Supreme Court Half Yearly Digest 2024: Evidence Act

Evidence

Appreciation of Evidence – The High Court fails to appreciate evidence in a thorough manner and merely relied on a limited set of facts to arrive at a finding. In an appeal, as much as in a trial, appreciation of evidence essentially requires a holistic view and not a myopic view. Appreciation of evidence requires sifting and weighing of material facts against each other and a conclusion of guilt could be arrived at only when the entire set of facts, lined together, points towards the only conclusion of guilt. Appreciation of partial evidence is no appreciation at all, and is bound to lead to absurd results. (Para 35) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115 : AIR 2024 SC 1252 : 2024 CriLJ 1137 : (2024) 3 SCC 544

As soon as an accused or suspected person comes into the hands of a police officer, he is no longer at liberty and is under a check, and is, therefore, in “custody” within the meaning of Sections 25 to 27 of the Evidence Act. (Para 28) Perumal Raja @ Perumal v. State rep. by the Inspector of Police, 2024 LiveLaw (SC) 8 : AIR 2024 SC 460 : 2024 CriLJ 1013

Ballistic expert - It is not that in each and every case where the death of the victim is due to gunshot injury that the opinion of the ballistic expert should be obtained and the expert be examined. When there is direct eye witness account which is found to be credible, omission to obtain ballistic report and non-examination of ballistic expert may not be fatal to the prosecution case but if the evidence tendered including that of eyewitnesses do not inspire confidence or suffer from glaring inconsistencies coupled with omission to examine material witnesses, the omission to seek ballistic opinion and examination of the ballistic expert may be fatal to the prosecution case. (Para 29) Ram Singh v. State of U.P., 2024 LiveLaw (SC) 144 : AIR 2024 SC 1176 : 2024 CriLJ 1297 : (2024) 4 SCC 208

Burden of Proof – The threshold of the 'burden of proof' required to be discharged, when challenging a particular charge as an “illegal charge”, is only on the preponderance of probabilities, upon which the onus will shift on the authorities to establish how the particular charge is valid. Railways failed to establish that 444 kms was the correct chargeable distance, hence, it was declared that the said computation was illegal. (Para 121) Union of India v. Indian Oil Corporation Ltd., 2024 LiveLaw (SC) 256 : AIR 2024 SC 1820

Circumstantial evidence – Chain of circumstances – The circumstances set out are by themselves consistent with the sole hypothesis that the accused and the accused alone is the perpetrator of these murders which were most foul. Held, the circumstances presented in evidence in this case meets the ingredients that are required to be established. Hence, no reason to interfere with the concurrent conviction recorded by the trial Court and the High Court against the appellant. (Para 15) Navas @ Mulanavas v. State of Kerala, 2024 LiveLaw (SC) 248 : 2024 CriLJ 1797

Circumstantial evidence – Entire case of the prosecution is based on circumstantial evidence. The principles concerning circumstantial evidence are referred to as the “Panchsheel” principles. Essentially, circumstantial evidence comes into picture when there is absence of direct evidence. For proving a case on the basis of circumstantial evidence, it must be established that the chain of circumstances is complete and is consistent with the only conclusion of guilt. The chain of circumstantial evidence is essentially meant to enable the court in drawing an inference and the task of fixing criminal liability on the strength of an inference must be approached with abundant caution. The circumstances sought to be proved by the prosecution are inconsistent and the inconsistencies are unexplained by the prosecution. Drawing an inference of guilt on the basis of inconsistent circumstantial evidence would result into failure of justice. The evidence on record fails the test for the acceptability of circumstantial evidence. (Para 27) Kalinga @ Kushal v. State of Karnataka, 2024 LiveLaw (SC) 142 : AIR 2024 SC 1208 : 2024 CriLJ 1282 : (2024) 4 SCC 735

Circumstantial evidence – Held, the statement of witness by itself provides a complete chain of circumstantial evidence sufficient to establish the guilt of the accused appellant. The prosecution has established the chain of incriminating circumstantial evidence pointing exclusively towards the guilt of the accused appellant and totally inconsistent with his innocence or the involvement of any other person in the crime. (Para 38 & 48) Sukhpal Singh v. NCT of Delhi, 2024 LiveLaw (SC) 359 : AIR 2024 SC 2724

Circumstantial evidence – In absence of direct evidence, case essentially falls back on circumstantial evidence. The prosecution has failed to complete the chain of circumstances. The circumstances are far from conclusive and a conclusion of guilt could not be drawn from them. To sustain a conviction, the Court must form the view that the accused “must have” committed the offence, and not “may have”. (Para 37 & 38) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115 : AIR 2024 SC 1252 : 2024 CriLJ 1137 : (2024) 3 SCC 544

Circumstantial evidence – Panchsheel or the five principles essential to be kept in mind while convicting an accused in a case based on circumstantial evidence: - (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, (2) 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, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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 probability the act must have been done by the accused. (Para 14) Navas @ Mulanavas v. State of Kerala, 2024 LiveLaw (SC) 248 : 2024 CriLJ 1797

Circumstantial evidence – Proof of case based on circumstantial evidence – 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' proved guilty before a court can convict the accused. It 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. Suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, and is presumed to be innocent unless proved guilty beyond a reasonable doubt. Held, chain of circumstances as complete as leading to only the guilt of accused, not established. (Para 9) Ravishankar Tandon v. State of Chhattisgarh, 2024 LiveLaw (SC) 296 : AIR 2024 SC 2087 : 2024 CriLJ 2039

Conclusive Evidence – The accused persons had sought to place reliance on income tax returns and income tax assessment orders. Held, income tax returns and orders may be admissible as evidence but are not themselves conclusive proof of lawful source of income under Section 13 of the Prevention of Corruption Act and that independent evidence to corroborate the same would be required. The probative value of value of the Orders of the Income Tax Authorities, including the Order of the Income Tax Appellate Tribunal and the subsequent Assessment Orders, would depend on the nature of the information furnished and findings recorded in the order, and would not ipso facto either conclusively prove or disprove a charge. The High Court has rightly not discharged the appellants based on the Orders of the Income Tax Authorities. (Para 29 & 32) Puneet Sabharwal v. CBI, 2024 LiveLaw (SC) 260 : AIR 2024 SC 2046

Conviction on sole evidence of victim – Conviction undoubtedly can be recorded on the sole evidence of a victim of crime; however, it must undergo a strict scrutiny through the well settled legal principles. (Para 22) Nirmal Premkumar v. State, 2024 LiveLaw (SC) 221

Conviction on the basis of circumstantial evidence – Prosecution to prove case beyond reasonable doubt – It is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. It is a primary principle that the accused 'must be' and not merely 'may be' proved guilty before a court can convict the accused. 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. 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. The suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt and an accused cannot be convicted on the ground of suspicion. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. Held, the prosecution has failed to prove any of the incriminating circumstances beyond reasonable doubt and in no case, the chain of circumstances, which was so interlinked to each other that leads to no other conclusion, than the guilt of the accused persons. Held, the findings of the learned trial Judge are based on correct appreciation of the material placed on record. (Para 6, 7 & 13) Ballu @ Balram @ Balmukund v. State of Madhya Pradesh, 2024 LiveLaw (SC) 271 : AIR 2024 SC 1678

Court has to strike a balance between testimonies of Injured Witness & Interested Witness. The evidence of an injured witness is considered to be on a higher pedestal than that of a witness simpliciter. (Para 28 & 34) Periyasamy v. State, 2024 LiveLaw (SC) 244 : AIR 2024 SC 1667

Credibility of Evidence – Held, the surveyor's report is a credible evidence and the court may rely on it until a more reliable evidence is brought on record. (Para 23) United India Insurance Co. Ltd. v. Hyundai Engineering & Construction Co. Ltd., 2024 LiveLaw (SC) 409 : AIR 2024 SC 2868

Credibility of testimony of the victim in matters involving sexual offences –The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution's case. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, casts serious doubt with regard to the veracity of the prosecution version and could make it difficult for a conviction to be recorded. Considering the evidence of a victim subjected to a sexual offence, the Court does not necessarily demand an almost accurate account of the incident and allows the victim to provide her version based on her recollection of events, to the extent reasonably possible for her to recollect. If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version. Material contradictions apparent in the depositions of prosecution witnesses, including the victim, significantly undermine the credibility of the prosecution version. Enough missing links present to extend the benefit of doubt to the accused. (Para 15, 16, 17 & 22) Nirmal Premkumar v. State, 2024 LiveLaw (SC) 221

Delay in filing the FIR and delay in examination of prosecution witness – The delay therefore renders the circumstances questionable. Hence, it cannot be said that the prosecution had succeeded in establishing its case against the two accused persons beyond reasonable doubt warranting a conviction under Section 302 IPC. (Para 42) Periyasamy v. State, 2024 LiveLaw (SC) 244 : AIR 2024 SC 1667

Documentary evidence – The photocopy of a document is inadmissible in evidence. (Para 36) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301 : AIR 2024 SC 1947

Duty of public prosecutor to cross-examine hostile witness – It is the duty of the Public Prosecutor to cross-examine a hostile witness in detail and try to elucidate the truth & also establish that the witness is speaking lie and has deliberately resiled from his police statement recorded under Section 161 of the Cr.P.C. A good, seasoned and experienced Public Prosecutor will not only bring the contradictions on record, but will also cross-examine the hostile witness at length to establish that he or she had actually witnessed the incident as narrated in his/her police statement. Only bringing the contradictions on record and thereafter proving such contradictions through the evidence of the Investigating Officer is not sufficient. (Para 69) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344 : AIR 2024 SC 2297 : 2024 CriLJ 2377

Evidentiary value of a hostile witness – The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. It was further held that the evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. (Para 9) Selvamani v. State, 2024 LiveLaw (SC) 358 : AIR 2024 SC 2273

Extra judicial confession – It is considered as a weak type of evidence and is generally used as a corroborative link to lend credibility to the other evidence on record. An extra judicial confession must be accepted with great care and caution. If it is not supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. The standard required for proving an extra judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. The standard becomes even higher when the entire case of the prosecution necessarily rests on the extra judicial confession. (Para 14) Kalinga @ Kushal v. State of Karnataka, 2024 LiveLaw (SC) 142 : AIR 2024 SC 1208 : 2024 CriLJ 1282 : (2024) 4 SCC 735

Hostile witness – Appreciation of the evidence is challenged – The prosecutrix and her mother and aunt in their cross-examination, which was recorded three and a half months after the recording of the examination-in-chief, have turned around and not supported the prosecution case. Held, on account of a long gap between the examination-in-chief and cross examination, the witnesses were won over by the accused and they resiled from the version as deposed in the examination-in-chief which fully incriminates the accused. However, when the evidence of the victim as well as her mother and aunt is tested with the FIR, the statement recorded under Section 164 CrPC and the evidence of the Medical Expert), there is sufficient corroboration to the version given by the prosecutrix in her examination-in-chief. Hence, no reason to interfere with the concurrent findings of fact recorded by the trial court as well as the High Court on appreciation of the evidence. (Para 8, 13 & 15) Selvamani v. State, 2024 LiveLaw (SC) 358 : AIR 2024 SC 2273

illiterate witness - Appreciation of evidence led by such a witness has to be treated differently from other kinds of witnesses. It cannot be subjected to a hyper-technical inquiry and much emphasis ought not to be given to imprecise details that may have been brought out in the evidence. The evidence of a rustic/illiterate witness must not be disregarded if there were to be certain minor contradictions or inconsistencies in the deposition. (Para 27) Darshan Singh v. State of Punjab, 2024 LiveLaw (SC) 13 : AIR 2024 SC 627 : (2024) 3 SCC 164 : 2024 CriLJ 1601

illiterate witness - However, the testimony of an illiterate witness suffers not merely from technical imperfections, there are glaring omissions and improvements that have been brought out in the cross-examination, which cannot be attributed to the illiteracy of the individual deposition. If there were minor contradictions and inconsistencies, that could have been ignored since the recollection of exact details as to location and time can be attributed to the lack of literacy. (Para 28) Darshan Singh v. State of Punjab, 2024 LiveLaw (SC) 13 : AIR 2024 SC 627 : (2024) 3 SCC 164

Incidental witnesses – The incident, which transpired partly within the confines of the house and extended slightly beyond the deceased's premises, the family members and close relatives naturally become the witnesses. These individuals cannot be considered incidental witnesses; instead, they emerge as the most natural witnesses. (Para 29) State of Punjab v. Gurpreet Singh, 2024 LiveLaw (SC) 218 : (2024) 4 SCC 469

Independent witness – No independent witnesses were examined – The non-examination of independent witnesses would not be fatal to a case set up by the prosecution but if witnesses examined are found to be 'interested' then, the examination of independent witnesses would assume importance. It is hard to conceive how the Trial Court concluded that despite being the first cousin of D-1 and himself a person injured in the incident, PW-1 was not an interested witness. Further, considering categorical statement that “the wine shop is in the main road” and “the wine shop would be crowded always” the joining of independent witnesses ought not to have been a difficult task but, yet, it remained unachieved. (Para 31) Periyasamy v. State, 2024 LiveLaw (SC) 244 : AIR 2024 SC 1667

Injured Witness - The importance of an injured witness in a criminal trial cannot be overstated. Unless there are compelling circumstances or evidence placed by the defence to doubt such a witness, this has to be accepted as extremely valuable evidence in a criminal Trial. (Para 11) Neeraj Sharma v. State of Chhattisgarh, 2024 LiveLaw (SC) 7 : AIR 2024 SC 271 : (2024) 3 SCC 125

Insufficiency of evidence – Sufficiency of the materials on record - Ordinarily the court should not get into or look into the sufficiency of the materials on record on the basis of which the requisite subjective satisfaction is arrived at by the Detaining Authority. However, if the facts of the case are such that the court is required to go into such issues, it may be done. The detention of the detenue is only relied upon on his confessional statement before the police and there is no test identification parade carried out by the police. There is nothing to indicate that the nefarious activities of the detenu created an atmosphere of panic and fear in the minds of the people of the concerned locality. Held, it is a case of and it prima facie, appears that the detenu might have been picked up by the police on suspicion and then relied upon his confessional statement before the police. (Para 33) Nenavath Bujji v. State of Telangana, 2024 LiveLaw (SC) 253 : AIR 2024 SC 1610 : 2024 CriLJ 1733

Interested witness – Where a testimony is duly explained and inspires confidence, the Court is not expected to reject the testimony of an interested witness. However, when the testimony is full of contradictions and fails to match evenly with the supporting evidence the Court is bound to sift and weigh the evidence to test its true weight and credibility. (Para 33) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115 : AIR 2024 SC 1252 : 2024 CriLJ 1137 : (2024) 3 SCC 544

Ocular evidence is sufficient to prove the guilt of the accused even if it unmatches with the doctor's expert evidence-Undoubtedly, only one kind of weapon i.e. chopper was used in committing the crime and, therefore, the evidence of the doctor may not be matching with that of the prosecution, but again, the ocular evidence of PW-3 and PW-4 is sufficient enough to prove that only chopper was used as a weapon of crime. In the light of the said evidence of the two eyewitnesses, the suggestion or opinion of the doctor cannot prevail as the opinion based upon probability is weak evidence in comparison to the ocular evidence of eyewitnesses. (Para 21) Haalesh @ Haleshi @ Kurubara Haleshi v. State of Karnataka, 2024 LiveLaw (SC) 88 : AIR 2024 SC 1056 : (2024) 3 SCC 475

Ocular Evidence - No doubt, they are members of the family and may be interested persons but their testimony cannot be discarded simply for the reason that they are family members in the scenario of the case that the incident took place inside the house of the deceased Shivanna, where there could not have been any other eyewitnesses other than the family members. The evidence of the aforesaid two eyewitnesses could not be shaken in the cross-examination. (Para 16) Haalesh @ Haleshi @ Kurubara Haleshi v. State of Karnataka, 2024 LiveLaw (SC) 88 : AIR 2024 SC 1056 : (2024) 3 SCC 475

Offence of sexual harassment in a public place, as opposed to one committed within the confines of a room or a house, or even in a public place but away from the view of the public, stands on different premise. If any doubt arises in the Court's mind regarding the veracity of the victim's version, the Court may, at its discretion, seek corroboration from other witnesses who directly observed the incident or from other attending circumstances to unearth the truth. (Para 18) Nirmal Premkumar v. State, 2024 LiveLaw (SC) 221

Power of the High Court to re-appreciate the evidence – There is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, such power is a qualified power. For re-appreciating evidence, the court must consider, whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence or whether the finding of the Trial Court is illegal or affected by an error of law or fact or whether the view taken by the Trial Court is a fairly possible view. (Para 25) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115 : 2024 CriLJ 1137 : AIR 2024 SC 1252 : (2024) 3 SCC 544

Presumption of constitutionality – The presumption of constitutionality is based on two premises. First, it is based on democratic accountability, that is, legislators are elected representatives who are aware of the needs of the citizens and are best placed to frame policies to resolve them. Second, legislators are privy to information necessary for policy making which the Courts as an adjudicating authority are not. The presumption of constitutionality is rebutted when a prima facie case of violation of a fundamental right is established, upon which the onus would shift to the State to justify the infringement. The broad argument of the petitioners that the presumption of constitutionality should not apply to a specific class of statutes, that is, laws which deal with electoral processes cannot be accepted. Courts cannot carve out an exception to the evidentiary principle which is available to the legislature based on the democratic legitimacy which it enjoys. Association for Democratic Reforms v. Union of India, 2024 LiveLaw (SC) 118 : AIR 2024 SC 1441

Presumption of innocence – The presumption is in favour of accused, unless proven guilty – The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal. (Para 24) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115 : AIR 2024 SC 1252 : 2024 CriLJ 1137 : (2024) 3 SCC 544

Prima facie means “at first sight”, “at first view”, or “based on first impression” – “Evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties. (Para 49) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344 : AIR 2024 SC 2297 : 2024 CriLJ 2377

Principles of circumstantial evidence – The circumstances from which the conclusion of guilt is to be drawn should be fully established. 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. They should 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 probability the act must have been done by the accused. (Para 37) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115 : AIR 2024 SC 1252 : 2024 CriLJ 1137 : (2024) 3 SCC 544

Re-appreciation of evidence – Reverse an order of acquittal - The Trial Court had appreciated the entire evidence in a comprehensive sense and the High Court reversed the view without arriving at any finding of perversity or illegality in the order of the Trial Court. The High Court, in exercise of appellate powers, may re-appreciate the entire evidence, however reversal of an order of acquittal is not to be based on mere existence of a different view or a mere difference of opinion. To reverse an order of acquittal in appeal, it is essential to arrive at a finding that the order of the Trial Court was perverse or illegal; or that the Trial Court did not fully appreciate the evidence on record; or that the view of the Trial Court was not a possible view. The High Court took a cursory view of the matter and merely arrived at a different conclusion on a re-appreciation of evidence. (Para 25) Kalinga @ Kushal v. State of Karnataka, 2024 LiveLaw (SC) 142 : AIR 2024 SC 1208 : 2024 CriLJ 1282 : (2024) 4 SCC 735

Reasonable doubt – Minor inconsistencies could not be construed as reasonable doubts for ordering acquittal. A reasonable doubt is essentially a serious doubt which renders the possibility of guilt as highly doubtful. The inconsistencies in the case of the prosecution are not minor inconsistencies and the prosecution has miserably failed to establish a coherent chain of circumstances. The present case does not fall in the category of a light-hearted acquittal. (Para 29) Kalinga @ Kushal v. State of Karnataka, 2024 LiveLaw (SC) 142 : AIR 2024 SC 1208 : 2024 CriLJ 1282 : (2024) 4 SCC 735

Standard of proof – Beyond reasonable doubt – The prosecution has failed to prove the appellant's guilt beyond a reasonable doubt. Hence, the impugned orders cannot be sustained, and they are hereby quashed and set aside. (Para 23) Pankaj Singh v. State of Haryana, 2024 LiveLaw (SC) 274

Standard of proof – In civil cases including matrimonial disputes of a civil nature, the standard of proof is not proof beyond reasonable doubt 'but' the preponderance of probabilities tending to draw an inference that the fact must be more probable. Inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. If there are no positive proved facts - oral, documentary, or circumstantial - from which the inferences can be drawn, the method of inference would fail and what would remain is mere speculation or conjecture. Held, weighing the evidence on preponderance of probabilities, it is the appellant who has established a stronger and more acceptable case. (Para 19, 20 & 35) Maya Gopinathan v. Anoop S.B., 2024 LiveLaw (SC) 327 : AIR 2024 SC 2454

Tutored Witness – Benefit of doubt – Held, evidence of the PW2 – PW5 will have to be discarded as there is a distinct possibility that the said witnesses were tutored by the police on a day before it was recorded by trial court. This kind of interference by the Police with the judicial process, amounts to gross misuse of power by the Police machinery. Hence, there is a serious doubt created about the genuineness of the prosecution case and the benefit of this substantial doubt must be given to the appellants. Therefore, both the Sessions Court and the High Court have committed an error in convicting the appellants. (Para 8 & 9) Manikandan v. State by the Inspector of Police, 2024 LiveLaw (SC) 281 : AIR 2024 SC 1801

Two-views theory – When the appreciation of evidence results into two equally plausible views, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution and reinforces the presumption of innocence of accused. When two views are possible, following the one in favour of innocence of the accused is the safest course of action. It is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by re-appreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. (Para 26) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115 : AIR 2024 SC 1252 : 2024 CriLJ 1137 : (2024) 3 SCC 544

Witness who was shown in the prosecution list but not examined by prosecution can be summoned as a defence witness. (Para 3 & 4) Sunder Lal v. State of Uttar Pradesh, 2024 LiveLaw (SC) 98

Evidence Act, 1872

Section 6 – Res gestae – Relevancy of facts forming part of same transaction – It is based on spontaneity and immediacy of such statement or fact in relation to the fact in issue. Provided that if there was an interval which ought to have been sufficient for purpose of fabrication then the statement recorded, even with slight delay may not be part of res gestae. Held, idea of search of the house of Accused No. 4, is an afterthought with an admitted time gap of 40­45 minutes. The search conducted at the residence of the Accused No. 04 is not a continuance of action based on the secret information received. (Para 27 & 28) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298 : AIR 2024 SC 2778

Section 8 & 27 – Conduct – The conduct of the appellant in leading the Investigating Officer and others to a drain nearby his house and the discovery of the knife from the drain is a relevant fact. It would be admissible as 'conduct' under Section 8 irrespective of the fact whether the statement made by the accused falls within the purview of Section 27 of the Evidence Act. The conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction is only one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. (Para 56 & 61) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344 : AIR 2024 SC 2297 : 2024 CriLJ 2377

Section 9 – Test Identification parade – Identification of the appellant by witness is quite doubtful as no proper identification parade has been conducted. Witness clearly states that he has identified the accused persons out of two people shown by the police. In the absence of proper identification parade being conducted, the identification for the first time in the Court cannot be said to be free from doubt. (Para 6 & 7) Jafar v. State of Kerala, 2024 LiveLaw (SC) 238

Section 14 – State of mind – Held, the accused went absconding after the murder and could not be traced out for almost 10 years which is also a strong circumstance pointing towards his guilty state of mind. (Para 45) Sukhpal Singh v. NCT of Delhi, 2024 LiveLaw (SC) 359 : AIR 2024 SC 2724

Sections 17 and 18 – Admission is a conscious and deliberate act and not something that could be inferred. An admission could be a positive act of acknowledgement or confession. To constitute an admission, one of the requirements is a voluntary acknowledgement through a statement of the existence of certain facts during the judicial or quasi-judicial proceedings, which conclude as true or valid the allegations made in the proceedings or in the notice. The formal act of acknowledgement during the proceedings waives or dispenses with the production of evidence by the contesting party. The admission concedes, for the purpose of litigation, the proposition of fact claimed by the opponents as true. An admission is also the best evidence the opposite party can rely upon, and though inconclusive, is decisive of the matter unless successfully withdrawn or proved erroneous by the other side. (Para 13.1) Raja Gounder v. M. Sengodan, 2024 LiveLaw (SC) 48 : AIR 2024 SC 644

Section 18 – A statement made by a person is not only evidence against the person but is also evidence against those who claim through him. Section 18 of the Act lays down the conditions and the requirements satisfied for applying to a statement as an admission. (Para 14) Raja Gounder v. M. Sengodan, 2024 LiveLaw (SC) 48 : AIR 2024 SC 644

Section 18 – Admission by party to proceeding or his agent - Section 18 of the Act deals with: (i) admission by a party to a proceeding, (ii) his agent, (iii) by a suitor in a representative character, (iv) statements made by a party in trusted subject matter, (v) statements made by a person from whom interest is derived. The qualifying circumstances to merit as admission are subject to satisfying the requirements. (Para 13.2 & 13.3) Raja Gounder v. M. Sengodan, 2024 LiveLaw (SC) 48 : AIR 2024 SC 644

Section 25 – Confession before a police officer – The bar under Section 25 of the IEA 1872 is not applicable against the admissibility of confessional statement made to the officers empowered under Section 41 and 42 of the NDPS Act 1985. (Para 50) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298 : AIR 2024 SC 2778

Section 25 – Confession before a police office – Confession of an accused recorded by a Police Officer is not admissible in evidence as the same is hit by Section 25 of the Evidence Act. (Para 23) Mohammed Khalid v. State of Telangana, 2024 LiveLaw (SC) 183 : (2024) 5 SCC 393

Section 27 - Four conditions to invoke Section 27 - First condition imposed and necessary for bringing the section into operation is the discovery of a fact which should be a relevant fact in consequence of information received from a person accused of an offence. The second is that the discovery of such a fact must be deposed to. A fact already known to the police will fall foul and not meet this condition. The third is that at the time of receipt of the information, the accused must be in police custody. Lastly, it is only so much of information which relates distinctly to the fact thereby discovered resulting in recovery of a physical object which is admissible. Rest of the information is to be excluded. The word 'distinctly' is used to limit and define the scope of the information and means 'directly', 'indubitably', 'strictly' or 'unmistakably'. Only that part of the information which is clear, immediate and a proximate cause of discovery is admissible. (Para 22) Perumal Raja @ Perumal v. State rep. by the Inspector of Police, 2024 LiveLaw (SC) 8 : AIR 2024 SC 460 : 2024 CriLJ 1013

Section 27 - The expression “custody” under Section 27 of the Evidence Act does not mean formal custody. It includes any kind of restriction, restraint or even surveillance by the police. Even if the accused was not formally arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police. (Para 25) Perumal Raja @ Perumal v. State rep. by the Inspector of Police, 2024 LiveLaw (SC) 8 : AIR 2024 SC 460 : 2024 CriLJ 1013

Section 27 of the Evidence Act is frequently used by the police, and the courts must be vigilant about its application to ensure credibility of evidence, as the provision is vulnerable to abuse. However, this does not mean that in every case invocation of Section 27 of the Evidence Act must be seen with suspicion and is to be discarded as perfunctory and unworthy of credence. (Para 24) Perumal Raja @ Perumal v. State rep. by the Inspector of Police, 2024 LiveLaw (SC) 8 : AIR 2024 SC 460 : 2024 CriLJ 1013

Section 27 – Discovery – It is only so much of the information as relates distinctly to the fact thereby discovered would be admissible. It will be necessary for the prosecution to establish that, the information given by the accused while in police custody had led to the discovery of the fact, which was distinctly within the knowledge of the maker of the statement. Held, the prosecution will have to establish that, before the information given by the accused persons on the basis of which the dead body was recovered, nobody had the knowledge about the existence of the dead body at the place from where it was recovered. A perusal of the evidence reveals that the police as well as these witnesses knew about the death and the dead body being found prior to the statements of the accused persons being recorded under Section 27. Hence, the prosecution has failed to prove that the discovery of the dead body was only on the basis of the disclosure statement made by the accused persons under Section 27 and that nobody knew about the same before that. (Para 13, 14, 21 & 22) Ravishankar Tandon v. State of Chhattisgarh, 2024 LiveLaw (SC) 296 : AIR 2024 SC 2087 : 2024 CriLJ 2039

Section 27 – Discovery – Rationale behind the provision – If a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and it can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. (Para 13) Ravishankar Tandon v. State of Chhattisgarh, 2024 LiveLaw (SC) 296 : AIR 2024 SC 2087 : 2024 CriLJ 2039

Section 27 – To prove disclosure statement and the discoveries made in furtherance – The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the Investigating Officer (IO) during interrogation and taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence. Held, mere exhibiting of memorandum prepared by the IO during investigation cannot tantamount to proof of its contents and the IO, while testifying on oath, would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement. By the interrogation memos, it is clear that the IO gave no description of the disclosure statements. Hence, the disclosure statements cannot be read in evidence and the recoveries made in furtherance thereof are non est in the eyes of law. (Para 59, 65 & 66) Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 LiveLaw (SC) 316 : AIR 2024 SC 2252 : 2024 CriLJ 2021

Section 32(1) – Dying Declaration – Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible. Once a dying declaration is found to be authentic inspiring confidence of the court, then the same can be relied upon and can be the sole basis for conviction without any corroboration. However, before accepting such a dying declaration, court must be satisfied that it was rendered voluntarily, it is consistent and credible and that it is devoid of any tutoring. Held, the contents of the dying declaration have been proved by prosecution witnesses. Certain inconsistencies in evidence of witness may take place due to the time gap of 5 years from the date of incident to the date of evidence given. Further held, though there are inconsistencies and improvements in the version of the prosecution witnesses, there is however convergence with the core of the narration of the deceased made in the dying declaration and the medical history recorded by the doctor. Hence, dying declaration is accepted as a valid piece of evidence and it clearly establishes the guilt of the appellant beyond all reasonable doubt. (Para 24, 25 & 35) Rajendra Ramdas Kolhe v. State of Maharashtra, 2024 LiveLaw (SC) 406 : AIR 2024 SC 2682

Section 60 – Oral evidence must be direct – The section mandates that no secondary/hearsay evidence can be given in case of oral evidence, except for the circumstances enumerated in the section. In case of a person who asserts to have heard a fact, only his evidence must be given in respect of the same. (Para 61) Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 LiveLaw (SC) 316 : AIR 2024 SC 2252 : 2024 CriLJ 2021

Section 65B – Admissibility of electronic record – Certificate to prove electronic evidence – The call records were discarded by the High Court as there was no certification under Section 65B of the Evidence Act. The Investigating Officer, was not aware of the procedure to be followed for obtaining a certificate under Section 65B of the Evidence Act. The State Government must ensure that the Police Officers are imparted proper training on this aspect. William Stephen v. State of Tamil Nadu, 2024 LiveLaw (SC) 168 : (2024) 5 SCC 258

Section 73 - Certified copy of a document issued by a Bank is itself admissible under the Bankers' Books Evidence Act, 1891 without any formal proof thereof. Hence, in an appropriate case, the certified copy of the specimen signature maintained by the Bank can be procured with a request to the Court to compare the same with the signature appearing on the cheque by exercising powers under Section 73 of the Act. (Para 15) Ajitsinh Chehuji Rathod v. State of Gujarat, 2024 LiveLaw (SC) 64 : AIR 2024 SC 787

Section 90 – Presumption for 30 years old documents – If the document is more than 30 years old and is being produced from proper custody, a presumption is available to the effect that signatures and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in case a document is executed or attested, the same was executed and attested by the persons by whom it purports to be executed and attested. This does not lead to a presumption that recitals therein are correct. (Para 17) Urban Improvement Trust v. Ganga Bai Menariya, 2024 LiveLaw (SC) 153

Section 105 – Presumption – Burden to prove case within exception – It is for the accused to show the applicability of Exception 4 of Section 302. (Para 78) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344 : AIR 2024 SC 2297 : 2024 CriLJ 2377

Section 106 – Burden of proof – The burden is upon the accused to prove. Held, the bald plea of denial offered by the accused is not sufficient to absolve him of the burden cast upon him. Failure of the accused to offer explanation for the homicidal death of his wife in the night time when only the accused and deceased were present in the house lead to the interference of guilt of accused. (Para 46 & 47) Sukhpal Singh v. NCT of Delhi, 2024 LiveLaw (SC) 359 : AIR 2024 SC 2724

Section 106 – Burden of proof – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word “especially” means facts that are pre-eminently or exceptionally within the knowledge of the accused. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish the facts which are, “especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience”. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused. (Para 35, 36 & 50) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344 : AIR 2024 SC 2297 : 2024 CriLJ 2377

Section 106 – Burden of proof – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 106 is not intended to relieve the prosecution of its duty. However, in exceptional cases where it could be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are especially within the knowledge of the accused, the burden will be on the accused since he could prove as to what transpired in such scenario, without difficulty or inconvenience. In this case, when an offence like multiple murders is committed inside a house in secrecy, the initial burden has to be discharged by the prosecution and once the prosecution successfully discharged the burden cast upon it, the burden did shift upon the appellant being the only other person inside the four corners of the house to offer a cogent and plausible explanation as to how the offences came to be committed. The appellant has miserably failed to prove. (Para 12) Navas @ Mulanavas v. State of Kerala, 2024 LiveLaw (SC) 248 : 2024 CriLJ 1797

Section 113A – Presumption as to abetment of suicide by a married women – The words 'may presume' makes the presumption discretionary. Before the presumption under Section 113A is raised, the prosecution must show (1) that her husband or relatives subjected her to cruelty and (2) that the married woman committed suicide within a period of seven years from the date of her marriage. The presumption would not be automatically applied on the mere fact that the deceased committed suicide within a period of seven years of her marriage. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty, the presumption under Section 113A of the Evidence Act may be raised, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Naresh Kumar v. State of Haryana, 2024 LiveLaw (SC) 166 : (2024) 3 SCC 573 : 2024 Cri LJ 1561

Section 114A – Applicability of presumption as to absence of consent for offences under Section 376(2) – The condition precedent for applicability of Section 114A is that the prosecution must be for the offence of rape under various clauses set out under Section 376(2) of the IPC. No charge was framed against the appellant accused for the offence punishable under Section 376(2)(f) of the IPC. In the absence of the charge framed under Section 376(2)(f) of the IPC, neither the prosecution nor the victim can contend that Section 376(2)(f) of the IPC was applicable. Therefore, the presumption under Section 114A of the Evidence Act will not apply, and the burden will be on the prosecution to prove that the sexual intercourse was without the consent of the Prosecutrix. (Para 11) Pankaj Singh v. State of Haryana, 2024 LiveLaw (SC) 274

Section 145 – To contradict the witness – While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need of further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, the contradiction is merely brought on record, but it is yet to be proved. (Para 66) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344 : AIR 2024 SC 2297 : 2024 CriLJ 2377

Section 145 and 161 - When a police officer uses a case diary for refreshing his memory, an accused automatically gets a right to peruse that part of the prior statement as recorded in the police officer's diary by taking recourse to Section 145 or Section 161, as the case may be, of the Evidence Act. (Para 26) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Section 145 and 161 - Accused has a right to cross-examine a police officer as to the recording made in the case diary whenever the police officer uses it to refresh his memory. Similarly, in a case where the court uses a case diary for the purpose of contradicting a police officer, then an accused is entitled to peruse the said statement so recorded which is relevant, and cross-examine the police officer on that count. Although the accused or his agents have no right to seek production of the case diaries as per Section 172(3) of the Code of Criminal Procedure, whenever the police officer uses it to refresh his memory, the accused will get a right to access it for the purpose of cross-examination. (Para 22, 26 & 27) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Section 145 and 161 - While it is the responsibility and duty of the Investigating Officer to make a due recording in his case diary, there is no corresponding right under subsection (3) of Section 172 of CrPC for accused to seek production of such diaries, or to peruse them, except in a case where they are used by a police officer maintaining them to refresh his memory, or in a case where the court uses them for the purpose of contradicting the police officer. In such a case, the provision of Section 145 or Section 161, as the case may be, of the Evidence Act, shall apply. (Para 22) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Section 165 and Criminal Procedure Code, 1973; Section 311 – The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses. The judge has uninhibited power to put questions to the witness either during the chief examination or cross-examination or even during re-examination for this purpose. The trial judge must exercise the vast powers conferred under Section 165 of the Evidence Act and Section 311 of the Cr.P.C. respectively to elicit all the necessary materials by playing an active role in the evidence collecting process. (Para 69, 73 & 74) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344 : AIR 2024 SC 2297 : 2024 CriLJ 2377