Brief history of evidence law in India:

In British India the presidency courts by virtue of a royal charter establish in Bombay,
Madras and Calcutta were following English rules of the law of evidence. In mofussil
courts, outside the presidency towns, there were no definite rules relating to law of
evidence. The courts enjoyed unfettered liberty in the matter of admission of evidence.
The entire administration of justice in the mofussil courts in the absence of any definite
rules regard law of evidence was in total chaos.

There was a dire necessary for the codification of the rules of law evidence. In 1835 the
first attempt was made to codify the rules of evidence by passing the Act, 1835.
Between 1835 and 1853 about eleven enactments were passed dealing with the law of
evidence. But all these enactments were found inadequate. In the year 1868 a
commission was set up under the chairmanship of sir Henry Mayne he submitted the
draft but it was found unsuitable to Indian conditions. Later in the year 1870 this task
of codification of the rules of law of evidence was entrusted to sir James Fitz James
Stephen. Stephen submitted his draft and it was referred to the select committee and
also to High Courts and members of Bar to elicit the opinion, and, after gathering
opinion, the draft was placed before the legislature and it was enacted. And after all
“The evidence Act ” came in to force on 1st September, 1872.

Prior to Independence there was as many as 600 princely States in India, which were
not within the jurisdiction of British system of justice. Each of these states had its own
rules of law of evidence. But by and large followed the Indian evidence Act 1872. After
independence there was merger of princely states into the Indian Union. Both the
substantive as well procedural laws have since been made uniformly applicable to all
states, whether British province or native States. So much so, the law of evidence is
now applicable to all states constituting the Union of India 1.

1
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 Common Law and Civil Law system

Common law is generally uncodified. This means that there is no comprehensive

compilation of legal rules and statutes. While common law does rely on some scattered
statutes, which are legislative decisions, it is largely based on precedent, meaning the
judicial decisions that have already been made in similar cases. These precedents are
maintained over time through the records of the courts as well as historically
documented in collections of case law known as yearbooks and reports. The precedents
to be applied in the decision of each new case are determined by the presiding judge.
As a result, judges have an enormous role in shaping American and British law.
Common law functions as an adversarial system, a contest between two opposing
parties before a judge who moderates. A jury of ordinary people without legal training
decides on the facts of the case. The judge then determines the appropriate sentence
based on the jury’s verdict2.

Civil Law, in contrast, is codified. Countries with civil law systems have
comprehensive, continuously updated legal codes that specify all matters capable of
being brought before a court, the applicable procedure, and the appropriate punishment
for each offense. Such codes distinguish between different categories of law:
substantive law establishes which acts are subject to criminal or civil prosecution,
procedural law establishes how to determine whether a particular action constitutes a
criminal act, and penal law establishes the appropriate penalty. In a civil law system,
the judge’s role is to establish the facts of the case and to apply the provisions of the
applicable code. Though the judge often brings the formal charges, investigates the
matter, and decides on the case, he or she works within a framework established by a
comprehensive, codified set of laws. The judge’s decision is consequently less crucial
in shaping civil law than the decisions of legislators and legal scholars who draft and
interpret the codes3.

2
https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html
3
https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html
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 Comparison of Common Law and Civil Law system

SN Feature 1 Common law system Civil law system

1. Written Not always Always
constitution
2. Judicial Binding on lower courts/ Not binding on 3rd parties;
decisions smaller bench/ Binding on however, administrative and
third party constitutional court decisions on
laws and regulations binding on all
3. Writings of Having little importance Significant influence in some civil
legal law jurisdictions
scholars
4. Freedom of Extensive – only a few More limited – a number of
contract provisions implied by law into provisions implied by law into
contractual relationship contractual relationship
5. Countries1 The United States, England, Japan, Germany, France, Spain,
India, Canada etc. China etc.
6. Role of Makes rulings; sets precedent; Chief investigator; makes rulings,
judges1 referee between lawyers. usually non-binding to 3rd parties.
Judges decide matters of law In a civil law system, the judge’s
and most judges rarely inquire role is to establish the facts of the
extensively into matters case and to apply the provisions of
before them, instead relying the applicable code. Though the
on arguments presented by the judge often brings the formal charge
parties.
7. Sources of 1. Constitution 2. Legislation 1. Constitution (not in the UK) 2.
Law – statutes and subsidiary Legislation – Statutes and
legislation 3. Custom 4. subsidiary legislation 3. Judicial
International Law 5. [Noto precedent – common law and equity
bene: It may be argued that 4. Custom 5. Convention 6.
judicial precedents and International Law
conventions also function
within Continental systems,
but they are not generally
recognized.
8. Type of Adversarial. Lawyers ask Inquisitorial. Judges, not lawyers,
argument questions of witnesses, ask questions and demand evidence.
and role of demand production of Lawyers present arguments based
lawyers evidence, and present cases on the evidence the court finds.
based on the evidence they
have gathered.
9. Evidence Widely understood to be a Evidence demands are within the
Taking necessary part of the litigants’ sovereign inquisitorial function of
effective pursuit or defense of the court — not within the lawyers’
a claim. The litigants and their role. As such, “discovery” by
lawyers undertake foreign attorneys is dimly viewed,
responsibility to give and can even lead to criminal
evidence to prove their claim. sanctions where the court’s role is
usurped.
3
Important countries and law system therein4:

SN. Country Law system Mixed Historical root

name component
1. India Mixed Common based on English common law
law/Muslim/Cu
stomary
2. China Mixed Civil based on civil law system, derived
law/Customary from Soviet and continental civil
code legal principles
3. France Civil law civil law system with indigenous
concepts
4. Israel Mixed Civil mixture of English common law,
law/Common British Mandate regulations, and, in
law/Jewish/Mus personal matters, Jewish, Christian,
lim and Muslim legal systems
5. Japan Mixed Civil modeled after European civil law
law/Customary systems with English-American
influence
6. Nepal Mixed Common based on Hindu legal concepts and
law/Customary English common law
7. Pakistan Mixed Muslim/Comm based on English common law with
on law provisions to accommodate
Pakistan's status as an Islamic state
8. Russia Civil law based on civil law system

9. United Common federal court system based on

States law English common law, each state
has its own unique legal system, of
which all but one (Louisiana,
which is still influenced by the
Napoleonic Code) is based on
English common law, judicial
review of legislative acts
10. United Common based on common law tradition
Kingdo law with early Roman and modern
m continental influences, has
nonbinding judicial review of Acts
of Parliament under the Human
Rights Act of 1998

4
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 Jury Trials in India: Rise and Demise
The system of jury trials in India was introduced by the British Empire. With the
development of the East India Company empire in India, the jury system was
implemented inside a dual system of courts: In Presidency Towns (Calcutta, Madras,
Bombay), there were Crown Courts and in criminal cases juries had to judge British
and European people (as a privilege) and in some cases Indian people; and in the
territories outside the Presidency Towns (called "moffussil"), there were Company
Courts (composed with Company officials) without jury to judge most of the cases
implying indigenous people.
After the Crown Government of India (Raj) adopted the Indian Penal Code (1860) and
the Indian Code of Criminal Procedure (1861, amended in 1872, 1882, 1898), the
criminal jury was obligatory only in the High Courts of the Presidency Towns;
elsewhere, it was optional and rarely used.
The jury found no place in the 1950 Indian Constitution, and it was ignored in many
Indian states. The Law Commission recommended its abolition in 1958 in its 14th
Report. Jury trials were abolished in India by a very discrete process during the 1960s,
finishing with the 1973 Code of Criminal Procedure, which is still in force today.
It has been argued that the 8:1 acquittal of Kawas Nanavati in K. M. Nanavati vs. State
of Maharashtra5, which was overturned by higher courts on the grounds that the jury
was misled by the presiding judge and were susceptible to media and public influence,
was the reason. The presiding judge misleading the jury wasn't the reason for abolition
of jury trials. Since the Nanavati case was extensively reported in the media, it was felt
that the jury was influenced by the publicity.
Most common law jurisdictions (Israel is an exception) have some form of jury trial
and several civil law jurisdictions too. Notice the time-line of the Nanavati case - crime
committed in 1959 and eventual decision in 1961. Today, such a time-line for
adjudication is impossible. The backlog is too large and pace too slow. There are
justifiable reasons for skepticism about trial by media and influence of publicity. (For
Nanavati, it was mostly the magazine "Blitz".)
However, there is one point that doesn't figure in discussions of pros and cons of jury
trials vis-a-vis bench trials. There are several things that can be done to reduce backlog
and ensure speedy trials, but one problem is absence of continuous trials. Since jury
trials involve getting a bunch of people together for a finite time, it is inevitable that
trials are continuous. It is no coincidence that there is correlation between scrapping of
jury trials and prolonging of cases. (Japan introduced jury trials as recently as 2004.)
There are ways of ensuring juries aren't unduly influenced, with adequate safeguards.
Since no one has figured out a sensible way of ensuring continuous trials,
notwithstanding its mention in agendas of judicial reform, should we ask whether that
1960 decision of abolition of jury trials was a mistake?6
1. Advantages and Disadvantages
Both the jury system and the bench system have their pros and cons. It is important to
look at the benefits and drawbacks of each of these systems. Since trial by judges might
be beneficial in one case while, trial by jury might beneficial in another.
a. The Jury System

5
1962 A.I.R. 605
6
Bibek Debroy, Nanavati and jury trials, Indian Express Mon Dec 21 2009, last accessed on
22/05/2016 athttp://archive.indianexpress.com/news/nanavati-and-jury-trials/557344/
5
The advantages of the jury system cannot be ignored.
Firstly, the evidence presented needs to convince 12 different jurors for each case. This
helps introduce 12 new perspectives to the case making it more decisive. Secondly, it
reduces the effect of creating the criminal-judge nexus. It is hard for criminals to create
a nexus with the jury members since members are picked at random from the district.
Thirdly, it ensures societal participation in the judicial system.
Fourthly, the jury system is democratic. The verdict given by the jury is made through
a democratic vote.
Finally, this prevents lawyer-judge nexus. The random selection of jurors is to prevent
lawyers from creating an advantageous nexus which influences his arguments.
While the jury system has advantages, it is not improper to say that the justice system
in India is not sufficiently mature to allow for an impartial jury. This is largely the
reason that the jury system did not find mention in the 1950 Constitution of India. An
oft repeated statement by Gandhi explains the omission -
“I have known jury’s finding prisoners guilty in the face of no evidence. We must not
slavishly copy all that is British.”
The biggest disadvantage came to light after KM Nanawati v. The State of Maharashtra.
It was seen that the jury was often biased because it based its decision on popular media
notion which, could completely deter the notion of a fair trial. This was because the
jury consists mostly of people who are not related to the legal system. In the Nanawati
case, the jury wrongfully acquitted the plaintiff because of media and public support in
favour of Nanawati.
Another disadvantage of the jury system is that they are influenced more by sentiments
and prejudices rather than law. While the judges ask the jury members to act impartially
and impersonally, this is rarely the case. It rarely tends to apply the law and is
emotionally swayed. The jury system is also a very slow process. The selection of jurors
tends to take a long time.
b. The Judge System
The judge system or bench system is currently being followed in India. The judge
system has various merits which help the Indian courts decide cases effectively. Firstly,
the judge system is supposed to be speedier than a jury trial. Unlike jury trial, there
does not have to be a selection procedure for each case. Judges are appointed by the
state to decide the cases. Secondly, judges have years of training and experience. A
judge is an expert both in law and in working out the truth. Thirdly, judges because of
years spent gathering legal knowledge can solve complex issues more effectively.
Finally, the bench system is cost effective. Since the bench system does not require the
lengthy process of a witness interview, impartial jury selection and cross-examination
the cost borne by the parties are less.
However, the bench system is not without its disadvantages. Firstly, there are chances
of lawyer-judge nexus being established. If a lawyer makes a nexus with a judge during
the trial of a case that nexus will certainly be useful to that lawyer in future cases that
comes up before the judge. Secondly, judges can be very objective while deciding a
case which, leads to a harsh decision. Finally, a judge only trial is disadvantageous from
the defendant’s perspective in a criminal case. In a jury trial for a criminal case to be
proved beyond a reasonable doubt, there needs to be a unanimous vote. Even if the
defendant convinces one of the jurors to vote against the conviction, he is not held
guilty. In the bench system, however, if the majority votes for a conviction then the
defendant is held guilty.

6
 BEYOND REASONABLE DOUBT

Introduction:
The maxim that the prosecution must prove its case beyond reasonable doubt is a rule
of caution laid down by the Courts of Law in respect of assessing the evidence in
criminal cases 7 . Proof beyond reasonable doubt does not mean proof beyond the
shadow of a doubt. The degree is well settled. It need not reach certainty, but it must
carry a high degree of probability. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong
against a man as to leave only a remote possibility in his favour, which can be dismissed
with the sentence but not in the least probable, the case is proved beyond reasonable
doubt. All that the principle enjoins is a reasonable skepticism, not an obdurate
persistence in disbelief. It does not demand from the judge a resolute and impenetrable
incredulity. He is never required to close his mind to the truth8.

Meaning of the phrase “Reasonable doubt”:

It is this doubt which occurs to a reasonable man, has legal recognition in the field of
criminal disputes. It is something different from moral conviction and it is also different
from a suspicion. It is the result of a process of keen examination of the entire material
on record by 'a prudent man'. There is a difference between a flimsy or fantastic plea
which is to be rejected altogether. But a reasonable though incompletely proved plea
which casts a genuine doubt on the prosecution version indirectly succeeds. The doubt
which the law contemplates is certainly not that of a weak or unduly vacillating ,
capricious, indolent, drowsy or confused mind. It must be the doubt of the prudent man
who assumed to possess the capacity to "separate the chaff from the grain". It is the
doubt of a reasonable, astute and alert mind arrived at after due application of mind to
every relevant circumstances of the case appearing from the evidence. It is not a doubt
which occurs to a wavering mind9.

Degree of proof in beyond reasonable doubt:

Lord Denning, J. in Miller v. Minister of Pensions10, while examining the degree of
proof required in criminal cases stated:
"That degree is well-settled. It need not reach certainty but it must reach a high
degree of probability. Proof beyond reasonable doubt does not mean proof
beyond the shadow of a doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course of justice. If the evidence is
so strong against a man as to leave only a remote possibility in his favour which
can be dismissed with the sentence "of course, it is possible but not in the least
probable", the case is proved beyond reasonable doubt."
"All that the principle enjoins is a reasonable scepticism, not an obdurate persistence
in disbelief. It does not demand from the Judge a resolute and impenetrable incredulity.
He is never required to close his mind to the truth11."

7 Vijayee Singh And ors v. State of Uttar Pradesh 1990 AIR 1459, 1990 SCR (2) 573
8
Miller v. Ministers of Pensions (1947) 2 All E.R. 372
9 Vijayee Singh And Ors vs State Of Uttar Pradesh 1990 AIR 1459, 1990 SCR (2) 573
10 [1947] 2 All ER 373
11Observed in another context regarding the concept of benefit of reasonable doubt
Lord Du Paraq, cited in Vijayee Singh And Ors vs State Of Uttar Pradesh 1990 AIR 1459.
7
Presumption of innocence and beyond reasonable doubt:

The doctrine of presumption of innocence casts the burden on the prosecution to prove
its case against the accused persons beyond reasonable doubt. It is trite that doubt to
the guilt of the accused should be substantial and not flimsy or fanciful. This is best
stated in the words of the Supreme Court in, State of U.P. v. Krishna Gopal12 wherein
the court had observed as follows:

A person has, no doubt, a profound right not to be convicted of an offence which

is not established by the evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is, however, no absolute
standard. What degree of probability amounts to proof is an exercise particular
to each case. Referring to the interdependence of evidence and the confirmation
of one piece of evidence by another. The one piece of evidence may confirm the
other. Doubts would be called reasonable if they are free from a zest for
abstract speculation. Law cannot afford any favorite other than the truth. To
constitute reasonable doubt, it must be free from an over-emotional response.
Doubts must be actual and substantial doubts as to the guilt of the accused
person arising from the evidence, or from the lack of it, as opposed to mere
vague apprehensions. A reasonable doubt is not an imaginary, trivial or a
merely possible doubt; but a fair doubt based upon reason and common sense.
It must grow out of the evidence in the case.

Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts
or lingering suspicions and thereby destroy social defence. Justice cannot be made
sterile on the plea that it is better to let a hundred guilty escape than punish an
innocent13. If a case is proved perfectly, it is argued that it is artificial; if a case has
some flaws, inevitable because human beings are prone to err, it is argued that it is too
imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare
innocent from being punished, many guilty persons must be allowed to escape.

Contours of the phrase “beyond reasonable doubt”:

Generally, these terms are regularly used by us therefore this is worth to discuss the
contours of the expressions “proof beyond reasonable doubt” and “entitlement of an
accused person to benefit of doubt.” In this regard Justice O. Chinnappa Reddy, in K.
Gopal Reddy v. State of AP 14 wherein reiterating the fundamental principle of
criminal jurisprudence that the accused is entitled to the benefit of any reasonable
doubt, the court placing reliance on the afore noticed enunciation by Lord Denning

12
(1988) 4 SCC 302
13 Devender Pal Singh v. State of NCT of Delhi (2002) 5 SCC 234
14
(1979) 1 SCC 355
8
elaborated the principles thus:

To entitle an accused person to the benefit of a doubt arising from the possibility
of a duality of views, the possible view in favour of the accused must be as nearly
reasonably probable as that against him. If the preponderance of probability is
all one way, a bare possibility of another view will not entitle the accused to
claim the benefit of any doubt. It is, therefore, essential that any view of the
evidence in favour of the accused must be reasonable even as any doubt, the
benefit of which an accused person may claim, must be reasonable. A
reasonable doubt, it has been remarked, does not mean some light, airy,
insubstantial doubt that may flit through the minds of any of us about almost
anything at some time or other; it does not mean a doubt begotten by sympathy
out of reluctance to convict; it means a real doubt, a doubt founded upon
reasons [Salmon, J. in his charge to the jury in R. v. Fantle reported in 1959
Criminal Law Review 584]...

In Inder Singh & Anr. v. State (Delhi Administration)15, V. R. Krishna Iyer, J. wrote
that:

Credibility of testimony, oral and circumstantial, depends considerably on a

judicial evaluation of the totality, not isolated scrutiny... Proof beyond
reasonable doubt is a guideline, not a fetish and guilty man cannot get away
with it because truth suffers some infirmity when projected through human
processes. Judicial quest for perfect proof often accounts for police
presentation of fool-proof concoction. Why fake up? Because the court asks for
manufacture to make truth look? No, we must be realistic.

The concepts of probability, and the degrees of it, cannot obviously be expressed in
terms of units to be mathematically enumerated as to how many of such units constitute
proof beyond reasonable doubt. There is an unmistakable subjective element in the
evaluation of the degrees of probability and the quantum of proof. Forensic probabilit y
must, in the last analysis, rest on a robust common sense and, ultimately, on the trained
intuitions of the Judge. While the protection given by the criminal process to the
accused persons is not to be eroded, at the same time, uninformed legitimisation of
trivialities would make a mockery of administration of criminal justice 16 . Accused
persons are entitled to get benefit of doubt only when the prosecution fails to prove its
case. The proof beyond reasonable doubt is a guiding factor and not an absolute rule17.

15
(1978) 4 SCC 161
16 Vishal Yadav vs State Of U.P. 2014 Delhi High Court
17 Vishal Yadav vs State Of U.P. 2014 Delhi High Court
9
Conclusion:
Letting the guilty escape is not doing justice according to law18. Prosecution is not
required to meet any and every hypothesis put forward by the accused.19 If a case is
proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable
because human beings are prone to err, it is argued that it is too imperfect. One wonders
whether in the meticulous hypersensitivity to eliminate a rare innocent from being
punished, many guilty persons must be allowed to escape. Proof beyond reasonable
doubt is a guideline, not a fetish20. 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. ... Both are public duties....21 Vague hunches cannot take the place of
judicial evaluation22. Proof beyond reasonable doubt is a guideline, not a fetish23.

18
Gurbachan Singh v. Satpal Singh AIR 1990 SC 209
19
See State of U.P. v. Ashok Kumar Srivastava AIR 1992 SC 840
20
Inder Singh v. State (Delhi Admn AIR 1978 SC 1091
21
Per Viscount Simon in Stirland v. Director of Public Prosecution [1944 AC 315 quoted in State of U.P.
v. Anil Singh AIR 1988 SC 1998.
22
Vishal Yadav vs State Of U.P. 2014 Delhi High Court
23
Inder Singh v. State (Delhi Admn.) AIR 1978 SC 1091
10
 BASICS OF LAW OF EVIDENCE

INTRODUCTION
The object of every judicial investigation is the enforcement of a right or liability that
depends on certain facts. The law of evidence can be called the system of rules whereby
the questions of fact in a particular case can be ascertained. It is basically a procedural
law but it has shades of substantive law. For example, the law of estoppel can defeat a
man’ right. Law of Evidence is one of the fundamental subjects of law and therefore
we must study it in detail and depth.
The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that mean
‘to show clearly, to discover, to ascertain or to prove.’

OBJECT OF THE STUDY OF THE LAW OF EVIDENCE

Evidence refers to anything that is necessary to prove a certain fact. Thus, Evidence is
a means of proof. Facts have to be proved before the relevant laws and its provisions
can be applied. It is evidence that leads to authentication of facts and in the process,
helps in rationalizing an opinion of the judicial authorities.
Further, the law of evidence helps prevent long drawn inquiries and prevents admission
of excess evidence than needed.
TYPES OF EVIDENCE
1. Direct
2. Circumstantial
3.Hearsay
4. Documentary
5. Oral
6. Scientific
7. Real
8. Digital
Law related to evidence and proof is nothing but rules that must be observed in
particular situations before certain forums.
If the other party in a legal proceeding admits guilt, all is well. The other party can also
deny the allegations in the plaint and the existence of certain facts may be called into
question. Then the parties or their witnesses have to give evidence in the court of law
so that the court may decide whether the facts exist or not. Interpretation of agreed facts
is a rarity and in most cases the existence or nonexistence of facts as to be shown and
therefore, the law of evidence plays a very important role.
Illustration : X has entered into a contract with Y to sell his house for an amount of
INR 10,000. In case of a breach of contract of contract by either X or Y, a Court of Law
cannot decide the rights and liabilities unless the existence of such a contract is proved.

ARE SUCH RULES NECESSARY

The rules and regulations of evidence are essential. One view says that the court has to
arrive at the truth and hear all there is to a case and then arrive at a just conclusion. And
accordingly, the law of evidence poses a hindrance with its qualifications and requisites.
Other view says that without rules it will take ages to resolve any case and it is too
much discretion at the hands of men who will remain unchecked. The Indian Evidence
Act, 1872 maintains the right proportion of rules that are not too pedantic or too
discretionary. Rules of the law of evidence have to be strong so that the foundation of
11
the administration of justice remains intact and strong. It can also be said that the Act
seeks to enact a correct and uniform rule to followed and prevent indiscipline in
admitting evidence.

THE LAW OF EVIDENCE IS THE LEX FORI

Law of evidence is part of the law of procedure. That is why it is called the lex fori or
the law of the court or forum. It means that Indian courts know and apply only the
Indian law of evidence. Thus, the competency of a witness, whether a fact is proved or
not is determined by the law of the country where the question arose, where the remedy
is sought to be enforced and where the court sits to enforce it.
For example, if a legal proceeding is going on in Sri Lanka and evidence is taken in
India for the said proceeding whether by commission or by assistance of courts in India,
the law which will be applied during such recording of evidence will Sri Lankan Law
of Evidence.

THE LAW OF EVIDENCE IS THE SAME IN CIVIL AND CRIMINAL

PROCEEDINGS
A civil case of will and murder will have the same law of evidence. For example, the
date of death has to be clarified or confirmed for the will to come into existence and a
murder date has to be set for proceeding further with the criminal investigations too.
There are, however, certain sections that apply exclusively to civil matters and others
that apply exclusively to criminal cases. In civil cases, mere preponderance of evidence
may be enough but in criminal cases the prosecution must prove its case beyond
reasonable doubt and leave the other alternatives presented very unlikely and highly
suspect.

BASIC PRINCIPLES OF EVIDENCE

The Act deals with Relevancy of Facts, Mode of Proof and Production and Effect of
Evidence. The following principles are called the basic principles and The exceptions
to the above principles, the exact application has been set out very clearly in the Act:
1. Evidence must be confined to the matters in issue.
2. Hearsay evidence may not be admitted.
3. The best evidence must be given in all cases.
4. All facts having rational probative value are admissible in evidence, unless
excluded by a positive rule of paramount importance.

12
 res gestae
Res gestae (Latin "things done") is a term found in substantive and procedural
American jurisprudence and English law. In American substantive law, it refers to the
start-to-end period of a felony. Res gestae has no exact English translation. A literal
translation means “something deliberately undertaken or done”. Few areas of the
common law of hearsay are in greater dispute than the doctrine of res gestae24.
The doctrine of res gestae stands incorporated in Section 6 which reads:

“Relevancy of facts forming part of same transaction- Facts, which though not in
issue, or so connected with a fact in issue as to form part of the same transaction, are
relevant, whether they occurred at the same time and place or at different times and
places”.

This principle is an exception to the hearsay rule. Manifestly, facts which may be
proved as part of res gestae must be facts other than those in issue. Furthermore, these
facts must form part of that very transaction and be thus connected with the facts in
issue. Evidence regarding facts in issue disclosed by a transaction can be given under
Section 5 whereas evidence regarding other facts which must be connected with the
facts in issue in a manner so as to form part of the same transaction can be given under
Section 625.

The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res
gestae is based on the propositions that the human utterance is both a fact and a means
of communication and that human action may be so interwoven with words that the
significance of the action cannot be understood without the correlative words and the
dissociation of the words from the action would impede the discovery of the truth. It is
essential that the words sought to be proved by hearsay should be, if not absolutely
contemporaneous (occurring in the same period of time) with the action or event, at
least so clearly associated with it that they are part of the thing being done, and so an
item or part of the real evidence and not merely a reported statement26.

It is well settled by now that a statement in order to be a part of res gestae, must have
been made substantially contemporaneously with the act or immediately after it so that
there is no opportunity for reflection or fabrication. It is in this background that the
interval between the act and the statement assumes significance. In no case, the
statement should be in the nature of a mere declaration or narration of a past event27.

Now, what is a transaction adverted to in Section 6? The word transaction has not
been defined but it can be equated to a crime so far as a criminal case is concerned.
Each essential ingredient of that crime will be a fact in issue and those facts which are
connected with the fact in issue forming part of the same transaction would be relevant
as res gestae.

24
Edmund M. Morgan, Hearsay – What Is It?, 12 Wash. L. Rev. 1, 4 (1937) , p. 132 (describing phrase
res gestae as “inexact and indefinite in its scope”).
25
Indru vs State Of Himachal Pradesh (H P 1989)
26
Dhal Singh Dewangan vs State Of Chhattisgarh 2016 SC
27
Indru vs State Of Himachal Pradesh (H P 1989)

13
Section 6 of the Act has an exception to the general rule whereunder hearsay evidence
becomes admissible. But as for bringing such hearsay evidence within the ambit of
Section 6, what is required to be established is that it must be almost contemporaneous
with the acts and there could not be an interval which would allow fabrication. In other
words, the statements said to be admitted as forming part of res gestae must have been
made contemporaneously with the act or immediately thereafter28.

Illustration 'A' to Section 6 makes it clear. It reads thus:

(a) A is accused of the murder of B by beating him. Whatever was said or done by A
or B or the by-standers at the beating, or so shortly before or after it as to form part of
the transaction, is a relevant fact.

Lord Normand in Teper v. R describes the principle of res-gestae as “Words to be

admissible as words explaining an act to form part of res-gestae. Their utterance must
if not absolutely contemporaneous with action, be at least so closely associated with it
in time, place and circumstances that they are part of same thing being done.”

Difference between English and Indian Law

Ratten v. Queen (Australian case) [1971]

A lady called police and that call was recorded. Recording contained “Get me police
please…help me….my life is in danger…..the sound of gun-shot.” Police asked the
address but before telling complete address she died. When police reached to the place
of incident, the dead body of the lady was found and husband holding the gun. In his
defence the husband (accused) pleaded that he was cleaning the gun and gun-shot went
off accidentally not intentionally.
In this case the call recording was treated as facts forming the part of the same
transaction negating the defence that gun-shot went off accidentally.

Sukhar v. State of UP (1999) SC

The witness heard the sound of gun-fire, he rushed to that direction. When he reached
the spot, he saw a person who told to witness “Mr. X attacked on me.” After 6 months
the victim died.
It was held that
1. words told just after happening of the incident are part of the same transaction.
2. Spontaneous or simultaneous utterance or what a person states during an occurrence in
respect of occurrence are the part of the same transaction.
3. Res-gestae should not be exclamation or it should not be fabricated.
4. Statements must be about a fact not about a notion or opinion.

In Kashmira Singh v. State AIR 1965 J and K 37: 1965 (1) Cri LJ 554,
one girl Fatma Begum was going to the school when the accused was stated to have
stopped his car and started teasing her and using obscene words. The prosecution
neither proved the First Information Report nor examined the informant (Fatima
Begum). The only evidence from which it sought support was the statement of one

28
Indru vs State of Himachal Pradesh (H P 1989)

14
Hajee Ahad Dar who had deposed that when he reached the spot the girl had told him
that the accused had used the obscene words towards her which annoyed her. The
question which fell for determination was whether the testimony of Haji Ahad Dar was
admissibly under Sections 6 and 8, Evidence Act. After adverting to the language of
Section 6, the court was of the view that the Section pre-supposed the existence of a
fact in issue in order to prove other facts connecting with it as corroborating piece of
evidence being of the view that the fact in issue in that case was whether the accused
had used insulting words against Fatima Begum and that there was no independent
evidence to prove it, it was held that the evidence of Hajee Ahad Dar, who had
admittedly not seen the actual occurrence, could not form part of res gestae so as to be
admissible under Section 6, Evidence Act.

In Ram Das Cheedi v. State 1972 Cri LJ 57 (All)

a minor married girl was abducted by the accused and others from the house of her
father. The accused secured the ornaments which she was wearing on her person by
dishonest inducement through convincing her that it would not be safe for her to be
putting on ornaments as it was getting dark. She then handed over the ornaments to
Ram Dass which he placed in a bag. Both of them went to the nearby railway station.
In the meanwhile, her absence was discovered at her house by her brother and uncle
who, on reaching the railway station found her sitting with the accused on a bench at
the platform. On seeing them the accused fled along with the ornaments which were
contained in the bag. She then told her brother and uncle the circumstances under which
she handed over her ornaments to the accused and that he had run away with the said
ornaments. On the above facts, it was held by a learned single Judge of the Allahabad
High Court that her statement immediately after the occurrence was admissible as res
gestae under Section 6, Evidence Act and further that it provided the necessary
corroboration so as to lend assurance about the trustworthiness of her testimony on the
question of exercise of dishonest inducement by the accused. It may be stated here that
in Ram Das' case the accused was acquitted of the offence punishable under Sections
3637 366/379, I.P.C. on the finding that the girl, who had been deprived of her
ornaments, was over 18 years of age and that she was a consenting party when she left
the house of her father. All the same, the conviction of the accused under Section 420,
I.P.C. was maintained and her statement to her brother and uncle immediately after the
accused had taken to heels was found to be admissible and relevant as res gestae.
Manifestly, the accused ran away with the ornaments when he saw her brother and
uncle approaching and, therefore, what she stated to them at that very time was held to
be part of the same transaction.

Sarkar on Evidence (Fifteenth Edition) summarises the law relating to

applicability of Section 6 of the Evidence Act thus:
1. The declarations (oral or written must relate to the act which is in issue or
relevant thereto; they are not admissible merely because they accompany an act.
Moreover, the declarations must relate to and explain the fact they accompany,
and not independent facts previous or subsequent thereto unless such facts are
part of a transaction which is continuous.
2. The declarations must be substantially contemporaneous with the fact and not
merely the narrative of a past.
3. The declaration and the act may be by the same person, or they may be by
different persons, e.g., the declarations of the victim, assailant and by-standers.
15
 In conspiracy, riot & the declarations of all concerned in the common object are
admissible.
4. Though admissible to explain or corroborate or to understand the significance
of the act, declarations are not evidence of the truth of the matters stated.

Criticism of the doctrine:

Dr. Julius Stone said that “No evidential problem is so shrouded in doubt and
confusion as principle of res-gestae.”

Professor Wigmore said that “this rule is not only harmful but also useless29.”

This is useless because every part of this rule is covered by some other provisions of
the Act and this harmful because it causes confusion about limitations of the rule.
1. The doctrine of res-gestae is applicable to hearsay evidence which is not considered as
a good piece of evidence.
2. The limits of res-gestae are not so easy to precisely confine or define.
3. No fixed principles can be laid down as to matters that will fall part of the same
transaction.

4. Res Gestae has been described as a term of protean (able to change frequently
or easily) significance and that there have been many definitions of the term.
No evidential problem is as shrouded in doubt and confusion as is Res Gestae 30.
5. The rule as to admissibility of evidence known as the Res Gestae rule has been
declared to be incapable of any precise definition and it has been applied to so
many different and unrelated situations that it has been said that the difficulty
of formulating a description of Res Gestae, which will serve all circumstances,
seems insurmountable 31.

29
Dean Wigmore comments, “The phrase res gestae is, in the present state of the law, not only entirely
useless, but even positively harmful… It ought therefore wholly to be repudiated, as a vicious element
in our legal phraseology. It should never be mentioned.”
30
Babulal v. W.I.T Ltd. 1956 INDLAW CAL 105
31
Julius Stone, Res GestaRaegitata, Vol. 55 The Law Quarterly Review, p. 66

16
ELECTRONIC EVIDENCE AND ITS ADMISSIBILITY

We are the generation living in the electronic world. Most of our pursuits have been
accurately performed with the help of electronic technology. Information technology is
now an essential segment of the modern world. The influence of electronic media has
been spread over all branches of society including law and the judiciary.
We have evidence act for adducing evidence, its mode of proof and its admissibility.
Court of law relied up on Oral as well as documentary evidence. Oral evidence is most
often full of discrepancies and human error because every human being feels or observe
with the help of the senses. Even documentary evidence also sometime contains errors.
So It is a time requirement to seek help from electronic evidence in all fields of criminal
justice delivery System i.e. inquiry or Investigation & Prosecution, therefore the
legislation laid down Information Technology Act 2008. As well amended evidence
Act, Indian penal code and The Bankers book evidence Act.

WHAT IS ELECTRONIC EVIDENCE?

Evidence Act fundamentally describes two type of evidence i.e.

1) Oral evidence and
2) Documentary evidence.
As per amended provision Sec 3 of evidence Act electronic evidence is documentary
evidence. “(2) All documents including electronic records produced for the inspection
of the Court], such documents are called documentary evidence.” Further if we refer
another provision it is contained in Section 2(t) of Information Technology Act
2000 electronic record means;

“(t) ‘electronic record’ means, “data, record or data generated, image or sound stored,
received or sent in an electronic form or micro film or computer generated micro fiche
(a device to read or magnify such sheets);”

So, if we refer above mentioned definitions in the light of the provisions incorporated
u/s65-A & 65-B of Evidence Act; Electronic Evidence is one another type of
documentary evidence which is if duly proved in the manner provided in sec 65-B, can
be considered as strong evidence.

Before elaborate discussion of Electronic evidence it is required to be get a flash back

up on the structure of evidence Act and also the principles of law for adducing, relying
and considering evidence.

We have a three part in evidence Act Part-I is for “RELEVANCY OF FACT”, Part-II
is of “ON PROOF” and Part-III is regarding “PRODUCTION AND EFFECT OF
EVIDENCE”. All evidence passes through above three stages. To consider any matter
or thing relevant it must be en suite in the frame of PART-I i.e. section 5 to 55. To
appreciate evidence which is considered relevant there are provisions of part-II. To
make electronic evidence relevant and to establish the mode of its proof there are certain
provision at different stages in the evidence Act.
AMENDMENTS IN EVIDENCE ACT TO INTRODUCE ELECTONIC
EVIDENCE:

17
To consider RELEVANCY OF FACT of electronic evidence there is Section 22A,
which is included in Act. That is similar to sec. 22 in which is embargo on producing
oral evidence so as to consider the contents of document, similarly Sec.22A declares
that “oral evidence as to the contents of electronic records are not relevant, unless the
genuineness of electronic record produced as in the question.

Entries in books of account, including those maintained in electronic form, An entry in

any public or other official book, register or by a public servant in the discharge of
official duty in the performance of a duty specially enjoined by the law of the country
in which such book, register, or record or an electronic record is kept are the relevant
facts as per Sec 34 and 35 of evidence Act.

OPINION OF EXAMINER OF ELECTRONIC EVIDENCE:

As it is already laid down provision u/s45 regarding the relevancy of expert opinion
referred to in Sec.79A of I.T Act, now we have Sec.45A to consider opinion given by
an examiner of electronic evidence regarding any information transmitted or stored in
any computer resource or any other electronic or digital form is also relevant fact.

As like other expert opinions, court may rely on the opinion of an examiner who has
given in the manner prescribed u/c79A of I. T. ACT. Further, when the court has to
form an opinion as to the electronic signature of any person, the opinion of the
certifying Authority which has issued the electronic Signature Certificate is also
relevant u/s 47A of evidence Act.

PROVISIONS FOR THE PROOF OF ELECTRONIC EVIDENCE:

In the PART-2 “ON PROOF” of the evidence Act following provisions has been
included to cover electronic evidence.

65A. Special provisions as to evidence relating to electronic record

65B. Admissibility of electronic records
67A. Proof as to digital signature
73A. Proof as to verification of digital signature
81A. Presumption as to Gazettes in electronic forms
85A. Presumption as to electronic agreements
85B. Presumption as to electronic records and digital signatures
85C. Presumption as to Digital Signature Certificates
88A. Presumption as to electronic messages
90A. Presumption as to electronic records five years old
131. Production of documents or electronic records which another person, having
possession, could refuse to produce

CLASSIFICATION OF ELECTRONIC EVIDENCE

As we observe above amendments and basic structure of evidence Act, any substance
on which matter has been expressed or described can be considered a document,
provided that the purpose of such expression or description is to record the
matter. Electronic records have been defined in the Information Technology Act, 2000
as any data, record or data generated, any image or sound stored, received or sent in an
18
electronic form or micro film or computer-generated micro fiche. An electronic record
can be safely included under such a definition because matter is recorded on the
computer as bits and bytes, which are the digital equivalent of figures or marks.

Computer records were widely considered to be hearsay statements since any

information retrieved from a computer would consist of input provided by a human
being. Thus, be it a word document containing statements written by one party, or an
image of a missing person generated by the computer based on the inputs given to it,
all such records will be hearsay.

An electronic document would either involve documents stored in a digital form, or a

print out of the same. What is recorded digitally is a document, but cannot be perceived
by a person not using the computer system into which that information was initially
fed. Electronic documents were admitted as real evidence, that is, material evidence,
but such evidence requires certification with respect to the reliability of the machine for
admission. Being both hearsay as well as secondary evidence, there was much
hesitation regarding the admissibility of electronic records as evidence.

In India, the change in attitude came with the amendment to the Indian Evidence Act
in 2000. Sections 65A and 65B were introduced in to the chapter relating to
documentary evidence. Section 65A provides that contents of electronic records may
be admitted as evidence if the criteria provided in Section 65B is complied
with. Section 65B provides that shall be considered documents, thereby making it
primary evidence, if the computer which produced the record had been regularly in use,
the information fed into the computer was part of the regular use of the computer and
the computer had been operating properly. It further provides that all computer output
shall be considered as being produced by the computer itself, whether it was produced
directly or indirectly, whether with human intervention or without. This provision does
away with the concept of computer evidence being hearsay.

Thus, with the amendments introduced into the statute, electronic evidence in India is
no longer either secondary or hearsay evidence, but falls within the best evidence rule.

ELECTRONIC EVIDENCE IS PRIMARY AND BEST EVIDENCE IN INDIA:

We have well established rule of evidence Act in which hearsay evidence is not
considered in evidence. Even documentary evidence also been classified in primary and
secondary evidence. Moreover U/s 65 of evidence Act legislation has laid down
guideline for admission of secondary evidence. But after implementation of
amendments regarding electronic evidence drastic change occurred in the application
of evidence.

A. Blurring the Difference between Primary and Secondary Evidence

By bringing all forms of computer evidence into the fold of primary evidence, the
statute has effectually blurred the difference between primary and secondary forms of
evidence. While the difference is still expected to apply with respect to other forms of
documents, an exception has been created with respect to computers. This, however, is
essential, given the complicated nature of computer evidence in terms of not being
easily producible in tangible form. Thus, while it may make for a good argument to say
that if the word document is the original then a print out of the same should be treated
19
as secondary evidence, it should be considered that producing a word document in court
without the aid of print outs or CDs is not just difficult, but quite impossible.

B. Making Criminal Prosecution Easier

In light of the recent spate (sudden increase or overflow) of terrorism in the world,
involving terrorists using highly sophisticated technology to carry out attacks, it is of
great help to the prosecution to be able to produce electronic evidence as direct and
primary evidence in court, as they prove the guilt of he accused much better than having
to look for traditional forms of evidence to substitute the electronic records, which may
not even exist. As we saw in the Ajmal Kasab case, terrorists these days plan all their
activities either face-to-face, or through software. Being able to produce transcripts of
internet transactions helped the prosecution case a great deal in proving the guilt of the
accused.

Similarly, in the case of State (NCT of Delhi) v. Navjot Sandhu, the links between the
slain terrorists and the masterminds of the attack were established only through phone
call transcripts obtained from the mobile service providers.

C. Risk of Manipulation
While allowing all forms of computer output to be admissible as primary evidence, the
statute has overlooked the risk of manipulation. Tampering with electronic evidence is
not very difficult and miscreants may find it easy to change records which are to be
submitted in court. However, technology itself has solutions for such problems.
Computer forensic has developed enough to find ways of cross checking whether an
electronic record has been tampered with, when and in what manner.

D. Opening Potential Floodgates

Computers are the most widely used gadget today. A lot of other gadgets involve
computer chips in their functioning. Thus, the scope of Section 65A and 65B is indeed
very large. Going strictly by the word of the law, any device involving a computer chip
should be adducible in court as evidence. However, practical considerations as well as
ethics have to be borne in mind before letting the ambit of these Sections flow that far.
For instance, the Supreme Court has declared test results of narco-analysis to be
inadmissible evidence since they violate Article 20(3) of the Constitution. It is
submitted that every new form of computer technology that is sought to be used in the
process of production of evidence should be subjected to such tests of Constitutiona lit y
and legality before permitting their usage.

It has thus been seen that with the increasing impact of technology in everyday life, the
production of electronic evidence has become a necessity in most cases to establish the
guilt of the accused or the liability of the defendant. The shift in the judicial mindset
has occurred mostly in the past twenty years and most legal systems across the world
have amended their laws to accommodate such change. Further, when society is largely
utilized computers and even investigation seeks help of gadgets which product of
modern electronic technology prosecution is need to be armed with latest technological
knowledge and basics of admissibility of electronic evidence as well.

In India, all electronic records are now considered to be documents, thus making them
primary evidence. At the same time, a blanket rule against hearsay has been created in
20
respect of computer output. These two changes in the stance of the law have created
paradigm shifts in the admissibility and relevancy of electronic evidence, albeit certain
precautions still being necessary. However, technology has itself provided answers to
problems raised by it, and computer forensics ensure that manipulations in electronic
evidence show up clearly in the record. Human beings now only need to ensure that
electronic evidence being admitted is relevant to the fact in issue and is in accordance
with the Constitution and other laws of the land.

Anvar v. Basheer
and
The New (Old) Law of Electronic Evidence

On 18 September 2014, the Supreme Court of India delivered its judgment in the case
of Anvar v. P. K. Basheer (Civil Appeal 4226 of 2012) to declare new law in respect of
the evidentiary admissibility of the contents of electronic records. In doing so, Justice
Kurian Joseph, speaking for a bench that included Chief Justice Rajendra M. Lodha
and Justice Rohinton F. Nariman, overruled an earlier Supreme Court judgment in the
1995 case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru(2005) 11 SCC
600, popularly known as the Parliament Attacks case, and re-interpreted the application
of sections 63, 65, and 65B of the Indian Evidence Act, 1872 (“Evidence Act”). To
appreciate the implications of this judgment, a little background may be required.

The hearsay rule:

The Evidence Act was drafted to codify principles of evidence in the common law.
Traditionally, a fundamental rule of evidence is that oral evidence may be adduced to
prove all facts, except documents, provided always that the oral evidence is direct. Oral
evidence that is not direct is challenged by the hearsay rule and, unless it is saved by
one of the exceptions to the hearsay rule, is inadmissible. In India, this principle is
stated in sections 59 and 60 of the Evidence Act.
The hearsay rule is both fundamental and complex; a proper examination would require
a lengthy excursus (a narrative digression; exploration of different concern), but a
simple explanation should suffice. In the landmark House of Lords decision in R
v. Sharp [1988] 1 All ER 65, Lord Havers – the controversial prosecutor who went
on to become the Lord Chancellor – described hearsay as “Any assertion other than one
made by a person while giving oral evidence in the proceedings is inadmissible as
evidence of any fact or opinion asserted.” This definition was applied by courts across
the common law world. Section 114 of the United Kingdom’s (UK) Criminal Justice
Act, 2003, which modernised British criminal procedure, uses simpler language: “a
statement not made in oral evidence in the proceedings.”
Hearsay evidence is anything said outside a court by a person absent from a trial, but
which is offered by a third person during the trial as evidence. The law excludes hearsay
evidence because it is difficult or impossible to determine its truth and accuracy, which
is usually achieved through cross examination. Since the person who made the
statement and the person to whom it was said cannot be cross examined, a third person’s
account of it is excluded. There are a few exceptions to this rule which need no
explanation here; they may be left to another post.

Hearsay in rule and documents:

21
The hearsay rule is straightforward in relation to oral evidence but a little less so in
relation to documents. As mentioned earlier, oral evidence cannot prove the contents
of documents. This is because it would disturb the hearsay rule (since the document is
absent, the truth or accuracy of the oral evidence cannot be compared to the document).
In order to prove the contents of a document, either primary or secondary evidence must
be offered.
Primary evidence of the contents of a document is the document itself [section 62 of
the Evidence Act]. The process of compelling the production of a document in court is
called ‘discovery’. Upon discovery, a document speaks for itself. Secondary evidence
of the contents of a document is, amongst other things, certified copies of that
document, copies made by mechanical processes that insure accuracy, and oral
accounts of the contents by someone who has seen that document. Section 63 of the
Evidence Act lists the secondary evidence that may prove the contents of a document.

Secondary evidence of documentary content is an attempt at reconciling the hearsay

rule with the difficulties of securing the discovery of documents. There are many
situations where the original document simply cannot be produced for a variety of
reasons. Section 65 of the Evidence Act lists the situations in which the original
document need not be produced; instead, the secondary evidence listed in section 63
can be used to prove its content. These situations arise when the original document (i)
is in hostile possession; (ii) has been stipulated to by the prejudiced party; (iii) is lost
or destroyed; (iv) cannot be easily moved, i.e. physically brought to the court; (v) is a
public document of the state; (vi) can be proved by certified copies when the law
narrowly permits; and (vii) is a collection of several documents.

Electronic documents:
As documents came to be digitized, the hearsay rule faced several new challenges.
While the law had mostly anticipated primary evidence (i.e. the original document
itself) and had created special conditions for secondary evidence, increasing
digitization meant that more and more documents were electronically stored. As a
result, the abduction of secondary evidence of documents increased. In the Anvar case,
the Supreme Court noted that “there is a revolution in the way that evidence is produced
before the court”.

In India before 2000, electronically stored information was treated as a document and
secondary evidence of these electronic ‘documents’ was adduced through printed
reproductions or transcripts, the authenticity of which was certified by a competent
signatory. The signatory would identify her signature in court and be open to cross
examination. This simple procedure met the conditions of both sections 63 and 65 of
the Evidence Act. In this manner, Indian courts simply adapted a law drafted over one
century earlier in Victorian England. However, as the pace and proliferation of
technology expanded, and as the creation and storage of electronic information grew
more complex, the law had to change more substantially.

New provisions for electronic records:

To bridge the widening gap between law and technology, Parliament enacted
the Information Technology Act, 2000 (“IT Act”) [official pdf here] that, amongst other
things, created new definitions of “data”, “electronic record”, and “computer”.
According to section 2(1)(t) of the IT Act, an electronic record is “data, record or data
22
generated, image or sound stored, received or sent in an electronic form or micro film
or computer-generated micro fiche” (sic).

The IT Act amended section 59 of the Evidence Act to exclude electronic records from
the probative force of oral evidence in the same manner as it excluded documents. This
is the re-application of the documentary hearsay rule to electronic records. But, instead
of submitting electronic records to the test of secondary evidence – which, for
documents, is contained in sections 63 and 65, it inserted two new evidentiary rules for
electronic records in the Evidence Act: section 65A and section 65B.
Section 65A of the Evidence Act creates special law for electronic evidence:

65A. Special provisions as to evidence relating to electronic record. – The contents of

electronic records may be proved in accordance with the provisions of section 65B.
Section 65A of the Evidence Act performs the same function for electronic records
that section 61 does for documentary evidence: it creates a separate procedure, distinct
from the simple procedure for oral evidence, to ensure that the abduction of electronic
records obeys the hearsay rule. It also secures other interests, such as the authenticity
of the technology and the sanctity of the information retrieval procedure. But section
65A is further distinguished because it is a special law that stands apart from the
documentary evidence procedure in sections 63 and 65.

Section 65B of the Evidence Act details this special procedure for adducing electronic
records in evidence-Sub-section (2) lists the technological conditions upon which a
duplicate copy (including a print-out) of an original electronic record may be used:
10. at the time of the creation of the electronic record, the computer that produced it
must have been in regular use;
11. (ii) the kind of information contained in the electronic record must have been
regularly and ordinarily fed in to the computer;
12. (iii) the computer was operating properly; and,
13. (iv) the duplicate copy must be a reproduction of the original electronic record.

Sub-section (4) of section 65B of the Evidence Act lists additional non-technical
qualifying conditions to establish the authenticity of electronic evidence. This provision
requires the production of a certificate by a senior person who was responsible for the
computer on which the electronic record was created, or is stored. The certificate must
uniquely identify the original electronic record, describe the manner of its creation,
describe the device that created it, and certify compliance with the technological
conditions of sub-section (2) of section 65B.

Non-use of the special provisions:

However, the special law and procedure created by sections 65A and 65B of the
Evidence Act for electronic evidence were not used. Disappointingly, the cause of this
non-use does not involve the law at all. India’s lower judiciary – the third tier of courts,
where trials are undertaken – is vastly inept (not able) and technologically unsound.
With exceptions, trial judges simply do not know the technology the IT Act
comprehends. It is easier to carry on treating electronically stored information as
documentary evidence. The reasons for this are systemic in India and, I suspect,
endemic (systematic or native) to poor developing countries. India’s justice system is
decrepit (weakened) and poorly funded. As long as the judicial system is not
23
modernized, India’s trial judges will remain clueless about electronic evidence and the
means of ensuring its authenticity.

By bypassing the special law on electronic records, Indian courts have continued to
apply the provisions of sections 63 and 65 of the Evidence Act, which pertain to
documents, to electronically stored information. Simply put, the courts have basically
ignored sections 65A and 65B of the Evidence Act. Curiously, this state of affairs was
blessed by the Supreme Court in Navjot Sandhu (the Parliament Attacks case),
which was a particularly high-profile appeal from an emotive terrorism trial. On the
question of the defence’s challenge to the authenticity and accuracy of certain call data
records (CDRs) that the prosecution relied on, which were purported to be
reproductions of the original electronically stored records, a Division Bench of Justice
P. Venkatarama Reddi and Justice P. P. Naolekar held:
According to Section 63, secondary evidence means and includes, among other things,
“copies made from the original by mechanical processes which in themselves ensure
the accuracy of the copy, and copies compared with such copies”. Section 65 enables
secondary evidence of the contents of a document to be adduced if the original is of
such a nature as not to be easily movable. It is not in dispute that the information
contained in the call records is stored in huge servers which cannot be easily moved
and produced in the court. That is what the High Court has also observed at para 276.
Hence, printouts taken from the computers/servers by mechanical process and certified
by a responsible official of the service-providing company can be led into evidence
through a witness who can identify the signatures of the certifying officer or otherwise
speak to the facts based on his personal knowledge.

Flawed justice and political expediency in wiretap cases:

The Supreme Court’s finding in Navjot Sandhu (quoted above) raised
uncomfortable questions about the integrity of prosecution evidence, especially in trials
related to national security or in high-profile cases of political importance. The state’s
investigation of the Parliament Attacks was shoddy with respect to the interception of
telephone calls. The Supreme Court’s judgment notes in prs. 148, 153, and 154 that the
law and procedure of wiretaps was violated in several ways.

The Evidence Act mandates a special procedure for electronic records precisely
because printed copies of such information are vulnerable to manipulation and abuse.
This is what the veteran defence counsel, Mr. Shanti Bhushan, pointed out in Navjot
Sandhu [see pr. 148] where there were discrepancies in the CDRs led in evidence by
the prosecution. Despite these infirmities, which should have disqualified the evidence
until the state demonstrated the absence of mala fide conduct, the Supreme Court
stepped in to certify the secondary evidence itself, even though it is not competent to
do so. The court did not compare the printed CDRs to the original electronic record.
Essentially, the court allowed hearsay evidence. This is exactly the sort of situation that
section 65B of the Evidence Act intended to avoid by requiring an impartial certificate
under sub-section (4) that also speaks to compliance with the technical requirements
of sub-section (2).

When the lack of a proper certificate regarding the authenticity and integrity of the
evidence was pointed out, this is what the Supreme Court said in pr. 150:

24
Irrespective of the compliance of the requirements of Section 65B, which is a provision
dealing with admissibility of electronic records, there is no bar to adducing secondary
evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65.
It may be that the certificate containing the details in sub-section (4) of Section 65B is
not filed in the instant case, but that does not mean that secondary evidence cannot be
given even if the law permits such evidence to be given in the circumstances mentioned
in the relevant provisions, namely, Sections 63 and 65.

In the years that followed, printed versions of CDRs were admitted in evidence if they
were certified by an officer of the telephone company under sections 63 and 65 of the
Evidence Act. The special procedure of section 65B was ignored. This has led to
confusion and counter-claims. For instance, the 2011 case of Amar Singh v. Union of
India (2011) 7 SCC 69 saw all the parties, including the state and the telephone
company, dispute the authenticity of the printed transcripts of the CDRs, as well as the
authorisation itself. Currently, in the case of Ratan Tata v. Union of India Writ
Petition (Civil) 398 of 2010, a compact disc (CD) containing intercepted telephone calls
was introduced in the Supreme Court without following any of the procedure contained
in the Evidence Act.
Returning sanity to electronic record evidence, but at a price
In 2007, the United States District Court for Maryland handed down a landmark
decision in Lorraine v. Markel American Insurance Company241 FRD 534 (D. Md.
2007) that clarified the rules regarding the discovery of electronically stored
information. In American federal courts, the law of evidence is set out in the Federal
Rules of Evidence. Lorraine held when electronically stored information is offered as
evidence, the following tests need to be affirmed for it to be admissible: (i) is the
information relevant; (ii) is it authentic; (iii) is it hearsay; (iv) is it original or, if it is a
duplicate, is there admissible secondary evidence to support it; and (v) does its
probative value survive the test of unfair prejudice?

In a small way, Anvar does for India what Lorraine did for US federal courts. In Anvar,
the Supreme Court unequivocally returned Indian electronic evidence law to the special
procedure created under section 65B of the Evidence Act. It did this by applying the
maxim generalia specialibus non derogant (“the general does not detract from the
specific”), which is a restatement of the principle lex specialis derogat legi generali
(“special law repeals general law”). The Supreme Court held that the provisions of
sections 65A and 65B of the Evidence Act created special law that overrides the general
law of documentary evidence [see pr. 19]:

Proof of electronic record is a special provision introduced by the IT Act amending

various provisions under the Evidence Act. The very caption of Section 65Aof the
Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special
provisions on evidence relating to electronic record shall be governed by the procedure
prescribed under Section 65B ofthe Evidence Act. That is a complete code in itself.
Being a special law, the general law under Sections 63 and 65 has to yield.

The Evidence Act does not contemplate or permit the proof of an electronic record by
oral evidence if requirements under Section 65B of the Evidence Act are not complied
with, as the law now stands in India.

25
The scope for oral evidence is offered later. Once electronic evidence is properly
adduced according to section 65B of the Evidence Act, along with the certificate of
sub-section (4), the other party may challenge the genuineness of the original electronic
record. If the original electronic record is challenged, section 22A of the Evidence Act
permits oral evidence as to its genuineness only. Note that section 22A disqualifies
oral evidence as to the contents of the electronic record, only the genuineness of
the record may be discussed. In this regard, relevant oral evidence as to the
genuineness of the record can be offered by the Examiner of Electronic Evidence, an
expert witness under section 45A of the Evidence Act.(who is appointed under section
79A of the IT Act.)

While Anvar is welcome for straightening out the messy (difficult or unpleasant to deal
with) evidentiary practice regarding electronically stored information that Navjot
Sandhuhad endorsed, it will extract a price from transparency and open government.
The portion of Navjot Sandhu that was overruled dealt with wiretaps. In India, the
wiretap empowerment is contained in section 5(2)of the Indian Telegraph Act, 1885
(“Telegraph Act”). The Telegraph Act is an inherited colonial law. Section 5(2) of the
Telegraph Act was almost exactly duplicated thirteen years later by section 26 of the
Indian Post Office Act, 1898. When the latter was referred to a Select Committee, P.
Ananda Charlu – a prominent lawyer, Indian nationalist leader, and one of the original
founders of the Indian National Congress in 1885 – criticised its lack of transparency,
saying: “a strong and just government must not shrink from daylight”.
Wiretap leaks have become an important means of discovering governmental abuse of
power, corruption, and illegality. For instance, the massive fraud enacted by under-
selling 2G spectrum by A. Raja, the former telecom minister, supposedly India’s most
expensive corruption scandal, caught the public’s imagination only after taped
wiretapped conversations were leaked. Some of these conversations were recorded on
to a CD and brought to the Supreme Court’s attention. There is no way that a whistle
blower, or a person in possession of electronic evidence, can obtain the certification
required by section 65B(4) of the Evidence Act without the state coming to know about
it and, presumably, attempting to stop its publication. Anvar neatly ties up electronic
evidence, but it will probably discourage public interest disclosure of inquiry.

26
 Relevancy of Character:

As per Webster, "character is a combination of the peculiar qualities impressed by

nature or by habit of the person, which distinguish him from others". Character means
the collective qualities or characteristics especially mental and moral, that distinguis h
a person or thing. Character is the estimation of a person by his community.

The word ‘character' includes both reputation and disposition." Character lies in the
man; it is the mark of what he is.

Reputation:
Webster defines "reputation" to be good name; the credit, honour or character which is
derived from a favourable public opinion or esteem, and character by report. Reputation
is the common or general estimate of a person with respect to character or other
qualities.

Woodroffe states that "Reputation means what is thought of a person by others and is
constituted by public opinion. It is the general credit which a man has obtained in that
opinion."

Reputation and character are not synonymous terms. Character is what a man or a
woman is morally while reputation is what he or she is reputed to be i.e. reputation is
the estimate which the community has of the person ‘s character.

Disposition:
Disposition is a natural tendency, an inclination; person‘s temperament. It is the
prevailing spirit of mind, resulting from constitution. It is the aptitude or tendency of
character.

The word 'disposition' is used to give the meaning a tendency to act, think or feel in a
particular way. Character certificate given by the employer or character certificate
given by the Heads of the Educational Institutions are the good examples of
'Disposition'. 'Disposition' comprehends or springs and motives of action. It is a
permanent, settled and respects the whole frame and texture of the mind.

` The disposition is the prevailing spirit of mind, resulting from constitution. It is the
aptitude or tendency of character. Character is often used in the sense of the social
estimate formed of a man, his reputation for good or bad.

The distinction between reputation and disposition is:

1) Reputation means the general credit of the person among the public but
disposition means the inherent qualities of a person.
2) Reputation is what other people think about him while disposition is what he is
in reality.
3) A man may be reputed to be a good man but in reality, he may have a bad
disposition.
4) General reputation is a sort of common adjective to all, while disposition of a
27
 man may depend upon many traits, some good and some bad.

As character includes both reputation as well as disposition, character means the

general credit of the person in the estimation of others plus the nature and inherent
qualities of a person. But disposition of a person can be known only to those persons
who are closer to him. A person may have very high reputation but his disposition may
be very bad.

"Character is a combination of quality distinguishing a person, the individuality of

which is the product of nature, habits and environment." "Is a man honest, is he good—
natured, is he of violent temper, is he modest and retiring or imprudent forward —
These all constitute traits of character."

Although strictly speaking character is to be distinguished from reputation, yet

reputation is more commonly considered as having reference to the dispositions or
character of a person. Thus, it is said of a person that he bears a good reputation meaning
that the person in question has reputation for being a person of good character.

ADMISSIBILITY OF CHARACTER EVIDENCE IN CIVIL SUITS IN INDIAN

LAW
In civil action, as a general rule, evidence of character of any person concerned (a party
to a suit) is not admissible for the purpose of raising an inference as to his conduct. In
other words, that a party did or did not act may not be established in civil actions, by
showing that his character is such as to predispose him to one course or to the other. So
the exclusion of evidence of a character of a party as a basis of inference as to his
conduct is practically absolute in civil cases. In civil cases the evidence of character is
generally inadmissible unless the character is of the substance in issue.

Under Section 52 the expression 'the character of any person concerned' is used.
Therefore, it may appear to include persons who are called as witnesses, but the content
of the section refers, only to the parties of the proceedings.

Character admissible in civil cases:

There are certain cases in which character is a fact in issue or a relevant fact e.g. in a
suit for libel, if the libel consisted in attributing bad qualities to the plaintiff and the
defendant justices the existence of these qualities, the existence of these qualities would
be a fact in issue and evidence of character may be led. The character of a female
chastity has been received in evidence in action for breach of promise for marriage.

Best states that "To admit character evidence in every case, or to reject it in every case,
would be equally fatal to justice; that to draw a line or to define with precision where it
ought to be received and where it ought to be rejected, is as embarrassing a problem as
any Legislature can be called upon to solve."

In Abdul Shakur and others v. Kotwaleshwar Prasad and others, it has been held that
where the contention that certain pronotes had been obtained from the insolvent while
he was under the influence of drink, has been found to be baseless, mere general bad
character of the insolvent would be quite irrelevant in a civil case to prove want of
28
consideration.

ADMISSIBILITY OF CHARACTER EVIDENCE IN CIVIL SUITS IN BRITISH

LAW

Defendant Good Character in Civil Cases

Generally speaking, the good character of a party to civil proceedings, whether
defendant or claimant, is not admissible, unlike the normal situation with regard to
defendants in criminal cases. As Baron Martin noted in A-G v Radcliff, in most cases,
no presumption would arise: ‘. . . from the good character of the defendant, that he did
not commit the breach of contract or of civil duty alleged against him’. Of course, if a
party to litigation has his credibility attacked by unwarranted aspersions on his
character, he can call evidence of his good character to rebut the allegation.

Defendant Bad Character in Civil Cases

A defendant’s character can be attacked in civil proceedings with a view to
undermining his credit, just like that of any other witness. There is no special regime
for defendants in civil trials, unlike the situation that governs the accused in criminal
proceedings. Thus, for example, a defendant with previous convictions can have them
put to him in cross-examination.

Perhaps more significantly, past misconduct can be indicative of present behaviour in

civil as well as criminal matters and thus can be used to establish propensity under the
common law ‘similar fact’ doctrine. The legal use of this type of evidence was
neglected in civil cases, at least when compared to the extensive jurisprudence on its
criminal counterpart. It was only rarely mentioned in judgements, and then often by
reference to criminal case law on the topic.

Ironically, however, given the abolition of the similar fact doctrine in criminal trials
under s. 99(1) of the CJA 2003, it is only in civil cases that it will be encountered in
future. A number of cases, stretching back over a century, are indicative of the doctrine
at work. Thus, in Hales v Kerr, evidence from a barber’s customers that they, too, had
become infected with ring-worm, after having been cut and bandaged by the defendant
in the recent past, was admitted to support the plaintiff ’s claim to having been
negligently infected in a similar fashion.

It suggested that the defendant had an unhygienic system of work.

In Mood Music Publishing Company v. De Wolfe Ltd., Lord Denning derived a Two
stage test to determine the admissibility of evidence.
The following questions were to be ascertained before admitting the evidence

1) Whether the evidence provided was relevant with the Fact in Issue?
2) Whether such evidence should be admissible or not?

This test was revisited in case of O’Brien v Chief Constable of the South Wales Police.
In practical application of this test the risk of prejudice is likely to be far more acute
29
than in the vast majority of cases where the matter is presided over by a professional
judge, who is experienced in ‘putting aside irrational prejudice’.

This might be particularly important where the extrinsic evidence is of a scandalous

nature; for example, the previous misconduct cited consists of allegations of what
would amount to serious crimes if proved.

Additionally, the risk of excessively prolonging and distorting the litigation process
will also vary enormously, and needs to be weighed up against the probative value of
the evidence and any other case specific factors.

In the light of O’Brien, it might be argued that, despite the term still being in use, there
is, in reality, no longer a special doctrine of similar fact evidence in civil cases. Many
of the conclusions reached in the case are explicable by other evidential principles, such
as simple relevance or as a response to the Civil Procedure Rules. However, this would
be an exaggeration, as there is still a residual discretion to reject such evidence simply
because it might occasion reasoning or moral prejudice, rather than for any other
reason; this is a hallmark of the similar fact doctrine at common law. Nevertheless, this
is likely to be exercised only rarely, jury trials, perhaps, apart. In the light of Lord
Bingham’s observation in O’Brien, that similar fact evidence can be very important,
even decisive’ in civil cases other litigants may be encouraged to adduce such evidence
in future. Against this, the case may also remind the courts that a general exclusionary
rule means that evidence of extrinsic defendant misconduct should not be abduced
informally.

ADMISSIBILITY OF CHARACTER EVIDENCE IN CRIMINAL SUITS IN

INDIAN LAW
In criminal proceedings, previous good character is relevant:

In criminal proceedings, the fact that the person accused is of a good character, is
relevant." In criminal enquiries the relevancy of character evidence is different from
civil cases.

In criminal cases, the accused is allowed to prove his good character, either in chief or
by cross-examination. But so far as concerns proof of the accused's good character by
another witness, what must be deposed to is, not particular good acts by him, but his
general reputation in the community. Strictly the witness‘s own opinion of his character
is irrelevant, but in particular considerable latitude is allowed and a witness is often
asked to say what he knows of the accused's character. The evidence of character is
primarily relevant as to credibility i.e. it makes his testimony more worthy of belief.

Good character in criminal cases is a weak evidence. However, in certain cases, good
character may become favourable evidence in favour of an accused in doubtful cases
and where the prosecution fails to prove the guilt of the accused beyond the reasonable
doubts. Good character presumably includes good reputation which a man may be in
his own circle as well .as his real disposition as distinct from what his friends and
neighbours may think of him.

When the accused in a bribery case pleads and produces evidences of good character,
30
which the Court regards as satisfactory, it must be taken in consideration to decide
whether the guilt is proved beyond reasonable doubt Phipson states that "Good
character is not a defence, for no one would then be convicted, as everyone starts with
a good character. The defendant is, however, entitled to rely on the fact that he is of
previous good character as making it less likely that he would have committed the
offence. If there is any room of doubt, his good character may be thrown in the scales
in his favour."

In Habeeb Mohammad v. State of Hyderabad, [AIR l954 SC 51] it has been held
that in criminal proceedings a man's character is often a matter of importance in
explaining his conduct and in judging his innocence or criminality. Many acts of an
accused person would be suspicious or free from all suspicions when the character of
the person by whom they are done is known. Even on the question of punishment, an
accused is allowed to prove general good character.

Bar on the proof of previous bad character in criminal proceedings:

The general evidence of good character of the accused is always relevant. This is not
so with regard to general evidence of bad character. In criminal proceeding the fact that
the accused person has a bad character is irrelevant and cannot be proved. The reason
is that the prosecution must prove the guilt of accused with the necessary evidence in
support of the charge. But the prosecution cannot take the help of bad character of the
accused in order to establish its case. lf the prosecution is allowed to prove bad character
of the accused, then that would prejudice the mind of the Court. It makes the Court
biased against the accused. if evidence of bad character of the accused is permitted t0
be proved the Court may come to the conclusion that he has committed the offence in
question. Therefore, this would prejudice the fair trial to which the accused is entitled.
However, there are three exceptions to the rule of the irrelevance of bad character in
criminal cases.

The first exception: The previous bad character is relevant in reply, if the evidence has
been given that he has good character. In Indian system of Law, an accused starts with
a presumption of innocence; his bad character is not relevant, unless he gives evidence
of good character in which case, by way of rebuttal, evidence of bad character may be
adduced. The prosecution gets the right to prove the bad character of the accused. In
cases of defamation, malicious prosecution etc., the question of reputation is to be
considered. In such cases, the bad character of the party may be adduced as evidence.

The second exception: The evidence of bad character can be proved in cases in which
the bad character is in issue. In case of binding over proceedings for keeping good
behaviour under Sections 109, and 110, Cr.P.C. and in proceedings for the offence of
dacoity under Sections 400, 401, Indian Penal Code. the bad character of the person
involved would be a fact in issue. Under Section 110, Cr.P.C.. a person is to be bound
down if he is by habit a robber. a house-breaker or is so desperate and dangerous as to
render his being at large hazardous. In an Inquiry under Section 110 Cr.P.C. the very
character of the accused is in question and so the evidence to that effect is admissible.
The evidence that the accused had committed similar criminal acts previously is
admissible upon the issue to decide whether the act was intentional or accidental. If the
evidence of bad character is introduced in order to establish a relevant fact which cannot
be proved separately the evidence of bad character is admissible.
31
In Public Prosecutor; APHC v. Bandana Ramayya, [2004 Cr.L.J. 3510 (AP)] it has
been held that in a rape case, where the medical evidence clearly points out that there
was a forcible intercourse, the bad character of the prosecutrix becomes irrelevant. If
the bad character is itself a fact in issue, only then evidence can be placed.

The third exception: A previous conviction is not admissible in evidence against the
accused, except where he is liable to enhanced punishment under Section 75 of the
Indian Penal Code, on account of previous conviction, or unless evidence of good
character be given, in which case the fact that the accused had been previously
convicted of an offence is admissible as evidence of bad character.

Under Section 75 of the IPC, a person who has been previously convicted by a Court
of an offence punishable under Chapter XII or Chapter XVII of the IPC with an
imprisonment of three years or more, is liable for enhanced punishment if he had, again
committed an offence under those chapters subsequently. may be proved as evidence
of bad character

In re: Kamya, it has been held that only after conviction of the accused, the charge for
the previous conviction has to be framed for giving enhanced punishment. In such case,
the prosecution has to prove the previous conviction of the accused. The trial judge
may, at his discretion, proceed or refrain from proceeding, with the trial on the charge
of previous conviction.

ADMISSIBILITY OF CHARACTER EVIDENCE IN CRIMINAL SUITS IN

BRITISH LAW
A defendant can call evidence to establish his ‘good’ character. * is may be given during
examination-in-chief by the defendant in person, by one of his witnesses, or be elicited
from a prosecution witness on his behalf during cross-examination. In British law only
Reputation is counted in Character and not Disposition.

In R. v. James Rowtan the accused was tried for committing an indecent assault on a
boy of 14 years and at the trial he gave evidence of his good character. ‘In order to rebut
the evidence of good character the prosecution called a witness and asked "what is the
accused’s general character for decency and morality?’ He said, "I do not know the
opinion of my neighbours but in my opinion and the opinion of my brothers who were
also his pupils that he is a person capable of the grossest indecency and flagrant
immorality. The court said, this is evidence of disposition, not evidence, of reputation
and therefore inadmissible.

In R v Redgrave, the defendant was accused of an offence of gross indecency in a

public lavatory (i.e a ‘homosexual’ offence). At his first trial he was allowed to adduce
cards and letters from various girlfriends, to suggest that he was not homosexual and
thus was not likely to have committed the offence of which he was accused. (For
evidential purposes, if no other, these must be considered analogous to specific
creditable incidents.) * is trial produced a hung jury, and a retrial was ordered. The
(different) judge presiding at the second trial did not allow evidence of the
correspondence to be given and the defendant was convicted. The defendant appealed
32
on the basis that it was wrong for such evidence to have been excluded. Dismissing his
appeal, the Court of Appeal upheld the decision in Rowton forbidding the adduction of
evidence of specific incidents.

Defendant’s bad character in criminal suits.

Prior to the advent of the Criminal Justice Act 2003, the adduction of defendant bad
character evidence in criminal cases was governed by a complicated mixture of
common law principles and statute. Thus, evidence adduced to suggest guilt via
propensity was largely ruled by the common law ‘similar fact’ doctrine. Evidence that
was produced to undermine defendant credit was primarily regulated by s. 1(3) of the
1898 Evidence Act (supplemented by common law provisions).

One of the main aims of the 2003 Act was to put all of the rules governing bad character
in criminal cases, whether for defendants, witnesses or third parties, and whether going
to credit or directly to the issue in a case, into a single statute. However, there were
other concerns about the old regime, several of which were explored in the Law
Commission report, Evidence of Bad Character in Criminal Proceedings which (in part)
prompted the statutory reforms.

Section 101 of the Criminal Justice Act 2003, Defendant’s bad character
In criminal proceedings evidence of the defendant’s bad character is admissible (1) if,
but only if—
1. all parties to the proceedings agree to the evidence being admissible,
2. the evidence is adduced by the defendant himself or is given in answer to a
question asked by him in cross-examination and intended to elicit it,
3. it is important explanatory evidence,
4. it is relevant to an important matter in issue between the defendant and the
prosecution,
5. it has substantial probative value in relation to an important matter in issue
between the defendant and a co-defendant,
6. it is evidence to correct a false impression given by the defendant, or
7. the defendant has made an attack on another person’s character.

Under s. 101(1)(a) defendant bad character evidence can be admitted with the
agreement of ‘all parties to the proceedings’. For practical purposes, in most situations,
this will be contingent on the accused person wishing to adduce it, although,
presumably, there might be exceptional circumstances in which a co-accused might
object to its admission. Nevertheless, a defendant could then have recourse to s.
101(1)(b), which allows him to adduce such evidence in person or via an answer to a
question ‘asked by him in cross-examination and intended to elicit it’.

Section 101(1)(c), in part, replicates a specialist provision that previously existed at

common law. It allows the adduction of a defendant’s previous misconduct if it is
‘important explanatory evidence’. Guidance on what is meant by this is given in s. 102,
which provides that it can be admitted if, without it, the jury or court would find it
‘impossible or difficult properly to understand other evidence in the case’ and (rather

33
superfluously) its value for understanding the case as a whole is ‘substantial’.

R v Beverley, the defendant was accused of participating in a conspiracy to import

cocaine. He had two previous convictions. One of these, from more than five years
earlier, was for possession of cannabis with intent to supply, and one was from two
years previously, for simple possession of cannabis. These were adduced at trial under
s. 101(1)(d), as showing a propensity to commit the type of offence with which he was
charged. However, on appeal, the conviction was quashed, on the basis that one of the
convictions was old, and one was of a different character (simple possession), that they
involved a different type of drug, and related to offences of a vastly lesser degree of
seriousness, both in size and complexity, to the large-scale conspiracy charged in the
instant case.

Although, as these cases suggest, most situations where evidence is adduced under s.
101(1)(d) will require either an ‘unusual’ offence or one committed in an unusual
manner, or, alternatively, several previous offences, in exceptional cases this will not
be so.

For example, in R v Isichei, a defendant’s single conviction for importing cocaine some
six years earlier was admitted under s. 101(1)(d), as it was adduced not to suggest a
propensity to commit such offences, but to support the identification of a complainant
in an assault occasioning ABH and robbery indictment, who had heard the defendant
demanding money for ‘coke’.

A defendant’s bad character can be adduced under s. 101(1)(e) if it has ‘substantial

probative value in relation to an important matter in issue between the defendant and a
co-defendant’.

In Ibrahim Musone v The Crown, it was held that where two prison inmates were
accused of murdering a third prisoner in his cell with a knife, and were running ‘cut-
throat’ defences (blaming each other for the crime), one of the defendants was allowed
to adduce evidence of an earlier murder, allegedly perpetrated by his co-accused, to
suggest that it was more likely that he (the co-accused) had indicted the fatal wound.
This was because the earlier killing was considered to have substantial probative value
with regard to an important matter in issue between the two co-defendants (i.e who was
more likely to be violently homicidal), and so was admissible under s. 101(1)(e).
Under s. 101(1)(f) evidence of a defendant’s bad character can be adduced to ‘correct
a false impression given by the defendant’. This selectiveness about the adduction of
past crimes can be seen in R v Campbell, where the defendant, accused of assaulting
his girlfriend, had numerous previous convictions, for a variety of offences, including
violence, dishonesty and criminal damage, reaching back over 20 years. However, at
trial, only two previous and recent convictions for assaulting former or current
girlfriends were admitted, pursuant to s. 101(1)(d), being adduced on the issue of the
defendant’s propensity to use violence towards women.

Section 101(1)(g) deals with those situations in which the defendant has made an
‘attack on another person’s character’. Section 101(1)(g) will not invariably be applied
where there has, technically, been some kind of ‘attack’. R v Nelson . In this case, the
defendant, while being questioned by the police on an affray charge, had stated that his
34
neighbour was a liar and a user of class A drugs. As it transpired, the neighbour did not
give evidence at the defendant’s trial. However, the first instance judge held that there
had been an attack on the character of another, which fell within the terms of s.
106(1)(g) of the Act. As a result, the accused man’s previous drugs convictions were
adduced.
The general rule is that character evidence is inadmissible. Since it is very difficult to
assess the character of the person, evidence of character is rendered inadmissible. It is
said that it is only God, the angels and the person himself know anything about the
character of a man.

GOOD CHARACTER OF THE ACCUSED

The accused will be regarded as a person of good character if evidence is adducted or
elicited to show that he has no previous convictions or no convictions of any relevance
or significance. A previous character whether good or bad will be an indicator as to the
present conduct of the person. It can affect the way a witness’s testimony is viewed, i.e
go to credit. In civil cases character evidence is inadmissible unless the character
evidence is itself in issue. The evidence is excluded from civil proceedings on grounds
of public policy. Due to the following reasons good character evidence is not admissible
in civil proceedings.
1) Evidence of unconnected circumstances will prejudice the party
2) The party would not have an opportunity to defend effectively as he would be
unsure about what part of his career would be attacked.

The accused having a good character is entitled to the benefit of the ‘Vye direction’
consisting where relevant of a propensity limb and credibility limb.
Defendants in criminal cases with good characters are always entitled to the ‘second
limb’ of the Vye direction on propensity.
Defendants in criminal cases with good characters who give evidence are also always
entitled to a ‘first limb’ credibility direction.
Occasionally, ‘blemished’ defendants without previous convictions who admit to
offences, or those with previous convictions that are minor or distant, may be refused
or granted good character directions, depending on the circumstances of the case.

BAD CHARACTER OF THE ACCUSED

According to the Indian laws in criminal proceedings the evidence of bad character of
the accused is irrelevant and cannot be proved. But the prosecution cannot take the help
of bad character of the accused in order to establish it’s case. If evidence of bad
character of accused is permitted to be proved the court may come to the conclusion
that he has committed the offence in question. Therefore this would prejudice the fair
trial to which the accused is entitled. However there are three exceptions to this rule

1. When the accused gives evidence of good character then the prosecution has a
right to prove the bad character of the accused.
2. The prosecution has a right to prove the bad character in cases in which the bad
character is itself in issue.
3. A previous conviction is relevant as evidence of bad character of the accused.

Defendant bad character in criminal cases is now almost entirely regulated by Part 11
35
of the Criminal Justice Act 2003, and s. 101 in particular. Bad character usually consists
of convictions, but can extend to other areas of reprehensible conduct in an individua l’s
life.

Evidence of the accused’s ‘bad character’ is inadmissible unless it falls within the scope
of one of the gateways to admissibility in section 101 (1) (a-g) of the Act. Whenever
the prosecution (but not a co-defendant) attempts to adduce such evidence under s.
101(1)

a trial judge has a discretion to refuse to admit it, whether from the Act itself or as a
result of s. 78 of the Police and Criminal Evidence Act 1984, even if one of the gateways
is, prima facie, satisfi ed. The similar fact doctrine developed at common law survives
in civil cases, despite being abolished in criminal trials. Such evidence appears to
require less probative force that was formerly the case in criminal hearings to be
admitted in civil forums. However, the court can have regard to a wider range of policy
factors than was the case in criminal trials when deciding whether to exclude such
evidence.

36
 Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law
of Evidence

Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of
opinion of third persons, which is commonly called in our day to day practice as
expert’s opinion. These provisions are exceptional in nature to the general rule that
evidence is to be given of the facts only which are within the knowledge of a witness.
The exception is based on the principle that the court can’t form opinion on the matters,
which are technically complicated and professionally sophisticated, without assistance
of the persons who have acquired special knowledge and skill on those matters.
Conditions for admitting an expert opinion are following:-
1) That the dispute can’t be resolved without expert opinion and
2) That the witness expressing the opinion is really an expert.

Who is an expert?
The definition of an expert may be referred from the provision of Sec.45 of Indian
Evidence Act that an ‘Expert’ means a person who has special knowledge, skill or
experience in any of the following:
1) foreign law,
2) science
3) art
4) handwriting or
5) finger impression

and such knowledge has been gathered by him:

1) by practice,
2) observation or
3) proper studies.

For example, medical officer, chemical analyst, explosive expert, ballistic expert,
fingerprint expert etc.
According to Sec.45, the definition of an expert is confined only to the five subjects or
fields as mentioned above. But practically there are some more subjects or fields on
which court may seek opinion an expert.32

An expert witness is one who has devoted time and study to a special branch of
learning and thus he is specially skilled on those points on which he is asked to state
his opinion. His evidence on such points is admissible to enable the court to come to a
satisfactory conclusion.

Duty of the expert:-

a) An expert is not a witness of fact.
b)His evidence is of advisory character.
c) An expert deposes and does not decide.
d) An expert witness is to furnish the judge necessary scientific criteria for testing the

32
http://www.legalservicesindia.com/article/article/experts-opinion-and-its-admissibility-and-
relevancy-law-of-evidence-1583-1.html
37
accuracy of the conclusion so as to enable the judge to form his independent judgment
by application of the criteria to the facts proved by the evidence.

Value of expert opinion:-

The Expert evidence has two aspects ---
a) Data evidence [it can’t be rejected if it is inconsistent to oral evidence]
b) Opinion evidence [it is only an inference drawn from the data and it would not get
precedence over the direct eye-witness testimony unless the inconsistency between
the two is so great as to falsify the oral evidence] --[Arshad v. State of A.P. 1996
CrLJ 2893 (para34) (AP)]

Expert evidence is opinion evidence and it can’t take the place of substantive
evidence. It is a rule of procedure that expert evidence must be corroborated either by
clear direct evidence or by circumstantial evidence.

It is not safe to rely upon this type of evidence without seeking independent and
reliable corroboration -- [S.Gopal Reddy v. State of A.P. AIR 1996 SC2184
(Para27)]

Difference between evidence of an expert and evidence of an ordinary witness:-

Evidence of an expert Evidence of an ordinary witness
1. Expert gives his opinion regarding 1. An ordinary witness states the
handwriting, finger impression, nature of injury fact relating to the incident.
etc.
2. It is advisory in character. 2. Witness states the facts. Opinion
of a witness is not admissible.
3. Court can’t pass an order of conviction on 3. Court may pass an order of
the basis of expert opinion, as because it is not conviction on the basis of evidence
conclusive. of ocular witness (eye witness).

4. Expert gives his opinion on the basis of his 4. A witness gives actual facts
experience, special knowledge or skill in the connected with the incident what he
field. had seen or heard or perceived.

Illustration/
Section/Title Provision
Example
If the court has to form an opinion upon- 1) Question arises
a) Foreign law, whether A, at the time
b) Science, of committing the
c) Art, offence, was incapable
d) Identity of handwriting or to know the nature of his
Sec.45:-
e) Finger impression act or that he was doing
Relevancy
the opinion of the persons who are specially what was wrong or
of opinion of
skilled in the above subject or fields are contrary to law because
experts
relevant. of unsoundness of mind.
The opinion of the
The expert opinion is only corroborative experts upon the points
evidence. It must not be the sole basis for are relevant---
conclusive proof. a) Whether the
38
 The expert witness must be subjected to cross- symptom exhibited by A
examination in the court. Mere submission of commonly show
opinion by an expert through any certificate or unsoundness of mind
any other document is not sufficient. and
b) Whether such
unsoundness of mind
usually renders the
person incapable to
know the nature of his
act or to know what he
does is wrong or
contrary to law.

2) The question is
whether a certain
document was written
by A. Another document
is produced which is
proved or admitted to
have been written by A.
Opinion of experts on
the question whether the
two documents were
written by the same
person or by different
persons, are relevant.
Considering the provisions of Indian Evidence Act, judicial precedents and our day to
day practice it may be submitted that the following kinds of expert opinion may be
relevant:-
1) Foreign law:-
Foreign law can be proved –
a) by the evidence of a person specially skilled in it and
b) by direct reference to the books printed or published under the authority of the
foreign government.

2) Science or art:-
The Science or art includes all subjects on which a course of special study or experience
is necessary to the formation of an opinion. “Science” or “art” is not limited to higher
science or fine art, but it has its original sense of handicraft, trade, profession and skill
in work which has been carried beyond the sphere of the common pursuits of life into
that of the artistic and scientific action.
The following matters are included in the ‘science’ and art and the expert opinion of
these matters are relevant:-

Medicalopinion:-
The value of Medical evidence is only corroborative. A doctor acquires special
knowledge of medicine and surgery and as such he is an expert. Opinions of a medical
officer, physician or surgeon may be admitted in evidence to show:
a) Physical condition of the a person,
39
b) Age of a person
c) Cause of death of a person
d) Nature and effect of the disease or injuries on body or mind
e) Manner or instrument by which such injuries was caused
f) Time at which the injury or wounds have been caused.
g) Whether the injury or wounds are fatal in nature
h) Cause, symptoms and peculiarities of the disease and whether it is likely to cause
death
i) Probable future consequences of an injury etc.

When there is a conflict between the medical evidence and ocular evidence, oral
evidence of an eye witness has to get primacy as medical evidence is basically
opinionative. Where the direct evidence is not supported by the expert evidence, the
evidence is wanting in the most material part of the prosecution case and therefore, it
would be difficult to convict the accused on the basis of such evidence. If the evidence
of the prosecution witnesses is totally inconsistent with medical evidence, it is the most
fundamental defect in the prosecution case and unless this inconsistency is reasonably
explained, it is sufficient to discredit the evidence as well as the entire case. [Mani
Ram v. State of U.P. 1994 Supp (2) SCC 289,292; 1994 SCC (Cri) 1242]

Where the opinion of one medical witness is contradicted by another and both experts
are equally competent to form an opinion, the court will accept the opinion of that
expert which supports the direct evidence in the case.
[Piara Singh v. State of Punjab AIR 1977 SC 2274]

3) Handwriting:
· Like other expert opinion, the opinion of handwriting expert is advisory in nature. The
expert can compare disputed handwriting with the admitted handwriting and give his
opinion whether one person is the author of both the handwriting.

· The court shall exercise great care and caution at the time of determining the
genuineness of handwriting. A handwriting expert can certify only probability and
100% certainty. On the question of the handwriting of a person, the opinion of a
handwriting expert is relevant, but it is not conclusive and handwriting of a person can
be proved by other means also.

· The following are the different modes of proving handwriting:

i) A person who wrote the document can prove it. (Sec.47)
ii) A person who saw someone writing or signing a document can prove it (Sec.47)
iii) A person who is acquainted with the handwriting by receiving the documents
purported to have been written by the party in reply to his communication or in ordinary
course of business, can prove the documents (Sec.47)
iv) The court can form opinion by comparing disputed handwriting with the admitted
handwriting. (Sec.73)
v) The person against whom the document is tendered can admit the handwriting.
(Sec.21)
vi) The expert can compare disputed handwriting with admitted handwriting and
40
thereby prove or disprove whether the documents were written by the same or different-
persons. (Sec.45)

4) Fingerprint-expert:-
Expert opinion on fingerprints has the same value as the opinion of any other expert.
The court will not take opinion of fingerprint expert as conclusive proof but must
examine his evidence in the light of surrounding circumstances in order to satisfy itself
about the guilt of the accused in a criminal case.

5) Ballistic expert:
A ballistic expert may trace a bullet or cartridge to a particular weapon from which it
was discharged. Forensic ballistics may also furnish opinion about the distance from
which a shot was fired and the time when the weapon was last used.

6) Evidence of tracking dogs:

Trained dogs are used for detection of crime. The trainer of tracking dogs can give
evidence about the behavior of the dog. The evidence of the tracker dog is also relevant
U/s-45.

In Abdul Razak V. State of Maharashtra (AIR 1970 SC 283) question arises before
the Supreme Court whether the evidence of dog tracking is admissible in evidence and
if so, whether this evidence will be treated at par with the evidence of scientific experts.
In this case, Pune Express was derailed near Miraj Railway Station on 10th Oct.,1966.
Sabotage was suspected. The removal of fishplates was found to be the cause of
derailment and accident. The police dog was brought into service, taken to the scene of
crime. After smelling the articles near the affected joint, the dog ran towards
embankment where one fishplate was lying, then the dog smelt it and went to a nearby
shanty and pounced upon the accused who was a gang man at Miraj Railway station.

The Supreme Court held that evidence of the trainer of tracking dog is relevant and
admissible in evidence, but the evidence can’t be treated at par with the evidence of
scientific experts analyzing blood or chemicals. The reactions of blood and chemicals
can’t be equated with the behavior of dog which is an intelligent animal with many
thought processes similar to the thought processes of human beings. Whenever thought
process is involved there is risk of error and deception. The law is made clear by the
Supreme Court by enunciating the principle thatthe evidence of dog tracking is
admissible, but not ordinarily of much weight and not at par with the evidence of
scientific experts.

Apart from the above fields, there are chemical analyst, explosive experts, mechanical
experts, interpreter, patent expert, hair expert etc. whose opinion is admissible in
evidence.

Admissibility of expert opinion:-

Expert opinion becomes admissible only when the expert is examined as a witness in
the court. The report of an expert is not admissible unless the expert gives reasons for
forming the opinion and his evidence is tested by cross-examination by the adverse

41
party. But in order to curtail the delay and expenses involved in securing assistance of
experts, the law has dispensed with examination of some scientific experts.

For example, Sec.293 Cr.P.C. provides a list of some Govt. Scientific Experts as
following:-
a) Any Chemical Examiner / Asstt. Chemical examiner to the Govt.
b) The Chief Controller of explosives
c) The Director of Fingerprint Bureau
d) The Director of Haffkein Institute, Bombay
e) The Director, Dy. Director or Asstt. Director of Central and State Forensic
Science Laboratory.
f) The Serologist to the Govt.
g) Any other Govt. Scientific Experts specified by notification of the Central Govt.
The report of any of the above Govt. Scientific Experts is admissible in evidence in
any inquiry, trial or other proceeding and the court may, if it thinks fit, summon and
examine any of these experts. But his personal appearance in the court for
examination as witnesses may be exempted unless the court expressly directs him to
appear personally. He may depute any responsible officer to attend the court who is
working with him and conversant with the facts of the case and can depose in the
court satisfactorily on his behalf.

Can an Expert suo moto examine and furnish his opinion?

No, an expert can’t initiate examination or analysis and furnish his opinion unless the
Investigating Officer has sought his opinion in compliance with the formal procedure.
An expert can’t do anything suo moto in regard to analysis or examination and
formation of his opinion.

Investigating officer and expert opinion:

The investigation officer should seek opinion from experts or specially skilled person
to form his own opinion whether the materials collected during the course of
investigation is actually establishes the link between the crime, the victim and the
criminals. The investigating officer shall seek the assistance of an expert whenever he
feels necessary for establishing any fact related to the fact in issue.

Procedure of forwarding exhibits to experts:

When forwarding the exhibits to the experts certain procedure and formalities must be
followed by the I.O. to dispatch packed exhibits or physical evidence to experts. It
ensures identity and continuity and above all question of integrity of such exhibits.
The I.O. shall follow the following procedure for forwarding the exhibits to the
experts:

1) Exhibits are sent to experts through the concerned court. A forwarding report shall
be prepared by the I.O. in the prescribed format where available.

2) A certificate from the competent authority concern (C.M.M./C.J.M./A.C.J.M. as

the case may be) has to be received in the line that “Certified that the Director,
Forensic Science Laboratory, has the authority to examine the exhibits sent to him in
connection with the case of State vs. …………..(name of the accused) U/s-
42
………(provision of I.P.C. or any other law) and if necessary, to make them to pieces
or remove portions for the purpose of the said examination.”

3) The same seal (wax) shall be used by the I.O. on the forwarding report as affixed
on the forwarding exhibits.
4) The specimen seal shall be on sealing wax and not in the ink.
5) A copy of label (carbon copy) of each exhibit shall accompany the report.
6) The forwarding report shall be prepared in quadruplicate (two for expert, one for
case diary and one for the court’s record) and shall be sent to the expert separately in
a sealed cover.
7) The exhibit should always be sent to the expert through police messenger.
8) The IO. should make specific question that may establish the links between crime,
victim and criminals. The questions should be formulated with some objectivity
towards establishing such links between one another.

Format for forwarding the physical evidence to C.F.S.L/F.S.L.:-

Forwarding note

Case No.:-
State vs. …………….(name of the accused)
Under section—

Nature of crime:--
……………………………………………………………………….
(this should cover nature of the charge, brief history and relevant details)

List of exhibits sent for examination:--

………………………………………………………………………….
(exact place from where the exhibits were collected)

Nature of examination required:--

…………………………………………………………………………..
(including any information which will assist the examination)

Particulars of person in custody, if any :--

………………………………………………………………………….
……………………………………….
Signature of the Investigating Officer
Specimen seal impression
Memo No………………

Forwarded to the Director, Central Forensic Science Laboratory/State Forensic

Science Laboratory at……………….

………………………………………………..
Signature & designation of the
forwarding officer
43
 CERTIFICATE
CERTIFIED that the Director, Central/State Forensic Science Laboratory at
……………….. has the authority to examine the exhibits sent to him in connection
with Case No………..dated…..U/s-………… and if necessary, to take them to pieces
or remove portions for the purpose of the said examination.

Date…………………..
Place…………………. …….…………………………
Signature & Designation of Forwarding Authority
(CJM/CMM/ACJM)

The discussion or analysis as to the admissibility and relevancy of opinion of an

expert under the law of evidence can’t be complete without analyzing or interpreting
the statutory provisions (Sec.45 to Sec.51) of Indian Evidence Act. Hence the said
provisions are discussed herein below.

Section/Title Provision Illustration/Example

a) Expert opinion in
respect of a particular
hardware or software in
issue are relevant.

b) The copyright of a
computer programme of
the plaintiff is infringed.
In a proceeding when the court has to The plaintiff shows that
form an opinion on any matter relating there is chain of
to any information transmitted or stored similarities between his
in any computer resource or any other programme and
Sec.45A:-Opinion
electronic or digital form, the opinion of defendant’s programme.
of Examiner of
the Examiner or Electronic Evidence The defendant replied that
Electronic
referred to in Sec.79A of I.T.Act, 2000 the area of the alleged
Evidence
is a relevant fact. similarity are mere
coincidence and generally
The examiner of electronic record is also this path is used by many
treated as an expert. programmers in such
circumstances. Here an
appropriately qualified
expert can give evidence
about the nature of the
routine and code in
question and how they are
derived by the
programmers.
44
Section/Title Provision Illustration/Example
The question arises
whether A died of
strychnine poisoning.
Experts gives their
opinion as to the
symptoms of such
poisoning and the A’s
death was caused
thereby. The experts may
support such opinion by
Facts not otherwise relevant, are
proof that other persons
Sec.46:- Facts bearing relevant if they support or are
who were admittedly
upon the opinion of inconsistent with the opinion of
poisoned by strychnine
experts experts, when such opinions are
had exhibited similar
relevant.
symptoms to A’s.
On the contrary, some
other experts opine that A
had died from ordinary
tetanus, they may prove
that other persons who
admittedly died from the
ordinary tetanus had
exhibited the same
symptoms like A’s.
Ø This provision recognizes the a) The
opinion of non-handwriting question is whether a
expert. letter is in the handwriting
Ø When the court has to form an of A, a merchant in
opinion as to handwriting of a London.
person, the opinion of a person B is a merchant at
who is acquainted with the Calcutta. B has written
handwriting of the former person letters to A and in
is admissible in evidence. response he received
Ø A person can be acquainted some letters from A
with the handwriting of any purporting to be written
Sec.47:- Relevancy of
person in the following cases:- by A.
Opinion as to handwriting
a) When he has seen the C is the clerk of B. His
person whose handwriting is in duty is to examine and
question, write. keep all correspondence
b) When in answer to the in files on behalf of B.
document written by himself (the Accordingly all the letters
person acquainted) or under his purporting to be written
authority and addressed to the and sent by A to B has
said person, he has received any been examined by
document purporting to be C and kept by C in the
written by the said person. files.
c) When in ordinary course Opinion of B or C on the
45
 of business documents question whether the
purporting to be written by the letter is in the handwriting
said person have been habitually of A, are relevant. Here it
submitted to him (person is immaterial that B or C
acquainted). has never seen A write.

b)A, a record keeper, has

to file papers sent to him
in the course of his
official duty. He is
competent to testify to the
handwriting of a person
whose papers are so filed.

Difference between Sec.45 & Sec.47:-

Sec.45 Sec.47
a) Only opinion of handwriting a) Opinion of non-handwriting expert is
expert is relevant. relevant
b) The experts are obviously not b) The person who gives his opinion must be
acquainted with the handwriting of the acquainted with the handwriting of the person
maker. in question.
c) Expert is not present at the time c) The witness may be present and may see
of writing the document. the person write.

Section/Title Provision Illustration/Example

Sec.47A:- Relevancy When the court has to form an The question arises
of Opinion as to opinion as to the electronic whether an electronic
electronic signature signature of any person, the signature is of A. The
opinion of the Certifying authority certifying authority which
which has issued the Electronic has issued the electronic
Signature Certificate, is relevant. signature opines that A is
not the person who has
applied or approached for
getting an electronic
signature. Thus A is not the
owner of the electronic
signature in question. It
belongs to someone else.
The opinion of Certifying
authority may be accepted
by the court.
Sec.48:- Relevancy of When the court has to form an A tribal or family custom
opinion as to existence opinion as to the existence of any excluding a son or brother
of right or custom general custom or right, the from inheritance may be
opinion of the persons who are in aproved by general evidence
position to know about its of the members of the tribe
existence, are relevant. or family who would
naturally be cognizant of
Explanation:- its existence and its
46
 The expression ‘general custom or exercise without
right’ includes customs or rights controversy.
common to any considerable class
of persons. Private rights are
excluded from the operation of this
Section. Here the word “general”
is equivalent to the term ‘public’.
Sec.49:- Relevancy of 1)When the court has to form an A, the sister of B, claims to
opinion as to usages, opinion as to ---- inherit the self-acquired
tenets etc. a) Usages of any body of men property of B under a
of family special custom. General
[usages includes any practice, evidence as to existence of
tradition or custom of trade, such custom by the
business, agriculture, family etc.] members of the family who
b) Tenets of any body of men would naturally be
or family cognizant of its existence
[opinion, principle or doctrine held and exercise without
or maintained by a body of men, it controversy is admissible.
applies to religion, politics science
etc.]
c) Constitution and
government of religious or
charitable foundation
d) Meaning of words or terms
used in a particular district or by a
particular classes of people
2)Opinion of persons who have
special means of knowledge as to
the above matters, are relevant.

Section/Title Provision Illustration/Example

Sec.50:- Relevancy of 1)When the court has to form an opinion i) The question is
opinion as to as to relationship between two persons, whether A and B
relationship 2)The opinion of a person on such were married. The
relationship is relevant on the following fact that they were
conditions:- usually received and
a) He may be a member of the family treated by their
of such persons whose relationship is in friends as husband
dispute or he may be an outsider. and wife, is
b) He must have special means of relevant.
knowledge as to such relationship.
c) His opinion must be expressed by
conduct. ii) The question is
whether A was the
The opinion or belief of a person specially legitimate son of B.
competent in this respect as expressed by The fact that A was
his conduct in outward behavior, is always treated as
relevant. Here the word ‘conduct’ is not the legitimate son of
necessarily limited to the conduct of the B by the member of
47
 relation of the persons in dispute, but it the family, is
includes the conduct of the witness who relevant.
gave his opinion about the existence of
such relationship.

Proviso:- The proviso to Sec.50 provides

that the opinion on relationship can’t be
sufficient to prove a marriage
1) in the proceedings under
Indian Divorce Act or
2) in the prosecutions for -----
a) bigamy (Sec.494 IPC),
b) bigamy with concealment of former
marriage from the person with whom
subsequent marriage is contracted (Sec.495
IPC),
c) adultery (Sec.497 IPC) and
d) enticing or taking away or detaining
a married woman with criminal intent
(Sec.498 IPC).
In these cases the fact of marriage must be
strictly proved in regular way.
Sec.51:- Relevancy of Whenever the opinion of any living person i) An expert may
grounds of opinion is relevant, the grounds on which such give an account of
opinion is based, are also relevant. experiments
performed by him
Opinion is no evidence without assigning for the purpose of
reasons for such opinion. The correctness forming his opinion.
of the opinion can be better estimated if
the reasons upon which it is based are ii) An Excise
known. If the reasons are frivolous or Inspector is an
inconclusive the opinion is worth nothing. expert on the
question whether a
certain liquid is
illicit liquor or not.
Before he gives his
opinion as an expert
he has to examine it
and has also to
furnish the data on
which his opinion is
based. His bald
statement that the
contents of the
bottles are illicit
liquor is not
sufficient to prove
that fact.

48
 [Gobardhan v. State
AIR 1959 All 53]

Conclusion:
From the above analysis it may be submitted that evidence of an expert is not a
substantive piece of evidence. The courts do not consider it conclusive. Without
independent and reliable corroboration, it may have no value in the eye of law. Once
the court accepts an opinion of an expert, it ceases to be the opinion of the expert and
becomes the opinion of the court.

49
 THE INTERPLAY BETWEEN SECTION 91 AND 92

The interplay between these two provisions was explained by the Supreme Court in Bai
Hira Devi and Others v. Official Assignee of Bombay, AIR 1958 SC 448, as follows:
"4. Chapter VI, Evidence Act which begins with Sec. 91 deals with the exclusion of
oral by documentary evidence. Section 91 provides that:
"When the terms of a contract, or of a grant, or of any other disposition of
property, have been reduced to the form of a document, and in all cases in which
any matter is required by law to be reduced to the form of a document, no
evidence shall be given in proof of the terms of such contract, grant or other
disposition of property, or of such matter, except the document itself, or
secondary evidence of its contents in cases in which secondary evidence is
admissible under the provisions hereinbefore contained."
The normal rule is that the contents of a document must be proved by primary evidence
which is the document itself in original. Section 91 is based on what is sometimes
described as the "best evidence rule". The best evidence about the contents of a
document is the document itself and it is the production of the document that is required
by Sec. 91 in proof of its contents. In a sense, the rule enunciated by Sec. 91 can be said
to be an exclusive rule inasmuch as it excludes the admission of oral evidence for
proving the contents of the document except in cases where secondary evidence is
allowed to be led under the relevant provisions of the Evidence Act.
Section 92 excludes the evidence of oral agreements and it applies to cases where the
terms of contracts, grants or other dispositions of property have been proved by the
production of the relevant documents themselves under Sec. 91; in other words, it is
after the document has been produced to prove its terms under Sec. 91 that the
provisions of Sec. 92 come into operation for the purpose of excluding evidence of any
oral agreement or statement, for the purpose of contradicting, varying, adding to or
subtracting from its terms. The application of this rule is limited to cases as between
parties to the instrument or their representatives in interest. There are six provisos to
this section.
It would be noticed that Secs. 91 and 92 in effect supplement each other. Section 91
would be frustrated without the aid of Sec. 92 and Sec. 92 would be inoperative without
the aid of Sec. 91. Since Sec. 92 excludes the admission of oral evidence for the purpose
of contradicting, varying, adding or subtracting from the terms of the document
properly proved under Sec. 91, it may be said that it makes the proof of the document
conclusive of its contents. Like Sec. 91, Sec. 92 also can be said to be based on the best
evidence rule.
The two sections, however, differ in some material particulars.
1) Section 91 applies to all documents, whether they purport to dispose of rights
or not, whereas Sec. 92 applies to documents which can be described as
dispositive.
2) Section 91 applies to documents which are both bilateral and unilateral, unlike
Sec. 92 the application of which is confined only to bilateral documents.
3) Section 91 lays down the rule of universal application and is not confined to the
executant or executants of the documents. Section 92, on the other hand, applies
only between the parties to the instrument or their representatives in interest.
There is no doubt that Sec. 92 does not apply to strangers who are not bound or
affected by the terms of the document. Persons other than those who are parties
to the document are not precluded from giving extrinsic evidence to contradict,
50
 vary, add to or subtract from the terms of the document. It is only where a
question arises about the effect of the document as between the parties or their
representatives in interest that the rule enunciated by Sec. 92 about the exclusion
of oral agreement can be invoked. This position is made absolutely clear by the
provisions of Sec. 99 itself. Section 99 provides that "persons who are not
parties to a document or their representatives in interest, may give evidence of
any facts tending to show a contemporaneous agreement varying the terms of
the document." Though it is only variation which is specifically mentioned in
Sec. 99, there can be no doubt that the third party's right to lead evidence which
is recognized by Sec. 99 would include a right to lead evidence not only to vary
the terms of the document, but to contradict the said terms or to add to or
subtract from them. If that be the true position, before considering the effect of
the provisions of Sec. 92 in regard to the appellants' right to lead oral evidence,
it would be necessary to examine whether Sec. 92 applies at all to the present
proceedings between the official assignee and the donees.
4) As a matter of fact, from the terms of Sec. 92 itself, it is clear that strangers to
the document are outside the scope of Sec. 92; but Sec. 99 has presumably been
enacted to clarify the same position. It would be unreasonable, we think, to hold
that s.99 was intended not only to clarify the position with regard to the
strangers to the document, but also to lay down a rule of exclusion of oral
evidence by implication in respect of the parties to the document or their
representatives in interest.
5) In our opinion, the true position is that, if the terms of any transfer reduced to
writing are in dispute between a stranger to a document and a party to it or his
representative in interest, the restriction imposed by Sec. 92 in regard to the
exclusion of evidence of oral agreement is inapplicable; and both the stranger
to the document and the party to the document or his representative in interest
are at liberty to lead evidence or oral agreement notwithstanding the fact that
such evidence, if believed, may contradict, vary add to or subtract from its term.
The rule of exclusion enunciated by Sec. 92 applies to both parties to the
document and is based on the doctrine of mutuality. It would be inequitable and
unfair to enforce that rule against a party to a document or his representative in
interest in the case of a dispute between the said party or his representative in
interest on the one hand and the stranger on the other."

51
 BURDEN OF PROOF

Burden of proof is based on the rule of Roman Law which can be traced by maxim -
`ei incumbit probatio, qui dicit, non qui negat' - the burden of proving a fact rests on
party who substantially asserts the affirmative of the issue and not upon the party who
denies it, for a negative does not admit of direct and simple proof33.
For better understanding burden of proof may be discussed as following:
1) In State of Maharashtra Vs. Wasudeo Ramchandra Kadalwar34 the court
held that the expression 'burden of proof' has two distinct meanings given as
following:
a. The legal burden, i.e., The burden of establishing the guilt, and
b. The evidential burden, i.e., the burden of leading evidence.
The legal burden, i.e, the duty to prove the guilt never shifts from the prosecution, but
the burden of proving a particular fact may be laid by the law on the accused.
2) The 'burden of proof' means a party's duty to prove a disputed assertion or
charge. The 'burden of proof' includes both 'burden of persuasion' and the
'burden of production'. The 'burden of persuasion' means the duty imposed on a
person to convince the fact finder to view the facts in a way that favours that
person. The 'burden of production' is the duty imposed on the person to
introduce enough evidence on a issue to have the issue decided by the fact
finder, in that person's favour. The party having the 'burden of proof' must
introduce some evidence if he wishes to get a certain issue decided in his favour.
The 'burdenof proof', therefore, denotes the duty of establishing by a fair
preponderance of the evidence the truth of the operative facts upon which the
issue at hand is made to turn by substantive law35.
3) According to Phipson, who is considered to be an authority on the “Law of
Evidence”, the phrase, 'burden of proof', has three meanings, namely,
a. The persuasive burden, the burden of proof as a matter of law and
pleading the burden of establishing a case, whether by preponderance of
evidence or beyond a reasonable doubt.
b. The evidential burden, the burden of proof in the sense of adducing
evidence; and
c. The burden of establishing the admissibility of evidence.
While persuasive burden i.e. onus probandi never shifts and is always stable, the
evidential burden may shift constantly, according as one scale of evidence or other
preponderates. Onus probandi rests upon the party, who would fail if no evidence at all
is adduced. The general principle of burden of proof that he who invokes the aid of law
should be the first to prove his case may be affected by statutory provision, e.g. in a
case where the matters within the knowledge of the person against whom a proceeding
is initiated36.

The burden under Section 101 Evidence Act has been described as legal or persuasive
burden whereas the burden under Section 102 has been described as burden of adducing
evidence or evidentiary burden. The burden of Proof in a criminal Proceeding will

33
Ravi N. Tikoo vs Deputy Commissioner (S.W.) And. (2006) DLT 267
34
(1981) 3 S.C.C. 199
35
According to Black's Law Dictionary, 7th Edition
36
Firoza Khatoon @ Fariza Khatoon vs The State Of Assam & Ors 2013 Gauhati High Court
52
always be on the prosecution. In civil cases it is said to be on the one who would fail
on the issue concerned if no evidence is let in37.

Burden of proof and onus of proof:

What is called the burden of proof on the Pleadings should not be confused with the
burden of adducing evidence which is described as 'shifting'. The burden of proof of
the Pleadings never shifts. It always remains constant. Under Section 103 of the
Evidence Act, the burden of proof of a particular fact lies on the person who wishes the
Court to believe in its existence. There is an essential distinction between burden of
proof and onus of proof. Burden of proof lies upon the person who has to prove a fact
and it never shifts, but the onus of proof shifts. The burden of proof in the present case
undoubtedly lies upon the plaintiff to establish the factum of adoption and that of
partition. The said circumstances do not alter the incidents of the burden of proof. Such
considerations, having regard to the circumstances of a particular case, may shift the
onus of proof. Such a shifting of onus is a continuous process in the evaluation of
evidence38.

Burden of proof and general exeption:

This Court in K. M. Nanavati v. State of Maharashtra had to consider the question
of burden of proof in the context of a defence based on the exception embodied in s. 80
of the Indian Penal Code. In that context the law is summarized thus:
"The alleged conflict betweenthe general burden which lies on the prosecution and the
special burden imposed on the accused under s. 105 of the Evidence Act is more
imaginary than real. Indeed, there is no conflict at all. There may arise three different
situations:
1) A statute may throw the burden of proof of all or some of the ingredients of an
offence on the accused: (see ss. 4 and 5 of the Prevention of Corruption Act).
2) The special burden may not touch the ingredients of the offence, but only the
protection given on the assumption of the proof of the said ingredients: (see ss.
77, 78, 79, 81 and 88 of the Indian Penal Code).
3) It may relate to an exception, some of the many circumstances required to attract
the exception, if proved, affecting the proof of all or some of the ingredients of
the offence: (see s. 80 of the Indian Penal Code)
In the third case, though the burden lies on the accused to bring his case within the
exception the facts proved may not discharge the said burden, but may affect the proof
of the ingredients of the offence."

Burden of proof in the plea of insanity:

"The doctrine of burden of proof in the context of the plea of insanity may be stated in
the following propositions:
1) The prosecution must prove beyond reasonable doubt that the accused had
committed the offence with the requisite mens rea; and the burden of proving
that always rests on the prosecution from the beginning to the end of the trial.
2) There is a rebuttal presumption that the accused was not insane, when he
committed the crime, in the sense laid down by Section 84 of the Indian Penal
Code: the accused may rebut it by placing before the court all the relevant

37
Taylor: Treatise on the Law of Evidence 12th Edn., P. 365
38
A. Raghavamma & anr. vs.A. Chenchamma & anr., AIR 1964 SC 136
53
 evidence--oral, documentary or circumstantial, but the burden of proof upon
him is no higher than that rests upon a party to civil proceedings39.

Of course, the party on whom the burden to prove a fact lies can discharge
that burden by proving admission made by the opposite party or by producing direct
evidence or by producing circumstantial evidence of the fact. The consequence of
failing to prove the fact would be that the opposite party would not be required to
produce evidence in rebuttal and the fact will have to be treated as not proved and the
legal consequences would follow. The provisions as to burden of proof cannot be
ignored, by the inferior Court or tribunal. They are as important as the presumptions of
law, and therefore, the mistake committed by the inferior Court or tribunal by wrongly
placing burden of proof on a party is an error which should be treated as an error
apparent on the face of the record40. A legal provision does not become unconstitutiona l
only because it provides for a reverse burden. The question as regards burden of proof
is procedural in nature41.

The nature and extent of the burden of proof u/s 105:

The nature and extent of the burden that the accused has to discharge under Section 105
of the Evidence Act has been one of questions of great general importance and for
considerable time the opinions of the Courts were not uniform. As a matter of fact, in
Partap v. State of U.P42, SC Court noted "that the question of law that arises here
seems to have troubled several High Courts."
The phrase "burden of proof" is not defined in the Act. In respect of criminal cases, it
is an accepted principle of criminal jurisprudence that the burden is always on the
prosecution and never shifts. This flows from the cardinal principle that the accused is
presumed to be innocent unless proved guilty by the prosecution and the accused is
entitled to the benefit of every reasonable doubt. Section 105 of the Evidence Act is in
the following terms:
"When a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General
Exceptions in the Indian Penal Code, or within any special exception or proviso
contained in any other part of the same Code, or in any law defining the offence,
is upon him, and the Court shall presume the absence of such circumstances."
The Section to some extent places the onus of proving any exception in a penal statute
on the accused. The burden of proving the existence of circumstances bringing the case
within the exceptions mentioned therein is upon him. The Section further lays down
that the Court shall presume non-existence of circumstances bringing the case within
an exception." The words "the burden of proving the existence of circumstances"
occuring in the Section are very significant. It is well settled that "this burden" which
rests on the accused does not absolve the prosecution from discharging its initial burden
of establishing the case beyond all reasonable doubts. It is also well settled that the
accused need not set up a specific plea of his offence and adduce evidence.

39
Ghana Gogoi vs The State Of Assam on 2013 Gauhati High Court
40
Smt. Tara Devi vs Smt. Sudesh Chaudhary AIR 1998 Raj 59
41
Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 and M.S. Narayana Menon v. State of
Kerala, (2006) 6 SCC 39
42
AIR 1976 SC 966
54
What is the nature of burden that lies on the accused under Section 105 if benefit
of the general exception of private defence is claimed and how it can be
discharged?
In Woolmington v. The Director of Public Prosecutions 43 , Viscount Sankey, L.C.
observed:
"When evidence of death and malice has been given (this is a question for the jury), the
prisoner is entitled to show by evidence or by examination of the circumstances
adduced by the Crown that the act on his part which caused death was either
unintentional or provoked. If the jury are either satisfied with his explanation or, upon
a review of all, the evidence are left in reasonable doubt whether, even if his
explanation be not accepted,' the act was unintentional or provoked, the prisoner is
entitled to be acquitted."
It is further observed:
"Just as there is evidence on behalf of the prosecution so there may be evidence on
behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is
entitled to the benefit of the doubt. But while the prosecution must prove the guilt of
the prisoner, there is no such burden laid on the prisoner to prove his innocence and it
is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of
his innocence ... Throughout the web of the English criminal law one golden thread is
always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt
subject to what I have already said as to the defence of insanity and subject also to any
stationary exception. If, at the end of and on the whole of the case, there is reasonable
doubt created by the evidence given by either the prosecution or the prisoner as to
whether the prisoner killed the deceased with a malicious intention, the prosecution has
not made out the case and the prisoner is entitled to an acquittal. No matter what the
charge or where the trial, the principle that the prosecution must prove the guilt of the
prisoner is part of the common law of England and no attempt to whittle it down can
be entertained."

Emperor v. U. Dampala44, a full Bench of the Rangoon High Court following the
Woolmington's case held that:
The ratio therein is not in any way inconsistent with the law in British India,
and that indeed the principles there laid down from valuable guide to the
correct interpretation of Section 105 of the Evidence Act and the full Bench laid
down that even if the evidence adduced by the accused fails to prove the
existence of circumstances bringing the case within the exception or exceptions
pleaded, the accused is entitled to be acquitted if upon a consideration of the
evidence as a whole the court is left in a state of reasonable doubt as to whether
the accused is or is not entitled to the benefit of the exception pleaded. We
have noticed that Section 105 requires that when a person is accused of
any offence, the burden of proving the existence of circumstances bringing the
case within any of the General Exceptions or special exception or proviso
contained in any pan of the Penal Code is on him and the Court shall presume
the absence of such circumstances. This presumption is rebuttable.

43
[1935] Appeal Cases 462
44
AIR 1937 Rangoon 83
55
In Parbhoo and Ors. v. Emperor45, a Full Bench of seven Judges considered the scope
of Sections 102 and 105 of the Evidence Act. The majority agreed with the view taken
by the Full Bench in Dampala's case. In Parbhoo's case Bajpai, J. in his concurring
judgment observed that:
Section 105 is stated in two forms, that of a rule as to the burden of proof and
that of a presumption and that the burden of proving the guilt of the accused
always rests on the prosecution and never shifts and the learned Judge further
held that the doubt cast in connection with the right of private defence must be
a reasonable doubt and if there is such a reasonable doubt, it casts a doubt on
the entire case of the prosecution and that the result is that the accused gets a
benefit of doubt. "The presumption laid down in Section 105 of the Evidence Act
might come into play but it does not follow therefrom that the accused must be
convicted even when the reasonable doubt under the plea of the right of private
defence or under any other plea contained in the general or special exceptions
pervades the whole case."
In Dampala's case Dunkley, J. while concurring with the majority view after discussing
the law on the subject observed:
If the Court either is satisfied from the examination of the accused and the
evidence adduced by him, or from the circumstances appearing from the
prosecution evidence that the existence of circumstances bringing the case
within the exception or exceptions pleaded has been proved, or upon a review
of all the evidence is left in reasonable doubt whether such circumstances had
existed or not, the accused in the case of a general exception is entitled to be
acquitted, or, in the case of a special exception, can be convicted of a minor
offence."
Note: This case has been followed subsequently by a number of High Courts, some of
those are as following:
In K.M. Nanavati v. State of Maharashtra46, it is observed that:
"In India, as it is in England, there is a presumption of innocence in favour of
the accused as a general rule, and it is the duty of the prosecution to prove the
guilt of the accused. But when an accused relies upon the General Exceptions
in the Indian Penal Code or on any special exception or proviso contained in
any other part of the Penal Code, or in any law defining an offence, Section105
of the Evidence Act raises a presumption against the accused and also throws
a burden on him to rebut the said presumption. Under that Section the Courts
shall presume the absence of circumstances bringing the case within any of the
exceptions, that is, the Court shall regard the nonexistence of such
circumstances as proved till they are disproved. This presumption may also be
rebutted by admissions made or circumstances elicited by the evidence led by
the prosecution or by the combined effect of such circumstances and the
evidence adduced by the accused. But the section does not in any way affect the
burden that lies on the prosecution to prove all the ingredients, of the offence
with which the accused is charged; that burden never shifts. The alleged conflict
between the general burden which lies on the prosecution and the special
burden imposed on the accused under Section 105 of the Evidence Act is more
imaginary then real. Indeed, there is no conflict at all."

45
AIR 1941 Allahabad 402
46
[1962] Suppl. 1 SCR 567
56
In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat47, it is observed:
"It is fundamental principle of criminal jurisprudence that an accused is
presumed to be innocent and therefore, the burden lies on the prosecution to
prove the guilt of the accused beyond reasonable doubt. The prosecution,
therefore, in a case of homicide shall prove beyond reasonable doubt that the
accused caused death with the requisite intention described in Section 299 of
the Penal Code. The general burden never shifts and it always rests on the
prosecution. But, under Section 105 of the Evidence Act the burden of proving
the existence of circumstances bringing the case within the exception lies on the
accused; and the Court shah presume the absence of such circumstances. Under
Section 105 of the Evidence Act, read with the definition of "shall presume" in
Section 4 thereof, the Court shall regard the absence of such circumstances as
proved unless, after considering the matters before it, it believes that the said
circumstances existed Or their existence was so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the
supposition that they did exist. To put it in other words, the accused will have
to rebut the presumption that such circumstances did not exist, by placing
material before the Court sufficient to make it consider the existence of the said
Circumstances so probable that a prudent man would act upon them. The
accused has to satisfy the standard of a "prudent man". If the material placed
before the Court such as, oral and documentary evidence, presumptions,
admissions or even the prosecution evidence, satisfied the test of "prudent man",
the accused will have discharged his burden. The evidence so placed may not
be sufficient to discharge the burden under Section 105 of the Evidence Act, but
it may raise a reasonable doubt in the mind of a Judge as regards one or other
of the necessary ingredients of the offence itself. It may, for instance, raise a
reasonable doubt in the mind of the Judge whether the accused had the requisite
intention laid down in Section 299 of the Penal Code."
Note: A careful reading of these two decisions would reveal that the statement of law
therein neither expressly or impliedly overrule or is in conflict with the majority view
in Parbhoo's case.
However, in Rishi Kesh Singh & Ors. v. The State 48, the question that came up for
consideration before a Larger Bench consisting of nine Judges was whether the dictum
in Parbhoo's case is still a good law on the ground that some of the decisions of the
Supreme Court have cast a cloud of doubt. A majority of seven Judges approved the
principle laid down in Parbhoo's case. The Larger Bench also referred to various
subsequent decisions of the Supreme Court also including the Nanavati's case; Bhikari
v. State of Uttar Pradesh49, and Dahyabhai's case, Beg, J., as he then was, in a separate
but concurring judgment after referring to the Nanavati's case; Bhikari's ease;
Dahyabhai's case and Mohar Rai & Bharath Rai's case, held that there is no conflict
between what was held by the Supreme Court and the majority view taken in Parbhoo's
case. After analysing the view expressed by the Surpeme Court in the several above
mentioned decisions, Beg, J. observed:
"After a close scrutiny of every part of each of the seven opinions in Parbhoo's case50.
Justice Beg came to the conclusion that the majority of their Lordships did not lay down

47
AIR 1964 SC 1563
48
AIR 1970 Allahabad 51
49
AIR 1966 SC 1
50
AIR 1941 All 402 (FB).
57
anything beyond three important propositions which, if not either directly or indirectly
supported by decisions of their Lordships of the Supreme Court have not been affected
in the slightest degree by these decisions. These propositions are:
1) Firstly, that no evidence appearing in the case to support the exception pleaded
by the accused can be excluded altogether from consideration on the ground
that the accused has not proved his plea fully.
2) Secondly, that the obligatory presumption at the end of Sec. 105 is necessarily
lifted at least when there is enough evidence on record to justify giving the
benefit of doubt to the accused on the question whether he is guilty of the
offence with which he is charged, and
3) Thirdly, if the doubt, though raised due to evidence in support of the exception
pleaded, is reasonable and affects an ingredient of the offence with which the
accused is charged, the accused would be entitled to an acquittal.
"The practical result of the three propositions stated above is that an accused's plea or
an exception may reach one of three not sharply demarcated stages, one succeeding the
other, depending upon the effect of the whole evidence in the case judged by the
standard Of a prudent man weighing or balancing probabilities carefully. These stages
are:
1) Firstly, a lifting of the initial obligatory presumption given at the end of Sec.
105 of the Act51.
2) Secondly, the creation of a reasonable doubt about the existence of an ingredient
of the offence52, and
3) Thirdly, a complete proof of the exception by "a preponderance of probabilit y",
which covers even a slight tilt of the balance of probability in favour of the
accused's plea53.
Note: The Supreme Court decisions have considered the last two stages so far, but the
first stage has not yet been dealt with directly or separately there in any case came to
notice."
Justice Mathur’s reasoning:
Mathur, J., while holding that ratio laid down by the majority in Parbhoo's case is in
conformity with law, however, observed that the reasoning in support of the
conclusions is erroneous and said that Beg, J. was not prepared to go to that extent. Shri
Mathut, J. laid' down that the dictum in Parbhoo's case which is still a good law, can,
however, be modified as follows:
"In a case in which any General Exception in the Indian Penal Code, or any
special exception or proviso contained in another part of the same Code, or in
any law defining the offence, is pleaded or raised by an accused persons and
the evidence led in support of such plea, judged by the test of the preponderance
of probability, as in a civil proceeding, fails to displace the presumption arising
from Section 105 of the Evidence Act, in other words, to disprove the absence
of circumstances bringing the case within the said exception but upon a
consideration of the evidence as a whole, including the evidence given in
support of the plea based on the said exception or proviso, a reasonable doubt
is created in the mind of the Court, as regards one or more the ingredients of
the offence, the accused person shall be entitled to the benefit of the reasonable
doubt as to his guilt and hence to acquittal of the said offence."
51
The accused is not entitled to an acquittal if his plea does not get beyond the first stage.
52
At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt.
53
At the third stage, he is undoubtedly entitled to an acquittal.
58
If the view taken by the Allahabad High Court is to be accepted then it would
amount to throwing the burden on the prosecution not only to establish the guilt
of the accused beyond all reasonable doubt but also that the accused is not entitled
to benefit of any exception and if such a principle is laid down then Section 105 of
the Evidence Act would be rendered otiose and there would be inconsistency
between Sections 102' and 105?
This very question has been answered by the Supreme Court in Nanavati's case and it
has been held that:
The general burden of proving the ingredients of the offence is always on the
prosecution but the burden of proving the circumstances attracting the
exception lies on the accused. But the failure on the part of the accused to
establish all the circumstances bringing his case under the exception does not
absolve the prosecution to prove the ingredients of the offence and the evidence
relied upon by the accused in support of his claim for the benefit of the exception
though insufficient to establish the exception may be sufficient to negative one
or other of the ingredients of the offence and thus throw a reasonable doubt on
the essential ingredients of the offence of murder. The accused for the purpose
of discharging this burden under Section 105 can rely also on the probabilities.
As observed in Dahyabhai's case "the accused will have to rebut the
presumption that such circumstances did not exist" by placing material before
the court which satisfies the standard of a prudent man and the material may
consist of oral and documentary evidence, presumptions, admissions or even
the prosecution evidence and the material so placed may not be sufficient to
discharge the burden under Section 105 of the Evidence Act but it may raise a
reasonable doubt in the mind of a Judge as regards one or other of the
necessary ingredients of the offence itself.
Note: Therefore there is no such infirmity in the view taken in these cases about
the scope and effect of Sections 102 and 105 of the Evidence Act.

In State of U.P.v. Ram Swarup,54 a Bench consisting of M.H. Beg, J., as he then was,
Y.V. Chandrachud and V.R. Krishna lyer, JJ., while considering the right of private
defence put forward by the accused to some extent went into the question of burden of
proof under Section 105 and a reference is made to a decision of the larger Bench in
Rishi Kesh Singh's case. Chandrachud, J. who spoke for the Bench, observed thus:
"The judgment in Rishikesh Singh v. State55 explains the true nature and effect
of the different types of presumptions arising under Section 105 of the Evidence
Act. As stated is that judgment, while the initial presumption regarding the
absence of circumstances bringing the case within an exception may be met by
showing the existence of appropriate facts, the burden to establish a plea of
private defence by a balance of probabilities is a more difficult burden to
discharge. The judgment points out that despite this position there may be cases
where, though the plea of private defence is not established by an accused on a
balance of probabilities, yet the totality of facts and circumstances may still
throw a reasonable doubt on the existence of "mens rea" which normally is an
essential ingredient of an offence.

54
AIR 1974 SC 1570
55
AIR 1970 All 51
59
In Mohd. Ramzani v. State of Delhi56, Sarkaria, J., observed that
the onus which rests on the accused person under Section 105, Evidence Act, to
establish his plea of private defence is not as onerous as the un-shifting burden
which lies on the prosecution to establish every ingredient of the offence with
which the accused is charged beyond reasonable doubt. Therefore, the contrary
view taken by the Bombay High Court in Sakur's case and in State v. Bhima
Devraj 57 , that the burden is entirely on the accused to establish that he is
entitled to the benefit of the exception, does not lay down the correct law.

The meaning of the proposition "the Court shall presume the absence of such
circumstances":
At this stage it becomes necessary to consider the meaning of the words "the Court shall
presume the absence of such circumstances" occurring in Section 105 of the Evidence
Act. Section 4 of the Act explains the meaning of the term "shall presume" as to
mean that:
The Court shall regard the fact as proved unless and until it is disproved.
From a combined reading of these two Sections58 it may be inferred that where the
existence of circumstances bringing the case within the exception is pleaded or is raised
the Court shall presume the absence of such circumstances as proved unless and until
it is disproved59. As per section 3, a fact is said to be "proved" when, after considering
the matters before it, the Court either believes it to exist, or considers its existence so
probable that a prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it exists. A fact is said to be "disproved" when, after
considering the matters before it, the Court either believes that it does not exist, or
considers its non-existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it does not exist.
A fact is said to be "not proved" when it is neither "proved" nor "disproved."

The first part of Section 105 as noted above lays down that when a person is accused
of an offence, the burden of proving the existence of circumstances bringing the case
within any of the exceptions or proviso is on him and the latter part of it lays down that
the Court shall presume the absence of such circumstances. In a given case the accused
may discharge the burden by expressly proving the existence of such circumstances,
thereby he is able to disprove the absence of circumstances also. But where he is
unable to discharge the burden by expressly proving the existence of such
circumstances or he is unable to disprove the absence of such circumstances, then the
case would fall in the category of "not proved" and the Court shall presume the absence
of such circumstances. In this background we have to examine the meaning of the
words "the Court shall presume the absence of such circumstances" bearing in mind
the general principle of criminal jurisprudence that the prosecution has to prove
its case beyond all reasonable doubt and the benefit of every reasonable doubt should
go to the accused.

56
AIR 1980 SC 1341
57
AIR 1956 Sau. 77
58
Section 4 and 105 of the Indian Evidence Act, 1872.
59
In Section 3 of the Act meaning of the terms "proved", "disproved" and "not proved" are given
60
Views of some authors:
It will be useful to refer to some of the passages from the text books of outstanding
authors on evidence and then proceed to consider the ratio laid down by the Supreme
Court cases on this aspect.
1) In Phipson on Evidence, 13th edn., a passage reads as follows:
a. Page 44
"The burden is upon the prosecution of proving a defendant's guilt beyond
reasonable doubt before he is convicted. Even where the evidential burden
shifts to the defendant the burden of establishing proof beyond reasonable doubt
remains upon the prosecution and never changes. If on the whole case the jury
have such a doubt the defendant is entitled to be acquitted."
b. Page 48
In criminal cases the prosecution discharge their evidential burden by adducing
sufficient evidence to raise a prima facie case against the accused. If no
evidence is called for the defence the tribunal of fact must decide whether the
prosecution has succeeded in discharging its persuasive burden by proving its
case beyond a reasonable doubt. In the absence of any defence evidence, the
chances that the prosecution has so succeeded fare greater. Hence the accused
may be said to be under an evidential burden if the prosecution has established
a prima facie case. Discharge of the evidential burden by defence is not a pre-
requisite to an acquittal. The accused is entitled to be acquitted if at the end of
and on the whole of the case, there is a reasonable doubt created by the evidence
given by either the prosecution or the prisoner. ….No matter what the charge
..... the principle that the prosecution must prove the guilt of the prisoner is part
of the common law of England and no attempt to whittle it down can be
entertained.
c. Page 60
"Generally in criminal cases (unless otherwise directed by statute and subject
to 4-15 ante) the presumption of innocence casts on the prosecutor the burden of
proving every ingredient of the offence, even though negative averments be involved
therein. Thus, in cases of murder, the burden of proving death as a result of a
voluntary act of the accused and malice on his part is on the prosecution. On
charges of rape, etc. the burden of proving non-consent by the prosecutrix is on the
prosecution and in bigamy, that of proving the defendant's knowledge that his or
her spouse was alive within the seven years last past."
2) Wigmore on evidence, dealing with the "Legal Effect of a presumption" (3rd
ed., Vol. IX p. 289) explains:
"It must be kept in mind that the peculiar effect of a presumption 'of law' (that is, the
real presumption) is merely to invoke a rule of law compelling the jury to reach the
conclusion 'in the absence of evidence to the contrary' from the opponent. If the
opponent does offer evidence to the contrary (sufficient to satisfy the Judge's
requirement of some evidence).

3) Taylor in his 'Treatise on the Law of Evidence' ( 12th Edn. Vol. 1 page 259)
points out:
"On the two fold ground that a prosecutor must prove every fact necessary to
substantiate his charge against a prisoner, and that the law will presume innocence
in the absence of convincing evidence to the contrary, the burden of proof, unless
shifted by legislative interference, will fall in criminal proceedings on the
61
 prosecuting party, though, to convict, he must necessarily have recourse to negative
evidence. Thus, if a statute, in the direct description of an offence, and not by way
of proviso (a), contain negative matter, the indictment or information must also
contain a negative allegation, which must in general be supported by prima facie
evidence."
The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3
while explaining the meaning of the words "proved", "disproved" and "not proved" lays
down the standard of proof, namely, about the existence or nonexistence of the
circumstances from the point of view of a prudent man. The Section is so worded as to
provide for two conditions of mind-
4) First, that in which a man feels absolutely certain of a fact, in other words,
"believe it to exist" and
5) Secondly in which though he may not feel absolutely certain of a fact, he thinks
it so extremely probable that a prudent man would under the circumstances act
on the assumption of its existence.
The Act while adopting the requirement of the prudent man as an appropriate concrete
standard by which to measure proof at the same time contemplates of giving full effect
to be given to circumstances or condition of probability or improbability. It is this
degree of certainty to be arrived where the circumstances before a fact can be said to
be proved. A fact is said to be disproved when the Court believes that it does not exist
or considers its non-existence so probable in the view of a prudent man and now we
come to the third stage where in the view of a prudent man the fact is not proved i.e.
neither proved nor disproved.

Meaning of the phrase “Reasonable doubt”:

It is this doubt which occurs to a reasonable man, has legal recognition in the field of
criminal disputes. It is something different from moral conviction and it is also different
from a suspicion. It is the result of a process of keen examination of the entire material
on record by 'a prudent man'. There is a difference between a flimsy or fantastic plea
which is to be rejected altogether. But a reasonable though incompletely proved plea
which casts a genuine doubt on the prosecution version indirectly succeeds. The doubt
which the law contemplates is certainly not that of a weak or unduly vacillating,
capricious, indolent, drowsy or confused mind. It must be the doubt of the prudent man
who assumed to possess the capacity to "separate the chaff from the grain". It is the
doubt of a reasonable, astute and alert mind arrived at after due application of mind to
every relevant circumstances of the case appearing from the evidence. It is not a doubt
which occurs to a wavering mind60.

Degree of proof in beyond reasonable doubt:

Lord Denning, J. in Miller v. Minister of Pensions61, while examining the degree of
proof required in criminal cases stated:
"That degree is well-settled. It need not reach certainty but it must reach a high
degree of probability. Proof beyond reasonable doubt does not mean proof
beyond the shadow of a doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course of justice. If the evidence is
so strong against a man as to leave only a remote possibility in his favour which

60
Vijayee Singh And Ors vs State Of Uttar Pradesh 1990 AIR 1459, 1990 SCR (2) 573
61
[1947] 2 All ER 373
62
 can be dismissed with the sentence "of course, it is possible but not in the least
probable", the case is proved beyond reasonable doubt."
"All that the principle enjoins is a reasonable scepticism, not an obdurate persistence
in disbelief. It does not demand from the Judge a resolute and impenetrable incredulity.
He is never required to close his mind to the truth62."

Types of cases to which these principles underlined under Section 105 can be
applied and to what extent?
The Section deals with the burden of proof in respect of the general exceptions, special
exceptions and proviso contained in the Penal Code or in any part of the same code, or
in any law defining the offence. It is already noted that the doctrine of burden of proof
has to be the general law and the same remains always upon the prosecution.
In C.S.D. Swami v. The State,63 the character of a presumption of guilt under Section
5 of the Prevention of Corruption Act from proof of certain facts "unless the contrary
is proved" was considered and it was held there that the exception laid down by statute
was "a complete departure from the established principle of the criminal jurisprudence
that the burden always lies upon the prosecution to prove all the ingredients of the
offence charged and that the burden never shifts on to the accused to disprove his guilt."
V.D. Jhingan v. State of U.P., AIR 1966 SC 1762 also is a case dealing with the
presumption under Section 4 of the Prevention of Corruption Act under which the
accused was under an obligation to disprove his guilt by adducing such evidence by
which the preponderance of probabilities prove the defence case.
Somewhat to the same effect are the observations made by the Supreme Court in
Harbhajan Singh v. State of Punjab.64 After citing Woolmington's case it is
therein held that
"The principle of common law is part of the criminal law of the country. That is
not to say that if an exception is pleaded by an accused person he is not required
to justify his plea; but the degree and character of proof which the accused is
expected to support his plea, cannot be equated with the degree and character
of proof expected from the prosecution which is required to prove its case. The
onus on the accused may well be compared to the onus on a party in civil
proceedings; just as in civil proceedings the Court which tries an issue makes
its decision by adopting the test of probabilities, So must a criminal court hold
the plea made by the accused proved, if a preponderance of probability is
established by the evidence led by him."
It can thus be seen that there is a dividing line between a case of the accused discharging
the burden by preponderance of probabilities which is equated to proof of the exception
and a state of reasonable doubt that arises on a consideration of the evidence and facts
and circumstances as a whole, as regards one or more of the ingredients of the offence.
Therefore, in a case where the prosecution has discharged its burden and where the
accused pleads exception and if there is some evidence to support that plea the
obligatory presumption under Section 105 is lifted and the accused may proceed further
and establish his plea by a preponderance of probabilities or he may carry his plea
further and succeed in creating a reasonable doubt about an ingredient of an offence.
Consequently in respect of the general exceptions, special exceptions, provisos

62
Observed in another context regarding the concept of benefit of reasonable doubt Lord Du Paraq, cited
in Vijayee Singh And Ors vs State Of Uttar Pradesh 1990 AIR 1459.
63
AIR 1960 SC 7
64
AIR 1966 SC 97
63
contained in the Penal Code or in any law defining the offence, the accused by one
of these processes would be discharging the burden contemplated under Section 105
but in cases of the exceptions covered by special statutes and where the burden of proof
is placed on the accused to establish his plea, he will be discharging the same by
preponderance of probabilities and not by merely creating a doubt.

Relationship of section 105 and “plea of alibi”:

At this stage this is worth mentioning that these principles (discussed above) cannot be
made applicable to a case where the accused sets up alibi. There the burden entirely lies
on him and plea of alibi does not come within the meaning of these exceptions.
Circumstances leading to alibi are within his knowledge and as provided under Section
106 of the Act he has to establish the same satisfactorily. Likewise in the case where
the statute throws special burden on the accused to disprove the existence of the
ingredients of the offence, he has to discharge the burden65.
For example: in the cases arising under Prevention of Food Adulteration Act66 if the
accused pleads a defence under Section 19, the burden is on him to establish the same
since the warranty on which he relies is a circumstance within his knowledge.

It would be appropriate and useful to set out the sum and substance regarding the scope
of Section 105 which are as follows67:
1) The general burden of establishing the guilt of accused is always on the
prosecution and it never shifts.
2) Even in respect of the cases covered by Section 105 the prosecution is not
absolved of its duty of discharging the burden. The accused may raise a plea of
exception either by pleading the same specifically or by relying on the
probabilities and circumstances obtaining in the case.
3) He (accused) may adduce the evidence in support of his plea directly or rely on
the prosecution case itself or he can indirectly introduce such circumstances by
way of cross-examination and also rely on the probabilities and the other
circumstances.
4) Then the initial presumption against the accused regarding the non-existence of
the circumstances in favour of his plea gets displaced and on an examination of
the material if a reasonable doubt arises the benefit of it should go to the
accused.
5) The accused can also discharge the burden under Sec. 105 by preponderance of
probabilities in favour of his plea.
6) In case of general exceptions, special exceptions, provisos contained in the
Penal Code or in any law defining the offence, the Court, after due consideration
of the evidence in the light of the above principles, if satisfied, would state, in
the first instance, as to which exception the accused is entitled to, then see
whether he would be entitled for a complete acquittal of the offence charged or
would be liable for a lesser offence and convict him accordingly.

From what has been discussed above it emerges that the presumption regarding the
absence of existence of circumstances regarding the exception can be rebutted by the
accused by introducing evidence in any one of the manners mentioned above. If from
65
Vijayee Singh And Ors vs State Of Uttar Pradesh 1990 AIR 1459
66
Of 1954
67
Vijayee Singh And Ors vs State Of Uttar Pradesh 1990 AIR 1459
64
such a rebuttal, a reasonable doubt arises regarding his guilt, the accused should get the
benefit of the same. Such a reasonable doubt consequently negatives one or more of the
ingredients of the offence charged, for instance, from such a rebuttal evidence, a
reasonable doubt arises about the right of private defence then it follows that the
prosecution has not established the necessary ingredients of intention to commit the
offence. In that way the benefit of a reasonable doubt which arises from the legal and
factual considerations even under Section 105 of the Evidence Act should necessarily
go to the accused. It can be argued that the concept of 'reasonable doubt' is vague in
nature and the standard of 'burden of proof' contemplated under Section 105 should be
somewhat specific, therefore, it is difficult to reconcile both. But the general principles
of criminal jurisprudence, namely, that the prosecution has to prove its case beyond
reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt,
are to be borne in mind.

Burden of proof under Section 106:

It is impossible for the prosecution to prove certain facts particularly within the
knowledge of the accused. Section 106 is not intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond reasonable doubt. But the section would
apply to cases where the prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding the existence of certain other facts, unless
the accused by virtue of his special knowledge regarding such facts, failed to offer any
explanation which might drive the court to draw a different inference. Section 106 of
the Evidence Act is designed to meet certain exceptional cases, in which, it would be
impossible for the prosecution to establish certain facts which are particularly within
the knowledge of the accused68.
Section 106 of the Indian Evidence Act, neither constitute complete chain for
establishing the guilt of the appellants nor the same could be made basis for applying
Section 106 of the Indian Evidence Act. He also submitted that Section 106 of the
Indian Evidence Act has to be read with in conjunction with and not in derogation of
Section 101 of the Indian Evidence Act. Section 106 of the Indian Evidence Act does
not relieve the prosecution of its primary and foremost duty to establish the guilt of the
accused beyond all reasonable doubt independent of weaknesses of the defence. 69
Section 106 of the Evidence Act gets attracted. When according to the accused, they
were not present at the place of occurrence, the burden was on them to have established
the said fact since it was within their special knowledge70.

Some cases worth mentioning relating to s. 106:

1) In Ram Gulam Chaudhary v. State of Bihar71 Supreme Court considered the
applicability of Section 106 of the Evidence Act in a case somewhat similar to
the present one. This Court noted that the accused after brutally assaulting a boy
carried him away and thereafter the boy was not seen alive nor his body was
found. The accused, however, offered no explanation as to what they did after
they took away the boy. It was held that for the absence of any explanation from
the side of the accused about the boy, there was every justification for drawing
an inference that they had murdered the boy. It was further observed that even

68
State Of Maharashtra vs Satish Purushottam Aushal, Bombay High Court 2014
69
Digambar Singh And Another vs State Of U.P. Allahabad High Court 2015
70
State Of Maharashtra vs Satish Purushottam Aushal, Bombay High Court 2014
71
2001 SC
65
 though Section 106 of the Evidence Act may not be intended to relieve the
prosecution of its burden to prove the guilt of the accused beyond reasonable
doubt, but the section would apply to cases like the present, where the
prosecution has succeeded in proving facts from which a reasonable inference
can be drawn regarding death. The accused by virtue of their special knowledge
must offer an explanation which might lead the court to draw a different
inference."
2) In Vishal Yadav vs State Of U.P72. By virtue of Section 101 of the Evidence
Act, every person alleging a fact has to prove it asserting existence of facts,
cannot prove those facts exists if he desires any court to give judgment as to any
legal right or liability depending on such facts. Section 106 is an exception to
the above requirement as it imposes a burden of proving a fact which is within
the knowledge of such person irrespective of the onus to do so. Vivian Bose,
J., had observed that Section 106 of the Evidence Act is designed to meet certain
exceptional cases in which it would be impossible for the prosecution to
establish certain facts which are particularly within the knowledge of the
accused.
3) In Shambu Nath Mehra v. The State of Ajmer,73 the learned Judge has stated
the legal principle that this lays down the general rule that in a criminal case the
burden of proof is on the prosecution and Section 106 is certainly not intended
to relieve it of that duty. On the contrary, it is designed to meet certain
exceptional cases in which it would be impossible, or at any rate
disproportionately difficult for the prosecution to establish facts which are
'especially' within the knowledge of the accused and which he could prove
without difficulty or inconvenience. The word 'especially' stresses that It means
facts that are pre-eminently or exceptionally within his knowledge.
4) In, Sucha Singh v. State Punjab74, two persons were taken away by armed
assailants from their house at night and their dead bodies, studded with gunshot
injuries, were found next morning lying near their house. When the abductors
withheld the information which was within their knowledge, it was held that a
presumption in the circumstances of the case can be drawn that the abductors
were responsible for murder of the deceased on application of Section 106 and
114 of the Evidence Act.
5) In State of Rajasthan v. Kashi Ram, 75 the Supreme Court held that the
principle is well settled. The provisions of Section 106 if the Evidence Act itself
are unambiguous and categoric in laying down that when any fact is especially
within the knowledge of a person, the burden of proving that fact is upon him.
Thus, if a person is last seen with the deceased, he must offer an explanation as
to how and when he parted company. He must furnish an explanation which
appears to the court to be probable and satisfactory. If he does so he must be
held to have discharged his burden. If he fails to offer an explanation on the
basis of facts within his special knowledge, he fails to discharge the burden cast
upon him by Section 106 of the Evidence Act. In a case resting on circumstantial
evidence if the accused fails to offer a reasonable explanation in discharge of
the burden placed on him, that itself provides an additional link in the chain of

72
2014 Delhi High Court
73
AIR 1956 SC 404
74
2001 (4) SCC 375
75
(2006) 12 SCC 254
66
 circumstances proved against him. Section 106 does not shift the burden of
proof in a criminal trial, which is always upon the prosecution. It lays down the
rule that when the accused does not throw any light upon facts which are
specially within his knowledge and which could not support and theory or
hypothesis compatible within his innocence, the court can consider his failure
to adduce any explanation, as an additional link which completes the chain76.

It is only when prosecution, for well perceptible and acceptable reasons, is unable to
lead evidence because of circumstances beyond its control including the reason that the
fact required to be proved was "within the special knowledge of the accused alone" and
prosecution could not have known it by due care and diligence, that Section 106 can be
resorted to by shifting burden on the accused to divulge that fact which is "in his special
knowledge" and if accused fails to offer any reasonable explanation to satiate judicial
inquisitive scrutiny, he is liable to be punished. Section 106 could not be utilized to
make up for the prosecution's inability to establish its case by leading cogent and
reliable evidences 77 . The total effect of evidence is determined at the end of a
proceeding not merely by considering the general duties imposed by sections 101 and
102 of the Evidence Act but also the special or particular ones imposed by other
provisions such as sections 103 and 106of the Evidence Act. Section 103 enacts: "103.
The burden of proof as to any particular fact lies on that person who wishes the Court
to believe in its existence, unless it is provided by any law that the proof of that fact
shall lie on any particular person 78 . Section 106 of the Evidence Act cannot be
construed to mean that the accused has by reason of the circumstance that the facts are
especially within his own knowledge to prove that he has not committed the offence79.
It is for the prosecution to prove that he has committed the offence and that burden is
not in any manner whatsoever displaced by section 106 of the Evidence Act80.

76
The principle has been succinctly stated in Naina Mohd., Re., AIR 1960 Mad 218.
77
Digambar Singh And Another vs State Of U.P. Allahabad High Court 2015
78
Narayan Govind Gavate Etc vs State Of Maharashtra AIR 1977 SC183, 1977 SCR (1) 763
79
Shah Gumman Mal vs The State Of Andhra Pradesh AIR 1980 SC 793, 1980 SCR (2)1005
80
In re: Kanakasabai Pillai-A. I. R. 1940 Madras 1).
67
THE NATURE AND EXTENT OF THE BURDEN OF PROOF U/S 105:
The nature and extent of the burden that the accused has to discharge under Section 105
of the Evidence Act has been one of questions of great general importance and for
considerable time the opinions of the Courts were not uniform. As a matter of fact, in
Partap v. State of U.P.81, Supreme Court noted "that the question of law that arises here
seems to have troubled several High Courts."

The phrase "burden of proof" is not defined in the Act. In respect of criminal cases, it
is an accepted principle of criminal jurisprudence that the burden is always on the
prosecution and never shifts. This flows from the cardinal principle that the accused is
presumed to be innocent unless proved guilty by the prosecution and the accused is
entitled to the benefit of every reasonable doubt. Section 105 of the Evidence Act is in
the following terms:
"When a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General
Exceptions in the Indian Penal Code, or within any special exception or
proviso contained in any other part of the same Code, or in any law defining
the offence, is upon him, and the Court shall presume the absence of such
circumstances."
The Section to some extent places the onus of proving any exception in a penal statute
on the accused. The burden of proving the existence of circumstances bringing the case
within the exceptions mentioned therein is upon him. The Section further lays down
that the Court shall presume non-existence of circumstances bringing the case within
an exception." The words "the burden of proving the existence of circumstances"
occurring in the Section are very significant. It is well settled that "this burden" which
rests on the accused does not absolve the prosecution from discharging its initial burden
of establishing the case beyond all reasonable doubts. It is also well settled that the
accused need not set up a specific plea of his offence and adduce evidence. That being
so the question is: what is the nature of burden that lies on the accused under Section
105 if benefit of the general exception of private defence is claimed and how it can be
discharged?
In Woolmington v. The Director of Public Prosecutions 82 , Viscount Sankey, L.C.
observed:
"When evidence of death and malice has been given (this is a question for the
jury), the prisoner is entitled to show by evidence or by examination of the
circumstances adduced by the Crown that the act on his part which caused death
was either unintentional or provoked. If the jury are either satisfied with his
explanation or, upon a review of all, the evidence are left in reasonable doubt
whether, even if his explanation be not accepted,' the act was
unintentional or provoked, the prisoner is entitled to be acquitted."
It is further observed:
"Just as there is evidence on behalf of the prosecution so there may be evidence
on behalf of the prisoner which may cause a doubt as to his guilt. In either case,
he is entitled to the benefit of the doubt. But while the prosecution must prove
the guilt of the prisoner, there is no such burden laid on the prisoner to prove
his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not

81 AIR 1976 SC 966,

82 [1935] Appeal Cases 462,
68
 bound to satisfy the jury of his innocence ... Through- out the web of the English
criminal law one golden thread is always to be seen, that it is the duty of the
prosecution to prove the prisoner's guilt subject to what I have already said as
to the defence of insanity and subject also to any stationary exception. If, at the
end of and on the whole of the case, there is reasonable doubt created by the
evidence given by either the prosecution or the prisoner as to whether the
prisoner killed the deceased with a malicious intention, the prosecution has not
made out the case and the prisoner is entitled to an acquittal. No matter what
the charge or where the trial, the principle that the prosecution must prove the
guilt of the prisoner is part of the common law of England and no attempt to
whittle it down can be entertained."

Emperor v. U. Dampala 83 , a full Bench of the Rangoon High Court following the
Woolmington's case held that :
The ratio therein is not in any way inconsistent with the law in British India,
and that indeed the principles there laid down from valuable guide to the correct
interpretation of Section 105 of the Evidence Act and the full Bench laid down
that even if the evidence adduced by the accused fails to prove the existence of
circumstances bringing the case within the exception or exceptions pleaded, the
accused is entitled to be acquitted if upon a consideration of the evidence as a
whole the court is left in a state of reasonable doubt as to whether the accused
is or is not entitled to the benefit of the exception pleaded. We have noticed that
Section 105 requires that when a person is accused of any offence, the burden
of proving the existence of circumstances bringing the case within any of the
General Exceptions or special exception or proviso contained in any pan of the
Penal Code is on him and the Court shall presume the absence of such
circumstances. This presumption is rebuttable.

In Parbhoo and Ors. v. Emperor84, a Full Bench of seven Judges considered the scope
of Sections 102 and 105 of the Evidence Act. The majority agreed with the view taken
by the Full Bench in Dampala's case.

In Parbhoo's case J. Bajpai, in his concurring judgment observed that Section 105 is
stated in two forms, that of a rule as to the burden of proof and that of a presumption
and that the burden of proving the guilt of the accused always rests on the prosecution
and never shifts and the learned Judge further held that the doubt cast in connection
with the right of private defence must be a reasonable doubt and if there is such a
reasonable doubt, it casts a doubt on the entire case of the prosecution and that the result
is that the accused gets a benefit of doubt. "The presumption laid down in Section 105
of the Evidence Act might come into play but it does not follow therefrom that the
accused must be convicted even when the reasonable doubt under the plea of the right
of private defence or under any other plea contained in the general or special exceptions
pervades the whole case."

In Dampala's case Dunkley, J. while concurring with the majority view after discussing
the law on the subject observed: "The conclusion therefore is that if the Court either is

83 AIR 1937 Rangoon 83

84 AIR 1941 Allahabad 402
69
satisfied from the examination of the accused and the evidence adduced by him, or from
the circumstances appearing from the prosecution evidence, that the existence of
circumstances bringing the case within the exception or exceptions pleaded has been
proved, or upon a review of all the evidence is left in reasonable doubt whether such
circumstances had existed or not, the accused in the case of a general exception is
entitled to be acquitted, or, in the case of a special exception, can be convicted of a
minor offence." This case has been followed subsequently by a number of High Courts.

In K.M. Nanavati v. State of Maharashtra 85, it is observed that:

"In India, as it is in England, there is a presumption of innocence in favour of the
accused as a general rule, and it is the duty of the prosecution' to prove 'the guilt of the
accused. But when an accused relies upon the General Exceptions in the Indian Penal
Code or on any special exception or proviso contained in any other part of the Penal
Code, or in any law defining an offence, Section105 of the Evidence Act raises a
presumption against the accused and also throws a burden on him to rebut the said
presumption. Under that Section the Courts shall presume the absence of circumstances
bringing the case within any of the exceptions, that is, the Court shall regard the
nonexistence of such circumstances as proved till they are disproved. This presumption
may also be rebutted by admissions made or circumstances elicited by the evidence led
by the prosecution or by the combined effect of such circumstances and the evidence
adduced by the accused. But the section does not in any way affect the burden that lies
on the prosecution to prove all the ingredients, of the offence with which the accused
is charged; that burden never shifts. The alleged conflict between the general burden
which lies on the prosecution and the special burden imposed on the accused under
Section 105 of the Evidence Act is more imaginary then real. Indeed, there is no conflict
at all."

In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat86, it is observed:

"It is fundamental principle of criminal jurisprudence that an accused is presumed to be
innocent and therefore, the burden lies on the prosecution to prove the guilt of the
accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide
shall prove beyond reasonable doubt that the accused caused death with the requisite
intention described in Section 299 of the Penal Code. The general burden never shifts
and it always rests on the prosecution. But, under Section 105 of the Evidence Act the
burden of proving the existence of circumstances bringing the case within the exception
lies on the accused; and the Court shah presume the absence of such circumstances.
Under Section 105 of the Evidence Act, read with the definition of "shall presume" in
Section 4 thereof, the Court shall regard the absence of such circumstances as proved
unless, after considering the matters before it, it believes that the said circumstances
existed Or their existence was so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that they did exist. To
put it in other words, the accused will have to rebut the presumption that such
circumstances did not exist, by placing material before the Court sufficient to make it
consider the existence of the said Circumstances so probable that a prudent man would
act upon them. The accused has to satisfy the standard of a "prudent man". If the
material placed before the Court such as, oral and documentary evidence, presumptions,

85 [1962] Suppl. 1 SCR 567

86
AIR 1964 SC 1563
70
admissions or even the prosecution evidence, satisfied the test of "prudent man", the
accused will have discharged his burden. The evidence so placed may not be sufficient
to discharge the burden under Section 105 of the Evidence Act, but it may raise a
reasonable doubt in the mind of a Judge as regards one or other of the necessary
ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the
mind of the Judge whether the accused had the requisite intention laid down in Section
299 of the Penal Code."

A careful reading of these two decisions would reveal that the statement of law therein
neither expressly or impliedly overrules or is in conflict with the majority view in
Parbhoo's case. However in Rishi Kesh Singh & Ors. v. The State87, the question that
came up for consideration before a Larger Bench consisting of nine Judges was whether
the dictum in Parbhoo's case is still a good law on the ground that some of the decisions
of the Supreme Court have cast a cloud of doubt. A majority of seven Judges approved
the principle laid down in Parbhoo's case. The Larger Bench also referred to various
subsequent decisions of the Supreme Court also including the Nanavati's case; Bhikari
v. State of Uttar Pradesh88, and Dahyabhai's case, Beg, J., as he then was, in a separate
but concurring judgment after referring to the Nanavati's case; Bhikari's ease;
Dahyabhai's case and Mohar Rai & Bharath Rai's case, held that there is no conflict
between what was held by the Supreme Court and the majority view taken in Parbhoo's
case. After analysing the view expressed by the Surpeme Court in the several above
mentioned decisions, Beg, J. observed:
"After a close scrutiny of every part of each of the seven opinions in Parbhoo's case89
I have come to the conclusion that the majority of their Lordships did not lay down
anything beyond three important propositions which, if not either directly or indirectly
supported by decisions of their Lordships of the Supreme Court have not been affected
in the slightest degree by these decisions. These propositions are;
1) firstly, that no evidence appearing in the case to support the exception pleaded
by the accused can be excluded altogether from consideration on the ground
that the accused has not proved his plea fully;
2) secondly, that the obligatory presumption at the end of Sec. 105 is necessarily
lifted at least when there is enough evidence on record to justify giving the
benefit of doubt to the accused on the question whether he is guilty of the
offence with which he is charged; and,
3) thirdly, if the doubt, though raised due to evidence in support of the exception
pleaded, is reasonable and affects an ingredient of the offence with which the
accused is charged, the accused would be entitled to an acquittal.
As I read the answer of the majority in Parbhoo's case I find it based on these three
propositions which provide the ratio decidendi and this is all that needs to be clarified."
"The practical result of the three propositions stated above is that an accused's plea or
an exception may reach one of three not sharply demarcated stages, one succeeding the
other, depending upon the effect of the whole evidence in the case judged by the
standard Of a prudent man weighing or balancing probabilities carefully. These stages
are; firstly, a lifting of the initial obligatory presumption given at the end of Sec. 105
of the Act; secondly the creation of a reasonable doubt about the existence of an

87 AIR 1970 Allahabad 51

88 AIR 1966 SC 1
89 [1941] All LJ 619=AIR 1941 All 402 (FB).
71
ingredient of the offence; and thirdly, a complete proof of the exception by "a
preponderance of probability", which covers even a slight tilt of the balance of
probability in favour of the accused's plea. The accused is not entitled to an acquittal if
his plea does not get beyond the first stage. At the second stage, he becomes entitled to
acquittal by obtaining a bare benefit of doubt. At the third stage, he is undoubtedly
entitled to an acquittal. This, in my opinion, is the effect of the majority view in
Parbhoo's case which directly relates to first two stages only. The Supreme Court
decisions have considered the last two stages so far, but the first stage has not yet been
dealt with directly or separately there in any case brought to our notice."

Mathur, J., with whom five Judges agreed, while holding that ratio laid down by the
majority in Parbhoo's case is in conformity with law, however, observed that the
reasoning in support of the conclusions is erroneous. Beg, J. was not prepared to go to
that extent. The majority speaking through Shri Mathut, J. laid' down that the dictum in
Parbhoo's case which is still a good law, can, however, be modified as follows:
"In a case in which any General Exception in the Indian Penal Code, or any special
exception or proviso contained in another part of the same Code, or in any law defining
the offence, is pleaded or raised by an accused persons and the evidence led in support
of such plea, judged by the test of the preponderance of probability, as in a civil
proceeding, fails to displace the presumption arising from Section 105 of the Evidence
Act, in other words, to disprove the absence of circumstances bringing the case within
the said exception; but upon a consideration of the evidence as a whole, including
the evidence given in support of the plea based on the said exception or proviso, a
reasonable doubt is created in the mind of the Court, as regards one or more the
ingredients of the offence, the accused person shall be entitled to the benefit of the
reasonable doubt as to his guilt and hence to acquittal of the said offence."

Question;
if the view taken by the Allahabad High Court is to be accepted then it would amount
to throwing the burden on the prosecution not only to establish the guilt of the accused
beyond all reasonable doubt but also that the accused is not entitled to benefit of any
exception and if such a principle is laid down then Section 105 of the Evidence Act
would be rendered otiose and there would be inconsistency between Sections 102' and
105.

Answer:
This very question has been answered by the Supreme Court in Nanavati's case and it
has been held that the general burden of proving the ingredients of the offence is always
on the prosecution but the burden of proving the circumstances attracting the exception
lies on the accused. But the failure on the part of the accused to establish all the
circumstances bringing his case under the exception does not absolve the prosecution
to prove the ingredients of the offence and the evidence relied upon by the accused in
support of his claim for the benefit of the exception though insufficient to establish the
exception may be sufficient to negative one or other of the ingredients of the offence
and thus throw a reasonable doubt on the essential ingredients of the offence of
murder. The accused for the purpose of discharging this burden under Section 105 can
rely also on the probabilities.

72
As observed in Dahyabhai's case "the accused will have to rebut the presumption that
such circumstances did not exist" by placing material before the court which satisfies
the standard of a prudent man and the material may consist of oral and documentary
evidence, presumptions, admissions or even the prosecution evidence and the material
so placed may not be sufficient to discharge the burden under Section 105 of the
Evidence Act but it may raise a reasonable doubt in the mind of a Judge as regards one
or other of the necessary ingredients of the offence itself. Therefore there is no
such infirmity in the view taken in these cases about the scope and effect of Sections
102 and 105 of the Evidence Act.

In State of U.P.v. Ram Swarup, AIR 1974 SC 1570 a Bench consisting of M.H. Beg,
J., as he then was, Y.V. Chandrachud and V.R. Krishna lyer, JJ., while considering the
right of private defence put forward by the accused to some extent went into the
question of burden of proof under Section 105 and a reference is made to a decision of
the larger Bench in Rishi Kesh Singh's case. Chandrachud, J. who spoke for the Bench,
observed thus:
"The judgment in Rishikesh Singh v. State, AIR 1970 All 51 explains the true
nature and effect of the different types of presumptions arising under Section
105 of the Evidence Act. As stated is that judgment, while the initial
presumption regarding the absence of circumstances bringing the case within
an exception may be met by showing the existence of appropriate facts, the
burden to establish a plea of private defence by a balance of probabilities is a
more difficult burden to discharge. The judgment points out that despite this
position there may be cases where, though the plea of private defence is not
established by an accused on a balance of probabilities, yet the totality of facts
and circumstances may still throw a reasonable doubt on the existence of
"mensrea" which normally is an essential ingredient of an offence. The present
is not a case of this latter kind."

We may also refer to a judgment of a Bench of three Judges consisting of M.H. Beg,
P.N. Bhagwati and R.S. Sarkaria, JJ. in Partap's case. Sarkaria, J. speaking for himself
and Bhagwati, J. observed:
"We have carefully scrutinised the judgments of the courts below. In our
opinion, their finding in regard to the plea of self-defence is clearly erroneous.
They appear to have overlooked the distinction between the nature of burden
that rests on an accused under Sec. 105, Evidence Act to establish a plea of self
defence and the one cast on the prosecution by Section 101 to prove its case. It
is well settled that the burden on the accused is not as onerous as that which lies
on the prosecution. While the prosecution is required to prove its case
beyond a reasonable doubt, the accused can discharge his onus by establishing
a mere preponderance of probability."
Beg, J., however in a separate judgment felt a doubt about the veracity of the defence
case and the evidence found in support of it to be able to hold that it is proved on a
balance of probabilities. But in his view what transpires from a consideration of the
whole evidence is enough to entitle the accused to a benefit of doubt. Beg, J. referred
to the judgments of the Full Bench in Parbhoo's case; Nanavati's case and the larger
Bench decision in Rishi Kesh Singh's case and applying the principles of benefit of
doubt laid in the above three cases to the facts of the case before them observed:

73
"Applying the principle of benefit of doubt as I had explained above, to the plea of
private defence of person in the instant case. I think that, even if the appellant did not
fully establish his plea, yet, there is sufficient evidence, both direct and circumstantial,
to justify the finding that the prosecution has not established its case beyond
reasonable doubt against Partap on an essential ingredient of the offence of murder; the
required mensrea. After examining all the facts and circumstances revealed by the
prosecution evidence itself and the defence evidence and considering the effect of non-
production of the better evidence available which, for some unexplained reason, was
not produced. I am not satisfied that the plea of private defence of person can be
reasonably ruled out here. This is enough, in my opinion, to entitle the appellant to
get the benefit of doubt. ' ' In Mohd. Ramzani v. State of Delhi, AIR 1980 SC 134 1
Sarkaria, J., who spoke for the Bench, observed that the onus which rests on the accused
person under Section 105, Evidence Act, to establish his plea of private defence is not
as onerous as the un-shifting burden which lies on the prosecution to establish every
ingredient of the offence with which the accused is charged beyond reasonable doubt.
Therefore, the contrary view taken by the Bombay High Court in Sakur's case and in
State v. Bhima Devraj, AIR 1956 Sau. 77 that the burden is entirely on the accused to
establish that he is entitled to the benefit of the exception, does not lay down the correct
law.

At this stage it becomes necessary to consider the meaning of the words "the Court shall
presume the absence of such circumstances" occurring in Section 105 of the Evidence
Act. Section 4 of the Act explains the meaning of the term "shall presume" as to
mean that the Court shall regard the fact as proved unless and until it is disproved.
'From a combined reading of these two Sections it may be inferred that where the
existence of circumstances bringing the case within the exception is pleaded or is
raised the Court shall presume the absence of such circumstances as proved
unless and until it is disproved. In Section 3 of the Act meaning of the terms "proved",
"disproved" and "not proved" are given. As per this provision, a fact is said to be
"proved" when, after considering the matters before it, the Court either believes it to
exist, or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists. A fact is
said to be "disproved" when, after considering the matters before it, the Court either
believes that it does not exist, or considers its non-existence so probable that a prudent
man ought, under the circumstances of the particular case, to act upon the supposition
that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor
"disproved."

The first part of Section 105 as noted above lays down that when a person is accused
of an offence, the burden of proving the existence of circumstances bringing the case
within any of the exceptions or proviso is on him and the latter part of it lays down that
the Court shall presume the absence of such circumstances. In a given case the accused
may discharge the burden by expressly proving the existence of such circumstances,
thereby he is able to disprove the absence of circumstances also. But where he is
unable to discharge the burden by expressly proving the existence of such
circumstances or he is unable to disprove the absence of such circumstances, then the
case would fall in the category of "not proved" and the Court may presume the absence
of such circumstances. In this background we have to examine the meaning of the
words "the Court shall presume the absence of such circumstances" bearing in mind
74
 the general principle of criminal jurisprudence that the prosecution has to prove
its case beyond all reasonable doubt and the benefit of every reasonable doubt should
go to the accused.

It will be useful to refer to some of the passages from the text books of outstanding
authors on evidence and then proceed to consider the ratio laid down by the Supreme
Court cases on this aspect. In Phipson on Evidence, 13th edn. page 44, a passage reads
as follows:
"The burden is upon the prosecution of proving a defendant's guilt beyond reasonable
doubt before he is convicted. Even where the evidential burden shifts to the defendant
the burden of establishing proof beyond reasonable doubt remains upon the prosecution
and never changes. If on the whole case the jury have such a doubt the defendant is
entitled to be acquitted."

Another passage at page 48 reads as follows:' "In criminal cases the prosecution
discharge their evidential burden by adducing sufficient evidence to raise a prima facie
case against the accused. If no evidence is called for the defence the tribunal of fact
must decide whether the prosecution has succeeded in discharging its persuasive burden
by proving its case beyond a reasonable doubt. In the absence of any defence evidence,
the chances that the prose- cution has so succeeded fare greater. Hence the accused may
be said to be under an evidential burden if the prosecution has established a
prima facie case. Discharge of the evidential burden by defence is not a pre-requisite to
an acquittal. The accused is entitled to be acquitted if at the end of and on the whole of
the case, there is a reasonable doubt created by the evidence given by either the
prosecution or the prisoner .....No matter what the charge ..... the principle that the
prosecution must prove the guilt of the prisoner is part of the common law of England
and no attempt to whittle it down can be entertained.
In many cases, however, the accused's defence will involve introducing new issues, for
example, automatism, provocation, self-defence, duress, etc. Once there is any evidence
to support such "explanations" the onus of disproving them rests upon the prosecution.
The accused, either by cross- examination of the prosecution witnesses or by evidence
called on his behalf or by a combination of the two,must place before the court such
material as makes the defence a live issue fit and proper to be left to the jury. But once
he has succeeded in doing this and thereby discharged his evidential burden it is then
for the Crown to destroy that defence in such a manner as to leave in the jury's minds
no reasonable doubt that the accused cannot be absolved on the grounds of the alleged
facts constituting the defence." Dealing with the presumptions of law, the author has
noted on page 60, thus:

"Generally in criminal cases (unless otherwise directed by statute and subject to 4-15
ante) the presumption of innocence casts on the prosecutor the burden of proving every
ingredient of the offence, even though negative averments be involved therein. Thus,
in cases of murder, the burden of proving death as a result of a voluntary act of the
accused and malice on his part is on the prosecution. On charges of rape, etc. the burden
of proving non-consent by the prosecutrix is on the prosecution and in bigamy, that of
proving the defendant's knowledge that his or her spouse was alive within the seven
years last past."

75
Wigmore on evidence, dealing with the "Legal Effect of a presumption" (3rd ed., Vol.
IX p. 289) explains: "It must be kept in mind that the peculiar effect of a presumption
'of law' (that is, the real presumption) is merely to invoke a rule of law compelling the
jury to reach the conclusion 'in the absence of evidence to the contrary' from the
opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the
Judge's requirement of some evidence), the presumption disappears as a rule of Taylor
in his 'Treatise on the Law of Evidence' ( 12th Edn. Vol. 1 page 259) points out:

"On the two fold ground that a prosecutor must prove every fact necessary to
substantiate his charge against a prisoner, and that the law will presume innocence in
the absence of convincing evidence to the contrary, the burden of proof, unless shifted
by legislative interference, will fall in criminal proceedings on the prosecuting party,
though, to convict, he must necessarily have recourse to negative evidence. Thus, if a
statute, in the direct description of an offence, and not by way of proviso (a), contain
negative matter, the indictment or information must also contain a negative allegation,
which must in general be supported by prima facie evidence."

Dealing with the presumptions, the author says: "The proper direction as to onus of
proof where prima facie evidence has been given on the part of the prosecution which,
if unanswered, would raise a presumption upon which the jury might be justified in
finding a verdict of guilty, and the defendant has called evidence to rebut that presump-
tion, is that if they accepted the explanation given by and on behalf of the prisoner,
or if that explanation raised in their minds a reasonable doubt as to his guilt, they
should acquit him as the onus of proof that he was guilty still lay upon the
prosecution. If upon the whole evidence the jury are left in a real state of doubt the
prosecution has failed to satisfy the onus of proof which lies upon them."

It is held in Nanavati's case that under Section 105 of the act the Court shall presume
the absence of circumstances bringing the case within any of the exceptions, i.e. the
Court shall regard the non-existence of such circumstances as proved till they are
disproved, but this presumption can be rebutted by the accused by introducing evidence
to support his plea of accident in the circumstances mentioned therein. This
presumption may also be rebutted by admissions made or circumstances elicited from
the evidence led by the prosecution or by the combined effect of such circumstances
and the evidence adduced by the accused. Dealing with the ingredients of the offence
to be proved by the prosecution and the burden to be discharged under Section 105 of
the Evidence Act by the accused and a reasonable doubt that may arise on the basis of
such rebuttal evidence by the accused, it is observed:

"An illustration may bring out the meaning. The prosecution has to prove that the
accused shot dead the deceased intentionally and thereby committed the offence of
murder within the meaning of s. 300 of the Indian Penal Code; the prosecution has to
prove the ingredients of murder, and one of the ingredients of that offence is that the
accused intentionally shot the deceased; the accused pleads that he shot at the deceased
by accident without any intention or knowledge in the doing of a lawful act in a lawful
manner by lawful means with proper care and caution, the accused against whom a
presumption is drawn under s. 105 of the Evidence Act that the shooting was not by
accident in the circumstances mentioned in s. 80 of the Indian Penal Code, may adduce
evidence to rebut that presumption. That evidence may not be sufficient to prove all the
76
ingredients of s. 80 of the Indian Penal Code, but may prove that the shooting was by
accident or inadvertance, i.e. it was done without any intention or requisite state of
mind, which is the essence of the offence, within the meaning of s. 300 Indian Penal
Code. or at any rate may throw a reasonable doubt on the essential ingredients of the
offence of murder. In that event, though the accused failed to bring his case within the
terms of s. 80 of the Indian Penal Code, the Court may hold that the ingredients of
the offence have not been established or that the prosecution has not made out the case
against the accused. In this view it might be said that the general burden to prove the
ingredients of the offence, unless there is a specific statute to the contrary, is always on
the prosecution, but the burden to prove the circumstances coming under the exceptions
lies upon the accused. The failure on the part of the accused to establish all the
circumstances bringing his case under the exception does not absolve the prosecution
to prove the ingredients of the offence; indeed, the evidence, though insufficient to
establish the exception, may be sufficient to negative one or more of the ingredients of
the offence."

In Dahyabhai's case as already noted, the relevant portion reads thus:

"The evidence so placed may not be sufficient to discharge the burden under s. 105 of
the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards
one or other of the necessary ingredients of the offence itself. It may, for instance,
raise a reasonable doubt in the mind of the judge whether the accused had the requisite
intention laid down in S. 299 of the Penal Code."

The maxim that the prosecution must prove its case beyond reasonable doubt is a rule
of caution laid down by the Courts of Law in respect of assessing the evidence.in
criminal cases. Section 105 places 'burden of proof' on the accused in the first part and
in the second part we find a presumption which the Court can draw regarding the
absence of the circumstances which presumption is always rebuttable. Therefore,
taking the Section as a whole the 'burden of proof' and the presumption have to be
considered together. It is axiomatic when the evidence is sufficient as to prove the
existence of a fact conclusively then no difficulty arises. But where the accused
introduces material to dis- place the presumption which may affect the prosecution case
or create a reasonable doubt about the existence of one or other ingredients of the
offence and then it would amount to a case where prosecution failed to prove its own
case beyond reasonable doubt. The initial obligatory presumption that the Court shall
presume the absence of such circumstances gets lifted when a plea of exception is
raised. More so when there are circumstances on the record (gathered from the prose
cution evidence, chief and cross examinations, probabilities and circumstances, if any
introduced by the accused, either by adducing evidence or otherwise) creating a
reasonable doubt about the existence of the ingredients of the offence. In case of such
a reasonable doubt, the Court has to give the benefit of the same to the accused. The
accused may also show on the basis of the material a preponderance of probability in
favour of his plea. If there are absolutely no circumstances at all in favour of the
existence of such an exception then the rest of the enquiry does not arise inspite of a
mere plea being raised. But if the accused succeeds in creating a reasonable doubt or
shows preponderance of probability in favour of his plea, the obligation on his part
under Section 105 gets discharged and he would be entitled to an acquittal.

77
From what has been discussed above it emerges that the presumption regarding the
absence of existence of circumstances regarding the exception can be rebutted by the
accused by introducing evidence in any one of the manners mentioned above. If from
such a rebuttal, a reasonable doubt arises regarding his guilt, the accused should get the
benefit of the same. Such a reasonable doubt consequently negatives one or more of the
ingredients of the offence charged, for instance, from such a rebuttal evidence, a
reasonable doubt arises about the right of private defence then it follows that the
prosecution has not established the necessary ingredients of intention to commit the
offence. In that way the benefit of a reasonable doubt which arises from the legal and
factual considerations even under Section 105 of the Evidence Act should necessarily
go to the accused. It can be argued that the concept of 'reasonable doubt' is vague in
nature and the standard of 'burden of proof' contemplated under Section/05 should be
somewhat specific, therefore, it is difficult to reconcile both. But the gener- al principles
of criminal jurisprudence, namely, that the prosecution has to prove its case beyond
reasonable doubt and that the accused is entitled to the benefit of a reason- able doubt,
are to be borne in mind. The 'reasonable doubt' is one which occurs to a prudent and
reasonable man. Section 3 while explaining the meaning of the words "proved",
"disproved" and "not proved" lays down the standard of proof, namely, about the
existence or nonexistence of the circumstances from the point of view of a prudent man.
The Section is so worded as to provide for two conditions of mind, first, that in which
a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly
in which though he may not feel absolutely certain of a fact, he thinks it so extremely
probable that a prudent man would under the circumstances act on the
assumption of its existence. The Act while adopting the require- ment of the prudent
man as an appropriate concrete standard by which to measure proof at the same time
contemplates of giving full effect to be given to circumstances or condition of
probability or improbability. It is this degree of certainty to be arrived where the
circumstances before a fact can be said to be proved. A fact is said to be disproved
when the Court believes that it does not exist or considers its non-existence so probable
in the view of a prudent man and now we come to the third stage where in the view of
a prudent man the fact is not proved i.e. neither proved nor disproved. It is this
doubt which occurs to a reasonable man, has legal recognition in the field of criminal
disputes. It is something different from moral conviction and it is also different from a
suspicion. It is the result of a process of keen examination of the entire material on
record by 'a prudent man'.

There is a difference between a flimsy or fantastic plea which is to be rejected

altogether. But a reasonable though incompletely proved plea which casts a genuine
doubt on the prosecution version indirectly succeeds. The doubt which the law
contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent,
drowsy or confused mind. It must be the doubt of the prudent man who assumed to
possess the capacity to "separate the chaff from the grain". It is the doubt of a
reasonable, astute and alert mind arrived at after due application of mind to every
relevant circumstances of the case appearing from the evidence. It is not a doubt which
occurs to a wavering mind.

Lord Denning, J. in Miller v. Minister of Pensions, [1947] 2 All ER 373 while

examining the degree of proof required in criminal cases stated:

78
"That degree is well-settled. It need not reach certainty but it must reach a high degree
of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow
of a doubt. The law would fail to protect the community if it admitted fanciful
possibilities to deflect the course of justice. If the evidence is so strong against a man
as to leave only a remote possibility in his favour which can be dismissed with the
sentence "of course, it is possible but not in the least probable", the case is proved
beyond reasonable doubt."

Regarding the concept of benefit of reasonable doubt Lord Du Paraq, in another context
observed thus:

"All that the principle enjoins is a reasonable scepticism, not an obdurate persistence
in disbelief. It does not demand from the Judge a resolute and impenetrable incredulity.
He is never required to close his mind to the truth."

Now, let us examine the types of cases to which these principles underlined under
Section 105 can be applied and to what extent?
The Section deals with the burden of proof in respect of the general exceptions, special
exceptions and proviso contained in the Penal Code or in any part of the same code, or
in any law defining the offence. It is already noted that the doctrine of burden of proof
has to be the general law and the same remains always upon the prosecu- tion.
However, in respect of the cases where the statute wholly places the burden of
proof on the accused himself, then the burden is more onerous on him. As already noted
in Rishi Kesh Singh's case Mathur, J. speaking for the majori- ty, while affirming the
view taken in Parbhoo's case observed that in a case where any such exception is
pleaded and the evidence led in support of such plea, judged by the test of
preponderance of probability, fails to displace the presumption arising from Section
105 of the Evidence Act; yet if upon a consideration of the evidence as a whole
including the evidence led in support of plea of exception or proviso, a reasonable doubt
is created in the mind of the Court, as regards one or more of the ingredients of the
offence, the accused shall be entitled to the benefit of the reasonable doubt as to his
guilt. In C.S.D. Swami v. The State, AIR 1960 SC 7 the character of a presumption
of guilt under Section 5 of the Prevention of Corruption Act from proof of certain facts
"unless the contrary is proved" was considered and it was held there that the exception
laid down by statute was "a complete departure from the established principle of
the criminal jurisprudence that the burden always lies upon the prosecution to
prove all the ingredients of the offence charged and that the burden never shifts on to
the accused to disprove his guilt." V.D. Jhingan v. State of U.P., AIR 1966 SC 1762
also is a case deal- ing with the presumption under Section 4 of the Prevention of
Corruption Act under which the accused was under an obligation to disprove his guilt
by adducing such evidence by which the preponderance of probabilities prove the de-
fence case.

An examination of these cases would reveal that the statutory exception which modifies
the operation of the general principle that the prosecution must prove all ingre- dients
of the offence with which the accused is charged, to some extent stands on a different
However, Beg, J. in his separate judgment, in Rishi Kesh Singh's case observed
thus:

79
"It covers every tilt or preponderance of the balance of probability whether slight or
overwhelming. In fact, the dividing line between a case of mere "preponderance of
probability" by a slight tilt only of the balance of probability and a case of reasonable
doubt is very thin indeed although it is there. A case of reasonable doubt which must
necessarily be one of which, on a balancing of probabilities, two views are possible.
What may appear to one reason- able individual to be a case not fully proved may
appear.to another to be so proved on a balancing of probabilities. Such a case and only
such a case would, in my opinion, be one of reasonable doubt. A mere preponderance
of probability in favour of the exception pleaded by an accused would, however,
constitute a "complete" proof of the exception for the accused but a state of reasonable
doubt would not." Somewhat to the same effect are the observations made by the
Supreme Court in Harbhajan Singh v. State of Punjab, AIR 1966 SC 97. After
citing Woolmington's case it is therein held that "The principle of common law is part
of the criminal law of the country. That is not to say that if an exception is pleaded by
an accused person he is not required to justify his plea; but the degree and character of
proof which the accused is expected to support his plea, cannot be equated with the
degree and character of proof expected from the prosecution which is required to prove
its case. The onus on the accused may well be compared to the onus on a party in civil
proceedings; just as in civil proceedings the Court which tries an issue makes its
decision by adopting the test of probabilities, So must a criminal court hold the' plea
made by the accused proved, if a preponderance of probability is established by the
evidence led by him." It can thus be seen that there is a dividing line between a case of
the accused discharging the burden by preponderance of probabilities which is equated
to proof of the exception and a state of reasonable doubt that arises on a consideration
of the evidence and facts and circumstances as a whole, as regards one or more of the
ingredients of the offence. Therefore, in a case where the prosecution has discharged
its burden and where the accused pleads exception and if there is some evidence to
support that plea the obligatory presumption under Section 105 is lifted and the accused
may proceed further and establish his plea by a preponderance of probabilities or he
may carry his plea further and succeed in creating a reasonable doubt about an
ingredient of an offence. Consequently in respect of the general exceptions,
special exceptions, provisos contained in the Penal Code or in any law defining
the offence, the accused by one of these processes would be discharging the burden
contemplated under Section 105 but in cases of the exceptions covered by special
statutes and where the burden of proof is placed on the accused to establish his
plea, he will be discharging the same by preponderance of probabilities and not by
merely creating a doubt.

At this stage we have to point out that these principles cannot be made applicable to a
case where the accused sets up alibi. There the burden entirely lies on him and plea of
alibi does not come within the meaning of these exceptions. Circumstances leading to
alibi are within his knowledge and as provided under Section 106 of the Act he has to
establish the same satisfactorily. Likewise in the case where the statute throws special
burden on the accused to disprove the existence of the ingredients of the offence, he
has to discharge the burden, for example, in the cases arising under Prevention of
Food Adulteration Act if the accused pleads a defence under Section 19, the burden is
on him to establish the same since the warranty on which he relies is a circumstance
within his knowledge. However, it may not be necessary to enumerate these kinds of
cases as we are mainly concerned in this case only with the scope and application of
80
Section 105 of the Evidence Act. We also make it clear that the principles laid down by
us are only in respect of the said provision only. As we think that it would be appropriate
and useful to set out the sum and substance of the above discussions regarding the scope
of Section 105 and we accordingly state the same as follows:

The general burden of establishing the guilt of accused is always on the prosecution
and it never shifts. Even in respect of the cases covered by Section 105 the prosecution
is not absolved of its duty of discharging the burden. The accused may raise a plea of
exception either by pleading the same specifically or by relying on the probabilities and
circumstances obtaining in the case. He may adduce the evidence in support of his plea
directly or rely on the prosecution case itself or, as stated above, he can indirectly
introduce such circumstances by way of cross-examination and also rely on the
probabilities and the other circumstances. Then the initial presumption against the
accused regarding the non-existence of the circumstances in favour of his plea gets
displaced and on an examination of the material if a reasonable doubt arises the
benefit of it should go to the accused. The accused can also discharge the burden under
Sec. 105 by preponderance of probabilities in favour of his plea. In case of general
exceptions, special exceptions, provisos contained in the Penal Code or in any law
defining the offence, the Court, after due consideration of the evidence in the light of
the above principles, if satisfied, would state, in the first instance, as to which exception
the accused is entitled to, then see whether he would be entitled for a complete
acquittal of the offence charged or would be liable for a lesser offence and convict him
accordingly.

81
 WITNESSING OF WITNESSED WITNESS

Meaning of to be a witness:
Four of the conclusions drawn by the court, which are relevant for our purpose, could
be quoted90:
1. ‘To be a witness’ is not equivalent to ‘furnishing evidence’ in its widest
significance; that is to say, as including not merely making of oral or written
statements but also production of documents or giving materials which may be
relevant at a trial to determine the guilt or innocence of the accused.
2. Giving thumb impressions or impressions of foot or palm or fingers or specimen
writings or showing parts of the body by way of identification are not included
in the expression ‘to be a witness’.
3. ‘To be a witness’ means imparting knowledge in respect of relevant facts by an
oral statement or a statement in writing, made or given in court or otherwise.
4. ‘To be a witness’ in its ordinary grammatical sense means giving oral testimony
in court. Case law has gone beyond this strict literal interpretation of the
expression which may now bear a wider meaning, namely, bearing testimony
in court or out of court by a person accused of an offence, orally or in writing.”

Who decides the question of competency:

In Halsbury's Laws of England, Volume 17, 4th Edition, the Judge's duty in this behalf
has been summarised stating: "232. Judge's duty. Questions as to the competency
or incompetency of a witness are decided by the judge, generally on a preliminary
examination called the voirdire; but if the incompetency of a witness is not discovered
until after he is sworn and has given evidence, his evidence may nonetheless be
objected to and rejected91."

Meaning of the word testify:

Testimonial92 compulsion means that you cannot make a witness say what he does not
want to say in court. Section 118, Evidence Act indicates that "testify" means to make
statements in Court and not statements outside court93.

Litmus test of truthness of testimony:

The variety of circumstances and peculiar features of each case cannot be identical with
those in another and judgement of Courts on when and why a certain witness has been
accepted or rejected can hardly serve as binding decisions, Little assistance can
therefore be derived from case law on credibility. There are no legal litmus tests to
discover the honest conscience of a human being and the canons of truthfulness of oral
evidence sans (without) commonsense, are but misleading dogmas94 (pronounced as
dogma). The golden rule is, as George Bernard Shaw tells us, that there are no golden
rules. For this reason we are not referring to the many rulings cited before us. But we
certainly inform ourselves with the general touchstones of reliability. The fact that we

90
Ritesh Sinha vs State Of U.P.& Anr SC 2012
91
Sharda vs Dharmpal AIR 2003 SC 3450
92
Testimony also indicates not autoptic evidence’ – evidence derived from the accused’s own bodily
features.
93
The State Of Bombay vs Kathi Kalu Oghad And Others AIR 1961 SC 1808
94
a principle or set of principles laid down by an authority as incontrovertibly true
82
are not ready to act on the testimony of a person does not mean that he is a perjurer. It
merely means that on such testimony it is not safe to conclude95.

1. Related witness and interested witness

"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 punished. A witness who is a natural one and is the
only possible eye witness in the circumstances of a case cannot be said to be
'interested.96’ It may be stated here that close relationship with the victim is not a ground
for disbelieving a witness. The fact that witness is a relation of the complainant is no
ground for rejecting the evidence. But his evidence has to be construed very carefully 97.
1. Ram Bharosey v. State of U.P.98 where the Court stated the dictum of law that
a close relative of the deceased does not, per se, become an interested witness.
An interested witness is one who is interested in securing the conviction of a
person out of vengeance or enmity or due to disputes and deposes before the
Court only with that intention and not to further the cause of justice.
2. In Brathi v. State of Punjab99, the Hon'ble Supreme Court held that no doubt
criminal court has to appreciate evidence given by witnesses who are closely
related to the victim and the court must be careful in evaluating their evidence,
but mechanical rejection of the evidence on the sole ground that
the witness being related to the victim is an interested witness would invariably
lead to miscarriage of justice.
3. in Dalbir Kaur v. State of Punjab100, the court held that A close relative, who
is a very natural witness in the circumstances of a case, cannot be regarded as
an 'interested witness',.
4. For that the decision of the Hon'ble Supreme Court in State of Gujrat v.
Naginbhai Dhulabhai Patel 101 may be seen. The mere fact that
the witnesses were relations or interested would not by itself be sufficient to
discard their evidence straightway unless it is proved that their evidence suffers
from serious infirmities which raises considerable doubt in the mind of the
court.
It is well settled that evidence of interested witnesses cannot be discarded on the sole
ground of interestedness, but their evidence should be subjected to a close
scrutiny. Interested witnesses are not necessarily false witnesses. Evidence
of interested witness cannot be equated with that of a tainted witness. There is no
absolute rule that the evidence of an interested witness cannot be accepted without
corroboration102. The version of an interested witness cannot be thrown over- board,
but has to be examined carefully before accepting the same. In the light of the above
judgments, it is clear that the statements of the alleged interested witnesses can be safely
relied upon by the Court in support of the prosecution's story. But this needs to be done
with care and to ensure that the administration of criminal justice is not undermined by

95
Rahim Khan vs Khurshid Ahmed & Ors AIR 1975 SC 290
96
State of Rajasthan v. Kalki, AIR 1981 SC 1390,
97
Mahaveer vs State Of Rajasthan on 11 August, RLW 2005 (1) Raj 312.
98
AIR 2010 SC 917
99
AIR 1991 SC 318
100
AIR 1977 SC 472
101
AIR 1983 SC 839
102
Mahaveer vs State Of Rajasthan on 11 August, RLW 2005 (1) Raj 312
83
the persons, who are closely related to the deceased. When their statements find
corroboration by other witnesses, expert evidence and the circumstances of the case
clearly depict completion of the chain of evidence pointing out to the guilt of the
accused, then we see no reason why the statement of so called `interested witnesses'
cannot be relied upon by the Court103.

2. Child witness:
a) In Mangoo & Anr. v. State of Madhya Pradesh104, this Court while
dealing with the evidence of a child witness observed that
there was always scope to tutor the child, however, it cannot alone be a ground
to come to the conclusion that the child witness must have been tutored. The
Court must determine as to whether the child has been tutored or not. It can be
ascertained by examining the evidence and from the contents thereof as to
whether there are any traces of tutoring.
b) 8. In Panchhi & Ors. v. State of U.P 105 ., this Court while placing
reliance upon a large number of its earlier judgments observed that
the testimony of a child witness must find adequate corroboration before it is
relied on. However, it is more a rule of practical wisdom than of law. It cannot
be held that "the evidence of a child witness would always stand irretrievably
stigmatized. It is not the law that if a witness is a child, his evidence shall be
rejected, even if it is found reliable. The law is that evidence of a child witness
must be evaluated more carefully and with greater circumspection because a
child is susceptible to be swayed by what others tell him and thus a child witness
is an easy prey to tutoring."
c) In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra 106,
this Court dealing with the child witness has observed as under:
"The decision on the question whether the child witness has sufficient
intelligence primarily rests with the trial Judge who notices his manners, his
apparent possession or lack of intelligence, and the said Judge may resort to
any examination which will tend to disclose his capacity and intelligence as
well as his understanding of the obligation of an oath. The decision of the trial
court may, however, be disturbed by the higher court if from what is preserved
in the records, it is clear that his conclusion was erroneous. This precaution is
necessary because child witnesses are amenable to tutoring and often live in a
world of make-believe. Though it is an established principle that child witnesses
are dangerous witnesses as they are pliable and liable to be influenced easily,
shaped and moulded, but it is also an accepted norm that if after careful scrutiny
of their evidence the court comes to the conclusion that there is an impress of
truth in it, there is no obstacle in the way of accepting the evidence of a child
witness."
d) In the case of Suryanarayana v. State of Karnataka reported in 2001
(1) SCALE 7, it has been held that
the evidence of a child witness cannot be discarded only on the ground of her
being of teen age. It is held that the fact of a child witness would require the
Court to scrutinise the evidence with care and caution. It is held that if the

103
Ram Bharosey v. State of U.P. AIR 2010 SC 917
104
AIR 1995 SC 959
105
AIR 1998 SC 2726
106
AIR 2008 SC 1460
84
 evidence is shown to have stood the test of cross-examination and there is no
infirmity in the evidence, then a conviction can be based upon such testimony
alone. It is held that corroboration of the testimony of a child witness is not a
rule but a measure of caution and prudence. It is held that some discrepancies
in the statement of a child witness cannot be made the basis for discarding the
testimony. It is held that discrepancies in the deposition, if not in material
particulars, would lend credence to the testimony of a child witness. It is held
that while appreciating the evidence of the child witness, the courts are
required to rule out the possibility of the child being tutored.

3. Hostile witness;
Syed Akbar vs. State of Karnataka107 reported in whereby the learned Judges of the
Supreme Court reversed the judgment of the Karnataka High Court which had
discarded the evidence of a hostile witness in its entirety. Similarly, other High Courts
in the matter of Gulshan Kumar vs. State (1993) Crl.L.J. 1525 as also Kunwar vs. State
of U.P 108. as also Haneefa vs. State (1993) Crl.L.J. 2125 have held that
it is not necessary to discard the evidence of the hostile witness in toto and can
be relied upon partly.
So also, in the matter of State of U.P. vs. Chet Ram109 it was held that
if some portion of the statement of the hostile witness inspires confidence it can
be relied upon and the witness cannot be termed as wholly unreliable.
It was further categorically held in the case of Shatrughan vs. State of M.P 110. that
hostile witness is not necessarily a false witness. Granting of a permission by
the Court to cross-examine his own witness does not amount to adjudication by
the Court as to the veracity of a witness. It only means a declaration that the
witness is adverse or unfriendly to the party calling him and not that the witness
is untruthful.
This was the view expressed by this Court in the matter of Sat Paul vs. Delhi
Administration111 Thus,
merely because a witness becomes hostile it would not result in throwing out
the prosecution case, but the Court must see the relative effect of his testimony.
If the evidence of a hostile witness is corroborated by other evidence, there is
no legal bar to convict the accused. Thus testimony of a hostile witness is
acceptable to the extent it is corroborated by that of a reliable witness. It is,
therefore, open to the Court to consider the evidence and there is no objection
to a part of that evidence being made use of in support of the prosecution or in
support of the accused.

Sathya Narayanan vs State Tr.Insp.Of Police 112

1) It is settled law that corroborated part of evidence of hostile witness regarding
commission of offence is admissible.

107
AIR 1979 SC 1848
108
(1993) Crl.L.J. 3421
109
Reported in AIR 1989 SC 1543 = (1989) Crl.L.J. 1785;
110
(1993) Crl.L.J. 3120
111
AIR 1976 SC 294.
112
2012 Supreme Court of India
85
 2) The fact that the witness was declared hostile at the instance of the Public
Prosecutor and he was allowed to cross-examine the witness furnishes no
justification for rejecting en bloc the evidence of the witness.
3) However, the court has to be very careful, as prima facie, a witness who makes
different statements at different times, has no regard for the truth.
4) His evidence has to be read and considered as a whole with a view to find out
whether any weight should be attached to it.
5) The court should be slow to act on the testimony of such a witness. Normally,
it should look for corroboration with other witnesses.
6) Merely because a witness deviates from his statement made in the FIR, his
evidence cannot be held to be totally unreliable.
7) To make it clear that evidence of hostile witness can be relied upon at least up
to the extent, he supported the case of the prosecution.
8) The evidence of a person does not become effaced from the record merely
because he has turned hostile and his deposition must be examined more
cautiously to find out as to what extent he has supported the case of the
prosecution.”

Merely because the witness was declared as hostile, there is no need to reject his
evidence in toto. In other words, the evidence of hostile witness can be relied upon at
least to the extent, it supported the case of the prosecution. In view of the same, reliance
placed on certain statements made by hostile witnesses by the trial Court and the High
Court are acceptable. Now, let us consider hereunder how far those statements
supported the case of the prosecution.
It is settled in law that the evidence of a hostile witness is not to be rejected in toto. In
Rameshbhai Mohanbhai Koli and Others v. State of Gujarat113, reiterating the principle,
this Court has stated thus:
“It is settled legal proposition that the evidence of a prosecution witness cannot
be rejected in toto merely because the prosecution chose to treat him as hostile
and cross-examined him. The evidence of such witnesses cannot be treated as
effaced or washed off the record altogether but the same can be accepted to the
extent that their version is found to be dependable on a careful scrutiny thereof.
In State of U.P. v. Ramesh Prasad Misra114 this 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.115

Recently, in Bhajju alias Karan Singh v. State of Madhya Pradesh116, a two-Judge

Bench, in the context of consideration of the version of a hostile witness, has expressed
thus: -

113
2010 SC
114
1996 SC, 1996 Supp. (4) SCR 631
115
A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra [2002
SC, Appeal (crl.) 950 of 2000], Gagan Kanojia v. State of Punjab[2006 SC, Appeal (crl.) 561-62 of
2005], Radha Mohan Singh v. State of U.P. [2006 SC, Appeal (crl.) 1183-1185 of 2004], Sarvesh Narain
Shukla v. Daroga Singh [2007 SC, Appeal (crl.) 752-755 of 2005] and Subbu Singh v. State [Criminal
Appeal No.1636 OF 2011].”
116
2012 SC
86
 “Normally, when a witness deposes contrary to the stand of the prosecution and
his own statement recorded under Section 161 CrPC, the prosecutor, with the
permission of the court, can pray to the court for declaring that witness hostile
and for granting leave to cross-examine the said witness. If such a permission
is granted by the court then the witness is subjected to cross- examination by
the prosecutor as well as an opportunity is provided to the defence to cross-
examine such witnesses, if he so desires. In other words, there is a limited
examination-in-chief, cross-examination by the prosecutor and cross-
examination by the counsel for the accused. It is admissible to use the
examination- in-chief as well as the cross-examination of the said witness
insofar as it supports the case of the prosecution.”

4. Chance witness:
he is a chance witness who happened to have witnessed the incident by chance. It is a
well settled legal principle that the evidence of a chance witness cannot be brushed
aside simply because he is a chance witness but his presence at the place of occurrence
must be satisfactorily explained by the prosecution so as to make his testimony free
from doubt and thus, reliable . This Court in the case of Jarnail Singh v. State of
Punjab117 has elaborately explained the reliability of a chance witness as under:
In Sachchey Lal Tiwari v. State of U.P118. this 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. Deposition of a chance witness whose
presence at the place of incident remains doubtful should be discarded.119

5. Eye witness:
In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra120, this
Court held that
even where a case hangs on the evidence of a single eye witness it may be
enough to sustain the conviction given sterling testimony of a competent, honest
man although as a rule of prudence courts call for corroboration. "It is a
platitude to say that witnesses have to be weighed and not counted since quality
matters more than quantity in human affairs."
In Anil Phukan v. State of Assam121, the Court observed;

117
2009 SC
118
(2004) 11 SCC 410
119
Shankarlal v. State of Rajasthan
120
(1973) 2 SCC 793
121
(1993) 3 SCC 282 : JT 1993 (2) SC 290
87
 "Indeed, conviction can be based on the testimony of a single eye witness and
there is no rule of law or evidence which says to the contrary provided the sole
witness passes the test of reliability. So long as the single eye-witness is a wholly
reliable witness the courts have no difficulty in basing conviction on his
testimony alone. However, where the single eye witness is not found to be a
wholly reliable witness, in the sense that there are some circumstances which
may show that he could have an interest in the prosecution, then the courts
generally insist upon some independent corroboration of his testimony, in
material particulars, before recording conviction. It is only when the courts find
that the single eye witness is a wholly unreliable witness that his testimony is
discarded in toto and no amount of corroboration can cure that defect."
In Kartik Malhar v. State of Bihar122, referring to several cases, this Court stated;
"On a conspectus of these decisions, it clearly comes out that conviction can be
recorded on the basis of the statement of a single eye witness provided his credibilit y
is not shaken by any adverse circumstance appearing on the record against him and the
court, at the same time, is convinced that he is a truthful witness. The court will not
then insist on corroboration by any other eye witness particularly as the incident might
have occurred at a time or place when there was no possibility of any other eye witness
being present. Indeed, the courts insist on the quality, and, not on the quantity of
evidence."
In Bhimappa Chandappa v. State of Karnataka123, this Court held that
testimony of a solitary witness can be made the basis of conviction. The
credibility of the witness requires to be tested with reference to the quality of
his evidence which must be free from blemish or suspicion and must impress the
Court as natural, wholly truthful and so convincing that the Court has no
hesitation in recording a conviction solely on his uncorroborated testimony.
From the aforesaid discussion, it is clear that Indian legal system does not insist
on plurality of witnesses. Neither the Legislature (Section 134, Evidence Act,
1872) nor the judiciary mandates that there must be particular number of
witnesses to record an order of conviction against the accused. Our legal system
has always laid emphasis on value, weight and quality of evidence rather than
on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a
competent court to fully and completely rely on a solitary witness and record
conviction. Conversely, it may acquit the accused in spite of testimony of several
witnesses if it is not satisfied about the quality of evidence.

The bald contention that no conviction can be recorded in case of a solitary eye
witness, therefore, has no force and must be negatived. It was then contended
that the only eye witnessPW6-Sopan was none other than the son of the
deceased. He was, therefore, 'highly interested' witness and his deposition
should, therefore, be discarded as it has not been corroborated in material
particulars by other witnesses. We are unable to uphold the contention. In our
judgment, a witness who is a relative of the deceased or victim of a crime cannot
be characterised as 'interested'. The term 'interested' postulates that the witness
has some direct or indirect 'interest' in having the accused somehow or other
convicted due to animus or for some other oblique motive.

122
(1996) 1 SCC 614 : JT 1995 (8) SC 425
123
(2006) 11 SCC 323
88
 PERSONS UNABLE TO SPEAK

Language is much more than words. Like all other languages, communication by way
of signs has some inherent limitations, since it may be difficult to comprehend what the
user is attempting to convey. But a dumb person need not be prevented from being a
credible and reliable witness merely due to his/her physical disability. Such a person
though unable to speak may convey himself through writing, if literate or through signs
and gestures, if he is unable to read and write124. A case in point is the silent movies
which were understood widely because they were able to communicate ideas to people
through novel signs and gestures. Emphasized body language and facial expression
enabled the audience to comprehend the intended message125.

Only English has got codified international sign language for the mute. There is no such
codified sign language for Indian languages. Dumb witnesses can be classified broadly
into two categories viz., witnesses who are dumb; and witnesses who are deaf and
dumb. These witnesses can be further classified into two categories viz., those who
have attended Special Schools for the hearing impaired and those who have not had
that special education. The former category of witnesses who have undergone this
formal learning in the Special School will understand the questions from lip movement
and also from gestures by trained teachers. In response to the question put by the expert,
they will give their answers both by lip movement and gestures. As regards the latter
category of witnesses who have not undergone any training in Special Schools, the
questions can be put to them only through signs and gestures and they would also
answer by signs and gestures126.

The object of enacting the provisions of Section 119:

The object of enacting the provisions of Section 119 of the Evidence Act reveals that
deaf and dumb persons were earlier contemplated in law as idiots. However, such a
view has subsequently been changed for the reason that modern science revealed that
persons affected with such calamities are generally found more intelligent, and to be
susceptible to far higher culture than one was once supposed. When a deaf and dumb
person is examined in the court, the court has to exercise due caution and take care to
ascertain before he is examined that he possesses the requisite amount of intelligence
and that he understands the nature of an oath. On being satisfied on this, the witness
may be administered oath by appropriate means and that also with the assistance of an
interpreter127.

Some noteworthy points:

a) A person can “be a witness‟ not merely by giving oral evidence but also by
producing documents or making intelligible gestures as in the case of a dumb
witness (see Section 119 of the Evidence Act) or the like128."
b) From a bare reading of Section 119, it is clear that the Court should first
ascertain whether the witness is capable of writing. Only if the witness is not

124
Mithailal @ Mitlai Lal vs The State Of Bihar on 23 November, 2017 Patna High Court
125
Mithailal @ Mitlai Lal vs The State Of Bihar on 23 November, 2017 Patna High Court
126
Mariyadoss : vs State By: on 18 June, 2014 Madras High Court (The Madurai Bench)
127
Mithailal @ Mitlai Lal vs The State Of Bihar on 23 November, 2017 Patna High Court
128
M.P. Sharma v. Satish Chandra AIR 1954 SC 360
89
 capable of writing, the Court should require the witness to speak by signs and
gestures129.
c) When a deaf and dumb person is examined in the court, the court has to exercise
due caution and take care to ascertain before he is examined that he possesses
the requisite amount of intelligence and that he understands the nature of an
oath. On being satisfied on this, the witness may be administered oath by
appropriate means and that also be with the assistance of an interpreter.
However, in case a person can read and write, it is most desirable to adopt that
method being more satisfactory than any sign language. The law required that
there must be a record of signs and not the interpretation of signs130.
d) If evidence is recorded under that section, there must be a record of signs and
not the interpretation of signs. It is true that at some places, the learned Sessions
Judge has recorded the signs as well as the interpretations, but the signs made
by the witness in answer to several other questions are not recorded but only the
interpretations. This is not a correct compliance with Section 119 of the Indian
Evidence Act. This also does not enable the appellate Court to know whether
the interpretation of the signs is correct or not131.
e) When a deaf and dumb witness is under cross-examination, the Court is required
to take due care of the fact that vocabulary of such a person is limited as he or
she speaks through sign language and it may not be possible for that witness to
answer, or in detail explain every answer by sign language. This disability of a
limited vocabulary of sign language does not affect either the competence or the
credibility of such witness. The Court is required to exercise control over the
cross-examination keeping in view the ability of the witness to answer the
questions132.

Kumbhar Musa Alib vs The State Of Gujarat (1965) 6 GLR 880 (Gujarat High
Court)
Author: V Raju
The appellant was convicted under Section 326, Indian Penal Code, by the learned
Sessions Judge, Kutch, for assaulting one Ibrahim. After the assault, he became
unconscious and subsequently regained consciousness, but he lost his power of speech.
His evidence was, therefore, given by signs under Section 119 of the Evidence Act.
If evidence is recorded under that section, there must be a record of signs and not the
interpretation of signs. It is true that at some places, the learned Sessions Judge has
recorded the signs as well as the interpretations, but the signs made by the witness in
answer to several other questions are not recorded but only the interpretations. This is
not a correct compliance with Section 119 of the Indian Evidence Act. This also does
not enable the appellate Court to know whether the interpretation of the signs is correct
or not.
The prosecution also relies on evidence that human blood was found on the axe found
with the appellant. But the police constable Alarakha, who took theaxe tothe Chemical
Analayser, has not been examined by the prosecution.

129
Mariyadoss : vs State By: on 18 June, 2014 Madras High Court (The Madurai Bench)
130
State of Rajasthan v. Darshan Singh alias Darshan Lal 2012 SC
131 Kumbhar Musa Alib vs The State Of Gujarat (1965) 6 GLR 880
132 Chander Singh vs. State Decided On Jun-03-2016 Delhi High Court

90
In view of these irregularities, the conviction and sentence of the appellant are set aside
and the matter is remanded for a fresh trial.

Conclusion:
To sum up, a deaf and dumb person is a competent witness. If in the opinion of the
court, oath can be administered to him/her, it should be so done. Such a witness, if able
to read and write, it is desirable to record his statement giving him questions in writing
and seeking answers in writing. In case the witness is not able to read and write, his
statement can be recorded in sign language with the aid of interpreter, if found
necessary. In case the interpreter is provided, he should be a person of the same
surrounding but should not have any interest in the case and he should be administered
oath133."
In view of the provisions of Section 119 of the Evidence Act, the only requirement is
that the witness may give his evidence in any manner in which he can make it
intelligible, as by writing or by signs and such evidence can be deemed to be oral
evidence within the meaning of Section 3 of the Evidence Act. Signs and gestures made
by nods or head are admissible and such nods and gestures are not only admissible but
possess evidentiary value134.

133
Mithailal @ Mitlai Lal vs The State Of Bihar on 23 November, 2017 Patna High Court
134
Mithailal @ Mitlai Lal vs The State Of Bihar on 23 November, 2017 Patna High Court
91
 PRESUMPTION OF FACT

Presumption is a course recognised by the law for the court to rely on particular
conditions.
In Mackowik v. Kansas City St. James & CBR Co., 94. S.W. 256, 262 = 196 MO. 550,
Lamm, J. observed that
Presumptions are like bats, flitting in the twilight but disappearing in the
sunshine of facts.

Presumption of fact:
Presumption of fact is an inference as to the existence of one fact from the existence of
some other facts, unless the truth of such inference is disproved. Presumption of fact is
a rule in law of evidence that a fact otherwise doubtful may be inferred from certain
other proved facts. When inferring the existence of a fact from other set of proved facts,
the court exercises a process of reasoning and reaches a logical conclusion as the most
probable position. The above principle has gained legislative recognition in India when
Section 114135 is incorporated in the Evidence Act. It empowers the court to presume
the existence of any fact which it thinks likely to have happened. In that process the
court shall have regard to the common course of natural events, human conduct etc. in
relation to the facts of the case.

The court noticed Section 114 of the Indian Evidence Act 1872 which permits the court
to presume existence of any fact which it thinks likely to have happened, regard being
had to the common course of natural events, human conduct and public and private
business, in their relation to facts of the particular case. As to how the presumption is
to be drawn it was laid down as follows:
Presumption of fact is nothing but logical inference of the existence of one
fact drawn from other proved or known facts, without the help of any artificial
rules of law, and they are always rebuttable. The legal consequence of
drawing a presumption is to cast on the opponent the duty of producing
contrary evidence. A presumption upon a matter of fact means that common
experience shows the fact to be so generally true that courts may notice the
truth. The presumptions of fact are in truth but mere arguments of which the
major premise is not a rule of law. They depend upon their own natural force
and efficiency in generating belief or conviction in the mind, as derived with
those connections, which are shown by experience, irrespective of any legal
relations. The effect of this provision is to make it perfectly clear that courts
of justice are to use their own common sense and experience in judging of the
effect of particular facts. Perhaps the most important rule as to presumptions
is that they must be based upon facts and not upon inferences or upon other
presumptions. No presumption can with safety be drawn from another
presumption. The fact presumed should have direct relation with the fact from

135 Sir James Fitzjames Stephen, while introducing the Bill relating to the Indian Evidence Act, stated,
in regard to Section 114 as follows:
The effect of this provision is to make it perfectly clear that Courts of Justice are to use their
own common sense and experience in judging the effect of particular facts, and that they are to
be subject to no particular rules whatever on the subject.

92
 which the presumption is drawn; but when the facts are established from
which presumptions may be legitimately drawn, it is the province of the Court
to deduce the presumption or inference of fact. If the connection is too remote
or uncertain, it is the duty of the court to exclude either the testimony from
which the presumption is sought to be deduced or to instruct the Court that
the evidence affords no proper foundation for any presumption. Where the
fact, giving rise to a presumption under Section 114, is undisputed and no
explanation negativing the presumption is offered, the Court is justified in
laying the onus proper where, but for the presumption, the onus could not be
laid.
Section 114 of the Indian Evidence Act, 1872 deals with the rebuttable presumptions.
Section 114 recognizes the general power of the Court to raise inferences as to the
existence or non-existence of unknown facts on proof or admission of other facts. The
source of such presumptions is the common course of natural events, human conduct
and public or private business, and the Section proceeds on the assumption that just as
in nature, there prevails a fixed order of things, so the volitional acts of men placed in
similar circumstances exhibits, on the whole, a distinct uniformity which is traceable to
the impulses of human nature, customs and habits of society.

Section 114 of the Indian Evidence Act is reproduced hereunder:

Section 114. Court may presume existence of certain facts:
The Court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events, human
conduct and public and private business, in their relation to the facts of the
particular case.‖ 14.3 The Section merely states the principle, and the several
illustrations appended to it are taken from the important presumptions relating
to innocence, regularity and continuity, which were recognized at common law.
The illustrations are by no means exhaustive; nor are the presumptions
illustrated therein obligatory in the sense that the Court must raise them or
conclusive in the sense that no evidence in rebuttal is admissible. The
illustrations to Section 114 provide that the Court ―may presume‖ the
following facts:
1) That a man who is in possession of stolen goods after the theft is either the thief
or has received the goods knowing them to be stolen, unless he can account for
his possession;
2) That an accomplice is unworthy of credit, unless he is corroborated in material
particular;
3) That a bill of exchange, accepted or endorsed, was accepted or endorsed for
good consideration;
4) That a thing or state of things which has been shown to be in existence within a
period shorter than that within which such things or state of things usually cease
to exist, is still in existence;
5) That judicial and official acts have been regularly performed;
6) That the common course of business had been followed in particular cases;
7) That evidence which could be and is not produced would, if produced be
unfavourable to the person who withholds it;
8) 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;

93
 9) That when a document creating an obligation is in the hands of the obligor, the
obligation has been discharged.

The above illustrations are followed by the following caveat:-

The Court shall also have regard to such facts as the following, in considering whether
such maxims do or do not apply to the particular case before it. The above caveat is
illustrated by following explanatory comments which can be conveniently called
―counter illustrations:
As to illustration (a):
A shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account
for its possession specifically, but is continually receiving rupees in the course of his
business;
As to illustration (b):
A, a person of the highest character, is tried for causing a man's death by an act of
negligence in arranging certain machinery. B, a person of equally good character, who
also took part in the arrangement, describes precisely what was done, and admits and
explains the common carelessness of A and himself;
As to illustration (b)
A crime is committed by several persons. A, B and C, three of the criminals, are
captured on the spot and kept apart from each other. Each gives an account of the crime
implicating D, and the accounts corroborate each other in such a manner as to render
previous concert highly improbable;
As to illustration (c)
A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was young
and ignorant person, completely under A's influence;
As to illustration (d)
It is proved that a river ran in a certain course five years ago, but it is known that there
have been floods since that time which might change its course;
As to illustration (e)
A judicial act, the regularity of which is in question, was performed under exceptional
circumstances;
As to illustration (f)
The question is, whether a letter was received. It is shown to have been posted, but the
usual course of the post was interrupted by disturbances;
As to illustration (g)
A man refuses to produce a document which would bear on a contract of small
importance on which he is sued, but which might also injure the feelings and reputation
of his family;
As to illustration (h)
A man refuses to answer a question which he is not by law to answer, but the answer
to it might cause loss to him in matters unconnected with the matter in relation to which
it is asked;
As to illustration (i)
A bond is in possession of the obligor, but the circumstances of the case are such that
he may have stolen it.

Section 114 uses the words may presume. Thus, it is for the Court to raise the
presumption or not. The presumption, even if drawn, is rebuttable. Once a presumption
is satisfactorily rebutted, it simply vanishes. It cannot come back once again.
94
The word common course in Section 114 qualifies not only natural events but also the
words human conduct' and public and private businesses'. As to what is common course
of natural events, human conduct and public and private business' depends upon the
common sense of the Judge acquired from experience of worldly and human affairs.
The subject of presumptions is closely allied to the subject of burden of proof. All rules
relating to burden of proof may be stated in terms of presumptions, and all presumptions
may be stated in terms of rules of burden of proof. When the burden of proof of a fact
is on a party, it may be said that there is a presumption as to the non- existence of that
fact and where there is a presumption as to the existence of a fact, the burden of proving
the non-existence of that fact is on the party who asserts its non-existence. When a
presumption operates in favour of a party, the burden of proof is on the opponent, and
when the burden of proof is on a party, there is a presumption operating in favour of
the opponent. In other systems of evidence, several rules which occur in the Act as rules
of burden of proof are stated in the form of presumptions, whereas several other rules
which are stated in the Act in the form of presumptions occur in other systems as rules
of burden of proof.

The grounds of sources of presumptions of fact are obviously innumerable, they are co-
extensive with the facts, both physical and psychological, which may under any
circumstances whatever becomes evidentiary in Courts; but, in a general view, such
presumptions may be said to relate to things, persons, and the acts and thoughts of
intelligent agents. With respect to the first of these it is an established principle that
conformity with the ordinary course of nature ought always to be presumed. Thus, the
order and changes of the seasons, the rising setting and course of the heavenly bodies,
and the known properties of matter, give rise to very important presumptions relative
to physical facts or things. The same rule extends to persons. Thus, the absence of those
natural qualities, power and faculties which are incident to the human race in general
will never be presumed in any individual; such as the impossibility of living long
without food, the possession of the reasoning faculties, the common and ordinary
understanding of man etc. To this head are reducible the presumptions relating to the
duration of human life, the time of gestation, etc. Under the third class - namely, the
acts and thought of intelligent agents - come among others, all psychological facts; and
the most important inference are drawn from the ordinary conduct of mankind, and the
natural feelings or impulses of human nature. Thus, no man will ever be presumed to
throw away his property, as for instance, by paying money not due; and so it is a maxim
that everyone must be taken to love his own offspring more than that of another person.

Presumptions of fact are always rebuttable. In other words, the party against which a
presumption may operate can and must lead evidence to show why the presumption
should not be given effect to. If, for example, the party which initiates a proceeding or
comes with a case to Court offers no evidence to support it, the presumption is that such
evidence does not exist. And if some evidence is shown to exist on a question in issue,
but the party which has it within its power, does not produce it, despite notice to it to
do so, the natural presumption is that it would, if produced, have gone against it.
Similarly, a presumption arises from failure to discharge a special or particular onus.

The Judge has to call in aid not only his training and wisdom but also the experience of
life to adjudge which set of evidence is more probable and which evidence is to be
believed. The Judge decides who is to be believed and how much and if not, why so.
95
He also visualises what, in ordinary course, should have been the evidence but was not
produced, wherefore an adverse inference ought to be drawn.

The presentation of evidence and the inferences that flow from it are placed by the
Judge in his (judicial) scales. The task of a Judge is to first assess the weight of the
evidence including presumptions, and then place it into the respective pan (scale)
hanging from the two ends of the equal arm of judicial balance.

The relevant judgments relating to Section 114 of the Indian Evidence Act are as under:
6) In Izhar Ahmad Khan v. Union of India 136 , the Supreme Court defined
presumptions to be an inference, affirmative or disaffirmative of the truth of
falsehood of a doubtful fact or proposition drawn by a process of probable
reasoning from something proved or taken for granted.
7) In Garib Singh v. State of Punjab 137 , the Supreme Court held that the
standards employed in judging each version are those of a reasonable and
prudent man.
8) In Kali Ram v. State of Himachal Pradesh138, the Supreme Court held that
the illustrations to Section 114, though taken from different spheres of human
activity, are not exhaustive. They are based upon human experience and have
to be applied in the context of the facts of each case. The illustrations are merely
examples of circumstances in which certain presumptions may be made. Other
presumptions of a similar kind in similar circumstances can be made under the
provisions of the section itself. Whether or not a presumption can be drawn
under the section in a particular case depends ultimately upon the facts and
circumstances of each case. No hard and fast rule can be laid down. Human
behaviour is so complex that room must be left for play in the joints. It is not
possible to formulate a series of exact propositions and con-flue human
behaviour within straitjackets. The raw material here is far too complex to be
susceptible of precise and exact propositions for exactness here is a fake.
9) Krishna Iyer, J. in Tukaram Ganpat Pandare v. State of Maharashtra 139,
held that Section 114 of the Evidence Act enables the Court to use common
sense as judicial tool. Section 114 thus is a useful device to aid the Court in its
quest for truth. While care and caution need to be exercised in drawing any
presumption under Section 114, its scope is wide and it has the potential to lend
a helping hand in myriad situations.
10) In Narayan Govind Gavate v. State of Maharashtra140, the Supreme Court held
that function of a presumption is to fill a gap in evidence. Section 114 of the
Evidence Act covers a wide range of presumptions of fact which can be used
by Courts in the course of administration of justice to remove lacunae in the
chain of direct evidence before it.
11) In Syad Akbar v. State of Karnataka 141 , the Supreme Court held that
presumptions are inferences of certain fact patterns drawn from the experience
and observation of the common course of nature, the constitution of the human

136
AIR 1962 SC 1052
137
(1972) 3 SCC 418
138
(1973) 2 SCC 808
139
(1974) 4 SCC 544
140
(1977) 1 SCC 133
141
(1980) 1 SCC 30
96
 mind, the springs of human action, the usages and habits of society and ordinary
course of human affairs.
12) In Sodhi Transport Co. v. State of U.P.142, the Supreme Court held that the rules
of presumption are deduced from enlightened human knowledge and experience
and are drawn from the connection, relation and coincidence of facts, and
circumstances.
13) In State of W.B. v. Mir Mohammad Omar 143 , the Supreme Court held that
presumption of fact is an inference as to the existence of one fact from the
existence of some other facts, unless the truth of such inference is disproved.
Presumption of fact is a rule in law of evidence that a fact otherwise doubtful
may be inferred from certain other proved facts. When inferring the existence
of a fact from other set of proved facts, the Court exercises a process of
reasoning and reaches a logical conclusion as the most probable position.
Section 114 empowers the Court to presume the existence of any fact which it
thinks likely to have happened. In that process, the Court shall have regard to
the common course of natural events, human conduct etc. in relation to the facts
of the case.
14) In M. Narsinga Rao v. State of Andhra Pradesh144, the Supreme Court held that
presumption is an inference of a certain fact drawn from other proved facts.
While inferring the existence of a fact from another, the Court is only applying
a process of intelligent reasoning which the mind of a prudent man would do
under similar circumstances. Presumption is not the final conclusion to be
drawn from other facts. But it could as well be final if it remains undisturbed
later. Presumption in Law of Evidence is a rule indicating the stage of shifting
the burden of proof. From a certain fact or facts the Court can draw an inference
and that would remain until such inference is either disproved or dispelled.
15) In Limbaji v. State of Maharashtra 145 , the Supreme Court held that a
presumption of fact is a type of circumstantial evidence which in the absence of
direct evidence becomes a valuable tool in the hands of the Court to reach the
truth without unduly diluting the presumption in favour of the innocence of the
accused which is the foundation of our criminal law. It is an inference of fact
drawn from another proved fact taking due note of common experience and
common course of events. Section 114 of the Evidence Act shows the way to
the Court in its endeavour to discern the truth and to arrive at a finding with
reasonable certainty. The Supreme Court further held that having due regard to
the germane considerations set out in the section, certain presumptions which
the Court can draw are illustratively set out. They are not exhaustive or
comprehensive. The presumption under Section 114 is, of course, rebuttable.
When once the presumption is drawn, the duty of producing evidence to the
contra so as to rebut the presumption is cast on the party who is subjected to the
rigour of that presumption. Before drawing the presumption as to the existence
of a fact on which there is no direct evidence, the facts of the particular case
should remain uppermost in the mind of the Judge. These facts should be looked
into from the angle of common sense, common experience of men and matters

142
(1986) 2 SCC 486
143
(2000) 8 SCC 382
144
(2001) 1 SCC 691
145
(2001) 10 SCC 340
97
 and then a conscious decision has to be arrived at whether to draw the
presumption or not.
16) In Hiten P. Dalal v. Bratindranath Banerjee 146, the Supreme Court held as under:
Presumptions are rules of evidence and do not conflict with the
presumption of innocence, because by the latter all that is meant is that
the prosecution is obliged to prove the case against the accused beyond
reasonable doubt. The obligation on the prosecution may be discharged
with the help of presumptions of law or fact unless the accused adduces
evidence showing the reasonable possibility of the non-existence of the
presumed fact.
17) In Bhoora Singh v. State of U.P.147, the Division Bench of the Allahabad High
Court held as under:
The term 'presumption' in its largest and most comprehensive
signification may be defined, where in the absence of actual certainty of
the truth of a fact or proposition, an inference affirmative of that truth
is drawn by a process of probable reasoning from something which is
taken for granted.
18) In Ramachandran v. State of Kerala 148 , the Kerala High Court held that
'presumption' is a probable consequence drawn from facts as to the truth of a
fact alleged. 'Presumption of fact' is an inference as to existence of one fact
drawn from facts (either certain, or proved by direct testimony) as to the truth
of a fact alleged.

Charles C. Moore's book titled A Treatise on Facts or the Weight of the Value of
Evidence, 1908 contains a very exhaustive discussion on the presumptions of fact.
Some of the presumptions mentioned in the said book are as under:
1. Testimony contrary to natural laws: There are well-settled and accepted
natural laws, a recognition of which is justified by the long experience of men,
the knowledge of everyday life, as well as by the studies and experiments of
ages. The natural laws that Courts take cognizance of are the laws of gravitation,
cohesion, optics, electricity, etc. Testimony which is directly contrary and in
opposition to such laws should be ignored even without contradiction. For
example, a fire which was observed in the grass at a specified place adjoining a
railroad right of way could not have originated a quarter of a mile distant if the
intervening space showed no traces whatever of fire. Courts are not so deaf to
the voice of nature, or so blind to the law of physics, that every utterance of a
witness in derogation of those laws will be treated as testimony of probative
value simply because of its utterance.
2. Mathematical impossibilities: A verdict cannot be sustained if it involves a
finding that a part is equal to the whole; for example, where the jury evidently
believed testimony that it would cost as much to clear a tract of land after the
trees were felled and the logs removed as it would when the trees were standing.
Testimony of a so-called expert that while an ordinary man can lift two hundred
pounds, it would take sixteen section hands to lift a six- hundred-pound rail was
struck out by the Court as manifestly absurd.

146
(2001) 6 SCC 16
147
1992 Cri LJ 2294
148
2009 Cri LJ 168
98
3. Improbable stories: The Court is not bound to give credit to a witness who is
interested in the result of the action, and whose evidence is improbable and
discredited by circumstances, or is against common experience and observation.
4. Payment without taking receipt: The average man would not pay and take no
receipt or memorandum to insure himself against loss in case of the death of the
other party, or his forgetfulness, or something even worse. No person of
ordinary prudence, making payments of principal from time to time on a bond
and mortgage, would omit to take receipts, if the papers were not at hand so that
the payments could be entered thereon.
5. Improbable testimony contradicted by circumstances: In a case of
conviction for murdering a woman by cutting her throat with a razor, the theory
that the killing was the result of an accident, occasioned by the defendant
supposing that he was drawing the back of the razor across the throat of his
victim, was so utterly preposterous that there could be no rational expectation
that any Judge would give it the least consideration.
6. Numerical equality or preponderance of witness testimony to
improbabilities: Suppose that a small child tells that he saw a large wolf run
away with an unusually small lamb. As against this, ten adults testified that this
was not the case at all, but that the real fact was that this very small lamb was
actually running away with the large wolf. It would not take a Judge very long
to determine where the truth lies, notwithstanding ten against one.
7. Relative value of direct and circumstantial evidence: In the Webster case,
Chief Justice Shaw, speaking of direct or positive evidence and circumstantial
evidence, said: ―Each of these modes of proof has its advantages and
disadvantages; it is not easy to compare their relative value. The advantage of
positive evidence is that it is the direct testimony of a witness to the fact to be
proved, who, if he speaks the truth, saw it done; and the only question is whether
he is entitled to belief. The disadvantage is that the witness may be false and
corrupt, and that the case may not afford the means of detecting his falsehood.
But, in a case of circumstantial evidence where no witness can testify directly
to the fact to be proved, it is arrived at by a series of other facts, which by
experience have been found so associated with the fact in question, that in the
relation of cause and effect they lead to a satisfactory and certain conclusion; as
when footprints are discovered after a recent snow, it is certain that some
animated being has passed over the snow since it fell ; and, from the form and
number of the footprints, it can be determined with equal certainty, whether they
are those of a man, a bird, or a quadruped. Circumstantial evidence, therefore,
is founded on experience and observed facts and coincidences, establishing a
connection between the known and proved facts and the fact sought to be
proved.
Summary:
Section 114 of the Indian Evidence Act, 1872 Section 114 is a useful device to aid
the Court in its quest for truth by using common sense as a judicial tool. Section 114
recognizes the general power of the Court to raise inferences as to the existence or non-
existence of unknown facts on proof or admission of other facts.
1. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful
may be inferred from certain other proved facts.
2. The source of presumptions is the common course of natural events, human
conduct and public or private business, and the Section proceeds on the
99
 assumption that just as in nature there prevails a fixed order of things, so the
volitional acts of men placed in similar circumstances exhibits, on the whole, a
distinct uniformity which is traceable to the impulses of human nature, customs
and habits of society. The illustrations though taken from different spheres of
human activity, are not exhaustive. They are based upon human experience and
have to be applied in the context of the facts of each case. The illustrations are
merely examples of circumstances in which certain presumptions may be made.
Other presumptions of a similar kind in similar circumstances can be made
under the provisions of the section itself.
3. Presumption in law of evidence is a rule indicating the stage of shifting the
burden of proof. From a certain fact or facts the Court can draw an inference
and that would remain until such inference is either disproved or dispelled.
Presumptions of fact can be used by the Courts in the course of administration
of justice to remove lacunae in the chain of direct evidence before it. The
function of a presumption is to fill a gap in evidence.
4. Section 114 of the Indian Evidence Act applies to both civil and criminal
proceedings.
5. Whether or not a presumption can be drawn under the section in a particular
case depends ultimately upon the facts and circumstances of each case. No hard
and fast rule can be laid down. Human behaviour is so complex and room must
be left for play in the joints. It is not possible to formulate a series of exact
propositions and con-flue human behaviour within straitjackets.
6. No rule of evidence can guide the Judge on the fundamental question whether
evidence as to a relevant fact should be believed or not. Secondly, assuming that
the Judge believes very few cases, guide him on the question what inference he
should draw from it as to assist a Judge in the very smallest degree in
determining the master question of the whole subject - whether and how far he
ought to believe what the witnesses say? The rules of evidence do not guide
what inference the Judge ought to draw from the facts in which, after
considering the statements made to him, he believes. In every judicial
proceeding whatever these two questions - Is this true, and, if it is true what
then? - ought to be constantly present in the mind of the Judge, and the rules of
evidence do not throw the smallest portion of light upon them.

Relationship between presumption and burden of proof:

In Johnson Scaria v. State of Kerala149, the Kerala High Court held that the use of
presumptions and the doctrine of burden of proof are certainly of crucial assistance in
the adjudication of guilt. Who will fail if a fact is not established? Who will fail if the
presumption is not drawn? Who will suffer if the presumption once drawn is not
rebutted? These questions will certainly have to be considered in the factual scenario
in each case. The Court summarised the law on this aspect as under:
The expression 'proved' is defined Under Section 3 of the Indian Evidence Act
and that definition applies to civil and criminal cases. Any 'prudent man' whose
standards the courts are under Section 3 of the Evidence Act directed to follow,
shall and the court must hence, insist on a higher degree of probability, in a
criminal case (where the consequence of deprivation of life, liberty and property
ensues) before the prosecutor's burden is held to be discharged. This and this

149
MANU/KE /0367/2006,
100
alone is directed by law by the axiomatic insistence on proof beyond doubt -
which is at times romanticised and called proof beyond reasonable doubt and
proof beyond the shadow of a reasonable doubt. The purpose of such insistence
is only to caution courts that they must be able to enter a conclusion of guilt
"without hesitation" on the materials available.

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 PRESUMPTION OF PATERNITY IN INDIA: ESCAPE FROM RIGOR OF
CONCLUSIVENESS

Introduction:

Statutory law recognizes certain presumptions of fact and law. Presumptions may be
rebuttable or irrebutable. Where presumption operates, the court may or must draw
certain conclusions150. One of the presumptions of law has been incorporated in section
112 of Indian Evidence Act, 1872. The wordings of Section 112 of Indian Evidence
Act starts, stating, "Birth during marriage, conclusive proof of legitimacy". Here the
legal presumption is similar to that of the Latin Maxim, ‘pater est quem
mupticedemonstrat’, meaning thereby, ‘he is the father whom the marriage
indicates’151. From ancient times, it is the presumption that if the husband has access to
wife then children born during valid wedlock would be treated legitimate children of
such man and woman. The presumption of parenthood is a legal tool, which, at its core,
is used to solidify two legal parents from the moment a child is born152. The legitimacy
of the birth of a child is having socio-legal overtones. The social status of an offspring
rests upon the legitimacy of its birth153. In legal point of view, the determination of
legitimate paternity is necessary to establish legal status for various purposes. Its
corollary is that the burden of proof on husband should be higher than the standard of
preponderance of probabilities. The standard of proof154 in such cases must at least be
of a degree in between the two as to ensure that there was no possibility of the child
being conceived through the husband. The presumption can only be rebutted by strong,
clear, satisfying and conclusive evidence155.

Under Section 112, there is a conclusive presumption that a child born during the
continuance of a valid marriage is a legitimate issue of parents, no matter, how soon

150
Phipson on Evidence, London Sweet & Maxwell, 15 edi.
151
Field’s commentary on Law of Evidence, revised by Gopal S. Chaturved i, 12 edi, 2002, Vol 04,
Delhi Law House, p3944.
152
William M. Lopez, Artificial Insemination and the Presumption of Parenthood: Traditional
Foundations and Modern Applications for Lesbian Mothers, 86 Chi.-Kent. L. Rev. 897 (2011).
Available at: http://scholarship.kentlaw.iit.edu/cklawreview/vol86/iss2/15
153
Article 7(1) United Nations Convention on the Rights of a Child- Gives children the right ti know
their parents
154
Once the validity of marriage is proved then there is strong presumption about the legitimacy of
children born from that wedlock. The presumption can only be rebutted by a strong, clear, satisfying and
conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any
circumstance creating doubt. Even the evidence of adultery by wife which though amounts to very strong
evidence, it, by itself, is not quite sufficient to repel this presumption and will not justify finding of
illegitimacy if husband has had access.
155
Sham Lal @ Kuldeep v. Sanjeev Kumar and Ors. (2009) 12 SCC 454
102
the birth is, after the marriage. Section 112156 of the Indian evidence Act, 1872 says
that the born child would be legitimate if following conditions are present there:

1. Child born during the continuance of a valid marriage between his mother and
any man, or
2. Child born within two hundred and eighty days (gestation period) after
dissolution of marriage and mother remains unmarried.
3. Child born during the continuance of a valid marriage between his mother &
her husband and her husband failed to prove non-access157.

After carefully reading the text given in Section 112 of the Act, it can be said that only
one ground is available to rebut the conclusive presumption that is non-access.
Although there seems conflict (but not real) between section 4 and section 112 of the
Act because former provides no exception to rebut the conclusive proof158. Although
liberal interpretation of the word non-access affected the conclusive nature of section
112 because earlier it had only one ground of rebuttal of non-access and that can be
proved by plea of alibi159. But by the time under the scope of non-access many other
grounds have been added and some of those are as followings:

1. Plea of alibi160
2. Wife had adulterous life and husband had no access when child might be
conceived.
3. An admission by the wife that the child is illegitimate161.
4. Illness of husband making him unable to make access162.
5. Husband had undergone vasectomy operation proved successful163.
If we read these grounds as a means of proving non-access, we find that every ground
to negate access is not directly referring to physical presence. There are few grounds
wherein husband is physically present but due to any other reason or reasons the
possibility to cohabit with wife did not arise. It means courts extended the scope of non
access and it includes physical absence and the circumstance where there is physical
presence but cohabitation with wife was not possible because of any other reasons. Here

156
The fact that any person was born during the continuance of a valid marriage between his mother and
any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried,
shall be conclusive proof that he is the legitimate s on of that man, unless it can be shown that the parties
to the marriage had no access to each other at any time when he could have been begotten.
157
The phrase “non-access” implies non-existence of opportunity for physical intercourse. There is
difference between “had no intercourse” and “having no opportunity of having intercourse”.
158
Section 4 - when one fact is declared by this Act to be conclusive proof of another, the Court shall,
on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the
purpose of disproving it.
159
Section 11 (1) of Indian Evidence Act, 1872.
160
Plea of, being physically present elsewhere, having tendency to negate the allegations based on
physically presence.
161
Vepa P. Sarathi, Law of Evidence, Eastern Book Co., pp. 265-267 (2006).
162
ChilukuriVenketeswarlu v. ChilukuriVenkatanarayana AIR 1954 SC 176
163
Chandramathi v. FazhettiBalan AIR 1982 Ker. 68
103
we can say that court by interpretation of the term gave a little scope, under section 112
of Indian Evidence Act, to escape from the harshness of conclusive presumption.

Meaning of the term “Non-access”:

The time when the Indian Evidence has been drafted, Sir James Stephen even might
not have thought that the term non-access would be interpreted by court in such a way
leading inclusion of many other conditions. Primarily this term meant “physical
absence” and plea of alibi was the only ground to prove non-access. Later on the court
of law changed the meaning of non-access gradually. This gradual change may be
addressed in following examples:

Example I:

First of all the court followed the principle of physical absence which means the
husband and wife are not lived together in any possibility at the time of conception of
child.

A, a husband, an army officer, due to war he did not have a chance to meet his wife
neither his wife went to her husband. Here in the example there is absolute physical
absence. Section 112 is not applicable.

Example II:

A, a husband, a prisoner, is served food by wife every day. Sometimes by request of

prisoner, jail authority gave opportunity to meet the wife in jail and no one would
encroach his or her privacy for that limited time only. Here in the example they have
opportunity or chance to have cohabitation. Now the term non-access means partial
physical opportunity to have cohabitation rather than absolute physical absence.

Example III:

When the court permitted that is husband is ill and such illness is upto the extent that
husband can not cohabit with wife, here even the husband is living with wife, access
cannot be proved.

A, a husband, is suffering from paralysis and his whole body is affected by that making
him unable to cohabit. Even husband is living with wife, it would be treated non-access
because husband’s possibility of having cohabitation is negated. Now the meaning of
the term non-access changed into cohabitation absence rather than partial physical
opportunity of presence.

Example IV:

104
A, a husband has undergone vasectomy operation but living with wife. Here husband
has physical access and even cohabitation is proved between husband and wife but if
husband is unable to procreate child at the time of conception of child, it would be
treated non-access. Here the meaning of the term non-access changed into inability to
procreation of child rather than cohabitation absence.

Example V:

A, a husband, living with wife and cohabitation is also proved and husband is also
capable to procreate child. If DNA test is allowed and test report shows that DNA of
husband and the child do not match. Now the meaning of the term non-access changed
into the absence of match of DNA of husband and the child.

Judicial response on recognition of DNA test:

Apart from these exceptions recognized by courts, it is still did not recognized as
scientific evidences like blood test, DNA 164 - 165 test and other scientific evidence
because different courts have different reasons and grounds to allow or not to allow or
bring such scientific evidences within the ambit of non-access. These reasons are
discussed briefly as follows:

1. Reasons not to allow DNA test and other scientific evidences:

1. The word 'access' used in Section 112 of the Evidence Act, connoted
only the existence of an opportunity for marital intercourse, and in case
such an opportunity was shown to have existed during the subsistence
of a valid marriage, the provision by a fiction of law, accepted the same
as conclusive proof of the fact that the child born during the subsistence
of the valid marriage, was a legitimate child166-167.
2. Section 112 of the Act itself provides an outlet (except one as an
exception) to the party who wants to escape from the rigor of that
conclusiveness168.
3. The raison d'etre is the legislative concern against illegitimatizing a
child. It is a sublime public policy that children should not suffer social
disability on account of the laches or lapses of parents169.

164
The DNA technique was developed by English geneticist Alec Jeffreys in 1987. It is now widely
available in India. DNA, the genetic material, is found in all cells of the body. A child inherits a unique
combination of DNA from its mother and father, and no two persons have the same DNA, except for
identical twins. Thus, DNA can be used to conclusively determine paternity.
165
Legal Aspects Of Legitimacy In Indian Perspective: An Overview, J Punjab Acad Forensic Med
Toxicol 2012;12(2) available at http://medind.nic.in/jbc/t12/i2/jbct12i2p111.pdf.
166
KarapayaServai v. Mayandi AIR 1934 PC 49
167
The determination of the Privy Council in KarapayaServai's case was approved by Supreme Court
Court in ChilukuriVenkateshwarly v. ChilukuriVenkatanarayana 1954 SCR 424.
168
Kamti Devi and Anr. v. Poshi Ram AIR 2001 SC 2226
169
Ibid
105
 4. There can be no dispute, that if the direction to hold such a test can be
avoided, it should be so avoided. The reason is that the legitimacy of a
child should not be put to peril170.
5. The dilemma of the court is that accepting DNA as evidence of
legitimacy is likely to render many children illegitimate and many
women unchaste. This is quite unfair for the husbands, and the court
appears to be saying to them that: “It is your child, unless you can prove
beyond reasonable doubt that it is not yours!”171
6. The court must be reluctant in the use of such scientific advances and
tools which result in invasion of right to privacy of an individual and
may not only be prejudicial to the rights of the parties but may have
devastating effect on the child172.
2. Reasons to allow DNA test and other scientific evidences:
1. We may remember that Section 112 of the Evidence Act was enacted at
a time when the modern scientific advancements with DNA173 as well
as RNA174 tests were not even in contemplation of the legislature175.
2. The result of a genuine DNA test is said to be scientifically accurate176.
3. This may look hard from the point of view of the husband who would
be compelled to bear the fatherhood of a child of which he may not be
father177.
4. The use of DNA test is an extremely delicate and sensitive aspect. The
view is that when modern science gives the means of ascertaining the
paternity of a child, there should not be any hesitation to use those means
whenever the occasion requires178.
1. Despite the consequences of a DNA test, it was permissible for a Court
to permit the holding of a DNA test, if it was eminently needed, after
balancing the interests of the parties179.

Changing nature of conclusive presumption under section 112:

Finally a case180 (Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and Anr181) in
Supreme Court came in which apex court decided the paternity dispute on the basis of
DNA test report but the problem with that case was that the mother of child did not
raise objection when demand for DNA test was put before the court and later on she
was raising objection that DNA test is not permissible under section 112 of Indian
Evidence Act but the court held that:

170
Dipanwita Roy Vs. Ronobroto Roy AIR2015SC418
171
Supra 17
172
Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and Anr. (2010) 8
SCC 633
173
DioxyNucleric Acid
174
Ribonucleic Acid
175
GoutamKundu v. State of West Bengal and Anr. (1993) 3 SCC 418
176
NandlalWasudeoBadwaik v. LataNandlalBadwaik and Anr. (2014) 2 SCC 576
177
Supra 22
178
Supra 23
179
Ibid
180
Ibid
181 (2014) 2 SCC 576
106
1. As regards the decision of this Court in the cases of Goutam Kundu, Banarsi
Dass and Bhabani Prasad Jena, the same have no bearing in the facts and
circumstances of the case. In all these cases, the court was considering as to
whether facts of those cases justify passing of an order for DNA test. When the
order for DNA test has already been passed, at this stage, we are not concerned
with this issue and we have to proceed on an assumption that a valid direction
for DNA test was given.
2. The subordinate court twice ordered for DNA test and, hence, the question as
to whether this was a fit case in which DNA profiling should or should not have
been ordered is academic. The Respondents had not opposed the prayer of DNA
test when such a prayer was being considered. It is only after the reports of the
DNA test had been received, which was adverse to the woman (respondent) that
they are challenging it on the ground that such a test ought not to have been
directed. We cannot go into the validity of the orders passed by a coordinate
Bench of this Court at this stage because it has attained finality.
3. The husband's plea that he had no access to the wife when the child was begotten
stands proved by the DNA test report and in the face of it we cannot compel the
Appellant to bear the fatherhood of a child, when the scientific reports prove to
the contrary. We are conscious that an innocent child may not be bastardized as
the marriage between her mother and father was subsisting at the time of her
birth, but in view of the DNA test reports and what we have observed above,
we cannot forestall the consequence. It is denying the truth. "Truth must
triumph" is the hallmark of justice.
4. The presumption may afford legitimate means of arriving at an affirmative legal
conclusion. While the truth or fact is known, in our opinion, there is no need or
room for any presumption. Where there is evidence to the contrary, the
presumption is rebuttable and must yield to proof. Interest of justice is best
served by ascertaining the truth and the court should be furnished with the best
available science and may not be left to bank upon presumptions, unless science
has no answer to the facts in issue. In our opinion, when there is a conflict
between a conclusive proof envisaged under law and a proof based on scientific
advancement accepted by the world community to be correct, the latter must
prevail over the former.

Still complex question has not been decided by the court that DNA and other scientific
evidences should be allowed or not because in the above case they decided the dispute
where already test has been conducted and party entitle to rise objection did not raise
objection. But after this case a similar dispute decided by Calcutta High Court in the
case named Ranatish Saha v. Soma Saha and Ors.182 and this time DNA test has been
demanded and Calcutta High Court citing the SC decision183 allowed or granted the
prayer for DNA test although objections were made not to grant such prayer. One point
is noteworthy that in this case woman admitted before husband that he is not the father
of the girl child. Finally the problem with regard to complex question that DNA and
other scientific evidences should be allowed or not has been solved in the case named

182
Decided on 24/09/2015 by Cal. HC
183
NandlalWasudeoBadwaik v. LataNandlalBadwaik and Anr. (2014) 2 SCC 576
107
Dipanwita Roy Vs. Ronobroto Roy184. In this case Supreme Court clearly held that
DNA and other scientific evidences would be admissible to rebut the conclusiveness
enshrined in section 112 under the ambit of non-access.

Here now we can say that Honourable Supreme Court finally decided or solved the
complexity attached with section 112 and allowed DNA test and other scientific method
to determine paternity but such scientific methods must be perfect or near to perfection
in its accurate result and accepted by world community for its accuracy and authenticity
but mere allowing such kind of evidences would not be sufficient to solve every legal
hurdle in between section 112 and such tests, there is need of consent of other party to
undergo such test because it is involving the constitutional right that is right to privacy
and no one can be compelled to give his or her blood or other serum for undergoing
such tests.

Regarding this in a recent case185guidelines have been given by Supreme Court that-
1. If she (mother of the child) accepts the direction issued by the Court, the DNA
test will determine conclusively the veracity of accusation made by the husband,
against her.
2. In case, she declines to comply with the direction issued by Court, the concerned
Court would determine the allegation by drawing a presumption contemplated
in Section 114 of the Indian Evidence Act, especially, in terms of illustration
(h)186.
This course has been adopted to preserve the right of individual’s privacy to the
maximum extent of possibility. Of course, without sacrificing the cause of justice. By
adopting the above course, the issue of infidelity alone would be determined, without
expressly disturbing the presumption contemplated Under Section 112 of the Indian
Evidence Act.

Up to this extent we have only analyzed few provisions related to presumption of

paternity in India and some changes brought by the courts. It is very pertinent to refer
English law 187 where it does permit blood test for determining the paternity of

184
AIR2015SC418
185
Ibid
186
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.
187
Family Law Reform Act 1969 [FLRA 1969] Section 20- Power of court to require use of blood
tests:
1. In any civil proceedings in which the parentage of any person falls to be determined, the court
may, either of its own motion or on an application by any party to the proceedings, give a
direction—
1. for the use of scientific tests to ascertain whether such tests show that a party to the
proceedings is or is not the father or mother of that person; and
2. for the taking, within a period specified in the direction, of bodily samples from all or
any of the following, namely, that person, any party who is alleged to be the fat her or
mother of that person and any other party to the proceedings; and the court may at any
time revoke or vary a direction previously given by it under this subsection.
108
legitimacy. Having regard to the development of medical jurisprudence to deny that
request to the appellant will be unreasonable. As a matter of fact, in England, this is
commonly resorted to as it will leave no room for doubt. In 1968 (1) All England
Reports (p. 20 Re.1) says that even without the consent of the guardian ad litem, the
court had power to order an infant be subjected to a blood group test188.

Considering the changing scenario, development of science and the role of accurate &
perfect science in giving its results and acceptance by world community, Law
Commission of India in its 185th Report proposed for substitution of section 112, the
following section shall be substituted189, namely:

“The fact that any child was born during the continuance of a valid marriage between
its mother and any man, or within two hundred and eighty days,

1. After the marriage was declared nullity, the mother remaining unmarried, or
2. After the marriage was avoided by dissolution, the mother remaining
unmarried, shall be conclusive proof that such person is the legitimate child of
that man, unless
1. It can be shown that the parties to the marriage had no access to each
other at any time when the child could have been begotten; or
2. It is conclusively established, by tests conducted at the expense of that
man, namely,
1.Medical tests, that, at the relevant time, that man was impotent
or sterile, and is not the father of the child; or
2.Blood tests conducted with the consent of that man and his wife
and in the case of the child, by permission of the Court, that that
man is not the father of the child; or
3.DNA genetic printing tests conducted with the consent of that
man and in the case of the child, by permission of the Court, that
that man is not the father of the child190; and
Provided that the Court is satisfied that the test under sub-clause (i) or sub-clause (ii)
or sub-clause (iii) has been conducted in a scientific manner according to accepted
procedures, and in the case of each of these sub-clauses (i) or (ii) or (iii) of clause (b),

(1A) Tests required by a direction under this section may only be carried out by a b ody which has been
accredited for the purposes of this section by—
1. the Lord Chancellor, or
2. a body appointed by him for the purpose.
3. The [F19individual] carrying out scientific tests in pursuance of a direction under subsection
(1) above shall make to the court a report in which he shall state—
1. the results of the tests;
2. whether any party to whom the report relates is or is not excluded by the results from
being the father or mother of the person whose parentage is to be determined; and
3. in relation to any party who is not so excluded, the value, if any, of the results in
determining whether that party is the father or mother of that person; and the report
shall be received by the court as evidence in the proceedings of the matters stated in it.
188
Supra 22
189
http://lawcommissionofindia.nic.in/reports/185thReport-PartV.pdf visited on 16/03/2016.
190
Ibid
109
at least two tests have been conducted, and they resulted in an identical verdict that that
man is not the father of the child.

Provided further that where that man refuses to undergo the tests under sub clauses (i)
or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to
have waived his defence to any claim of paternity made against him.

Explanation I:

For the purpose of sub clause (iii) of clause (b), the words ‘DNA genetic printing tests’
shall mean the tests conducted by way of samples relatable to the husband and child
and the words “DNA” mean ‘Deoxyribo-Nucleic Acid’.

Explanation II:

For the purposes of this section, the words ‘valid marriage’ shall mean a void marriage
till it is declared nullity or a voidable marriage till it is avoided by dissolution, where,
by any enactment for the time being in force, it is provided that the children of such
marriages which are declared nullity or avoided by dissolution, shall nevertheless be
legitimate.”191

Conclusion and Suggestions:

After discussing many relevant points we come back to our moot question that by
permitting such exceptions to rebut conclusiveness changed its nature or not? We can
now easily conclude that courts by giving liberal interpretation to the term “non-access”
included many grounds in its periphery or ambit and such grounds include almost all
possible grounds by which conclusiveness of section 112 of the Act can be rebutted.
Not only this but it also included all scientific evidence, which may come or invented
in future having capacity to rebut the conclusiveness of section 112. Now the law
permits many grounds to rebut the conclusive presumption given in section 112. In
statutory provision still it has only one ground (non-access) for rebuttal but the court
has added all possible grounds within it for rebuttal. At present, in my opinion, its
position ceases to be a conclusive proof and by making a shift, it only has the effect
like shall presumption. It means it primarily decides on whom the burden of proof
would lie and evidence will be accepted to rebut it on many grounds by other party.
Finally, we can say that by liberal interpretation of the term non-access and inclusion
of all scientific evidence (including DNA Test) which can give accurate results, near to
perfection and accepted by world community helped the presumption of paternity

191
Ibid
110
enshrined in section 112 of Indian Evidence Act, 1872 to escape from rigor of
conclusive presumption.

The law laid down by the SC in Nandlal case that if there is clash between law and
truth, truth should prevail seems not proper because in the Nandlal case there was not
a clash between truth and law but that is truth vs. law and policy or truth vs. justice. If
these question would be raised obviously justice should prevail. Although this may be
the argument that truth is the foundation of justice thus there is no possibility of clash
between the two. There are many examples where possibility of clash between truth vs.
justice may occur. Here one example is cited that; if communication between husband
and wife relating to commission of offence by husband is told by wife to court, whether
the court would take the same stand as in Nandlal case and court would say that now
truth came before the court and truth should prevail. No, this can not be done but justice
should prevail because this is not truth vs. law but truth vs. law and police enshrined in
it. Thus the same principle should be applicable to Nandlal case also.

At the end this is worth to mention the main objective behind enacting the Section 112
that is to protect children from bane of illegitimacy and that is based on public policy
not on equity or any reasoning. In the said provision, rights of child are in main focus
not the rights of a husband or any person. It means the interest of child would be
protected by such rigor presumption even in some case it seems illogical. But the
current situation what we have discussed above deviated from its goal and now rights
of husband or a person is focused. In many cases courts neglected the policy behind the
section and the decision was based on facts focusing on rights rather than policy. My
take on the said issue is that the court should take care the policy behind enactment of
the Section 112 of the Act.

111
 Scandalous question: A limit to "marathon cross examination

“Powers to or not to allow the reckless, scandalous and irrelevant cross

examinations of witnesses control the cross-examination. The court
has a duty to ensure that the cross examination is not made a means of
harassment or causing humiliation to the witness”.

".... to be an effective instrument in dispensing justice, the presiding

judge must cease to be a spectator and a mere recording machine. He
must become a participant in the trial by evincing intelligent active
interest...."192.
This is experienced that sometimes, cross-examination goes rambling way and assumes
unnecessary length and is directed to harass, humiliate or oppress the witnesses. It is
also experienced that the Courts often either due to timidity or the desire not to become
unpopular or at times, not knowing its responsibilities and powers, allow the reckless,
scandalous and irrelevant cross examinations of witnesses. In fact, in such situations,
the court has the power to control the cross-examination. The court has a duty to ensure
that the cross examination is not made a means of harassment or causing humiliation to
the witness. While allowing latitude in the cross examination, court has to see that the
questions are directed towards the facts which are deposed in chief, the credibility of
the witness, and the facts to which the witness was not to depose, but, to which the cross
examiner thinks, is able to depose193.

Indecent or scandalous questions may be put either to shake the credit of a witness or
as relating to facts in issue or to matters necessary to be known in order to determine
whether or not the facts in issue existed. If they are put merely to shake the credit of a
witness, the Court has complete dominion over them and may forbid such questions,
even though they may have some bearing on the question before the Court. But if they
relate to facts in issue or to matters necessary to be known in order to determine whether
or not the facts in issue existed, the Court has no discretion to forbid such questions,
though they may be indecent or scandalous194.

It is also well established that a witness cannot be contradicted on matters irrelevant to

the issue. Witness cannot be interrogated in the irrelevant matters merely for the
purpose of contradicting him by other evidence. If it appears to the Judge that the
question is vexatious and not relevant to any matter, he must disallow such a question.
Even for the purpose of impeaching his credit by contradicting him, the witness cannot
be put to an irrelevant question in the cross-examination. The court has ample power to
disallow such questions, which are not relevant to the issue or the witness had no
opportunity to know and on which, he is not competent to speak. This is in consonance
with the well-established norm that a witness must be put that much of a case as
concerns that particular witness195.

192
Ram Chander Vs State of Haryana
193
R K Chandolia vs Cbi & Ors, Delhi High Court 2012
194
Mahammad Mian vs Emperor, Patna High Court 1919
195
W.P.(CRL.) 225/2012 Delhi High Court
112
In Zamindar Of Tuni vs Bangaru Peda Bennayya And Ors 196, Justice Subrahmania
Aiyar, held that
“Courts possess inherent power to stop such an abuse of its records. Scandal is
calculated to do great and permanent injury to all persons, whom it affects, by
making the records of the Court the means of perpetuating libellous and
malignant slanders; and the Court, in aid of public morals, is bound to interfere
to suppress such indecencies.”
The last point for consideration is whether the memorandum does contain scandalous
matter. In dealing with a question like this two rules have to be borne in mind, viz., that,
as urged for the appellant, what is relevant cannot be scandalous and that Courts ought
not to dictate to parties how they should frame their cases, provided of course the rules
of pleading are not contravened in the frame of their cases

In Re G. Vasantha Pai197 the court held that:

“Which are pointedly seditious, blasphemous or irrelevantly scandalous or indecent,
they may be ordered to be expunged but such a power should be exercised only in
extraordinary cases”.

In R K Chandolia vs Cbi & Ors 198, Justice M. L. Mehta said that:

As per Section 151 and 152, the questions which are apparently indecent or
scandalous or which appear to be intended to insult or annoy or are offensive
in form, are forbidden. Such questions may be put either to shake the credit of
witness or as relating to the facts in issue. If they are put merely to shake the
credit of the witness, the court has complete dominion over them and to forbid
them even though they may have some bearing on the questions before the court.
But, if they relate to the facts in issue or are necessary to determine the facts in
issue existed, the court has no jurisdiction to forbid them. The court cannot
forbid indecent or scandalous questions, if they relate to the facts in issue. It is
because what is relevant cannot be scandalous.

The provisions of sections 146, 148 and 151 of the Evidence Act provides that parties
have a right to put such questions to the prosecution witness which have bearing on his
veracity and may shake his credit worthiness. As per Section 151 and 152, the questions
which are apparently indecent or scandalous or which appear to be intended to insult or
annoy or are offensive in form, are forbidden. Such questions may be put either to shake
the credit of witness or as relating to the facts in issue. If they are put merely to shake
the credit of the witness, the court has complete dominion over them and to forbid them
even though they may have some bearing on the questions before the court. But, if they
relate to the facts in issue or are necessary to determine the facts in issue existed, the
court has no jurisdiction to forbid them. The court cannot forbid indecent or scandalous
questions, if they relate to the facts in issue. It is because what is relevant cannot be
scandalous.

Having seen that though the ambit of cross examination of a witness goes beyond his
examination-in-chief, but there has to be relevancy of the questions as regard to the
facts or to the creditworthiness of a witness. The counsels must exercise their right of
196
(1898) 8 MLJ 304
197
(1960) 1 MLJ 21
198
W.P.(CRL.) 225/2012 Delhi High Court
113
cross examination in a reasonable manner. They have their obligations no less than their
privileges. They have no right of unlimited arguments or examination of witnesses, but
only so much as would be relevant and reasonably necessary in the particular matter.
When a Judge exercises his discretion and disallows a question being irrelevant on any
count, the cross examiner should accept the court's rulings without any demur or display
of temper. The court is entitled to expect such like acceptance of a ruling on the part of
the counsel.

Power to disallow questions should be effectively exercised by reference to Sections

146 148 150 151 and 152 of the Evidence Act by excluding improper and impermissible
questions. The examination of the witnesses should not be protracted and the witness
should not feel harassed. The cross-examiner must not be allowed to bully or take unfair
advantage of the witness. Though the trials in India are adversarial, the power vesting
in the court to ask any question to a witness at any time in the interest of justice gives
the trial a little touch of its being inquisitorial. Witnesses attend the court to discharge
the sacred duty of rendering aid to justice. They are entitled to be treated with respect
and it is the judge who has to see that they feel confident in the court.

114
 ROLE OF JUDGE IN A TRIAL

“The presiding officer of a Court should not simply sit as a mere umpire at
a contest between two parties and declare at the end of the combat who has
won and who has lost and that there is a legal duty of his own, independent
of the parties, to take an active role in the proceedings in finding the truth
and administering justice”.

In the light of the above lines we are going to analyse the role and importance of a
judge in a trial or proceeding. In this reference first of all we take some cases as
example where court of law has given some observations relating to role of a judge.
The Supreme Court Justice O Chinnappa Reddy in Ram Chander vs State Of
Haryana199 explained the role of a Judge trying a criminal case that:
“If a Criminal Court is to be an effective instrument in dispensing justice, the
presiding judge must cease to be a spectator and a mere recording machine. He
must become a participant in the trial by evincing intelligent active interest by
putting questions to witnesses in order to ascertain the truth. The Court has wide
powers and must actively participate in the trial to elicit the truth and to protect
the weak and the innocent. It is the duty of a judge to discover the truth and for
that purpose he may “ask any question, in any form, at any time, of any witness,
or of the parties, about any fact, relevant or irrelevant”. But this he must do,
without unduly trespassing upon the functions of the public prosecutor and the
defence counsel, without any hint of partisanship and without appearing to
frighten, coerce, confuse, intimidate or bully witnesses. He must take the
prosecution and the defence with him. The Court, the prosecution and the
defence must work as a team whose goal is justice, a team whose captain is the
judge. The judge, “like the conductor of a choir, must, by force of personality,
induce his team to work in harmony; subdue the raucous, encourage the timid,
conspire with the young, flatter and old.”
Evidence Act, section 165 read with section 172(2) of the Code of Criminal Procedure,
whether a Judge in a criminal case may put any question to the witness and if so what
are its limitations.
In Ram Kumar Pandey v. The State of Madhya Pradesh 200 J. CHINNAPPA
REDDY, observed the true role of a judge trying a criminal case:
These are some of the questions which we are compelled to ask ourselves in this appeal
on account of the manner in which the judge who tried the case put questions to some
of the witnesses.
1. Is he to assume the true role of a referee in a football match or an umpire in a
cricket match? Occasionally answering, as Pollock and Maitland point out, the
question ‘How is that’? In the words of Lord Kenning ‘drop the mantle of a
judge and assume the role of an advocate?
199
1981 AIR 1036, 1981 SCR (3) 12
200
1975] 3 S.C.R. 519
115
 2. Is he to be a spectator or a participant at the trial? Is passivity or activity to mark
his attitude? If he desires to question any of the witnesses, how far can he go?
The adversary system of trial being what it is, there is an unfortunate tendency for a
judge presiding over a trial to assume the role of a referee or an umpire and to allow
the trial to develop into a contest between the prosecution and the defence with the
inevitable distortions flowing from combative and competitive element entering the
trial procedure. If a criminal court is to be an effective instrument in dispensing justice,
the presiding judge must cease to be a spectator and a mere recording machine. He must
become a participant in the trial by evincing intelligent active interest by putting
questions to witnesses in order to ascertain the truth.
“Every criminal trial is a voyage of discovery in which truth is the quest. It is
the duty of a presiding Judge to explore every avenue open to him in order to
discover the truth and to advance the cause of justice. For that purpose he is
expressly invested by section 165 of the Evidence Act with the right to put
questions to witnesses. Indeed the right given to a Judge is so wide that he may
‘ask any question he pleases, in any form, at any time, of any witness, or of the
parties about any fact, relevant or irrelevant. Section 172 (2) of the Code of
Criminal Procedure enables the Court to send for the police diaries in a case and
use them to aid it in the trial. The record of the proceedings of the committing
Magistrate may also be perused by the Sessions Judge to further aid him in the
trial.”
With such wide powers, the Court must actively participate in the trial to elicit the truth
and to protect the weak and the innocent. It must, of course, not assume the role of a
prosecutor in putting questions. The functions of the counsel, particularly those of the
Public Prosecutor, are not to be usurped by the judge, by descending into the arena, as
it were. Any questions put by the judge must be so as not to frighten, coerce, confuse
or intimidate the witnesses.

Lord Justice Birkett has explained the danger inherent in a judge adopting a much too
stern an attitude towards witnesses in following words:
“People accustomed to the procedure of the Court are likely to be over-awed or
frightened, or confused, or distressed when under the ordeal of prolonged
questioning from the presiding Judge. Moreover, when the questioning takes on
a sarcastic or ironic tone as it is apt to do, or when it takes on a hostile note as
is sometimes almost inevitable, the danger is not only that witnesses will be
unable to present the evidence they may wish, but the parties may begin to think,
quite wrongly it may be, that the judge is not holding the scales of justice quite
eventually”

In Jones v. National Coal Board201 Lord Justice Denning observed:

201
1957] 2 QB 55
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 “The Judge’s part in all this is to hearken to the evidence, only himself asking
questions of witnesses when it is necessary to clear up any point that has been
over looked or left obscure; to see that the advocates behave themselves seemly
and keep to the rules laid down by law; to exclude irrelevancies and discourage
repetition; to make sure by wise intervention that he follows the points that the
advocates are making and can assess their worth; and at the end to make up his
mind where the truth lies. If he goes beyond this, he drops the mantle of the
judge and assumes the role of an advocate; and the change does not become him
well.”
We may go further than Lord Denning and say that it is the duty of a judge to discover
the truth and for that purpose he may “ask any question, in any form, at any time, of
any witness, or of the parties, about any fact, relevant or irrelevant” (Sec. 165 Evidence
Act). But this he must do, without unduly trespassing upon the functions of the public
prosecutor and the defence counsel, without any hint of partisanship and without
appearing to frighten or bully witnesses. He must take the prosecution and the defence
with him. The Court, the prosecution and the defence must work as a team whose goal
is justice, a team whose captain is the judge. The judge, ‘like the conductor of a choir,
must, by force of personality, induce his team to work in harmony; subdue the raucous,
encourage the timid, conspire with the young, flatter and old’.

In Vishal Yadav vs State Of U.P.202 the court stated that:

With the passage of time, it has been realised that people used to feel proud to tell the
truth in the Courts, irrespective of the consequences but that practice no longer proves
true, in all cases.
“The Court does not sit simply as an umpire in a contest between two parties
and declare at the end of the combat as to who has won and who has lost but it
has a legal duty of its own, independent of parties, to take active role in the
proceedings and reach at the truth, which is the foundation of administration of
justice. Therefore, the truth should become the ideal to inspire the courts to
pursue. This can be achieved by statutorily mandating the Courts to become
active seekers of truth. To enable the courts to ward off unjustified interference
in their working, those who indulge in immoral acts like perjury, prevarication
and motivated falsehood, must be appropriately dealt with. The parties must
state forthwith sufficient factual details to the extent that it reduces the ability
to put forward false and exaggerated claims and a litigant must approach the
Court with clean hands. It is the bounden duty of the Court to ensure that
dishonesty and any attempt to surpass the legal process must be effectively
curbed and the Court must ensure that there is no wrongful, unauthorised or
unjust gain to anyone as a result of abuse of the process of the Court. One way
to curb this tendency is to impose realistic or punitive costs.”
Malimath Committee on Judicial Reforms discussed the paramount duty of Courts
to search for truth. The relevant observations of the Committee are as under:
In practice however we find that the Judge, in his anxiety to demonstrate his
neutrality opts to remain passive and truth often becomes a casualty.

202 Delhi High Court on 2 April, 2014,

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 In Mohanlal Shamji Soni v. Union of India203, the Supreme Court observed that
the presiding officer of a Court should not simply sit as a mere umpire at a
contest between two parties and declare at the end of the combat who has won
and who has lost and that there is a legal duty of his own, independent of the
parties, to take an active role in the proceedings in finding the truth and
administering justice.
Justice Gajendragadkar, one of India's greatest jurists, says in the 69th Report of the
Law Commission of India on the Evidence Act that [the judge's] object, above all, is to
find out the truth... The Report adds, ―Rules of evidence are intended ultimately to
ensure that truth shall come before the Court in a manner which secures justice and
which is in conformity with the general principles of jurisprudence and the content and
spirit of the legal system. These sentiments are widely echoed in a large number of
judgments and also in academic literature on the law.
In the same Report, Justice Gajendragadkar underscores the limitation of the ability of
the judicial process in finding the truth. He says:
1. Rules of evidence, however perfect they may be, cannot guarantee that truth
will be known at the end of the trial.
2. He says That the [Evidence] Act recognizes that the truth need not be pursued
at too high a cost.
3. The caveat that courts cannot guarantee that their decisions will be based on
truth is widely shared by judges and academicians.

Discretionary powers of a judge provided in the Indian Evidence Act:

1. In an examination-in-chief, cross examination, re-examination or at any point of

time during the proceedings of a case, the judge can ask any question to any party.
The relevancy of the question with the case does not matter.
2. Discretion to authorise any party to begin a case (no discretion in criminal matters)
Cr.P.C. provides that criminal is started by the prosecution. In civil cases, not
decided who will start. One party asserted, other accepted, court will decide who
will begin.
3. If there is a question regarding relevancy- if there are more than one fact and
relevancy of one fact depends upon the existence or nonexistence of other fact, it
is the discretion of the court to admit the relevant fact without approving second
fact, merely on the basis of understanding by the party. (Sec. 32: Dying declaration)
4. With regard to admissibility of evidence- If any fact is directly admissible by
Indian Evidence Act, then there is no discretion of the court and if there is not so

203
1991 Supp (1) SCC 271
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 and admissibility of one fact depends on the other. The court has the discretion to
declare it admissible or not without giving second.
5. To fix or manage the order for production of document or witnesses. (Secs. 135,
136)
6. Court can decide the competency of witness (Secs. 118,119); can preliminarily
examine the witness if there is any doubt in competence. He can ask questions,
judge answers and come to a rational conclusion. (In case of child witness or
lunacy)
7. He can ask any question to a witness whether proper/improper or
irrelevant/relevant and can be in any form (a) leading question, (b) point, (c)
explanatory, etc. (party cannot raise any objection)

Limitation- Can ask questions contained in Secs. 121, 131 and can only ask and not
compel. Cannot ask a question which even a party is prohibited to ask.

8. Court may presume some facts.

9. To take judicial notice- whether to take or not- discretion of the court. Sec 57
provides a list- can take, but that is not exhaustive list. [New categories may be
created by court, the facts on which court should take judicial notice that are not
given in list- discretion of the court.
10. To give evidentiary value to an evidence [corroborative or not, sufficient to decide,
etc.] to separate truth from falsehood.
11. To decide whether a fact is proved or disproved basis- Sec. 3 IEA

[Proved- court concludes that the fact exists on its satisfaction is the discretion of the
court]

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