NATIONAL LAW UNIVERSITY DELHI

Advanced Evidence Law

(LL.M. Second semester)
Feb 2024 Semester

About the course:

Understanding philosophical assumptions and methods on which judges and legislators

rely when they adopt and apply rules of evidence is very helpful for mastering the
doctrines of evidence law. The dominant approach to evaluating the law of evidence takes
the standpoint of a detached observer and focuses on how the trial system should be
structured to guard against the production of wrong verdicts. This course offers a different
account from the perspective of the person responsible for making findings of fact. From
that angle, complex and intertwining ethical and epistemic considerations come into view.
It is only by exploring the nature and content of deliberative responsibility that the role
and purpose of much of the law can be fully understood. In many cases, values other than
truth have to be respected, not simply as side constraints, but as values which are internal
to legal fact-finding. A party does not merely have a right to have the substantive law
correctly applied to true findings of fact; a party has, more broadly, a right to a just
verdict, where justice incorporates an ethical evaluation of the reasoning process which
led to the verdict. There is an important sense in which the court must not only find the
truth to do justice, it must do justice in finding the truth.
Human rights legislation, case law and principles are transforming criminal evidence. The
manner in which evidence is collected, regulated and assessed has the potential to impact
the fairness of the criminal trial. The most legal system, irrespective of their exclusionary
or ‗inclusionary‘ tendencies, provide for rules which prohibit in certain circumstances the
use of particular types of evidence, regardless of its probative values. The use of torture,
inhuman or degrading treatment in the investigation phase as a means to obtain evidence
will necessarily adversely affect the opportunity of those charged with criminal offences
to challenge the case against them in subsequent adversarial proceedings by undermining
their procedural rights and their opportunity to present their case.
The constitutional mandate regulating evidence law endeavours to ensure justice for both
the victim and the accused. The origin of the privilege against self-incrimination under
the Indian Constitution in Art. 20 (3) has been traced to protest against the inquisitorial
methods of interrogating accused persons. In a system, which permits compulsory
examination of the accused to explain his apparent connection with a crime, there is a
danger of temptation to press him unduly, to browbeat him if he is timid or reluctant, and
to entrap him into fatal contradictions. The privilege arose from a desire to safeguard
human liberty and to guard against an innocent person being punished. The object of the
privilege is that every innocent citizen should feel secure that he can lead his daily life
without fear of arbitrary arrest or detention, false accusation and unjust trial. However,
since the establishment of the privilege against self-incrimination in the common law
systems serious doubts have been expressed in some quarters that this privilege tends to
defeat justice, in so far as it closes one source of obtaining the truth. It may be useful to
enumerate the arguments for and against the privilege.
The first few years of the 20th century saw rapid strides in the field of information and
technology. The expanding horizons of science and technology threw new challenges for
the one who had to deal with proof of facts in disputes where advanced techniques in
technology were used and brought to aid. Storage, processing and transmission of data on
magnetic and silicon mediums become cost-effective and easy to handle. Conventional
means of records and data processing became outdated. So electronic evidence became
indispensable for imparting justice. Similarly, one of the weak links in the chain of
investigation has been that even the primary evidence of oral testimony may suffer from
various defects including hostility, aborting the ultimate purpose of justice. Therefore, as
an alternative, forensic evidence has emerged globally as a reliable corroborative tool,
appreciated by every quarter of the criminal justice system. Forensic tools have
strengthened faith in justice delivery by augmenting transparency in evidence collection
and their appreciation.

The objective of the course:

 To Understand the philosophical aspect of evidence law
 To learn the human rights aspect of evidence law
 To know the constitutional mandate for evidence law
 To find the technological aspect of evidence law
 To critically analyse contemporary and key issues in evidence law

Pedagogy:
 Lecture cum discussion method
 Case study method

Evaluation:
 As per the examination department guidelines.
o Project: 30 marks
o Response Paper: 10 marks
o Presentation: 10 marks

Themes/Issues for Discussion:

 Basic Principles of appreciation of Evidence

o Bests Evidence Rule in India
o Failure to give the best evidence
o Evidentiary value of different evidence

Readings:
 Anderson, T. , Schum, D. , and Twining, W. , Analysis of Evidence (
Cambridge : Cambridge University Press, 2005).
 Twining, W. ‗ Taking Facts Seriously—Again ‘ in Roberts, P. and
Redmayne , M. , Innovations in Evidence and Proof ( Oxford : Hart
Publishing, 2007), pp. 65–87.
 Laudan , L. , Truth, Error and Criminal Law ( Cambridge: Cambridge
University Press, 2008).
 Murphy , P. ‗ Excluding justice or facilitating justice? International
criminal law would benefit from rules of evidence ‘ ( 2008 ) 12 (1)
International Journal of Evidence and Proof .
 Stein , A. , Foundations of Evidence Law ( Oxford : Oxford University
Press, 2005).
  Tapper, C. , ‗ Th e law of evidence and the rule of law ‘ [ 2009 ] 68 (1)
Cambridge Law Journal 67 .
 Twining , W. , Rethinking Evidence: Exploratory Essays (2nd edn,
Cambridge : Cambridge University Press, 2006).
 69 report: The Indian Evidence Act, 1872.
 185 report: Review of the Indian Evidence Act, 1872.
 Malimath Committee report

 Asymmetric relations in evidentiary reasoning, values & other factors

influencing reasoning and appreciation of evidence
o Understanding Judicial Discretion
o Objectivity in decision making
o Gender Notion in appreciation of evidence

Readings:
 Ho , H.L. , A Philosophy of Law: Justice in the Search for Truth ( Oxford :
Oxford University Press, 2008 ).
 Thomas Kelly, ‗Evidence‘, Stanford Encyclopaedia of Philosophy
(published Jul 28, 2014), pp. 1-61.
 Noah Feldman, ‗On the Nature of Evidence‘, Harvard University Research
Science Public Lecture (YouTube, November 2013).
 Hock Lai Ho, ‗Evidence and Truth‘ in Christian Dahlman, Alex Stein, and
Giovanni Tuzet, Philosophical Foundations of Evidence Law (OUP 2021),
pp. 11-24.
 Marilyn MacCrimmon, ‗What is 'Common' About Common Sense-
Cautionary Tales for Travellers Crossing Disciplinary Boundaries (2001)‘,
(2001) Cardozo Law Review 22, pp. 1433-1450.
 David Enoch, Levi Spectre & Talia Fisher, ‗Statistical Evidence,
Sensitivity, and the Legal Value of Knowledge‘ (2012) Philosophy and
Public Affairs 40(3), pp. 197 - 224.
 Mirjan Damaska, ‗Epistemology and Legal Regulation of Proof‘, Law,
Probability and Risk (2003) 2, pp. 117–130.
 Julia Simon-Kerr, ‗Relevance through a Feminist Lens‘ in Christian
Dahlman, Alex Stein, and Giovanni Tuzet, Philosophical Foundations of
Evidence Law (OUP 2021), pp. 364-379.

 Inquisitorial aspect of evidence law

o Statutory Interpretation and Adversaorial Injustice
o Adversarial system with inquisitorial methods
o Inquisitorial powers of courts in an adversarial system

Readings:
 Dr. V Nageswara Rao, Judges power to examine , The Indian Evidence
Act, Lexis Nexus Publication,3rd ed

Cases:
 Zahira Habibullah Sheikh v.2State of Gujarat (2004 SC)
 Rajendra Prasad v.Narcotic Cell (1996 SC)
  Union Territory of Dadra and Nagar Haveli and another v.Fateh Singh
Mohan Singh Chauhan (2006 SC)
 Iddar and others v. Aabida and others (2007 SC)
 Raghunandan v.State of UP (1974SC)
 Ram Chander v. State of Haryana (1981 SC)
 State of Rajasthan v.Ani (1997 SC)
 Nepal Chandra Roy v. Netai Chandra Das (1971 SC)
 Keya Mukherjee v.Magma Leasing Ltd. and another (2008 SC)
 Gulab Chand v. State of MP (1995 SC)
 State of Tamil Nadu v.Rajendran (1999 SC)
 V.N. Patil Vs K. Niranjan Kumar [CrA 267 OF 2021]
 State vs. Tr N Seenivasagan LL 2021 SC 136 [CrA 231-232 of 2021]

 Illegally and Improperly Obtained Evidence

o Fruits of a poisonous tree
o Electronic surveillance, Phone tapping, illegal searches and right to
privacy
o Evidentiary value of illegally and improperly obtained evidence

Readings:
 Ormerod , D. and Birch, D. , ‗ The evolution of the discretionary exclusion
of evidence ‘ [ 2004 ]Criminal Law Review 767 .
 Heydon , R. , ‗ Illegally obtained evidence (1) and (2) ‘ [ 1973 ] Criminal
Law Review 603 and 690.
 Roberts , P. , ‗ Normative Evolution in Evidentiary Exclusion: Coercion,
Deception and the Right to a Fair Trial ‘ in P. Roberts and J. Hunter (eds),
Criminal Evidence and Human Rights:Reimagining Common Law
Procedural Traditions ( Oxford : Hart Publishing, 2012), pp. 163–93.
 Squires , D. , ‗ Th e problem with entrapment ‘ ( 2006 ) Oxford Journal of
Legal Studies 351 .
 Williams, G. , ‗ Evidence obtained by illegal means ‘ [ 1955] Criminal
Law Review 339 .
 94 report: Evidence obtained illegally or improperly: proposed section
166A, Indian Evidence Act, 1872.

Cases:
 K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
 Kuruma v The Queen [1955] AC 197
 Pooran Mal v Director of Inspection AIR 1974 SC 348
 Magraj Patodia v R K Birla and others AIR 1971 SC 1295
 R.M. Malkani v. State of Maharashtra (1973) 1) SCC 471
 Umesh Kumar v State of AP AIR 2014 SC 1106 2013 CriLJ 2100
 Dharambir Khattar v Union of India 2013 CriLJ 2011
 State of Punjab v Baldev Singh (1999) 6 SCC 172
 State of Delhi v Ram Avtar @ Rama AIR 2011 SC 2699
 Court on its Own Motion v. State & Ors., 2008 SCC OnLine Del 865
 Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611
  Shyni Varghese v. State (Govt. of NCT of Delhi) (2008) 147 DLT 691
(Del)
 M.P. Sharma v. Satish Chandra, AIR 1954 SC 300
 State of M.P. v. Ramesh C. Sharma, (2005) 12 SCC 628
 State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600

 Presumption of Fact & Law without evidence

o Presumption as to the legitimacy and its relevance
o Autonomy and Interpretation of sec. 112 IEA
o Problem and concerns with sec 112 IEA
o Scientific advancements and presumption of legitimacy
o Judicial observations on DNA tests

Readings:
 Borkowski , A. , ‗ The presumption of marriage ‘ [ 2002 ] Child and Family
Law Quarterly 251 .
 Maher , G. , ‗ Judicial notice and statute law ‘ ( 2001 ) 117 Law Quarterly
Review 71.
 Nokes , G.D. , ‗ The limits of judicial notice ‘ ( 1958 ) 74 Law Quarterly
Review 59 .
 271 report: Human DNA Profiling – A draft Bill for the Use and Regulation of
DNA-Based Technology

Cases:
 Goutam Kundu v.State of West Bengal (1993 SC)
 Banarsi Das v. Teetu Dutta (2005 SC)
 Bhabani Prasad Jena v. Convener Secretary Orissa State Commission of
women and another (2010 SC)
 Kanchan Bedi v.Gurpreet Singh Bedi (2003 Delhi HC)
 Amarjit Kaur v.Harbhajan Singh (2003 SC)
 Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another (2014 SC)
 Narayan Dutt Tiwari v.Rohit Shekar and another (2012 SC)
 Dipanwita Roy v. Ronobroto Roy (2014 SC)

 Forensic Evidence
o Relevance of forensic evidence
o The constitutional aspect of forensic evidence
o Human rights aspect of forensic evidence
o Ocular evidence vis-a-via forensic evidence

Cases:
 Sanatan v. State of West Bengal, 2010 Cr.L.J. 3871
 Dipanwita Roy v. Ronobroto Roy (2015) 2 SCC 94
 Sharda v. Surat Singh, ILR 2016 4 HP 2170 : 11 (2017) DMC 858 HP.
 Mukesh v. State (NCT of Delhi) (2017) 6 SCC 1
 Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014) 2 SCC 576
 Dr. (Smt.) Nupur Talwar v. State of Uttar Pradesh 2017 SCC online All
2222
 Dharam Deo Yadav v. State of U.P. (2014) 5 SCC 509.
  Abdulwahab Abdulmajid Baloch v. State of Gujarat (2009) 11 SCC 625;
 Ram Kishan v. State of NCT Delhi, III (2015) CCR 72 (Del.) : 2015 (3)
Cri CC 456.
 Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh (2009) 14
SCC 607
 Ved Prakash v. State of Haryana, 2015(1) RCR (Cri) 807.
 Uday v. State of Karnataka, (2003) 4 SCC 46.
 Rajiv Singh v. State of Bihar, 2015 SCC online SC 1336.
 State of Punjab v. Mohinder Singh 2008(3) R.C.R (Criminal) 226.
 State of Gujarat v. Jayantibhai Somabhai Khant, 2015 Crl L J 3209.
 Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259.
 State of Haryana v. Bhagirath (1999) 5 SCC 96

 Issues with proof of Electronic Evidence

o Special Provisions and Legislative Intent for proving Electronic Evidence
o Duty to produce Certificate when discharged
o Permissible stage for production of certificate u/s 65B(4)
o Section 65 A & Section 65 B complete code
o Certificate u/s 65B(4), hearsay evidence & Right against self
incrimination
o Judicial admission of electronic records and Certificate u/s65B(4)
o Proof of SMS, email, Bank statements etc

Readings:
 N. S. Nappinai, Electronic Evidence- The Great Indian Quagmire, SCC
online web edition, 2020.
 Burkhard Schafer and Stephen Mason, The Characteristics of Electronic
Evidence, Electronic Evidence, University of landon Press, University of
London. https://www.jstor.org/stable/j.ctv512x65.9

Cases:
 Kishan Tripathi Vs. The State (MANU/DE/0434/2016)
 Harpal Singh @ Chhota Vs. State Of Punjab (MANU/SC/1503/2016)
 Jagdeo Singh and Ors. Vs. The State (MANU/DE/0376/2015)
 Abdul Rahaman Kunji Vs. The State of West Bengal
(MANU/WB/0828/2014)
 Kundan Singh Vs. The State (MANU/DE/3674/2015)
 K. Ramajayam @Appu vs. The Inspector of Police (2016) SCC online
Mad 451
 Paras Jain and Ors. Vs. State of Rajasthan, (MANU/RH/1150/2015)
 Dharambir vs Central Bureau Of Investigation [148 (2008) DLT 289]
 Ujjal Dasgupta Vs. State (2008) SCC online Del 506
 Tomaso Bruno Vs. State of U.P. (2015)7SCC178
 State(NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru
2005(11)SCC600
 Anvar P.V. vs P. K. Bahseer and Others (2014)10SCC473
 Shafhi Mohammad vs. State of Himachal Pradesh 2018(2)SCC801
 Sonu Alias Amar Vs. State of Haryana 2017(8)SCC570
 Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Others 2019
SCC online SC 1553
 Right against self-incrimination
o Accused as a witness for the prosecution: Critical Issues
o Testimony from the mind and information from the body
o Co-operation with the investigation agency else contempt proceedings
o Evidentiary value of narco analysis, lie detector test results

Readings:
 Choo , A. , ‗ Give Us What You Have—Information, Compulsion and the
Privilege Against Self-incrimination as a Human Right ‘ in Roberts, P. and
Hunter , J. , (eds), Criminal Evidence and Human Rights: Reimagining
Common Law Procedural Traditions ( Oxford : Hart Publishing, 2012 ),
pp. 239–58.
 Dennis , I. , ‗ Instrumental protection, human right or functional necessity?
Reassessing the privilege against self-incrimination ‘ ( 1995 ) 54 (2) C
ambridge Law Journal 342 .
 Menlowe , M.A. , ‗ Bentham, self-incrimination and the law of evidence ‘
( 1988 ) 104 Law Quarterly Review 286 .
 Redmayne , M. , ‗ Rethinking the privilege against self-incrimination‘ (
2007 ) 27 (2) O xford Journal of Legal Studies 209 .
 180 report: Article 20 (3) of the Constitution of India and Right to Silence
Cases:
 Ashish C. Shah v Sheth Development Pvt Ltd, 2011 Cr LJ 3565, the
Bombay High Court
 Delhi Administration v Jagit Singh, AIR 1989 SC 598 : 1989 Cr LJ 986 :
Supp (2) SCC 770,
 Selvi v State of Karnataka, AIR 2010 SC 1974,
 State of Bombay v. Kathi Kalu Oghad, AIR 1961SC1808
 Riteash v. state of UP
 Chandras swami v. State of gujarat & another
 Pulukuri kottaya v.king emperor
 State of Uttar Pradesh v. Deoman upadhyaya
 Nandini Satpati vs. P.L. Dani 1978(2) SCC 424

 Presumption of innocence, Standard of Proof & Reverse Burden of Proof

o Presumption of innocence
o Understanding the Standard of proof
o Reverse Burden of proof

Reading:
 Ashworth, A. , ‗ Four threats to the presumption of innocence ‘ ( 2005)
10(4) International Journal of Evidence and Proof 241 .
 Glover , R. , ‗ Regulatory offences and reverse burdens: the ―Licensing
Approach ‖ ‘ ( 2007 ) 71 (3)Journal of Criminal Law 259 .
 Dennis, ‗Reverse Onuses and the Presumption of Innocence: In Search of
Principle‘ [2005] Crim LR 901.
 Harmer, ‗The Presumption of Innocence and Reverse Burdens: A
Balancing Act‘ (2007) 66(1) CLJ 142.
 Ho , Hock Lai , ‗ The Presumption of Innocence as a Human Rights ‘ in
Roberts, P. and Hunter ,J. , Criminal Evidence and Human Rights:
 Reimagining Common Law Procedural Traditions( Oxford : Hart
Publishing, 2012), pp. 259–81.
 Bridge, N. , ‗ Presumptions and burdens ‘ ( 1949) 12 Modern Law Review
273
 Denning , A.T. , ‗ Presumptions and burdens ‘ ( 1945 ) 61 Law Quarterly
Review 379

Cases:
 Woolmington vs. Director of Public Prisons 1935 AC 462
 Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat AIR 1964 SC 1563
 Collector of Customs, Madras vs. D.Bhoormall AIR 1974 SC 859
 K.Veeraswamy Vs. Union of India 1991 SCC (Cri) 734
 Sodhi Transport Co. vs. State of U.P (1986) 2 SCC 486
 Shivaji vs. State of Maharashtra (1973) Cri.L.J. 1783
 State of West Bengal vs. Orilal Jaiswal (1994) 1 S.C.C. 73
 Brown vs. Stott 2001 (2) All ER 17 PC
 V. D. Jhingan Vs. State of Uttar Pradesh AIR 1966 SC 1762
 State of West Bengal v. Mir Mohammad Omar and Others, 2000 (8) SCC
382
 S.M.Multani v. State of Karnataka AIR 2001 SC 921
 Raman Kumar vs. State of Punjab (2009) 16 SCC 35
 Karan Singh vs. State of Haryana (2014) 5 SCC 73
 Rajeev Kumar v State of Haryana AIR 2014 SC 227
 Indrajit Sureshprasad Bind v. State of Gujarat, [(2013) 14 SCC 678
 Vipin Jaiswal Vs. State of A.P, AIR 2013 SC 1567
 Arulvelu Vs. State (2009) 10 SCC 206
 Rangammal vs. Kuppuswami AIR 2011 SC 2344

(Note: The suggested readings and case laws are not exhaustive. More readings and case
laws can be shared before the class discussion.)

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