’s case, material discrepancies do so.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
124 Indian Evidence Act
16). AIR 2007 Supreme Court 2257 State of Rajasthan Vs. Om Prakash
Evidence Act ( 1 of 1872), S.3 – Witness – Appreciation of evidence –
Improvements made by witness as to irrelevant details – Cannot be
labelled as omissions or contradictions.
17). 2005 SCC Crl. 1611. (K.G.Balakrishnan and H.K.Sema, JJ).
Ramashish Rai vs. Jagadish Singh. 17.11.2004. Criminal Trial –
appreciation of evidence – credibility of witnesses –discrepancies in
testimony of prosecution witness – every discrepancy in the prosecution
witness cannot be treated as fatal – discrepancy which does not affect the
prosecution case materially does not create infirmity. ---- Motive - When
prosecution case is strong and positive, motive becomes inconsequential.
18). Court should read the evidence as a whole – So read, if it appears to
have a ring of truth, then discrepancies, inconsistencies, infirmities or
deficiencies of minor nature not touching core of the case cannot be
ground for rejecting the evidence – court should sift the evidence to
separate falsehood from truth – it should not adopt hyper-technical
approach. (2011 (1) SCC (crl) 381 = 2010 (12) SCC 324) State of U.P vs.
Krishna Master and others.
19). Appreciation of evidence – contradictions, inconsistencies,
exaggerations or embellishments – only material or serious contradictions
in statements of witnesses affect prosecution case – statements of
witnesses should be read in entirety. 2011 (1) SCC (crl) 266 = 2010 (12)
SCC 350. - Ashok Kumar vs. State of Haryana.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
125 Indian Evidence Act
20). Court has to judge whether contradiction / omission is of such
magnitude that it materially affects trial – minor contradictions,
inconsistencies, embellishments or improvements on trivial matters which
do not affect core of prosecution case, cannot be a ground to reject
evidence entirely. 2011 (2) SCC (cri) 375 = 2010 (13) SCC 657. sunil
kumar sambhudayal gupta vs. State of M.H.
21). Appreciation of evidence – contradictions, inconsistencies,
exaggerations or embellishments – consequences of – trial had gone on
for eight or nine years – evidence recorded after a long period of time –
Held; some discrepancies are bound to occur. 2011 (2) SCC (cri) 460 =
2010 (12) SCC 108. Hari Sing vs. State of M.P.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
126 Indian Evidence Act
Credibility of witness
1).Credibility of witness – demeanour of witnesses – faact that trial court has
advantage to observe demeanour of witness – relevance ( Babu vs. State
of Kerala) 2010 (3) SCC (cr) 1179.
2).Credibility of witness – presence established by other witness – evidence
corroborated by recoveris, FIR version, injuries on other witness, etc.
(Prithi vs. State of Haryana) (2010 (3) SCC (Crl) 960.
3).Eye-witness – conduct of, not disclosing about occurrence to anyone for
long time, till their examination by police – would destroy credibility of their
version eye witness – no reason given for such non-disclosure – evidence
unreliable and untrustworthy. (DB) K.N.Basha,J. (2011 (1) MWN (crl) 291.
(Gopal @Rajagopal vs. State). 11.11.2010.
4).Eye-witnesses – parraot like version of Pw-1 to PW-4 giving minute ,
photographic and dramatic details about occurrence and attributing
specific overt acts to each of 14 Accused – Held, most unsafe and
hazardous to place reliance on evidence PW-1 to 4 – Decision of Supreme
Court in Selvi vs. State of T.N., AIR 1981 SC 1230 followed. ( Kanagaraj
and 12 others vs. State) K.N.Basha & Aruna Jagadeesan,JJ. (2011 (1)
MWN 172 (DB)). 1.12.2010.
5).Trial court after considering entire eveidence, should form opinion about
credibility of witnesses - 2011 (2) SCC (cri) 375 = 2010 (13) SCC 657.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
127 Indian Evidence Act
Sunil kumar sambhudayal gupta vs. State of M.H.
6). Identification of accused at nigh / darkness – eye-witness identified
accused in torchlight – omission to take torchlight into possession by
police – effect of – factum of torch had been mentioned in FIR – other
witnesses also testified thereto in their statements under S.161 – merely
because torch had not been taken into possession by police, held, would
not mean that statements eye-witnesses were not credible. --- Hari singh
vs. State of U.P. - 2011 (2) SCC (crl) 411 = 2010 13 SCC 756.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
128 Indian Evidence Act
Defence witness
1).Standard of proof required to prove prosecution and defence cases –
burden of proof – while prosecution has to prove its case beyond
reasonable doubt, the defence of accused has to be tested on the
touchstone of probability. --------ii) In every case the court has to see
whether defence set up by accused is probable, having regard to totality
of facts and circumstances of the case – If defence appears to be
probable, the court may accept such defence – this is primarily a matter of
appreciation of evidence on record and no straitjacket formula can be
enunciated in this regard. (Shanjiv Kumar v. State of Punjab) (2010 (3)
SCC (Crl) 330.
2).Sec.101 – the accused need not disprove the prosecution case and the
onus on the accused is not as heavy as that of prosecution.
(M.S.Narayana Menon vs. State of Kerala) 2006 (6) SCC 39 = 2006 SCC
(crl) 30.
3).Defence – falsity of statement / defence plea – false plea taken by
accused – its adverse effect on his defence – held, false plea is another
link in the chain of circumstantial evidence. (Santosh Kumar singh vs.
State, (2010 (3) SCC (cri) 1469.
4).Evidence on record that might aid defence – onus to exhibit and prove the
same – held, it was for defence and not for prosecution to make use of
such evidence – CBI as an investigating had fairly collected all relevant
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
129 Indian Evidence Act
evidence but it was for appellant-accused to prove evidence favourable to
him, by exhibiting relevant documents and calling necessary witnesses.
9Santosh Kumar singh v. State ) 2010 (3) SCC (crl) 1469.
5).Alibi – plea of alib has to be established by accused by leading positive
evidence – failure of said plea would not necessarily lead to success of
prosecution case which has to be independently proved by prosecution
beyond reasonable doubt. (Sk. Sattar v. State of Maharashtra) 2010 (3)
SCC (crl) 906.
6).Defence witness – credibility of – Held; defence witnesses have been
observed to be often untruthfull – but that is not to say that in all cases
defence witnesses must be held to be untruthful, merely because they
support the case of accused – right of accused to explain incriminating
circumstances appearing against him, serves a purpose, which cannot be
ignored outright. (Sanjiv Kumar vs. State of Punjab) yc or significance.
(Dharnidhar v. State of U.P) 2010 (3) SCC (crl) 330.
7). Sec.58 – Failure to prove defence is not admission of guilt by the
accused. (Manager R.B.I vs. Mani) AIR 2005 SC 2179 = 2005 (5) SCC
100.
8).Apology – belated apology – Held, apology in a contempt proceeding must
be offerred at the earliest possible opportunity – Belated apology is liable
to be rejected. 2011 (1) SCC (crl) 200 = 2010 (11) SCC 493. Ranveer
yadav vs. State of Bihar.
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
130 Indian Evidence Act
9). Criminal trial – witnesses – defence witnesses – statement made in crossexamination
supporting prosecution case – Held, defence would be bound
by such statements. 2011 (1) SCC (crl) 266 = 2010 (12) SCC 350. - Ashok
Kumar vs. State of Haryana.
10). S.231 of Cr.P.C – Choice of witness for prosecution – power of
prosecutor – child produced as eye-witness instead of his mature elder
brother and sister who had also seen the incident – Held, it was for public
prosecutor to decide whether mature witnesses should be examined or not
and whether child witness had no role in the matter – defence never
requested trial court to call upon Public Prosecutor to examine the elder
brother and sister – defence also failed to examine them as defence
witness or to make a prayer to examine them as court witness – Held, for
non-examination of elder brother and sister, child witness could not be
blamed, nor could his evidence be brushed aside is a casual manner. -
(State of U.P vs. Krishna Master and others) 2011 (1) SCC (cri) 381 =
2010 (12) SCC 324.
11). Cross-examination – Sec.137 of Evidence Act – Conduct of defence
lawyer – cross-examination of a witness on a point for days together with a
view to confuse him – cannot be permitted. (2011 91) SCC Crl 381 = 2010
(12) SCC 324. (State of U.P Vs. Krishna Master and others).
-----------------------------------------------------------------------------------------------------------
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
131 Indian Evidence Act
Evidence in the form of C.D., V.C.D.
What is the procedure to adduce the evidence in the form of Compact Disc,
Video Disc in the evidence ? How to deal with such application of production of
evidence in the form of Compact Disc. Kindly go through the following Citations.
1). Velusamy K. K. v. N. Palanisamy 2011 (4) SCALE 61 -
http://indiankanoon.org/doc/1126109
2). http://www.indiankanoon.org/doc/476184/
Stovekraft Private Limited
3). http://www.indiankanoon.org/doc/195080/
Y. Ranganadh Goud vs State Rep. By The Public ... on 27 July, 2010
4). http://www.indiankanoon.org/doc/1955364/
Dharambir vs Central Bureau Of Investigation ... on 11 March, 2008
5).AIR2007SC590,
(2006)11SCC1/http://www.indiankanoon.org/doc/1611925/
Jagjit Singh vs. State of Haryana and Ors. (11.12.2006 – SC).
6). http://www.indiankanoon.org/doc/1830482/
2. Sri . Gopala Krishna Belur and Ors . vs . Sri . B . S . Yeddiyurappa and
Anr . . ( 18 . 10 . 2010 - KARHC )
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
132 Indian Evidence Act
Words & Phrases
1).Anticipatory Bail – 2011 (1) SCC crl. 514 = 2011 (1) SCC 694. (Siddharam
Satlingappa Mhetre vs. State of M.H and others).
2).Any offence – 2010 (3) SCC (cr) 630
3).Charge Sheet & Final report = 2010 (3) SCC (cr) 652.
4).Clever Forgery & forgery - 2010 (3) SCC (cr) 924.
5).Coagulated – in NDPS Act- solidified, clotted, curdled – 2011 (2) SCC (crl)
286 = 2011 (4) SCC 441. (Harjit Singh vs. State of Punjab)
6).Common intention – same intention – similar intention and common object
- 2010 (3) SCC (cr) 1262.
7).compensation - 2010 (3) SCC (cr) 1285
8).Consent - 2010 (3) SCC (cr) 1081
9).Corpus delicti - 2010 (3) SCC (cr) 960
10). Court - 2011 (1) SCC crl. 442 = 2011 91) SCC 534. Institute of
Chartered Accountants of India vs. Vimal Kumar Surana and another.
11). “Death” - 2011 (2) SCC (crl) 294 = 2011 (4) SCC 454. (Aruna
Ramachandra Shanbaug vs. Union Of India)
12). Demand of dowry - 2010 (3) SCC (cr) 248.
13). Dowry - 2011 (1) SCC (crl) 266. = 2009 (12) SCC 350 . Ashok
Kumar vs. state of Haryana.
14). Dowry death - 2010 (3) SCC (cr) 1154
15). Employer – Sec. 2(e) Employees P.f. And Miscellaneus Provisions
Act, (19 of 1952) ( T.A. Bhansali v. Inspector of Police) C.T.Selvam,J. 2010
4 MLJ Crl. 544.
16). Enquiry - 2010 (3) SCC (cr) 344
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.
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M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur
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