Law of Evidence

By Nizam Azeez Sait,

MODULE No. 26

COMPETENCY AND COMPELLABILITY OF WITNESSES

This is the 26th Module of the subject ‘Law of Evidence’, dealing with “Competency and Compellability of Witnesses” in part IV, chapter IX comprising Sections 124 to 139 of the Bharatiya Sakshya Adhiniyam (Sections 118 to 134 of the Evidence Act).

Sections 124 to 126 of the Bharatiya Sakshya Adhiniyam (Sections 118 to 120 of the Evidence Act) deal with competency of a witness.

Sections 127 to 137 of the Bharatiya Sakshya Adhiniyam (Sections 121 to 132 of the Evidence Act) deal with compellability of the witness.

Section 124 (Section 118 of the Evidence Act) specifies as to who may testify as a witness.

Section 125 (Section 119 of the Evidence Act) deals with the manner of giving evidence by a witness who is unable to communicate verbally.

Section 126 (Section 120 of the Evidence Act) clarifies that a party or husband or wife shall be competent witness.

Section 127 (Section 121 of the Evidence Act) provides that magistrates and judges cannot be compelled to answer any questions as to his own conduct as magistrate or judge expect upon special order of a superior court.

Sections 128 to 137 (Sections 122 to 132 of the Evidence Act) deal with compellability and certain privileged communications which are debarred/prohibited from disclosure such as (a) Communication between husband and wife during marriage, (b) privilege relating to professional communications between a lawyer and his client, (c) Evidence as to Affairs of State, (d) Immunity of Police Officers from Disclosing the Whereabouts of Information, and a few allied matters.

Section 138 (Section 133 of the Evidence Act) deals with Accomplice’s evidence, (already dealt with in Module 11) and

Section 139 (Section 134 of the Evidence Act) mandates that No particular number of witnesses shall in any case be required for the proof of any fact.

MODULE INDEX

1. Introduction
2. Who May Testify – Section 118
3. Failure to Administer Oath to A Witness – Not Fatal
4. Testimony of Child Witness
4.1. Recording of Satisfaction of Competency of Child Witness
4.2. Child Witness’s Evidence Should Be Evaluated Carefully
4.3. Summary of Criteria for Appreciation of the Evidence of a Child Witness

5. Other Causes of Incompetency to be a Witness

6. Lunatic Witness Perse Not incompetent

7. A Witness Unable to Speak May Give Evidence in Any Intelligible Manner
8. Parties to Civil Suit, and Their Wives or Husbands – Husband or wife of Person Under Criminal Trial Shall Be Competent Witness

9. Judges and Magistrates Immunity From questions as to his own conduct in Court

10. Distinction between Relevancy and Admissibility & Privileged Communication

11. Communication during Marriage – Section 128

12. Evidence as to Affairs of State

13. The Court’s Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim – Section 162 – ‘S.P Gupta Proposition’

14. The Manner of Claiming Privilege

15. Greater Need of Transparency

16. Sealed Cover Jurisprudence – Deprecated

17. Immunity of Police Officers from Disclosing the Whereabouts of Information – Section 131

18. Privilege with Respect to Professional Communications between Lawyer and Client Sections 132 to 134 of the Bhartiya Sakshya Adhiniyam

19. When can the Lawyer of the Opposite Side be Summoned as Witness

20. There is No Immunity for The Press/Media from Disclosing the Whereabouts of Information

21. Production of Title-Deeds of Witness not a Party – Cannot Be Compelled
22. Production of documents or electronic records which another person having possession, could refuse to produce

23. Witness not excused from answering on ground that answer will criminate

24. Accomplice’s Evidence Under Section 138 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act)

25. No Number of witnesses is Mandated for Proving a Fact

26. Sole Witness – Evaluation of Evidence

27. Classification of Witness as (1) Wholly Reliable. (2) Wholly Unreliable and (3) Neither Wholly Reliable nor Wholly Unreliable

28. Summarising the Criteria for Evaluation of the Evidence of Sole Witness

1. Introduction

A witness is a person who gives evidence before a court. Persons who are acquainted in any way with the relevant facts of a case are competent generally to give evidence. But with respect to certain matters a witness cannot be compelled or even permitted to divulge or disclose facts / communications which are considered privileged by law for various reasons.

2. Who May Testify – Section 118

Section 124 of the Bharatiya Sakshya Adhiniyam (Section 118 of the Evidence Act) reads as under:

All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation. —A person of unsound mind is not incompetent to testify, unless he is prevented by his unsoundness of mind from understanding the questions put to him and giving rational answers to them.

Generally, all persons are considered to be competent to be a witness and give evidence before a court. Such a witness should be competent to understand the questions put to him and able to give rational answers. Tender years/age, extreme old age, disease, whether of body or mind, or any other cause of the same kind may disentitle a person from giving evidence.

3. Failure to Administer Oath to A Witness – Not Fatal

Section 4 of Oaths Act 1969 reads as under:

Oaths or affirmations to be made by witnesses, interpreters and jurors

(1) Oaths or affirmations shall be made by the following persons, namely:–

(a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;

(b) interpreters of questions put to, and evidence given by, witnesses; and

(c) jurors:

Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.

(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.

In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, (Saiyid Fazl Ali; Vivian Bose, JJ) the Court examined the provisions of S.5 of Indian Oaths Act, 1873 (corresponding to S 4 of the Oaths Act 1969) and S.118 of Evidence Act, 1872 (Section 124 of the Bharatiya Sakshya Adhiniyam) and held that an omission to administer an oath, even to an adult, goes only to the credibility of the witness not his competency.  The question of competency is dealt with in S.118 (Section 124 of the Bharatiya Sakshya Adhiniyam). Every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise.

4. Testimony of Child Witness

Children are competent to be a witness if they understand the questions put to them and able to give rational answers. Before receiving evidence of a child witness the court has to ensure the competency of such witness. For this purpose, the court usually does a test examination with some preliminary common sense questions which are unconnected with the case, the process is known as “Voir Dire Test”.

4.1 Recording of Satisfaction of Competency of Child Witness

In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, the Supreme Court held as under:

“….. It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate ….”

Kerala High Court in In Varkey Joseph v. State of Kerala 1960 KLT 430

observed:

“It is very desirable that a trial Judge should preserve on record, apart from the evidence of a child witness in a case, the questions he put to the witness in the preliminary examination and the answers which would help the appellate court to come to the conclusion whether or not the trial Judge’s decision in regard to the competency of the child witness was right or wrong”. (See also Sudhakaran Aniyan Kunju v State of Kerala 1983 KHC 127: 1983 KLT 594)

4.2 Child Witness’s Evidence Should Be Evaluated Carefully

It is a settled proposition that a child witness’s evidence must be evaluated carefully.

In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959, the Supreme Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

In Panchhi & Others. v. State of U.P., AIR 1998 SC 2726, the Supreme Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that “the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.”

In Nivrutti Pandurang Kokate & Others State of Maharashtra, AIR 2008 SC 1460, the Supreme Court dealing with the child witness has observed as under:

“The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make – believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and molded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

In State of U.P. v. Krishna Master & Others., AIR 2010 SC 3071, the Supreme Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross – examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross – examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Others. State of Maharashtra, AIR 2009 SC 2292).

Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia & Anr. v. State of Punjab, 2006 (13) SCC 516).

In Sasi v State of Kerala and another, 2022 CriLJ 507: ILR 2022 (1) Ker. 794, High Court of Kerala laid down as under:

Evaluation of Evidence of Child Witness

Evaluation of the evidence of a child witness, especially when the child herself is the victim of sexual assault, is very often a tricky affair. Conflicting considerations come into play in the evaluation of the testimony of such a witness. The tender years of the child, coupled with other circumstances appearing in the case, may rule out falsehood in her testimony. Children are assumed to bear no ill – will and malice against anyone. At the same time, there is likelihood of a child witness being tutored. There may also be the possibility of a small child not speaking the whole details of the incident. Very often, the evidence of child witnesses would be riddled with contradictions and discrepancies, being unable to withstand the cross – examination.

 The judicial approach advised by the Apex Court in evaluation of the evidence of a child witness is the exercise of care and caution. The reason is that child witnesses are usually regarded as susceptible to tutoring. They become easy prey to tutoring. They are liable to be easily influenced, shaken and moulded. A child is susceptible to be swayed by what others tell him.

 But, after careful scrutiny of the evidence, if the court comes to the conclusion that there is an impress of truth in it, there is no hurdle in the way of accepting the evidence of a child witness. The evidence shall be scanned by the Court to find out whether it contains traces of tutoring. The Court has to assess the statement of the child victim to ascertain whether it is a voluntary expression made and that he / she was not under the influence of others. Where the trial court is satisfied that the child witness before it is not tutored, it can treat the evidence of such witness like any other witness (See Nivrutti Pandurang Kokate v. State of Maharashtra : AIR 2008 SC 1460 ).

In State of U.P v Krishan Master and Others AIR 2010 SC 3071 : 2010 CriLJ 3889 (H. S. Bedi; J. M. Panchal, JJ), the Supreme Court observed:

There is no principle of law known to this Court that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by him long ago.

4.3 Summary of Criteria for Appreciation of the Evidence of a Child Witness

The law on the evaluation of child witness can be summarized to the effect 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.

The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.

(See State of M.P v Ramesh and Another,  2011 (4) SCC 786)

In Panditi Lakshmareddy v State of A P, 2022 CriLJ 2270 after referring to the following judgments: Ratansinh Dalsukhbhai Nayak v. State of Gujarat (2004) 1 SCC 64 : (AIR 2004 SC 23), Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341 :,  AIROnline 1997 SC 182), Rahey Shyam v. State of Rajasthan, 2014 Law Suit (SC) 120 : AIR 2014 SC (Supp) 773, Hari Om Alias Hero v. State of Uttar Pradesh (2021) 4 SCC 345 : AIR 2021 SC402 , State of U.P. v. Ashok Dixit (2000) 3 SCC 70 : AIR 2000 SC 1066, Andhra Pradesh High Court, summarised the law relating to Appreciation of Evidence of Child Witness as under:

It is thus settled in law with respect to the evidence of the child witness that:

(i) Though the child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shacked and moulded, but if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.

  1. ii) The evidence of the child witness cannot be discriminated only on the ground that of being a tendered age.

iii) The corroboration of a child witness is not a rule but a measure of caution and prudence,

  1. iv) Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness.

(v) The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence.

(vi) The trial Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath.

(vii) The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs.

viii) While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored.

  1. ix) In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purpose of holding the accused guilty or not.

(For commentary on the well settled principles in the appreciation of Evidence of ‘Interested Witness’, ‘Hostile Witness’, ‘Chance Witness’, ‘Rustic witness’, ‘Injured Witness’, ‘Sterling Witness’, ‘Official Witness’, etc See Module 28)

5. Other Causes of Incompetency to be a Witness

Persons in old age may become senile and not capable of comprehending or giving rational answers to questions put to them. Physical and mental diseases can also cause such a situation. There could be other causes also like mental trauma caused by personal problems or other causes.

In Prakesh @ Ajayan and another v State of Kerala, 2009 CriLJ 2930, a division bench of the High Court of Kerala accepted the evidence of an epilepsy patient, the Court observed:

S.118 of the Indian Evidence Act (Section 124 of the Bharatiya Sakshya Adhiniyam) provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. The Explanation to S.118 (Section 124 of the Bharatiya Sakshya Adhiniyam) states that a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. The requirement of S.118 (Section 124 of the Bharatiya Sakshya Adhiniyam) is that the disease, whether of body or mind, must be such as would prevent the witness from understanding the questions put to him and from giving rational answers to those questions. Epilepsy does not always make a person incompetent to testify; nor does it prevent him from understanding the questions put to him or from giving rational answers to those questions. Even assuming that the approver was suffering from epilepsy, that by itself is not a ground to reject his evidence.

6. Lunatic Witness Perse Not incompetent

Explanation to Section 124 of the Bharatiya Sakshya Adhiniyam (Section 118 of the Evidence Act) provides that A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

7. A Witness Unable to Speak May Give Evidence in Any Intelligible Manner

Section 125 (Section 119 of the Evidence Act) reads as follows

A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court and evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.

8. Parties to Civil Suit, and Their Wives or Husbands – Husband or wife of Person Under Criminal Trial Shall Be Competent Witness

Section 126 (Section 120 of the Evidence Act) provides that:

(1) In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.

(2) In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.

In ancient times such persons/spouses were considered incompetent to be a witness. But now there is no such bar and Section 126 of the Bharatiya Sakshya Adhiniyam (section 120 of the Evidence Act) is a clarificatory provision. Section 128 of the Bharatiya Sakshya Adhiniyam (Section 122 of the Evidence Act) of course provides for privilege of communications between husband and wife.

9. Judges and Magistrate’s Immunity From questions as to his own conduct in Court

Section 127 (Section 121 of the Evidence Act) reads as under:

No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any question as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.

Illustrations.

(a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.

(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court.

(c) A is accused before the Court of Session of attempting to murder a police officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred.

If a Judge is compelled to answer questions regarding his official conduct that would have negative impact and would affect independence and quality of justice and may hamper impartiality.

This privilege is not available to matters which has come to his knowledge in his personal capacity. This privilege is subject to the order of a superior court.

Union of India v Orient Engineering and Commercial Company Ltd, 1978 (1) SCC 10: AIR 1977 SC 2445 (Krishna Iyer; Jaswant Singh; Desai, JJ.), the Supreme Court curtailed the attempt to examine an Arbitrator as a witness. The Court observed:

“it is highly obnoxious to summon an arbitrator or other adjudicating body to give evidence in vindication of his award. This is a wholesome principal as is evident from S.121 of the Indian Evidence Act (Section 128 of the Bharatiya Sakshya Adhiniyam). That provision states that no Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate or as to anything which came to his knowledge in Court as such Judge or Magistrate, but he may be examined as to other matters which occurred in his presence whilst he was so acting. Of course, this section does not apply proprio vigore to the situation present here. But it is certainly proper for the Court to bear in mind the reason behind this rule when invited to issue summons to an arbitrator. Indeed, it will be very embarrassing and, in many cases, objectionable if every quasi judicial authority or tribunal were put to the necessity of getting into the witness box and testify as to what weighed in his mind in reaching his verdict. We agree with the observations of Walsh, A.C.J., in Khub Lal v. Bishambhar Sahai (AIR 1925 All 103) where the learned Judge has pointed out that the slightest attempt to get to the materials of his decision, to get back to his mind and to examine him as to why and how he arrived at a particular decision should be immediately and ruthlessly excluded as undesirable.

10. Distinction between Relevancy and Admissibility & Privileged Communication

Now we will move on to the Distinction between Relevancy and Admissibility and privileged communications.

The terms Relevancy and Admissibility can be distinguished.

As we have seen, Section 2 (k) of the Bhartiya Sakshya Adhiniyam (Section 3 of the Evidence Act) defines the term “Relevant” as follows— “One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.”

We have also seen that, the of the Bhartiya Sakshya Adhiniyam specifically provides in sections 4 to 50 as to what facts are made or declared to be relevant and S.5 specifically states that evidence may be given only of facts in issue and facts so declared as relevant.

In Ram Bihari Yadav v. State of Bihar and Others, AIR 1998 SC 1850: 1998 Cr L J 2515, the Supreme Court held;

“More often the expressions ‘relevancy and admissibility’ are used as synonyms but their legal implications are distinct and different for more often than not facts which are relevant are not admissible; so also, facts which are admissible may not be relevant, for example, questions permitted to be put in cross – examination to test the veracity or impeach the credit of witnesses, though not relevant are admissible. The probative value of the evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case.”

Some of the provisions of of the Bhartiya Sakshya Adhiniyam /the Evidence Act debar disclosure/reception of certain privileged communications. Therefore, some facts which are covered by Sections 4 to 50 may not be admissible in view of such specific prohibition. Hence in that context it is said that ‘all relevant facts are not admissible’. Now we will deal with some of the provisions of such inadmissibility, covered by the Evidence Act such as:

(a) Communication between husband and wife during marriage,

(b) privilege relating to professional communications between a lawyer and his client,

(c) Evidence as to Affairs of State,

(d) Immunity of Police Officers from Disclosing the Whereabouts of Information:

11. Communication during Marriage – Section 128

Communication between husband and wife are privileged and are strictly prohibited from disclosure. A spouse is not permitted to disclose any information given by the other spouse except when consented. But the rule is not without exception and is not applicable in suits between spouses or in criminal proceedings for crime committed by a spouse against the other. The law in this regard is contained in Section 128 of the Bhartiya Sakshya Adhiniyam (Corresponding to Section 122 of the Evidence Act), which reads as follows:

No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”

From the above provision it is discernable that:

  • The communication must have been made during the continuance of the marriage. Communications made before legal marriage or after the dissolution of the marriage are not protected but communications made during the marriage are privileged even after dissolution of the marriage.
  • Communications only are protected from disclosure but not the acts or conduct of spouses. For instance, when a husband commits murder in front of his wife, evidence of wife is admissible.
  • The privilege operates only against the husband or wife but not against third persons. For instance a third person who overheard communication between husband and wife can give evidence of what he heard. Likewise a letter written by the husband to her wife and seized by the investigating authority may be put in evidence. But the wife cannot be compelled or permitted to disclose the same in evidence.

In Rambarose v State of UP AIR 1954 SC 704, a 3 judges bench of the Supreme Court, excluded the communication part in the deposition of the wife. The court observed:

“She (wife) was examined on behalf of the prosecution as PW 2, as she deposed as follows. ” I awoke in the morning and saw that my husband was coming down the roof. Thereafter he went inside the Bhusa Kothri. He came out of the Bhusa Kothri and had a bath on the ‘nabdan’ after becoming necked. After this he wore on the same dhoti, which he was wearing before taking his bath. He sat at home after his bath and said to me that he would give me Chail Choori, Laccha Kara and Zangir………. I had asked him where he had gone at about ‘moonhandherey’, and he replied that he had gone to the middle house in order to get cheez.” The middle house referred to in this deposition is the house in which Manna was living. The argument of the appellant is that his statements to PW 2 that he would give her jewels, and that he had gone to the middle house to get them were inadmissible under S.122 of the Evidence Act, being communications made to his wife. This is plainly so, and the Courts below ought not to have taken this evidence into consideration”

In Choudhary S.J v State 1985 CriLJ 622, High court of Delhi admitted communications made after judgment of divorce as they are not privileged and rejected communications made during the subsistence of the marriage. The court observed:

“7.  The prohibition under S.122 of the Evidence Act is based on the ground that the admission of such testimony is likely to disturb the peace of the family and weaken the feeling of mutual confidence. It rests on no technicality that can be waived at will but is founded on a principle of high import which no court is entitled to relax. It is further not confined to cases where communication is of strictly confidential character. In fact, it extends to all communications of whatever nature, which pass between the husband and the wife unless the spouse making the communications consents to its disclosure. (See in this regard Nawab Howladar v. Emperor, 1914 (23) Ind Cas 511 : 15 CriLJ 303 (Cal), Ramchandra Shankarshet v. Emperor, AIR 1933 Bom 153 : 35 CriLJ 747, Bishen Das v. Emperor, 1913 (14) CriLJ 316 (Lah) and Appu v. State, 1971 CriLJ 615 (Mad).

  1. It is also now well settled that if the marriage was subsisting at the time when the communications were made, the bar prescribed by S.122 will operate even after the wife has obtained decree for nullity of her marriage. The bar to the admissibility in evidence of the communications made during marriage attaches at the time when the communication was made, and its admissibility will be adjudged in the light of the status at the date and not the status at the date when evidence is sought to be given in court. See in this regard the decision in M.C. Verghese v. T. J. Ponnan, AIR 1970 SC 1876: 1970 CriLJ 1651.”

In Lekshmana ips and another v CBI and Others ILR 2011 (2) Ker. 929: 2011 (3) KLT 75, High Court of Kerala observed as under:

“35. The immunity from disclosure, enshrined in S.122, applies to all communications, confidential or otherwise. That privilege is not to the witness, but to the spouse who made the communication and therefore, the witness cannot waive it at his or her will; nor can the Court permit disclosure even if he or she is willing to do. In terms of S.122, it is imperative that a witness shall not be permitted to disclose any communication covered by the privilege provided for by that provision, unless the person (spouse) who made that communication, or his or her representative in interest, consents to such disclosure. In the setting in which the concept of ‘consent’ is placed in S.122, such consent is not to be implied or drawn as an inference from the conduct of the spouse entitled to the privilege, not objecting to such disclosure.”

In State of kerala v Jayanandan 2017 CriLJ 2218, a division bench of the High Court of Kerala held:

“To attract S.122, the disclosure should be of a communication. Identification of the signature of the husband by his wife, in a document which is sought to be proved, does not amount to disclosure of a communication within the ambit of S.122 of the Evidence Act. Signature is not a communication.”

12. Evidence as to Affairs of State

Now we will see the privilege associated with the Evidence as to Affairs of State

This is a vexed topic for the Courts and the Supreme Court had been called up on a few times to decide on the legal intricacies regarding this issue.

As per Section 129 of the Bhartiya Sakshya Adhiniyam (Section 123 of the Evidence Act):

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.”

Section 130 (Section 124 of the Evidence Act) further states that:

“No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.”

The above privilege concerning the records relating to the affairs of State has been provided on the ground of public interest. The implicit principle in the provision is that private interest must yield to public interest. Privileged documents of which the disclosure is likely to impair the public interest are protected by the above provision. The expression ‘records relating to affairs of State’ has not been defined in the Act. The said expression generally includes all documents relating to public activity such as defence, foreign relations etc and not the ones relating to commercial activities of the state/government.

The Supreme Court in State of UP v. Raj Narain, reported in AIR 1975 SC p. 865, observed as under:

“The court will propriomotu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. To illustrate, the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security of the State and high level inter departmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the documents are to be withheld.”

13. The Court’s Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim – Section 162 – ‘S.P Gupta Proposition’

Now let us see the law relating to the Courts Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim

In the context of the power to inspect the document to decide the claim of privilege under Section 165 of the Bhartiya Sakshya Adhiniyam (Section 162 of the Evidence Act) is significant. The Section reads as under:

  1. (1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility: Provided that the validity of any such objection shall be decided on by the Court.

(2) The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

(3) If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 198 of the Bharatiya Nyaya Sanhita, 2023:

Provided that no Court shall require any communication between the Ministers and the President of India to be produced before it.

The proviso is a new addition in the Bhartiya Sakshya Adhiniyam, 2023. The proviso was not there in the Evidence Act 1872. In this era of demand for greater transparency and accountability in government functions this new provision appears to be regressive.

Now let us see the law relating to the Courts Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim – ‘S.P Gupta Proposition’.

State of Punjab v. Sodhi Sukhdev Singh  AIR 1961 SC 493, a  5 Judges Constitution Bench decision of the Supreme Court was the first important decision which dealt with the issue as to whether the Court is entitled to inspect the document of which privilege on the ground of it being ‘records relating to affairs of State’. On a combined interpretation of Sections 123 and 162 of the Evidence Act (Sections129 and 165 of the Bhartiya Sakshya Adhiniyam), the Supreme Court negative the contention that to determine the issue of privilege U/s 123 (Section 129 of the Bhartiya Sakshya Adhiniyam)the Court can inspect the document and observed as under:

“Thus our conclusion is that reading S.123 and 162 (Sections129 and  165 of the Bhartiya Sakshya Adhiniyam)together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under S.123 (Section 129 of the Bhartiya Sakshya Adhiniyam)or not.

 In this enquiry the Court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to the affairs of State it should leave it to the head of the department to decide whether he should permit its production or not.”

But later, a constitutional bench of 7 Judges  in S.P Gupta v. President of India AIR 1982 SC 149, took a different view, the Court held that the court is entitled to inspect the document to decide on its admissibility. The Court would allow the objection to disclosure if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document.

In this regard the Court observed as under:

“There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task which has to be performed by the Court in all cases.”

 “There can therefore, be no doubt that even where a claim for immunity against disclosure of a document is made under S.123 (Section 129 of the Bhartiya Sakshya Adhiniyam), the Court may in an appropriate case inspect the document in order to satisfy itself whether its disclosure would, in the particular case before it, be injurious to public interest and the claim for immunity must therefore be upheld. Of course this power of inspection is a power to be sparingly exercised, only if the Court is in doubt, after considering the affidavit, if any, filed by the minister or the secretary, the issues in the case and the relevance of the document whose disclosure is sought.”

In S p Gupta, the claim of privilege against disclosure of correspondence exchanged between the Chief Justice of the Delhi High Court, Chief Justice of India and the Law Minister of the Union concerning extension of term or appointment of Addl. Judges of the Delhi High Court was rejected and such communications were disclosed.

In R.K Jain v Union of India and Others, 1993 (4) SCC 119; AIR 1993 SC 1769, a 3 judges bench of the Supreme Court dealt with the public Interest Litigation raising challenge against the appointment of the President of the Customs, Excise and Gold Control Appellate Tribunal (CEGAT’). The allegation was that there was some adverse report against the incumbent and on that ground his appointment was challenged. The court observed:

“It is the duty of the Minister to file an affidavit stating the grounds or the reasons in support of the claim from public interest immunity. He takes grave risk on insistence of oath of secrecy to avoid filing an affidavit or production of State documents and the Court may be constrained to draw such inference as are available at law. Accordingly we hold that the oath of office of secrecy adumbrated in Art.75(4) and Schedule III of the Constitution does not absolve the Minister either to State the reasons in support of the public interest immunity to produce the state documents or as to how the matter was dealt with or for their production when discovery order nisi or rule nisi was issued. On the other hand it is his due discharge of the duty as a Minister to obey rule nisi or discovery order nisi and act in aid of the Court.”

Court also held:

“It has been averred that respondent No. 3 had been in the past proposed for appointment as a Judge of the Delhi High Court but his appointment did not materialise due to certain adverse reports. Assuming for the sake of argument that these allegations are factually accurate, this Court cannot sit in judgment over the choice of the person made by the Central Government for appointment as a President if the person chosen is qualified and eligible for appointment under the Rules.”

Upholding the claim of privilege under S.123 of the Evidence Act (Section 129 of the Bhartiya Sakshya Adhiniyam), the court further held that it is not necessary to disclose the contents of the records in the case to the petitioner or his counsel.

14. The Manner of Claiming Privilege

In S.P Gupta v. President of India. AIR 1982 SC 149, the Supreme reiterated the manner of claiming privilege U/s 123 (Section 129 of the Bhartiya Sakshya Adhiniyam)in the following words:

“…..a claim for immunity against disclosure should be made by the minister who is the political head of the department concerned or failing him, by the secretary of the department and the claim should always be made in the form of an affidavit. Where the affidavit is made by the secretary the Court may in an appropriate case require an affidavit of the minister concerned. The affidavit should show that the document in question has been carefully read and considered and the person making the affidavit has formed the view that the document should not be disclosed either because of its actual contents or because of the class of documents to which it belong.”

15. Greater Need of Transparency

In this Information Technology era there is more demand for transparency in the government/public affairs. The Right to Information Act was also enacted and brought into force in the year 2005.

In Chief Information Commissioner v. State of Manipur, 2011 (15) SCC 1 Supreme Court had occasion to observe the object and purpose behind the enactment of the Right to Information Act in the following terms:

“The preamble (of the Right to Information Act, 2005) would obviously show that the Act is based on the concept of an open society. As its preamble shows, the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic. It is clear that the Parliament enacted the said Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the Government and its instrumentalities accountable. The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal.”

In Yashvant Sinha and Others v Central Bureau of Investigation AIR 2019 SC 1802: 2019 (6) SCC 1,

“. S.162 (Section  165 of the Bhartiya Sakshya Adhiniyam)deals with the aspect of inspection of documents covered by privilege. In England, the law relating to privilege has been entirely court made. It cannot be in dispute that the claim for privilege under S.123 of the Indian Evidence Act (Section 129 of the Bhartiya Sakshya Adhiniyam)being based on public policy cannot be waived (see in this regard judgment of this Court in M/s. Doypack Systems Pvt. Ltd. v. Union of India and Others, 1988 (2) SCC 299 at page 327). The basis for the claim of privilege is and can only be public interest.”

16. Sealed Cover Jurisprudence – Deprecated

In a few cases the Supreme Court has deprecated what is called the Sealed cover Procedure/Jurisprudence.

In Nisha Priya Bhatia v Ajit Seth and Others AIR 2016 SC 2319: 2016 (12) SCC 451, The appellant had complained of sexual harassment by her senior a Joint Secretary in the department. There was departmental enquiry. The government refused to furnish the copy of the enquiry report and filed the same in a sealed cover before the Supreme Court, claiming privilege under S. 123 of the Evidence act (Section 129 of the Bhartiya Sakshya Adhiniyam). The Supreme Court directed to furnish copy to the Appellant and observed as under:

“ With respect to furnishing the Report dated 23rd January, 2009 an affidavit has been filed on behalf of the Union of India claiming privilege under S.123 and S.124 of the Evidence Act (Sections 129 and  130 of the Bhartiya Sakshya Adhiniyam). We have been taken through the affidavit dated 22nd July, 2010 and all that the affidavit says is that disclosure of the contents of the Report would be against national interest and would compromise national security. Apparently, this is only because the appellant happens to belong to the highly sensitive organization which is entrusted with the delicate job of collecting and analyzing intelligence inputs necessary to maintain the unity, integrity and sovereignty of the country.

 Both the Reports and the accompanying documents have been filed by the Union of India in a sealed cover in this Court.

 We have gone through both the Reports and the accompanying documents and find absolutely nothing therein which could suggest that there is any threat to the integrity of the country or anything contained therein would be detrimental to the interests of the country. We had also specifically asked the learned Additional Solicitor General to tell us exactly what portion of the Reports and the documents would be detrimental to the interests of the country but nothing could be pointed out during the hearing.”

 We find it very odd that in a matter of an enquiry in respect of an allegation of sexual harassment, the Union of India should claim privilege under S.123 and S.124 of the Evidence Act (Sections 129 and  130 of the Bhartiya Sakshya Adhiniyam). The contents of Reports alleging sexual harassment can hardly relate to affairs of State or anything concerning national security. In any event, absolutely nothing has been shown to us to warrant withholding the Reports and the documents from the appellant in relation to the enquiry of allegations of sexual harassment made by the appellant.”

Recently, in Cdr Amit Kumar Sharma etc V. Union of India & Ors etc, the Supreme Court again deprecated the indiscriminate practice of the Executive of submission of facts in Sealed Covers. The Court observed:

“The elementary principle of law is that all material which is relied upon by either party in the course of a judicial proceeding must be disclosed. Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute, which would with ‘reasonable probability’ influence the decision of the authority must be disclosed. A one-sided submission of material which forms the subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice. In the present case, this has resulted in grave prejudice to officers whose careers are directly affected as a consequence.

  1. The non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque. The disclosure in a sealed cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover. The adjudicating authority while relying on material furnished in the sealed cover arrives at a finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the state. A judicial order accompanied by reasons is the hallmark of the justice system. It espouses the rule of law. However, the sealed cover practice places the process by which the decision is arrived beyond scrutiny. The sealed cover procedure affects the functioning of the justice delivery system both at an individual case- to case level and at an institutional level. However, this is not to say that all information must be disclosed in the public. Illustratively, sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim cannot be disclosed. The measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve. The exceptions should not, however, become the norm.

17. Immunity of Police Officers from Disclosing the Whereabouts of Information – Section 131

Now we will go through the provision relating to the Immunity of Police Officers from Disclosing the Whereabouts of Information

Section 131 of the Bhartiya Sakshya Adhiniyam (Section 125 of the Evidence Act) specifically states that “No Magistrate or police-officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

Explanation. -“Revenue-officer” in this section means any officer employed in or about the business of any branch of the public revenue.”

The provision is very clear and it is obvious that while under examination before a court a police officer cannot be asked to disclose his source of information relating to the offence.

18. Privilege with Respect to Professional Communications between Lawyer and Client Sections 132 to 134 of the Bhartiya Sakshya Adhiniyam

Now we will move on to the Privilege with Respect to Professional Communications between Lawyer and Client.

Sections 132 to 134 of the Bhartiya Sakshya Adhiniyam (Sections 126 to 129 of the Evidence Act) deal with the privilege relating to professional communications between a lawyer and his client. Under Sections 132 (Ss.126 and 127 of the Evidence Act) no advocate shall be permitted to disclose any communication made to him in the course of and for the purpose of his duties as an advocate, unless his client expressly consents so to do. Nor can an advocate be compelled to state the contents of any document which he became acquainted with in the course of his professional employment.

In other words, when an advocate is professionally engaged by a client, all communications which pass between them in the course of and for the purpose of the service are privileged and the advocate cannot be permitted to disclose them. Such a statement, even if volunteered by the counsel, is inadmissible in evidence.

For the legal assistance of a professional lawyer to be effective there must be free and frank disclosure of every critical information from the side of the client. Section 132 (Section 126 of the Evidence Act) lends assurance to the client that such communications would be privileged and cannot be disclosed.

It has to be noted that this protection will not extend to communications made in furtherance of any illegal purpose and to facts observed by lawyer during his employment evidencing the commission of any crime or fraud.

Provisos and illustrations (b) and (c) deal with these aspects.

Section 132 reads as under:

  1. (1) No advocate, shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his service as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional service, or to disclose any advice given by him to his client in the course and for the purpose of such service:

Provided that nothing in this section shall protect from disclosure of—

(a) any such communication made in furtherance of any illegal purpose;

(b) any fact observed by any advocate, in the course of his service as such, showing that any crime or fraud has been committed since the commencement of his service.

(2) It is immaterial whether the attention of such advocate referred to in the proviso to sub-section (1), was or was not directed to such fact by or on behalf of his client.

Explanation. —The obligation stated in this section continues after the profession By virtue of Section 129, the privilege, extents to communications with professional legal advisers also.

al service has ceased.

Illustrations.

(a) A, a client, says to B, an advocate—”I have committed forgery, and I wish you to defend me”. As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.

(b) A, a client, says to B, an advocate—”I wish to obtain possession of property by the use of a forged deed on which I request you to sue”. This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.

(c) A, being charged with embezzlement, retains B, an advocate, to defend him. In the course of the proceedings, B observes that an entry has been made in A’s account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his professional service. This being a fact observed by B in the course of his service, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

(3) The provisions of this section shall apply to interpreters, and the clerks or employees of advocates.

In Section 132 of the Bhartiya Sakshya Adhiniyam 2 Sections of the Indian Evidence Act Sections 126 and 127 are integrated into one Section. Above Subclause (3) corresponds to S. 127 of the Evidence Act.

In the Bhartiya Sakshya Adhiniyam, the words ‘barrister, attorney, pleader or vakil’ are replaced by the single word ‘Advocate’.

The word ‘employment’ is replaced by ‘Service’.

Section 133 (Section 128 of Evidence Act), provides that:

“If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 132; and, if any party to a suit or proceeding calls any such advocate, as a witness, he shall be deemed to have consented to such disclosure only if he questions such advocate, on matters which, but for such question, he would not be at liberty to disclose.”

By virtue of Section 134 (Section 129 of the Evidence Act), the privilege, extents to communications with professional legal advisers also.

Section 134 reads as:

No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.

19. When can the Lawyer of the Opposite Side be Summoned as Witness

There is no direct statutory bar or legal disability in summoning the counsel of the opposite party as a witness. But such practice is generally discouraged by the courts unless the evidence sought to be elicited from the counsel is very material for the case. When a lawyer is so summoned, he has to relinquish his vakalath.

In this regard, in Yovas v. Immanueal AIR 1996 Ker 1, a division bench of the High Court of Kerala speaking through (Justice) K. T. Thomas.J, observed as follows:

“There are some inhibitions to be observed when a counsel of one of the parties is to become a witness in a case. One such inhibition is that the counsel cannot be permitted to divulge anything which he gathered from his client in view of the interdict contained in S.126 of the Evidence Act (Section 132 of the Bhartiya Sakshya Adhiniyam). He is debarred from stating the contents of any document with which he has become acquainted in the course of his professional employment. Nor could he disclose any advice which he gave to his client outside the parameters of such inhibitions what is the use of his testimony? There is a practical consequence when the counsel is made a witness. Then he would normally be obliged to relinquish his engagement in the case. This was earlier a norm of professional ethics and now this has been transformed into a rule ofconduct under R.13 of Chapter II of Part VI of the Bar Council of India Rules. It reads thus:

“An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact he should not continue to appear as an advocate if he can retire without jeopardising his client’s interest”.

Here, of course, the test is whether the advocate concerned would be “a witness on a material question of fact”….

…..If the court or the authority concerned, after enquiry finds that an examination of the advocate as a witness is indispensable and hence the disengagement of the advocate from the case would not jeopardise the interest of the party for which he appears, then the court or the authority concerned can ask the advocate to relinquish the vakalath.”

20. There is No Immunity For The Press/Media From Disclosing The Whereabouts Of Information

There is no specific provision in the Evidence Act dealing with the privilege or immunity of the Press from disclosure of its source of information. In Javed Akther v. Lana Publishing Company Private Limited and Others, AIR 1987 Bom. 339, Bombay High Court through Justice Sujata Manohar, J. surveyed through various precedents in UK and USA and laid down the law on the point. The Court observed as under:

“It is undoubtedly true that a disclosure of a newspaper source of information should not be ordered if such disclosure would be injurious to public interest. Freedom of the media to investigate and report on matters which are of public interest is essential to a free society. As a result, information which would otherwise not be available is made available to the public. If the name of a person who gives confidential information to a newspaper is required to be disclosed by the newspaper, it is possible that a newspaper’s sources of information may dry up and the public would not have the benefit of disclosure of matters which are of public importance. But this protection can be extended only when the information or material published is of public importance, as for example, if the information relates to malpractices in a governmental organisation. Even information relating to the private life of a public figure may be of public importance if such information has a bearing on the manner in which the public figure discharges his duties or if such information reflects on the suitability of such a public figure to hold the office that he occupies. But, unless it can be shown that the information is such as needs disclosure and publicity in public interest, there is no reason for extending any special protection, to the source of everything which may be published in a newspaper, periodical, journal or any other publication.”

About the case in hand the court permitted disclosure of alleged informants upon interrogatory and held:

“ In the present case the article does not disclose any information which can be said to be of public importance or public interest. The article merely comments on the private life of a film script writer and his actress wife. It has no bearing on any matter of public importance. The disclosure of names asked for is directly material to the plaintiffs case. It is not a case where any special protection needs to be given to the third defendant. There is no investigative journalism involved here, which may be of value to an open and free society. It is merely muckraking.”

21. Production of Title-Deeds of Witness not a Party – Cannot Be Compelled

Section 135 (Section 130 of the Evidence Act) reads as under:

No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.

This section upholds the general norm/principle that everyone has a right to keep his properties exclusively to himself and to maintain secrecy of his title deeds and refuse disclosure except when required by any authority in accordance with law.

22. Production of documents or electronic records which another person having possession, could refuse to produce

Section 136 (Section 131 of the Evidence Act) reads as under:

No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production.

By virtue of this section the privilege provided / Principle enunciated in (S 130 of the Evidence Act) is extended to documents or electronic record which are in possession of a third person.

23. Witness not excused from answering on ground that answer will criminate

Section 137 (Section 132 of the Evidence Act) reads as under:

A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:

Proviso

Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution forgiving false evidence by such answer.

This provision does not excuse a person from answering incriminating questions which are relevant in the matter in issue, but the proviso protects the person from arrest or prosecution based on such incriminating answers.

In Laxmipat Choraria v State of Maharashtra, AIR 1968 SC 938 1968 CriLJ 1124 (M. Hidayatullah; C. A. Vaidialingam, JJ), the accused were tried for offences S.120B of the Indian Penal Code (Section 62 of the Bharatiya Nyaya Sanhita, 2023) and S.167 (81) of the Sea Customs Act. The court considered in the context of S.132 (Section 137 of the Bhartiya Sakshya Adhiniyam), the evidence of a witness who confessed about her involvement in the said offence, the Supreme Court observed:

Under S.118 of the Indian Evidence Act (Section 124 of the Bhartiya Sakshya Adhiniyam) all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them for reasons indicated in that section. Under S.132 (Section 137 of the Bhartiya Sakshya Adhiniyam) a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. The safeguard to this compulsion that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can it be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. In other words, if the customs authorities treated Ethyl Wong as a witness and produced her in court. Ethyl Wong was bound to answer all questions and could not be prosecuted for her answers. Mr. Jethmalani’s argument that the Magistrate should have promptly put her in the dock because of her incriminating answers overlooks S.132 (Proviso) (Section 137 of the Bhartiya Sakshya Adhiniyam). In India the privilege of refusing to answer has been removed so that temptation to tell a lie may be avoided but it was necessary to give this protection The section is further fortified by Art.20 (3) which says that no person accused of any offence shall be compelled to be a witness against himself. This article protects a person who is accused of an offence and not those questioned as witnesses. A person who voluntarily answers questions from the witness box waives the privilege which is against being compelled to be a witness against himself because he is then not a witness against himself but against others. S.132 of the Indian Evidence Act (Section 137 of the Bhartiya Sakshya Adhiniyam) sufficiently protects him since his testimony does not go against himself. In this respect the witness is in no worse position than the accused who volunteers to give evidence on his own behalf or on behalf of a coaccused. There too the accused waives the privilege conferred on him by the article since he is subjected to cross examination and may be asked questions incriminating him. The evidence of Ethyl Wong cannot, therefore, be ruled out as that of an incompetent witness. Since Ethyl Wong was a self confessed criminal, in conspiracy with others who were being tried, her evidence was accomplice evidence. The word accomplice is ordinarily used in connection with the law of evidence and rarely under the substantive law of crimes. Accomplice evidence denotes evidence of a participant in crime with others. S.133 of the Evidence Act (Section 138 of the Bhartiya Sakshya Adhiniyam) makes the accomplice a competent witness against an accused person. Therefore, Ethyl Wong’s testimony was again that of a competent witness. It has been subjected to scrutiny and the usual checks for corroboration and was, therefore, received with due caution.

Interpreting Section 5 of the Oaths Act, it was also held that such witnesses could be administered oath also.

24. Accomplice’s Evidence Under Section 138 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act)

Now we will move on to the law relating to Accomplice’s Evidence under Section 24 of the Bharatiya Sakshya Adhiniyam.

An accomplice is a guilty associate or partner in the commission of crime. He is a “Participiscriminis”

Section 138 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act) provides that “An accomplice shall be a competent witness against an accused person”.

Sections 343 and 344 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Sections 306 and 307 of the Criminal Procedure Code) provides for tendering pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence. As per S.306 CrPC Pardon may be granted with respect to (a) any offence triable exclusively by the Court of Session and (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

Pardon is granted with a view to obtaining the evidence of such accomplice against his associates in crime. When pardon is accepted by the accomplice, he becomes an approver.

The law relating to the credibility of the evidence of the Accomplice/Approver is dealt with in Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam (Sections 133 and 114 illustration (b) of the Evidence Act).

Section 138 of the Bharatiya Sakshya Adhiniyam (S.133 of the Evidence Act) in positive terms declares that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Whereas illustration (b) to Section 119 of the Bharatiya Sakshya Adhiniyam (S.114 of the Evidence Act), marks a caution on the credibility of the evidence of the accomplice. Relevant portion of Section 119 reads as follows:

The Court may presume–

(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;

Apparently the above two provisions lay down somewhat contradictory assertions. Section 138 makes it clear that the evidence of an accomplice is substantive evidence and conviction solely on its basis is not illegal. S.119(b) is an illustration of an optional presumption of fact which authorizes the Court to draw a presumption as above. It is rather a rule of prudence. Regarding the interplay between S.133 and S.114(b) of the Evidence Act (Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam) and the requirement and nature of corroboration the Privy Council in Bhubon Sahu v. The King (AIR 1949 PC 257) observed as under:

“..the rule requiring corroboration for acting upon the evidence of an accomplice is a rule of prudence. But the rule of prudence assumes great significance when its reliability on the touchstone of credibility is examined. If it is found credible and cogent, the Court can record a conviction even on the uncorroborated testimony of an accomplice. On the subject of the credibility of the testimony of an accomplice, the proposition that an accomplice must be corroborated does not mean that there must be cumulative or independent testimony to the same facts to which he has testified. At the same time, the presumption available under S.114 of the Evidence Act (Sections 119 (b) of the Bharatiya Sakshya Adhiniyam) is of significance. It says that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in “material particulars”.”

In Sarwan Singh v. State of Punjab, AIR 1957 SC 637, a 3 judges bench of the Supreme Court laid down the theory of “double test” in the scrutiny of the evidence of an approver, in this regard the Supreme Court held:

“There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars………. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver’s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.”

In Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420, the Supreme Court observed:

“…if we read S.133 of the Evidence Act with illustration (b) of S.114 of the Evidence Act (Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam) it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in S.133 illustration (b) to S.114 of the Evidence Act lays down “that an accomplice is unworthy of credit, unless he is corroborated in material particulars”. A combined reading of the two provisions that is S.133 and illustration (b) of S.114 of Evidence Act (Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam) go to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to S.133 (Sections 138 of the Bharatiya Sakshya Adhiniyam) a conviction is “not illegal or in other words not unlawful ” merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But at the same time the Legislature intended to invite attention to the illustration (b) of S.114 of the Evidence Act (119 (b) of the Bharatiya Sakshya Adhiniyam) with a view to emphasise that the rule contained therein as well as in S.133 (Sections 138 of the Bharatiya Sakshya Adhiniyam) are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature.”

The law on the above lines has been reiterated in many subsequent decisions including, Francis Stanly v. Intelligence Officer N.C.B, AIR 2007 SC 794 and Sitaram v. State of Jharkand AIR 2008 SC 391 where in the Court held as follows:

“The Statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) to S.114 of the Evidence Act ( Section 119 of the Bharatiya Sakshya Adhiniyam) strikes a note of warning cautioning the Court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration must be clearly present in the mind of the Judge.”

The Court further held that

“Although S.114 illustration (b) (Section 119 (b)of the Bharatiya Sakshya Adhiniyam provides that the Court may presume that the evidence of an accomplice is unworthy of credit unless corroborated, “May” is not must and no decision of Court can make it must. The Court is not obliged to hold that he is unworthy of credit. It ultimately depends upon the Court’s view as to the credibility of evidence tendered by an accomplice.”

Hidayatulla, J. sounded the note of caution in Haroom Haji v. State of Maharashtra (AIR 1968 SC 832) thus:

“This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to almost the” standing of a rule of law”. A Constitution Bench of the Supreme Court has laid down in State v. Basawan Singh (AIR 1958 SC 500) that even in respect of an accomplice all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. “Corroboration need not be by direct evidence that the accused committed the crime, it is sufficient even though it is merely circumstantial evidence…….”.

The same principle has been reiterated by the Supreme Court in Jadav v. State (AIR 1966 SC 821) and many other subsequent decisions.

In Somasundaram @ Somu v. State rep. by the Deputy Commissioner of Police AIR 2020 SC 3327: 2020 (7) SCC 722, a three judges bench of the Supreme Court comprising, Rohinton F. Nariman; K. M. Joseph; V. Ramasubramanian, JJ, surveying through the precedents laid down as under:

To summarize, by way of culling out the principles which emerge on a conspectus of the aforesaid decisions, we would hold as follows:

The combined result of S.133 read with illustration (b) to S.114 of Evidence Act (Sections 138 read with 119 (b) of the Bharatiya Sakshya Adhiniyam) is that the Courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an accused

25. No Number of witnesses is Mandated For Proving A Fact

Section 139 (Section 134 of the Evidence Act) reads as under:

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

It is often reiterated that in the matter of appreciation of evidence it is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted.

It is not the number of witnesses examined nor the quantity of evidence adduced by the prosecution that counts. It is the quality that counts. (Maqsoodan and others  v State of U. P AIR 1983 SC 126 : 1983 CriLJ 218)

26. Sole Witness – Evaluation of Evidence

In Ramji Surjaya v State of Maharashtra AIR 1983 SC 810: 1983 CriLJ 1105

The Supreme Court observed:

There is no doubt that even where there is only a sole eyewitness of a crime, a conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill will is suggested.

In Masalti v. State of U. P., AIR 1965 SC 202 : 1965 (1) CriLJ 226,( P. B. Gajendragadkar, C. J. I. ; K. N. Wanchoo; K. C. Das Gupta; Raghubar Dayal, JJ), the Supreme Court  observed as follows :

Mr. Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case.

Malkiat Singh and others v State of Punjab, 1991 (4) SCC 341: 1991 SCC (Cri) 976 (A. M. Ahmadi; V. Ramaswami; K. Ramaswamy, JJ)

It is settled law that corroboration is not a rule of law, but one of caution as an assurance. The conviction could be made on the basis of the testimony of a solitary witness. The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness after the incident, the nearness of the witness to the victim, his predisposition towards the accused, are some of the circumstances to be kept in view to weigh and accept the ocular evidence of a witness. It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the court for acceptance.

In State of M . P v Laakhan alias Lakhan 2009 (14) SCC 433 (Dr. Arijit Pasayat; A. K. Ganguly, JJ), the Supreme Court observed:

Even the evidence of a solitary witness can be sufficient to record conviction if the same is wholly reliable. No particular number of witnesses is necessary to prove any fact, as statutorily provided in S.134 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’) (Section 139 of the Bharatiya Sakshya Adhiniyam). It is the quality and not the quantity of the evidence that matters. The court cannot take a closed view in such matters. It is to be noted that PW 11was a rustic illiterate lady before whose eyes her only child was killed. There is no particular reason as to why she would falsely implicate the accused.

27. Classification of Witness as (1) Wholly Reliable. (2) Wholly Unreliable and (3) Neither Wholly Reliable Nor Wholly Unreliable

In Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 the Supreme Court divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. In the case of the first two categories the Court said that they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. The relevant portion is quoted as under:

‘. … Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should have no difficulty in coming to its conclusion either way – it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.’

Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P (AIR 1994 SC 1251). The Supreme Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of S.134 of the Indian Evidence Act, 1872 (in short ‘the Evidence Act’) (Section 139 of the Bharatiya Sakshya Adhiniyam). But if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of S.134 of the Evidence Act (Section 139 of the Bharatiya Sakshya Adhiniyam). The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.”

The position has been reiterated in large number of cases. Reference may be made to Joseph v. State of Kerala, 2003 (1) SCC 465, Yakub Ismailbhai Patel v. State of Gujarat, 2004 (12) SCC 229, Bhimapa Chandappa Hosamani and Others v. State of Karnataka, 2006 (11) SCC 323 and Kunju @ Balachandran v. State of Tamil Nadu, 2008 (2) SCC 151.( See Vithal Pundalik Zendge v. State of Maharashtra, AIR 2009 SC 1110 : 2008 (17) SCC 239)

28. The Criteria for Evaluation of the Evidence of Sole Witness – Summarised

In Vithal Pundalik Zendge v. State of Maharashtra, AIR 2009 SC 1110 : 2008 (17) SCC 239 (Dr. Arijit Pasayat; Dr. Mukundakam Sharma, JJ), the Supreme Court laid down the criteria for evaluation of the evidence of sole witness as under:

On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’) the following propositions may be safely stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

Therefore, there is no hesitation in holding that the contention that in a murder case the court should insist upon plurality of witnesses, is much too broadly stated.

(For commentary on the well settled principles in the appreciation of Evidence of ‘Interested Witness’, ‘Hostile Witness’, ‘Chance Witness’, ‘Rustic witness’, ‘Injured Witness’, ‘Sterling Witness’, ‘Official Witness’, etc See Module 28)

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’.

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Exercise Questions

  1. Who can testify before a Court? Explain referring relevant provisions in the Evidence Act
  2. Can a dump witness give evidence before court?
  3. Whether failure to administer oath to the witness or defect in oath affect the evidence?
  4. Communication between husband and wife are privileged. Explain the scope of prohibition from disclosure of such communication.
  5. Explain the scope of Privilege associated with the Evidence as to Affairs of State. Elucidate the powers of the court to inspect the document of which privilege is claimed?
  6. Explain the scope of Privilege with Respect to Professional Communications between a Lawyer and Client.
  7. Is there any Immunity for the Press/Media from disclosing the whereabouts of information?
  8. Evidence must be weighed and not counted. Explain. Discuss the criteria for the evaluation of the evidence of a sole witness.
  9. Is there any inconsistency between Section 138 and illustration (b) of 119 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act and illustration (b) of S.114 of the Evidence Act)? How these provisions can be reconciled? Discuss in the light of decided cases.