Supreme Court Annual Digest 2023- Indian Evidence Act, 1872

Absconding

Effects of Absconding - Mere absconding by itself cannot constitute a sole factor to convict a person. It may be because an accused may abscond as he might fear an illegal arrest. (Para 25) 2023 LiveLaw (SC) 889

Admission

Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. (Para 39) 2023 LiveLaw (SC) 279

Alibi

Principles relating to plea of alibi & delaying in registering FIR: Supreme Court explains. 2023 LiveLaw (SC) 891

Ballistic Expert

In cases where injuries are caused by firearms, the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent. (Para 23, 24) 2023 LiveLaw (SC) 516

Burden of Proof

Burden of Proof - There are two senses in which the phrase 'burden of proof' is used in the Evidence Act. One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. (Para 29) 2023 LiveLaw (SC) 866

Certified Copy

Certified copy can be produced to prove original sale deed in trial. 2023 LiveLaw (SC) 811

Chance Witness

Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded. 2023 LiveLaw (SC) 470

Child Witness

Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. (Para 8) 2023 LiveLaw (SC) 501

Trial Courts should make proper preliminary examination of child witnesses before recording their evidence. 2023 LiveLaw (SC) 501

Close Relative

Testimony of a close relative - A witness being a close relative is not a ground enough to reject his testimony. Mechanical rejection of an even “partisan” or “interested” witness may lead to failure of justice. The principle of “falsus in uno, falsus in omnibus” is not one of general application. (Para 17.4) 2023 LiveLaw (SC) 225

Circumstantial Evidence

Circumstantial Evidence - One has to be circumspect and cautious while undertaking the exercise of linking the evidence available. Courts should not lose sight of the fact that such evidence should unerringly lead and point out the accused alone, of course, on the facts of each case. (Para 22) 2023 LiveLaw (SC) 889

Circumstantial Evidence - In a case resting on circumstantial evidence, the prosecution must establish a chain of unbroken events unerringly pointing to the guilt of the accused and none other. (Para 14) 2023 LiveLaw (SC) 814

Law with regard to conviction based upon circumstantial evidence - Circumstances from which the conclusion of guilt is to be drawn should be fully established - Circumstances concerned “must or should” and not “may be” established - There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” - Facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty - Circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused - However strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. (Para 18, 19) 2023 LiveLaw (SC) 617

Circumstantial Evidence - Cases are frequently coming before the Courts where the husbands, due to strained marital relations and doubt as regards the character, have gone to the extent of killing the wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence - No member of the family, even if he is a witness of the crime, would come forward to depose against another family member - If an offence takes place inside the four walls of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in the circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence, is insisted upon by the Courts. 2023 LiveLaw (SC) 601

Murder case based on circumstantial evidence - Death caused by firearms - In view of the serious doubt with regard to the credibility of the witnesses on the issue of extra-judicial confession and last seen theory, the failure to examine Ballistic Expert would be a glaring defect in the prosecution case - Prosecution has failed to prove the case beyond reasonable doubt and, as such, the accused are entitled to benefit of doubt - Accused acquitted. 2023 LiveLaw (SC) 516

The circumstances from which the conclusion of guilt is to be drawn should be fully established - Circumstances concerned “must or should” and not “may be” established -There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” - The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty - The circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and there must be a chain of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused - However strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. (Para 5-8) 2023 LiveLaw (SC) 516

In a criminal trial, the prosecution has to prove its case beyond reasonable doubt. This heavy burden has to be discharged by the prosecution. It becomes even more difficult in a case of circumstantial evidence. In the present case, the nature of circumstantial evidence is weak. In order to establish a charge of guilt on the accused, the chain of evidence must be completed and the chain must point out to one and only one conclusion, which is that it is only the accused who have committed the crime and none else. We are afraid the prosecution has not been able to discharge this burden. (Para 15) 2023 LiveLaw (SC) 395

In a case where there is no direct eye witness to the crime, the prosecution has to build its case on the circumstantial evidence. It is a very heavy burden cast on the prosecution. The chain of circumstances collected by the prosecution must complete the chain, which should point to only one conclusion which is that it is the accused who had committed the crime, and none else. Each evidence which completes the chain of evidences must stand on firm grounds. In our considered opinion, the evidence placed by the prosecution in this case does not pass muster the standard required in a case of circumstantial evidence. (Para 15) 2023 LiveLaw (SC) 395

Failure to render plausible explanation - In a case based on circumstantial evidence, false explanation or non-explanation can only be used as an additional circumstance when the prosecution has proved the chain of circumstances leading to a definite conclusion with regard to the guilt of the accused. (Para 83) 2023 LiveLaw (SC) 418

In cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted. 2023 LiveLaw (SC) 239

Law relating to Circumstantial Evidence– Discussed. (Para 5 - 11) 2023 LiveLaw (SC) 212

The law with regard to conviction in the case of circumstance evidence – Explained. (Para 8 to 10) 2023 LiveLaw (SC) 171

Every link in the chain of circumstances necessary to establish the guilt of the accused must be established beyond reasonable doubt - All the circumstances must be consistently pointing towards the guilt of the accused. (Para 10) 2023 LiveLaw (SC) 152

In a case of circumstantial evidence, motive has an important role to play. It is an important link in the chain of circumstances - The basic links in the chain of circumstances starts with motive, then move on to last seen theory, recovery, medical evidence, expert opinions if any and any other additional link which may be part of the chain of circumstances. (Para 12, 15) 2023 LiveLaw (SC) 152

Golden principles with regard to conviction in a case which rests entirely on circumstantial evidence - It is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established - The accused 'must be' and not merely 'may be' guilty before a court can convict the accused - There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved" - The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty - The circumstances should be such that they exclude every possible hypothesis except the one to be proved - There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused. (Para 9-10) 2023 LiveLaw (SC) 50

The prosecution is obliged to prove each circumstance, beyond reasonable doubt, as well the as the links between all circumstances; such circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else; further, the facts so proved should unerringly point towards the guilt of the accused. The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence - These panchsheel precepts, so to say, are now fundamental rules, iterated time and again, and require adherence not only for their precedential weight, but as the only safe bases upon which conviction in circumstantial evidence cases can soundly rest. (Para 21) 2023 LiveLaw (SC) 41

Cross-examination

Supreme Court deprecates advocates raising unnecessary objections to questions in cross-examinations, urges bar to co-operate with trial courts. 2023 LiveLaw (SC) 784

Cross-Examination - Huge pendency of suits in the Trial Courts - If the members of the Bar do not cooperate with the Trial Courts, it will be very difficult for our Courts to deal with the huge arrears. While a trial is being conducted, the members of the Bar are expected to act as officers of the Court. They are expected to conduct themselves in a reasonable and fair manner. The members of the Bar must remember that fairness is a hallmark of great advocacy. If the advocates start objecting to every question asked in the cross-examination, the trial cannot go on smoothly. The trial gets delayed. In the facts of the case, looking at the persistent objections raised by the learned advocate, the Court was required to record a substantial part of the cross-examination in question-and-answer form which consumed a lot of time of the Court. (Para 19) 2023 LiveLaw (SC) 784

During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same. (Para 44) 2023 LiveLaw (SC) 279

The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused. (Para 43) 2023 LiveLaw (SC) 279

Delayed Disclosure

A mere chance witness, whose presence at the spot, at that hour, is not satisfactorily explained therefore, bearing in mind that he kept silent for unusually long i.e. for more than three and a half months, his testimony is not worthy of any credit. The courts below erred by placing reliance on his testimony. 2023 LiveLaw (SC) 470

Testimony of witnesses who made a delayed disclosure of the incriminating circumstances of which he was aware much earlier - If a witness professes to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness keeps silent for over two months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstance, in the absence of any cogent reason, is bound to lose most of its value. 2023 LiveLaw (SC) 470

Disclosure Statement

Section 27 Evidence Act - Disclosure statements cannot be the sole basis for conviction. 2023 LiveLaw (SC) 629

Discovery

S. 27 Evidence Act - Discovery can't be proved against a person if he wasn't accused of any offence & wasn't in custody of police at the time of confession. 2023 LiveLaw (SC) 814

Double Presumption

When the view of the trial court, which had the benefit of seeing the demeanour of the witnesses, is both a possible and plausible one, it shall not be replaced by yet another one. The presumption of innocence in favour of the accused gets strengthened by the decision of the trial court when he gets an order of acquittal. (Para 23) 2023 LiveLaw (SC) 889

Dying Declaration

Examination of person who recorded dying declaration essential. 2023 LiveLaw (SC) 961

FIR is a public document u/s74 Evidence Act; Injured person's statement recorded as FIR can be treated as dying declaration. 2023 LiveLaw (SC) 664

Effect of omissions, deficiencies

Evidence examined as a whole, must reflect/ring of truth. The court must not give undue importance to omissions and discrepancies which do not shake the foundations of the prosecution's case. (Para 17.2) 2023 LiveLaw (SC) 225

Expert Opinion

Admissibility of the FSL Report - Handwriting Expert Opinion - though it is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied with caution and may be accepted if, on its own assessment, the Court is satisfied that the internal and external evidence relating to the document in question supports the opinion of the expert and it is safe to accept his opinion. (Para 65) 2023 LiveLaw (SC) 418

Handwriting Expert Opinion - Suicide Letter - Taking into account that the accused has denied the incriminating circumstance of writing the suicide letter and no internal or external evidence, save the expert report, supports the writing of suicide letter by the accused, though the expert evidence was admissible as an opinion on the writing in the suicide letter but, on overall assessment of the evidence led by the prosecution, solely on its basis, it would be extremely unsafe to hold that the suicide letter retrieved from the trouser of the deceased was written by the accused. (Para 69) 2023 LiveLaw (SC) 418

Extra-judicial confession

Newspaper reports only hearsay evidence, extra-judicial confession has no greater credibility because newspapers reported. 2023 LiveLaw (SC) 594

While extra-judicial confessions are typically considered weak pieces of evidence, they can still serve as grounds for conviction if proven to be voluntary, truthful, and free of inducement. The court must be convinced of the reliability of the confession, and this evaluation takes into account the surrounding circumstances. (Para 6) 2023 LiveLaw (SC) 679

Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extrajudicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support. (Para 12) 2023 LiveLaw (SC) 516

Evidentiary value of extra-judicial confession also depends on the person to whom it is made. 2023 LiveLaw (SC) 197

Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. (Para 5) 2023 LiveLaw (SC) 197

Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility. (Para 5) 2023 LiveLaw (SC) 197

Extra-Judicial confession is a weak piece of evidence, independent corroboration needed. 2023 LiveLaw (SC) 171

It is a settled principle of law that extra-judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It has been held that there is no doubt that conviction can be based on extra-judicial confession, but in the very nature of things, it is a weak piece of evidence. (Para 15) 2023 LiveLaw (SC) 171

The extra-judicial confession is a weak piece of evidence and especially when it has been retracted during trial. It requires strong evidence to corroborate it and also it must be established that it was completely voluntary and truthful. (Para 21) 2023 LiveLaw (SC) 152

Eyewitness

Ocular evidence undoubtedly fares better than other kinds of evidence and is considered evidence of a strong nature. The principle is that if the eyewitness testimony is “wholly reliable”, then the court can base conviction thereupon. This applies even in cases where there is a sole eyewitness. For an eye-witness to be believed, his evidence, it has been held, should be of sterling quality. It should be capable of being taken at face value. (Para 12 & 22) 2023 LiveLaw (SC) 961

Eyewitness account can't be discarded merely because of inconsistencies with medical evidence. 2023 LiveLaw (SC) 804

In the case of a sole eye witness, the witness has to be reliable, trustworthy, his testimony worthy of credence and the case proven beyond reasonable doubt. Unnatural conduct and unexplained circumstances can be a ground for disbelieving the witness. (Para 8) 2023 LiveLaw (SC) 227

'It's quality & not quantity of witnesses which matters': Supreme Court relies on solitary eyewitness testimony to affirm sentence. 2023 LiveLaw (SC) 110

Forensic / Ballistic Report

Forensic / Ballistic Report has not even been put to the accused, from whom the country made pistol was seized, while recording his statement under section 313 of Cr.P.C., therefore, in any event, it would have to be eschewed from consideration. (Para 32) 2023 LiveLaw (SC) 470

Guilty Mind

Accused were not traceable - Once the body was found and police entered the scene, after the first information report, even if the accused had been away and innocent, his instinct of self-preservation would have got the better of him to evade arrest till better counsel prevailed upon him to surrender. Such conduct by itself is not reflective of a guilty mind. (Para 70) 2023 LiveLaw (SC) 418

Hostile Witness

a) Corroborated part of the evidence of a hostile witness regarding the commission of offence is admissible. Merely because there is deviation from the statement in the FIR, the witness's statements cannot be termed totally unreliable; b) the evidence of a hostile witness can form the basis of conviction. c) The general principle of appreciating the evidence of eye-witnesses is that when a case involves a large number of offenders, prudently, it is necessary, but not always, for the Court to seek corroboration from at least two more witnesses as a measure of caution. Be that as it may, the principle is quality over quantity of witnesses. (Para 17.1) 2023 LiveLaw (SC) 225

Injured Witness

The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (Para 26) 2023 LiveLaw (SC) 279

Insanity

Burden of proof on accused to prove plea of insanity is one of preponderance of probability. 2023 LiveLaw (SC) 71

Section 27 Evidence Act - Recovery cannot be relied upon when the statement of the accused is not recorded. 2023 LiveLaw (SC) 50

Last Seen Theory

'Last seen' theory can be invoked only when the same stands proved beyond reasonable doubt - The burden on the accused would kick in, only when the last seen theory is established. (Para 15-17) 2023 LiveLaw (SC) 751

Once the theory of “last seen together” was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased-If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence. (Paras 6 to 9) 2023 LiveLaw (SC) 120

Last­ seen theory comes into play where the time­gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. If the gap between the time of last seen and the deceased found dead is long, then the possibility of other person coming in between cannot be ruled out - Solely on the basis of last seen theory, the conviction could not have been recorded. (Para 16, 17, 29) 2023 LiveLaw (SC) 50

'Last seen' circumstance cannot be the sole basis for conviction: Supreme Court acquits murder accused. 2023 LiveLaw (SC) 41

Last Seen Doctrine - The “last seen” doctrine has limited application, where the time lag between the time the deceased was seen last with the accused, and the time of murder, is narrow; furthermore, the court should not convict an accused only on the basis of the “last seen” circumstance. (Para 23) 2023 LiveLaw (SC) 41

Marking of Evidence

The marking of a piece of evidence as 'exhibit' at the stage of evidence in a Trial proceeding is only for the purpose of identification of evidence adduced in the trial and for the convenience of the Court and other stakeholders in order to get a clear picture of what is being produced as evidence in a Trial proceeding. (Para 85) 2023 LiveLaw (SC) 664

Medical Evidence

Lack of positive viscera report not conclusive proof that victim didn't die of poisoning: supreme court upholds conviction in dowry death case. 2023 LiveLaw (SC) 794

Minor Discrepancies

An eyewitness to a gruesome killing cannot in deposition narrate blow by blow account of the knife strikes inflicted on the deceased like in a screenplay. Just because there were more injuries than the ones narrated by the eyewitness cannot negate the prosecution version. Even if in the opinion of the autopsy surgeon there was mismatch of the knife with the injuries caused, the doctor's evidence cannot eclipse ocular evidence. (Para 7 & 9) 2023 LiveLaw (SC) 804

Non-exhibition of Evidence

In the present case, considering the failure of State machinery and failure of the Trial Court to ensure a fair trial from the perspective of the victim side, the aspect of non-marking of the FIR and Written Statement of the deceased as an exhibit, non-production of the formal witnesses to prove the lodging of FIR/ Written Statement and the flimsy rejection of application for examination as a witness in the Trial proceeding do not vitiate the genuineness of the FIR and Written Statement, and we refuse to give any discount to the accused persons for non-exhibition thereof. (Para 89) 2023 LiveLaw (SC) 664

Panchnama

Panchnama inadmissible in court where witnesses merely acted as attestors and did not disclose how objects were discovered. 2023 LiveLaw (SC) 814

Previous Enmity

Previous enmity is a double-edged weapon; on the one hand it provides the motive, whereas on the other hand, the possibility of false implication cannot be ruled out. (Para 17) 2023 LiveLaw (SC) 981

Production of Document

At the stage of evidence, when any document/paper is formally produced for being treated as a piece of evidence, the Court looks at two basic aspects. Firstly, the existence of the document on the Court's record and, secondly, the proof of its execution or its contents being sufficiently deposed to by a witness having requisite knowledge thereof, whereafter, the document in question is marked as exhibit. At the stage of exhibiting any document as a piece of evidence, the truth of what is stated in the document is not considered. It is left open to final evaluation at the trial after cross-examination, and the entire testimony of the witness about the existence and contents of the document is weighed in conjunction with various other factors emerging during a trial. At the final evaluation stage, the Trial Court concludes whether the document speaks the truth and decides what weight to give it for final decision. In other words, its evidentiary value is analysed by the Courts at the time of final judgment. (Para 85) 2023 LiveLaw (SC) 664

Recovery

Recovery of a weapon from an open place accessible to all not reliable. 2023 LiveLaw (SC) 961

Reputation

Merely because a person is educated & god fearing, it can't be said that he has a good reputation. 2023 LiveLaw (SC) 889

Right of Private Defence

If a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the accused is established the same would definitely be admissible in evidence. (Para 45) 2023 LiveLaw (SC) 279

Secondary Evidence

If document required to be stamped is insufficiently stamped, copy of document cannot be adduced as secondary evidence. 2023 LiveLaw (SC) 1022

Single Witness

Reliance on Single Witness - If a witness is absolutely reliable then conviction based thereupon cannot be said to be infirm in any manner. (Para 17.3) 2023 LiveLaw (SC) 225

Standard of Proof

Standard of proof in criminal proceedings differs with that in civil proceedings - Adjudication in civil matters is based on preponderance of probabilities whereas adjudication in criminal cases is based on the principle that the accused is presumed to be innocent and the guilt of the accused should be proved to the hilt and the proof should be beyond all reasonable doubt. (Para 29-30) 2023 LiveLaw (SC) 46

Suggestions

Suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused. (Para 42) 2023 LiveLaw (SC) 279

The suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client. (Para 38) 2023 LiveLaw (SC) 279

Suicide

Mere fact of commission of suicide itself not sufficient to raise presumption under Section 113A Evidence Act. 2023 LiveLaw (SC) 149

Suspicion

Suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence - Only such evidence is admissible and acceptable as is permissible in accordance with law. (Para 8) 2023 LiveLaw (SC) 227

It is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. (Para 11) 2023 LiveLaw (SC) 171

Test Identification Parade

Test Identification Parade (TIP) - If the accused are already shown to the witnesses in the Police Station, then the sanctity of TIP before the court is doubtful. (Para 13) 2023 LiveLaw (SC) 617

Test Identification Parade doesn't have much value when the accused is already known to witness. 2023 LiveLaw (SC) 242

Translator

Section 27 Evidence Act statement not liable to be rejected merely because it was recorded in a language not known to the accused through translator. 2023 LiveLaw (SC) 338

Weapon

It is the duty of the prosecution to establish use of the weapon discovered in the commission of the crime. Failure to do so may cause aberration in the course of justice. (Para 15) 2023 LiveLaw (SC) 227

Witness

There are three types of witnesses. If the witness is wholly reliable, there is no difficulty inasmuch as relying on even the solitary testimony of such a witness conviction could be based. Again, there is no difficulty in the case of wholly unreliable witnesses inasmuch as his/her testimony is to be totally discarded. It is only in the case of the third category of witnesses which is partly reliable and partly unreliable that the Court faces the difficulty. The Court is required to separate the chaff from the grain to find out the true genesis of the incident. (Para 11) 2023 LiveLaw (SC) 981

Non-Examination of Material Witnesses - Failure on the part of the prosecution in not examining a witness, though material, by itself would not vitiate the trial. However, when facts are so glaring and with the witnesses available, particularly when they are likely to give a different story, the Court shall take adequate note of it. When a circumstance has been brought to the notice of the Court by the defense and the Court is convinced that a prosecution witness has been deliberately withheld, as it in all probability would destroy its version, it has to take adverse notice. Anything contrary to such an approach would be an affront to the concept of fair play. (Para 24) 2023 LiveLaw (SC) 889

It is not the quantity but the quality of witnesses and evidence that can either make or break the case of the prosecution. It is the duty of the prosecution to prove that the testimonies of the witnesses that it seeks to rely upon are of sterling quality. (Para 10) 2023 LiveLaw (SC) 227

It is not the quantity of the witnesses but the quality of witnesses which matters. (Para 21) 2023 LiveLaw (SC) 110

Evidence Act, 1872

Evidence Act, 1872 - Murder trial - Principle of corpus delicti – non-recovery of the corpse would have relevance in considering the links of chain of circumstances. (Para 16) 2023 LiveLaw (SC) 152

Section 3 - Interpretation-clause

Evidence Act, 1872; Section 3 - “Fact” - Reputation is a fact - Facts can broadly be divided into external and internal facts. External facts are those which can be perceived by the five senses while internal facts arise through thoughts and feelings such as love, anger, fear, hatred and intention etc. A reputation has to be seen from the point of view of an identifiable group while character is what a person really is. Character is to be formed while reputation is to be acquired. Character may lead to formation of one's reputation but both are distinct and different. Reputation thus forms part of internal facts and therefore it is required to be proved in the form of opinion of persons who form it accordingly. When reputation is to be taken as a relevant fact, its evidentiary value becomes restrictive and limited. It is indeed a weak piece of evidence when becomes relatable to a fact in issue. (Para 16) 2023 LiveLaw (SC) 889

Section 6 - Relevancy of facts forming part of same transaction

Evidence Act, 1872; Section 6 - Assuming that the statements attributed to the appellant and PW-12 were in fact made, the conduct of the appellant in making the said statement becomes relevant in view of Section 6. Section 6 is applicable to facts that are not in issue. Such facts become relevant only when the same satisfies the tests laid down in Section 6. Hence, the statement of an accused to which Section 6 is applicable cannot be treated as a confession of guilt. The statement becomes relevant which can be read in evidence as it shows the conduct of the appellant immediately after the incident. (para 18) 2023 LiveLaw (SC) 539

Evidence Act, 1872; Section 6 - Principle of res gestae - Relevancy of facts forming part of same transaction - The rule embodied in Section 6 is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence. (Para 49) 2023 LiveLaw (SC) 279

Section 8 - Motive, preparation and previous or subsequent conduct

Evidence Act, 1872; Section 8 - Motive, preparation and previous or subsequent conduct - Concept of Reputation - Character and reputation do have an element of interconnectivity. Reputation is predicated on the general traits of character. In other words, character may be subsumed into reputation. Courts are not expected to get carried away by the mere background of a person especially while acting as an appellate forum, when his conduct, being a relevant fact, creates serious doubt. In other words, the conduct of a witness under Section 8 of the Evidence Act, is a relevant fact to decide, determine and prove the reputation of a witness. When the conduct indicates that it is unnatural from the perspective of normal human behaviour, the so-called reputation takes a back seat. (Para 18) 2023 LiveLaw (SC) 889

Evidence Act, 1872; Section 8 - Conduct of the accused – Accused was instrumental in making all possible efforts to wipe out the evidence against him and the Prosecution machinery as also the Presiding Officer of the Trial Court, if we may say so, was used as a tool of his highhandedness. The obvious question pops up in the mind of any prudent person, as to why he was instrumental, when he was not guilty of the offence to which he was being tried. The obvious answer to this would reasonably come to mind of any prudent person that his guilty mind was fearful about the result. All these aspects leave no room for doubt that the subsequent conduct of the accused is one of the major circumstances pointing towards his guilt for the incident. (Para 72, 73) 2023 LiveLaw (SC) 664

Evidence Act, 1872; Section 8, 27 - The conduct of an accused is relevant, if such conduct influences or influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where he had concealed the weapon of offence would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act or not. (Para 78) 2023 LiveLaw (SC) 703

Section 9 - Facts necessary to explain or introduce relevant facts

Evidence Act, 1872; Section 9 - Test Identification Parade - The entire necessity for holding an investigation parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source - Investigation parade does not hold much value when the identity of the accused is already known to the witness. (Para 9) 2023 LiveLaw (SC) 242

Section 11 - When facts not otherwise relevant become relevant

Evidence Act, 1872; Section 11 - plea of alibi - It is not part of the General Exceptions under the IPC and is instead a rule of evidence. This plea being taken does not lessen the burden of the prosecution to prove that the accused was present at the scene of the crime and had participated therein. Such plea is only to be considered subsequent to the prosecution having discharged, satisfactorily, its burden. The burden to establish the plea is on the person taking such a plea. The same must be achieved by leading cogent and satisfactory evidence. It is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the spot of the crime. In other words, a standard of 'strict scrutiny' is required when such a plea is taken. (Para 19) 2023 LiveLaw (SC) 891

Section 25 - Confession to police-officer not to be proved

Evidence Act, 1872; Section 25 - Narcotic Drugs and Psychotropic Substances Act, 1985; Section 53 - Any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are “police officers” within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. (Para 10) 2023 LiveLaw (SC) 813

Section 27 - How much of information received from accused may be proved

Evidence Act, 1872; Section 27 - The recovery of a weapon from an open place accessible to all is not reliable. (Para 25 & 26) 2023 LiveLaw (SC) 961

Evidence Act, 1872; Section 27 - For a confession made to the police to be admissible, two essential conditions must be met: the individual must be 'accused of any offence,' and they must be in 'police custody' at the time the confession is made. (Para 22) 2023 LiveLaw (SC) 814

Evidence Act, 1872; Section 27 - Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence sufficient on its own and without anything more to bring home the charges beyond reasonable doubt. (Para 21) 2023 LiveLaw (SC) 629

Evidence Act, 1872; Section 27 - As far as the recovery is concerned, the recovery is again weak. The so­called alleged place of crime and the recovery of tractor or the place where the tractor was abandoned had already been disclosed by the co­accused by the time the present appellant was arrested. Therefore, making a disclosure about the place of occurrence or the place where the tractor was abandoned is of no consequence. As far as the recovery of watch, currency notes of Rs. 250/­, hair and 'Parna' from the residence of the accused are concerned, the currency notes and hair have not been identified with the deceased. What we can call as discovery here under Section 27 of the Act, is the discovery of 'Parna' and watch of the deceased. This evidence in itself is not sufficient to fix guilt on the accused. (Para 15) 2023 LiveLaw (SC) 395

Evidence Act, 1872; Section 27 - Disclosure statements, consequential discoveries and their connect with crime - Having doubted the recovery of clothes at the instance of the accused, the circumstance that the clothes carried blood of same group as of the deceased is rendered meaningless because there is no admissible evidence to connect the clothes with the two accused. The disclosure statement made to the police, even if not discarded, was not admissible for proving that the clothes recovered were the one which the accused were wearing at the time of murder. The reason being that only so much of the disclosure would be admissible under Section 27 of the IEA, 1872 as distinctly relates to the fact thereby discovered which, in the instant case, would be the place where the clothes were concealed. (Para 76) 2023 LiveLaw (SC) 418

Evidence Act, 1872 - Section 27 permits the derivative use of custodial statement in the ordinary course of events. There is no automatic presumption that the custodial statements have been extracted through compulsion. A fact discovered is an information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered at the instance of the accused which was not within the knowledge of the police before recording the disclosure statement of the accused. The statement of an accused recorded while being in police custody can be split into its components and can be separated from the admissible portions. Such of those components or portions which were the immediate cause of the discovery would be the legal evidence and the rest can be rejected. (Para 18) 2023 LiveLaw (SC) 338

Evidence Act, 1872; Section 27 – Confessional statement not liable to be rejected merely because it was recorded in a language not known to the accused through translator. 2023 LiveLaw (SC) 338

Evidence Act, 1872; Section 27 - The law expects the IO to draw the discovery panchnama as contemplated under Section 27. (Para 25-26) 2023 LiveLaw (SC) 50

Evidence Act, 1872; Section 27 - There is no statement of accused recorded under Section 27 of the Evidence Act - The prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of the accused - Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. (Para 20 -26) 2023 LiveLaw (SC) 50

Evidence Act, 1872; Section 27 - Two essential requirements for the application of Section 27 - (1) the person giving information must be an accused of any offence and (2) he must also be in police custody - The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence. (Para 31-33) 2023 LiveLaw (SC) 50

Section 32 - Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

Evidence Act, 1872; Section 32 - Principles in regard to Dying Declarations – The basic premise is “nemo moriturus praesumitur mentire” i.e. man will not meet his maker with a lie in his mouth. For a statement to be termed a “dying declaration”, and thereby be admissible under Section 32 of IEA, the circumstances discussed / disclosed therein “must have some proximate relation to the actual occurrence”. A dying declaration inspires confidence of the court it can, even sans corroboration, form the sole basis of conviction. If such a declaration does not inspire confidence in the mind of the court, i.e., there exist doubts about the correctness and genuineness thereof, it should not be acted upon, in the absence of corroborative evidence. The Court must be satisfied that at the time of making such a statement, the deceased was in a “fit state of mind”. In case of a plurality of such statements, it is not the plurality but the reliability of such declaration determines its evidentiary value. The presence of a Magistrate in recording of a dying declaration, is not a necessity but only a rule of Prudence. Dying Declaration is not to be discarded by reason of its brevity. Examination of the person who reduced into writing, the dying declaration, is essential. It is required that such statement be free from tutoring, prompting, or not be a product of imagination. (Para 11 & 20) 2023 LiveLaw (SC) 961

Evidence Act, 1872; Section 32 - Dying Declaration - If the scribe, for reasons beyond control, such as incapacitation or death, would be unavailable, it would be open for the prosecution to take necessary aid of secondary evidence. That not being the case however, such unexplained nonexamination would, render the case to be doubtful if not, land a fatal blow to the prosecution case. (Para 19) 2023 LiveLaw (SC) 961

Evidence Act, 1872; Section 32 - Dying Declaration - In the case at hand, the deceased gave his statement in the form of a written statement and narrated the entire incident and circumstances of the transaction which resulted in his death. Subsequently, he died on account of injuries suffered by him in the incident in question. This fact is not in dispute and hence, the FIR lodged on the basis of a written statement of injured is liable to be treated as a dying declaration, which itself is a substantive piece of evidence and is admissible under Section 32(1) of the Evidence Act. (Para 95) 2023 LiveLaw (SC) 664

Evidence Act, 1872; Section 32 - Dying Declaration - Statement by an injured person recorded as FIR can be treated as a dying declaration and such a statement is admissible. The dying declaration must not cover the whole incident or narrate the case history. Corroboration is not necessary for this situation; a dying declaration can be the sole basis for conviction. (Para 91) 2023 LiveLaw (SC) 664

Evidence Act, 1872; Section 32 – Dying Declaration – Weight Assigned in Criminal Proceedings – Great caution must be exercised while placing reliance on dying declarations even as the law attaches a presumption of truthfulness to such statements – No hard and fast rule for determining when a dying declaration should be accepted – Duty of the court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the declarations – Held, dying declarations not sufficient evidence in present case – Appeal allowed. 2023 LiveLaw (SC) 698

Evidence Act, 1872; Section 32 - Statement by an injured person which was later converted into an FIR, is admissible in evidence and is to be read as a dying declaration or his last statement. (Para 114 (a)) 2023 LiveLaw (SC) 664

Section 45 - Opinions of Experts

Evidence Act, 1872; Section 45 - If this opinion is read with the opinion dated 18th August 1995, it is apparent that if the change lever is not in a safety position, the firearm can be cocked by entangling with a chain. (Para 13) 2023 LiveLaw (SC) 539

Section 56 - Fact judicially noticeable need not be proved

Evidence Act, 1872; Section 56 - Doctrine of Judicial Notice - Law in respect of taking judicial notice of any fact – (i) The doctrine of judicial notice, as provided under Section 56, is an exception to general rules of evidence applicable for proving any fact by adducing evidence in the Court of law. (ii). According to Section 56 of the Evidence Act, judicial notice of any such fact can be taken by the Court, which is well-known to everyone, which is in the common knowledge of everyone, which is authoritatively attested, which is so apparent on the face of the record, etc. (iii). Except in the rarest of rare cases, judicial notice of any fact is generally not taken in criminal matters in the normal course of proceeding, and the case is decided on the basis of oral, material and documentary evidence adduced by the parties to find out the guilt or innocence. (Para 66) 2023 LiveLaw (SC) 664

Evidence Act, 1872; Section 56 - Judicial notice is taken of the judgment in the Habeas Corpus petition regarding the conduct of the accused, the investigating agency, the Public Prosecutor and the Presiding Officer conducting the trial. The two administrative reports of the respective judges, who were constitutional functionaries, also have to be given due credence and cannot be ignored outright regarding the conduct of the accused, public prosecutor and the Presiding Officer conducting the Trial. (Para 114 (f), (g)) 2023 LiveLaw (SC) 664

Section 63 - Secondary Evidence

Evidence Act, 1872; Section 63 - Principles relevant for examining the admissibility of secondary evidence - Explained. (Para 33) 2023 LiveLaw (SC) 1022

Section 65 - Cases in which secondary evidence relating to documents may be given

Evidence Act, 1872; Section 65 - Indian Stamp Act, 1899; Section 35 - Where the question is whether the document is liable to stamp duty and penalty, it has to be decided at the threshold even before marking a document. (Para 41) 2023 LiveLaw (SC) 1022

Evidence Act, 1872; Section 65 - Indian Stamp Act, 1899; Section 35 - If a document that is required to be stamped is not sufficiently stamped, a copy of such document as secondary evidence cannot be adduced. (Para 39) 2023 LiveLaw (SC) 1022

Evidence Act 1872; Sections 65, 74, 77 and 79 - Registration Act, 1908; Section 57 (5) - Certified copy of an original sale deed is admissible in evidence in a trial. (Para 29) 2023 LiveLaw (SC) 811

Section 65B - Admissibility of electronic records

Evidence Act, 1872; Section 65B - A certificate under Section 65B of the Indian Evidence Act to prove electronic evidence can be produced at any stage of the trial. (Para 11) 2023 LiveLaw (SC) 965

Section 69 - Proof where no attesting witness found

Evidence Act, 1872; Section 69 - In the event where attesting witnesses may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable. (Para 17) 2023 LiveLaw (SC) 190

Section 74 - Public documents

Evidence Act, 1872; Section 74 - FIR is a public document. (Para 82) 2023 LiveLaw (SC) 664

Evidence Act, 1872 - Section 74, 76 - Copy of the chargesheet along with the necessary documents cannot be said to be public documents within the definition of Public Documents as per Section 74 of the Evidence Act - As per Section 75 of the Evidence Act all other documents other than the documents mentioned in Section 74 of the Evidence Act are all private documents. Therefore, the chargesheet / documents along with the chargesheet cannot be said to be public documents under Section 74 of the Evidence Act, reliance placed upon Sections 74 & 76 of the Evidence Act is absolutely misplaced. (Para 5) 2023 LiveLaw (SC) 52

Section 78 - Proof of other official documents

Evidence Act, 1872; Section 78 and 81 - Newspaper reports only hearsay evidence and it can only be treated as secondary evidence - Extrajudicial confession cannot be given greater credibility only because it is published in a newspaper and is available to the public at large. (Para 15) 2023 LiveLaw (SC) 594

Section 90 - Presumption as to documents thirty years old

Evidence Act, 1872; Section 90 - Wills cannot be proved only on the basis of their age – the presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills - Wills have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872. (Para 13) 2023 LiveLaw (SC) 190

Section 101 - Burden of Proof

Evidence Act, 1872; Section 101 and 102 - 'legal burden' and 'evidential burden' - The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side. While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. (Para 30) 2023 LiveLaw (SC) 866

Evidence Act, 1872; Section 101 and 106 – Burden of proving fact especially within knowledge - Section 106 of the Act is an exception to the rule which is Section 101 of the Act, and it comes into play only in a limited sense where the evidence is of a nature which is especially within the knowledge of that person and then the burden of proving that fact shifts upon him that person. The burden of proof is always with the prosecution. It is the prosecution which has to prove its case beyond a reasonable doubt. Section 106 of the Act does not alter that position. It only places burden for disclosure of a fact on the establishment of certain circumstances. (Para 12) 2023 LiveLaw (SC) 395

Evidence Act, 1872; Section 101 - 102 - Declaration of Title - Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. 2022 LiveLaw (SC) 19

Section 106 - Burden of proving fact especially within knowledge

Evidence Act, 1872; Section 106 - Burden of proving fact especially within knowledge - Principles of law governing the applicability of Section 106 – Explained. (Para 33 - 46) 2023 LiveLaw (SC) 861

Evidence Act, 1872; Section 106 - Section 106 of the Evidence Act does not inherently impose a burden on the accused but comes into play when the accused fails to provide any explanation regarding facts that should be within their knowledge, facts that could support theories compatible with their innocence. (Para 56) 2023 LiveLaw (SC) 861

Evidence Act, 1872; Section 106 - When an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete - Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show, that shortly before the commission of the crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not dispute his presence at home at the relevant time and does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. 2023 LiveLaw (SC) 601

Evidence Act, 1872; Section 106 – Last Seen Theory - What has to be kept in mind is that Section 106 of the Act, only comes into play when the other facts have been established by the prosecution. In this case when the evidence of last seen itself is on a weak footing, considering the long gap of time between last seen by PW­10 and the time of death of the deceased. Section 106 of the Act would not be applicable under the peculiar facts and the circumstances of the case. In the present case the prosecution has not been able to prove its case beyond reasonable doubt. The evidence of last seen, only leads upto a point and no further. It fails to link it further to make a complete chain. All we have here is the evidence of last seen, which as we have seen looses much of its weight under the circumstances of the case, due to the long duration of time between last seen and the possible time of death. (Para 13, 15) 2023 LiveLaw (SC) 395

Evidence Act, 1872; Section 106 - It is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. (Para 6) 2023 LiveLaw (SC) 120

Evidence Act, 1872; Section 106 - It is, of course, the duty of prosecution to lead the primary evidence of proving its case beyond reasonable doubt but, when necessary evidence had indeed been led, the corresponding burden was heavy on the accused in terms of Section 106 of the Evidence Act to explain as to what had happened at the time of incident and as to how the death of the deceased occurred. (Para 16.4.1) 2023 LiveLaw (SC) 2

Evidence Act, 1872; Section 106 - Last seen theory - On its own, last seen theory is considered to be a weak basis for conviction. However, when the same is coupled with other factors such as when the deceased was last seen with the accused, proximity of time to the recovery of the body of deceased etc., the accused is bound to give an explanation under Section 106 of the Evidence Act, 1872. If he does not do so, or furnishes what may be termed as wrong explanation or if a motive is established – pleading securely to the conviction of the accused closing out the possibility of any other hypothesis, then a conviction can be based thereon. (Para 17.7) 2023 LiveLaw (SC) 225

Section 113A - Presumption as to abetment of suicide by a married woman

Evidence Act, 1872; Section 113A - Penal Code, 1860; Section 306 - Mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC. (Para 14) 2023 LiveLaw (SC) 149

Section 114 - Court may presume existence of certain facts

Evidence Act, 1872 - Section 114 - If courts find evidence in possession of a party that has not been produced it can assume that production of the same would be unfavourable to the person who withholds it as per illustration (g) of Section 114 of the Evidence Act. However, on the basis of the fact that an evidence that ought to have been adduced was not adduced, the High Court cannot remand the matter - merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt the soft course of remanding the matter. (Para 14) 2023 LiveLaw (SC) 145

Evidence Act, 1872; Section 114(a) - A presumption of fact must be drawn considering other evidence on record and without corroboration from other cogent evidence, it must not be drawn in isolation. (Para 36) 2023 LiveLaw (SC) 629

Section 118 - Who may testify

Evidence Act, 1872; Section 118 - Criminal Trial - Child Witness - Trial Judge's duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him - The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court. (Para 7-9) 2023 LiveLaw (SC) 501

Section 134 - Number of witnesses

Evidence Act, 1872; Section 134 - Evidence has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the quantity - Even in a case of murder, it is not necessary to insist upon a plurality of witnesses and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a conviction - Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance - Generally speaking, oral testimony may be classified into three categories, viz.: (i) Wholly reliable; (ii) Wholly unreliable; (iii) Neither wholly reliable nor wholly unreliable. The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s). However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence. (Para 28) 2023 LiveLaw (SC) 60

Section 154 - Question by party to his own witness

Evidence Act, 1872; Section 154 - Testimony of a hostile witness can be accepted to the extent that the version is found to be dependable on careful scrutiny thereof. Testimony of such a witness can be relied upon and cannot be treated as being washed off the record. (Para 19) 2023 LiveLaw (SC) 974

Section 165 - Judge's power to put questions or order production

Evidence Act, 1872; Section 165 - Inquiries in respect of sexual harassment must be examined on broader probabilities keeping in mind the entire background of the case. The courts should not get swayed by insignificant discrepancies or hyper-technicalities. If Section 165 of the Evidence Act permits a Judge to put questions to the parties or to the witnesses in order to discover or obtain proper proof of relevant facts and this provision being widely used by the judges throughout the country, we fail to understand as to how the complaints committee after being equated with a judge in a judicial proceeding be denied that privilege. However, it would be a different situation if a specific case of personal bias is made out against the members of the committee. After all, the very purpose of the disciplinary proceedings is to reach to the bottom of the fact while affording adequate opportunities to the affected party. Thus, the High Court was not correct in taking the view that the proceedings stood vitiated because the Central Complaints Committee put questions to the prosecution witnesses. (Para 43, 93 & 77) 2023 LiveLaw (SC) 959