Law of Evidence

By Nizam Azeez Sait,

MODULE No. 28

APPRECIATION OF EVIDENCE

This is the 28th and the last Module of the subject ‘Law of Evidence’. This module is titled as ‘Appreciation of evidence’.  In this module we will deal with ‘Appreciation of Evidence’ and some of the important and residuary aspects not covered in other modules including:

  1. The distinction between relevancy/admissibility and probative value,
  2. Well settled principles in the appreciation of Evidence of Interested Witness, ‘Hostile Witness’, Chance Witness, Rustic witness, Injured Witness, Sterling Witness, Official Witness, Sole witness etc
  3. Direct Evidence and Circumstantial Evidence,
  4. The principle that all discrepancies in evidence are not material – Application or Non-Application of the maxim Falsus in Uno, Falsus in Omnibus”,
  5. Consequence of non-raising of objection on mode of proof,
  6. Admissibility of Evidence Procured by Improper or Illegal Means,
  7. Provisions Embodying the Principles of Best Evidence Rule, and
  8. The last Section in the Evidence Act Section 167 which lays down the rule that the superior Court will not order new trial perse for improper admission or rejection of evidence, unless it ought to have varied the decision.

MODULE INDEX

  1. Appreciation of Evidence – Meaning
  2. Legal Relevancy, Admissibility and Probative Value
  3. Substantive Evidence, Substantial Evidence and Corroborative Evidence
  4. Witnesses Testimony
  5. Interested Witness
    1. Mere Relationship with the Victim is not a Reason to Brand a Witness as Interested
    2. Related witness and interested witness
    3. Categorisation of Witness in “Raju v State of Tamil Nadu”
    4. Appreciation of the Evidence of an Interested Witness; Requirement of Caution
  6. ‘Hostile Witness’ and Law as to the Appreciation of the Evidence of a ‘Hostile Witness’.
  7. Sterling Witness
  8. Chance Witness
  9. Injured Witness
  10. Rustic Witness
  11. Official Witness
  12. “Falsus in Uno, Falsus in Omnibus – Not A Mandatory Rule – The General Rule is That the Grain Should Be Separated from Chaff”
  13. No Number of witnesses is Mandated for Proving a Fact
  14. Sole Witness
  15. Classification of Witness as (1) Wholly Reliable. (2) Wholly Unreliable and (3) Neither Wholly Reliable nor Wholly Unreliable
  16. Summarising the Criteria for Evaluation of the Evidence of Sole Witness
  17. Circumstantial Evidential
    1. Failure To Explain Incrimination Circumstance Can Be Taken as A Link in The Chain of Circumstances
    2. Motive As Additional Link in The Chain of Circumstance
    3. Panchsheel Principles of Circumstantial Evidence
    4. Summary of Law of Circumstantial Evidence
  18. Appreciation of Evidence of Rape Victim – Case Law
  19. Admissibility of Evidence Procured by Improper or Illegal Means
  20. Consequence Of Non-Raising of Objection on Mode of Proof
  21. Provisions Embodying the Principles of Best Evidence Rule
  22. Improper Admission and Rejection of Evidence – Section 169

1. Appreciation of Evidence – Meaning

In trials of civil and criminal cases the main task of the court is ‘Appreciation of Evidence’ presented before it to come to just conclusions. Appreciation of evidence involves the weighing and evaluation of the credibility of relevant and admissible evidence.

(Refer Module 2 for commentaries on Proved, disproved and not proved, proof beyond reasonable doubt and difference in standards of proof in civil and criminal cases)

2. Legal Relevancy, Admissibility And Probative Value

We have seen that, the Bharatiya Sakshya Adhiniyam specifically provides in Sections 4 to 50 (sections 6 to 55 the Evidence Act) as to what facts are made or declared to be relevant and Section 3 of the Bharatiya Sakshya Adhiniyam (Section 5 of the Evidence Act) specifically states that evidence may be given only of facts in issue and facts so declared as relevant. (For more on relevancy See Module 3)

But some of the subsequent provisions of 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’.

Relevancy and Admissibility, doesn’t mean that the Court would accept all relevant and admissible piece of Evidence as credible/reliable.  Genuineness, veracity or reliability or value of the evidence is seen by the Court only after it passes the test of relevancy and admissibility, this is the realm of Appreciation of Evidence. The Court would decide how much weight is to be attributed to such relevant evidence by the process of appreciation of evidence.

For instance, a given document may be admissible under Section 29 of the Bharatiya Sakshya Adhiniyam (S.35 of the Evidence Act) as entry in public record made in performance of official duty but the Court is still not barred from verifying the authenticity of the entries made therein.

Section 29 deals with relevancy and not probative value. Probative value depends on the facts and circumstances of each case. Generally, it must be taken along with other evidence. The Court generally presumes that the public officer did his duty duly and based the entries on materials the accuracy of which he was satisfied. Basis on which entry was made would be relevant in considering its probative value. (See Shyam Prathap Singh v Collector of Etawah, AIR 1946 PC 103)

The reason why entry made by a public servant in a public or other official book, register or record stating a fact in issue or a relevant fact has been made relevant, is that, when a public servant makes it himself, in the discharge of his official duty, the probability of its being truly and correctly recorded is high. It is the public duty of a person who keeps the register to make such entries after satisfying himself of the truth and that entries in register of birth, death or marriage are at least prima facie, though they may not always be conclusive evidence. It is not always necessary to prove who made the entries and what was the source of his information. [see Chellammal v. Angamuthu and others, 1978 CriLJ 752 (Mad)]

In Madan Mohan Singh and others v. Rajni Kant and another, AIR 2010 SC 2933 : 2010 AIR SCW 4932, it has been held as under;

…..a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma v. State of Bihar, AIR 1970 SC 326; Ram Murti v. State of Haryana, AIR 1970 SC 1029; Dayaram and Ors. v. Dawalatshah and Anr., AIR 1971 SC 681; Harpal Singh and Anr. v. State of Himachal Pradesh, AIR 1981 SC 361; Ravinder Singh Gorkhi v. State of U.P. 2006 (5) SCC 584 : AIR 2006 SC 2157 : 2006 AIR SCW 2648; Babloo Pasi v. State of Jharkhand and Anr., 2008 (13) SCC 133 : AIR 2009 SC 314 : 2008 AIR SCW 7332; Desh Raj v. Bodh Raj, AIR 2008 SC 632 and Ram Suresh Singh v. Prabhat Singh alias Chhotu Singh and Anr., 2009 (6) SCC 681 : AIR 2009 SC 2805 : 2009 AIR SCW 4261. In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. “

In Radha Krishna Singh v State of Bihar, AIR 1983 SC 684, while dealing with an old revenue document which was held admissible under Section 35 of the Evidence Act (Section 29 of the Bharatiya Sakshya Adhiniyam), Justice S. Murtaza Fazal Ali, observed:

We may not be understood, while holding that Ex. J. is admissible, to mean that all its recitals are correct or that it has very great probative value merely because it happens to be an ancient document. Admissibility of a document is one thing and its probative value quite another these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and the weight of its probative value may be nil.

In Saifudeen v. State, 2012 KHC 39, High Court of Kerala speaking through Basant J, noted a mark of caution in the context of evaluation of credibility of discovery evidence under the proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act) and observed:

“Law does not approve admission of confessions made before police officers by persons in custody. Law’s attitude on this aspect is evident from S.24 to 26 of the Evidence Act (Sections 22 and 23 of the Bharatiya Sakshya Adhiniyam). S.27 of the Evidence Act(Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam), which starts with the words ‘Provided that’ is an exception to S.24 to 26 of the Evidence Act. It accepts the principle of ‘confirmation by subsequent event’ and makes such information given by a person accused of an offence in the custody of the police officer admissible if a fact is discovered in consequence of the information,”

“The evidence of such information and discovery in consequence of the information will certainly have to be approached with great care and caution. Such is the gross misuse of this safety valve provision under the Indian Evidence Act by the police that a trained and experienced adjudicator is always very cautious and careful before such information admitted in evidence is accepted. There is a long distance between admissibility and acceptability and that entire distance will have to be traversed by an adjudicator armed with the wealth of his prudence, knowledge, experience and sagacity. If evidence of recovery under S.27 (Proviso to Section 23of the Bharatiya Sakshya Adhiniyam) is inspiring, that can certainly go a long way to help the Court in the adjudication of guilt. The question is whether such discovery inspires confidence; to decide which, a Court will have to take note of all the attendant circumstances.”

3. Substantive Evidence, Substantial Evidence and Corroborative Evidence

Sections 4 to 50 of the Bharatiya Sakshya Adhiniyam (Sections 6 to 55 of the Evidence Act) lays down different instances of relevant evidence. Such evidence specified in section 4 to 50 which could be admitted and acted upon by the Court are Substantive evidence. In other words, Substantive Evidence is that evidence which could stand on its own legs.

In the scheme of the Evidence Act certain evidence could be used only to Corroborate/support/strengthen some other available evidence, for instance previous statements covered under section 160 of the Bharatiya Sakshya Adhiniyam (Section 157 of the Evidence Act) could be used only to corroborate the evidence given by the witness in court. Such evidences have no independent existence. In other words, such evidence cannot stand on its own legs.

Substantive evidence of a witness may also serve as corroborative evidence by supporting or corroborating the evidence of the main witness. Expert’s evidence can corroborate the evidence of ocular witness.

Substantial Evidence is a piece of evidence which by itself could bring home the proof of a fact in issue. It is such relevant evidence as the court would accept as adequate to reach a conclusion. For instance, a credible dying declaration may be substantial enough and acceptable to fix the guilt of the accused. In some cases, the court may accept the evidence the evidence of a sole eye witness to safely come to a conclusion of the guilt of the accused.

4. Witnesses Testimony

It is often said that witnesses are the eyes and ears of the court. Witnesses, aid the court in arriving at correct adjudication. Generally, the court in a way perceives the alleged incident through the eyewitness account. The Court evaluates the credibility of the witness testimony from the touchstone of a prudent man. The acceptability of the witness may depend on accuracy and reasonability of the witness account and his veracity which are tested by cross examination. Generally minor and inconsequential discrepancies are natural in a witness testimony and are not viewed negatively by the Court. But material discrepancies and contradictions would strike at the root of the witness’s credibility and reliability of his evidence.

In Malkiat Singh and others v State of Punjab, 1991 (4) SCC 341, the Supreme Court observed:

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.

One of the main principles of appreciation of evidence in a criminal trial is that the evidence of a witness who is not shown to be ‘interested’ should be scrutinised carefully and if it is found that it is not artificial, not unnatural, not improbable and does not suffer from intrinsic infirmities, then it can be relied upon. If it suffers from any of these undesirable factors, the evidence, though given by an independent and disinterested witness ought not to be relied upon.

(For commentary on evaluation of the evidence of child witness see Module 26)

5. Interested Witness

“The term “interested” postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason.” (Dalbir Kaur v. State of Punjab AIR 1977 SC 472 Justices AC Gupta and Murtaza Fazal Ali)

a. Mere Relationship with the Victim is not a Reason to Brand a Witness as Interested

Mere relationship with the victim is not a ground to consider a witness as interested. In this regard in Dalip Singh v. State of Punjab AIR 1953 SC 364 (M C Mahajan, Vivian Bose and B Jagannadha Das), the Supreme Court speaking through Justice Vivian Bose laid down as under:

 “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.”

It needs no reiteration that mere relationship with the victim does not discredit the evidence of an eyewitness if it is otherwise found to be truthful.

In Darya Singh Vs. State of Punjab, AIR 1965 SC 328: 1964 (7) SCR 397, (P. B. Gajendragadkar; K. N. Wanchoo; K. C. Das Gupta, JJ) the Supreme Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. The Court observed:

“There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully……..But where the witness is a close relation of the victim and is shown to share the victim’s hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. ….. If the criminal Court is satisfied that the witness who is related to the victim was not a chance – witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised.”

“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”

b. Related witness and interested witness

In Waman v. State of Maharashtra, 2011 (7) SCC 295 the Supreme Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, 1976 (4) SCC 369, Balraje v. State of Maharashtra, 2010 (6) SCC 673, Prahlad Patel v. State of Madhya Pradesh, 2011 (4) SCC 262, Israr v. State of Uttar Pradesh, 2005 (9) SCC 616, S. Sudershan Reddy v. State of Andhra Pradesh, 2006 (10) SCC 163, State of Uttar Pradesh v. Naresh, 2011 (4) SCC 324, Jarnail Singh v. State of Punjab, 2009 (9) SCC 719 and Vishnu v. State of Rajasthan, 2009 (10) SCC 477 it was held:

“It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care.”

In State of Rajasthan v. Kalki, 1981 (2) SCC 752. (O. Chinnappa Reddy, AP Sen and B Islam).  It was held by the Supreme Court that:

“True, it is, she is the wife of the deceased; but she cannot be called an “interested” witness. She is related to the deceased. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the

circumstances of a case cannot be said to be “interested”.”

But in Raju v State of Tamil Nadu, AIR 2013 SC 983: 2012 (12) SCC 701 (Swatanter Kumar; Madan B. Lokur, JJ), doubted the proposition laid down in Kalki by a 3 judges bench citing a constitution bench decision in State of Bihar v. Basawan Singh, AIR 1958 SC 500. It was observed as under in Raju:

“In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, AIR 1958 SC 500 the view that a “natural witness” or “the only possible eyewitness” cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was “concerned in the success of the trap”. The Constitution Bench held:

“The correct Rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person.”

It was further in Raju as under:

The wife of a deceased (as in Kalki), undoubtedly related to the victim, would be interested in seeing the accused person punished – in fact, she would be the most interested in seeing the accused person punished. It can hardly be said that she is not an interested witness. The view expressed in Kalki is too narrow and generalized and needs a rethink.

(Maybe it was inappropriate for a 2 judges’ bench to comment on the correctness of a 3 judges’ bench without referring the case to a larger bench”)

c. Categorisation of Witness in “Raju v State of Tamil Nadu”

in Raju v State of Tamil Nadu, the Supreme Court categorised the witnesses as under and laid down the criteria for evaluation of evidence. The Court observed:

“For the time being, we are concerned with four categories of witnesses – a third party disinterested and unrelated witness (such as a bystander or passer – by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused.

But, more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.

d. Appreciation of the Evidence of an Interested Witness; Requirement of Caution

In Hari Obula Reddi AIR 1981 SC 82, the Supreme Court laid down guidelines regarding the evaluation of the testimony of an interested witness as under:

“….it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent, with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature, and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony.”

In Sat Pal v. Delhi Administration AIR 1976 SC 294 the Supreme Court observed as under:

“It is true that there is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. But where the witnesses have poor moral fibre and have to their discredit a heavy load of bad antecedents, having a possible motive to harm the accused who was an obstacle in the way of their immoral activities, it would be hazardous to accept their testimony, in the absence of corroboration on crucial points from independent sources.”

“A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an ‘interested witness.’ The term “interested” postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason. .”(Dalbir Kaur v. State of Punjab AIR 1977 SC 472 Justices AC Gupta and Murtaza Fazal Ali )

The Supreme Court has deduced this ratio on the basis of the principles laid down in the decisions in Dalip Singh v. State of Punjab, AIR 1953 SC 364 : 1953 CriLJ 1465, Masalti v. State of U. P., AIR 1965 SC 202 : 1965 (1) CriLJ 226, Guli Chand v. State of Rajasthan, AIR 1974 SC 276 : 1974 CriLJ 331 and State of Punjab v. Jagir Singh, AIR 1973 SC 2407 : 1973 CriLJ 1589.

In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was “concerned in the success of the trap”. The Constitution Bench held:

“The correct Rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person.”

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 laid down as follows:

“There is no doubt that when a Criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable; are all matters which must be taken into account. But it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses ………………”

Further on, it is laid down that:

“Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”

The settled position in law in regard to the evidence of ‘interested witness’, may be summed up as under:

To be an interested witness the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason.

Relationship perse will not make a person interested witness unless there is enmity.

The Courts should scrutinise the evidence of interested witness  with extra care and caution as it would not be prudent to place reliance only on such evidence to base a conviction, and further that in case such evidence is found impeccably reliable on such scrutiny, the Court may act on it without looking for corroborative evidence.

6. ‘Hostile Witness’ and Law as to the Appreciation of the Evidence of a ‘Hostile Witness’.

The terms “hostile witness”, “unfavourable witness” etc are not used in the Evidence Act. They are terms of English Law. In India a witness is generally referred as “hostile witness” when permission is granted under Section 157 of the Bharatiya Sakshya Adhiniyam (Section 154 of the Evidence Act) to the side who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

In this regard in Sat Pal v. Delhi Administration AIR 1976 SC 294 the Supreme Court indicated that the expression “declared hostile’ is not appropriate in the context of Section 154 of the Evidence Act (Section 157 of the Bharatiya Sakshya Adhiniyam). The Court also enumerated the circumstances in which permission under Section 154 (Section 157 of the Bharatiya Sakshya Adhiniyam) of the Evidence Act may be granted as under:

“Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that in India, the grant of permission to cross examine his own witness by a party is not conditional on the witness being declared “adverse” or “hostile”. Whether it be the grant of permission under S.142 (Section 146 of the Bharatiya Sakshya Adhiniyam) to put leading question, or the leave under S.154 (Section 157 of the Bharatiya Sakshya Adhiniyam) to ask questions which might be put in cross examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court… The discretion conferred by S.154 (Section 157 of the Bharatiya Sakshya Adhiniyam) on the court is unqualified and untrammeled, and is apart from any question of “hostility”. It is to be liberally exercised whenever the court from the witness’s, demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, think that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as “declared hostile”, ”declared unfavourable”…..”

Section 157 of the Bharatiya Sakshya Adhiniyam (Corresponding to Section 154 of the Evidence Act) reads as:

(1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.

(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.

As per Section 146 of the Bharatiya Sakshya Adhiniyam (Section 143 of the Evidence Act) leading questions may be asked in cross-examination.

As per 148 of the Bharatiya Sakshya Adhiniyam (Section 145 of the Evidence Act) a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

In addition to the above provisions Section 149 of the Bharatiya Sakshya Adhiniyam (Section 146 of the Evidence Act) states that: –

When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—

(a) to test his veracity; or

(b) to discover who he is and what is his position in life; or

(c) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:

Provided that in a prosecution for an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

As seen above when such permission is granted the party calling the witness could put questions that are covered under Sections 146 148, and 149, of the Bharatiya Sakshya Adhiniyam (Sections 143, 145 and 146 of the Evidence Act). Leading questions and confrontation with Case Diary statement (S 180 of Bharatiya Nagarik Suraksha Sanhita /S.161 CrPC statement) by the prosecutor of a prosecution witness can be permitted by the Court. The Discretion under section 154 must be judiciously exercised by the Court.

Appreciation of Evidence of “Hostile Witness”

In State of U.P. v. Ramesh Prasad Misra and Another, AIR 1996 SC 2766, the Supreme Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon.

In Podyami Sukada v. State of Madhya Pradesh AIR 2010 SC 2977 it was reiterated as under:

“True it is that the evidence of the hostile witness is not altogether wiped out and remains admissible in evidence and there is no legal bar to base conviction on the basis of the testimony of hostile witness but as a rule of prudence, the Court requires corroboration by other reliable evidence.”

The court should be slow to act on the testimony of such witness and normally look for corroboration. That part of the witness’s evidence which is found reliable can be used for the purpose of corroborating other evidence. Evidence which stood the test of cross examination cannot be brushed aside. Evidence has to be considered as a whole and evaluated.

In Karuppanna Thevar v. State of T. NAIR 1976 SC 980: 1976 CriLJ 708 (Y. V. Chandrachud; P. N. Bhagwati; R. S. Sarkaria), the Supreme Court laid down as under:

A hostile witness may not be rejected outright but the court has at least to be aware that, prima facie, a witness who makes different statements at different times has no regard for truth. The court should therefore be slow to act on the testimony of such a witness and, normally, it should look for corroboration to this evidence.

7. Sterling Witness

Sterling witness is a witness of high credibility.

When can a witness be labelled as a sterling witness? In Rai Sandeep v. State : AIR 2012 SC 3157, it has been held as follows:

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

A three – Judge Bench of the Supreme Court has reiterated the above principles in Ganesan v. State (AIR 2020 SC 5019), while considering the testimony of a victim girl who was aged 13 years at the time of the incident and who was aged 15 years at the time of giving evidence in the trial court.

8. Chance Witness

A chance Witness is one who should not normally be where and when he professes to have been. From that point of view, one may be a chance witness even at one’s own house if, for instance, one should at that hour ought to have been in one’s office, and even a Nomad in the desert may not be a chance witness if his being there and then was on his itinerary. (Sunder v State, AIR 1957 All 809: 1957 CrLJ 1378).

In Rajender v State (National Capital Territory of Delhi)  v State (N C T of Delhi), 2019 (10) SCC 623, the Supreme Court observed:

It is well – established that the testimony of a chance witness, though not necessarily false, is proverbially unsafe to rely upon. (See also Guli Chand and Others v State of Rajastan, AIR 1974 SC 276)

In Sachchey Lal Tiwari v. State of U.P., 2004 (11) SCC 410, the Supreme Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and passerby had deposed that he had witnessed the incident, observed as under:

“If the offence is committed in a street only passer-by will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there.”

The Court further explained that the expression ‘chance witness’ is borrowed from countries where every man’s home is considered his castle and every one must have an explanation for his presence elsewhere or in another man’s castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.

The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh, 1997 (4) SCC 192; Harjinder Singh v. State of Gujarat, 2004 (11) SCC 253; Acharaparambath Pradeepan and Another v. State of Kerala, 2006 (13) SCC 643; and Sarvesh Narain Shukla v. Daroga Singh and Others, 2007 (13) SCC 360.

Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan, 2004 (10) SCC 632.

Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident. (vide Thangaiya v. State of Tamil Nadu, 2005 (9) SCC 650.

(See Jarnail Singh v State of Punjab, 2009 (9) SCC 719 : AIR 2010 SC 3699 (Harjit Singh Bedi; *Dr. B. S. Chauhan, JJ))

9. Injured Witness

In Shivalingappa Kallayanappa v. State of Karnataka 1994 Supp (3) SCC 235, the Supreme Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case, it is proved that he suffered the injury during the said incident.

Again in State of U.P. v. Kishan Chand and Others, 2004 (7) SCC 629, a similar view has been reiterated observing that the Testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan and Others v. State of Haryana, 2006 (12) SCC 459.

10. Rustic Witness

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:

The record of the case shows that this witness was cross – examined at great length. He was subjected to grueling cross – examination which runs into 31 pages. The first and firm impression which one gathers on reading the testimony of this witness is that he is a rustic witness. A rustic witness, who is subjected to fatiguing, taxing and tiring cross – examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross – examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross – examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness. When the respondents were firing from their respective fire arms, the High Court should not have expected PW 1 Jhabbulal to mention description of the whole episode which had happened in a few minutes. The rustic witnesses cannot be expected to have an exact sense of time and so cannot be expected to lay down with precision the chain of events. In the instant case, this Court is of the firm opinion that the High Court gravely erred in not accepting evidence of PW 1, Jhabbulal. Jhabbulal being a rustic witness is not expected to always have an alert mind and so have an idea of direction, area and distance with precision from which he had witnessed the incident.

11. Official Witness

‘Omnia presumption right solemnitur esse acta’ is a latin legal maxim,

which means all official acts are presumed to have been done rightly and regularly. This principle is embodied in Illustrations (e) and (f) of section 119 of the Bharatiya Sakshya Adhiniyam (Illustrations (e) and (f) of section 114 of the Evidence Act)

Illustrations (e) and (f) to S.119 relating to presumption of fact read as:

The Court may presume—

(e) that judicial and official acts have been regularly performed;

(f) that the common course of business has been followed in particular cases;

It is not the judicial approach to destruct and suspect a public officials without good grounds.

In Nathusingh v. The State of Madhya Pradesh AIR 1973 SC 2783, the Supreme Court held that the mere fact that the prosecution witnesses are Police Officers is not enough to discard their evidence in the absence of evidence of their hostility to the accused.

State of Maharashtra v. P. K. Pathak, AIR 1980 SC 1224: 1980 CriLJ 923, the Supreme Court observed at para 9 : merely because P.W. 2 and P.W. 4 were Custom Officers, their evidence could not be rejected outright because they were doubtless competent to prove search and recoveries.

In State Government of NCT of Delhi v. Sunil, 2001 (1) SCC 652 : 2001 CriLJ 504 the Supreme Court with respect to Recovery of article (bloodstained knickers of deceased) on the basis of statement made by accused before police and the seizure memo was  not attested by any independent witness it was held that mere absence of independent witness when investigating officer recorded is not sufficient ground to discard the evidence, the Evidence of police officer regarding the recovery at the instance of the accused should ordinarily be believed  and It is for the accused to show that such evidence is unreliable.

The Hon’ble Supreme Court further observed: –

“But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.”

12. “Falsus in Uno, Falsus in Omnibus – Not A Mandatory Rule – The General Rule is That The Grain Should Be Separated from Chaff”

The maxim “Falsus in Uno, Falsus in Omnibus” literally means false in one thing is false in everything. This is not a mandatory rule of law but is only a rule of caution. It is often said that it is the court’s duty to separate the grain from chaff and the Court cannot blindly reject the evidence of a witness branding him as a rank liar unless exceptional circumstances exist to show that it is not possible to separate grain from chaff because they are inextricably mixed up. In this regard the Supreme Court in Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and Another AIR 2003 SC 4567 after analyzing a plethora of previous decisions observed as under:

“It is the duty of Court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liar. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called ‘a mandatory rule of evidence’. (See Nisar Alli v. The State of Uttar Pradesh, AIR 1957 SC 366.”

“…..it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment….Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto…..normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so.”

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:

….it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper – technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small / trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short – coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye – witnesses examined in this case proves the prosecution case.

In State of U.P. v. Anil singh, AIR 1988 SC 1998, it is observed as under:

“In the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The indifferent attitude of the public in the investigation of crimes could also be pointed. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.”

13. 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)

14. Sole Witness

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.

15. 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)

16. Summarising the Criteria For Evaluation of the Evidence of Sole Witness

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.

17. Circumstantial Evidential

Twain, the great American writer and philosopher, once said:

“It is like this, take a word, split it up into letters, the letters, may individually mean nothing but when they are combined they will form a word pregnant with meaning. That is the way how you have to consider the circumstantial evidence. You have to take all the circumstances together and judge for yourself whether the prosecution have established their case.” (Ramand @ Nandalal Bharathu v State of UP 2022 SCC OnLine SC 1396: AIR 2022 SC 5273 (Uday U. Lalit, C. J.; S. Ravindra Bhat; J. B. Pardiwala, JJ.)

Most of the wrongs or crimes are committed in seclusion and not in the presences of witnesses. Therefore, in the absence of eye witnesses the Courts would have to resort to the evidences of circumstances from which inferences could be drawn as to the existence of fact in issue or the guilt of the accused.  In other words, in cases where direct evidence is not available then circumstantial evidence can be resorted to for establishing the guilt of the accused. But the circumstances from which the conclusion of guilt is to be drawn should be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Even when there is direct evidence of the eye witness other relevant circumstantial evidence of significance can lend necessary assurance or corroboration to such evidence of the eye witness.

Evidence as to occasion, cause or effect of fact in issue or circumstances affording opportunity to the accused to commit the crime like proof of last seen together which are relevant u/s 7, Evidence as to motive, preparation and subsequent and previous conduct of the accused relevant u/s 8 are instances which can form links in the chain of circumstances.

Likewise, the evidence of an investigating officer in respect of recovery of incriminating material at the instance of the accused relevant u/s 27 of the evidence Act and the expert’s opinion evidence supporting the prosecution case can form part of circumstantial evidence to complete the chain.

More than seven decades back the Supreme Court in Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 (Mehr Chand Mahajan; S. R. Das; N. H. Bhagwati, JJ.), had laid down the principles governing circumstantial evidence, which perpetually holds good, as under: –

“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

In C. Chenga Reddy and Others v. State of A.P., 1996 (10) SCC 193, it has been reiterated that in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

In, Ramand @ Nandalal Bharathu v State of UP 2022 SCC OnLine SC 1396: AIR 2022 SC 5273 (Uday U. Lalit, C. J.; S. Ravindra Bhat; J. B. Pardiwala, JJ.), the Supreme Court speaking through justice Pardiwala observed:

“In ‘A Treatise on Judicial Evidence’, Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:

  1. a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; &
  2. b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).

Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:

  1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
  2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
  3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
  4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.

In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.”

Recently in Ravinder Singh @ Kaku v. State of Punjab AIR 2022 SC 2726 (Uday U. Lalit; Vineet Saran, JJ.), the Supreme Court reiterated above principles as under:

In order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent. This court has consistently held in a long line of cases [See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa @ Krishnappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh @ Dalbir Singh v.State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890)] that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt.”

a. Failure To Explain Incrimination Circumstance Can Be Taken As A Link In The Chain Of Circumstances

In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. (Prem Singh v State of NCT Delhi 2023 LiveLaw (SC) 2: 2023 SCC OnLine SC 2: AIROnLine 2023 SC 1 (Dinesh Maheshwari; Sudhanshu Dhulia, JJ.)

In Rajender v State (National Capital Territory of Delhi)  v State (N C T of Delhi), 2019 (10) SCC 623 (Mohan M. Shantanagoudar; Ajay Rastogi, JJ), the Supreme Court observed:

S.106 of the Indian Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the Court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under S.106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that S.106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. S.106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his / her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.

Notably, a circumstance of last seen does not, by itself, necessarily lead to an inference that the accused committed the crime. There must be something more that establishes a connection between the accused and the crime. For instance, there may be cases where close proximity between the event of last seen and the factum of death may persuade a rational mind to reach the irresistible conclusion that the last seen of the deceased is material and merits an explanation from the accused.

b. Motive As Additional Link In The Chain Of Circumstance

As noticed, motive, when proved, supplies additional link in the chain of circumstantial evidence but, absence thereof cannot, by itself, be a ground to reject the prosecution case; although absence of motive in a case based on circumstantial evidence is a factor that weighs in favour of the accused. (Prem Singh v State of NCT Delhi 2023.)

c. Panchsheel Principles of Circumstantial Evidence

In Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116, the Supreme Court laid down five golden principles which have been stated to constitute the panchsheel of the proof of the case based on circumstantial evidence as under:

“(i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established,

(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(iii) the circumstances should be of a conclusive nature and tendency,

(iv) they should exclude every possible hypothesis except the one to be proved, and

(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

d. Summary of Law of Circumstantial Evidence

In Padala Veera Reddy v. State of A.P. and Others, AIR 1990 SC 79, the Supreme Court summarised the law as to circumstantial evidence. It was laid down that circumstantial evidence must satisfy the following test:

“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

 (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should forma a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, 1982 (2) SCC 351).”

18. Appreciation of Evidence of Rape Victim – Case Law

Rape is a most heinous crime and, in most cases, the available evidence would be the testimony of the victim and may be corroborative medical evidence. The generally the court would not insist for corroboration.

In Rafiq v State of U.P AIR 1981 SC 559: 1980 CriLJ 1344, the Supreme Court speaking through Justice Krishna Iyer laid down as under:

Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law. But a guidance of prudence under given circumstances. Indeed, from place to place, from age to age from varying life – styles and behavioural complexes, inferences from given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed.

In State of U.P. v. Pappu @Yunus and Another, AIR 2005 SC 1248, the Supreme Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under : –

“It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.”

In State of Punjab v. Gurmit Singh and Others, AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: –

“The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix ……. The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self –  respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case ……. Seeking corroboration of her statement before replying upon the same as a rule, in such cases, amounts to adding insult to injury …….. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ……

The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”

In State of Orissa v. Thakara Besra and Another, AIR 2002 SC 1963, the Supreme Court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non – examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

In State of Himachal Pradesh v. Raghubir Singh, 1993 (2) SCC 622, the Supreme Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity.

A similar view has been reiterated by the Supreme Court in Wahid Khan v. State of Madhya Pradesh, 2010 (2) SCC 9, placing reliance on earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54.

The law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.

(See Vijay @ Chinee v State of Madya Pradesh 2010 (8) SCC 191)

19. Admissibility of Evidence Procured By Improper or Illegal Means

The doctrine of “Fruits of Poisonous Tree” is a rule which prescribes that evidence obtained by illegal means becomes inadmissible. The phrase “Fruits of Poisonous Tree” was first used and recognised by American Judge Frankfurter. It is in consonance with the right to privacy in the 4th Amendment of the US constitution. In America the doctrine applies with some exceptions.

In Magraj Patodia v. R. K. Birla and Others, 1970 (2) SCC 888: AIR 1971 SC 1295 (K. S. Hegde; A. N. Grover, JJ), the Supreme Court observed:

“….the fact that a document was procured by improper or even illegal means will not be a bar to its admissibility if it is relevant and its genuineness proved. But while examining the proof given as to its genuineness the circumstances under which it came to be produced into court have to be taken into consideration.”

In Malkani R. M v State of Maharashtra, AIR 1973 SC 157 : 1973 CriLJ 228 (A. N. Ray; I. D. Dua, JJ.), the supreme court in a criminal case for offences of bribery under Ss.161 and 385 of the Indian Penal Code, the contention of the accused was that the evidence in the case the tape recorded conversation was illegally obtained in contravention of S.25 of the Indian Telegraph Act and therefore the evidence was inadmissible. The Court referred to various precedents, the court held that it was a piece of evidence that was obtained voluntarily without any force or coercion and hence the audio recordings were admissible as evidence and observed:

It was said by counsel for the appellant that the tape recorded conversation was obtained by illegal means. The illegality was said to be contravention of S.25 of the Indian Telegraph Act. There is no violation of S.25 of the Telegraph Act in the facts and circumstances of the present case. There is warrant for proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owen (1870) 34 J. P. 759. The Judicial Committee in Kuruma, Son of Kanju v. R.1955 A.C. 197 dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence.

In Magraj Patodia v. R. K. Birla, AIR 1971 SC 1295 the Supreme Court, dealt with the admissibility in evidence of two files containing numerous documents produced on behalf of the election petitioner. Those files contained correspondence relating to the election of respondent No. 1. The correspondence was between respondent No. 1 the elected candidate and various other persons. The witness who produced the file said that respondent No. 1 handed over the file to him for safe custody. The candidate had apprehended raid at his residence in connection with the evasion of taxes or duties. The version of the witness as to how he came to know about the file was not believed by this Court. This Court said that a document which was procured by improper or even by illegal means could not bar its admissibility provided its relevance and genuineness were proved.

 In Nagree’s case, (1967) 3 SCR 720 : (AIR 1968 SC 147)  the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh informed the Police. The Police laid a trap. Sheikh called Nagree at the residence. The Police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector. Sheikh gave evidence of the talk. The tape record corroborated his testimony. Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secure scrupulous conduct and behaviour on behalf of the Police. The reason is that the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. In every case the position of the accused the nature of the investigation and the gravity of the offence must be judged in the light of the material facts and the surrounding circumstances.

The admissibility of evidence procured in consequence of illegal searches and other unlawful acts was applied in a recent English decision in R. v. Maqsud Ali, (1965) 2 All E.R. 464. In that case two persons suspected of murder went voluntarily with the Police Officers to a room in which, unknown to them, there was a microphone connected with a tape recorder in another room. They were left alone in the room. They proceeded to have a conversation in which incriminating remarks were made. The conversation was recorded on the tape. The Court of Criminal Appeal held that the trial Judge had correctly admitted the tape recording of the incriminating conversation in evidence. It was said “that the method of the informer and of the eavesdropper is commonly used in the detection of crime. The only difference here was that a mechanical device was the eavesdropper”. The Courts often say that detection by deception is a form of police procedure to be directed and used sparingly and with circumspection.

In pooran Mal and Others v Director of Investigation, Income Tax New Delhi and Others, AIR 1974 SC 348, a five judges bench of the Supreme Court, observed:

It was next alleged that a very large number of documents were seized which were really irrelevant. The authorised officer has to seize books of account and other documents which will be useful for and relevant to any proceeding under the Income Tax Act. When in the course of a search voluminous documents and books of account are to be examined with a view to judge whether they would be relevant, a certain amount of latitude must be permitted to the authorities. It is true that when particular documents are asked to be seized unnecessary examination of other documents may conceivably make the search excessive. But when the documents, pieces of paper, exercise books, account books, small memos etc. have all to be examined with a view to see how far they are relevant for the proceeding under the Act, an error of judgement is not unlikely. At the most this would be an irregularity – not ah illegality. Nor can it be a valid objection to the search that it continued for about 16 hours. By their very nature the search and seizure as shown above would consume a lot of time.

In India there is no direct general statutory provision dealing with evidence procured by improper means. In view of the recent development of recognising right to privacy as a fundamental right, may be the Supreme Court will come up with appropriate authoritative clear pronouncements.

Non – Compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 Vitiates Search and Seizure

S.50 of the NDPS Act provides as under:

“50. Conditions under which search of persons shall be conducted. –  When any officer duly authorised under S.42 is about to search any person under the provisions of S.41, S.42 or S.43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in S.42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the Person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorized under S.42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under S.100 of the Code of Criminal Procedure, 1973.

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy – two hours send a copy thereof to his immediate official superior”.

On the question of consequence of non-compliance of S. 50 after a survey of various judgements the 5 judges bench of the Supreme Court in State of Punjab v. Baldev Singh (1999 (6) SCC, 172), reiterated that provision relating to search of person is mandatory and laid down the law on the point as under:

There is, thus, unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in S.50. Similarly, if the concerned person requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad.

20. Consequence Of Non-Raising Of Objection On Mode Of Proof

It is a well settled proposition of law that objection as to mode of proof must be raised at the earliest and if one fails to do so he/she cannot take up such a plea later in the proceeding or before the superior appellate or revisional court. Whereas if the objection is as to the very admissibility of a document which goes to the root of it, say for example want of registration or objection as to a privileged document/communication, such objections can be raised and the court can look into the objection at any stage, including in the revisional or appellate stage.

One of the pragmatic and peremptory rules which have emerged from judicial decisions is that once a document has been assigned an exhibit mark in the court of the first instance without any objection by the party who later challenges its admissibility, such objection must be overruled. (Daya Sankar v Bachi and Others, AIR 1982 All. 376)

This principle was emphasised in Gopal Das v. Sri Thakurji, AIR 1943 PC 83 wherein it was observed:

“Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial.” (See also Bhagat Ram v. Khetu Ram, AIR 1929 PC 110. )

In R.V.E Venkitachala Gounder v Arulmigu Vishveshvaraswami And V. P. Temple and Another, 2003 (8) SCC 752: AIR 2003 SC 4548 (R. C. Lahoti; Ashok Bhan, JJ.), the Supreme Court succinctly explained the said aspect and referred a few precedents as under:

The learned counsel for the defendant respondent has relied on The Roman Catholic Mission v. The State of Madras & Anr. AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: – (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.

The Privy Council in Padman and Others v. Hanwanta and Others [AIR 1915 PC 111] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the Trial Court. It was observed:

“The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar’s office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention.”

Similar is the view expressed in P.C.Purushothama Reddiar v. S.Perumal [1972 (2) SCR 646]. In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention, it was observed:

“Before leaving this case it is necessary to refer to one of the contention taken by Mr. Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head – constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility — see Bhagat Ram V. Khetu Ram and Anr. [AIR 1929 PC 110].”

Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.

21. Provisions Embodying the Principles of Best Evidence Rule

One of the basic general principles that underlie the Evidence act as well as the Bhartiya Sakshya Adhiniyam is the Best Evidence Rule. Which means the best or the best form of Evidence should be offered before the Court, to succeed.

Now we shall refer some provisions in the Bharatiya Sakshya Adhiniyam/Evidence Act which embody the Best Evidence Rule.

a. Section 119, illustration (g) & (h)

Illustrations (g) and (h) to section 119 (Section 114 of the Evidence Act), reads as:

The Court may presume–

         xxx

(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

(h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;

One fundamental principle in Law of Evidence is that best available evidence should be produced before the court. If a party purposely withholds evidence, in appropriate cases the court may draw adverse inference. Parties Cannot Withhold Best Evidence (For detailed Commentary See Module 22 – on presumption of facts)

b. Oral Evidence must be Direct/Bar of Hearsay Evidence

Section 60 mandates that oral evidence must be direct. There are a few exceptions to the said rule of bar of hearsay evidence. (For detailed Commentary See Module 18 on oral evidence).

c. Documents must be proved by primary evidence except in the cases where secondary evidence is admissible

The Best Evidence is the Primary Evidence that is the Original of the document itself.

Section 59 of the Bharatiya Sakshya Adhiniyam (Section 64 of the Evidence Act) states that Documents must be proved by primary evidence except in the cases where secondary evidence is admissible. (For detailed Commentary See Module 19 on Documentary Evidence)

d. Exclusion of Oral Evidence, For Contradicting, Varying, Adding To, or Subtracting From, the Terms of Contract Grant or Disposition of Property

Sections 94 and 95 of the the Bharatiya Sakshya Adhiniyam (Sections 91 and 92 of the Evidence Act), provides in specific cases for the exclusion of oral evidence (For detailed Commentary See Module 23 on Documentary Evidence)

22. Improper Admission And Rejection Of Evidence – Section 169

Often it can be seen that in appeal or in revision the lower court judgments are reversed or cases remanded back for fresh disposal/trial. This happens when the appellate court feels that the lower court judgment is erroneous on questions of law or on facts. The appellate court has the power to appreciate evidence. There cannot be a reversal of a judgment just because some evidence which ought to have been rejected were admitted or some evidence which should have been admitted were actually rejected unless such evidence were decisive to overturn the decision.

In this regard, Section 169 of the Bharatiya Sakshya Adhiniyam (Section 167 of the Evidence Act), reads as follows:

The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, or that, if the rejected evidence had been received, it ought not to have varied the decision.

Section 169 provides that there shall not be reversal of a decision or holding of new trial under the following situations:

  1. if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision
  2. If it shall appear to the Court before which such objection is raised that, if the rejected evidence had been received it ought not to have varied the decision.

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

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Exercise Questions

  1. Who is an interested witness? Elucidate the law as to the appreciation of the evidence of an interested witness
  2. What connotes the term ‘Hostile Witness’? Elucidate the law as to the appreciation of the evidence of a ‘Hostile Witness’.
  3. Elucidate the law as to the appreciation of the evidence of a ‘Rustic Witness’
  4. Who is a chance Witness? Elucidate the law as to the appreciation of the evidence of a ‘Chance Witness’
  5. “Falsus in Uno, Falsus in Omnibus”. Explain. All discrepancies in evidence are not material. Explain
  6. “Witness may lie, but circumstances do not”: Elucidate?
  7. Distinguish objection as to inadmissibility and objection as to mode of proof. Explain the consequence of failure to raise objection as to mode of proof.
  8. Discuss Admissibility of Evidence procured by illegal means.