4

Indian Evidence Act

GENERAL PRINCIPLES
Khurshid Ahmed vState of J&K, While analyzing the evidence on record the court
(2018) 7 SCC429 adopt ahyper technical approach. The court shoulnotd nor
the evidence on minor contradictions. should reect
Kameshwar Singh v State of Bihar, The maxim falus in uno, faksus in omnibus is not apphcabl.
(2018) 6 SCC 433 in India. It is the duty ot the court to
separate the grain fro
the chaff. It is the duty of the court to find the trurh \e
contradictions and omissionsin the evidence are to be
ignored if there is ring of truth in the testimony of witnes
Mahendran v State of TamilNadu, The Supreme Court, reiterated the well settled position that
(2019) 5 SCC 67 the maxim falsus in uno, falsus in omnibus has no application n
India. Court held that if the testimony of the witness is
found to be unreliable in respect of part of the statement.
then the other part of the statement cannot be made basis to
convict the accused.

PushpadeviM. Jatia v M.L. Wadhawan,
AIR 1987 SC 1748|
Abdul Razak v State
(1969) 2 SCC234
Kunav. State of Odisha, (2018) 1 SCC296
Municipal Corporation, Dellhi v JaganNath
Ashok Kumar, AIR 1987 SC 2316
Ganesh K. Gulve v State of Maharashtra,
AIR 2002 SC 3068
Evidence obtained through undesirable meanscan also be
taken into consideration provided it is relevant.
Discovery ofa fact with the help of tracker dog is sciennic
evidence.
The expression 'proved', disproved' and 'not proved' lars
down the standard of proof, namely, about the existence of
non-existence of circumstances from the point of view ot1
prudent man, so much so that while adopting the sad
measure
requrement as an appropiate concrete standard to
proof', full effect has to be given to the circumstances or
conditions of probability or improbability.
jusice
Arbitrators have to follow the principles of natural
but they are not bound by the law of evidence.
what part
Evidence is required to be appreciated to find out
of it represents the true and correct state of things.
function of separating grain from the chaff.

I62 Samarth Agrawal Books

 Indian Evidence Ad
Rarham : State of M.P,(2002) 7SCC 317| In civil cases a matter is said to be proved when the balance of
probablity suggests it but in criminal cases the court requires
the proof beyond reasonable doub.
RonnyEState of Maharashtra, (1998) 3SCC 625 Evidence obtainedin investigation of other crimes can also
4
Constitute good evidence in any other case provided it is
relevant.
Bain White Raven and Furness Junction, Law of evidence is a lex fori which governs the courts.
(1850)3 HLC1
Nadu, from the chaft.
: R.Javapal v. State of Tamil ltis the duty ofthe court to separate the grain
2019)8 SCC342 Where the chaff can be separated from grainit would be open
However, if the grain and
to the court to convict the accused.
version has to
chaff cannotbe separated then the prosecution
be rejected in toto.
than proot be
ofHP. The term 'reasonable doubt does not mean
: Rajesh Dhiman v State The evidence must
so clear that no possibility of errot exists.
(2020) 10SCC 740 doubts are removed
only be so conclusive that all reasonable
degree
from the mind of an ordinary person. It refers to the
it can make legally
of certainty required by the court before
accused.
valid determination of the guilt of the
from the
Failure to conduct DNA tests of samples taken
Sunil .State of M.P, (2017) 4 SCC 393 profiling, would not
accused or to prove the report ofDNA
case. Conviction
necessarily result in failure of prosecution
remaining evidences.
may still be possible based on the
test should be
Direction for identification of person by DNA
Kathi DavidRaju v State of A.P, on some material
based on satisfaction of police authoities
DN.A test can
(2019)7 SCC769 collected on basis of substantial investigation.
towards roving or fishing
not be requested or directed as a step
inqury.
under the Act is the
Supreme Court held that 'evidence"
degree of probability
Rajesh Yaday wState of U.P means, factor or material, lending a
existence of afact. It is an
2022 (3) SCALE 135 through alogical interence to the
substantive law:.
"Adjective Law" highlighting and aidingsubstantive, though
procedural nor
Thus, it is neither wholly
be felt.
trappings of both could
finition of the word "proved'"
It was also held that the de
mere interpretation, in ef
though gives an impression of a con
the entire .Act. This clause.
fect. is the heart and soul of
considering the "matters
sciouslyspeaks ofproving a fact by
degree of probability in
before it". The importance is to the matters be
consideration of the
provingafact through the
for a court to decipher is the
fore the court. What is required probability,
existence of fact and its proof by a degree of
influence.
through a logical
163
SamarthAgrawalBooks

Basanti v State of Himachal Pradesh,
(1987) 3SSC 227
R. v. Foster
(1834) 6C& P 325
G.
Vijayvardhan Rao
AIR 199% SC 2971
v. State of
Gentela Rao v State of Andhra
(1996) 6SCC 241
9 Sukhar v.State of U.P, (1999) 9SCC 507
I64
Reænt andLandnark Case Lass
It was further held that matterS are
tant material factors to prove afact. AI w
necessarg,
evidence concom
words, matterswould
"matters" but not vice versa. In other be
be temed as a genus of which evidence would cout
be a
Matters also add strength to the evidence
gavng spece
ammunition in the Court's sojourn
Thus,the definition of "matters" is deciphering andtheadeqtuaruteh
in
exhaustive, there
fore, much wider than that of evidence",
a caveat, as the court is not supposed to However, thete s
consider: a
which acquires the form of an evidence when it is barredmatter
law. Matters are required for a court to believe ein
the eXIStence
of a fact. As an exhaustive
interpretat1on has to be given to
the word matter", and for that
pupose, the defniton of he
expression of the words "means and incudes", meant to he
apphed for evidence, has to be imported to that of a"mae
as well. Thus, a matter might include
such of those which do
not fall within the definition of
Section 3,in the absence ot
any express bar.
RELEVANT FACTS
When shortly after murder, the person
described the absence of the deceased bysuspected
of murder
left the village, the court held saying that he had
that statement as part otns
same transactionand thus
relevant.
The witnesses had seen only
speeding vehicle and not
accident. The injured person explained him the the
accident. He was nature ot
allowed to give evidence of what the
deceased because it was part of rs
said
Andhra Pradesh, For a statement to be part of
gesta.
transaction, it must be
spontaneous and must be contemporaneous with the tact.
If thee
statement is made after the act is over and its maker has
had time for
reflection then it is not relevant.
Pradesh, The rule of res
gestae 1s an to general rle that
hearsay evidence is not exception the
certain statement admissble. The rationale in1 mak1ng
6 is on admissible or fact admissible under Secton
account ofthe
spontaneity and immediacy ofsuch
statements or facts in relation to the fact in
Section 6is an exception to general rule thatissue.
hearsay evidence
is not
admissible. For bringing evidence withinthe
provision of Section 6it must behearsay
established that the
contemporwhich
aneouswouldwith fact in issue and there
an interval d should notbe
allow fabrication.
Samarth Agtawal Books
 Indian Eidence At
Ram.Lochan . State of West Bengal,
AIR 1963 SC 1074
Nandu Singh vState of Madhya Pradesh
Now Chhatisgarh)
Criminal Appeal No.285 of 2022
25 Feb 2022
Ramanand (@ Nandlal Bhartiy
State of Uttar Pradesh
AIR 2022 SC5273
Pammiv Govt. of M.P,(1998) 6 SCC609
Jadunath Singh State of U.P
AIR 1971 SC 363
9 Abdul Waheed Khan . State of A.P.
(2002) 7SCC 175
Har NathSingh State of M.P,
AIR 1970SC 1619
the skeleton
Superimposed photogtaph of the deceased over
of human body was adnissible to
prove that skeleton was
that of the deceased.
substantial
Supreme Court held that in a case based on
case of
evidence, motive assumes great significance. The
motive.
Prosecution must not be discarded in absence of
absence of motive assumes
But, at the same time, complete
definitely weighs in
adifferent complexion and such absence
favour of the accused.
accused alone,
Supreme Court held that the conduct of the
the Evidence Act,
though may be relevant under Section 8of
and can be one of the
cannot form the basis of conviction
into consideration
Circumstances which the court may take
direct or indirect.
along with the other evidence on record,
compulsory. Failure
Holding test identificaion parade is not
prosecution case where the
to hold it is not fatal to the
the witness.
accused persons were previously known to
conducted
Itisdesirable that identification parade should be
soon after the atrest of the accused.
Police has to hold the identification parade for the purpose
are
of enabling the witnesses to identify the properies which
who
subject matter of the offence or to identify the persons
are concerned with it. Identification parade has following twin
objects:
1. To satisfy the investigating authorities that certain
persons not previously known to the witnesses were
involved in the crime;
2 Tofurnish the evidence to corroborate the testimony of
the witness before the court.

Surendra Narain v State of U.P,
AIR 1998 SC 3031
3 Malkhan Singh v State of M.P,
(2003) 5SCC 746
Holding ofidentification parade is not compulsory even when
the accused demands it. Prosecution is not bound to do so.
Identification parade is a weak sort of evidence. It is not a
substantive evidence. The failure to hold identification
parade would not make inadmissible the evidence of
jdentification in court.

Umesh Chandrav State of Uttarakhand, There cannot be repeated Test Identification Parades till such
time that the prosecution is successful in obtaining
SC- 2021],
identification of the accused. The Court observed that mere
Ct Appeal No. 802/2021
identifcation in the test identification parade cannot fom the
substantive basis for conviction unless there are other facts
and circumstances corroborating the identification.

Samarth Agrawal Books 165

 Laws
Recemt and Landmark Case

Supreme Court held that TIPs shouldi

Manojv State of Madhya Pradesh normally be
Criminal Appeal No. 248-250 of 2015 at the carliest possible time to eliminate the
being shownto witnesses be fore the
chance cofondacucutsee
20 May 2022 identification parade,
which might otherwise affectt such witnesses'
Theidentification in the course of a1TIP is
memory.
Rajesh v State of Haryana, intended
assurance to the identity of the accused. TIhe
(2020) SCCOnLine SC 900
finding to gn
cannot be bascd purely on the refusal of the
parade. accused
of
undergo an identification .Supreme Court
the following principles: SummariZe
1. The purpose of conducting a TIP is that
claim tohave seen the offender at the time ofthe persons who
occurrence identify them trom amongst the other
individuals without tutoring or aad from any source k.
identification parade, in other words, tests the mene
of the witnesses, in order for the prosecution to
determinewhether any or all of them can be cited a
eyewitness to the crime;
2. Identification parades belong to the stage of the
investigation of crimne and there is no provision whuc
compels the investigating agency to hold or confers a
right on the accused to claim a TIP:
3 Identification parades are governed in that context br
the provision of Section 162 of the CrPC;
4 A
TIP should ordinarily be conducted soon after the
atrest of the accused, so as to preclude a possibiliry ot
the accused being shown to the witnesses before if s
held;
5. Facts which estabish the identity of the accused persa
are treated to be relevant nder Section 9 of the Evxen
Act,
6
A TIP may lend corro boration to the identificaton ot
the witness in court, if so required;
7. As arule of prudence, the court would, generly
speaking, look for corroboration of the witness
the fomof
identification of the accused in court, in ofprudenct
earlier identification proceedings. The ruleconsidersit
is subject tothe exception whenthe court wimes
particular
safe to rely upon the evidence of a
without such,or other corroboration; evidence,the
8 Since a'TIP does not constitute substantive evidence
facto makethe
failure to hold it does not ipso
of identification inadmissible;

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 Indian Evidence Act
Chunthuram v State of Chhattisgarh,
(2020) 10 SCC 733
9 Gireesan Nairv State of Kerala
Criminal Appeal No. 1864-1865 of 2010
11 Nov, 2022
Sukhpal Singh v. State of Punjab,
(2019) 15 SCC 622
Jayantbhai BhenkarbhaivState of Gujarat,
(2002) 8SCC 165
Dudh Nath Pandeyv State of U.P.,
(1981) 2SCC166
Dasari Siva Prasad Reddy v Public Prosecutor,
High Court Andhra Pradesh, AIR 2004 SC 4383
5 Kehar Singh s Delhi Administration,
AIR 1980 SC 1883
Samarth Agrawal Books
The weight that is attached to such identification is a
matter to be determined by thc court in the circumstances
of that particular case;
10. The court in fact may, in the context and circumstances
of eachcase, determincwhether an adverse inference
should bec drawn against the accused for refusing to
participate in a TIP. However, the court would look for
corroborating material of a substantial nature before it
enters a finding in regard to the guilt of the accused.
Test identification evidence is not substantive evidence. It can
only be used for the purpose of corroboration. When
identifications are held in police presence, resultant
communications tantamount to statements made by
identifiers to a police officer in course ofinvestigation and
they fall within the ambit of Section 162 Ct.P.C.
Supreme Court held that it is a matter of great importance
both for the investigating agency and for the accused and a
fortiori for the proper administration of justice that a TIP is
held without avoidable and unreasonable delay after the
arrest of the accused. In cases where the witnesses have had
ample opportunity to see the accused before the
identification parade is held, it may adversely affect the trial.
The inability of the prosecution to establish motive in a case
of circumstantial evidence is not always fatal to the prosecution
case, held the Supreme Court.
Plea of alibi is arule ofevidence recognized in Section 11. The
burden ofproving commission of offence is on prosecution
and would not be lessened by mere fact that accused had
taken the plea of alibi. The plea of alitbi taken by accused
needs to be considered only when the burden on prosecution
has been discharged satisfactorily.
Plea of alibi postulates the physical impossibility of the
presence of accused at the scene of crime by reason of his
presence at another place.
Failure on part of accused to establish plea of alibi does not
help prosecution. Thus mere failre on part of accused to
establish alibi willnot lead to an inference that accused was
present at the scene of crime.
Only a prima facie case of conspiracy has to be made out to
bring Section 10 into operation.
167
 Case Laws
Reent andLandmark
Section 10has been enacted to make acts/
Badri Raiv State of Bihar, AlR 1958 SC 955
co-conspiratot admissible against the whole stabody
tementofs of
conspirators, because of the nature of the crime.
Sardul Singh State of Bombay, Underlying principle on which Section 10is basediis
AIR 1957 SC747 principal of agency. It confines the principal of the
criminal matters to the acts of the Conspirator agency in
period during which it can be said that the acts within the
were in
reference totheir common intention.

Mirza Akbar v King Emperot, Under Section 10 the words Commnon intention
when the sign1fy
a
AIR 1940PC 176 common intention existing at the time
said, done or written by one of tthem. thing
Things said, donewasor
witten while the conspiracy was on foot are relevant as
evidence of the common intention. Any statement,
or confession made after the common intention or
narrative
was no longer operating is not admissible under Section 10 consptac:
C.B.I. : VC. Shukla, AIR 1998 SC 1406 Ordinarily a person cannot be made responsible for the acs
of others, unless they have been instigated by him or done
with his knowledge or consent. Section 10 provides
exception to this rule by laying down that an overt act,
committed by one of the conspirators is sufficient on the
principles of agency.
Sardul Singh . State of Bombay, The principle underlying evidence under Section 10 is the
AIR 1957 SC 747 theory ofagency.
R.M. Malkani z State of Maharashtra, Tape recorded conversation is admissible provided that the
AIR 1973 SC157 conversation is relevant to the matters in issue and there is
identification of the voice and that the accuracy of the convet
sation is proved by eliminating the possibility of erasing the
tape record.
Rajesh Yadav v State of U.. The court can come to a concdusion on the existence ot aut
2022 (3) SCALE 135 by merely considering the matters before it, in forming n
based
opinion that it does exist. This belief of the court is
Alternatvel:
upon the assessment of the matters before it.
the court can consider the said existence as probablefromthe
perspective of a prudent man vho might act on the choice of
supposition that it exists. The question as to the said deci
the options is best left to the court to decide. The
beforeit.
sion might impinge upon the quality of the matters
ofthe
When the court wants to consider the second part br
fact
e ofa
definition clause instead ofbelieving the existence Sucha
itself, it is expected to take the role of a prudent man. riew
pointof
prudent man has to be understood from the into
transformni
of a conmon man. has to
Therefore, ajudge
I68
Samarth Agrawal Books
 Indian Evidence At
existence of a fact after consid
a prudent man and assess the
instead of a judge. It is
ering the matters through that lens
exercise can he resume his role
only after undertaking the said
case. The aforesaid provi
as a judge to proceed further in the
is concerned with the exist
s1on also indicates that thecourt
relevant, as against a whole
ence ofa fact both in issue and
the proof of a fact
testimony. Thus, the concentration is on
court can appred
for which a witness is required. Therefore, a
witness on a particular issue
ate and accept the testimony of a
focuses on an issue of fact
while rejecting it onothers since it
hasten to add, the evidence
to be proved. However, we may decide on the
matter for the court to
of a witness as whole is a
inclusive of the credibil
probability of provinga fact which is
issue is concluded or not is
ity of the witness. Whether an
also a court's domain.

RELEVANCY & ADMISSIBILIIY

'relevancy' and admissi
Ram Bihari Yadav v State of Bihar. The Supreme Court held that terms
interchangeable terms. Their
(1994) 4 SSC 517 blity' are not co-extensive or
evidence are
legal incidents are different. Al admissible
not admissible.
usually relevant, but all relevant evidence are
of a parti
Collector of Gorakhpur Palakdhari Singh Where a judge is in doubt as to the admissibility
favour of admis
(1890) ILR 12 All 1 cular piece ofevidence he should declare in
sibility rather than inadmissibility.
evidence and
There is a distinction between admissibility of
Sahoo v. State of U.P, AIR 1966 SC40 the double
the weight attached to it. The court must apply
test- First, whether the confession was perfectly voluntary
and second, if so whether it is true and trustworthy.
Objections regarding admissibility and proof of evidence is
Dhanpatv Sheo Ram, (2020) 16SCC 209
to be decided by the court at the final stage. Whenever an
objection is raised during evidence taking stage regarding the
admissibility of any material, trial court can make note of
such objection and decide it at the stage of final judgment.

EVIDENCE/APPRECIATION OF EVIDENCE
DIRECT / CIRCUMSTANTIAL
In acase based on circumstantial evidence motive assumes
ORishipal vState of Utarakhand,
great significance.
AIR 2013 SC 3641
296
Kuna v State of Orissa, (2018) 1 SCC
166 Absence of proving motive cannot be a ground to reject the
Anwar Ali v State of H,P, (2020) 10 SCC
prosecution case. However, if the case is based on
circumstantial evidence and the motive is missing then it is a
factor that will weigh in favour of accused.

Samarth Agrawal Books 169

 Case Las
Recnt and Landmark
Sometimes it is very d1fficult to get direct
State of UR Ravindra Prakash Mittal, circumstantial evidence. In such
AIR 1992 SC 2045
cases the courts rely on levidence. They
Ganpat Singh v State of M.P,
evidence fromthesurroundng Circumstances
Supreme Court has held that while
fihe pcasroNe de
of

(2017) 16 SCC 353

stantial evidence following points must be
apprecating CiTCUm
kept n mind:.
The circumstances from which the
1.
should be fully established.
concusion drawn
is

2.
Circumstances should be conchusive in na.
Al the facts so established should be
3.
cons1stent
with the hypothesis of guilt and inconsistent wedony
innocence.
The circumstances should, to a moral
4
certain1ty, exclude
the possibility of any person other than the
accused
The court should satisfy itselfthat various
Malaichamy v State of Tamil Nadu,
(2019) 17 SCC 568
circumstclearty;
the chain ofevidence must have been established ances in

chain iscompleted so as to rule out reasonable

Shivaji Chintappa Patil : State of Maharashtra, Though in case of direct evidence motive would not be
(2021) 5 SCC 626
Rajesh Yadav v State of U.R
2022 (3) SCALE 135
Rajesh Yadav E State of U.R
2022 (3) SCALE 135
Shahaja @Shahajan Ismail Mohd. Shaikh
State ofMaharashtra
Criminal Appeal No. 739 of 2017
14 July 2022
170
innocence of accused. likelihood of
relevant but in case of circumstantial evidence motive nlars
and important link to complete chain of circumstances.
Supreme Court held that the final report itself cannot be
termed asa substantive piece of evidenceas it is nothing båt
a collective opinion of the investigating officer. Its truth can
only be decided by the court.
Supreme Court held that the evidence of investigating officer
is required for corroboration and contradiction of the other
material witnesses as he is the one who linksand presents
them before the court. Even assuming that the investigang
officer has not deposed before the court or has not
cooperated sufficiently, an accused is not entitled for acquita
solely on that basis, when there are other incriminating
evidence available on record.
Supreme Court observed that the judicialy evolved p1ncples
for appreciation of ocular evidence in a criminal case can be
enumerated as under:
1. While appreciating the evidence ofa witness, the
approach must be whether the evidence of the witnes
Once that
read as a whole appears to have a ring oftruth. fo the
necessaryfor
impression is formed, it is undoubtedly keep
Court to scutinize the evidence more particularly
ing in view the deficiencies, drawbacks and
intfimities
Samarth Agrawal Books
 Indian Eidence At
and evaluate them
Ponted out in the evidence as a whole
tenor ofthe
to find out whether it is against the general
eather
evidence given by the witness and whether the
evaluation of the evidence is shaken as to render it un
worthy of belief.
If the Çourt before whom the witness gives evidence
gen
had the opportunity to form the opinion about the
eral tenor ofevidence given by the witness, the appellate
court which had not this benefit will have to attach due
weight to the apprecia tion of evidence by the trial court
formidable it
and unless there are easons weighty and
woud not be proper to reject the evidence on the ground
of minor variations or infirmities in the
matter of trivial

details.

3 When eye-witness is examined at length it is quite pos

sible for him to make some discrepancies. But courts
should bear in mind that it is only when discrepancies in
the evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence.
4 Minor discrepancies on trivial matters not touching the
core of the case, hyper technical approach by taking sen
tences tom out of context here or there from the evi
dence, attaching importance to some technical error com
mitted by the investigating officer not going to the root
of the matter would not ordinarily permit rejection of
the evidence as a whole.

5. Too serious a view to be adopted on mere variations

falling in the narration of an incident (either as between
the evidence of two witnesses or as between two state
ments of the same witness) is an unrealistic approach
for judicial scrutiny.
6. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an
incident. It is not as if a video tape is replayed on the
mental screen.

7 Ordinarily it so happens that a witness is overtaken by

events. The witness could not have anticipated the oc
currence which so often has an element of surpise. The
mental faculties therefore cannot be expected to be at
tuned to absorb the details.

Samarth Agrawal Books 171


ReantandLandmark
MunnaLal vs State ofUttar Pradesh
Criminal Appeal No. 490 of 2017
24 January 2023
172
Case Lawr
differ
8. The powers of observation
son. What one may notice,
another from perSOn
may not. An
t
emboss its
or movement might image on
mind whereas it might go unnoticed one
he parpersnif
On
anothet.
9 By and large people cannot accurately recall a
tion and reproduce the very words used1by themot
by them. They can only recall the
convehearr
main purport of the
conversation. It is unrealistic to expect av
human tape recorder. witness to bea
10. In regard to exact time of an incident. or
the
ionof an occurrence, usually, people make time
the. dhur
mates by guess work on the spur of the
time of interrogation. And one cannot t moment at the
expect
make very precise or reliable estimates in suchpenple n
Again, itdepends on the time-sense of individal.., matter
varies from person to person.
11. Ordinarily a witness cannot be expected to recaln .
rately the sequence of events which take place in n
Succession or in a short time span. A witness is habie .
get confused, or mixed up when interrogated later on
12. Awitness, though wholly truthful, is liable to be oer.
awed by the court atmosphere and the piercing cros
examination by counsel and out of nervousness mir im
facts, get confused regarding sequence of events, or il
up details from imagination on the spur of the mo
ment. The subconscious mind of the witness some
times so operates on account of the fear of lookng
foolish or being disbelieved though the witness 1s gr
ing a truthful and honest account of the occurence wt
nessed by him.
13. A former statement though seemingy inconsistent wtn
the evidence need not necessarily be sufficient to amou
to contradiction. Unless the former statement has tm
potency to discredit the later statement, even if the later
statement is at variance with the fomer to some exeu
would not be helpful to contradict that witnes.
Supreme Court held that oraltestimony may be classified
into three categories, viz.: () Wholy reliable; (ü) Whol The
unrelable.
liable; (ui) Neither wholly reliable nor wholly for
difficulty
first two category of cases may not pose:serious
Samarth Agrawal Books
 Indian Evidence At
the court in afriving at its concusion(s). However, in the third
Category of cases,the court has to be circumspect and look tor
cortoboration of any matetial particulars by reliable testimony,
direct or circumstantial, as a requirement of the rule of
prudence.
Court also held that though mere defects in the investigative
process by itself cannot constitute ground for acquittal, it is
the legal obligation of the Court to examine carefully in each
case the ptosecution evidence de hots the lapses committed
by the Investigating Oficer to find out whether the evidence
brought on record is at allreliable and whether such lapses
affect the object of finding out the truth.
ADMISSION &CONFESSION
Admission
. Bharat Singh wBhagirathi, AIR 1966 SC 405
Supreme Court held that admission is substantive evidence
of the fact admitted and admission duly proved are admis
sible irrespective of whether the party making them appears
as a witness of not.

Hanumant Narain v State of M.P,
1975AIR 1083 SC
? Bharat Singhv Bhagirath, AIR 1966 SC405
3 CBI . V.C. Shukia, (1998) 3 SCC 410
Admission cannot be used in parts. It can be either used as a
whole or rejected as a whole.
An admission is a substantive piece of evidence of the fact
admitted and the admission duly proved are admissible
evidence.
An admission is not an evidence against others. An admission
may become evidence against others only if it amounts to a
confession. It may then be used as an evidence under Section
10or under Section 30 as confession of co-accused.

Biswanath Prasad vDwarka Prasad, There is a distinction between party who is the author of the
AIR 1974SC117 prior statement and a witness who is examined and is sought
to be discredited by use of his prior statement. In first case
the admission by aparty is a substantive evidence if it fulls
the requirements of Section 21. In the second case the pior
statement is used to discredit the credibility of the witness
and does not become substantive evidence.

Confession
Pakla Narayan Swami , Emperor Theterm 'confession' was de fined by Lord Atkin. The
AIR 1939 PC 47 definition given by Privy Council was approved by Indian
Palvinder KaurvState of Punjab Supreme Court in Palvinder Kaur'scase. The court held that
AIR 1952SC 354 'a confession must either admit in terms the offence, or at any
rate substantially all the t.is which constitute the offence'.
Samarth Agrawal Books 173
 Recent and Landark Case laws
made by
Abdul Rashid v Srate of Bihat, The court held that confession accused
too

OnsSupsean
AIR 2001 SC 2422 tendent of Excise under provisions of Bihar and
inadmissible
Excise Act held to be because Excise
held to be police officer within meaning of Section 25 officer Wa
Aghnoo Nagesiav State ofBihat, Supreme Court held that the statementt that the
AIR-1966 SC119 had committed the offence or that he had hidden accused
the
admissiblei obyecn
admissible. What is
at some place are not
that portion of the statement that reveals the
about the place of hiding of the object. information
Mohd. Inavatullah . State of Maharashtra, Supreme Court held that it is essentialIto prove that
AIR 1976 SC 483 was discovered from aplace of hiding, If the
the obiect
an open place, there are chances
objectis yingin
that others may know
and it will be difficult to prove that object was aboutat
instance of information provided by the accused. discovere d
Supreme Court held that Section 27 is an exception to
Section 24 to 26.
Nishikant Jha v State of Bihat, Supreme Court held that there is nothing wrong in relving
AIR 1952 SC 1033 on apart of the confessional statement and rejecting the ree.
When there is enough evidence to reject the exculpatory part.
the court may rely on inculpatory part.
> Pyare Lalv State of Rajasthan, Supreme Court held that a retracted confession may form
AIR 1963 SC 1094 the basis of conviction if the court is satisfied that it was true
and voluntarily made. Thereby as a matter of law, corrobo
ration is not necessary if court is convinced about truthful.
ness and voluntary nature of confession; however prudence
requires that retracted confession should not be acted upon
without corroboration.
State of Punjab . Gurdeep Singh, Extra judicial confession is admissible in evidence and the
(1999) 7 SCC 714 Court in appropriate cases, can rely on it and convict the
accused.
State of Karnatakav. P Ravi Kumnar,
Extra-judicial confesion is aweak piece of evidence and it
(2018) 9 SCC614 cannot form the basis for conviction, unless supported by
other substantive evidence.
Ashish Jain v Makrand Singh, The Supreme Court observed that there is no evidentiary
(2019) 3 SCC 770 value to an involuntary confessional statement made under
undue pressure and compulsion from the investigating
officer, even when it leads to the recovery of material objec
in relation to a crime.
Ram Bharorse Sharma v Mahant Ram A statement which is of the nature of an admission on
Swaroop, (2001) 9 SCC 471 mixed question of fact and law cannot be treated as an
admission under Section 17 because only an admission of
fact binds the maker and not an admission on question
law.

174 Samarth Agrawal Books

 Indian Endence Act
SatrucharlaVijaya Ram Raju v
Nimmaka Where:aperson's self serving statement subsequently
JaraRaju,(2006) 1 SCC 212
I
become adverse to his interest., it may be proved against him
as an admission.
State(.CTofr Delhi) v Navjot Sindhu,
600 Confessions are considered highly reliable because no rational
2005) 11SCC
person would make an admission against himself unless
prompted by his conscious to tell the truth.
Pahinder.Kaur v State of Punjab,
2 Confession must either be accepted as awhole or rejected as a
AIR 1952SC354 whole.
Sate of Punjab v. Gurdeep Singh, Extra judicial confession is admissible in evidence and the
(1999) 7SCC714 court can rely on it as a substantive evidence and convict the
accused.
Mohd. Inayatullah v. State of Maharashtra.
Supreme Court laid down the following propositions w.rt.
AIR 1976 SC 483 Section 27
1 There should be a discovery of fact in consequence of
the information received from a person accused of an
offence.
2 Discovery of such fact must be deposed to.
3. At the time of receipt of the information the accused
must be in the custody of police.
4. Only so much of the information as it relates to the fact
discovered is admissible.

Javaseelan v State of Tamil Nadu,
AIR 2009 SC 1901
3 Bal Kishan . State of Mahatashtra,
AIR 1981 SC 379
Raj Kumar Karwal v Union of India,
AIR 1991 SC 45
Kehar Singhy State. AIR 1988 SC 1883
Confessions must be accepted or rejected as a whole and the
court is not competent to accept only the inculpatory part
while rejecting the exculpatory part. But in a situation where
the exculpatory part is not only inherently improbable but is
contradicted by other evidence, the court can accept the
inculpatorypart.
The primary test for determining whether an officer is a police
officer or not is whether the officer concemed (under Special
Act) has been conferred all the powers of investigation
including the power to initiate prosecution by submitting
charge-sheet.
Important feature of police officer is that he must not only
have the power ofinvestigation but also to ile report against
the accused. Unless he has the power to investigate and fle
charge sheet he cannot be called apolice officer within the
meaning of Section 25.
Confession recorded by Magistrate will be admissible in
evidence only ifit is recorded in compliance with the
provisions of Section 164 CrPC. If there is any irregularity in
the recording the confession will be admissible only if the
irregularities are curable under Section 463 C:PC.

Samarth Agrawal Books 175

 Lay
Reent andLandmark Case

Dipakbhai Jagdishchandra Patel State of Section 25 declares that no confession

shall be proved as against person accused
made to poicee
Gujarat, (2019) 16 SCC 547 of any ofice
confession may still be used as
admission ofence.
under!
of the Act
162 of CrPC.
but subject to bar of
admissibilty underSectioSenchon2
Devi Lal v State of Rajas than, Extra judicial confcssion is on the face
eofit
weak
(2019) 19 SCC 447 court is reluctant in the absence of achain of
circumstances to rely on it for the purpose
evidence
cogent and
of
conviction. As a matter of caution1it is
advisablerecorfording a
record.court
look for corroboration with other evidence on io
Manoharan v State. (2020)5 SCC 782 On conjoint reading of the confessional l scheme

Evidencecourtcompts sActin,gin
Section 164 Cr.P.C and1Section 24 of Indian
case of retraction of confessional I statement, the
the rule ofprudence and reduces the probative adopt
confessionary statements and seek
value of such
corroborating evidence
DISCOVERY STATEMENTS
Panduranga Kallu Patil v State of Maharashta Supreme Court held that Section 27 is an exception to
(2002) 2 SCC 490 Section 25 and 26.
Scate of UPv Deoman Upadhyay Constitutional validity of Section 27 was upheld.
AIR 1960 SC 1125

Ramanand @Nandlal Bharti v Supreme Court held that law expects the investigating officer
State ofUttar Pradesh to draw the discovery panchnama as
AIR 2022 SC 5273 contemplated under
Section 27 of the Evidence Act in two parts i.e. first part of
the panchnama for the purpose of Section 27 of the Evidence
Actis always drawn at the police station in the presence of the
independent witnesses so as to lend credence that a particular
statement was made by the accused expressing his
willingness on his own free will and volition to point out the
place where the weapon of offence or any other article used n
the commission of the offence had been hidden. Once the
first part of the panchnama is completed thereafter the poáce
party along with the accused and the two independent
witnesses (panch witnesses) would proceed to the particar
place as may be led by the accused. If from that particular
place anything like the weapon of offence or blood-stained
clothes or any other article is discovered then that part of e
entire process would formthe second parttofthe panchnamu
afarudheen & Ors. KState of Kerala
Supreme Court held that the onus to prove, that thefact
(2022) 8 SCC440
discovered from the information is obtained from the that
reason
accused, is on the prosecution. This is also for the
un
the infomation has been obtained while the accusedisstll
the custody of the police. The Court will have to be cons
176
Samarth Agrawal Books
 Indian Evidence Act
of the witness's credibility and the othcr evidence produced
when dealing with a recovery undet Section 27 of the
Evidence Act.
Section 27 incorporates the theory of "confirmation by
subsequent facts" acilitatinga link tothe chain of events. It is
for the prosecution to provethat the information received
from the accused is relatable to the fact discovered. The object
1s to utilize it for the purpose of recovery as it ultimately
touches upon the issue pertaining to the discovery of a new
fact through the information furnished by the accused.
Therefore, Section 27 is an exception to Sections 24 to 26
meant for a specific purpose and thus be construed as a
proviso.
Boby vs State of Kerala Supreme Court held that Section 27 of the Evidence
Caminal Appeal No. 1439 of 2009
Act requires that the fact discovered embraces the place from
12Jan,2023
whichthe object is produced and the knowledge of the
accused as tothis, and the information given must relate
distinctly to the said fact. The information as to past user, or
the past history, of the object produced is not related to its
discovery.
" Md. Dastagiri . State, AIR 1960SC756 Under Section 27 it is not necessary that when the statement
was made then he should be accused, it is sufficient if he is an
accused when such statement is sought to be proved in court.
* State of H.. Jeet Singh, AIR 1999 SC 1293 Statement under Section 27 does not become inadmissible
merely because the recovery was made from any place which is
open or accessible to others. Object can be concealed in places
which are open and accessible to others. The crucial question
is that whether the object was ordinarily visible to others, if
not then it is immaterial that whether the place was accessible
to others of not.
Pulukuri Kottaya v Emperos, AIR 1947 PC 67 Fact discovered' means the place from which the object is
produced and the knowledge of the accused as to this. The
information permitted to be admissible in evidence is
confined to that portion of information which distinctly
relate the fact discovered.

Digambar Vaishnav v State of Chhattisgarh,
(2019) 4SCC 522
Somasundaram v State, (2020) 7 SCC722
Under Section 27 discovery of every fact is not admissible
only discovery of relevant fact is admissible.
A statemnent under Section 27 of the Evidence Act is not only
about the thing as such which is discovered consequent upoa
the statement but the knowledge attributable to the person
who makes the statement about the matter discovered based
on the statement.

Samarth Agrawal Books 177

 Laws
Rexont and LandmarkCCae
prosecution must
Supreme Court heldthat stop
Venkatesh @Chandra v State of Karnataka recordedd he
Criminal Appeal No. 1476 1477of 2018
19 Apal 2022
ofgettingtheentire
statement
part of the statement
which leadstoothe
rat
dis
h er than
cover y
pntra; ctthear
inthis process, a
contesston of an accuscd which of facts a,
1s
hit by theprinciples of
andsuch kind of statements
Evidence Act finds its
may have a direct othterecoerd
place on
influence and prejudice the mind of the Cour tendency to
It was also held bythe Court thatt the
voluntary
ofthe appellants recorded on a DVD which was statements
played n
Court is in the nature of aaconfession to a Police
Officer
and
is completely hit bythe principles of EEvidence, Act. If at al
the accused were desirous of making confessions, the
Investigating Machinery could have facilitated
confession by producing them before aMagistrate for recording of
appropriate action in terms of Section 164 offthe
Code. Any
departure from that course 1s not acceptable and cannot h
recognized and taken on record as evidence.

DYING DECLARATION
Uka Ram v. State of Rajasthan, No person will die with alie on his lips. The Supreme Conr
AIR 2001 SC 1814 held that asense of impending death produces in man's
mind the same feeling as that of a virtuous man under oath
and chances of falsehood are totally nulfied.
Pakla Narayan SwamivEmperor The court held that the statement made by the deceased to his
AIR 1939 PC47 wife that he was going to the accused's place to collect moner
from him was admissible under Section 32(1).
Kaushal RaovState of Bombay, (1958) SCR 552 There is neither rule oflaw nor prudence
which states that
dying declaration cannot form the sole basis of conviction
unless it is corroborated by independent evidence. Atrue and
voluntary declaration needs no cotroboration.
3 Sampat Babso Kale v State of Maharashtra
Supreme Court held that though conviction can solely be
(2019) 4 SCC739 based on dying declaration, corroborative evidence may be
required when there is doubt as to whether the victim was
a ft state of mind to make
the statement.
3 Queen Empress v Abdullah
It was held that dying declaration made by signs and nods
(1885) 7 A11 385 FB also relevant.
Suresh Chandra Jana. State of W.B.,
There is no absolute rule that the dying declaration cannot
(2017) 16 SCC 466 form the sole basis of conviction unless it is corroborated.
Kule requiringcorroboration is merely a rule of prudens
Bhadragiri Venkata Raviy Public Prosecutor, If the dying declaration is foundto be voluntary, relableand
High Court of Andhra Pradesh, made in a fit mental condition, it cana be relied uponwithout
2013 (4) Supreme 450 any corroboration. In case of any it would
not
be safe to rely upon discrepancies,!
them.
178 Samarth Agrawal Books
 Indian Eidence Act
based
rUP Veerpal convictionsolcBy
Supreme Court hcld thatthere can be: a Court
SCC741 without cortoboration if the
2022)4 upon the dying declaration
declaration is true and voluntary it
1S $atisfied that the dying corroboration.
without
Can base its conviction on it.
Stateor
fMaharashra, declaration,it
SanjayK If there are apparent discrepanciesin two dying
2007)9SCC148
Would be unsafe to convict the accused.
Ramachand Reddy Public Prosecutor, andthen died it can
When the person lodged FLR.
injured
104
1976)3SCC be held as relevant dying declaration.
y
Kaushal Rao State of Bombay, AIR 1958 SC 22| There is no absolute rule of lawthat a dying declaration
conviction unless corroborated. It is
cannot be a sole basis of
than any other evidence. It
not aweaker kind ofevidence
evidence.
stands on a same footing as any other
true and consistent
Kusa v State
of Orissa, AIR 1980SC 559 When adying declaration is believed to be
conviction even if there is no
Itcan be relied upon for
corroboration.
and any adequate
4
Laxman v. State of. Maharasthra, Dying Declaration can be oral or in writing
otherwise will
2019) 11SCC 512 method of communication, by words of
and positive.
suffice provided that indication are definite
each one of them has
4 Kashmira Devi v. State of Uttarakhand. In case of multiple dying declarations
as to its
(2020) 11 SCC343 to be considered independently on its own merit
of the
evidentiary value and one cannot be rejected because
each of them
content of another. The court has to consider
which of them reflects
in its correct perspective and satisfy itself
the true state of affairs.

: Purshottam Choprav State (NCTof Delhi), Ifa particular statement satisfies all the criteria of dying
(2020) 11 SCC 489 declaration it cannot be discarded merely because it has not
been recorded by Magistrate or police officer did not obtain
attestation by any person present at the time of making the
statement.

Mere absence of doctor's certification as to the fitness of the

: Surendra Bangali vState of Jharkhand, declarant's state of mind would not ipso facto render the
SC- 2021]
Cr Appeal No. 1078/2010 dying declaration unacceptable.
Adying declaration cannot be disbelieved merely because
" Satpal v. State of Haryana,
(2021) 5 SCC598 parents and relatives of the deceased were present in the hospital
while recording it.
Nagabhushan vState of Karnataka, If there are muliple dying declarations then it is the duty of
(2021) 5SCC 222 the court to consider each dying declaration separately on its
own merit as to its evidentiary value. One dying declaration
cannot be rejected because of the content of the other. Court
has to consider each of them in its correct perspective and
satisfy itself as to which one of them reflects the true state of
affairs.

Samarth Agrawal Books 179

 180 AIR
Surendran Makhan
2022SC
3793
AIR
AIR S. GI407Abdul
(1972) J Krishna
and Bal
Gopala 2022
1996 Odhers,
Rahman SC Singh
SC
Reddy
AIR Das 2322 State v.
2184 v.
v Agrawal
1989 State
. State of
State Kerala
AlL of
of Haryana
of 133 v
Andhra Mysore,
Radha

Pradesh, Devi
EVIDENCE
EXPERT Recent
Agrawal
Samarth
Books
andLandmark
dent tore, Supreme
qualification
experience.
of was an the Theevidence acqured Antransaction'
witness admitted regardless cause could death
purpose admittedSection Supreme which an of any found inconsistencies by therereliable thdeclaration; e wtocoulCourt It
and
evidence.
it
expert, gold
opinion expert
of not of 32(1) ofcase other
individual
been dcasegiving
there
stance its
However, tutoring/duress/prompting
the
are sole
deceasedwhetherwhethcr by thusd
Case
teliable not
is
Court though in which does the should for death thshould
e Court the higher nultiple and basifsor it Laws
question is relating of
which the proved.
be evidence, to are this trustworthy, was has the
safeCourts of is notabilityperson a individual, Evidencedeclarations rianyseto offi as
fit been dying seen be
corroboration. held be nature
must
directly held circumstancesbenot
has is c er
betvween
them, dying to
to do professional
he abased
possess.
to asuch made wi th recording whether it physi cal ly
rely
not that had was
to comeRather, very the the like recorded
on
express who the part
evidence of or Act
that
Court suspicion declarations no declaration that
upon
consider an noheld expertise The by death. of
relate th e is
carefully and voluntarily a the
expert formal to the
the into that is worth condition Magistrate corroboration conviction has and
it an hi s th e not test is wherein , The C
without goldsmith be evidence training circumstances is
proceeding, question the to required the mentally
evidence
it relevant opinion test a that fo rreliance. been a is
as quai and being appears
chargecharge
admissibility and the about that dying and dying person true is
conchusive
of and
the take a can made requred
seeking fications.onlHiys experience. as which in to is
declaration theredeclaration there declaration and to and
as an sought that pertaining
relating evidence scrutinize not be is at
is and
a the to expertexperience to to truthfulness. relhed
decisionsupported
as required.In if under make reliable,
it time a
indep and weak opnion
the an of tothat case, be
is are is to
no found th e examine
puntyo ordnary
is the be the th at to under
to the cIrCUm upon. recorded can any when ,as
u y sucn death to be case n to
o has the the the facts
In be the
by a5
 Indian Eidence Ad
Darshan.Singh v. State of Haryana, Supreme Court held that where there is inconssstency
364 wascaused,
AIR 1997SC
between eye witness on the pointt howthe injuryy
the evidence of doctor cannot override the unimpeachable
testimony of eye witnes.
Fakhruddin . State of M.P, AIR 1967 SC 1326 evidence
ltwas held that handwriting may be proved by the
this
of a witness in whose pesence the writing was done and
would be direct evidence and tfit is available then evidence of
any other kind is tendered unnecessary.
Latesh v Stateeof Maharash tra,(2018) 3SCC 66 Oral evidence takes precedence over medical evidence, unless
the medical evidence completely refutes any possibility of such
0Ccurrence.

Ashish, Jain wMakrand Singh,
(2019)3 SCC770
State of H.P r Jai Laland ochers,
(1999) 7 SCC 280
Murari Lalv State of M.P, AIR 1980 SC 531
Vilayat Khan v State, AIR 1962 SC 122
absence
The Supreme Court observed that merely due to the
of a magisterial order authorizing the police to obtain
fingerprints of the accused, it cannot be held that the
fingerprint evidence was illegally obtained.
an
In order to bting the evidence of a witness as that of
expert it has to be shown that he has made a special study of
words
the subject or acquired a special experience or in other
he is skilled and has an adequate knowiedge of the subject.
There is no rule of law or prudence which says that opinion
corroborated.
of the expert must never be acted upon unless
In appropriate cases corroboration must be soughr.
Expert opinion is not to be belheved if it is in conflict with
direct evidence.

Musheer Khanv State of M.P,
AIR 2010 SC 762
3 M. Siddiq v.Suresh Das, (2020) 1SCC 1
The evidence of afingerpint expert is not substantive
evidence. It can only be used to corroborate some items of
substantive evidence which are on record.
The weight to be ascribed to the expert evidence is based on
the nature of the science on which it is based. Where the
science in question possesses essential ingredients of
verifiability and objective analysis, expert evidence would to
that extent require some deference. The more developed and
moe perfect ascience, the less is the chance of ncomeCt opiion
and vce versa.

3 CBI wMohd. Parvez Abdul Kayuum, When there is contradiction between ocular and medical
(2019) 12 SCC 1 evidence, ocular evidence has greater evidentiary value. It is
only in acase where medical evidence makes ocular evidence
completely improbable, such ocular evidence has to be
discarded but not otherwise.

Samarth Agrawal Books 181

 Laws
Reent andLandmark Case
between medicallevidence
Palani v State of Tamil Nadu, Ifthere is variance and ocular
evidence,the ocular evidenceshould be grven
(2020) 16 SCC 401
evidence is basically opinionative. The
cannot be thrown out onthc ground of
pinconsIrmaSctye.Nncy.eyMeewdtniaels,
testimnony of
Supreme Court held thatthe:signatures and
45,han4dwnting
Manorama Naik v State of Odisha
Sections o
Criminal Appeal No. 423/2022 the person can also be proved under 7 and73of
14 March 2022 the Indian Evidence Act, 1872 and opinion of the
i notthe only way or mode of
handwriting expert tis
the signature and handwriting of a person. provding
DOCUMENTARY & ORAL EVIDENCE

PGopalakrishnan @Dileep . State of Supreme Court held that the contents of a memory card in
Kerala and others, relation to a crime amount to a document' and not
a'materal
2019 Supreme (SC) 1306 object.
State of Maharashtra v. Praful B. Desai, Evidence can be produced by way of electronic records. Thie
(2003) 4 SCC 601 would include video conferencing,
Roop Kumar v Mohan Thedani, Section 91 and 92 are based on recognition of the jural act of
(2003) 6SCC 595 integration in case of written instruments and applies even
on a third party seeking to establish a contract.
3 Pruthiviraj Jayantibhai Vanoly Dinesh Ocular evidence is considered the best evidence unless there
Dayabhai Vala, are reasons to doubt it. The ocular evidence may be disbelieved
(SC, 2021) only when there is agross contradiction between medical
evidence and oral evidence, and the mnedical evidence makes
the ocular testimony improbable and rules out all possibilir
of ocular evidence being true.

3 R Janakiraman v State, (2006) 1SCC 697 Section 92 applies when aparty to the instrument seeks to
disprove its terms. It does not apply when anyone incluany
a party to the instrument seelks to establish that instrumeat
itself is a sham and fictitious.

Arjun Panditrao Khotkar vKailash Kushanrao The certificate required under Section 65B(4) is acond1non
Gorantyal and Ors. precedent to the admissibility of evidence by way of electron
(2020) 7SCC 1 record. \Where the requisite certificate has been applied for
from the person or the authority concerned, and the persou
or authority either refuses to give such certificate, or does 1
replyto such demand, the party : asking for such certiicatecan
of
apply to the court forrits production under thej provisions
the Evidence Act, CPC or C+PC. The court also heldthatthe
required certificate under Section 65B(4) is unnecessaryifthe
original document itself is produced.

182 Samarth Agrawal Books

 Indian Evidence Act
Mohd. Arif @Ashfag v. State (NCT Of Delh)
R.P (Crl) 286-287 of 2012
3 November, 2022
3 Jagmai Singh v KaramjitSingh,
(2020) 5SCC 178
3 Dhanpat w. Sheo Ram, (2020) 16 SCC 209
Mohinder Singh Jaswant Kaut,
(2020) 20 SCC 456
Samarth AgrawalBooks
the
Atwo Judge Bench of Supreme Court had referred
question inview of the conflict between ShafhiMohammad
KState of Himachal Pradeshand Anvar PV PK.
Bashcer. It was held in Shahi MohammadvState of
Himachal Pradesh that, a party who is not in possession of
device from which the clectronic document is produced, cannot
the
be required to produce certificate under Section 65B (4) of
EvidenceAct. In Anvar PV PK. Basheer, it was observed
that an clectronic record by way of secondary evidence shall
not be admitted in evidence unless the requirements under
Section 65-B are satisfied.
The bench overruled the decision in the case Shafi
Mohammad v State of Himachal Pradesh.
Supreme Court observed that the decision in Anvar P V vs.
PK. Basheer &Ors., (2014) 10SCC 473 as clarified in Arfun
Panditrao Khotkar vs. Kailash Kushanrao Gorantyal &
Ors., (2020) 7 SCC1 is the law declared on Section 65B of the
Evidence Act.
In Arjun Panditrao Khotkar vs Kailash Kushanrao
Gorantyal,(2020) 7 SCC1, the court has held that: We may
reiterate, therefore, that the certificate required under Section
65B(4) is a condition precedent to the admissibility of
evidence by way of electronic record, as correctly held in Anvar
PV vS. PK. Basheer &Ors., (2014) 10SCC473, and
incorrectly "clarified" in Shafhi Mohammadv. State of
Himachal Pradesh, (2018) 2SCC 801. Oral evidence in the
place of such certificate cannot possibly suffice as Section
65B(4) is amandatory requirement of the law. Section 65B(4)
of the Evidence Act clearly states that secondary evidence is
admissible only if lead in the manner stated and not other
wise. To hold otherwise would render Section 65B (4) otiose.
Under the Evidence Act facts have to be established by pimary
evidence and secondary evidence is only an exception to the
rule for which foundational facts have to be established to
account for the existence of primary evidence.
Under Section 68 of the Evidence Act at least one of the
attesting witnesses is requred to be examined to prove his
attestation and the attestation by another witness and its
execution by the testator.
When the carbon copy is prepared in the same process as
oiginal document and the carbon copies are signed by both
the parties, it assunmes the character of orng1nal document.
183
 Care Laws
Rernt andLandmark
Evidence. At is founded
lgbal Basithu N. Subbalakshmi
Section 90ofthe
extremely d1fficult
\on neceSsity and
convenience because it is
(2021) 2 SCC 718 leadlevidenceto prove
tand sometime
notpossibleto
or execution of old
order to obviate such
difficultiess or
handnting,
documentsafter lapse of sigatn
tlh1ittiyesttoyears Ih
improbabi
execution of an old document, Section 90 has been prr e
does:away with
incorporatedin Evidence Act. It
strict ule cÁ
proof of private document. Presumption ot
may be raised if the document is produced
fromgenuipronenes
per
sous
tody.
Anglo American Metallurgical Coal Py. Ltd. v a ambiguity inhent
Patent ambiguity must be understoodlas
MMTCLd., in the words and incapable of being dispelled,, either by ans
legal rules of construction. It is basedlon the
(2021) 3SCC308 principle that
intention of the parties should be construed not by vague
evidence oftheir intention but by expression themselves
latent ambiguity arises when theewords inthe
instrument are
clear. but their application to the circumstances is doubrái
Kavita Kanwarv Pamela Mehta, Ordinarily, awill has to be proved like any other document
(2021) 11 SCC 209 The test to be applied is the usual test of satisfaction of he
prudent man and proof ofmathematical accuracy is not to be
insisted upon. If the person challenging the willalleges faba
cation, fraud, undue influence, coercion etc in regad to the
execution of the will, such pleas have to be proved but eren
in the absence of such plea, the very circumstances surround
ing the execution of the will may give rise to doubt or whether
the will indeed was executed by testator and whether the tes
tator was acting on his own free will.

PRESUMPTION & BURDEN OF PROOF

State of A.P v Vasudeva Rao, (2004) 9SCC 319
Sethu wPalani,
(1926) 50 MLJ 453
3 Gautam Kundu v. State of W.B,
AIR 1993 SC 2295
Smt Kanti Deviv. Poshi Ram, AIR 2001 SC 2226
Apresumption is an inference of fact drawn from other
known or proved facts. Itmeans arule of law that courts and
judges shall draw aparticular inference from aparticular ht
The presumption under Section 112 appies with equal bone
even where the child is bom within afew days after martak
Supreme Court held that only way to rebut presumpho
under Section 112 is by proving non-access andlbiomedical
evidences like blood test, DNA test etc. cannottbeallowed
Itwas held that conclusive proof of legitimacy Oncerused
under Section 112 cannot even be rebutted by : agenuine DNA
test. Ifthe husband and wife were living togetherduringthe
time of conception but DNA tests reveals that child w
bom to the husband the conclusiveness in law would reman
un rebuted.

I84 Samarth Agrawal Books

 Indian Eidence At
Nand Lal Wasudeo Badwaick v Lata
NandlalBadwaick,
(2014) 4 SCC(Cri) 65
Alamgir v. State of Assanm, (2002) 10 SCC 277
Rabindra Kumar Dey v State of Orissa.
(1976) 4 SCC233
Sanjay Dutt v State, (1994) 5SCC 410
Dauvaram Nirmalkar v. State of Chhattisgarh
AIR 2022 SC 3620
9 PNarsimha Rao v State of AndhraPradesh,
AIR 2001 SC 318
9 Navaneethakrishnan State, (2018) 16 SCC 161
Shailendra Rajdev PasvanvState of Gujarat,
(2020) 14 SCC 750
Pratap Singh . Shiv Ram, (2020) 11SCC 242
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Supreme Court opined that concusive proof under Section 112
1s final and in general cannot be rebutted by any other fact.
However DNAtesting is an accurate science and once DNA
test report is available, it can rebut the presumption of
Section 112.
Presumption under Section 113B does not stand automati
cally rebutted merely because the accused had been acquitted
under Section 302 Indian Penal Code.
The Evidence Act does not contemplate that accused should
prove his case with same strictness and vigour as prosecution.
It is sufficient if he proves his case under Section 105 by the
standard of preponderance of probabilities.
When the presumption of innocence is reversed by statutory
provision, the burden should not be as heavy as that of
prosecution.
Prosecution must establish all ingredients of the offence with
which the accused is charged, but this burden should not be
mixed with the burden on the accused of proving that the
case falls within an exception. However, to discharge this
burden the accused may rely upon the case of the prosecution
and the evidence adduced by the prosecution in the court.
Section 114 ofEvidence Act gives absolute discretion to the
court to presume the existence of certain facts in manners
specified therein. While inferring existence of a fact the court
is required to apply process ofintelligent reasoning what a
prudent man would do under similar circumstance.
It is a settled legal position that law presumes that it is the
person, who was last seen with the deceased, would have
killed the deceased. The burden to prove that the accused has
not committed the crime lies on the accused. However, such
evidence alone cannot discharge the burden of establishing
the guilt of the accused beyond the reasonable doubt and it
requires corroboration.
Last seen evidence may be relied upon when the lapse of time
between the point when the accused and deceased were seen
together and when the deceased was dead ought to be so
minimal so as to exclude the possibility of any intervening
event involving the death at the hands of some other person.
Apresumption is not in itself evidence but only makes a
prima facie case for party in whose favour it exists. The rles of
presumption are deduced from enlightened human
knowledge and experience and are drawn from the connection,
relation and coincidence of facts and circumstances.
185
 Reent andLandmark Can Laws
M.Siddiq v Suresh Das, (2020) 1SCC 1
Gurjit Singh v State of Punjab,
(2020) 14 SCC 264
Nand Ram v jagdish Prasad, (2020) 9 SCC 393
Pauv. State of Kerala, (2020) 3 SCC 115
3 Arvind Singh v State of Maharashra,
Cr. Appeal No. 640-641 /2016
(SC 2021)
3 Nagendra Sah v. State of Bihar,
(2021) 10 SCC 275
186
principle that title
Section 110 is based on the
possession. Thatis why the provision postulates
fol otwshat
a person is shown to
bein possession andlaa
person is the owner, the lawg
question: ariwhere
ses as
to whether that
the individual
Casts the burden
of disproving ownership on who affirm tha
the owner.
the person in possession is not
In order to attact the applicability
committed
of(Section
suicide
113-4 it
rnust
woman
be proved that the
date ofher marriage and
within
a
period
of sevenyears fromthe
his relatives subjected her to cruelty. The husband
presumpüon is
or
not
mandatory but only permissive. Before:ea
presumption
drawn court shall have regard to other circumstances iin a
is
The expression other circumstances of the case' used in case.
Section 113-Asuggests the need to 1reach acause and effect
relationshipbetweenthe cruelty and the suicide for the
of raising apresumption. purpose
Doctrine of tenant estoppels under Section 116 continues+x
operate even after termination of tenancy. It debars tenants
from disputing the lessor's title without first openly and
actually surrendering the possession and restoring it to lessor
Lessee who continues in possession even after determination
oflease without any assent of lessor by his mere continuance
in possession is deemed to acknowledge both the landlor':
title ad his liability to pay mesné profits for use and occupation
of property.
The burden of proving that the case falls within exceptions
under Section 300 IPC is on the accused. Even without
adducing any evidence it may be possible for the accused to
discharge the said burden with reference to the materials
appearingby virtue of prosecutionevidence which includes
cross examination of prosecution witnesses. The testis based
on preponderance of probabilities.
Section 106 of Indian Evidence Act cannot be applied to
undermine the well established rule of law that burden ot
proofis on prosecution to establish the case. Facts'espealr
within the knowledge of accused means that it would be
impossible or extremely difficult for the prosecution to
establish such facts but accused can prove them without
difficulty or inconvenience.
Section 106 ofthe Evidence Act constitutes an
exceptiou
Section 101 of the Act. Section 106 will apply to those cses
where the prosecution has succeeded in establishing the f
from whicha reasonable inference can be drawn regurdngut
existence of certain other facts which are within the spe
knowledge of the accused.
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