Home
/

Top Stories
/
Supreme Court Annual Digest 2022-...

Supreme Court Annual Digest 2022- Indian Evidence Act, 1872

Evidence Act 1872 - Dying Declaration - When can be relied upon - Conditions - It could thus be seen that the Court is required to examine as to whether the dying declaration is true and reliable; as to whether it has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration; as to whether it has been made under any tutoring/duress/prompting. The dying declaration can be the sole basis for recording conviction and if it is found reliable and trustworthy, no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher officer like a Magistrate can be relied upon. However, this is with the condition that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration has not been found to be made voluntarily and is not supported by any other evidence, the Court is required to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance. (Para 9) Makhan Singh v. State of Haryana, 2022 LiveLaw (SC) 677 : AIR 2022 SC 3793

“Matters”

Evidence Act, 1872 - “Matters” - Matters are necessary, concomitant material factors to prove a fact. All evidence would be “matters” but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also add strength to the evidence giving adequate ammunition in the Court’s sojourn in deciphering the truth. Thus, the definition of “matters” is exhaustive, and therefore, much wider than that of “evidence”. However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact - Matters do give more discretion and flexibility to the court in deciding the existence of a fact. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Chance Witness

Evidence Act, 1872 - Chance Witness - A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times. This again is an aspect which is to be looked into in a given case by the court. (Para 26) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Classification of Evidence

Evidence Act, 1872 - Classification of Evidence - Circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Definition of “Proved”

Evidence Act, 1872 - Definition of “Proved” - The definition of the word “proved” though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the “matters before it”. The importance is to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical influence. (Para 13) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Extra Judicial Confession

Extrajudicial confession - A weak piece of evidence - Unless such a confession is found to be voluntary, trustworthy and reliable, the conviction solely on the basis of the same, without corroboration, would not be justified. Union of India v. Major R. Metri No. 08585N, 2022 LiveLaw (SC) 343 : AIR 2022 SC 1661 : (2022) 6 SCC 525

Hostile Witness

Evidence Act, 1872 - Hostile Witness - Testimony of a witness turning to depose in favour of the opposite party -A witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion. (Para 21) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Ocular Evidence

Evidence Act, 1872 - Ocular Evidence - Principles for appreciation of ocular evidence in a criminal case - In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. (Para 27-28) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Related Witness

Evidence Act, 1872 - Related Witness - A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose. (Para 28) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Section 3 - Interpretation-clause.

Evidence Act, 1872 - Section 3 - Definition of “Evidence” - Factor or material, lending a degree of probability through a logical inference to the existence of a fact. (Para 12) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Section 8 - Motive, preparation and previous or subsequent conduct.

Evidence Act, 1872; Section 8 - Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. (Para 74) Ramanand @ Nandlal Bharti v. State of Uttar Pradesh, 2022 LiveLaw (SC) 843 : AIR 2022 SC 5273

Evidence Act, 1872; Section 8 - Doctrine of Res Gestae - The essence of the doctrine 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" that it becomes relevant by itself. A conduct of the accused after the incident may become admissible under Section 6 of the Evidence Act, though not in issue, if it is so connected with the fact in issue. (Para 36) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480 : AIR 2022 SC 2396 : (2022) 8 SCC 668

Evidence Act, 1872; Section 8 - The conduct of the accused alone, though may be relevant under Section 8 of the Act, cannot form the basis of conviction. (Para 50) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Evidence Act, 1872; Section 8 - The conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction. (Para 89) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887 : AIR 2022 SC 5110

Evidence Act, 1872; Section 8, 27 - Even while discarding the evidence in the form of discovery panchnama the conduct would be relevant under Section 8 of the Act. The evidence of discovery would be admissible as conduct under Section 8 of the Act quite apart from the admissibility of the disclosure statement under Section 27. (Para 48) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Section 9 - Facts necessary to explain or introduce relevant facts.

Evidence Act, 1872; Section 9 - The evidence of a TIP is admissible under Section 9 of the Indian Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained. (Para 26) Gireesan Nair v. State of Kerala, 2022 LiveLaw (SC) 955

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

Evidence Act, 1872; Section 25 - Code of Criminal Procedure, 1973; Section 161 - Both the Trial Court and the Appellate Court went completely wrong in placing reliance on the voluntary statements of the accused and their videography statements - A confessional statement given by an accused before a Police officer is inadmissible as evidence - Statement given by an accused to police under Section 161 of CrPC is not admissible as evidence. (Para 13) Munikrishna @ Krishna v. State by UIsoor PS, 2022 LiveLaw (SC) 812

Evidence Act, 1872; Section 25, 27, 8 - No part of a First Information Report lodged by an accused with the police as an implicatory statement can be admitted into evidence - However, the statement can be admitted to identify the accused as the maker of the report - Further, that part of the information in the statement, which is distinctly related to the 'fact' discovered in consequence of such information, can also be admitted into evidence under Section 27 of the Evidence Act, provided that the discovery of the fact must be in relation to a material object - The conduct of the accused is relevant and admissible under Section 8 of the Evidence Act. (Para 5) Dauvaram Nirmalkar v. State of Chhattisgarh, 2022 LiveLaw (SC) 650 : AIR 2022 SC 3620

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

Evidence Act 1872; Section 27 - Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense. Thus, it incorporates the theory of "confirmation by subsequent facts" facilitating a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 meant for a specific purpose and thus be construed as a proviso. (Para 31) Jafarudheen v. State of Kerala, 2022 LiveLaw (SC) 403: AIR 2022 SC 3627 : (2022) 8 SCC 440

Evidence Act 1872; Section 27 - The onus is on the prosecution to prove the fact discovered from the information obtained from the accused. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery under Section 27 will have to satisfy the Court's conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means. The Court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act. (Para 32) Jafarudheen v. State of Kerala, 2022 LiveLaw (SC) 403: AIR 2022 SC 3627 : (2022) 8 SCC 440

Evidence Act, 1872; Section 27 - Accused's statement recorded on a DVD and played in Court - Such a statement is in the nature of a confession to a Police Officer and is completely hit by the principles of Evidence Act. If at all the accused were desirous of making confessions, the Investigating Machinery could have facilitated recording of confession by producing them before a Magistrate for appropriate action in terms of Section 164 of the Code. Any departure from that course is not acceptable and cannot be recognized and taken on record as evidence. (Para 20) Venkatesh @ Chandra v. State of Karnataka, 2022 LiveLaw (SC) 387

Evidence Act, 1872; Section 27 - Conditions necessary for the applicability of Section 27 - Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. (Para 64-68) Ramanand @ Nandlal Bharti v. State of Uttar Pradesh, 2022 LiveLaw (SC) 843 : AIR 2022 SC 5273

Evidence Act, 1872; Section 27 - How the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 - If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. (Para 53) Ramanand @ Nandlal Bharti v. State of Uttar Pradesh, 2022 LiveLaw (SC) 843 : AIR 2022 SC 5273

Evidence Act, 1872; Section 27 - How the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 - Conditions necessary for the applicability of Section 27 - Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. (Para 78-87) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887 : AIR 2022 SC 5110

Evidence Act, 1872; Section 27 - Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. (Para 45-46) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Evidence Act, 1872; Section 27 - Tendency on part of the Prosecuting Agency in getting the entire statement recorded rather than only that part of the statement which leads to the discovery of facts - In the process, a confession of an accused which is otherwise hit by the principles of Evidence Act finds its place on record. Such kind of statements may have a direct tendency to influence and prejudice the mind of the Court. This practice must immediately be stopped. (Para 19) Venkatesh @ Chandra v. State of Karnataka, 2022 LiveLaw (SC) 387

Section 30 - Consideration of proved confession affecting person making it and others jointly under trial for same offence

Evidence Act, 1872; Section 30 - Confession of a coaccused could only be considered but could not be relied on as substantive evidence - Fine distinction between an extra judicial confession being a corroborative piece of evidence and a confession recorded under Section 15 of the TADA Act being treated as a substantive piece of evidence. (Para 66 -68) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887 : AIR 2022 SC 5110

Evidence Act, 1872; Section 30 - Extra judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra judicial confession - The extra judicial confession made by the co-accused could be admitted in evidence only as a corroborative piece of evidence. In absence of any substantive evidence against the accused, the extra judicial confession allegedly made by the co-accused loses its significance and there cannot be any conviction based on such extra judicial confession of the co-accused. (Para 11-12) Chandrapal v. State of Chhattisgarh, 2022 LiveLaw (SC) 529 : AIR 2022 SC 2542

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 - Dying Declaration - Case of two dying declarations, both contradictory, both recorded by judicial magistrates- Court relies on the dying declaration recorded after medical examination. (Para 16,17) Makhan Singh v. State of Haryana, 2022 LiveLaw (SC) 677 : AIR 2022 SC 3793

Evidence Act, 1872 - Section 32 - Dying Declaration - Principles as to the circumstances under which a dying declaration may be accepted, without corroboration: (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. State of U.P. v. Veerpal, 2022 LiveLaw (SC) 111 : (2022) 4 SCC 741

Evidence Act, 1872 - Section 32 - Dying Declaration - There can be a conviction solely based upon the dying declaration without corroboration - If the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration. State of U.P. v. Veerpal, 2022 LiveLaw (SC) 111 : (2022) 4 SCC 741

Evidence Act, 1872 ; Section 27 - Conditions necessary for the applicability of Section 27 of the Act - (1) Discovery of fact in consequence of an information received from accused; (2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave informations and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Two conditions for application – (1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered. (Para 42) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Evidence Act, 1872; Section 32 - Dying Declaration - Although a dying declaration ought to ideally be recorded by a Magistrate if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone. The issue of whether a dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case - The fact that the dying declaration is not in the form of questions and answers does not impact either its admissibility or its probative value - There is no rule mandating the corroboration of the dying declaration through medical or other evidence, when the dying declaration is not otherwise suspicious. (Para 41-44, 50-52) State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, 2022 LiveLaw (SC) 890 : AIR 2022 SC 5393

Evidence Act, 1872; Section 32 - Dying Declaration - There is no absolute proposition of law that in a case when at the time when the dying declaration was recorded, there was no emergency and/or any danger to the life, the dying declaration should be discarded as a whole (Para 6) - Merely because the weapon used is not recovered cannot be a ground not to rely upon the dying declaration. (Para 9) State of Uttar Pradesh vs Subhash @ Pappu, 2022 LiveLaw (SC) 336 : AIR 2022 SC 1651 : (2022) 6 SCC 508

Evidence Act, 1872; Section 32(1) - Penal Code, 1860; Sections 498A, 304B, 302, 306 - Dying Declaration - In some circumstances, the evidence of a deceased wife with respect to cruelty could be admissible in a trial for a charge under Section 498A of the IPC under Section 32(1) of the Evidence Act , subject to meeting certain necessary preconditions (1) That her cause of death must come into question in the matter - For instance, matters where along with the charge under Section 498A of the IPC, the prosecution has also charged the accused under Sections 302, 306 or 304B of the IPC - As long as the cause of her death has come into question, whether the charge relating to death is proved or not is immaterial with respect to admissibility. (2) Prosecution will have to show that the evidence that is sought to be admitted with respect to Section 498A of the IPC must also relate to the circumstances of the transaction of the death. How far back the evidence can be, and how connected the evidence is to the cause of death of the deceased would necessarily depend on the facts and circumstances of each case. No specific straitjacket formula or rule can be given with respect to this. Surendran v. State of Kerala, 2022 LiveLaw (SC) 482 : AIR 2022 SC 2322

Evidence Act, 1872; Section 32(1) - Test for Admissibility - The cause of death must come into question in that case, regardless of the nature of the proceeding, and that the purpose for which such evidence is being sought to be admitted should be a part of the 'circumstances of the transaction' relating to the death - The test is not that the evidence to be admitted should directly relate to a charge pertaining to the death of the individual, or that the charge relating to death could not be proved. (Para 17) Surendran v. State of Kerala, 2022 LiveLaw (SC) 482 : AIR 2022 SC 2322

Section 33 - Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.

Evidence Act, 1872 - Section 33 - Section 33 is an exception to the general rule which mandates adequate facility for cross examining a witness. However, in a case where a witness after the completion of the chief examination and while subjecting him to a substantial and rigorous cross examination, did not choose to get into the witness box on purpose, it is for the court to utilize the said evidence appropriately. The issues over which the evidence is completed could be treated as such by the court and then proceed. Resultantly, the issues for which the cross examination is not over would make the entire examination as inadmissible. Ultimately, it is for the court to decide the aforesaid aspect. (Para 24) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Section 45 - Opinions of Experts

Evidence Act, 1872; Section 45 - Expert Witness - A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. (Para 29) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631 : AIR 2022 SC 5454

Evidence Act, 1872; Sections 45, 47, 73 - Appeal against Orissa High Court judgment which quashed the order taking cognizance passed by the Sub-Divisional Judicial Magistrate, under Sections 467 and 471 of the Indian Penal Code, on the ground that the opinion of the handwriting expert on the disputed signatures was non-conclusive - Allowed. Manorama Naik v. State of Odisha, 2022 LiveLaw (SC) 297

Evidence Act, 1872; Sections 45, 47, 73 - Opinion of the handwriting expert is not the only way or mode of providing the signature and handwriting of a person - The signatures and handwriting of the person can also be proved under Sections 45, 47 and 73. Manorama Naik v. State of Odisha, 2022 LiveLaw (SC) 297

Section 65B - Admissibility of electronic records

Evidence Act, 1872; Section 65B - The decision in Anvar P.V. vs. P.K. Basheer & Ors. (2014) 10 SCC 473 as clarified in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors. (2020) 7 SCC 1 is the law declared on Section 65B of the Evidence Act. (Para 22-24) Mohd. Arif @ Ashfaq v. State (NCT Of Delhi), 2022 LiveLaw (SC) 902

Evidence Act, 1872; Section 65B(4) - Certificate under Section 65B(4) is a mandatory requirement for production of electronic evidence - Oral evidence in the place of such certificate cannot possibly suffice. (Para 20-21) Ravinder Singh @ Kaku v. State of Punjab, 2022 LiveLaw (SC) 461 : AIR 2022 SC 2726 : (2022) 7 SCC 581

Section 106 - Burden of proving fact especially within knowledge

Evidence Act, 1872 - Section 106 - Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the accused - Burden could not be shifted on the accused by pressing into service the provisions contained in section 106 of the Evidence Act when the prosecution could not prove the basic facts as alleged against the accused. (Para 15 - 16) Satye Singh v. State of Uttarakhand, 2022 LiveLaw (SC) 169 : (2022) 5 SCC 438

Evidence Act, 1872; Section 106 - Last Seen Theory - When 'last seen' evidence is cogent and trustworthy which establishes that the deceased was lastly seen alive in the company of the accused; and is coupled with the evidence of discovery of the dead body of deceased at a far away and lonely place on the information furnished by the accused, the burden is on the accused to explain his whereabouts after he was last seen with the deceased and to show if, and when, the deceased parted with his company as also the reason for his knowledge about the location of the dead body. (Para 31) Pappu v. State of Uttar Pradesh, 2022 LiveLaw (SC) 144 : 2022 (3) SCALE 45

Evidence Act, 1872; Section 106 - Although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, then such a response in itself becomes an additional link in the chain of events. Sabitri Samantaray v. State of Odisha, 2022 LiveLaw (SC) 503 : AIR 2022 SC 2591

Evidence Act, 1882; Section 106 - Last Seen Together - Once the theory of "last seen together" was established, the accused was expected to offer some explanation as to under which circumstances, he had parted the company of the victim -Section 106 of the Evidence Act does not shift the burden of the prosecution on the accused, nor requires the accused to furnish an explanation with regard to the facts which are especially within his knowledge, nonetheless furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the theory of "last seen together" as propounded by the prosecution is proved against him, to know as to how and when the accused parted the company of the victim. (Para 26) Mohd Firoz v. State of Madhya Pradesh, 2022 LiveLaw (SC) 390 : AIR 2022 SC 1967 : (2022) 7 SCC 443

Section 112 - Birth during marriage, conclusive proof of legitimacy.

Evidence Act 1872; Section 112 - DNA test - SC sets aside direction for DNA test of children - notes that children were not parties to the proceedings - the test will have the potential of exposing them to inheritance related complication. Section 112 of the Evidence Act, gives a protective cover to children from allegations of this nature. (Para 7) Inayath Ali & Anr. v. State of Telengana, 2022 LiveLaw (SC) 869

Section 114 - Court may presume existence of certain facts

Evidence Act, 1872; Section 114 - If a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place. (Para 15 -20) Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 LiveLaw (SC) 549 : AIR 2022 SC 2841

Section 129 - Confidential communications with legal advisers

Evidence Act, 1872; Section 129 - Privilege over legal advise - Legal privilege not applicable to legal opinion used by SEBI to initiate prosecution, as such opinion is part of investigation. (Para 53-55) Reliance Industries Ltd. v. Securities and Exchange Board of India, 2022 LiveLaw (SC) 659 : AIR 2022 SC 3690 : (2022) 10 SCC 181

Section 145 - Cross-examination as to previous statements in writing

Evidence Act, 1872; Sections 145, 157 - Statements recorded under Section 161 Cr.P.C. are inadmissible in evidence and its use is limited for the purposes as provided under Sections 145 and 157 of the Evidence Act - statement recorded under Section 164, Cr.P.C. can also be used only for such purposes. (Para 20) State of Maharashtra v. Dr. Maroti Kashinath Pimpalkar, 2022 LiveLaw (SC) 898 : AIR 2022 SC 5595

Criminal Trial - Post Mortem Report - The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence - It can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness box under Section 145 of the Evidence Act, 1872. (Para 29) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631 : AIR 2022 SC 5454

Section 154 - Question by party to his own witness

Evidence Act 1872; Section 154 - the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence. (Para 67) Neeraj Dutta v. State (GNCTD), 2022 LiveLaw (SC) 1029

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

Evidence Act, 1872; Section 165 - Section 165 of the Indian Evidence Act confers unbridled powers upon the trial courts to put any question at any stage to the witnesses to elicit the truth. The Judge is not expected to be a passive umpire but issupposed to actively participate in the trial, and to question the witnesses to reach to a correct conclusion. [Para 34] Rahul v. State of Delhi Ministry of Home Affairs, 2022 LiveLaw (SC) 926