Appreciation of evidence and Types of Witness.pptx

APPRECIATION OF EVIDENCE IN CRIMINAL TRIAL PRESENTED BY K. SRI BHARATHI

OBJECT OF EVIDENCE LAW To determine the substantive law: The object of procedural law has to bring the disputants together for the purpose of trial to ascertain the facts and the law in dispute so as to enable the Court to come to a conclusion.

MODE OF APPRECIATION OF TESTIMONY OF EYE WITNESSES ETC. While appreciating the evidence of a witness claiming to have seen the incident, the court should consider and look for the following factors appearing in the entire testimony of the witness : ( i ) Whether the witness was present on the spot (ii) Whether the witness had seen the incident (iii) Credibility of the witness

C. Magesh v. State of Karnataka, (2010) 5 SCC 645 (Relied in Taijuddin v. State of Assam, (2022) 1 SCC 395) 45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise , consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of U.P. [(2008) 16 SCC 686 : (2008) 11 SCR 286] has held [ Ed. : As observed in Krishnan v. State , (2003) 7 SCC 56 at pp. 62-63, para 21.] : (SCC p. 704, para 14) “ 14 . ‘ 21 . … The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; … the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.’ ”

46. In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.

FACTS 3. Interpretation-clause.––In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context: –– “Fact”.–– “Fact” means and includes –– (1) anything, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious. “Facts in issue”.–– The expression “facts in issue” means and includes –– any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. Explanation. ––Whenever, under the provisions of the law for the time being in force relating to Civil Procedure,1 any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue. RELEVANT FACT- Facts which prove or disprove fact in issue

CHAPTER II- SECTION 5 5. Evidence may be given of facts in issue and relevant facts. –– Evidence may be given in any suit or proceeding of the existence of non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. Explanation. –– This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure .

DISTINCTION IN APPRECIATION OF EVIDENCE IN CIVIL AND CRIMINAL CASES Criminal cases and civil cases vary greatly in many respects, but evidence is generally always the key factor in deciding a case. In both criminal law cases and civil law cases, the parties have to convince a trier of fact (judge or jury) of their position.

STAGE I- ADMISSIBILITY OF WITNESSES AND OF RELEVANCY OF FACTS

State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari , (2013) 12 SCC 17 11. It is relevant in the first instance to describe the expanse/sphere of admissible evidence. The same has been postulated in Section 5 of the Evidence Act. Under Section 5 aforementioned, evidence may be given “of every fact in issue” and of such other facts which are expressly “declared to be relevant”, and of no other facts. For the present controversy, the facts in issue are the seven bomb blasts, in seven different first class compartments of local trains of Mumbai Suburban Railways, on 11-7-2006….PTO

…Thus far, there is no serious dispute. But then, evidence may also be given of facts which are “declared to be relevant” under the Evidence Act. Under the Evidence Act, Sections 6 to 16 define “relevant facts”, in respect whereof evidence can be given. Therefore, Sections 5 to 16 are the provisions under the Evidence Act, which alone have to be relied upon for determining admissibility of evidence.

APPERECIATION OF EVIDENCE WHEN: Reaction/conduct/ behaviour of witnesses & their appreciation Conduct of accused when incriminating circumstance against him? Conduct of accused in abscondence admissible in evidence u/s 8 of the Evidence Act Conduct of witness and victim material for evaluation of their evidence

REACTION/CONDUCT/BEHAVIOUR OF WITNESS & THEIR APPRECIATION When eye witness does not come to the rescue of the deceased, it has been held that such reaction, conduct and behavior of the witness cannot be ground to discard their evidence when they are unarmed and the accused are armed with deadly weapons

Rana Partap v. State of Haryana, (1983) 3 SCC 327 6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

SECTION 118 WHO MAY TESTIFY All persons shall be competent to testify -unless the Court considers that they are prevented from understanding the questions put to them, -or from giving rational answers to those

…CONTD Section 118 of the Act states the persons who can be a witness. The court identifies all competent individuals who can testify with proper knowledge of the crime. There are restrictions placed in consideration by the court on those who are incompetent in understanding the questions put to them, or to give rational answers because of: tender years; extreme old age; disease, whether of body or mind or any other cause of the same kind. The condition of the witness does not bar him from testifying but his incompetency to understand the questions or answer rationally exclude him from being a witness.

KINDS OF WITNESSES (1) Independent Witness (2) Direct (Ocular) Witness (3) Interested Witness : (a) Family Member as Witness (b) Relatives as Witness (c) Friendly Witness (4) Inimical Witness (5) Hostile Witness (6) Injured Witnes (7) Sterling Witness. Vide Santosh Prasad Vs.State of Bihar, (2020) 3 SCC 443 (8) Chance Witness (9) Child Witness 10) Deaf and Dumb Witness (11) Tutored Witness (12) Habitual Witness (13) Hearsay Witness (14) Planted Witness (15) Police Personnel as Witness (a) Investigating Officer (b) FIR Registering Constable (c) Witness to Arrest & Recovery etc. (d). Official Witness. Vide: Vinod Kumar Garg Vs. State NCT of Delhi, (2020) 2 SCC 88 (16) Expert Witness (a) Doctor (Medical Expert) (b) Hand Writing Expert (c) Thumb & Finger Print Expert (d) Typewriter Expert (e) Voice Expert (f) Chemical Examiner (g) Ballistic Expert (h) Any Other Expert (17) Secondary Witness (18) Approver as Witness (19) Accused as Witness

STERLING WITNESS Ganesan v. State, (2020) 10 SCC 573: 10.3. Who can be said to be a “sterling witness”, has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi) [ Rai Sandeep v. State (NCT of Delhi) , (2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750] . In para 22, it is observed and held as under: (SCC p. 29) “ 22 . In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness……….PTO

…….What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion…….PTO

…..The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

INDEPENDENT WITNESS AND EFFECT OF THEIR NON-EXAMINATION If a witness examined in the court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. It is settled law that non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict an accused on statement of s sole witness even if he is relative of the deceased and non examination of independent witness would not be fatal to the case of prosecution. Non- examination of independent eye witnesses is inconsequential if the witness was won over or terrorised by the accused.

Sadhu Saran Singh v. State of U.P., (2016) 4 SCC 357 29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.

HEARSAY WITNESS As per S. 60, Evidence Act, hearsay deposition of a witness is not admissible and cannot be read as evidence. Failure to examine a witness who could be called and examined is fatal to the case of prosecution.

SECTION 6- RELEVANCY OF FACTS FORMING PART OF THE SAME TRANSACTION 6. Relevancy of facts forming part of same transaction. –– Facts which, though not in issue, are 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.

Gentela Vijayavardhan Rao v. State of A.P., (1996) 6 SCC 241 15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. ….PTO

….The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae .

COMPETENCY OF CHILD WITNESS To determine the question of competency courts, often undertake the test whether from the intellectual capacity and understanding he is able to give a rational and intelligent account of what he has seen or heard or done on a particular occasion. Therefore it all depends upon the good sense and discretion of the judge. Coroboration of testimony of child witness is not a rule, but a measure of caution and prudence.

Principle of Vol dire Test This test was established to identify the competency of the child to be a witness according to the conditions provided in section 118 of the Indian Evidence Act, 1872. The child can be asked some questions out of the scope of the case details which include preliminary questions on name, father’s name or their place of residence. If the court is satisfied with the answers of the questions, the capability of the child to understand the questions and answer them rationally, can the child be allowed to testify in court.

CHILD WITNESS-ADMISSIBILITY A testimony by a child in a court of law is not given much importance due to the possibility of the coercion induced statements which would threaten the authenticity of the witness. A child can have a different perspective to different situations according to their mental development. The maturity of every individual is subjective to the environment he/she resides in and the socio-economic development of that individual.

Panchhi v. State of U.P., (1998) 7 SCC 177 (Affirmed in Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 and Hari Om v. State of U.P., 2021 4 SCC 345) WHETHER CORROBORATION NECESSARY? According to the learned counsel, the evidence of a child witness is generally unworthy of credence. But we do not subscribe to the view 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.

...CONTD 12. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law (vide Prakash v. State of M.P. [(1992) 4 SCC 225 : 1992 SCC (Cri) 853] ; Baby Kandayanathil v. State of Kerala [1993 Supp (3) SCC 667 : 1993 SCC (Cri) 1084] ; Raja Ram Yadav v. State of Bihar [(1996) 9 SCC 287 : 1996 SCC (Cri) 1004 : AIR 1996 SC 1613] and Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] ).

22. This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. [See Panchhi v. State of U.P. [ Panchhi v. State of U.P. , (1998) 7 SCC 177 : 1998 SCC (Cri) 1561] , State of U.P. v. Ashok Dixit [ State of U.P. v. Ashok Dixit , (2000) 3 SCC 70 : 2000 SCC (Cri) 579] and State of Rajasthan v. Om Prakash [ State of Rajasthan v. Om Prakash , (2002) 5 SCC 745 : 2002 SCC (Cri) 1210] .]

OATH TO CHILD WITNESS Proviso to Sec. 4(1) of the Oaths Act, 1969 reads as under---- “Provided that, where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of Sec. 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.”

OMISSION TO ADMINISTER OATH (Sec. 7 of the Oaths Act, 1969) This section reads as under---- “No omissions to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.”

CHILD WITNESS WHEN NOT UNDERSTANDING THE MEANING OF OATH It has been laid down by the Supreme Court that there is no legal bar against relying on the testimony of a child witness to whom oath could not be administered due to her incapacity to understand the meaning of oath.

INTERESTED PERSONS AS WITNESS An interested person according to the English Law is someone who has any material benefit from the case. The one who has an interest in the outcome of the case by virtue of him attached to the case in some manner. The court shall take utmost care while hearing the interested person testifying in a court and not take it as conclusive evidence due to the witness association with the case. The testimony cannot be discarded but caution shall be there as a related person can be an interested person.

WHO IS AN INTERESTED WITNESS? A 'related witness' is not equivalent to an 'interested witness'. A witness may be called 'interested' only when he or she derives some benefit from the result of the litigation in the decree in a civil case or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be an 'interested witness'.

Ganapathi v. State of T.N., (2018) 5 SCC 549 14. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested” [See: State of Rajasthan v. Kalki [ State of Rajasthan v. Kalki , (1981) 2 SCC 752 : 1981 SCC (Cri) 593] ].

Sri Narayan Saha v. State of Tripura, (2004) 7 SCC 775 6. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (in short “the Evidence Act”) nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix , there is no rule of law or practice incorporated in the Evidence Act similar to Illustration

...CONTD ( b ) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 Relied on :State of Bihar v. Basawan Singh, 1959 SCR 195, Bhanuprasad Hariprasad Dave v. State of Gujarat, (1969) 1 SCR 22 and Major E.G. Barsay v. State of Bombay, (1962) 2 SCR 195 and held as follows: “24. From the aforesaid authorities it is clear that a trap witness is an interested witness and his testimony, to be accepted and relied upon requires corroboration and the corroboration would depend upon the facts and circumstances, nature of the crime and the character of the trap witness”

CHANCE WITNESS It is not the rule of law that chance witness cannot be believed. The reason for a chance witness being present on the spot and his testimony requires close scrutiny and if the same is otherwise found reliable, his testimony cannot be discarded merely on the ground of his being a chance witness. Evidence of chance witness requires very cautious and close scrutiny.

Jarnail Singh v. State of Punjab , (2009) 9 SCC 719 21. In Sachchey Lal Tiwari v. State of U.P. [(2004) 11 SCC 410 : 2004 SCC (Cri) Supp 105] this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and a passerby had deposed that he had witnessed the incident, observed as under: If the offence is committed in a street only a passerby 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 everyone 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. 22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence ( Satbir v. Surat Singh [(1997) 4 SCC 192 : 1997 SCC (Cri) 538] , Harjinder Singh v. State of Punjab [(2004) 11 SCC 253 : 2004 SCC (Cri) Supp 28] ,

Acharaparambath Pradeepan v. State of Kerala [(2006) 13 SCC 643 : (2008) 1 SCC (Cri) 241] and Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188] ). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan [(2004) 10 SCC 632 : 2005 SCC (Cri) 579] ). 23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (vide Thangaiya v. State of T.N. [(2005) 9 SCC 650 : 2005 SCC (Cri) 1284] ……

Refex Industries Limited v. United India Insurance Company Ltd., 2022 SCC OnLine Mad 101 32. In the considered view of this Court, the evidence of PW-1 and PW-3 does not in any way substantiate the theory of explosion that is sought to be projected by the plaintiff since they have neither witnessed nor heard the sound caused due to the explosion. Section 60 of the Indian Evidence Act, 1872 (herein after called as ‘the Act ’) makes it mandatory that the oral evidence must be direct in all cases. In the present case, the direct evidence would be either the witnesses having seen the explosion or heard the explosion. That is the reason why hearsay evidence is inadmissible. Both PW-1 and PW-3 at the best have only tendered hearsay evidence and that can never be taken into account while deciding the crucial issue as to whether there was any explosion in the refilling plant. This provision is the basis for the best evidence rule. In case of oral evidence, the act requires that only that person who has actually perceived something through his senses, by which it is cable of perception, should make the statement about it and no one else. In the present case the plaintiff for reasons best known did not want to let in the best evidence of at least one person who had heard this explosion during the relevant point of time.

The Hon'ble Supreme Court in Rama Paswan v. state of Jharkhand reported in 2007 Cri LJ 2750 has categorically held that while weighing the evidence, the Court can take note of the fact that the best available C.S. No. 747 of 2012 evidence was not given and consequently the Court can draw an adverse inference. 33. The theory of res gestae is an exception to the rule of hearsay evidence. However, even to come within the scope of res gestae , the witness has to satisfy the requirements of Section 6 of the Act. The hearing of a loud burst or an explosion is a fact under Section 3 of the Act. If this had been perceived through the ear by any person, he will be tendering a direct evidence satisfying the requirements of Section 60 of the Act. If PW-1 and PW-3 do not satisfy this requirement, it has to be seen if at least they are satisfying the requirements of Section 6 of the Act. To satisfy this requirement, they should have come into the sequence and formed part of the same transaction. Obviously, it has not happened in the present case and therefore, their evidence with regard to explosion in the refilling plant is completely inadmissible.

INJURED WITNESSES AND APPRECIATION OF THEIR EVIDENCE Deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies for the reason that his presence on the scene stands established in the case and it is proved that he suffered the injuries during the said incident.

NON-EXAMINATION OF INJURED WITNESS WHEN NOT FATAL? Where the injudered witness could not be examined by the prosecution despite efforts as he was kidnapped and threatened by the accused persons, it has been held by the Hon'ble Supreme Court that non examination of the injured witness under the above circumstances was not fatal to the case of prosecution and conviction of the accused persons on the testimony of eye witnesses was proper.

Sadhu Saran Singh Vs. State of UP, (2016) 4 SCC 357. 29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.

State of UP Vs Wasif Haider and others, (2019) 2 SCC 303 In this case the Court held that non-examination of injured witness as an investigative lapse and as one of the factors for acquittal: “19. Fifthly , the prosecution failed to examine Ram Chandra, the orderly of the deceased who was also injured in the same incident and had suffered a gunshot injury. The prosecution was also unable to prove the injury report of the above victim. Such a failure is fatal to the prosecution case as his presence in the place of occurrence is beyond doubt. It has been placed on record that, despite Ram Chandra attending the proceedings of the trial regularly he was not examined by the prosecution.”

TUTORED WITNESS If there are minor inconsistencies in the statements of witnesses and FIR in regard to number of blows inflicted and failure to state who injured whom, would by itself not make the testimony of the witnesses unreliable. This, on the contrary, shows that the witnesses were not tutored and they gave no parrot like stereotyped evidence.

HABITUAL WITNESS Where panch witnesses used to reside near the police colony and had appeared as punch from the year 1978 to 1981, it has been held that simply because such witnesses had appeared as panch witnesses in other cases also, it cannot be concluded that they are habitual panch witnesses and had blindly signed the panchnama .

SOLITARY WITNESS “ SECTION 134- NUMBER OF WITNESSES –– No particular number of witnesses shall in any case be required for the proof of any fact . “ Quantity of evidence does not determine quality of evidence--- Important Case law: Vadivelu Thevar v. State of Madras , 1957 SCR 981

Amar Singh v. State (NCT of Delhi), (2020) 19 SCC 165 16. Thus, the finding of guilt of the two appellant-accused recorded by the two courts below is based on sole testimony of eyewitness PW 1. As a general rule the court can and may act on the testimony of single eyewitness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise [see Sunil Kumar v. State (NCT of Delhi) [ Sunil Kumar v. State (NCT of Delhi) , (2003) 11 SCC 367 : 2004 SCC (Cri) 1055] ].

HOSTILE WITNESS AND APPRECIATION OF THEIR EVIDENCE (SEC 154) Law is settled that the evidence of a hostile witness cannot be rejected out right. Both parties are entitled to rely on such part of his evidence which assists their case.

POINTS FOR DISCUSSION Presiding Judge must play a proactive role to ensure fair trial. When witness resiles from his previous statement recorded under Section 164 CrPC , conviction cannot be based upon such previous statement. Informant/ complainant turning hostile and not proving FIR Reliance upon hostile witness Non- examination of hostile witness by Public Prosecutor in examination in chief and its effects

...CONTD Cross-examination of witness not to be deferred at the pleasure or leisure of defence counsel Direction of Supreme Court as to when should cross-examination of witness be deffered Calling of witness for cross-examination after long gap deprecated by Supreme Court. Question not put to witness during cross-examination makes the fact final.

...CONTD Re-examination of witness under section 137 and 138 of Evidence Act not limited to ambiguities in cross- examination. Stage of declaring witness as hostile ? When hostile PW did not get declared as hostile and not cross-examined by prosecution. Witness when can be declared as hostile? Public Prosecutor not bound to examine such witnesses who are not supportive of prosecution case.

Hari v. State of U.P., 2021 SCC OnLine SC 1131 26. It is well settled that the evidence of prosecution witnesses cannot be rejected in toto merely because the prosecution chose to treat them as hostile and cross-examined them. 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 7 . It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony.

If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of testimony which he finds to be creditworthy and act upon it 8 . 27. Even if the witnesses have turned hostile, their evidence can be accepted, if they are natural and independent witnesses and have no reason to falsely implicate the accused. In Mrinal Das v. State of Tripura 9 this Court observed that credible evidence even of a hostile witnesses can form the basis for conviction in a criminal trial.

WHEN WITNESS RESILES FROM HIS PREVIOUS STATEMENT U/S 164 CrPC , CONVICTION CANNOT BE BASED ON SUCH STATEMENT Relying on George v. State of Kerala, (1998) 4 SCC 605 the Court held thus: “ 84. Thus, in a case where a witness, in his statement under Section 164 CrPC , makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164.”

SECTION 133 ACCOMPLICE An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

POINTS FOR DISCUSSION An accomplice as a competent witness Who is an approver? (Section 306 CrPC ) An accomplice is different from a co-accused Accomplice on being pardoned under section 306 ceases to be an accused and becomes a PW. Effect of pardon to an approver ? Corroboration of testimony of accomplice necessary (Section 133 r/w Section 114 (b)

Somasundaram v. State, (2020) 7 SCC 722 Accomplice evidence 71. Section 133 of the Evidence Act declares that an accomplice is a competent witness and further that a conviction based on the uncorroborated testimony of an accomplice is not illegal only on account of it being so. Section 133 reads as follows: “ 133. Accomplice .—An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.” 72. It is apposite to notice Section 114 of the Evidence Act, Illustration ( b ), the court may presume: “( b ) that an accomplice is unworthy of credit, unless he is corroborated in material particulars.”

...CONTD 73. Thus, there appears to be a contradiction between these provisions. The matter is no longer res integra . We may notice the following statement of the law contained in an early judgment of this Court in Sarwan Singh v. State of Punjab [ Sarwan Singh v. State of Punjab , AIR 1957 SC 637 : 1957 Cri LJ 1014] : (AIR pp. 640-41, para 7) “ 7 . … It is hardly necessary to deal at length with the true legal position in this matter. An accomplice is undoubtedly a competent witness under the Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true .

…CONTD But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered . In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver .”

…CONTD The Judges also refer to Haroon Haji Abdulla v. State of Maharashtra , AIR 1968 SC 832 : 1968 Cri LJ 1017] : (AIR pp. 835-36, para 8 Sheshanna Bhumanna Yadav v. State of Maharashtra , (1970) 2 SCC 122 : 1970 SCC (Cri) 337 which they say explains the dichotomy of the two sections. K. Hashim v. State of T.N. , (2005) 1 SCC 237 : 2005 SCC (Cri) 292

…CONTD 77. To summarise , by way of culling out the principles which emerge on a conspectus of the aforesaid decisions, we would hold as follows : the combined result of Section 133 read with Illustration ( b ) to Section 114 of the Evidence Act is that the courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an accused.

…CONTD 78. As laid down by this Court, every material circumstance against the accused need not be independently confirmed. Corroboration must be such that it renders the testimony of the approver believable in the facts and circumstances of each case. The testimony of one accomplice cannot be, ordinarily, be supported by the testimony of another approver. We have used the word “ordinarily” inspired by the statement of the law in para 4 in K. Hashim [ K. Hashim v. State of T.N. , (2005) 1 SCC 237 : 2005 SCC (Cri) 292] wherein this Court did contemplate special and extraordinary cases where the principle embedded in Section 133 would literally apply. In other words, in the common run of cases, the rule of prudence which has evolved into a principle of law is that an accomplice, to be believed, he must be corroborated in material particulars of his testimony. The evidence which is used to corroborate an accomplice need not be a direct evidence and can be in the form of circumstantial evidence.

POINTS FOR DISCUSSION CONTINUED Approver Evidence of an accomplice not to be accepted without corroboration Approver’s evidence when to be accepted as decisive? Confession of co-accused not sufficient to hold the other as guilty.

WITNESS PROTECTION SCHEME, 2018

Mahender Chawla v. Union of India, (2019) 14 SCC 615 6. It hardly needs to be emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential persons or in a dominating position that they make attempts to terrorise or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as “witness protection”.

Smruti Tukaram Badade v. State of Maharashtra, 2022 SCC OnLine SC 78 Vulnerable witnesses Guidelines on special centre for examination of vulnerable witnesses Status report: 24 out of 25 High Courts have submitted status reports regarding establishment of Vulnerable Witness Deposition Centers. Report from Manipur High Court has not been filed as per office report dated 25.10.2021. In 15 out of 25 High Courts, at least 1 Permanent Vulnerable Witness Deposition Centre has been established. In 9 remaining High Courts, not even 1 Permanent Vulnerable Witness Deposition Centre has been established. Delhi has established at least 1 Permanent Vulnerable Witness Deposition Centre in all its functional District Courts. Delhi High Court has also formulated guidelines for recording of evidence of vulnerable witnesses in criminal matters. This has been adopted by other High Courts as well. Maharashtra has the most number of Permanent Vulnerable Witness Deposition Centers in its District and Subordinate Courts.

POLICE WITNESS AND THEIR RELIABILITY The testimony of police personnel should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses, the testimony of police personnel cannot be relied on. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good reasons. As a rule it cannot be stated that Police Officer can or cannot be sole eye witness in criminal case. Statement of Police Officer can be relied upon and even form basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record.

CONVICTION OF ACCUSED FOR MURDER BASED ON POLICE WITNESS Where the incident had taken place at 9.30 P.M. on a non-busy road where some laborers were working on a crushing unit about 100 yards away but none of them came near the scene of crime and the accused was arrested by the police party which had rescued the deceased from the accused's clutches before she died and only the members of the police party were examined as PWs and the labourers /independent witnesses were not examined as witnesses, the Supreme Court confirmed the conviction of the accused for the offences u/s 302/34 and 316/34 of the IPC.

POINTS FOR DISCUSSION Contradictions and their appreciation Picking up one word or sentence out of testimony of a witness and deriving conclusion therefrom - not proper Contradictions natural when witnesses are examined after lapse of time Only material contradictions affect credibility Difference between exaggerated and false version Inconsistency and its appreciation Consistent version of incident narrated When 2 witnesses make contrary statements on the same facts

Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537 19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness.

There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted [ Leela Ram v. State of Haryana , (1999) 9 SCC 525, pp. 532-35, paras 9-13 : 2000 SCC (Cri) 222] . Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a “partisan” or “interested” witness may lead to failure of justice. It is well known that principle “ falsus in uno , falsus in omnibus ” has no general acceptability [ Gangadhar Behera v. State of Orissa , (2002) 8 SCC 381, pp. 392-93, para 15 : 2003 SCC (Cri) 32] .

On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness. 20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape. [ Gangadhar Behera case , (2002) 8 SCC 381, p. 394, para 17]

“FALSUS IN UNO, FALSUS IN OMNIBUS” Where a witness speaks to an entire event and in respect of a part of that version he has been disbelieved, it is not safe to accept the other part and convict an accused on that evidence. The Supreme Court, however, has held that the maxim falsus in uno , falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice, for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or, at any rate, exaggeration, embroidery or embellishment. It is the duty of the Court to scrutinise the evidence carefully and separate the grain from the chaff.

ADMISSIBILITY OF ADMISSIONS AND CONFESSIONS

State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari , (2013) 12 SCC 17 12. Sections 17 to 31 of the Evidence Act pertain to admissions and confessions. Sections 17 to 31 define admissions/confessions, and also, the admissibility and inadmissibility of admissions/confessions. An analysis of the aforesaid provisions reveals, that an admission or a confession to be relevant must pertain to a “fact in issue” or a “relevant fact”. In that sense, Section 5 (and consequently Sections 6 to 16) of the Evidence Act are inescapably intertwined with admissible admissions/confessions….PTO

….It is, therefore, essential to record here that admissibility of admissions/confessions would depend on whether they would fall in the realm of “facts in issue” or “relevant facts”. That in turn is to be determined with reference to Sections 5 to 16 of the Evidence Act. The parameters laid down for the admissibility of admissions/confessions are, however, separately provided for under the Evidence Act, and as such, the determination of admissibility of one (admissions/confessions) is clearly distinguishable from the other (facts in issue/relevant facts).

SECTION 17- ADMISSION DEFINED ––An admission is a statement, 1 [oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

16. The scheme of the provisions pertaining to admissions/confessions under the Evidence Act (spelt out in Sections 17 to 31) makes admissions/confessions admissible (even though they are rebuttable) because the author of the statement acknowledges a fact to his own detriment. This is based on the simple logic (noticed above), that no individual would acknowledge his/her liability/culpability unless true. We shall determine the answer to the first question, by keeping in mind the basis on which, admissibility of admissions/confessions is founded…..PTO

…And also, whether confessions in this case (made to the witnesses at Serial Nos. 64 to 66) have been expressly rendered inadmissible, by the provisions of the Evidence Act, as is the case set up by the appellant. 17. An examination of the provisions of the Evidence Act would reveal that only such admissions/confessions are admissible as can be stated to have been made without any coercion, threat or promise: 17.1. Reference in this regard may be made to Section 24 of the Evidence Act which provides that a confession made by an accused person is irrelevant in a criminal proceeding, if such confession has been caused by inducement, threat or promise. 17.2. Section 24 aforesaid, is being reproduced below: “……”

SECTION 24- CONFESSION CAUSED BY INDUCEMENT, THREAT OR PROMISE WHEN RELEVANT IN CRIMINAL PROCEEDING A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or 2 promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

17.3. Sections 25 and 26 of the Evidence Act exclude from the realm of admissibility, confessions made before a police officer or while in police custody. There can be no doubt that the logic contained in the rule enunciated in Sections 25 and 26 is founded on the same basis/truth out of which Section 24 of the Evidence Act emerges: that a confession should be uninfluenced, voluntary and fair. And since it may not be possible to presume, that admissions/confessions are uninfluenced, voluntary and fair i.e. without coercion, threat or promise, if made to a police officer, or while in police custody, the same are rendered inadmissible. 17.4. Sections 25 and 26 aforesaid, are being reproduced below: “…..”

SECTION 25- CONFESSION TO POLICE OFFICER NOT TO BE PROVED No confession made to a police-officer , shall be proved as against a person accused of any offence.

SECTION 26- CONFESSION BY ACCUSED WHILE IN CUSTODY OF POLICE NOT TO BE PROVED AGAINST HIM –– No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. [Explanation. –– In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George 5 *** or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 18826 (10 of 1882).]

17.5. There is, therefore, a common thread in the scheme of admissibility of admissions/confessions under the Evidence Act, namely, that the admission/confession is admissible only as against the person who had made such admission/confession. Naturally, it would be inappropriate to implicate a person on the basis of a statement made by another. Therefore, the next logical conclusion is that the person who has made the admission/confession (or at whose behest, or on whose behalf it is made) should be a party to the proceeding because that is the only way a confession can be used against him……PTO

… Reference can be made to some provisions of the Evidence Act which fully support the above conclusions. Section 24 of the Evidence Act leads to such a conclusion. Under Section 24, a confession made “by an accused person”, is rendered irrelevant “against the accused person”, in the circumstances referred to above. Likewise, Section 25 of the Evidence Act contemplates that a confession made to a police officer cannot be proved “as against a person accused of any offence”. Leading to the inference that a confession is permissible/admissible only as against the person who has made it, unless the same is rendered inadmissible under some express provision. Under Section 26 of the Evidence Act, a confession made by a person while in custody of the police, cannot “be proved as against such person” (unless it falls within the exception contemplated by the said Section itself).

SECTION 27- HOW MUCH OF INFORMATION RECEIVED FROM ACCUSED MAY BE PROVED –– Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Important case: Pulukuri Kottaya v. King Emperor

17.6. The gamut of the bar contemplated under Sections 25 and 26 of the Evidence Act is however marginally limited by way of a proviso thereto, recorded in Section 27 of the Evidence Act. Thereunder , a confession has been made admissible, to the extent of facts “discovered” on the basis of such confession (this aspect is not relevant for the present case). 17.7. The scheme of the provisions pertaining to admissions/confessions depicts a one way traffic. Such statements are admissible only as against the author thereof.

18. It is therefore clear that an admission/confession can be used only as against the person who has made the same. The admissibility of the confessions made by Sadiq Israr Shaikh , Arif Badruddin Shaikh and Ansar Ahmad Badshah need to be viewed in terms of the deliberations recorded above. The admissibility of confessions which have been made by the accused ( Sadiq Israr Shaikh , Arif Badruddin Shaikh and Ansar Ahmad Badshah , in Special Case No. 4 of 2009) who are not the accused in Special Case No. 21 of 2006, will lead to the clear conclusion that they are inadmissible as admissions/confessions under the provisions of the Evidence Act…..PTO

Had those persons who had made these confessions been accused in Special Case No. 21 of 2006, certainly the witnesses at Serial Nos. 64 to 66 could have been produced to substantiate the same (subject to the same being otherwise permissible). Therefore, we have no doubt that the evidence of confessional statements recorded before the witnesses at Serial Nos. 64 to 66 would be impermissible within the scheme of admissions/confessions contained in the Evidence Act.

19. The issue in hand can also be examined from another perspective, though on the same reasoning. Ordinarily, as already noticed hereinabove, a confessional statement is admissible only as against an accused who has made it. There is only one exception to the aforesaid rule, wherein it is permissible to use a confessional statement, even against person(s) other than the one who had made it. The aforesaid exception has been provided for in Section 30 of the Evidence Act, which is being extracted hereunder: “…………”

SECTION 30- CONSIDERATION OF PROVED CONFESSION AFFECTING PERSON MAKING IT AND OTHERS JOINTLY UNDER TRIAL FOR SAME OFFENCE –– When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. [Explanation. ––“Offence” as used in this section, includes the abetment of, or attempt to commit, the offence.]

….As is evident from a perusal of Section 30 extracted above, a confessional statement can be used even against a co-accused. For such admissibility it is imperative that the person making the confession besides implicating himself, also implicates others who are being jointly tried with him. In that situation alone, is such a confessional statement relevant even against the others implicated.

20. Insofar as the present controversy is concerned, the substantive provision of Section 30 of the Evidence Act has clearly no applicability because Sadiq Israr Shaikh , Arif Badruddin Shaikh and Ansar Ahmad Badshah have not implicated any of the accused-respondents herein. The importance of Section 30 of the Evidence Act, insofar as the present controversy is concerned, emerges from Illustration ( b ) thereunder , which substantiates to the hilt one of the conclusions already drawn by us above. Illustration ( b ) leaves no room for any doubt that unless the person who has made a confessional statement is an accused in a case, the confessional statement made by him is not relevant. None of the accused in Special Case No. 4 of 2009 is an accused in Special Case No. 21 of 2006. As such, in terms of Illustration ( b ) under Section 30 of the Evidence Act, we are of the view that the confessional statement made by the accused in Special Case No. 4 of 2009 cannot be proved as a confessional statement in Special Case No. 21 of 2006…..PTO

…..This conclusion has been recorded by us on the admitted position that the accused in Special Case No. 4 of 2009 are different from the accused in Special Case No. 21 of 2006. And further because, Special Case No. 4 of 2009 is not being jointly tried with Special Case No. 21 of 2006. Therefore, even though Section 30 is not strictly relevant, insofar as the present controversy is concerned, yet the principle of admissibility, conclusively emerging from Illustration ( b ) under Section 30 of the Evidence Act persuades us to add the same to the underlying common thread that finds place in the provisions of the Evidence Act, pertaining to admissions/confessions. That, an admission/confession is admissible only as against the person who has made it.

SECTION 31- ADMISSIONS NOT CONCLUSIVE PROOF, BUT MAY ESTOP –– Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions hereinafter contained.

21. We have already recorded above the basis for making a confessional statement admissible, namely, human conduct per se restrains an individual from accepting any kind of liability or implication. When such liability and/or implication is acknowledged by the individual as against himself, the provisions of the Evidence Act make such confessional statements admissible. Additionally, since a confessional statement is to be used principally as against the person making it, the maker of the confession will have an opportunity to contest the same under Section 31 of the Evidence Act, not only by producing independent evidence therefor , but also, ……………………………………….PTO

…..because he will have an opportunity to contest the veracity of the said confessional statement, by effectively cross-examining the witness produced to substantiate the same. Such an opportunity would also be available to all other co-accused who would be confronted with a confessional statement made by an accused against them (as in Section 30 of the Evidence Act), as they too would have an opportunity to contest the confessional statement made by the accused, in the same manner as the author of the confession……… (…..) 30. The link for determining admissibility is not case specific. A confessional statement may be admissible in any number of cases. Or none at all. To determine admissibility the test is, that the author of the confessional statement must be an accused in the case (in which the confessional statement is admissible). And in case it is to be used against persons other than the author of the confessional statement, then besides the author, such other persons must all be co-accused in the case.

SECTION120 PARTIES TO CIVIL SUIT, AND THEIR WIVES OR HUSBANDS. HUSBAND OR WIFE OF PERSON UNDER CRIMINAL TRIAL In all civil proceedings the parties to the suit, -and the husband or wife of any party to the suit -shall be competent witnesses. In criminal proceedings against any person, -the husband or wife of such person, respectively -shall be a competent witness.

SECTION 122 COMMUNICATIONS DURING MARRIAGE No person who is or has been married shall be -compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; -nor shall he be permitted to disclose any such communication, -unless the person who made it, or his representative in interest, consents, -except in suits between married persons, -or proceedings in which one married person is prosecuted for any crime committed against the other.

SCOPE The foundation of Section 122 cannot be said to be in English Common law owing to the vast difference in the principles. In English courts of law this right extends only avails husband and wife but not widowers, widows and divorcees. However, under the Indian statute, it is a privilege of the maker waivable by the maker. The recipient cannot contravene the privilege even after the death of the maker.

SUBJECT TO SECTION 122 Section 122 poses a restriction that no person who is or has been married shall be compelled to disclose ay communication made during the subsistence of marriage. Even there an exception is made relating to relating to suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other. This Section is subject to Section 122.

Sections 121 to 132 of the Evidence Act declare exceptions to the general rules that a witness is bound to state the whole truth, and to produce any documents in his possession or power relevant to the matter in issue.

SECTION 121 JUDGES AND MAGISTRATES No Judge or Magistrate shall, - except upon the special order of some Court to which he is subordinate, -be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, -or as to anything which came to his knowledge in Court as such Judge or Magistrate; -but he may be examined as to other matters which occurred in his presence whilst he was so acting.

EXTENT OF SUCH PRIVILEGE A Judge is not compelled to answer any question as to his own conduct. In Court as Judge or Magistrate or to which anything he came in knowledge. However, he may be examined as to the happenings during his presence. The exception to this rule is when the Judge or Magistrate is summoned by an Appellate Court

Union of India v. Orient Engg . & Commercial Co. Ltd., (1978) 1 SCC 10 3. ……When an arbitrator has given an award, if grounds justifying his being called as a witness are affirmatively made out, the Court may exercise its power, otherwise not. It is not right that every one who is included in the witness list is automatically summoned; but the true rule is that, if grounds are made out for summoning a witness he will be called: not if the demand is belated, vexatious or frivolous. Thus, the Court also has not approached the question from the proper perspective. If arbitrators are summoned mindlessly whenever applications for setting aside the award are enquired into, there will be few to undertake the job. The same principle holds good even if the prayer is for modification or for remission of the award.

...CONTD The short point is that the Court must realise that its process should be used sparingly and after careful deliberation, if the arbitrator should be brought into the witness box. In no case can he be summoned merely to show how he arrived at the conclusions he did. In the present case, we have been told that the arbitrator had gone wrong in his calculation and this had to be extracted from his mouth by being examined or cross-examined. We do not think that every Munsif and every Judge, every Commissioner and every arbitrator has to undergo a cross-examination before his judgment or award can be upheld by the appellate court. How vicious such an approach would be is apparent on the slightest reflection.

SECTION 123 EVIDENCE AS TO AFFAIRS OF STATE No one shall be -permitted to give any evidence -derived from unpublished official records -relating to any affairs of State, -except with the permission of the officer at the head the department concerned, -who shall give or withhold such permission as he thinks fit.

State of U.P. v. Raj Narain , (1975) 4 SCC 428 In Sukhdev Singh case this Court laid down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought to be excluded from production relates to an affair of State. The Court has to determine the character and class of documents. Second, the harmonious construction of Sections 123 and 162 shows there is a power conferred on the Court under Section 162 to hold a preliminary enquiry into the character of the document. Third, the expression “affairs of State” in Section 123 is not capable of definition. Many illustrations are possible.

...CONTD “If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs.” Fourth, the second limb of Section 162 refers to the objection both as to the production and the admissibility of the document. Fifth, reading Sections 123 and 162 together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of document in question. That is a matter for the authority concerned to decide. But the Court is competent and is bound to hold a preliminary enquiry and determine the validity of the objection to its production. That necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not.

30. In Sukhdev Singh case this Court said that the power to inspect the document cannot be exercised where the objection relates to a document having reference to matters of State and it is raised under Section 123 [ State of Punjab v. Sodhi Sukhdev Singh , (1961) 2 SCR 371, 389] . The view expressed by this Court is that the Court is empowered to take other evidence to enable it to determine the validity of the objection. The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a privilege claimed or an objection raised even under Section 123. It is said that the Court may take collateral evidence to determine the character or class of documents. In Sukhdev Singh case it has also been said that if the Court finds that the document belongs to what is said to be the noxious class it will leave to the discretion of the head of the department whether to permit its production or not.

...CONTD 31. The concurring views in Sukhdev Singh case also expressed the opinion that under no circumstances the court can inspect such a document or permit giving secondary evidence of its contents. 32. In Amar Chand Butail case the appellant called upon the respondents the Union and the State to produce certain documents. The respondents claimed privilege. This Court saw the documents and was satisfied that the claim for privilege was not justified.

...CONTD 33. In Sukhdev Singh case the majority opinion was given by Gajendragadkar , J. In Amar Chand Butail case Gajendragadkar , C.J. spoke for the Court in a unanimous decision. In the later case this Court saw the document. In Sukhdev Singh case this Court said that an enquiry would be made by the Court as to objections to produce document. It is said that collateral evidence could be taken. No oral evidence can be given of the contents of documents. In finding out whether the document is a noxious document which should be excluded from production on the ground that it relates to affairs of State, it may sometimes be difficult for the Court to determine the character of the document without the Court seeing it. The subsequent Constitution Bench decision in Amar Chand Butail case recognised the power of inspection by the Court of the document.

...CONTD 42. It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also require a minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the document should be withheld from disclosure. If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there. If the Court would yet like to satisfy itself the Court may see the document. This will be the inspection of the document by the Court. Objection as to production as well as admissibility contemplated in Section 162 of the Evidence Act is decided by the Court in the enquiry as explained by this Court in Sukhdev Singh case .

WAIVER OF PRIVILEGE It has been stated in the above mentioned case that, a privilege normally belongs to the parties and can be waived, but where a fact is excluded from evidence by considerations of public policy, there is no power to waive in the parties.

SECTION 124 OFFICIAL COMMUNICATIONS No public officer shall -be compelled to disclose communications made to him in official confidence, -when he considers that the public interests would suffer by the disclosure. Notes- Sometimes ‘Communications’ which expression is used in Sectin 124 may relate to affairs of the State in which case Section 123 would apply. In such cases, section 124 is more or less supplementary to section 123. (like in above case)

DIFFERENCE BETWEEN SECTION 123 & SECTION 124 S.No . SECTION 123 SECTION 124 1. No one shall be permitted to give evidence No public officer shall be compelled to disclose. 2. Derived from unpublished official records Communications made to him (Public Officer) in official confidence 3. They must relate to the affairs of the state When he considers that public interest would suffer by the disclosure 4. Except with the permission of the head of the department concerned who shall give or withold such permission as he thinks fit

SECTION 125 INFORMATION AS TO COMMISSION OF OFFENCES No Magistrate or police-officer shall -be compelled to say -whence he got any information as to the commission of any offence, and no revenue officer shall be compelled to say -whence he got any information as to the commission of any offence -against the public revenue. Explanation.–– “Revenue-officer” in this section means any officer employed in or about the business of any branch of the public revenue.]

Sections 126 to 129 deal with privilege that is attached to professional communications between the legal advisor and the client

SECTION 126 PROFESSIONAL COMMUNICATIONS No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s ex press consent, - to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil , by or on behalf of his client, or - to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure –– -(1) any such communication made in furtherance of any 2 [illegal] purpose, -(2) any fact observed by any barrister, pleader, attorney or vakil , in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. -It is immaterial whether the attention of such barrister, 3 [pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation. –– The obligation stated in this section continues after the employment has ceased.

Chander Prakash Tyagi v. Benarsi Das, (2015) 8 SCC 506 12. The spirit contained in Rule 33, quoted above, is that where a lawyer has committed breach of his duty in respect of fiduciary obligation arising out of the relationship between himself and his client, he is guilty of misconduct of conflict of interest. The above rule restrains a lawyer from acting for another client on the ground of conflict of interest as the duty of the lawyer owed to his former client, not to act prejudicially to his interest, does not come to an end with the termination of the earlier case of his client with whom he had shared confidential information. The basis of Rule 33 is that there is likelihood or possibility of misuse of the instructions given to the lawyer by his former client.

SECTION 127 SECTION 126 TO APPLY TO INTERPRETERS, ETC The provisions of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils .

SECTION 128 PRIVILEGE NOT WAIVED BY VOLUNTEERING EVIDENCE If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and, - if any party to a suit or proceeding calls any such barrister, [pleader], attorney or vakil as a witness, - he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.

SECTION 129 CONFIDENTIAL COMMUNICATIONS WITH LEGAL ADVISERS No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.

OF BURDEN OF PROOF

PREPONDERANCE OF PROBABILITIES The preponderance of the evidence evidentiary standard is the evidentiary standard required to be proven in civil law cases. This is a lower standard than the beyond a reasonable doubt standard, which will be discussed below. What preponderance of the evidence means is that the burden of proof is met if there is greater than a 50% chance that, based on all the reasonable evidence shown, plaintiff’s claims are true and defendant did in fact do the wrong that caused the damage.

BURDEN OF PROOF In criminal law cases, the burden of proof always rests with the prosecution, as the defendant is always presumed innocent, until proven guilty. If the prosecution fails to prove guilt by beyond a reasonable doubt, the defendant does not need to prove anything. The beyond a reasonable doubt standard is a much higher standard than the preponderance of the evidence standard.

SECTION 3 – INTERPRETATION CLAUSE “Proved”. –– 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. “Disproved”. –– 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. “Not proved”. –– A fact is said not to be proved when it is neither proved nor disproved

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.

SECTION 4 “May presume”. –– Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. “Shall presume”. –– Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. “Conclusive proof”. –– 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.

Kuna v. State of Odisha , (2018) 1 SCC 296 21. With reference to Section 3 of the Evidence Act, which defines “proved”, “disproved” and “not proved”, this Court in Lokeman Shah v. State of W.B. [ Lokeman Shah v. State of W.B. , (2001) 5 SCC 235 : 2001 SCC (Cri) 829 : AIR 2001 SC 1760] recalled its observations in M. Narsinga Rao v. State of A.P. [ M. Narsinga Rao v. State of A.P. , (2001) 1 SCC 691 : 2001 SCC (Cri) 258 : 2001 Cri LJ 515] as hereinbelow : ( Lokeman Shah case [ Lokeman Shah v. State of W.B. , (2001) 5 SCC 235 : 2001 SCC (Cri) 829 : AIR 2001 SC 1760] , SCC p. 244, para 17):

“ 17 . 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 a particular case, to act upon the supposition that it exists (vide Section 3 of the Evidence Act). What is required is materials on which the court can reasonably act for reaching the supposition that a certain fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting on any important matter concerning him….”

22. Prior thereto, in Vijayee Singh v. State of U.P. [ Vijayee Singh v. State of U.P. , (1990) 3 SCC 190 : 1990 SCC (Cri) 378] , this Court dwelling on the same theme, had recorded the following exposition: (SCC pp. 217-18, para 28) “ 28 . 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. The “reasonable doubt” is one which occurs to a prudent and reasonable man……….PTO

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 non-existence 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 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. 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”.”

23. The quintessence of the enunciation is that the expression “proved”, “disproved” and “not proved”, lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man, so much so that while adopting the said requirement, as an appropriate concrete standard to measure “proof”, full effect has to be given to the circumstances or conditions of probability or improbability. It has been expounded that it is this degree of certainty, existence of which should be arrived at from the attendant circumstances, before a fact can be said to be proved. 24. It is on the touchstone of this legal exposition that the evidence in the case in hand, has to be appreciated.

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