evidence act - preliminary concepts

In Rabindra Kumar Dey vs State Of Orissa : 1977 AIR 170, 1977 SCR (1) 439, (Also see: Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, [1960] 3 S.C.R. 319. 324 ), three principles of criminal jurisprudence which are well settled are as under:

(i) that the onus ties affirmatively on the

prosecution to prove its case beyond reasonable

doubt and it cannot derive any benefit from weak-

ness or falsity of the defence version while proving its case;

(ii) that in a criminal trial the accused must

be presumed to be innocent until he is proved to be

guilty; and

(iii) that the onus of the prosecution never

shifts.

Similarly, the Hon’ble Delhi High Court in the case of Sunil Kumar Sharma vs State (Cbi): 139 (2007) DLT 407 - , it was observed that three cardinal principles of criminal jurisprudence are well settled and they are as follows: i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defense version while proving its case; ii) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and iii) that the onus of the prosecution shifts.

EXHIBITING THE DOCUMENT IN EVIDENCE : -

The law laid down by the Supreme Court in Sait Taraji Khimechand VS. Yelamarti Satvam is :- 'The mere marking of an exhibit does not dispense with the proof of docments'

In Baldeo Sahai VS. Ram Chander & Ors., Air 1931 Lahore 546 it was said :- "There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents , proved and formally tendered in evidence. It is at this later stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are resumed to the party who produced them with an endorsement thereon to that effect."

(A reading of the report shows that it was the practice of the Court to endorse the documents soon on their filing which practice was deprecated and hence slopped. The word "proved" has been used by the Division Bench in the sense of 'proposed to be proved' as is clear from its having been used Along with the word 'tendered' or "admitted" in evidence. The word proved has been loosely used for describing the stage after filing of the documents, when the Court would decide only whether they should be admitted or rejected. The Division Bench cannot be read as holding that the document is not to be endorsed with an Exhibit number unless and until proved. The stages of tendering/admitting/rejecting in evidence and holding a document proved - are two distinct and different stages, not one. They are respectively the second and third stages.)

Delhi High Court

Sudir Engineering Company vs Nitco Roadways Ltd. on 23 March, 1995

Admission of a document in evidence is not to be confused with proof of a document.

When the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each lime a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit.

The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was the document before the witness when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit.

This makes the position of law clear. Any practice contrary to the above said statement of law has no sanctity and cannot be permitted to prevail.

Some illustrative different forms of evidence : -

Oral Evidence – Section 60 of the Indian Evidence Act, 1872 endorsed the arrangement of recording oral evidence. Every one of those explanations which the court allows or anticipates that the observers should make in his essence with respect to the reality of the realities are called Oral Evidence. Oral Evidence is that evidence which the observer has by and by observed or heard. Oral evidence should consistently be immediate or positive. Evidence is immediate when it goes directly to set up the primary truth in issue.

Documentary Evidence – Section 3 of The Indian Evidence Act says that every one of those archives which are introduced in the court for examination such records are called narrative evidences. In a case like this it is the narrative evidence that would show the genuine disposition of the gatherings and their cognizance with respect to the custom is a higher priority than any oral evidence.

Primary Evidence – Section 62 of The Indian Evidence Act says Primary Evidence is the Top-Most class of evidence. It is that proof which in any conceivable condition gives the crucial clue in a contested truth and builds up through narrative evidence on the creation of a unique record for assessment by the court. It implies the report itself created for the assessment of the court. In Lucas v. Williams Privy Council held “Essential Evidence will be evidence which the law needs to be given first and optional evidence is the evidence which might be given without that better evidence when an appropriate clarification of its nonappearance has been given.”

Secondary Evidence – Section 63 says Secondary Evidence is the substandard evidence. It is evidence that possesses an auxiliary position. It is such evidence that on the introduction of which it is felt that better evidence yet stays than be created. It is the evidence which is created without the essential evidence hence it is known as optional evidence. In the event that instead of essential evidence optional evidence is conceded with no protest at the correct time then the gatherings are blocked from bringing up the issue that the report has not been demonstrated by essential evidence however by auxiliary evidence. Yet, where there is no auxiliary evidence as considered by Section 66 of the Evidence Act then the record can’t be said to have been demonstrated either by essential evidence or by optional evidence.”

Real Evidence – Real Evidence implies genuine or material evidence. Genuine evidence of a reality is brought to the information on the court by assessment of a physical article and not by data got from an observer or a record. Individual evidence is what is managed by human operators, either in method of exposure or by intentional sign. For instance, Contempt Of Court, Conduct of the observer, conduct of the gatherings, the nearby examination by the court. It can likewise be called as the most agreeable observer.

Hearsay Evidence – Hearsay Evidence is powerless evidence. It is just the announced evidence of an observer which he has not seen either heard. At some point it suggests the adage of something which an individual has heard others state.

In Lim Yam Yong v. Lam Choon and Co. The Hon’ble Bombay High Court declared “Prattle Evidence which should have been dismissed as immaterial doesn’t get allowable as against a gathering only on the grounds that his committee neglects to take protest when the evidence is offered.” So at long last we can affirm that Hearsay Evidence is that evidence which the observer has neither by and by observed or heard, nor has he seen through his faculties and has come to think about it through some third individual. There is no bar to get gossip evidence gave it has sensible nexus and credibility. When a bit of evidence is with the end goal that there is no at first sight confirmation of its validity, it would be generally risky to follow up on it. Gossip evidence being evidence of that type has consequently, to be avoided whether the situation where its utilization comes in for question is represented by the Evidence Act.

Judicial Evidence – Evidence got by official courtroom in proof or disproof of realities before them is called legal evidence. The admission made by the denounced in the court is likewise remembered for legal evidence. Articulations of witnesses and narrative evidence and realities for the assessment by the court are additionally Judicial Evidence.

Non-Judicial Evidence – Any admission made by the blamed external the court within the sight of any individual or the affirmation of a gathering are called Non-Judicial Evidence, whenever demonstrated in the court as Judicial Evidence.

Direct Evidence – Evidence is either immediate or circuitous. Direct Evidence is that evidence which is significant for the choice of the fact in issue. The primary certainty when it is introduced by witnesses, things and witnesses is immediate, evidence whereby principle realities might be demonstrated or set up that is the evidence of individual who had really observed the wrongdoing being submitted and has depicted the offense. We need scarcely bring up that in the representation given by us, the evidence of the observer in Court is immediate evidence rather than declaration to a reality proposing blame. The announcement before the police just is called incidental evidence of, complicity and not immediate evidence in the severe sense.

Circumstantial Evidence or Indirect Evidence – There is no contrast between conditional evidence and circuitous evidence. Fortuitous Evidence endeavors to demonstrate current realities in issue by giving different realities and bears an example concerning its reality. It is what identifies with a progression of different realities than the reality in issue yet by experience have been found so connected with the reality in issue in connection of circumstances and logical results that it prompts an agreeable end.

In Hanumant v. State of Madhya Pradesh AIR 1952 SC 343, , The Hon’ble Supreme Court Observed, “In managing fortuitous evidence there is consistently the threat that doubt may replace legitimate proof. It is well to recall that in situations where the evidence is of an incidental sort the conditions from which the finish of blame is to be drawn ought to in the main occurrence, be completely settled and the real factors so settled ought to be steady just with the theory of the blame of the charged. At the end of the day, there can be a chain of evidence so far complete as not to leave any sensible ground for an end predictable with the guiltlessness of the blamed and it must be, for example, to show that inside all human likelihood the demonstration probably been finished by the charged.”

Supreme Court of India

Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(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. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

POSITION OF WITNESS :-

A witness in a criminal trial plays a pivotal role in a determining the fate of

the case. The word "witness" has been defined nowhere in the Criminal Procedure

Code. A witness may be defined as one who gives evidence in a case, an indifferent

person to each party, sworn to speak the truth, the whole truth and nothing but the

truth.

According to Black’s Law Dictionary ,“Witness is one who sees, knows or

vouches for something or one who gives testimony, under oath or affirmation in

person or by oral or written deposition, or by Affidavit".

According to Bentham, "Witnesses are the eyes and ears of justice”

Affidavit not evidence unless law allows it : -

An affidavit can be termed to be an “evidence” within the ambit of Section 3 only in those cases where the same is filed at the instance or under the direction of the Court or law specifically permits for proof of anything by affidavit. Thus, the filing of an affidavit or one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court.

Reliance was placed on Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, wherein the Supreme Court had held that affidavit can be relied upon when the deponent is available for cross-examination in terms of Order 18 Rule 4 CPC. The High Court held that: “Thus, it is now well settled that affidavit is not evidence within the meaning of Section 3 of the Evidence Act unless an opportunity to effectively cross-examine to the person(s) examined is given to another side as provided in Order 18 Rule 4(2) of the CPC.”

Witness can be further divided into following kinds-

Child Witness - A child witness, if found competent to depose , to the facts is reliable one

such evidence could be the basis of conviction. In other words, even in the absence

of oath , the evidence of a child witness can be considered U/s 118 Indian Evidence

Act provided that such witness is able to understand the questions . The evidence of

child witness and credibility thereof , would depend upon the circumstances of each

case. For every reliable witness it is his capacity to understand and explain what he

wants to express. Testimony of a child is also reliable, if he easily understands

questions and gives rational replies to each such questions. Testimony of child

witness should be accepted only after great caution and circumspection. When a

witness is a person of tender years or extreme old age or a person alert to test his

competency. Similarly where a witness is a child, court should be alert of the need,

to decide, whether oath can be administered. Ordinarily, this satisfaction is to be

arrived at, by preliminary examination of the witness by the court. However, it does not mean that in the absence of preliminary examination, the evidence becomes

inadmissible. Since the general rule is in favour of the competency and satisfaction,

if necessary, it can be arrived at in the course of evidence.

In State of Madhya Pradesh V. Ramesh & Anr,2011 (3) SCALE 619 has

examined the law relating to deposition by child witness. While examining the law ,

the court emphasized that the deposition of a child witness may require

corroboration, but in case his deposition inspires the confidence of the court and

there is no embellishment or improvement therein, the court may rely upon his

evidence. If there is evidence on record to show that child has been tutored, then the

court can reject his statement partly or fully.

Eye Witness :-

Eye witness is a direct witness who observed the event. He must not be a

stock witness. Eye witness must be capable of adequate vision and there must be

light adequate enough to see and identify the person involved in the event. Eye

witness states that he can see the happening which are proximate and not distant

and that he is capable of seeking and understanding the happenings distinctly and

that there were no objects obstructing the vision. When witness does not speak of the

event but only about the circumstance leadings to the event or happening occurring

immediately after, he need not be created as an eye witness. The Criminal Justice

System realize heavily on eyewitness to determine the facts surrounding criminal

events. An eye witness, who has no motive to lie is a powerful form of evidence for

jurors, especially if the eyewitness appears to be highly confident about his or her

reconciliation. In the absence of definite proof to the contrary, the eyewitness

account is generally accepted by police, prosecutor, judge and jurors.

An eyewitness is one, who saw the act, fact or transaction to which he

testifies. A witness is able to provide graphic account of the attack on the deceased

can be accepted as eye witness.

The evidence of witness will be assessed by its worth. If there are

contradictions in the evidence, and by, such contradictions, the veracity of the

evidence is effected, it can be a ground for the court to reject the evidence of such

witness, even if he has spoken both falsehood and truth in a particular case. If the

truth in a particular case, is separated from the falsehood, law permits the court to

act on that part of the evidence which is truthful, separable from falsehood spoken

by the witness.

The appreciation of the evidence of eye witness depends upon : -

- The accuracy of the witness’s original observation of the

events which he described, and

- The correctness and extent of that he remember and his

veracity.

Hostile Witness

As a common law practice, it means the “contrivance of artful witnesses”

who willfully by hostile evidence “ruin the case” of party calling such witness. A

hostile witness is not necessarily a false witness. Common law , laid down certain

peculiarities of a hostile witness, such as ‘not deserious of telling the truth at the

instance of the party calling him’ or the existence of a hostile animus to the party

calling such a witness.

The courts exercising its discretion under Section 154 of IEA, may allow a

person who has called witness to ask questions that can be put to him by the

counsel in cross examination. The Evidence given by the witness can be relied upon,

if it is relevant to determine the guilt of the accused. The Evidence of the hostile witness cannot be discarded as the relevant fact of the statement is admissible.

The Court remains alert at the time of any undue

influence over the course of trial and he has not to wait for trial to end but

intervene. The court held that the corroborated part of evidence of hostile witness

regarding the commission of offence is admissible. It has no justification to reject

his evidence as a whole. The Credibility of Hostile witness can form the basis of

conviction.. It includes the fact that he is willing to go back upon previous

statements made by him. A witness's primary allegiance is to the truth and not to

the party calling him.

ILLUSTRATIVE REASONS FOR WITNESSES TURNING HOSTILE :-

1.Absence of awareness

Witness protection is required for earlier disposal of cases. Witnesses were

usually threatened or injured or murdered before being able to give testimony in the

Court, as there is no law for their security. Therefore, witnesses are deprived of any

protection from threat.

2. Right to bail

Right to bail should be denied by the state whenever there is a threat to a

witness or a reasonable apprehension. The accused having knowledge that there is a

witness to his act will try to eliminate him so that the procedure does not implicate

him .

3. Insufficient Remuneration

Witnesses who appear in the court have a risk to their life and their families

but are not given the reasonable expenses and remuneration for participating in the

criminal courts.

4. Absence of Facilities

Facilities provided to witnesses are minimum and insufficient. There are no

basic amenities provided to them which could be helpful to them, during their stay

in the court, before hearing.

5. Regular adjournment

Cases are adjourned repeatedly to discourage the witness so that he

ultimately gives up. Miscarriage of justice arises when the adjournments are held

without any reason.

Witnesses repeatedly, come to the courts from far distances. Court remains

alert, so that any undue influence over the courses of trial is checked and nipped in

the bud at an appropriate stage only. The court does not outright by reject the

evidence of a hostile witness but subject it to be a close scrutiny. Therefore, the

courts have accepted the fact that evidence brings consistency to the case

Related witness:

Any person appearing as a witness either on behalf of the prosecution or defense is

related to the party summoning him is addressed as a related witness.

Credibility of the Related witnesses:

The testimony of relative witness must be examined with caution. It is more

often than not that a relation, would not conceal the actual culprits and make

allegation against an innocent person. Foundation has to be laid if plea of false

implication is made. In such case the correct, perspective is to adopt a careful

approach and analyze the evidence to find out whether it is cogent and credible.

In Raja Gounder V. State of Tamil Nadu

The Hon’ble court stated that under 302 IPC read with Sec 3 IEA in the

murder case, where there were no independent witnesses. Conviction on basis of

related witness was upheld, as the dispute was between brothers over a piece of

land. The dispute existed in between the family. No independent witnesses were

available. Incident witnessed by the wife of the deceased and her evidence is

credible, as she would be the last person to involve appellants who are her brother in-law.

Every witness, who is related to the deceased cannot be said to be an

interested witness, who will depose falsely to implicate the accused. Statement of

every related witness cannot as a matter of rule be rejected by the courts.

Evidence of close relatives cannot be excluded , solely on the ground, that they are

interested witnesses. It is the duty of the court to scrutinize the evidence of such

witnesses very carefully and if there is any doubt as regards there trustworthiness,

the court may discard their evidence.

Ordinarily, a close relative would be the last person to screen the real culprit

and falsely implicate an innocent person. Hence, the mere fact of relationship

cannot be a ground for rejecting the testimony of the witness. Credibility of a witness is not effected by Relationship .When the statement

of witness who are parties known to the affected party, is credible, reliable, trust

worthy, admissible in accordance with the law and corroborated by other witnesses

or documentary evidence of the prosecution, there would hardly be any reason for

the court to reject such evidence. His statement is to be carefully scrutinized and

appreciated before reaching a conclusion.

Interested / partisan Witness:

The 'interested’ witness means a person who desires to falsely implicate the

accused . A relative not necessarily interested witness.

- According to English law Dictionary, 'A witness in a trial who has a personal

interest in the out come of the matter on hand’.

- Interested witness is one who has some kind of material stake in the outcome of

the case and is not an unbiased witness.

In Takdir Samsuddin Sheikh V. State of Gujrat

The meaning of the terms 'interested' postulates that the witness must have

some direct interest in having the accused somehow or the other convicted for some

other reasons. It is a settled position that the evidence of interested witness is highly

unreliable and the some cannot be accepted with corroboration.

A close relative is usually a natural witness. He is not considered as a

interested witnesses as he has not personal interest or material gain in becoming an

interested witness.

In Masalti Vs. State of U.P. ., a four-Judge Bench of Apex Court had observed that though the evidence of an interested or partisan witness has to be weighed by the Court very carefully but it would be unreasonable to contend that evidence given by a witness should be discarded only on the ground that it is evidence of a partisan or interested witness. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice

In Sahabuddin V. State of Assam:-

“An interested witness is the one who is desirous of falsely implicating the

accused, with an intension of ensuring there conviction”

State of Haryana v. Shakuntla :-

The Apex Court elaborated the term interested' witness as having some

direct or 'interest' in the accused somehow or the other convicted due to animus or

for some other oblique motive.

When the statement of witnesses, who are relatives and as such are parties

known to the affected party, it is credible, reliable, trustworthy, admissible in

accordance with the law and corroborated by other witnesses or documentary

evidence of the prosecution there would hardly be any reason for the court to reject

such evidence merely on the ground that the witnesses were family members or

interested witness or person known of the affected party

In Seema alias Veeranam V. State by Inspector of Police,

It was held that the statement is not rejected merely on the ground that he is

a related witness or the sole witness, or both; if otherwise the same is found credible.

It is paramount duty of court to be more careful in the matter of scrutiny of evidence

of the interested witness, and if on such scrutiny it is found that the evidence on

record of such interested sole witness is worth credence, the same would not be

discarded merely on the ground, that the witness is an interested person.

A relationship is not a reason to conceal actual culprits and make allegations

against innocent persons.The court analysis the evidence to determine carefully

whether it is cogent and credible

State of Bihar V. Shaukat Mian :-

"Its credibility cannot be doubted merely because he was an interested

witness. Evidence of interested witness shall have to be tested with caution .

Moreover, an interested witness, who is a relative of the victim, would be the person

who is keen to ensure that justice is done to the victim."

Karulal & Ors. Appellants V. The State of Madhya Pradesh on 2011 OCTOBER 09, 2020

The court upheld observed thus while upholding conviction of five persons accused in a murder case. The court dismissed the appeal against Madhya Pradesh High Court judgment upholding their conviction under Section 148, 302 read with Section 149 of the Indian Penal Code, 1860. Karulal, Amra, Kachru, Suratram and Bhagirath were accused of murder of one Madhavji.

The bench, while addressing the contentions raised by the accused, briefly discussed the precedents and law on evidentiary value of a related witness by referring to the decisions in Dalip Singh & Ors. Vs. State of Punjab AIR 1953 SC 364, Khurshid Ahmed vs. State of Jammu and Kashmir (2018) 7 SCC 429, State of Uttar Pradesh vs. Samman Dass (1972) 3 SCC 201. The court noted that, being related to the deceased does not necessarily mean that they will falsely implicate innocent persons. The court added that an unrelated witness had deposed supporting the testimony of related witnesses in this case.

Trap or Decoy or Spy Witness

Trap witnesses as defined generally means,

- A person who entices or lures another person or thing, as into danger, a trap or a

like (Dictionary meaning).

- Oxford Dictionary defines it as:- A person or think used to mislead or lure

come one into a trap.

- Decoy witnesses who are used to trap the accused in police trap.

Section 125 of Indian Evidence Act states, “No magistrate or police

officer shall be compelled to say when he got information of the commission of any

offence and no revenue officer shall be compelled to say when he got any

information as to the commission of any offence against the public revenue”.

In Amrit Lal Hazara V. King Emperor

,“ Witnesses for the crown in

criminal prosecution undertaken by government are privileged from disclosing the

channel, through which they have received or communicated information. But, a

detective cannot refuse to answer a question as to where he was employed.”

The defence is not entitled to elicit from individual prosecution witnesses

whether he was a spy or an informer or to discover from police official the names of

persons from whom they have received information. "

Major Barsay V. State of Bombay

The Supreme Court emphasized that a trap witness could at least be equated

with a partisan witness and it would not be admissible exclusively upon his evidence

without corroboration.

The trap witness can be considered an interested witness as regards their

evidence. As a matter of law, it is not correct to say that there evidence cannot be

accepted without corroboration. Each case depends on its circumstances.

Where the circumstances permit, a court may refuse to act upon

uncorroborated testimony of trap witness on the other hand court will be justified in

acting upon. The uncorroborated testimony of a trap witness, if from the facts and

circumstance of the case, the witness is speaking the truth.128

In State of Punjab v. Madan Mohan Lal Verma -, it was held that defence

for the accused, that complainant was having a criminal background was no ground

to acquit the accused. Complainant can still be forced by the officer to pay illegal

gratification.

The Complainant is an interested and partisan witness, concerned with the

success of the trap and his evidence must be tested in the same way as that of any

other interested witness. The court may look for independent corroboration before

counting the accused Person.

Credibility of evidence of Trap Witness:

In Dalpat Singh v State of Rajasthan,

It was held that the trap witness can be considered as interested witness as

regards their evidence relating to the trap. As a matter of Law, it is not correct to say

that their evidence can be accepted without corroboration. Each case depends on its

own circumstances.

In Parkash Chand v State (Delhi Admin) :-

Where a circumstances permits a court may refuse a act upon corroborated

testimony of trap witness, on the other hand, court will be justified in acting upon.

The uncorroborated testimony of a trap witness, if the courtiers satisfied from the

facts and circumstances of the case, that witness is a witness of truth.

In Vinod Kumar V. State of Punjab :-

Trap witness is an interested witness, but accused can be conviction on his

testimony when there is no evidence that he was anyway personally interested to get

accused convicted. In this case, demand of bribe money by accused. Trap laid and

bribe money recovered from accused police officers was shadow witness. The status

of the police is that of an interested witness. However, accused convicted on basis of

evidence of police officer must be supported by other evidence.

It was held that :-

(1) A trap witness is an interested witness and his testimony, to be accepted and

relied upon require corroboration and the corroboration would depend upon the

facts and circumstances, nature of the crime and the character of the witness

Further,

(ii) There is no invariable rule that the evidence of the witness of the reading

party must be discarded in the absence of any in dependent

corroboration.

(iii) Though a trap witness is not an approver, he

is certainly an interested witness in the since that he is interested to see

that the trap laid by him succeeds. He can at least be equated with a

partisan witness and it would not be admissible to rely upon his evidence

without to really upon his evidence without corroboration, but his

evidence is not a tainted one.

Trap witness is an interested witnesses. Evidence of Decoy witnesses or the

members of raiding party cannot be the accepted unless corroborated in material

particular by independent evidence both as regards the commissions of the crime

and the identity of the offender .It is not necessary that each other and every person

who has spectator should be associated as a witness

Material Witness

A person who apparently has information about the subject matter of a

lawsuit or criminal prosecution which is significant enough to have its affect on the

outcome of the case or trial. Thus, the court must make every reasonable effort to

allow such a witness to testify including a continuous (delay in a trial) to

accommodate him/her if late or temporarily unavailable.

The witness who speaks about the crucial facts or any of the issue in the suit

or prosecution are called material witnesses. Failure to examine material witnesses

in civil cases, effect the chances of success of the parties. Failure to examine the

material witness by the prosecution in criminal cases may result in clean acquittal of

the accused. Persons who are present at the scene of offence in criminal cases and

the person who are associated with the transactions in civil matters, must be

produced as witnesses, since the examination of such witnesses is mandatory.

Material witness means a witness in relation to the subject matter of the litigation

and does not mean material in relation to parties.

In Joginder Singh v. State of Haryana :-

The court held that non examination of the material witness is not a

mathematical formula, for discarding the weight of the testimony available on

record. Whether the witnesses were available for being examined in the court and

were still with held by the prosecution. Non-examination of the material witness is

not a mathematical formula for discarding the weight of the testimony available on

record.

Material witness ought to be relied upon since he is capable of narrating the

sequence of the events that resulted in the commission of the offence.

In Mohit v. State of Haryana :-

The Court held that, the material witness was not examined by the

prosecution though he was associated with the investigation. During the course of

evidence, he was summoned. His evidence was given up by the prosecution as

having been won over. It is not necessary for the prosecution to examine every

witness relating to certain occurance. However, the probative value of other witness

is not at all affected.

In Nagina Sharma v. State of Bihar 1991 Cri.L.J 1195, the court held that the investigating

officer is a material witness, as he investigates the case, maintains the case diary,

goes to the place of occurence ,sends the dead body, after preparing inquest report,

for postmortem examination. He also sends the injured for medical examination and

then gets the postmortem report. He collect the materials and evidence for the

prosecution so that conviction is outrightly based on it. It is he who has to explain

each and every action ,at every stage of the investigation. His objective finding

become relevant for the prosecution as well as the defence. Thus, I.O. is a material

witness whose examination cannot be ignored and the court cannot collect material

for conviction of an accused from the investigation expert or a case diary unless he

has been examined as a witness.

Stock Witness

Police, the premier investigative agency, is alleged to keep with them and

maintain some person to be used as witnesses whenever necessary. Such persons are

called stock witnesses. The police also maintain some persons who offer their services for forging the documents or counterfeit the coins. There are several

instances where the same witnesses appear in different cases. Stock witness is

trained to give evidence suitable to the case. They are tutored to speak what the

police require of them to speak. They are also instructed by the police as to what

they should not speak in cross-examination. If such witness is not used for the

purpose of proving the offence itself, he is used often to speak about the missing

links in the circumstantial evidence. Stock witness is tutored even to speak what he

has not seen. He can be certainly trapped in the cross-examination when he is

questioned about the other circumstances related to the case. Whenever a witness is

suspected to be a stock witness, the court must take appropriate steps against him for

contempt of court.

Delhi High Court

Kashmir Singh vs Narcotics Control Bureau on 18 August, 2006

What is the worth of evidence of `stock witnesses'?

"14. The answer may be given straightaway - nothing ! The reasons for this lie in the very concept of a `stock witness' whom Krishna Iyer, J., aptly described in Prem Chand (Paniwala) case as "a regular pedlar of perjury `on police service'". It is a rarity for one person to be witness to a crime in one lifetime. But, where a person claims to be a chance witness to crimes at different places and different points of time, the improbability is writ large on the face of such a tall claim. And, as observed in Premchand (Paniwala) (supra) - "were he not omnipresent how could be testify in so many cases save by a versatile genius for loyal unveracity?"

In Didar Singh v. State of Haryana-, the Division Bench of Punjab and

Haryana High Court held that the Public witness cannot be dubbed a stock witness.

There is nothing on record to show that he had ever appeared as witness in any case

prior to it. Therefore, a stock police witness given up by police, but examined as a

defence witness, his credibility will not be enhanced.

In Pirthi Singh v. State of Punjab :-

the court held that the recovery of fake

currency notes effected in presence of witness who proved to be stock witness. PW

given up by police. He was examined as defence witness. If witness was unreliable

for the prosecution then his credibility will not be enhanced by his appearing for the

defense as a defence witness.

Stock witness are relied upon by the prosecution in the offences where it

becames necessary to examine them to prove their claim in the court so as to

convince the court to issue an order against the accused.

Police witnesses:

The Term police witness has not been defined under the Code of Criminal Procedure or in the

Evidence act. A police officer is one who

(i) Is considered to be a police officer in a "common parlance" keeping into

focus the consequence provided under the Act.

(ii) Is capable of exercising influence or authority over a person from whom a

confession is obtained.

In Suresh Kumar V. State of Himachal Pradesh :-

,

The Supreme Court in this case held that the police personnel could have

been relied upon only, had the prosecution been able to otherwise prove by way of

cogent and reliable evidence, the manner in which the occurrence took place.

In C. Ronald V. State, UT of Andaman and Nicobar Island :-

The witness whose statement was recorded u/s 164 Cr P.C turned hostile.

The accused was convicted on the basis of the evidence produced by police

witnesses. It was held that:-

i) “There is no principle of law that a statement made in the court by a police

personnel has to be disbelieved. It may not be believed. It is not that all

policemen will tell lies. There are good and bad people in all walks of life.

There are good and bad policemen as well. Court cannot assume that every

statement of a policeman is necessarily false”

ii) In Madhu @ Madhuranatha V. State of Karnataka,- held that “Evidence of

police officials cannot be discarded merely on the ground that they belong to

the police force or are either interested in the investigation or the

prosecution. However, as far as possible, the corroboration of their evidence

on material particulars should be sought.”

In Pritam Singh V. State of Punjab : -

“There is no bar in recording the conviction by relying upon the statements

of police officers. The statements of police officials are to be weighed on the same

scale as of others. Witnesses, of course the statements of the police officials are to be

scrutinized with due care and the caution.”

In Gora Singh V. State of Punjab :-

“Weapon of offence were recovered from accused on basis of their

disclosure statements. Mere fact that a public witness associated at the time of

disclosure statements and recoveries, has not been examined. It is no ground to

disbelieve the consistent testimonies of Investigating officer and head constable.”

In Vinod Kumar V. State of Punjab: -

“The police witnesses are said to be partisan witness, as they are interested in

the success of the trap laid by them, but it cannot be said that they are accomplices.

There evidence must be tested in the same way as any other interested witness is

tested and the court may look for independent corroboration before convicting the

accused person.”

In Suresh Kumar v. St of H.P - the police personal could have been relied

upon, had the prosecution been able to otherwise prove by way of cogent and

reliable evidence ,the manner in which the occurrence took place. There is no bar in

recording the conviction by relying upon the statements of police officers. The

statements of police officials are to be weighed in the same scale as of other

witnesses. The statements of the police officials are to be scrutinized with due care

and caution.

Police officials are responsible persons and there evidence cannot be

discarded merely on ground that same is not corroborated by independent witness. A

person in possession of huge quantity of contrabands must be deemed to be having

knowledge of facts of such articles unless , it is rebutted by cogent evidence.

Testimony of Police Witness:

Conviction can be based on the testimony of a police witness but their testimony

will have to be scrutinized with caution and it has to be determined whether the

same is reliable or not.

In Sumit Tomar V. State of Punjab

The Accused was convicted on the testimony of the official witness

resulting in the recovery of 70 kg poppy. Further, who joins the investigation but has

yet not been examined, as he did not turn up. Accused can be convicted relying on

the testimonies of official witnesses. Though, as a rule, it is desirable to examine

independent witness, but in the absence of any such witness, if the statement of the

police officer is reliable and there is no animosity established against them by the

accused, conviction based on their statement cannot be faulted. No animosity

established on the part of official witness.

In Pritam Singh V. State of Punjab, the court held that,

There is no bar in recording, the conviction by relying ,upon the statement of

police officers. The statement of police officials are to be weighed in the same scale,

as of other witnesses.

In Rohtash Kumar V.State of Haryana :-

(i) Evidence of police witness must be subject to scrutiny. The evidence of the

police officer cannot be discarded merely, on the ground that they belonged

to the police force and are either interested in investigating or are in the

prosecuting agency. However, as far as possible the corroboration of their

evidence on material particulars, should be sought.

There can be no prohibition to the effect that a policeman cannot be a

witness or that is deposition cannot be relied upon. The rule of prudence, however,

only requires a greater degree of scrutiny of their evidence. As they may be said to

be interested in the result of the case .No infirmity is attached to the testimony of

police official merely, because they belong to the police and there is no rule of law

or evidence which lays down that conviction cannot be recorded on the evidence of

the police official if it is found to be reliable. As a precaution it must be corroborated

by some independent evidence .There is no principle of law that a statement made in

court by police personnel has to be disbelieved. Court cannot assume that every

statement of policeman, as a necessity, has to be false.

Injured witness

A witness who himself becomes a victim to the crime is better capacitated to

narrate the sequence of the crime scene and how he came within the domain. What

was he doing at that place, at the hour, Was he related to them or accidently fell in

the domain of victimization or he was participant in crime and got injured while in

an attempt to escape.. It would not be possible for injured witnesses to attribute

specific injury or specific overt acts to the accused individually. Minor discrepancies

and omissions pointed out in their evidence did not shake their trustworthiness.

Testimony of said witnesses did not deserve to be discarded on the ground of non

mentioning of specific overt acts.

The injury to the witness is an in built guarantee of his presence at the scene

of the crime. The deposition of the injured witnesses should be relied upon, unless

there are strong grounds for rejection of his evidence on the basis of major

contradictions and discrepancies. The depositions so made cannot be brushed aside

merely because there have been some trivial contradiction or omissions.

Testimony of an injured witness can be acted upon even without any

corroboration as he is having a special status in law. Such a witness comes with a

built in guarantee of his presence at the scene of the crime and is unlikely to spare

actual assailant in order to falsely implicate someone. The evidence of the injured

witness should be relied upon, unless there are grounds for rejection of his evidence

on the basis of major contradiction and discrepancies therein.

Chance Witness:

A Chance witness is one who he happens to be on the scene of offence by

chance and not by any design or purpose. Chance witness is not an unreal witness

nor a planted witness or a stock witness. It may be that he is honest and an independent person. The witness who is merely a chance witness his evidence cannot be considered to be unworthy of evidence.

In Namdev V. State of Maharashtra

“The Court drew a clear distinction between a chance witness and natural

witness. Both these witnesses have to rely subject to their evidence being

trustworthy and admissible in accordance with the law”. Their evidence can be

brushed aside or viewed with suspicion on the ground that they were merely chance

witnesses.

(i) Credibility of Chance Witness

In Madan Lal v. St of Punjab, The statement of chance witness does not

inspire confidence and is not sufficient to base a conviction. If he did not speak the

truth before the court while sworn on oath conviction cannot be based on the

statement of so called eye witness.

It is apparent that if a chance witness happens to be a relative or friend of the

victim or inimically deposes towards the accused, then such a chance witness has

to be viewed with suspicion. Chance witness, evidence may be reliable or

depending on the circumstances and their proximity to see an offences being

committed. When the offence took place in broad day light and the residents

witnessed it. Their presence at the place could not be considered unnatural.

Their statements cannot be discarded by treating them as chance witness

The witnesses gave minute details of the occurrence .Their evidence can be relied

upon as being trustworthy and admissible in accordance with the Law.

Independent witness :

An independent witness either not to join official witness if they join then

they withhold enmity with themselves for variety of reason to avoid enmity with the

accused or of their families to avoid unwanted harassment in the courts and wastage

of time. Non-examination of independent witness hardly affects the substratum of

the case. Court must rely upon close associates and relatives of the accused. Mere

fact that no independent witness has been examined does not cast a doubt on the

evidence of the parents of deceased.

(i) Credibility and Admissibility of Independent Witness

Examination of Independent Witnesses is a rule of prudence and not of

necessity. It is only in cases where there is some doubt, that court will insist on

testimony of independent witness. If evidence led by the prosecution inspires

confidence, non-examination of independent witness would not be a serious

lacuna.

The Apex court held that the people are generally averse to depose in favour

of prosecution as it may expose them to serious consequences.

A recovery of 2 Kgs of charas was made. Independent witness not joined.

Conviction is rightly based on the evidence of official witness. If the independent

witness, joins the investigation had no animus or hostility against the accused. No

motive can even be ascribed to them to testify falsely in the case.

Testimony of independent witnesses are never forthcoming. Court must rely

upon close associates/ relatives of accused mere fact that no independent witness has

been examined, does not cast a doubt on evidence of parents of deceased.

The basic truth is, that so called independent witnesses stay far away and are

not willing to come forth as they often face harassment and suffer grave

consequences. The prosecution has therefore, no choice but to fall back on the

testimonies of witnesses who are friends or the family members of the victim.

NATURAL WITNESS - a witness whose presence at the scene of crime or spot is natural in the given circumstances .

Supreme Court of India

Ganesh K. Gulve Etc vs State Of Maharashtra on 21 August, 2002

In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is committed. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely connected with the crime be also convicted. Everyone's different way of narration of same facts. These are only illustrative instances. Bearing in mind these broad principles, the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct state of affairs.

STERLING WITNESS : -

Rai Sandeep @ Deepu Vs. State : (2012) 8 SCC 21, wherein it has been held that :

"15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

MERE DELAY DOES NOT EFFECT FIR :

Ram Dass and Others Vs. State of Maharashtra : (2007) 2 SCC 170, the Apex Court observed that :

"Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."

NUMBER OF WITNESSES

Section 134 of Indian Evidence Act, 1872 defines:-

"No particular number of witnesses shall in any case be required for the proof

of any any case.”

Conviction can be based on the testimony of a single witness, if he is wholly

reliable. Corroboration is necessary when evidence is partial. If evidence is explicit

and free from criticism, and the court is examined that the witness is reliable and

speaking the truth, then, conviction can be based only on his evidence

Prosecution Witness – Prosecution is the organization or beginning of criminal continuing and the way toward showing formal charges against an offender before a legitimate court and seeking after them to definite judgment in the interest of the state or government by arraignment or data. An indictment exists until ended in the last judgment of the court to compose the sentence, release or absolution, an observer which shows up for the arraignment side is known as a Prosecution Witness.

Defense Witness – Defense side in a criminal continuing is restricting or refusal of reality or legitimacy of the examiner’s objection, the procedures by a litigant or blamed gathering or his lawful specialists for safeguarding himself. An observer brought on the solicitation of the shielding party is known as a Defense Witness.

Expert Witness – A ‘specialist’ isn’t a ‘witness’ of reality. His evidence is truly of a warning character. The obligation of a ‘specialist witness’ is to outfit the appointed authority with the essential logical models for testing the precision of the end in order to empower the adjudicator to shape his free judgment by the utilization of this standards to the realities demonstrated by the evidence of the case. The logical supposition evidence, if coherent, persuading and tried turns into a factor and alongside the other evidence of the case. The believability of such an observer relies upon the reasons expressed on the side of his decisions and the information outfitted which structure the premise of his decisions.

Eye Witness – An Witness who offers declaration to realities seen by him is called an onlooker, an observer is an individual who saw the demonstration, actuality or exchange to which he affirms. An observer must be equipped (lawfully fit) and qualified to affirm in court. An observer who was inebriated or crazy at the time the occasion happened will be kept from affirming, whether or not the person was the main onlooker to the event. Recognizable proof of a denounced in Court by an ‘Observer’s is a genuine issue and the odds of a bogus ID are exceptionally high. Where a case holds tight the evidence of a solitary onlooker it might be sufficient to continue the conviction given authentic declaration of an able, genuine man in spite of the fact that generally speaking of judiciousness courts call for validation. “It is a saying to state that witnesses must be gauged and not checked since quality issues more than amount in human undertakings.”

PANCH WITNESS - A Panchanama is a record of what the Panchs (Witness) see and the same can be proved only when the said Panchs stand in the witness box and testify on oath as to what they saw during the Panchanama. The main intention behind conducting Panchanama is to guard the case from unfair dealings on the Part of the Officers. The Panchanama can be used as a corroborative piece of evidence. It cannot be said to be a substantive piece of evidence, and hence relying only on the Panchanama in absence of any substantive evidence cannot attract conviction. In case no Panchs (Witness) are available when required, the Officer-in-charge shall conduct the search and seize the articles without Panchs (Witness) and draw a report of entire such proceedings which is called a Special Report..

SOME MORE NUANCES REGARDING EXHIBITION OF DCUMENT : -

in Javer Chand and Ors. v. Pukhraj Surana, . The Apex Court was dealing with a question raised as to the admissibility of document on the ground that it has not been stamped or has not been properly stamped and the impact of Section 36 of Stamp Act. It was observed:

"....Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or ha snot been properly stamped it has to be decided then and there when the document is tendered in evidence. Once the Court rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case..... It is not, therefore, one of those cases where a document has been advertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has bene marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction."

Delhi High Court

Shail Kumari vs Saraswati Devi on 2 August, 2001

"The question of admissibility of the document has to be decided at the stage when the document is formally tendered in evidence and proved. Deferring a decision on the question of admissibility of the document and making it part of the evidence by marking exhibit mark on it may lead to complication and in many cases result in grave injustice to the party, who tenders the document. If the question of admissibility of the document and making it part of the evidence by marking exhibit mark on it may lead to complication and in many cases result in grave injustice to the party, who tenders the document. If the question of admissibility of the document is deferred to be decided at the time of hearing of final arguments in many case a party may be deprived of an opportunity to cure a curable defect or supply the deficiency. It is for this very reason that the High Court Rules and Order discussed above lay emphasis on prompt disposal of the objection raised to the admissibility of the document and mode of proof. It may work great injustice in some cases if left undecided till the arguments are heard for disposal of the suit. The objection to the admissibility and the proof of the document should ordinarily be not kept pending and this should be decided promptly as and when they are raised, particularly if raised during the recording of the evidence of a witness who is called to prove it. But the objection certainly be disposed of before the date is fixed for hearing of final arguments."

TAPE RECORDED EVIDENCE : -

Supreme Court of India

R. M. Malkani vs State Of Maharashtra on 22 September, 1972

Under section 146 of the Evidence Act questions might be put to the witness to test the veracity of the witness. Again under section 153 of the Evidence Act a witness might be contradicted when he denied any question tending to impeach his impartiality. This is because the previous statement is furnished by the tape recorded conversation. The tape itself becomes the primary and direct evidence of what has been said and recorded. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice'; and. thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act. Such Evidence will also not be hit by section 162 Of Cr.PC .

In Ysufalli Esmail Nagree v. The State of Maharashtra - the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh informed the Police. The Police laid a trap. Sheikh called Nagree at the residence. The Police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector. Sheikh gave evidence of the talk. The tape record corroborated his testimony. as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secures scrupulous conduct and behaviour on behalf of the Police. The reason is that the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. In every case the position of the accused, the nature of the investigation and the gravity of the offence must be judged in the light of the material facts and the Surrounding circumstances.

The admissibility of evidence procured in consequence of illegal searches and other unlawful acts was applied in a English decision in R. v. Maqsud Ali-In that case two persons suspected of murder went voluntarily with the Police Officers to a room in which, unknown to them, there was a microphone connected with a tape-recorder in another room. They were left alone in the room. They proceeded to have a conversation in which incriminating remarks were made. The conversation was recorded on the tape. The Court of Criminal Appeal held that the trial Judge had correctly admitted the tape-recording of the incriminating conversation in evidence. It was said "that the method of the informer and of the eavesdropper is commonly used in the detection of crime. The only difference here was that a mechanical device was the eavesdropper". The Courts often say that detection by deception is a form of police procedure to be directed and used sparingly and with circumspection..

When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. The fact that tape recorded conversation can be altered is also borne in mind by the Court while admitting it in evidence. In the present case the recording of the conversation between Dr. Motwani and the Appellant cannot be said to be illegal because Dr. Motwani allowed the tape recording instrument to be attached to his instrument. In fact, Dr. Motwani permitted the Police Officers to hear the conversation. If the conversation were relayed on a microphone or an amplifier from the telephone and the police officers heard the same they would be able to give direct evidence of what they heard. Here the police officers gave direct evidence of what they saw and what they did and what they recorded as a result of voluntary permission granted by Dr. Motwani. The tape recorded conversation is contemporaneous relevant evidence and therefore it is admissible. It is not tainted by coercion or unfairness. There is no reason to exclude this evidence.

It was said that the admissibility of the tape recorded evidence offended Articles 20(3) and 21 of the Constitution. The submission was that the manner of acquiring the tape recorded conversation was not procedure established by law and the appellant was incriminated. The appellant's conversation was voluntary. There was no compulsion. The attaching of the tape recording instrument was unknown to the appellant. That fact does not render the evidence of conversation inadmissible. (vide R.M Malkani (Supra))

The appellant's conversation was not extracted under duress or compulsion. If the conversation was recorded on the tape it was a mechanical contrivance to play the role of an eavesdropper. In R. v. Leatham - it was said "It matters not how you get it if you steal it even, it would be admissible in evidence".. As long as it is not tainted by an inadmissible confession of guilt evidence even if it is illegally obtained is admissible. There is no scope for holding that the appellant was made to incriminate himself. At the time of the conversation there was no case against the appellant. He was not compelled to speak or confess. Article 21 was invoked by submitting that the privacy of the appellant's conversation was invaded.. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed' interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful or irregular method in obtaining the tape recording of the conversation.

POSITION OF RELEVANT EVIDENCE OBTAINED BY ILLEGAL MEANS :-

Supreme Court of India

Pushpadevi M. Jatia vs M.L. Wadhavan, Addl. Secretary ... on 29 April, 1987

If evidence is relevant the Court is not concerned with the method by which it was obtained.

"The test to be applied. both in civil and in criminal cases, in considering whether evi- dence is admissible, is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained." The rule is however subject to an exception. The Judge has a discretion to exclude evidence procured. after the commencement of the alleged offence, which although technically admissible appears to the Judge to be unfair. The classical example of such a case is where the prejudicial effect of such evidence would be out of proportion to its evidential value.

in Magraj Patodia v.R.K. Birla & Ors., [1971] 2 SCR 118 held that the fact that a document which was procured by improper or even illegal means could not bar its admissibility provided its relevance and genuineness were proved.

In R.M. Malkani v. State of Maharashtra, [1973] 2 SCR 417 the Court applying this principle allowed the tape-recorded conversa- tion to be used as evidence in proof of a criminal charge. In Pooran Mal etc. v. Director of Inspection (Investigation) of Income-Tax Mayur Bhavan, New Delhi & Ors., [1974] 2 SCR 704 the Court held that the income-tax authorities can use as evidence any information gathered from the search and seizure of documents and accounts and articles seized

DOG TRACKER EVIDENCE :-

In Abdul Razak Murtaza Dafadar vs. State of Maharashtra {AIR 1970 SC 283} a three Judge Bench of this Court declined to express any concluded opinion or to lay down any general rule with regard to tracker dog's evidence or its admissibility against the accused, as it was not necessary to do so on the fact situation. However, their Lordships made the following observations on the usefulness or otherwise of such evidence:

"It was argued that the tracker dog's evidence could be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli. The comparison does not, however, appear to be sound because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. But dogs are intelligent animals with many thought process similar to the thought processes of human beings and wherever you have you have thought processes there is always the risk of error, deception and even self-deception. For these reasons we are of the opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight."

In Surinder Pal Jain vs. Delhi Administration {1993 Supple.(3) SCC 681} a two Judge Bench expressed the opinion that "the pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime, so save their Lordships sidelined that item of evidence from consideration.".

Supreme Court of India

Gade Lakshmi Mangraju @ Ramesh vs State Of Andhra Pradesh on 10 July, 2001

We are of the view that criminal courts need not bother much about the evidence based on sniffer dogs due to the inherent frailties adumbrated above, although we cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals.

Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them.

Bombay High Court

Babu Magbul Shaikh vs State Of Maharashtra on 7 October, 1992

What the Courts have insisted upon is that the evidence must pass the test of scrutiny and reliability as in the case of any other evidence. The following guidelines must, however, be borne in mind :

(a) That there must be a reliable and complete record of the exact manner in which the tracking was done and to this extent, therefore, in this country, a panchnama in respect of the dog tracking evidence will have to be clear and complete. It will have to be properly proved and will have to be supported by the evidence of the handler.

(b) It will be essential that there are no discrepancies between the version as recorded in the panchnama and the evidence of the handler as deposed to before the Court.

(c) The evidence of the handler will have to independently pass the test of cross-examination.

(d) Material will have to be placed before the Court by the handler, such as the type of training imparted to the dog, its past performance, achievements, reliability, etc., supported, if possible and available, by documents.

It is scientifically accepted that dogs are rated as extremely intelligent animals and that some of their sensibilities are very highly developed and are extremely reliable. It is also to be noted that there are some breeds of dogs and some strains which are specially utilised for hunting and tracking because of their abnormally high talents. If the dog belongs to one of these categories and if it is shown to the Court that it has been specially trained for purposes of detection, not only would the dog-tracking evidence will be admissible, but it will have to be relied upon as being evidence of a very high calibre.

BEYOND REASONABLE DOUBT : -

Supreme Court of India

State Of Madhya Pradesh vs Dharkole @ Govind Singh & Ors on 29 October, 2004

A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case? Referring to of probability amounts to 'proof' is an exercise the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See "The Mathematics of Proof II": Glanville Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342). "The simple multiplication rule does not apply if the separate pieces of evidence are dependent.

Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."

Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case.

The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice.

What is the Preponderance of Probabilities ?

The preponderance of the evidence evidentiary standard is the evidentiary standard required to be proven in civil law cases. This is a lower standard than the beyond a reasonable doubt standard, which will be discussed below.

What preponderance of the evidence means is that the burden of proof is met if there is greater than a 50% chance that, based on all the reasonable evidence shown, plaintiff’s claims are true and defendant did in fact do the wrong that caused the damage.

Many legal scholars define the preponderance of the evidence standard as requiring a finding that at least 51% of the evidence shown favors the plaintiff’s story and outcome. Another way to think of the standard is to simply ask whether the plaintiff’s proposition is more likely to be true than not true.

The plaintiff meets this burden of proof by presenting physical and testimonial evidence to prove their case and the proposition that it is more likely to be true than not true that defendant caused the harm. On the other hand, the defendant does not have to do anything to prove or defend their case if the plaintiff fails to prove their case by a preponderance of the evidence. If the plaintiff does not meet this burden, then the defendant wins as a result.

What is the Beyond a Reasonable Doubt Standard?

In criminal law cases, the burden of proof always rests with the prosecution, as the defendant is always presumed innocent, until proven guilty. If the prosecution fails to prove guilt by beyond a reasonable doubt, the defendant does not need to prove anything. The beyond a reasonable doubt standard is a much higher standard than the preponderance of the evidence standard.

Legal scholars generally describe the beyond a reasonable doubt standard as being met where the prosecutor demonstrates that there is no plausible reason to believe otherwise. If there is any real doubt after careful consideration of all the evidence presented, then this standard has not been met. However, this does not mean that the beyond a reasonable doubt standard is absolute, the prosecutor must prove the case to an extent that no reasonable person could reasonable doubt the defendant’s guilt.

Although court’s do not assign or attach numbers to the beyond a reasonable doubt standard, many scholars believe that it means 90%, 95%, or even 99% sure. If after all the evidence has been put forth the judge or jury has no doubt as to the defendant’s guilt, or if their only doubts are unreasonable, then the prosecutor has met the burden and proved the defendant’s guilt beyond a reasonable doubt and the defendant should be pronounced guilty. On the other hand, if there is a reasonable doubt that the defendant committed the crime, then the defendant should be pronounced innocent.

CORPUS DELICTI : - GENERALLY CORPPUS DELICTI HAS TO BE PROVED LIKE ANY OTHER FACT , HOWEVER THERE MAY BE CASES WHERE IT CANNOT BE PROVED :-

Supreme Court of India

Sevaka Perumal, Etc vs State Of Tamil Nadu on 7 May, 1991

In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. Take for instance that a murder was committed and the dead body was thrown into flowing tidal river or steam or burnt out. It is unlikely that the dead body may be recovered. If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc. and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is proved. What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum, of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced.

MATERIAL AND NORMAL DISCREPANCIES : -

Supreme Court of India

Jayaseelan vs State Of Tamil Nadu on 11 February, 2009

The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment.

As observed by this Court in State of Rajasthan v. Smt Kalki and Anr. [1981 (2) SCC 752], normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.

Two witness theory :-

This two-witness theory has also been adopted by Apex Court in the case of Binay Kumar Singh v. State of Bihar: 1997 1 SCC 283. It is held that there is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is held that it is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. It is held that even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. It is held that all the same, when the size of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting.” 15.1. Thus, it is the quality of evidence that matters and not the quantity; and even the testimony of a single witness may be sufficient to establish the identity of an accused as member of an unlawful assembly but, when the size of assembly is quite large and many persons have witnessed the incident; and when a witness deposes in general terms, it would be useful to adopt the test of consistency of more than one witness so as to remove any doubt about identity of an accused as a member of the assembly in question. However, even if adopting such a test of consistency, what is to be looked for is the ‘consistent account of the incident’; and the requirement of consistency cannot be overstretched as if to search for repetition of each and every name of the accused in each and every testimony. In other words, the comprehension of overall evidence on record is requisite; and mere counting of heads or mere recitation of names or omission of any name in the testimony of any particular witness cannot be decisive of the matter. In such facts and circumstances, even the relevance of the corroborating facts and factors like that of recovery of weapons or any other article co-related with the crime in question cannot be ignored altogether. (reiterated in Duleshwar vs State Of Mp (Now Chhattisgarh) on 21 January, 2020 - 3 judges bench)

Supreme Court of India

Bhimrao Anna Ingawale And Others vs State Of Maharashtra on 2 April, 1980

the eye witnesses have improved their case at the trial over the story which they put forward at the investigating stage and therefore prove their unreliability in material particulars; but then they are corroborated in certain other material aspects of their testimony by unimpeachable evidence in the form of the injuries suffered by the two sides, the place where they were inflicted and the consequences which flowed from them, and, in those aspects we cannot but believe them. It is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. But that does not mean that falsity of testimony in one material particular would ruin it from beginning to end. On the other hand the circumstances will be a good reason merely for the court to be put on guard and sift the evidence with extraordinary caution and to accept y those portions of it which appear fully trustworthy either intrinsically or by reason of corroboration from other trustworthy sources. And that is how we have accepted the eye-witness account in part as stated above.

Mangulu Kanhar v. State of Orissa (Andhra Pradesh High Court -01-1995)

It is well settled that credibility of a witness should not be accepted merely because it is corroborated by the evidence of other witnesses, but such credibility should be tested in the touch-stone of the broad probabilities of the case. If doubt arises with regard to any material fact in a criminal case, the accused is always entitled to the benefit of such doubt.

BLOOD TEST AND DNA EVIDENCE : -

BLOOD TEST : - In Goutam Kundu v. State of West Bangal and Another (1993 (3) SCC 418) Apex Court held, inter alia, as follows:

"(1)That courts in India cannot order blood test as a matter of course;

(2)Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.

Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449, paragraph 13, which is relevant for the purpose is quoted below:

“13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Evidence Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access . "

Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449

"It was noted that Section 112 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') requires the party disputing the patronage to prove non-access in order to dispel the presumption of the fact under Section 112 of the Evidence Act. There is a presumption and a very strong one, though rebuttable one. Conclusive proof means proof as laid down under Section 4 of the Evidence Act. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage of filiation (parentage) may be presumed, the law in general presuming against vice and immorality.

It is rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.".

In Dukhtar Jahan (Smt.) v. Mohammed Farooq (1987 (1) SCC 624) this Court held:(SCC p. 629, para 12):

"... Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of the man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman."

In Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633, in which it has been held as follows:

“22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.”

Supreme Court of India

Nandlal Wasudeo Badwaik vs Lata Nandlal Badwaik & Anr on 6 January, 2014

We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.

The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice. (in none of the cases referred to above, this Court was confronted with a situation in which DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act.)

In a very important and recent judgment delivered by the Hon’ble Supreme court of

India in the case of Sharda v. Dharampal, where the core question was, whether a

party to a divorce proceeding can be compelled to a medical examination. In this case

the Respondent on the ground that such an order violates his right to privacy opposed

an order for DNA test. The three Judge Bench of the Hob’ble Supreme court held

that: “If for arriving at the satisfaction of the Court and to protect the right of a party

to the lis who may otherwise be found to be incapable of protecting his own interest,

the court passes an appropriate order, the question of such action being violative of

Art. 21 of the Constitution of India would not arise. The court having regard to Art,

21 of the Constitution of India must also see to it that the right of a person to defend

himself must be adequately protected.” It further held that if respondent avoids such

medical examination on the ground that it violates his/her right to privacy or for a

matter right to personal liberty as enshrined under Art. 21 of the constitution of India,

then it may in most of such cases become impossible to arrive at a conclusion.

Chinta Madhusudhan Rao v. Chinta Naga Lakshmi and another 01-6-2015

, Andhra Pradesh High Court held that the DNA test proposed to be conducted was essential to establish the rights of the parties. It was held in paragraphs 13 and 14 as under:

13. From the two judgments of the Supreme Court , it is clear that the Court has a wide discretion to direct a party to undergo any medical test including the DNA test. But, the discretion has to be exercised by the Court properly on being satisfied about the party requiring the Court to direct such a test to establish a strong prima facie case. The party against whom an order directing to undergo medical test is passed, is not permitted to contend that it offends his personal liberty. When the right of a party to the proceeding comes into conflict with the so-called right to privacy and personal liberty of the opposite party, the Court has to look into the competing interests of the parties.

In Pattu Rajan vs The State of Tamil Nadu on 29.03.2019.

The Supreme Court observed “One cannot lose sight of the fact that DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Indian Evidence Act. Undoubtedly, an expert giving evidence before the Court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the Court in forming its opinion on questions concerning foreign law, science, art, etc., on which the Court might not have the technical expertise to form an opinion on its own. In criminal cases, such questions may pertain to aspects such as ballistics, fingerprint matching, handwriting comparison, and even DNA testing or superimposition techniques, as seen in the instant case”.

The Court further observed “Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party”.

In Inspector of Police, Tamil Nadu v. John David -, a young boy studying in MBBS Course was brutally murdered by his senior. The torso and head were recovered from different places which were identified by the father of the deceased. For confirming the said facts, the blood samples of the father and mother of the deceased were taken which were subject to DNA test. From the DNA, the identification of the deceased was proved. Paragraph 60 of the decision is reproduced below:

“60. … The said fact was also proved from the DNA test conducted by PW 77. PW 77 had compared the tissues taken from the severed head, torso and limbs and on scientific analysis he has found that the same gene found in the blood of PW1 and Baby Ponnusamy was found in the recovered parts of the body and that therefore they should belong to the only missing son of PW1 .

In Krishan Kumar Malik v. State of Haryana , in a gang rape case when the prosecution did not conduct DNA test or analysis and matching of semen of the appellant-accused with that found on the undergarments of the prosecutrix, this Court held that after the incorporation of Section 53- A in CrPC, it has become necessary for the prosecution to go in for DNA test in such type of cases. The relevant paragraph is reproduced below: “44. Now, after the incorporation of Section 53-A in the Cr.P.C w.e.f 23.06.2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still restored to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences.”

In Surendra Koli v. State of Uttar Pradesh and others -, the appellant, a serial killer, was awarded death sentence which was confirmed by the High Court. While confirming the death sentence, this Court relied on the result of the DNA test conducted on the part of the body of the deceased girl. Para 12 is reproduced below:-

“12. The DNA test of Rimpa by CDFD, a pioneer institute in Hyderabad matched with that of blood of her parents and brother. The doctors at AIIMS have put the parts of the deceased girls which have been recovered by the doctors of AIIMS together. These bodies have been recovered in the presence of the doctors of AIIMS at the pointing out by the accused Surendra Koli. Thus, recovery is admissible under Section 27 of the Evidence Act.”

In Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharashtra-, the accused was awarded death sentence on charges of killing large number of innocent persons on 26th November, 2008 at Bombay. The accused with others had come from Pakistan using a boat ‘Kuber’ and several articles were recovered from ‘Kuber’. The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA test and the DNA test matched with several accused.

The Court observed:

“333. It is seen above that among the articles recovered from Kuber were a number of blankets, shawls and many other items of clothing. The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA profiling and, excepting Imran Babar (deceased Accused 2), Abdul Rahman Bada (deceased Accused 5), Fahadullah (deceased Accused 7) and Shoaib (deceased Accused 9), the rest of six accused were connected with various articles found and recovered from the Kuber. The appellant’s DNA matched the DNA profile from a sweat stain detected on one of the jackets. A chart showing the matching of the DNA of the different accused with DNA profiles from stains on different articles found and recovered from the Kuber is annexed at the end of the judgment as Schedule III.”

In Sandeep v. State of Uttar Pradesh , the facts related to the murder of pregnant paramour/girlfriend and unborn child of the accused. The DNA report confirmed that the appellant was the father of the unborn child. The Court, relying on the DNA report, stated as follows:

“67. In the light of the said expert evidence of the Junior Scientific Officer it is too late in the day for the appellant Sandeep to contend that improper preservation of the foetus would have resulted in a wrong report to the effect that the accused Sandeep was found to be the biological father of the foetus received from the deceased Jyoti. As the said submission is not supported by any relevant material on record and as the appellant was not able to substantiate the said argument with any other supporting material, we do not find any substance in the said submission. The circumstance, namely, the report of DNA in having concluded that accused Sandeep was the biological father of the recovered foetus of Jyoti was one other relevant circumstance to prove the guilt of the said accused.”

In Rajkumar v. State of Madhya Pradesh , the Court was dealing with a case of rape and murder of a 14 year old girl. The DNA report established the presence of semen of the appellant in the vaginal swab of the prosecutrix. The conviction was recorded relying on the DNA report. In the said context, the following was stated:

“8. The deceased was 14 years of age and a student in VIth standard which was proved from the school register and the statement of her father Iknis Jojo (PW1). Her age has also been mentioned in the FIR as 14 years. So far as medical evidence is concerned, it was mentioned that the deceased prosecutrix was about 16 years of age. So far as the analysis report of the material sent and the DNA report is concerned, it revealed that semen of the appellant was found on the vaginal swab of the deceased. The clothes of the deceased were also found having appellant’s semen spots. The hair which were found near the place of occurrence were found to be that of the appellant.”

RECORDING OF EVIDENCE AND SECTION 273 PRIMARILY (CRPC TOPIC) :-

At this stage the words of Justice Bhagwati in the case of National Textile Workers' Union v. P.R. Ramakrishnan, (1983) 1 SCC 228, at page 256, need to be set out. They are:

"We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind."

APEX Court has approved the principle of updating construction, as enunciated by Francis Bennion, in a number of decisions. These principles were quoted with approval in the case of Commissioner of Income Tax, Bombay versus M/s Podar Cement Pvt. Ltd. [(1997) 5 SCC 482]. They were also cited with approval in the case of State versus S. J. Chowdhury [(1996) 2 SCC 428]. In this case it was held that the Evidence Act was an ongoing Act and the word "handwriting" in Section 45 of that Act was construed to include "typewriting". These principles were also applied in the case of SIL Import USA versus Exim Aides Silk Exporters [(1999) 4 SCC 567]. In this case the words "notice in writing", in Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. On the same principle Courts have interpreted, over a period of time, various terms and phrases. To take only a few examples:- "stage carriage" has been interpreted to include "electric tramcar"; "steam tricycle" to include "locomotive"; "telegraph" to include "telephone"; "bankers books" to include "microfilm"; "to take note" to include "use of tape recorder"; "documents" to include "computer database's".

Supreme Court of India

The State Of Maharashtra vs Dr. Praful B. Desai on 1 April, 2003

the question was whether an Accused needs to be physically present in Court to answer the questions put to him by Court whilst recording his statement under Section 313. To be remembered that under Section 313 the words are "for the purpose of enabling the accused personally to explain" (emphasis supplied). The term "personally" if given a strict and restrictive interpretation would mean that the Accused had to be physically present in Court. In fact the minority Judgment in this case so holds. It has however been held by the majority that the Section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in facilities for legal aid in the country. It was held, by the majority, that it was not necessary that in all cases the Accused must answer by personally remaining present in Court. Thus the law is well settled. The doctrine "Contemporanea exposition est optima et fortissimm"( means the art of finding out the true sense of an enactment by giving the words of the enactment their natural and ordinary meaning) has no application when interpreting a provision of an on-going statute/act like the Criminal Procedure Code.

It was submitted that video-conferencing could not be allowed as the rights of an accused, under Article 21 of the Constitution of India, cannot be subjected to a procedure involving "virtual reality". Such an argument displays ignorance of the concept of virtual reality and also of video conferencing. Virtual reality is a state where one is made to feel, hear or imagine what does not really exists. In virtual reality one can be made to feel cold when one is sitting in a hot room, one can be made to hear the sound of ocean when one is sitting in the mountains, one can be made to imagine that he is taking part in a Grand Prix race whilst one is relaxing on one sofa etc. Video conferencing has nothing to do with virtual reality. Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear events, taking place far away, as they are actually taking place. To take an example today one does not need to go to South Africa to watch World Cup matches. One can watch the game, live as it is going on, on one's TV. If a person is sitting in the stadium and watching the match, the match is being played in his sight/presence and he/she is in the presence of the players. When a person is sitting in his drawing-room and watching the match on TV, it cannot be said that he is in presence of the players but at the same time, in a broad sense, it can be said that the match is being played in his presence. Both, the person sitting in the stadium and the person in the drawing-room, are watching what is actually happening as it is happening. This is not virtual reality, it is actual reality. One is actually seeing and hearing what is happening. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. In fact he/she is present before you on a screen. Except for touching, one can see, hear and observe as if the party is in the same room. In video conferencing both parties are in presence of each other. The submissions of Respondents counsel are akin to an argument that a person seeing through binoculars or telescope is not actually seeing what is happening. It is akin to submitting that a person seen through binoculars or telescope is not in the "presence" of the person observing. Thus it is clear that so long as the Accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law".

Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross- examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice, of whatsoever nature, is caused to the Accused. Of course, as set out hereinafter, evidence by video conferencing has to be on some conditions.

Reliance was then placed on Sections 274 and 275 of the Criminal Procedure Code which require that evidence be taken down in writing by the Magistrate himself or by his dictation in open Court. It was submitted that video conferencing would have to take place in the studio of VSNL. It was submitted that that this would violate the right of the Accused to have the evidence recorded by the Magistrate or under his dictation in open Court. The advancement of science and technology is such that now it is possible to set up video conferencing equipment in the Court itself. In that case evidence would be recorded by the Magistrate or under his dictation in open Court. If that is done then the requirements of these Sections would be fully met. To this method there is however a draw back. As the witness is now in Court there may be difficulties if he commits contempt of Court or perjures himself and it is immediately noticed that he has perjured himself. Therefore as a matter of prudence evidence by video-conferencing in open Court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of Court and perjury are also punishable. It is To be remembered that what is being considered is recording evidence on commission. Fixing of time for recording evidence on commission is always the duty of the officer who has been deputed to so record evidence. There also have been cases where foreign witness has given evidence in a Court in India and that then gone away abroad. In all such cases Court would not have been able to take any action in perjury as by the time the evidence was considered, and it was ascertained that there was perjury, the witness was out of the jurisdiction of the Court. Even in those cases the Court could only ignore or disbelieve the evidence.

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. Evidence act - preliminary concepts

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