Category: Evidence Act

Consideration of published but secret documents

Review of judgement in Rafale case:

The fact that the three documents had been published in the Hindu and were thus available in the public domain has not been seriously disputed or contested by the respondents. No question has been raised and, in our considered opinion, very rightly, with regard to the publication of the documents in ‘The Hindu’ newspaper. The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech.

No law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to our notice.

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Suspicion cannot replace proof in a criminal trial

Benefit of reasonable doubt

In a criminal trial suspicion however grave cannot take the place of proof and the prosecution to succeed has to prove its case and establish the charge by adducing convincing evidence to ward off any reasonable doubt about the complicity of the accused. For this, the prosecution case has to be in the category of “must be true” and not “may be true”.

[Source: Khekh Ram vs. State of H.P., decided by SC on 10 November 2017]
A criminal trial is not like a fairy tale wherein one in free to give flight to one’s imagination and phantasm.

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Judicial Notice of a well known fact in public knowledge

Judicial notice of Satyam Scam of inflated profits:

B. Ramalinga Raju, Chairman, Satyam Computer Services Ltd. wrote a letter admitting inflated profits an bank/cash balances in financial statements which was addressed to the board of directors, SEBI and financial institutions; if could be admitted in evidence without formal proof?

Conclusion of Supreme Court:

The aforesaid letter, its contents and signature of the author of the letter – Mr. Raju, were never in dispute and nor at any point of time anyone questioned it. In other words, the existence of letter, its contents and signature of Mr. Raju on the letter were never doubted and nor its author (Mr. Raju) at any point of time retracted from his confessional statement made therein or denied having written such letter.

In my opinion, therefore, the letter in question was rightly received in evidence without requiring any further formal proof to corroborate its existence and contents. That apart, it being a “notorious fact” being in the knowledge of the whole World and especially those in the trade, the Courts could take judicial notice of such evidence as held by this Court in the case of Onkar Nath & Ors. Vs. Delhi Administration, (1977) 2 SCC 611. It is appropriate to quote the words of the leaned Judge- Justice Y.V.Chandrachud (as His Lordship then was), who speaking for the Bench held as under: Continue reading “Judicial Notice of a well known fact in public knowledge” →

Effect of exhibition of document in evidence

Document exhibited as proved.

Section 36 of the Stamp Act is in these terms:-
“Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.”

That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by s. 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed.

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Identification of accused in Court: Procedure.

If the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to confirmation by other corroborative evidence.

Evidence Act; Section 8 and 9:

“Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation.”

It was further held:

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.

It was further held that “the photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath”.

[Source: Manu Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1]

“In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time”

[Source: Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, AIR 1999 SC 2562]

“Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.

[Source: Jana Yadav vs. State of Bihar, (2002) 7 SCC 295]

It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible.

[Source: Rabindra Kumar Pal @ Dara Singh v. Republic Of India, Sup. Ct. on 11 Jan. 2011]

 

Evidence of sniffer dog: Admissibility.

Sniffer dog trails if evidence?

Services of a sniffer dog may be taken for the purpose of investigation but its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused.

Objection against sniffer dog trail:

There are three objections which are usually advanced against reception of the evidence of dog tracking. First since it is manifest that the dog cannot go into the box and give his evidence on oath and consequently submit himself to cross-examination, the dog’s human companion must go into the box and the report the dog’s evidence and this is clearly herersay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inference.

[Abdul Rajak Murtaja Dafedar v. State of Maharashtra, (1969 (2) SCC 234)]

In another case the objection pertaining to sniffer dog was that the life and liberty of human being should not be made to depend on animals sensibilities and that the possibility of a dog misjudging the smell or mistaking the track cannot be ruled out, for many a time such mistakes have happened. In the said case, Court relying decision in Abdul Rajak Murtaja Dafedar (supra) case held: “We are of the view that criminal courts need not bother much about the evidence based on sniffer dogs due to the inherent frailties adumbrated above, although we cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals.”

[Source Gade Lakshmi Mangaraju alias Ramesh v. State of A.P., (2001) 6 SCC 205]

It was followed with another case and it was held that “the law in this behalf, therefore, is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused.

[Source: Dinesh Borthakur v. State of Assam, (2008) 5 SCC 697]

Conclusion about sniffer dog in evidence:

Thus the services of a sniffer dog was taken for investigation. The said dog traced the accused and he was formally arrested in the evening of the next day. The Investigating Officer, Ashok Kumar Yadav (PW-10) corroborated the evidence of Abdul Lais Khan (PW-4) to the effect that ‘Raja’ sniffer dog after picking up scent from the place of occurrence tracked down the house of the accused. What is relevant to note is that the accused has not been convicted on the ground that the sniffer dog tracked down the house of the accused and barked at him. The evidence of dog tracking only shows how the accused was arrested.

[Source: Lalit Kumar Yadav @ Kuri vs State Of U.P (Supreme Court of India)]

Admissibility of evidence: Illegally procured document

Evidence procured by illegal means

Even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved.

A forged letter used to make complaint:

A letter dated 22.4.2011 purported to have been written by Shri M.A. Khan, M.P., suggests that various properties had been purchased by respondent no.2 as benami and the copies of the sale deeds etc. filed alongwith the said letter fortify the same. The Government of India wrote a letter to the Chief Secretary, Govt. of A.P. on 5.5.2011 to conduct an enquiry in respect of alleged disproportionate assets Continue reading “Admissibility of evidence: Illegally procured document” →

Proof of attestation of Will.

Will: Conditions for proper and legal attestation.

Should the two attesting witnesses be present at the same time when the will is executed?

Evidence Act, 1872; Section 68.

View of Kerala High Court:

For valid attestation unlike the English Law, as it stood before the amendment of English Wills Act, 1837 Indian Law does not insist that the two attesting witnesses also should be present at the same time when the will is executed. It is possible for executing a will with proper attestation by the attesting witnesses signing at different times and without knowing each other. Since the requirement of Section 63 Succession Act is only that there should be two attesting witnesses in the will and that there is no insistence that the attesting witnesses also should be present at the same time, we find it difficult to extend the provision of Section 68 of the Evidence Act so as to make it obligatory even when only one attesting witness is called and the propounder is not in a position to call the other witness, to elicit a fact which the attesting witness called may not be in a position to speak honestly before the court. We feel that such an insistence would only be an addition of an unnecessary technicality and that it may lead to witness called for proving, execution and attestation of wills deposing falsehood before the court. In this view, we find it difficult to follow the decisions reported in AIR 1946 Bom 12; AIR 1949 Bom 266, AIR 1974 AP 13; AIR 1981 Mad 252.

Witness in court through attorney

Is power of attorney holder, a competent witness to depose on behalf of the principal?

Attorney is a mere legal representative or an agent. Without anything more s/he can not have personal knowledge of the acts done by the principal, directly. Can such an attorney be competent witness?

Agent/ attorney under Civil Procedure code 1908, Order 3 Rule 1 & 2.

There was a divergence of opinion in different High Courts on the above question which was settled by Supreme Court as under:

The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
[Source: Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217.]