Supreme Court Quarterly Digest On Evidence Law [Jan – Mar, 2023]

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) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225

Circumstantial Evidence

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. Pradeep Kumar v. State of Chhattisgarh, 2023 LiveLaw (SC) 239

Law relating to Circumstantial Evidence– Discussed. (Para 5 - 11) Shankar v. State of Maharashtra, 2023 LiveLaw (SC) 212

The law with regard to conviction in the case of circumstance evidence – Explained. (Para 8 to 10) Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 : AIR 2023 SC 1323

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) Indrajit Das v. State of Tripura, 2023 LiveLaw (SC) 152 : AIR 2023 SC 1239

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) Indrajit Das v. State of Tripura, 2023 LiveLaw (SC) 152 : AIR 2023 SC 1239

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) Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : [2023] 1 SCR 335

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) Jabir v. State of Uttarakhand, 2023 LiveLaw (SC) 41 : AIR 2023 SC 488

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) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225

Extra-judicial confession

Evidentiary value of extra-judicial confession also depends on the person to whom it is made. Pawan Kumar Chourasia v. State of Bihar, 2023 LiveLaw (SC) 197 : AIR 2023 SC 1464

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) Pawan Kumar Chourasia v. State of Bihar, 2023 LiveLaw (SC) 197 : AIR 2023 SC 1464

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) Pawan Kumar Chourasia v. State of Bihar, 2023 LiveLaw (SC) 197 : AIR 2023 SC 1464

Extra-Judicial confession is a weak piece of evidence, independent corroboration needed. Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 : AIR 2023 SC 1323

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) Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 : AIR 2023 SC 1323

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) Indrajit Das v. State of Tripura, 2023 LiveLaw (SC) 152 : AIR 2023 SC 1239

Eyewitness

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) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227

'It's quality & not quantity of witnesses which matters': Supreme Court relies on solitary eyewitness testimony to affirm sentence. Ajai @ Ajju v. State of Uttar Pradesh, 2023 LiveLaw (SC) 110 : AIR 2023 SC 996

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) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225

Insanity

Burden of proof on accused to prove plea of insanity is one of preponderance of probability. Prakash Nayi @ Sen v. State of Goa, 2023 LiveLaw (SC) 71

Section 27 Evidence Act - Recovery cannot be relied upon when the statement of the accused is not recorded. Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : [2023] 1 SCR 335

Last Seen Theory

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) Ram Gopal Mansharam v. State of Madhya Pradesh, 2023 LiveLaw (SC) 120 : AIR 2023 SC 1145

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) Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : [2023] 1 SCR 335

'Last seen' circumstance cannot be the sole basis for conviction: Supreme Court acquits murder accused. Jabir v. State of Uttarakhand, 2023 LiveLaw (SC) 41 : AIR 2023 SC 488

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) Jabir v. State of Uttarakhand, 2023 LiveLaw (SC) 41 : AIR 2023 SC 488

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) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 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) Rajaram Sriramulu Naidu v. Maruthachalam, 2023 LiveLaw (SC) 46 : AIR 2023 SC 471

Suicide

Mere fact of commission of suicide itself not sufficient to raise presumption under Section 113A Evidence Act. Kashibai v. State of Karnataka, 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) Narendrasinh Keshubhai Zala v. State of Gujarat, 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) Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 : AIR 2023 SC 1323

Test Identification Parade

Test Identification Parade doesn't have much value when the accused is already known to witness. Udayakumar v. State of Tamil Nadu, 2023 LiveLaw (SC) 242

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) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227

Witness

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) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227

It is not the quantity of the witnesses but the quality of witnesses which matters. (Para 21) Ajai @ Ajju v. State of Uttar Pradesh, 2023 LiveLaw (SC) 110 : AIR 2023 SC 996

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) Indrajit Das v. State of Tripura, 2023 LiveLaw (SC) 152 : AIR 2023 SC 1239

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

Evidence Act, 1872; Section 8, 105 - Penal Code, 1860; Section 84 - The burden of proof does lie on the accused to prove to the satisfaction of the Court that one is insane while doing the act prohibited by law. Such a burden gets discharged based on a prima facie case and reasonable materials produced on his behalf. The extent of probability is one of preponderance. This is for the reason that a person of unsound mind is not expected to prove his insanity beyond a reasonable doubt. Secondly, it is the collective responsibility of the person concerned, the Court and the prosecution to decipher the proof qua insanity by not treating it as adversarial. Though a person is presumed to be sane, once there are adequate materials available before the Court, the presumption gets discharged - The behaviour and conduct before, during and after the occurrence has to be looked into. (Para 8-9) Prakash Nayi @ Sen v. State of Goa, 2023 LiveLaw (SC) 71

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) Udayakumar v. State of Tamil Nadu, 2023 LiveLaw (SC) 242

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

Evidence Act, 1872; Section 27 - The law expects the IO to draw the discovery panchnama as contemplated under Section 27. (Para 25-26) Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : [2023] 1 SCR 335

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) Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : [2023] 1 SCR 335

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) Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : [2023] 1 SCR 335

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) Ashutosh Samanta v. Ranjan Bala Dasi, 2023 LiveLaw (SC) 190 : AIR 2023 SC 1422

Section 74 - Public documents

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) Saurav Das v. Union of India, 2023 LiveLaw (SC) 52 : AIR 2023 SC 615

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) Ashutosh Samanta v. Ranjan Bala Dasi, 2023 LiveLaw (SC) 190 : AIR 2023 SC 1422

Section 101 - Burden of Proof

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. Smriti Debbarma v. Prabha Ranjan Debbarma, 2022 LiveLaw (SC) 19 : AIR 2023 SC 379

Section 105 - Burden of proving that case of accused comes within exceptions.

Evidence Act, 1872; Section 105 - Penal Code, 1860; Section 84 - The burden of proving the existence of circumstances so as to bring the case within the purview of Section 84 IPC lies on the accused in terms of Section 105 of the Evidence Act; and where the accused is charged of murder, the burden to prove that as a result of unsoundness of mind, the accused was incapable of knowing the consequences of his acts is on the defence, as duly exemplified by illustration (a) to the said Section 105 of the Evidence Act - The mandate of law is that the Court shall presume absence of the circumstances so as to take the case within any of the General Exceptions in IPC. (Para 21) Prem Singh v. State of NCT of Delhi, 2023 LiveLaw (SC) 2 : AIR 2023 SC 193

Section 106 - Burden of proving fact especially within knowledge

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) Ram Gopal Mansharam v. State of Madhya Pradesh, 2023 LiveLaw (SC) 120 : AIR 2023 SC 1145

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) Prem Singh v. State of NCT of Delhi, 2023 LiveLaw (SC) 2 : AIR 2023 SC 193

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) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 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) Kashibai v. State of Karnataka, 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) Sirajudheen v. Zeenath, 2023 LiveLaw (SC) 145

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) Munna Lal v. State of Uttar Pradesh, 2023 LiveLaw (SC) 60 : AIR 2023 SC 634